Baker v. City of Lawrence

Decision Date06 December 1979
Citation409 N.E.2d 710,379 Mass. 322
PartiesHerbert BAKER et al. 1 v. CITY OF LAWRENCE et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Anthony R. DiFruscia, Lawrence (Kathleen M. Sullivan and Kenneth M. Homsey, Lawrence, with him), for plaintiffs.

Edward J. Grimley, Jr., City Sol., for defendants.

Frank J. McGee and William B. Vernon, Marshfield, for the Boston Police Patrolmen's Ass'n, Inc., amicus curiae, submitted a brief.

William M. Shipps, Commissioner of Labor and Industries, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

We took for direct review the appeal of the plaintiffs, six police officers of the city of Lawrence, 3 from a declaratory judgment of the Superior Court regarding the legality and consequences of a request by the defendant director of public safety of the city that they submit to a lie detector test.

The facts, summarized in the findings which form the basis of the judgment, are drawn largely from the parties' stipulation, and are not in material dispute. About 1 A.M., September 19, 1978, Sergeant Leo Ouellette and the plaintiff officers responded to an apparent breaking and entering of Mickey's sporting goods store on Essex Street, Lawrence. A man crouched in a nearby entryway was quickly apprehended as a suspect, but he was without any loot. Examining the store, the police found no evidence of theft; cash in the cash register appeared undisturbed. Shortly, Hyman Kimell, the store owner, arrived and joined in the search which failed to indicate a loss.

Later that morning, however, after the departure of the police, Kimell discovered that certain knives, a bag containing checks, and more than $1,000 in cash were missing from the store. Thereupon he called the defendant Terrance D. Schiavone, an alderman and director of public safety of the city (thus administrative head of the Lawrence police department), reported the loss, and said that as the items had not been found nearby or in the suspect's possession, they must have been taken by one or more of the police. Kimell said neither he nor any of his employees was responsible for the abstraction, in proof of which all were willing to submit to polygraph examination.

Schiavone, feeling that Kimell's allegations put the department under a "cloud of suspicion," promptly phoned Sergeant Joseph St. Germain and instructed him to question the offices and Sergeant Ouellette 4 about their activities regarding the break-in; to inform them of the willingness of Kimell and his employees to undergo the polygraph test; and to ask the officers whether they would likewise submit voluntarily to such a test.

On September 20, the plaintiff officers and Ouellette were each called in turn to an interrogation room at the station house before Sergeants St. Germain, Francis Landers, and (barring his own case) Ouellette, and questioned by them, a record being made on tape. Before the questioning began, each officer was read Miranda warnings, signed a card attesting to the fact, and was informed that any statement he made could and would be used against him in any criminal proceeding. 5 The questions canvassed what each officer had done or observed at the investigation of the break-in the previous morning. The parties agree that the officers gave full answers.

St. Germain, following Schiavone's orders, told each officer about Kimell and his employees' volunteering to take the polygraph test, and asked the officer whether he was willing to take a similar test. There is some uncertainty how the officers responded at this session and uncertainty, also, whether any of the sergeants made any threats about disciplinary action if an officer should refuse a test. However, these matters need not be pursued, for by their commencement of the present action on October 2 the officers may be taken to have refused the polygraph test, unless, perhaps, they would be faced with job sanctions if they refused-a real possibility, as the defendant Schiavone has stated on the record that "(i)f an officer refuses to voluntarily submit to the polygraph examination which will be limited to said officer's official duties that night, I intend to consider disciplinary action against said officer." As to possible use of the polygraph results if an officer took the test, the alderman stated that "(w)hile the results of said test would not be used in a criminal prosecution the said results could be used in a disciplinary hearing."

On October 3 a judge of the Superior Court granted temporary relief restraining the defendants from taking disciplinary action against the plaintiffs, but the order did not forbid the second round of interrogation of the individual officers that took place on October 4-5. Now conducting the questioning (preceded as before by the Miranda formulas) were two State police officers invited by Schiavone to assist in the investigation. Also present were Schiavone, members of the Lawrence police department, and the attorney for the Lawrence Patrolman's Association, apparently acting in effect as counsel for the officers. The questioning related again to the break-in investigation including questions whether the officer had taken the missing property or had information about who might have taken it. In response to an inquiry by the attorney, Schiavone said the investigation was "departmental and criminal."

