Court: Massachusetts Appeals Court; June 11, 2007; Massachusetts; State Appellate Court
Kevin J. Furtado alleges a violation of his rights under G. L. c. 149, § 19B(2) when the Plymouth police department mandated he take a lie detector test during an investigation that could lead to his discipline or termination. The statute prohibits employers from requiring lie detector tests, but includes an exception for law enforcement in criminal investigations where the alleged misconduct, if true, would constitute a crime. The court determined this exception applied even though no criminal charges were filed at the time of the polygraph.
The case arose from undisputed facts involving allegations of sexual abuse against Furtado, leading to his administrative leave in July 1999. After the district attorney decided not to pursue charges, the police chief initiated an internal investigation and directed Furtado to submit a written response to the allegations, warning that failure to comply could result in disciplinary action. Furtado's counsel argued that he could not be compelled to testify without immunity. Transactional immunity was later granted, and Furtado provided a statement. On November 9, 1999, the police chief ordered Furtado to take a polygraph test, which he completed on November 16, 1999, following consultation with the town manager. Ultimately, the court found no violation of Furtado’s statutory rights.
On December 6, 1999, Furtado's counsel claimed it was improper for the town to use polygraph test results in an internal review. By January 6, 2000, the police chief informed Furtado that there was insufficient evidence for disciplinary action, allowing his return to work. In 2002, Furtado filed a lawsuit in Superior Court, appealing a judge’s decision that granted the town’s motion for summary judgment while denying his. Furtado contends that the town violated G. L. c. 149, § 19B(2) by requiring him to take a polygraph test during an internal investigation, claiming there was no “ongoing criminal investigation” since he had immunity from prosecution prior to the test. This presents a dilemma: if law enforcement cannot compel a polygraph test post-immunity, it would hinder internal investigations. Conversely, without immunity, a polygraph request would be unlawful unless it fits the statutory exception. The court declined to accept Furtado's interpretation, which could undermine the exception's purpose, citing Baker v. Lawrence, where the Supreme Judicial Court clarified the statutory exception pertains to the investigation of possible criminal activity, not merely the criminal trial process. The court noted that an alleged crime must be present for the exception to apply, implying a good faith requirement from the department.
The Supreme Judicial Court clarified that its reference to "ongoing criminal investigation" was a quotation from the parties and not a strict requirement. The court recognized the legislative intent behind the statute, stating that a polygraph test can serve as an investigatory tool in cases where a law enforcement agency is authorized to conduct an investigation into potential criminal acts related to an employee's duties. It noted that refusal to take a polygraph could lead to implied job sanctions. The court dismissed Furtado's argument against the legality of being ordered to undergo a polygraph test, affirming that the defendants adhered to relevant case law and that G. L. c. 149, § 19B(2) was not violated.
Furtado agreed to withdraw claims against the police department but continued to pursue claims against the town and two individuals. The court emphasized that public employees cannot be terminated for invoking their Fifth Amendment rights against self-incrimination but can be discharged for refusing to answer specific job-related questions that do not implicate them criminally. Allegations against Furtado included indecent assault of two neighborhood children; he denied these allegations, attributing any close contact to innocent horseplay while swimming. Additionally, a letter from the parents of the boys indicated they did not accuse Furtado of inappropriate behavior and regretted how the situation escalated. The court opted not to address how the town might utilize Furtado's polygraph results.
Furtado amended his complaint to include a defamation claim, which he later waived during the summary judgment phase. The police chief's order for a polygraph test occurred after Furtado received immunity grants. Before these grants, Furtado was aware of an internal investigation regarding allegations of criminal activity while off duty and had been asked to take a polygraph test. The immunity granted must protect his constitutional rights against self-incrimination as per the Massachusetts Declaration of Rights and the Fifth Amendment. Furtado received sufficient assurance of immunity from the district attorney and Attorney General.
Case law supports the notion that public employees, particularly police officers, can be compelled to answer questions related to their official duties, with noncooperation potentially leading to discharge. Allegations about Furtado's conduct, although off duty, pertain to his ability to fulfill his responsibilities as a police officer, which requires a high ethical standard to maintain public trust. The importance of integrity in law enforcement is emphasized, noting that police officers must conduct themselves in a manner that upholds the respect and trust of the public. The court concludes that the investigation into Furtado's potential criminal conduct is justified and that the police department's decision to administer lie detector tests aligns with law enforcement objectives that take precedence over individual employee interests. The defendants' request for attorney’s fees and costs incurred during the appeal is denied.
