Delivering The Lybarger Admonition The Correct Way
When public employers conduct workplace investigations—especially those involving law enforcement or public safety personnel—the process becomes complex when potential criminal conduct overlaps with administrative misconduct. In these instances, investigators must protect both the agency’s right to accountability and the employee’s constitutional rights. The tool used to maintain this balance is the Lybarger admonition.
What Is A Lybarger, Anyway?
The Lybarger admonition originates from the California Supreme Court’s decision in Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822. The case established that while a public employee may be compelled to answer questions in an administrative investigation, any statements made under such compulsion—and any evidence derived from them—cannot be used against the employee in a criminal proceeding.
In short, the Lybarger admonition serves two purposes:
It compels cooperation during an administrative interview, and
It protects against self-incrimination in later criminal cases.
This balance ensures that employers can pursue disciplinary matters without violating an employee’s Fifth Amendment rights. It also allows an employee to be forthcoming in an administrative interview without fear of that interview being used against them in a criminal setting.
When Do I Need To Provide It?
Workplace investigators should provide a Lybarger admonition to an employee accused of misconduct when:
The employee works for a public agency;
The investigation involves potential misconduct, and that misconduct could be a basis for criminal wrongdoing;
The answers given by the interviewee could reasonably be self-incriminating; and,
The agency intends to compel the employee to participate in the investigation and answer all questions fully and truthfully.
Private employers do not use Lybarger admonitions. This framework applies specifically to public-sector investigations.
When the Subject of an investigation is accompanied by a Union representative, do not be surprised if they insist on receiving a Lybarger admonition even when the misconduct at issue is not a basis for criminal wrongdoing. Do not fret at this. Providing a Lybarger admonition to a Subject even when it is not technically necessary will not harm the investigation.
What Am I Supposed To Say?
The practical delivery matters just as much as the legal wording. Here is a straightforward way to handle it.
Step 1: Prepare a Written Script
Do not rely on memory. Do not paraphrase. Use a well-written admonition form and read it verbatim. Consistency protects the investigation and avoids omissions.
Step 2: Deliver It Before Substantive Questions
Timing is critical. Provide the admonition at the beginning of the interview—before asking potentially incriminating questions.
Step 3: Deliver It Calmly and Clearly
Tone matters. You are not threatening the employee. You are not negotiating. You are setting the framework. Speak in a neutral, professional tone.
Step 4: Compel and Then Confirm
To deliver a defensible admonition, the employee must know they are required to cooperate and must be informed that failure to cooperate can lead to discipline. This ensures they are compelled to cooperate. Once compelled, their statements in an interview cannot be used against them in a criminal setting.
Here is one, simple way to deliver the admonition:
“This is an administrative investigation. You are required to answer questions that relate to your job duties and to the allegations made against you. If you refuse to answer, you may be subject to discipline, up to and including termination. However, any statements you make cannot be used against you in a criminal proceeding.”
You then ask, “Do you understand?” Wait for the answer, and document it.
Step 5: Extra Credit
Many agencies use a written form in conjunction with providing a verbal admonition. This is a useful practice. Interviewees can be required to read, and then sign and date, a written form that lays out the Lybarger admonition. During an interview, the form can be read verbatim to the interviewee. The interviewee audibly provides a response, and then signs and dates the form.
Need even more thoroughness? Some agencies provide employees with a Miranda warning and a Lybarger admonition. This is particularly true when the conduct being investigated plainly involves criminal activity. Doing so helps create a clear record that the interviewee was provided with their constitutional rights, and that the purpose of the interview is strictly administrative.
There is a simple way to provide a Miranda warning and a Lybarger admonition. First, provide the employee with their Miranda rights. Then, determine if they voluntarily wish to answer questions by asking, “With these rights in mind, would you like to speak to me now?” 100 out of 100, the interviewee will tell you, “No.” At that point, you must compel them to answer questions by providing them with a Lybarger admonition.
Conclusion
The Lybarger admonition is not just a procedural formality. It protects constitutional rights while preserving managerial authority. It reassures the employee that the process is lawful. When delivered properly, it gives the investigator confidence to ask direct, difficult questions.
