Farmer v. City of Ft. Lauderdale

• Court: Florida Supreme Court
• Writing for the Court: ADKINS; OVERTON; ALDERMAN, C.J., dissents with an opinion, in which McDONALD; ALDERMAN; McDONALD
• Citation: Farmer v. City of Ft. Lauderdale, 427 So.2d 187 (Fla. 1983)
• Decision Date: 10 February 1983
• Docket Number: No. 61001,61001
• Parties: Arthur FARMER, Petitioner, v. CITY OF FORT LAUDERDALE, Respondent.

Page 187

427 So.2d 187

Arthur FARMER, Petitioner, v. CITY OF FORT LAUDERDALE, Respondent.

No. 61001.

Supreme Court of Florida.

Feb. 10, 1983.

Bruce H. Little, Fort Lauderdale, for petitioner.

Donald R. Hall, City Atty., and Jon M. Henning, Asst. City Atty., Fort Lauderdale, for respondent.

ADKINS, Justice.

This is a petition to review the decision of the District Court of Appeal, Fourth District, Farmer v. City of Fort Lauderdale, 400 So.2d 99 (Fla. 4th DCA 1981), in which the following questions were certified by subsequent order as being of great importance:

1) Does Section 914.04 of the Florida Statutes and the Supreme Court's decision in Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla.1973) prohibit the use of immunized testimony to discharge a city employee?

2) Should a city employee's right under the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 1, Section 9 of the Constitution of the State of Florida require protection by immunization from all penal sanctions as opposed to only criminal?

3) Can a police officer be compelled to submit to a polygraph test when he is a suspect in a criminal investigation without granting him immunity from all penalties or forfeiture?

Farmer v. City of Fort Lauderdale, 400 So.2d 99 (Fla. 4th DCA 1981).

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

At the time of the events giving rise to this action, petitioner was a police officer with the Fort Lauderdale Police Department. On April 28, 1977, he was working special duty at a bank, which duty included moving a portable bus vault from the teller's window to the main vault. On this day, approximately $10,000 was reported missing from one of the bus vaults. All bank employees having access to the vault were given polygraph tests and were determined to be free from suspicion. Petitioner did not take a polygraph test at this time. Subsequently, the $10,000 was found, having been stashed in a false ceiling of the bank.

More than a year later, petitioner was ordered to take a polygraph test by his superior police officers. He declined to do so stating that he would not take the test at that time. Subsequently, petitioner was suspended and then dismissed by respondent for "willful violation of a lawful and reasonable regulation, order or direction, made or given by a superior officer where such violation has amounted to insubordination or serious breach of proper discipline or has resulted in loss or injury to the public." Dismissal was based on the recommendation of the Chief of Police and City Manager of Fort Lauderdale. Appeal was taken to the Civil Service Board of the City of Fort Lauderdale, which denied the appeal. This action was appealed to the circuit court, which dismissed the appeal, succinctly noting that "the Order requiring Appellant to submit to a polygraph examination was both lawful and reasonable. The refusal to obey the Order was sufficient reason to dismiss Appellant."

A further appeal was filed with the district court, which treated it as a writ of certiorari and denied it on the authority of its previous decision in State Department of Highway Safety and Motor Vehicles v. Zimmer, 398 So.2d 463 (Fla. 4th DCA 1981), Farmer v. City of Fort Lauderdale, 400 So.2d 99 (Fla. 4th DCA 1981) (Hurley, J. dissenting).

In Zimmer, the district court rejected the argument that in the absence of an express statute or rule authorizing an agency (therein the Florida Highway Patrol) to dismiss an employee for failure to take a polygraph test, the agency lacked such authority. It specifically held, concerning an issue that it regarded as a matter of first impression in this state, that implicit in the authority of the agency to investigate allegations of wrongdoing is the authority to require involuntary submission to a polygraph test. The court noted that the highway patrol officer under investigation was not coerced into waiving his constitutional right against self-incrimination and was advised that the results of the polygraph examination would be used only for the interdepartmental investigation, since they were not admissible in evidence in any judicial proceeding.

