Court: Massachusetts Supreme Judicial Court; May 28, 2008; Massachusetts; State Supreme Court
In 1999, allegations of sexual abuse against two minors were reported to the Plymouth district attorney concerning Kevin J. Furtado, a local police officer. Following an investigation, no criminal charges were filed, and the case was referred to Police Chief Robert Pomeroy for administrative action. Pomeroy informed Furtado of an internal investigation and instructed him to submit a report and take a lie detector test, warning of possible disciplinary action for non-compliance. Furtado’s attorney asserted that, under Massachusetts law, he could not be compelled to answer questions without immunity. After transactional immunity was granted by the district attorney and Attorney General, Furtado complied with the requests. However, Pomeroy ultimately determined that there was insufficient evidence for disciplinary action against Furtado.
Furtado then filed a claim in Superior Court, arguing that his rights under G. L. c. 149, § 19B (2) were violated because he was ordered to take a lie detector test without an ongoing criminal investigation. This statute prohibits employers from subjecting employees to lie detector tests unless related to criminal investigations conducted by law enforcement agencies. The judge granted summary judgment for the defendants, concluding that the internal investigation was justified as it concerned criminal conduct. The Appeals Court upheld this decision. The case revolves around whether a law enforcement agency can require a police officer to take a lie detector test concerning alleged criminal conduct when prosecution is not possible due to granted immunity. The court affirmed that the exception for "criminal investigations" applies even when criminal prosecution is not feasible. This interpretation aligns with precedent established in Baker v. Lawrence, which denied similar relief to police officers ordered to undergo polygraph examinations related to alleged criminal activity.
Plaintiffs on appeal argued that the "criminal investigations" exception should apply only when test results would be admissible in court. The court rejected this, stating that the exception is related to the investigation of possible criminal activity, not the trial process. Plaintiffs also claimed the police department’s investigation was departmental rather than criminal, which the court disagreed with, asserting that an alleged crime must be involved for the exception to apply, as opposed to mere departmental regulation violations. The court dismissed the plaintiffs' assertion that all investigations of police officers could be labeled as criminal, labeling it "hyperbole," and emphasized that good faith from the police department is implied by the statute.
The court reiterated its interpretation of the "criminal investigations" exception in the case of Local 346, Int’l Bhd. of Police Officers v. Labor Relations Comm’n, allowing police departments to require polygraph tests from officers suspected of criminal activity under disciplinary threat. It was noted that police departments rely heavily on integrity and credibility, and when allegations of criminal conduct arise, the department's authority to use lie detector tests supports law enforcement objectives.
Furtado argued that the exception should depend on the nature of the investigation's outcome—whether it is departmental and administrative or aimed at criminal prosecution. He contended that, since he received immunity to take the lie detector test, the exception should not apply. However, this interpretation contradicts the court's prior decisions and the legislative history of the statute, which initially did not include a "criminal investigations" exception. The statute was revised in 1963 to broaden its prohibitions while allowing for law enforcement agency exceptions.
Employers are prohibited from requiring employees or job applicants to undergo lie detector tests, with violations punishable by fines up to $200. An exception exists for law enforcement agencies conducting tests in the context of criminal investigations, which was refined in 1973 to exclude tests on police job applicants. The 1973 amendments clarified that the protections against lie detector tests also apply to police officer applicants, making the prior practice of administering such tests to them unlawful.
Legislative history indicates a balance was sought between employee privacy and criminal investigative needs, as shown by the rejection of proposals to eliminate the exception altogether during subsequent revisions in 1985. The 1985 amendments, which aimed to restrict the use of lie detector test results in disciplinary actions, ultimately retained the existing exception without substantial changes.
The interpretation that the "criminal investigations" exception allows police departments to administer lie detector tests during internal investigations of police misconduct is inconsistent with prior legal interpretations and is unsupported by legislative actions. Furthermore, the interpretation proposed by Furtado creates a "Catch-22" scenario, wherein a police officer cannot be required to take a polygraph test after receiving immunity from criminal prosecution, as there would be no ongoing criminal investigation at that point.
A law enforcement agency cannot lawfully administer a polygraph test to an employee without granting immunity from future criminal prosecution, as stipulated by G. L. c. 149, § 19B (2). This limitation restricts police departments' ability to utilize lie detector tests for officers accused of serious misconduct. The 'criminal investigations' exception applies even if prosecution is not feasible at the time of testing. The court affirmed the summary judgment for the defendants, referencing Carney v. Springfield, which established that public employees cannot be fired for invoking their right against self-incrimination. The court emphasized that transactional immunity must be provided to replace this privilege, aligning with Baglioni v. Chief of Police of Salem's definition. Under G. L. c. 149, § 19B (4), an aggrieved person may pursue civil action for violations of subsection (2), including seeking damages. The employee, Furtado, did not waive protections under G. L. c. 149, § 19B by agreeing to the test, as no waiver can serve as a defense to civil liability. The statute defines a 'lie detector test' to encompass polygraphs and similar devices used to assess deception. The legislative intent following the Baker v. Lawrence decision in 1985 maintained the criminal investigation exception in G. L. c. 149, § 19B. A previous Superior Court ruling allowed department heads to request polygraph tests, with potential job sanctions for refusal. Although the admissibility of polygraph results in criminal trials has evolved, G. L. c. 149, § 19B (2) does not affect their admissibility standards.
Furtado argues that "criminal investigation" in the relevant statute refers specifically to an "ongoing criminal investigation," citing Baker v. Lawrence. However, the Appeals Court finds that Furtado overstates this interpretation and misinterprets the context in which the phrase was originally used. The Supreme Judicial Court's mention of "ongoing criminal investigation" was merely a quotation from the parties’ stipulation and not a definitive criterion. The statute's language at that time was broader than its current form, suggesting that administering a lie detector test would have been permissible under the earlier wording.
In 1985, the statute underwent revisions, which included defining lie detector tests and mandating notifications regarding their unlawful use in employment contexts. It also made it illegal to discriminate against employees asserting their rights under the statute. Notably, the "criminal investigations" exception remained unchanged. A proposed amendment to prohibit discharges based on failed lie detector tests was considered but ultimately not included in the final statute.
The court emphasizes that while rejected amendments can inform the interpretation of existing law, the intent of the Legislature should also be derived from the overall legislative history and context. Several attempts to amend G. L. c. 149, § 19B to reflect similar prohibitions were made between 1987 and 1990, but none succeeded. The interpretation of the statute in this case is not affected by subsequent legislation. It notes that the "criminal investigations" exception may require a connection between the investigated crime and the employee’s job. However, Furtado did not raise this connection argument on appeal, so the court does not address it. The request for attorney’s fees and appeal costs by the defendants is denied.
