Hester v. City of Milledgeville

• Decision Date: 11 December 1984
• Docket Number: Civ. A. No. 84-84-3-MAC,1200-ALB.
• Citation: 598 F. Supp. 1456
• Parties: Freddie HESTER, et al., Plaintiffs, v. CITY OF MILLEDGEVILLE, et al., Defendants. Johnnie JOHNSON, et al., Plaintiffs, v. CITY OF ALBANY, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

598 F. Supp. 1456

Freddie HESTER, et al., Plaintiffs, v. CITY OF MILLEDGEVILLE, et al., Defendants.

Johnnie JOHNSON, et al., Plaintiffs, v. CITY OF ALBANY, et al., Defendants.

Civ. A. Nos. 84-84-3-MAC, 1200-ALB.

United States District Court, M.D. Georgia, Macon and Albany Divisions.

December 11, 1984.

Jerry Boykin, Warner Robins, Ga., C.B. King, Albany, Ga., for plaintiffs.

Charles A. Mathis, Jr., Milledgeville, Ga., James V. Davis, Albany, Ga., for defendants.

OWENS, Chief Judge:

Plaintiffs in Civil Action No. 84-84-3-MAC are fire fighters employed by the City of Milledgeville, Georgia Fire Department and in Civil Action No. 1200-ALB are police officers employed by the City of Albany, Georgia Police Department.¹ In each action plaintiffs are the subjects of internal investigations into suspected illegal drug use and/or sales by departmental employees. As a part of these investigations each governmental employer has announced that it intends to require plaintiffs to submit, inter alia,² to a polygraph examination, the results of which will be used to determine whether disciplinary action will be taken. Defendants have further advised that a refusal to submit to a polygraph examination shall be grounds for disciplinary action. Plaintiffs have moved this court to enjoin the defendants from utilizing polygraph examinations in these investigations. Plaintiffs allege that their constitutionally protected property right in continued public employment cannot be taken on the basis of the results of a polygraph examination — an unreliable method of detecting truth or deception — or upon their refusal to submit to this unfair procedure. Defendants vigorously deny plaintiffs' contentions, suggest that a polygraph examination is a constitutionally permissible means of investigating governmental employee misconduct, and request this court to deny the injunctive relief³ requested by plaintiffs.

On February 8 and 10, 1984, this court heard evidence surrounding the pending investigations and the defendants' intent to administer and rely upon polygraph examination results. Two licensed polygraph examiners, whose services the defendants either have used or intend to use in these investigations, also testified. On April 26, 1984, the parties presented expert testimony on the validity and reliability of polygraph testing. The defendants' expert, Dr. Frank S. Horvath, a psychophysiologist and professor of criminal justice at Michigan State University, testified in support of polygraph validity. The plaintiffs' expert, Dr. Benjamin Klienmuntz, a clinical psychologist and professor of psychology at the University of Illinois at Chicago, interpreted and testified about various scientific studies reporting significant error rates in polygraph testing. The court received either summaries or complete reproductions of virtually every scientific assessment of polygraph validity conducted in the last twenty years. The parties and amicus curiae American Civil Liberties Union have thoroughly briefed the constitutional issues underlying plaintiffs' claim for injunctive relief.

Findings of Fact

Hester v. City of Milledgeville

1. As early as March of 1982, a City of Milledgeville Fire Department employee was caught smoking marijuana in the restroom of Fire Station Number 1. Additionally, a city police officer reported drug paraphernalia being thrown from a city fire truck, and a subsequent search of the vehicle revealed the presence of marijuana residue. Record at 36-37 (Hearing of February 8, 1984). The City of Milledgeville Police Department was also under investigation for alleged illegal drug use by city police officers.

2. The Chief of the Fire Department issued a memorandum, dated March 12, 1982, which provided in pertinent part:

3) The use of drugs at the Milledgeville Fire Department must and will stop! In order to insure that this will happen, the following actions will be taken:

* * * * * *

b) In the future, the Chief may request any Milledgeville Firefighter to submit to a polygraph test; and

c) Refusal to take the test as requested by the Chief shall be grounds for disciplinary action.

Defendants' Exhibit 2.

3. Agents from the Georgia Bureau of Investigation were called in to continue the investigation of illegal drug use within the police department. During the course of this investigation additional information of illegal drug use by fire department personnel was developed. By November of 1983, the Chief of the Fire Department was of the opinion that illegal drug use by fire department personnel had become widespread. Chief Pounds testified that in his opinion 60% of the thirty-one fire department employees had used illegal drugs either on or off duty, and 20%-25% had consumed illegal drugs while on duty. Record at 44-46, 50 (Hearing of Feb. 8, 1984).

