State, Dept. of Highway Safety and Motor Vehicles v. Zimmer

• Court: Florida District Court of Appeals
• Writing for the Court: DOWNEY; HERSEY; ANSTEAD; ANSTEAD
• Citation: State, Dept. of Highway Safety and Motor Vehicles v. Zimmer, 398 So.2d 463 (Fla. App. 1981)
• Decision Date: 22 April 1981
• Docket Number: No. 79-1708,79-1708
• Parties: STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Alan ZIMMER, Appellee.

Page 463

398 So.2d 463

15 A.L.R.4th 1197

STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Alan ZIMMER, Appellee.

No. 79-1708.

District Court of Appeal of Florida, Fourth District.

April 22, 1981.

Rehearing Granted as to Certification of Question May 21, 1981.

Enoch J. Whitney, Gen. Counsel, and Michael J. Alderman, Asst. Gen. Counsel, Tallahassee, for appellant.

Howard L. Greitzer, Lyons & Sanders, Fort Lauderdale, for appellee.

DOWNEY, Judge.

This is an appeal from an order of the Career Service Commission of the State of Florida reversing an order of the Florida Department of Highway Safety and Motor Vehicles that dismissed appellee, Alan Zimmer, from the Florida Highway Patrol. Upon consideration of the briefs and record furnished this court, we conclude that the order of the Career Service Commission should be reversed.

Zimmer was an officer in the Florida Highway Patrol, having achieved permanent status with that agency. The issue involved in this case arose out of a personnel investigation ordered by the Director of the Division of Florida Highway Patrol, Colonel J. E. Beach, when it was discovered that money and property belonging to an accident victim was missing from the evidence locker in the Fort Lauderdale Highway Patrol station. During the course of the investigation all employees of the station were interviewed, including Zimmer. The interviews disclosed some discrepancies in Zimmer's story regarding his having won some money at the race track. Thus, two persons were asked to submit to a polygraph examination; one person submitted. However, Zimmer refused to submit unless he was officially charged with a crime, although he had been ordered by the Chief Investigator and by Colonel Beach to submit to the examination. Zimmer was thereupon notified by Colonel Beach that he was dismissed from the agency for failure to obey an order of a superior officer, willful violation of rules and regulations, and refusal to voluntarily cooperate in an official investigation. Zimmer appealed his dismissal to the Career Service Commission, which, in due course, reversed the agency action and ordered Zimmer reinstated. The Commission relied heavily upon a 1975 Opinion of the Attorney General of Florida (AGO 075-94), which advised, essentially, that, because there is no express statute or rule authorizing the agency to dismiss a career service employee for refusal to undergo a polygraph examination, the agency lacks such authority.

In this court Zimmer argues in his brief that:

In the absence of statute or valid implementing rule specifically authorizing dismissal of a Career Service employee, such employee may not be discharged for failing to answer questions or allegations or refusing to submit to a polygraph examination. (Emphasis supplied.)

That argument, of course, finds support in the Attorney General's Opinion cited above. However, we find the argument unacceptable.

Upon becoming a Florida Highway Patrol Officer Zimmer took an oath to render strict obedience to his superiors in the Patrol and to observe and abide by all the orders and regulations prescribed by his superiors for the government and administration of the Patrol. Chapter 321, Florida Statutes (1977), creates the Florida Highway Patrol as a branch of the Department of Highway Safety and Motor Vehicles and authorizes that department to promulgate rules and regulations by which its personnel shall be examined, employed, trained, and discharged. Florida Administrative Code Rule 15-1.03 provides that the Chief Investigator is responsible for supervising activities of the employees and assigned investigations. Responsibility for personnel investigation is also assigned to regional commanders.

With regard to the rights of a Career Service Employee Section 110.061(1), Florida Statutes (1977), provides that "Any employee who has permanent status in the Career Service may only be dismissed for cause by the agency or officer by whom he is employed." Section 110.061(2)(a) requires the Department of Administration to establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion, and dismissal of employees in the Career Service. Pursuant to this scheme, Florida Administrative Code Rule 22A-7.10(7) (b) permits an agency head to dismiss a Career Service employee for "just cause," which term includes, but is not limited to, negligence, inefficiency, or inability to perform assigned duties, repeated substandard performance of assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drunkenness, or conviction of any crime involving moral turpitude.

If Zimmer's position is correct, he was not even required to answer any questions relating to the investigation because he is a Career Service employee and there is no statute or rule which expressly requires him to do so. That is Zimmer's position in his brief and the Attorney General's in Attorney General Opinion 075-94. In the case at bar, Zimmer did answer questions during his two interviews, but he refused to submit to the polygraph examination.

In our judgment Zimmer's contention should be rejected by this court. We find incredible the suggestion that a patrol officer is not required to answer questions directed to him during a personnel investigation in the face of the oath taken by patrol officers and the authority contained in Chapter 321. Implicit in the statute providing for the creation of the patrol agency and the promulgation of rules and regulations by which personnel are to be investigated and discharged is a delegation of authority to appoint agency officers to interview and interrogate the agency's personnel in the course of agency investigations. It follows that requiring such personnel to undergo a polygraph examination during the course of agency investigations is also authorized.

This issue is one of first impression in Florida but not in the nation. ¹ Other courts have held that a police officer may be required to submit to a polygraph examination under appropriate conditions. Those cases generally hold that there is no constitutional problem involved in requiring a public employee to submit to a polygraph examination so long as the employee is not coerced into waiving his constitutional right against self incrimination. In this case the appellee was advised the results of the examination were to be used only for the purpose of the interdepartmental investigation. Furthermore, (absent a stipulation to the contrary) polygraph results are not admissible in evidence in Florida. Kaminski v. State, 63 So.2d 339 (Fla.1953).

In the most recent decisions from the Supreme Court of the United States concerning this issue, 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), and Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Court recognized the right of an appointing authority to discharge public employees for refusal to account for their performances of their public trust after proper proceedings which do not involve an attempt to coerce a relinquishment of constitutional rights.

In Grabinger v. Conlisk, 320 F.Supp. 1213 (N.D.Ill.1970), the court ruled:

It is not the law that a public employer, in the course of a disciplinary hearing into an employee's conduct, may not require an employee to disclose information reasonably related to his fitness for continued employment. The net of Garrity (385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562), Broderick (392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082) and Uniformed Sanitation Men (392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089) is that if a public employee refuses to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify his answers may not be used against him in a subsequent criminal proceeding. The plaintiffs, therefore, were not compelled to waive their constitutional right against self-incrimination as a condition to their continued public employment. 320 F.Supp. at 1217-1218.

The court concluded that:

... the mere requirement of submission by a police officer to a polygraph examination during the course of a preliminary investigation concerning complaints about the officer's official conduct does not violate his guarantee to procedural due process. 320 F.Supp. at 1221.

In Gardner v. Broderick, 392 U.S. 273, 277-278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968), the Court stated:

It is argued that although a lawyer (alluding to Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574) could not constitutionally be confronted with Hobson's choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike a lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other 'client' or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one.

We agree that these factors differentiate the situations. 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. State of New Jersey, ... (385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562), the privilege against self-incrimination would not have been a bar to his dismissal. (Footnotes omitted.)

We see a decided distinction between the foregoing cases...