Judge Hurley's dissent in Farmer adopted the rationale set forth in Judge Anstead's dissent in Zimmer. Judge Anstead, observing that there was no evidence of the test's reliability before the court, stated that the order to take the test was unreasonable in light of the polygraph's history of having never been judicially recognized as reliable. In addition, Judge Anstead noted that the permissible scope of the questioning as set forth by the United States Supreme Court in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), would necessarily be exceeded by the generally unlimited scope of questions used in a polygraph test. He also found objectionable the fact that the answers extracted would be determined to be true or false based upon physiological responses rather than comparison with other credible evidence. Finally, it was noted that granting to public employers a carte blanche authority to force employees to submit to unlimited questioning during a polygraph test would conflict with the employee's right to privacy under the Florida Constitution and abrogate his protection against self-incrimination under the United States and Florida Constitutions.

An examination of relevant federal law on the subject of dismissing public employees for refusal to answer questions is necessary to resolve this issue. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the United States Supreme Court held that statements coerced from a police officer under threat of dismissal could not be used in any subsequent criminal proceeding. In Gardner v. Broderick, the Court held that police officers refusing to waive their fifth amendment protection against self-incrimination could not be discharged for such refusal. However, the Court did hold that public employees could be dismissed if they refused to answer questions specifically, directly and narrowly relating to the performance of their official duties without giving up their fifth amendment rights against self-incrimination. Neither of these cases nor any subsequent United States Supreme Court cases dealt with the issue of required submission to polygraph tests. In the case sub judice, it should be noted that petitioner did not fail to answer questions directed to him concerning the matter under investigation.

Although a question of first impression in this state, it should be observed that other states have dealt with the question of dismissing police officers for failing to submit to polygraph tests and reached different conclusions. Courts in many states have held that a police officer can be dismissed for refusal to take a polygraph test. In Fichera v. State Personnel Board, 217 Cal.App.2d 613, 32 Cal.Rptr. 159 (1963), the court held that the need for confidence in public officers requires police officers under certain circumstances to risk self-incrimination in the course of maintaining their positions. Therein, the court noted that a lie detector test, while inadmissible in court, could be of value in channeling an investigation. In Richardson v. City of Pasadena, 500 S.W.2d 175 (Tex.Civ.App.1973), reversed on other grounds, 513 S.W.2d 1 (Tex.1974), the court, in upholding the right of a municipality to dismiss a police officer for failure to take a polygraph test, held that an officer could be subject to such a test if reasonable cause exists to believe he could supply information relevant to an investigation. In Coursey v. Board of Fire and Police Commissioners of Skokie, 90 Ill.App.2d 31, 234 N.E.2d 339 (1967), the court allowed the mandatory test, observing that if the officer passed the test, it would help establish public confidence since the public believes the test results are conclusive. Similarly, a Washington court in Seattle Police Officers Guild v. Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972), held that the mandatory use of the polygraph is permissible if the subject of the inquiry is narrowly and directly related to the performance of official duties. Accord, Eshelman v. Blubaum, 114 Ariz. 376, 560 P.2d 1283 (Ct.App.1977); Lemoine v. Department of Police, 348 So.2d 1281 (La.App.1977); Dolan v. Kelly, 76 Misc.2d 151, 348 N.Y.S.2d 478 (Sup.Ct.1973).

This view is, however, not unanimous. Other states, most notably Pennsylvania, New Jersey and Connecticut have taken the contrary position. See Stape v. Civil Service Commission of Philadelphia, 404 Pa. 354, 172 A.2d 161 (1961); Engel v. Township of Woodbridge, 124 N.J.Super. 307, 306 A.2d 485 (1973); Molino v. Board of Public Safety, 154 Conn. 368, 225 A.2d 805 (1966). In Stape, the court held that a police officer could not be dismissed for just cause since there was nothing contained in any relevant regulations requiring him to take the test. In Engel, the court based its decision on a state statute providing that no person could be required to take the test as a condition of initial or continued employment. In Molino, the court held that the lack of a regulation authorizing the test and the basic unreliability of the test combined to result in disallowance of its use.

The history of the use of polygraph tests in this state is not insubstantial. In Kaminski v. State, 63 So.2d 339 (Fla.1952), this Court, in relation to the admissibility of the results of a polygraph test to bolster the credibility of a prosecution witness, held that the use of such a mechanical device could not substitute for the "time-tested, time-tried, and time-honored discretion of the judgment of a jury as to matters of credibility." 63 So.2d at 341. This precedent has not, however, served to keep all polygraph evidence out of court. In Codie v. State, 313 So.2d 754 (Fla.1975), this Court held that such evidence could be admitted upon stipulation, either...