Long Beach City Employees Assn. v. City of Long Beach

• Decision Date: 19 June 1986
• Citation: 719 P.2d 660,227 Cal.Rptr. 90,41 Cal.3d 937
• Court: California Supreme Court
• Parties: , 719 P.2d 660, 40 Empl. Prac. Dec. P 36,309, 55 USLW 2034, 105 Lab.Cas. P 55,633, 1 IER Cases 465 LONG BEACH CITY EMPLOYEES ASSOCIATION, Plaintiff and Appellant, v. CITY OF LONG BEACH et al., Defendants and Respondents. L.A. 32051.

Page 90

227 Cal.Rptr. 90

41 Cal.3d 937, 719 P.2d 660, 40 Empl. Prac. Dec. P 36,309,

55 USLW 2034, 105 Lab.Cas. P 55,633, 1 IER Cases 465

LONG BEACH CITY EMPLOYEES ASSOCIATION, Plaintiff and Appellant, v. CITY OF LONG BEACH et al., Defendants and Respondents.

L.A. 32051.

Supreme Court of California,

In Bank.

June 19, 1986.

Helena S. Wise and Geffner & Satzman, Los Angeles, for plaintiff and appellant.

Laurence Gold, Washington, D.C., Stephen P. Berzon, Marsha S. Berzon, Michael Rubin and Altshuler & Berzon, San Francisco, as amici curiae on behalf of plaintiff and appellant.

Robert W. Parkin, City Atty., and Blanche Deight, Deputy City Atty., for defendants and respondents.

George Agnost, City Atty., San Francisco, Mary J. Shea, Deputy City Atty., James K. Hahn, City Atty., Los Angeles, Frederick N. Merkin, Senior Asst. City Atty., and Robert Cramer, Asst. City Atty., as amici curiae on behalf of defendants and respondents.

BROUSSARD, Justice.

Appellant Long Beach City Employees Association challenges the constitutionality of a legislative scheme under which certain public employees in California may be compelled to undergo polygraph examinations as a condition of employment. Labor Code section 432.2 provides that no employer may require any employee or applicant for employment to submit to a polygraph examination as a condition of employment, but contains an exception for all federal, state and local government employers. ¹ A separate statute, Government Code section 3307, provides that no "public safety officer" shall be compelled to submit to a polygraph examination against his will. ² Thus, the only employees in California who can be subjected to compulsory polygraph examinations are public employees who are not "public safety officers."

Long Beach City Employees Association (hereinafter CEA) brings this lawsuit on behalf of a group of public employees who assert that orders by defendant City of Long Beach (hereinafter City) to submit to polygraph examinations violate their rights of privacy (Cal.Const., art. I, § 1) and equal protection. (Cal.Const., art. I, § 7; U.S. Const., 14th Amend., § 1.) CEA sues to enjoin such examinations in the future.

I. Facts

CEA is the exclusive representative under the Meyers-Milias-Brown Act (Gov.Code, § 3500 et seq.) of City employees in a variety of bargaining units, including certain employees of the Long Beach Marine Bureau (hereinafter Bureau). ³ The Bureau is a subdivision of the Long Beach Tidelands Agency.

In the summer of 1982, the Bureau suspected that money was being stolen from its boat launch ramp machines. Seven hundred dollars of marked money was placed in the machines during a five-day period in July, and $218 was subsequently found missing. Since there was no evidence of tampering or forced entry, the Bureau suspected that a person or persons having access to keys to the machines committed the theft. A criminal investigation was initiated during which numerous Bureau employees were interrogated by the police. The criminal investigation was discontinued for lack of sufficient evidence. The Bureau then launched an administrative investigation and beginning about September 7, 1982, 26 employees received orders to undergo polygraph examinations.

Sworn declarations of the polygraph examiner, city employees and CEA representatives reveal the following events. Initially all of the employees indicated that they would refuse to submit to a polygraph examination and they contacted CEA to intervene on their behalf. On October 26, 1982, CEA filed a complaint for a temporary restraining order and injunctive relief to prevent administration of the polygraph examinations. CEA's requests were denied on October 26, 1982, and January 10, 1983, respectively. During this period most of the employees submitted to polygraph examinations under threat of possible termination from employment if they refused.

