Texas Dept. of Mental Health & Mental Retardation v. Texas State Employees Union

• Decision Date: 19 February 1986
• Docket Number: No. 14460,14460
• Citation: 708 S.W.2d 498
• Parties: TEXAS DEPARTMENT OF MENTAL HEALTH & MENTAL RETARDATION, et al., Appellants, v. TEXAS STATE EMPLOYEES UNION, et al., Appellees.
• Court: Texas Court of Appeals

Page 498

708 S.W.2d 498

TEXAS DEPARTMENT OF MENTAL HEALTH & MENTAL RETARDATION, et

al., Appellants, v. TEXAS STATE EMPLOYEES UNION, et al., Appellees.

No. 14460.

Court of Appeals of Texas,

Austin.

Feb. 19, 1986.

Rehearing Denied April 30, 1986.

Jim Mattox, Atty. Gen., Lou Bright, Asst. Atty. Gen., Austin, for appellants.

James C. Harrington, American Civil Liberties Foundation of Texas, Inc., Austin, for appellees.

Before POWERS, EARL W. SMITH and BRADY, JJ.

POWERS, Justice.

The Texas Department of Mental Health and Mental Retardation (the "agency") enacted regulations providing that its employees, under certain conditions, may be required to submit to a polygraph examination in the course of an agency investigation of alleged employee misconduct. ¹ Tex.Civ.Prac. & Remedies Code, chpt. 37 (1986). An employee's refusal to do so may have adverse employment consequences as set out in the regulations. In a suit by the Texas State Employees Union and ten agency employees (the "appellees"), the trial court declared the regulations invalid and enjoined their enforcement. We will reverse the judgment below and remand the cause to the trial court.

THE REGULATIONS

The agency's regulations provide that an employee may be dismissed if he refuses to submit to a polygraph examination in the course of certain administrative investigations by the agency or the agency facility where he is employed. He may also be dismissed if he initially submits to the examination but in the course of it refuses "to answer a question or questions directly related to the performance of his official duties...." Dismissal may not be ordered, however, unless the personnel director of the agency makes the following determinations after the employee's refusal to submit to the examination or answer a particular question or questions:

1. There is reasonable cause to believe that there has been an incident of

(a) Class I or Class II client abuse or neglect as defined in Rules of the Commissioner of MHMR 302.04.19.001-.009[;]

(b) drinking alcoholic beverages or taking illegal drugs while on duty or on the grounds of [an agency facility]; or

(c) theft, assault, or sale or distribution of illegal drugs occurring during duty hours, or on the campus of [an agency] facility or otherwise directly related to work performance.

2. there is reasonable cause to believe that the employee acted or failed to act in the incident in a manner that violates the Commissioner's Rules; and

3. other reasonable investigatory alternatives [to the polygraph examination] have been exhausted, including, at a minimum, an interview of the employee.

The regulations do not specify the circumstances under which an employee may * * *

be ordered to submit to a polygraph examination. This omission is evidently intended to be supplied by the Commissioner's "Notice to Employees" issued December 12, 1983. The notice provides as follows:

* * *

Mandatory polygraph exams are intended only to assist the [agency] in its ability to investigate the following serious problems:

1. [Patient] abuse or neglect;

2. Activity which endangers or threatens the health and/or safety of other employees and/or [patients];

3. Theft or other criminal activity on the grounds of the facility or otherwise related to [S]tate employment; and

4. Drinking alcoholic beverages or taking illicit drugs or being under the influence of alcohol or such drugs during working hours.

Mandatory polygraph exams will not be used indiscriminately. Very few employees will ever be required to undergo such an exam and then only after a determination that all other reasonable alternatives have been exhausted.

Results of polygraph exams are admissable [sic] by either party in [an agency] grievance hearing; but such results, standing alone, cannot be the basis for a determination. There must be evidence other than the results of a polygraph examination for the presiding officer to determine that the facility has proven the allegations against an employee.

(emphasis added). The foregoing is apparently intended to limit use of the polygraph examination to investigations of the four categories of employee misconduct set out above; and to limit its use still further by the proviso that an employee will not be required to submit to a polygraph examination until a determination has been made (by an unnamed official) "that all other reasonable alternatives have been exhausted."

