High Court Limits Forced Tests of Public Workers by Polygraph

The state Supreme Court ruled unanimously in a Long Beach case Thursday that government cannot force public workers to undergo polygraph tests, declaring compulsory examinations unconstitutional.

The court held that since state statutes prohibit forced testing of all workers in private enterprise and in law enforcement, Long Beach officials could not force polygraph exams on city workers who were not covered by the general ban--simply because the employees were suspected of stealing.

The justices harshly criticized the invasion of privacy caused by polygraph testing, saying that the tests “inherently intrude upon the constitutionally protected zone of individual privacy.” “The coercive collection of mental thoughts, conditions and emotions must be justified by a compelling governmental interest,” Justice Allen E. Broussard said in the opinion.

Impact Is Unclear

However, the practical impact of the decision, which reverses two lower court rulings, was not completely clear. It applies to forced testing of state and local workers in California, although such testing is rare, according to spokesmen for the California State Employees Assn. and several local agencies.

The ruling did not clearly address whether cities and counties may still use polygraphs in background investigations of applicants for police and sheriff’s departments--except to say that the use of polygraphs must be justified by a “compelling” need.

The Los Angeles Police Department tests some of it applicants, but many cities such as Long Beach make heavy use of polygraphs for its police recruits.

“In the absence of clear language to the contrary, we will continue to press for authority to polygraph police applicants. That, frankly, is the critical issue here,” said Robert Shannon, assistant city attorney in Long Beach.

LAPD Uses Tests

The LAPD also tests officers who ask for transfers to sensitive areas such as organized crime intelligence. Deputy City Atty. Robert Cramer, who filed a friend-of-the court brief in the case, said in an interview that the city “could live” with a ban on compulsory testing because Los Angeles does not force workers suspected of wrongdoing to undergo testing.

Cramer added that he believes that the ruling most likely would allow continued polygraph testing of officers who volunteer to be transferred to sensitive posts. A Police Protective League spokesman said that there have been no complaints about such testing.

Thursday’s case began when Long Beach officials realized that the city was losing money from toll boxes at four boat launches in the summer of 1982. Long Beach police tried to snare the culprits by placing $700 in marked bills in the boxes. They later discovered that $218 was missing.

The criminal investigation produced no arrests. But Long Beach officials began an administrative inquiry to find the thieves, and required 26 marina workers to undergo polygraph tests.

The polygraph operator asked several touchy preliminary questions, among them whether or not the workers had ever been arrested, experimented with LSD, heroin or cocaine, or smoked marijuana. The Long Beach City Employees Assn., sued to have the testing stopped. Then-Superior Court Judge Harry Hupp, now a federal judge, refused to block the testing, and a Court of Appeal upheld Hupp’s ruling.

Overturning those decisions, the state Supreme Court rejected Long Beach’s claim that polygraph tests were necessary to guarantee the integrity of public workers, who are “trustees of the public interest.”

“Although the government has a compelling interest in preventing the theft of public monies, suspects can be investigated by alternative and less intrusive means,” Broussard said.

Union officials hailed the ruling, with Dennis Bushman of the Long Beach Employees Assn., calling it “a very just decision.”

‘Very Sensitive Questions’

“They viewed them as criminals. They were asked very sensitive questions pertaining to their sex lives, drug use, things that weren’t even related to the investigation,” said Bushman, who sat in on the testing.

“Polygraph examinations have been used and abused for far too long,” said Michael Rubin, a lawyer who filed a friend-of-the court brief for the AFL-CIO on behalf of the city workers. “This is a recognition by the court that there was no reasonable basis for protecting most employees in the state and not protecting all employees in the state.”

In arguing that the testing was unconstitutional, union lawyers pointed to a state law passed in 1963 that prohibits forced testing of private employees, and one in 1976 barring forced testing of public safety officers.

The court agreed with the union argument, holding that public employees such as the Long Beach marina workers, who were covered by the general ban on testing, were denied their constitutional right to equal protection of the law.

‘Not Second-Class Citizens’

“The mere status of being employed by the government should not compel a citizen to forfeit his or her fundamental right of privacy. Public employees are not second-class citizens within the ken of the Constitution,” Broussard wrote.

“However much public service constitutes a benefit and imposes a duty to uphold the public interest, a public sector employee, like any other citizen, is born with a constitutional right of privacy.”

Chief Justice Rose Elizabeth Bird wrote a separate concurring opinion that urged the court to go further by finding that polygraph tests also violate the state constitutional right to privacy. Court of Appeal Justice Eugene McClosky, appointed by Bird to hear the case, agreed with the chief justice.