Numerous instances of difficult or uncooperative behavior occurred, however. One employee who volunteered for early testing subsequently refused to complete the test when the examiner attempted to attach physical instruments to his body. This same employee became very upset when he was allegedly questioned about his sexual background. (The examiner, however, denied having asked any questions concerning his sexual background or preferences.) A second employee insisted on stating on the record that he submitted to the test only under protest and as a result of duress. A third employee's test was inconclusive because of extreme nervousness and a fourth because he engaged in controlled breathing of a type consistent with a deliberate attempt to defeat the examination.

The entire incident created an atmosphere of distrust and antagonism between the Bureau and its employees. The director of the Bureau, in a meeting with employees on this matter in August 1982, allegedly called them "a bunch of thieves." City policy officials recommended to City management that in the future all employees with access to public money be given polygraph tests every six months. For their part, the employees alleged feeling personally accused and as if put into an "electric chair." A CEA observer at the exams accused the examiner of prejudging the guilt of his subjects from police reports pinpointing certain individuals as probably guilty.

One employee ultimately refused to take a polygraph examination. He had been employed with the Bureau for 15 years and was then president of the Harbor Patrol Officers Association. He and others questioned the Bureau as to why only certain of the employees with access to machine keys had been selected for examination. Although he had not initially been ordered to take an examination, he subsequently received an order to appear for a polygraph examination. As of the date of the hearing on the preliminary injunction he continued to refuse to take the examination. All other employees of the Bureau who were ordered to submit to polygraph examinations have done so.

II. Polygraph Testing and the Right of Privacy

The first question we must address is whether involuntary polygraph examinations impinge on an employee's right of privacy. In November 1972, the voters of California amended article I, section 1 of our Constitution to include among the inalienable rights of all people the right of "privacy." ⁴ In White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, we stated that the importance of mental privacy in the adoption of the amendment is evident from the election ballot argument presented to the voters. ⁵ The argument stated: " 'The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion and our freedom to associate with the people we choose.' ... 'This right should be abridged only when there is a compelling public need....' " (Id., at pp. 774-775, 120 Cal.Rptr. 94, 533 P.2d 222, italics added.)

If there is a quintessential zone of human privacy it is the mind. Our ability to exclude others from our mental processes is intrinsic to the human personality. ⁶ In their seminal article on the right to privacy, Warren and Brandeis stated: "The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others." (Warren & Brandeis, supra, at p. 198.) Seventy-five years later, a United States Senate committee investigating employee psychological testing defined privacy in much the same terms. ⁷

A polygraph examination is specifically designed to overcome this privacy by compelling communication of "thoughts, sentiments, and emotions" which the examinee may have chosen not to communicate. ⁸ The standard polygraph test is far more intrusive than a series of questions related directly to the employee's job performance or knowledge of the crimes under investigation. When an employee first arrives for an examination, he or she is typically seated in a reception area for several minutes where, unbeknownst to the employee, observation has already begun. During this period the employee's behavior is observed to evaluate his or her attitude toward the examination, whether hostile or cooperative. This evaluation becomes part of the guilt determination. ⁹

A pretest interview is then administered by the polygraph examiner to determine whether there are "any emotional or psychological factors which would adversely affect the reliability of test results." (Comment, Privacy: The Polygraph in Employment, supra, at p. 36.) The type of questions that must be asked to make this determination are highly personal and are unrelated to the employee's official duties. For instance, the examiner must find out about any physiological abnormalities such as excessively high or low blood pressure, heart or respiratory diseases, and about mental abnormalities such as retardation, psychoses and neuroses. (Hermann, Polygraph and Personality Testing, supra, at p. 80, fn. 31.)

In the instant case, the following questions appeared on the pretest interview transcript of a Bureau employee: "Ever been arrested for any reason? ... Any history of heart trouble or epilepsy? ... Under the care of a doctor now for any reason? ... Ever been treated by or consulted a psychiatrist for any reason? ... Have you ever experimented with any type of drugs--reds, whites, LSD, heroin, or cocaine? ... Have you ever smoked marijuana in your life? ... When was the last time?"

Physical instruments are then attached to the examinee's body: "[T]he subject is seated in a chair specially constructed to permit the attachment of the various measuring devices: the pneumograph tube is tied to his chest, the blood-pressure cuff is wrapped round his upper arm, and a set of electrodes is attached to his hands. The subject looks straight ahead....