The regulations rather carefully prescribe the procedure to be followed in administering the polygraph examination:

* * *

* * *

(b) An employee required to participate in a polygraph exam shall be given written notice of the specific incident under investigation and the basis upon which he is suspected of having been involved in the incident at least twenty-four hours before being required to participate in a polygraph exam.

(c) All polygraph examinations must be performed by a polygraph examiner licensed under Texas law.

(d) An employee required to participate in a polygraph exam may be accompanied to the exam by a representative of the employee's choice. The representative shall be allowed to monitor the exam from outside the examination room through either a two-way mirror or an audio device.

(e) All polygraph exam questions must be specifically, narrowly and directly related to the employees [sic] performance of his official duties in connection with the specific incident that is the subject of the investigation or necessary for the proper administration of the polygraph exam. Unless otherwise agreed to by the employee, no polygraph exam question may inquire into the employee's

1--religious beliefs and affiliations;

2--beliefs and opinions regarding racial matters;

3--political beliefs and associations, including union membership or activity;

4--knowledge of, or participation in, a specific crime or crimes that are not related to the specific incident that is the subject of the investigation;

5--sexual preferences and practices that are not related to the specific incident that is the subject of the investigation.

(f) An employee required to submit to a polygraph examination will be given a written list of the questions to be asked on the exam before the exam begins.

(g) An employee required to participate in a polygraph exam shall have the opportunity to discuss the polygraph exam (h) All employees who participate in a polygraph exam, the results of which indicate deception on the part of the employee, shall be given an opportunity to explain the result. Under no circumstances shall an employee be required to explain the result.

questions with his representative before the exam begins.

(i) Neither the fact that an employee participated in a polygraph exam nor the results of a polygraph exam are admissible in a departmental grievance hearing without the agreement of the employee and the facility. The fact that an employee refused to participate in a polygraph exam is admissible only in a departmental grievance hearing arising from an alleged violation of this section....

(emphasis added).

The foregoing procedural instructions are contained in Section 10 of the regulations. That section concludes with the following "Note to Employees ...":

By answering questions under [Section 10], you do not lose your constitutional rights against self-incrimination. The United States Supreme Court has held in the case of Garrity v. New Jersey, 385 U.S. 493 [87 S.Ct. 616, 17 L.Ed.2d 562] (1967), that answers to questions asked of a public employee who faces job termination for refusal to answer cannot be used against the employee in a subsequent criminal proceeding. The U.S. Fifth Circuit Court of Appeals in Gulden v. McCorkle, 680 F.2d 1070 (1982), reiterated the holdings of the U.S. Supreme Court described above and applied them to a situation in which a public employee refused to submit to a polygraph examination.

THE CONTROVERSY

Appellees sued the agency in an original action in district court, contending among other things that the agency's "mandatory polygraph policy" was invalid because it "violates Texas constitutional and common law rights of privacy" held by agency employees. Other allegations need not concern us here because the trial-court judgment, which enjoins the agency from requiring its employees to submit to polygraph examinations, rests solely on the ground that the regulations purport to authorize violations of the employees' common law rights of privacy. ² Moreover, we need not discuss here a related cause of action, because it was severed in the trial court, or the matter of a class designation, because the trial court made no such designation under Tex.R.Civ.P.Ann. 42 and no complaint is made in that regard on appeal.

The trial court filed findings of fact and conclusions of law. ³ They revolve around two basic propositions:

1. It is the agency's policy to employ "control questions" in administering the polygraph examinations to its employees. ⁴ These control questions are designed to establish a reference mark showing the examinee's physiological response to sensitive matters unrelated to the particular incident under investigation. Examples of such questions are: "Do members of your family smoke dope?"; "Have you stolen anything in your life or in the past 10 years?" "Have you used alcohol, prescription drugs, or marijuana?"; "Have you beaten your kids?" It is the agency's position that such questions are necessary for a proper administration of the polygraph examination. These sensitive matters must be revealed by the employee owing to the coercive prospect of dismissal that is possible under the regulations. Such questions, if answered, constitute intentional intrusions into the employee's solitude, seclusion, private affairs, and concerns so as to be highly offensive to a reasonable person, and thus an invasion of privacy that cannot be justified by any countervailing public interest.

2. While polygraph examinations are,...