4. The Mayor and Aldermen of the City of Milledgeville, on November 22, 1983, promulgated the following resolution and amendment to the Personnel Policies and Procedures of the City of Milledgeville:

USE OF POLYGRAPH EXAMINATIONS DURING INTERNAL INVESTIGATIONS INTO THE DEPARTMENT OR ACTIONS OR CONDUCT OF OFFICERS OR EMPLOYEES

Upon the order or directive of the Chief of the Milledgeville Police or Fire Department, the Mayor of the City of Milledgeville, the Chairman of the Public Safety Committee, or the Public Safety Director, sworn or unsworn employees and personnel of the Milledgeville Police and Fire Departments, shall submit to polygraph examinations. Polygraph examinations as required by this rule shall be specifically directed and narrowly related to a particular internal investigation being conducted by the Department or at the request of the Department. The refusal of any employee to submit to a polygraph examination after being ordered to do so, as provided above, shall be grounds for disciplinary action against the employee, including but not limited to termination. The refusal of any employee to sign documents necessary for the administration of a polygraph examination, including the refusal to sign a waiver shall be considered to be and the same shall constitute a refusal to take the polygraph examination. Any and all polygraph examinations administered pursuant to this policy shall be given by a polygraph examiner licensed to administer such examinations under the laws of the State of Georgia.

However, in no event shall the results of an employee sic on a polygraph examination be used as the sole basis for taking of disciplinary action against any employee.

Defendants' Exhibit 1 (emphasis added).⁴ On November 29, 1983, all employees of the City of Milledgeville Fire Department were advised that they would be required to take a polygraph examination pursuant to the resolution of November 22, 1983. Record at 4, 8 (Hearing of Feb. 8, 1984).

5. Prior to this lawsuit nine polygraph examinations⁵ were actually administered to fire department employees. As a result of these nine examinations one fireman admitted criminal conduct; the examiner reported two other individuals as deceptive. Id. at 77. To date neither of these individuals has been disciplined. Id. at 50-51.

6. Prior to the administration of the polygraph examinations the subjects of these tests were presented with four alternative "waiver forms." See Defendants' Exhibits 5, 10, 11, and 12. All nine fire fighters executed form 11 (Record at 79 (Hearing of Feb. 8, 1984)), which provides:

UNDERSTANDING AND RELEASE

I understand that I am being directed by the Georgia Department of ________ to submit to a polygraph examination as part of an internal investigative procedure.

I understand that I am not required to waive any right guaranteed to me by the Constitution of the United States or the Constitution of the State of Georgia or any other law (including my right against self-incrimination under the Fifth Amendment to the United States Constitution). I further understand that I may object to answering any question asked by the examiner if such answer would tend to incriminate me or to otherwise expose me to possible criminal prosecution.

I hereby release the polygraph examiner administering this examination and the Georgia Bureau of Investigation, its agents, officers and employees from any liability resulting from the administration of this polygraph examination.

________________________ SIGNED ________________________ DATE ___________ WITNESS

Defendants' Exhibit 11. In substance, the other optional forms submitted by the G.B.I. provide as follows: Exhibit 5 allows the employee to stipulate that the results of the polygraph examination will be admissible as evidence in any administrative or judicial proceeding; Exhibit 10 allows an employee both to stipulate that the results will be admissible and to waive his right against self-incrimination; Exhibit 12 is a refusal form which acknowledges that all of the employee's options and the consequences of his choice have been explained prior to his refusal to submit to a polygraph examination. At the time these waiver forms were presented and executed, no employee was provided a list of questions to be asked, as the examination questions had not been prepared at that time. Record at 29 (Hearing of Feb. 8, 1984).

7. Plaintiff Freddie Hester has been employed as a fire fighter with the City of Milledgeville Fire Department since April of 1980. Under the City of Milledgeville Personnel Policies and Procedures Manual, Court's Exhibit 2, plaintiff Hester, as well as all other named plaintiffs, are "permanent" employees who can be terminated only for "cause" and are entitled to written notice and a post-termination hearing and appeal. Court's Exhibit 2 at 25-28, 31-33. Plaintiff Hester has previously taken two polygraph examinations involving unrelated matters. Each time he was advised by the examiner that he had been deceptive when, according to plaintiff, he had not been untruthful or deceptive. Record at 9 (Hearing of Feb. 8, 1984). Because of these...