Dolan v. Kelly

Decision Date21 September 1973
Citation348 N.Y.S.2d 478,76 Misc.2d 151
CourtNew York Supreme Court
PartiesThomas DOLAN, Petitioner, v. Eugene KELLY, etc., et al., Respondents.

LEON D. LAZER, Justice.

May a police officer be compelled to submit to a polygraph examination on pain of dismissal during the course of a departmental investigation of alleged misconduct of a fellow officer?

This issue of apparent first impression in this State reaches the court via an Article 78 proceeding instituted to enjoin the Commissioner of the Suffolk County Police Department from requiring the petitioner, Detective Dolan of the homicide squad, to submit to such a test. While the Commissioner denies ordering petitioner to do so, he avers that such an order will follow if the current 'request' is refused. Clearly, the institution of this suit by Detective Dolan, after several postponements of the test, constitutes a refusal. The Commissioner's current posture in the face of this proceeding can scarcely be deemed less than an order. Thus a justiciable controversy is before the court and the parties seek resolution of it.

The facts are these. In June of 1973 Detective Dolan and his homicide squad partner were called to the scene of an alleged suicide. Another detective who was also present subsequently reported to his superiors that petitioner's colleague, while inventorying the deceased's property, had removed a sum of money from the victim's pocket to his own, an allegation which was also made by the deceased's father. During the investigation which was immediately commenced by the Police Department petitioner and his partner made oral and written statements declaring their innocence and disavowing knowledge of any looting. The partner and the third detective thereafter submitted to polygraph tests which the former 'failed' and the latter 'passed'. Petitioner was then requested to submit to a similar examination in order to verify his assertions of his colleague's innocence. Although Detective Dolan appeared for the scheduled test, it was postponed because the examiner found him in such nervous condition as to preclude a proper reading. After two additional postponements, petitioner instituted this proceeding.

It is Detective Dolan's position (as set forth in his law memorandum) that the Commissioner has confronted him with a Hobson's choice; either he submits to the examination and risks self-incrimination or he will be suspended or dismissed from his employment. He asserts that the Commissioner's order violates his rights under the federal and state constitutions, and that his career will be unfairly jeopardized because the polygraph test is notoriously inaccurate.

It is the Commissioner's view that the polygraph test is a useful investigatory tool principally utilized to clear the innocent and eliminate suspects rather than to establish guilt. He denies that Detective Dolan is the object of the investigation but concedes that the situation may change. Looting of a dead body, he declares, is a heinous crime requiring a complete investigation. He maintains that a police department is a quasi-military organization and that tight discipline is essential.

The fifth amendment privilege against self-incrimination is applicable to the states (Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678) and its protection is as available to state and municipal employees, including police officers, as it is to any other citizen (Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562; Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Sanitation Men v. Sanitation Com'r., 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089).

Nevertheless, the privilege against self-incrimination is not a bar to dismissal of a police officer who refuses to answer questions specifically, directly and narrowly relating to the performance of his official duties when he is not required to waive his immunity with respect to the use of his answers in a subsequent criminal proceeding (Gardner v. Broderick, Supra; Spevack v. Klein, Supra (concurring opinion); Sanitation Men v. Sanitation Com'r., Supra; McGrath v. Kirwan, 32 A.D.2d 700, 299 N.Y.S.2d 866, lv. app. den. 25 N.Y.2d 744, 307 N.Y.S.2d 1025, 255 N.E.2d 728). In such a case the employee's right to immunity is not at stake (Sanitation Men v. Sanitation Com'r., Supra) and it is well settled that if a public employee refuses to testify as to a matter concerning which his employer may legitimately inquire, he may be discharged for insubordination (Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Kammerer v. Board of Fire and Police Comm., 44 Ill.2d 500, 256 N.E.2d 12; Silverio v. Mun. Court of City of Boston, 355 Mass. 623, 247 N.E.2d 379, cert. den. 396 U.S. 878, 90 S.Ct. 151, 24 L.Ed.2d 135; McGrath v. Kirwan, Supra). To state that a person does not have a constitutional right to government employment is only to say that he must comply with the reasonable, lawful and non-discriminatory terms laid down by the proper authorities (Slochower v. Board of Higher Education of the City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692). In Garrity the Supreme Court prohibited the use in subsequent criminal proceedings of coerced statements of police officers made during departmental investigation and in Perla v. New York, 392 U.S. 296, 88 S.Ct. 2062, 20 L.Ed.2d 1108, a statute requiring governmental employees to waive their immunity against such use of coerced statements was struck down.

