Rivera v. City of Douglas

• Decision Date: 18 February 1982
• Docket Number: CA-CIV,No. 2,2
• Citation: 132 Ariz. 117,644 P.2d 271
• Parties: Antonio RIVERA and Manuel Molina, Plaintiffs/Appellees, v. CITY OF DOUGLAS, Arizona, a municipal corporation; Bill R. DaVee, City Manager of the City of Douglas, Arizona, in his official capacity, Defendants/Appellants. 4140.
• Court: Arizona Court of Appeals

Page 271

644 P.2d 271

132 Ariz. 117

Antonio RIVERA and Manuel Molina, Plaintiffs/Appellees, v. CITY OF DOUGLAS, Arizona, a municipal corporation; Bill R. DaVee, City Manager of the City of Douglas, Arizona, in his official capacity, Defendants/Appellants.

No. 2 CA-CIV 4140.

Court of Appeals of Arizona, Division 2.

Feb. 18, 1982.

Rehearing Denied March 24, 1982.

Review Denied April 13, 1982.

Ramon R. Alvarez, Douglas, for plaintiffs/appellees

Ruben S. Teran, Douglas City Atty., Douglas, for defendants/appellants.

OPINION

HOWARD, Chief Judge.

This is an appeal from the granting of a preliminary injunction which prohibited the City of Douglas from requiring that two employees take a polygraph examination under threat of dismissal. We reverse.

On October 8, 1980, City of Douglas Public Works Director Ben LaForge, observed appellees and several other crew members in an area of town which was in an opposite direction from where they were supposed to be working. Because he found this irregular, he questioned both men concerning the incident and was told by Molina that his men were used for a few minutes to place a grill on a fireplace at Mr. Rivera's house. Appellees now deny any involvement in this incident.

At the same time, the City of Douglas received an anonymous phone call that appellees were engaged in personal projects while on city time. The city manager then commenced a formal investigation. Reports submitted concerning the incident were inconclusive and upon the advice of the chief of police and the city attorney, the city manager sent appellees a letter which contained the following directive:

"You are hereby ordered to submit to polygraph examination as part of a continuing internal investigation into the above matter. The polygraph examination will deal with such questions as may be related specifically and narrowly to the performance of your duties and that of your associates on October 8, 1980. The answers contributed by you will not be used against you in any criminal prosecution. However, the answers given may be used against you in any subsequent personnel action with regard to your position with the city.... Refusal on your part to take the examination at the time and place specified will result in immediate termination or suspension." Both employees filed a complaint under the Uniform Declaratory Judgment Act, A.R.S. § 12-1831 et seq., seeking injunctive relief from having to submit to the polygraph. The court enjoined appellants from discharging appellees until further order from the court.

The issues presented on this appeal are as follows: (1) Did the superior court have jurisdiction to hear appellees' complaint and render a preliminary injunction? (2) May an employee of a municipal corporation be ordered to submit to a polygraph examination upon penalty of dismissal over objection based upon his Fifth Amendment right against compulsory self-incrimination? (3) Was appellants' conduct in ordering appellees to submit to a polygraph examination unreasonable, arbitrary, or capricious?

JURISDICTION

Appellants' argument that appellees did not have a justiciable controversy stems from the fact that appellees did not ever refuse to take the polygraph test, nor were they ever actually dismissed. It contends further that appellees were only seeking an advisory opinion in regards to events which may never happen. We disagree.

Declaratory judgment relief is an appropriate vehicle for resolving controversies as to the legality of acts of public officials. Riley v. County of Cochise, 10 Ariz.App. 55, 455 P.2d 1005 (1969). However, in order to be entitled to relief, a plaintiff must have a protectible interest such as a legal relation, status or right and an assertion of the denial of it by the other party. Riley v. County of Cochise, supra. Furthermore, injunction is an appropriate remedy to determine whether rights have been or will be affected by arbitrary or unreasonable action of an administrative officer or agent. Wales v. Tax Commission, 100 Ariz. 181, 412 P.2d 472 (1966); Town of Paradise Valley v. Gulf Leisure Corporation, 27 Ariz.App. 600, 557 P.2d 532 (1976). Public officers may therefore be enjoined from acts which are beyond their power. Williams v. Superior Court, 108 Ariz. 154, 494 P.2d 26 (1972); Foster v. Thunderbird Irrigation Water Delivery District of Pinal County, 125 Ariz. 324, 609 P.2d 594 (App.1980).

In this action, appellees received letters from a city officer ordering them to take a polygraph examination and further stating that refusal would result in immediate termination. We find that appellees had a protectible interest in their employment which was threatened by acts of a public official that they considered unconstitutional. They were therefore entitled to seek injunctive relief, and a declaration of their rights under § 12-1831.

THE FIFTH AMENDMENT

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." This clause was held to be applicable to the states by reason of the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The amendment not only protects the individual in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924).

The interaction of the privilege against self-incrimination with the right of the government to oversee the official activities of its employees has been the subject of several decisions of the Supreme Court. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers were questioned concerning the alleged fixing of traffic tickets. They were warned that if they didn't answer they would be dismissed and that what they said could be used against them. No immunity of any kind was offered or available under state law. The officers gave statements which were subsequently used against them in criminal proceedings over their objections. The court held that the statements were coerced under threat of discharge and could not be used in criminal prosecutions. The court also held that in the context of threats of dismissal, the act of responding to interrogation was not voluntary and not an effective waiver of the privilege against self-incrimination.

In a companion case, Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), the plurality opinion held that a lawyer could not be disbarred for asserting the privilege. In concurrence, Justice Fortas distinguished that situation from one where a public employee is asked questions specifically, directly, and narrowly relating to performance of his official duties.

The next year, two more cases on this subject were heard. In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the issue was whether a policeman who refused to waive his right against compulsory self-incrimination could be removed from office because of this refusal. Answering this question in the negative, the Court then went on to state:

"If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to dismissal." 392 U.S. at 278, 88 S.Ct. at 1916.

The companion case, Uniformed Sanitation Men Association, Inc. v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) was to the same effect as Gardner, but involved public employees, not policemen, who were advised that refusal to answer questions and waive immunity would lead to dismissal. Characterizing this as a choice between surrendering their rights or their jobs, the Court held such a choice to be an impermissible one, although clearly they would "subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights." 392 U.S. at 285, 88 S.Ct. at 1920.

The last in this line of Supreme Court cases is Lefkowitz v. Turley, supra, which involved architects under contract to the state. When asked to testify to a grand jury, they refused to sign waivers of immunity and as a consequence had their contracts canceled pursuant to a New York statute which required such action upon a refusal to waive immunity. Again the Court found that a state cannot compel testimony through a threat of substantial economic sanctions without granting immunity. The Court did make clear, however, that:

"(T)he Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such (criminal proceedings) use. (citation omitted) Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused." 414 U.S. at 84, 94 S.Ct. at 325.

What these cases say about disclosures that may constitutionally be requested of public employees extends, we think, to disclosure through the medium of a polygraph test. Numerous jurisdictions, including Arizona, have upheld the use of a polygraph in internal investigations concerning police and firemen. ¹ In Eshelman v. Blubaum 114 Ariz. 376, 560 P.2d 1283 (1977), Division One of this court held that an officer could be dismissed for refusal to take a polygraph examination during an internal...