The plaintiff officers contended in the action that the request to them to submit to a polygraph test, with the threat of disciplinary action if they refused, offended against G.L. c. 149, § 19B, and was otherwise prohibited. A declaration was prayed with accompanying injunctive relief. The judgment appealed from, dated December 22, 1978, declared, in the circumstances above described, that the cited statute did not preclude the request by the administrative head of department that the officers submit to a test to be administered by the State police, and that an officer, by refusing to comply, could properly be subjected to job sanctions. The injunctive relief, claimed by the plaintiffs upon a contrary view of the law, was denied. Appeal having been lodged in the Appeals Court, we brought the case here on the plaintiffs' application. Meanwhile, under an order of a single justice of the Appeals Court, the plaintiffs in fact severally took a polygraph test, but any material use of the results was to abide further order. 6 For the reasons set out below, we affirm the judgment.

1. Section 19B of G.L. c. 149 (last amended by St.1973, c. 620) reads thus:

Any employer who subjects any person employed by him, or any person applying for employment, including any person applying for employment as a police officer, to a lie detector test, or requests, directly or indirectly, any such employee or applicant to take a lie detector test, shall be punished by a fine of not more than two hundred dollars. This section shall not apply to lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.

We may assume that the first sentence of § 19B forbids all employers, public or private, to impose polygraph tests on those employed by them or applying to them for employment, and also forbids requests to those persons to undergo such tests. With this reading of the first sentence the plaintiffs agree cheerfully, even though it encounters the difficulty that the phrase "including any person applying for employment as a police officer" modifies only the words "any person applying for employment" which suggests that "any person employed" does not comprehend police officers already employed. 7

The second sentence propounds an exception to the first. The situation plainly within the exception is one where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph test to that employee. If, then, the employee refuses or indicates hesitance to submit to the test at the agency's request, the employer (relieved of the prohibition of the first sentence of § 19B) may request that the employee do so, with implied job sanctions if the employee finally declines. This was the situation at bar. In the course of an investigation into alleged criminal conduct of the plaintiff officers, it was proposed that they take a polygraph test at the hands of the State police. Such requests, followed by administration of tests where the subjects agree, are common incidents of criminal investigations, and are "permitted." See Dolan v. Kelly, 76 Misc.2d 151, 155, 348 N.Y.S.2d 478 (N.Y. 1973). The Legislature, although generally averse to tests forced by employers upon their employees, here recognized an evident interest of the employer in applying some pressure to assist an investigation leading to exoneration of the employee or the opposite. 8

In contrast to this common sense interpretation, also adopted by the judge below, the plaintiffs offer a curious gloss on the second sentence of § 19B. They would read "as otherwise permitted in criminal investigations" to include the standards set forth in the cases beginning with Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974), 9 regarding the admissibility of polygraph test results in the trial of criminal cases. The requirements for admission established in the Juvenile case include the voluntary agreement by the defendant, before the test is administered, to allow the results, whether favorable or unfavorable to him, to be put in evidence at the trial. 10 So the plaintiffs are suggesting here that the employee-the police officer-must have agreed voluntarily to take the polygraph test administered by the law enforcement agency before the employer is relieved of the prohibition against...

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  • Rivera v. City of Douglas
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    ...90 Ill.App.2d 31, 234 N.E.2d 339 (1967); Roux v. New Orleans Police Department, 223 So.2d 905 (La.App.1969); Baker v. City of Lawrence, 379 Mass. 322, 409 N.E.2d 710 (1979); Dolan v. Kelly, 76 Misc.2d 151, 348 N.Y.S.2d 478 (1973); Richardson v. City of Pasadena, 500 S.W.2d 175 (Tex.Civ.App.......
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