Furtado v. Town of Plymouth
Decision Date | 11 June 2007 |
Docket Number | No. 06-P-892.,06-P-892. |
Citation | 69 Mass. App. Ct. 319,867 N.E.2d 801 |
Parties | Kevin J. FURTADO v. TOWN OF PLYMOUTH & others.<SMALL><SUP>1</SUP></SMALL> |
Court | Appeals Court of Massachusetts |
Present: BERRY, SMITH, & DOERFER, JJ.
The plaintiff, Kevin J. Furtado, claims that his rights under G.L. c. 149, § 19B(2), were infringed when the town of Plymouth (town) police department (as his employer) ordered him to submit to a lie detector test in the course of an investigation to determine if he should be disciplined or terminated. His alleged misconduct would have amounted to a crime, if true. The relevant part of the statute reads:
(emphasis added).
G.L. c. 149, § 19B(2), as amended through St.1985, c. 587, § 1. We conclude that the underlined exception applies where the conduct complained of, if true, would constitute a crime even though criminal prosecution was not possible at the time of the administration of the polygraph. Thus, the defendants2 did not violate Furtado's statutory rights under G.L. c. 149, § 19B(2).
Background. The matter was decided on cross motions for summary judgment on undisputed material facts. In July of 1999, the police chief for the town was informed that allegations of sexual abuse of two minor children had been made against Furtado, a police officer for the town. Furtado was placed on administrative leave with pay.
On September 13, 1999, the Plymouth County district attorney's (district attorney) office informed the police chief of the fact that an investigation had been "completed" and that a decision had been made, "[b]ased on the evidence . . . gathered," not to press criminal charges against Furtado. The police chief was advised, pursuant to Carney v. Springfield, 403 Mass. 604, 532 N.E.2d 631 (1988),3 that the district attorney's office was "referring this case to [him] for whatever administrative action [he] deemed appropriate."
On September 16, 1999, the police chief informed Furtado that an internal investigation would be conducted into the allegations that he "engaged in criminal activity while off duty."4 The police chief "directed" Furtado to "write a complete and full report" responding to the allegations. He cautioned Furtado that "[f]ailure to submit the report as required in this written order will be considered insubordination and as grounds for disciplinary action, up to and including, termination from [his] employment as a Plymouth Police Officer." Enclosed with this written "order" from the police chief was a copy of the letter from the district attorney's office, which confirmed that no criminal charges would be filed in this matter.
Before submitting such a report, private counsel for Furtado directed a letter dated September 22, 1999, to the police chief, advising that under Massachusetts law, a public employee could not be lawfully compelled to give testimony, under a threat of disciplinary action, absent a proper grant of immunity. Counsel also asserted that the police chief lacked the authority to compel testimony from Furtado, by use of a polygraph or lie detector test,5 because the town "[had] not secured the necessary guarantees of immunity required" by law. Ultimately, the district attorney and the Attorney General did grant transactional immunity to Furtado,6 and on November 1, 1999, Furtado did provide the police chief with a written statement explaining his version of what had happened.7
In a letter dated November 9, 1999, the police chief "ordered" Furtado to submit to a polygraph test. Before having issued this order, the police chief consulted with the town manager, who is said to have concurred in the decision to issue an order requiring Furtado to submit to a polygraph test. Furtado complied and the polygraph test occurred on November 16, 1999. Subsequently, by a letter dated December 6, 1999, counsel for Furtado asserted that it would be improper for the town to use the test results in an internal review of this matter.8 On January 6, 2000, the police chief advised Furtado that there was insufficient evidence to warrant disciplinary action and that Furtado could return to work.
In 2002, Furtado commenced the present action in Superior Court.9 Furtado appeals from the ruling of the judge allowing the town's motion for summary judgment and denying his motion.
Discussion. Furtado argues that the defendants violated G.L. c. 149, § 19B(2), by ordering him to take a polygraph test as part of an internal departmental investigation, when there was no "ongoing criminal investigation" or possibility of prosecution, as he had been granted immunity from the district attorney and the Attorney General before he was ordered to submit to the polygraph test.10 This presents a "Catch-22" situation: Furtado's urged interpretation of the statutory exception would result in the situation where a law enforcement agency would not be permitted to request its employee-police officer to take a polygraph test once the officer received immunity from criminal prosecution, as there would be no "ongoing criminal investigation." However, without a grant of immunity from future criminal prosecution, a law enforcement agency would not be allowed to lawfully administer to its employee a polygraph test within the exception of G.L. c. 149, § 19B(2).11 See Baker v. Lawrence, 379 Mass. 322, 331, 409 N.E.2d 710 (1979) ( ); Baglioni v. Chief of Police of Salem, 421 Mass. 229, 230, 656 N.E.2d 1223 (1995) ( ). See also Carney v. Springfield, 403 Mass. 604, 610, 532 N.E.2d 631 (1988); Commonwealth v. Dormady, 423 Mass. 190, 193-194, 667 N.E.2d 832 (1996). We decline to adopt Furtado's interpretation, which would clearly have the effect of neutering the exception. Cf. Baker v. Lawrence, supra at 328, 409 N.E.2d 710 ( ).
Furtado relies on language in Baker v. Lawrence for the proposition that the statutory exception applies only where the conduct at issue is "the subject of an ongoing criminal investigation." Id. at 329, 409 N.E.2d 710. Furtado places undue weight on this particular language and misreads the context in which it was used. In Baker v. Lawrence, the plaintiffs argued that the police officers must have voluntarily agreed to take the polygraph test before the employer (law enforcement agency) is relieved of the prohibition in § 19B(2) against making a request. In rebuffing the plaintiffs' reading of the statutory exception, the Supreme Judicial Court inferred that the exception "does not look to any part of the criminal trial process, but is rather addressed to the investigation of possible criminal activity." Ibid. Responding to the plaintiffs' contention that the investigation of the alleged crime (a larceny) must be characterized as departmental, not criminal, and thus not within in the statutory exception, the court stated:
(Emphasis supplied.)
Id. at 329-330, 409 N.E.2d 710 (footnote omitted). It is clear that when including the phrase "ongoing criminal investigation" in the opinion, the Supreme Judicial Court was merely quoting language that the parties used and was not setting forth a strict requirement. Acknowledging the legislative history and policy objectives of the statute, the court noted that "the polygraph may be useful as an investigatory aid," id. at 328 n. 9, 409 N.E.2d 710, and determined that the exception applies "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." Id. at 327, 409 N.E.2d 710.12 Moreover, a law enforcement agency is allowed to request such a polygraph test with the purpose that refusal to cooperate could result in "implied job sanctions." Ibid.
Here, the investigation continued after the grant of immunity and clearly concerned allegations of criminal conduct as distinguished from violations of terms of employment or rules associated therewith. See id. at 329-330, 409 N.E.2d 710. There is thus no merit to Furtado's assertion that there was no lawful basis upon which he could be required to submit to a polygraph or lie detector test.
Conclusion. As the defendants complied with the guidelines set...
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Furtado v. Town of Plymouth
..."clearly concerned allegations of criminal conduct." The plaintiff appealed, and the Appeals Court affirmed. See Furtado v. Plymouth, 69 Mass.App.Ct. 319, 867 N.E.2d 801 (2007). We granted Furtado's application for further appellate This case requires us to decide the scope of the underscor......
- Furtado v. Town of Plymouth