Clearly, the instant petitioner may not be required to waive his immunity, and if he does so under compulsion his testimony cannot be used against him in a subsequent criminal prosecution. The subject of his interrogation relates specifically, directly and narrowly to the performance of his duties for he was engaged in the performance of them when the acts under investigation are purported to have taken place in his presence. As a public employee petitioner must account for performance of his public trust (Sanitation Men v. Sanitation Com'r., Supra). As a police officer he is a member of a highly sensitive agency, entrusted and charged with the duty of protecting the community it serves from the evils of crime and corruption. That agency is entitled to his full cooperation when it seeks to purge itself of members who may have engaged in criminal or disreputable acts (Seattle Police Officers Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485). Therefore, dismissal of petitioner would be warranted upon his refusal to testify during such an inquiry.

It is not a per se refusal to testify, however, that has borne the issue to this court--it is a directive to undergo an examination which purportedly will evaluate the truth of petitioner's testimony. His thrust against the legality of that directive is predicated on both unconstitutionality and the theory that, absent statutory authority, it is arbitrary and capricious to imperil his career by compelling submission to an unreliable test.

The Commissioner cites no statute which authorizes him to require members of the police force to undergo polygraph examination. Neither is there a statute which precludes such a requirement although on at least one occasion a bill prohibiting employers from subjecting their employees to such tests as a condition of employment was passed by the Legislature but vetoed by the Governor (see discussion of Senate Bill Intro. 279 (1965) in The Polygraph in Private Industry: Regulation or Emulation, 15 Buffalo L.Rev. 655 (1966)). Nevertheless, the Commissioner has a justifiable interest in ascertaining whether the petitioner, in his answers, is refusing to tell the truth or is being evasive. When such refusal or evasion is palpable such conduct may be deemed a refusal to answer punishable by contempt proceedings or even by a perjury prosecution (Ruskin v. Detken, 32 N.Y.2d 293, 344 N.Y.S.2d 933). Here the consequences of falsehood are much more severely limited. The issue then reduces itself to a determination as to whether the pursuit of that justifiable interest may be furthered by the use of the polygraph examination.

The polygraph test is widely utilized by governmental agencies (see Hearings on Use of Polygraphs as 'Lie Detectors' by the Federal Government Before the House Committee on Government Operations, 88th Cong. 2d Sess. (1964)) and by private industry (see e.g., Vgughn, New Trends in Admissibility of Polygraph Tests and Spectogram Voiceprint Identification Evidence, 3 Memphis State L.Rev. 282 (1973); 15 Buffalo L.Rev. 655, supra; Lie Detectors in Private Employment: A Proposal for Balancing Interest, 33 Geo.Wash.L.Rev. 932 (1964--1965)). Such tests are considered an estpecially valuable investigatory tool in police work, guiding police investigators in their hypotheses (3 Wigmore on Evidence, 3d Ed. § 999 at 646) and employment by law enforcement agencies is frequent (See Lone Star Company, 149 N.L.R.B., No. 67 (1964), 57 L.R.R.M. 1365). The use is not without criticism, however. Organized labor apparently has regarded it as an invasion of privacy and violative of the privilege against self-incrimination (33 Geo.Wash.L.Rev. 932, supra) and the National Labor Relations Board has viewed with skepticism use of it by employer as a condition of employment (See e.g., Skaggs v. Stone, Inc., 40 Lab.Arb. 1273 (1963); Louis Zahn Drug Co., 40 Lab.Arb. 352 (1963)).

Controversy concerning the reliability of the polygraph proceeds apace. Critics claim that there is no firm scientific proof that lying necessarily produces any physiological reaction (The Emergence of the Polygraph at Trial, 73 Colum.L.Rev. 1120, 1122 (1973)) or that anxiety is caused by...

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    ...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 ev......
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