Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations., 80-51

• Decision Date: 22 February 1980
• Docket Number: 80-51
• Citation: 4 Op. O.L.C. 421
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations.

4 Op. O.L.C. 421

Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations.

No. 80-51

United States Department of Justice

February 22, 1980

Larry A. Hammond Acting Assistant Attorney General Office of Legal Counsel

Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations

The Attorney General may order Justice Department employees to submit to polygraph tests to answer questions relating to pending criminal investigations, and may discharge an employee for refusing to take such a test.

Even where an employee is entitled to be discharged only "for cause, " failure to cooperate with an official investigation by taking a polygraph test may constitute adequate cause, as long as the employee is given reasonable assurances respecting the need for the test and the use to which its results may be put.

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

You have asked us to consider the following questions regarding the use of polygraphs in investigating unauthorized disclosures of information about pending criminal investigations: (1) may a Justice Department employee be dismissed for refusing to submit to a polygraph test; and (2) may the results of a polygraph test be used against the employee jn (a) administrative proceedings and (b) criminal proceedings? We conclude that the Attorney General may order Department employees to submit to polygraph tests to answer specific questions relating to pending criminal investigations and that employees who refuse to take polygraph tests may be discharged. If any employee is threatened with dismissal for refusing to take a polygraph test, then any evidence obtained through the test may not be used against the employee in a subsequent criminal proceeding. Employees should be warned prior to taking the test that their refusal to participate may lead to their dismissal, but that nothing they say can or will be used against them in a criminal proceeding. It is doubtful that evidence obtained by way of polygraph would, in any event, be admissible in a federal criminal proceeding, unless the employee stipulates to its admissibility.

I. Polygraphs and Federal Employment

The use of polygraphs for federal employment purposes has been the subject of controversy for a number of years. The discussion focuses on two conflicting trends: the growing scientific acceptance of the reliability of polygraphy and the increasing concern that polygraph examinations [ 422] violate privacy rights and the Fourth, Fifth, and Fourteenth Amendments.

In 1965, the House Committee on Government Operations held hearings and issued a report on the use of polygraphs by the federal government. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). The Committee Report noted that 19 federal agencies used polygraphs; the most frequently reported purpose of the use involved security matters. A total of just under 20, 000 tests were administered in 1963. Eight agencies used polygraphs to investigate employee misconduct. (The Department of Justice indicated its use was limited to security and criminal matters.) The Committee strongly criticized the use of polygraphs; it concluded that the accuracy of such tests was unproven and that operators were generally unqualified and undertrained. Id. at 1-2.

In 1968, the Civil Service Commission promulgated regulations which prohibit use of polygraphs in employment screening and personnel investigations for members of the competitive service, except for national security purposes. This regulation, which does not apply to the excepted service, is currently in force. Federal Personnel Manual chapter 736 Appendix D.^[1]

Senator Ervin introduced a number of bills which would have prohibited the use of polygraphs in the hiring or firing of federal employees and employees of industries affecting interstate commerce. S. 2156, 91st Cong., 2d Sess. (1971); S 2836, 93d Cong., 1st Sess. (1973), reprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th Cong., 1st Sess. (1975). None of these measures was enacted.

Additional congressional hearings were held in 1974 before the House Government Operations Committee.^[2] A Deputy Assistant Attorney General for the Criminal Division testified that polygraphs had proven useful in a small number of investigations involving a "closed" group of persons—e.g., persons with access to stolen or embezzled property. However, he noted that even in these circumstances, the Criminal Division viewed the results "with caution and opposes their introduction into evidence . . . ." Hearings at 414. A representative of the Federal Bureau of Investigation (FBI) testified that "the FBI's official position has always been that [it does] not consider polygraph examinations sufficiently precise to permit absolute judgment of guilt or non-guilt—lie or truth—without qualifications." Id. at 418. He added, however that

with proper ethics by the polygraph examiner and tight administrative control by the user agency, there is no question but that the polygraph can be a valuable investigative [ 423] aid to supplement interrogation in selected criminal and national security cases. Interrogation is a basic tool of any investigative agency and the FBI considers the polygraph technique a thorough and specialized interview procedure in which a skillful interrogator is attempting to simply ascertain the truthful facts from a consenting individual regarding a matter in which we have jurisdiction.

In some instances suspects will admit deception and furnish confessions and/or signed statements. In most instances valuable new information or investigative direction is developed as a result of the examination and fol-lowup interrogation.

Id. at 419. The use of polygraphs was strongly criticized by the American Civil Liberties Union on constitutional and scientific grounds. Id. at 2-84.

A study prepared in 1974 by the staff of the Subcommittee on Constitutional Rights of the Senate Judiciary Committee reached a conclusion similar to the House Committee in 1965. It stated that

[c]ompulsory submission to a polygraph test is an affront to the integrity of the human personality that is unconscionable in a society which values the retention of individuals' privacy. . . . The Congress should take legislative steps to prevent Federal agencies as well as the private sector from requiring, requesting, or persuading any employee or applicant for employment to take any polygraph tests.

Staff of the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess., Privacy Polygraphs, and Employment, 17-18 (Comm. Print 1974). The study also concluded, after reviewing the literature on polygraphs, that "doubt must be cast upon the objectivity, accuracy, and reliability of the polygraph test." Id. at 9.

Based on the above, it is clear that use of polygraphs for federal employment purposes remains controversial.^[3] While civil service regulations prohibit their use for the competitive service, Congress has been made aware that no prohibition exists regarding the excepted service. Several bills that would have prohibited such use have not been .enacted.

II. Attorney General's Authority to Terminate Employment

Analysis of the authority of the Attorney General to dismiss an employee for refusing to submit to a polygraph examination must begin [ 424] with an understanding of the statutory and regulatory protections afforded different classes of Department employees.

Under the civil service laws, Department attorneys and employees of the FBI are in the excepted service. 28 U.S.C. § 536 (FBI); 5 C.F.R. § 213.3102(d) (government attorneys). The Office of Personnel Management (OPM), by regulation, has exempted personnel in the excepted service from the statutory provisions regarding removal of civil servants. See 5 C.F.R. § 752.401(c). However, persons in the excepted service who are non-probationary "preference eligibles, "—primarily veterans and the spouses and mothers of disabled and deceased veterans—are afforded the civil service law protections. 5 U.S.C. § 7511(a)(1)(B). See Id. § 2108 (defining "preference eligible"). The civil service law protections are substantive and procedural. A preference-eligible employee may be removed "only for such cause as will promote the efficiency of the service." Prior to removal, an employee is entitled to 30 days' advance written notice of the reasons for the action, a reasonable time to respond to the charges, the assistance of an attorney, a written decision, and an appeal to the Merit System Protection Board (MSPB). 5 U.S.C. § 7513; DOJ Order 1752.1.

Department employees who are in the excepted service and are not preference-eligibles have no rights arising from a statute or OPM regulation to a statement of reasons for discharge or to an appeal from an adverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978). However, the Department is bound by its own substantive standards and procedures even though the employee may have no legitimate expectation of continued employment and could, under relevant statutes, be summarily discharged by the Attorney General at any time. See Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584 F.2d at 184; Mazaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir. 1977). Department Order 1752.1 (1975), as supplemented by a March 27, 1979 notice, establishes minimal procedures for Department attorneys who are not preference-eligibles. Chapter 6 of the order entitles them only to "a letter of termination prior to the effective date of the termination . . . [which provides] a brief statement of the reasons for the termination."^[4]

Substantively Department attorneys are...