L.B. Case to Bring Polygraph Issue to State High Court

It began as a suspicion of theft.

Officials at the Long Beach Marine Bureau noticed discrepancies in the revenues collected from locked toll boxes guarding entrance to the city’s boat launch facilities. Roughly 20 to 30 employees had access to the boxes.

To solve the mystery, police detectives in the summer of 1982 planted $700 worth of marked bills in the boxes and began a regular program of surveillance. But even with that, more than $200 disappeared with no signs of tampering and no arrests.

So the city ordered 25 marine inspectors, safety aides, security and maintenance personnel to undergo polygraph exams.

What ensued was a legal battle pitting the workers and their union against the bureau and the city. And on March 21 the California Supreme Court agreed to hear the case that will have major ramifications for public employees throughout the state.

Some Workers Exempted

At issue is whether public employees, such as those in the marine bureau, can be forced to take polygraphs. Workers in California’s private sector were protected from mandatory lie detector tests by Legislature in 1963, and in the 1970s the state Legislature extended that exemption to certain classes of public employees--most notably police officers--by enacting what has been called the “public safety officers’ bill of rights.”

For other public employees, however, the tests have been administered from time to time as part of administrative investigations into alleged crimes. The Long Beach workers’ appeal seeks reversal of rulings in Los Angeles Superior Court and the 2nd District Court of Appeal, which refused to halt future polygraphing of city employees.

Dennis Buschman, who as senior field representative for the city employees’ union sat in on most of the polygraph sessions, says the workers were treated like criminals at an interrogation.

Employee’s Refusal

One employee, Marine Inspector Hank Powell, refused to take the test on the grounds that it constituted an invasion of his privacy.

“It would have been unfair to sit in front of a machine and have the machine decide whether you’re telling the truth or not,” Powell said later. “I didn’t believe I was going to put my job on the line for a polygraph; if I was going to put my job on the line it would be for a principle.”

As far as he knows, says Powell, his career was not damaged by his refusal.

Sunny Wise, lawyer for the employee association, argues the case the case on several points:

- that polygraphs are generally unreliable;

- that they constitute an invasion of privacy,

- and that it is discriminatory to require certain classes of public employees to take them while exempting others.

“It’s such an arbitrary and irrational distinction (between police officers and others) that we now have to give protection to all public employees,” she says. “Why should (marine workers) be required to give up their constitutional right to privacy?”

City’s Arguments

Deputy City Atty. Blanche Deight, arguing the case for the other side, disagrees. In a brief petitioning the Supreme Court against hearing the matter, she argued:

- that state law clearly supports the right of cities to require polygraphs of public employees;

- that Long Beach had a “compelling state interest in pursuing the polygraph examinations as a method of investigation” in this particular case,

- and that even if the right to privacy were implicated, “the (public) employee would have to choose between asserting that right by refusal to comply with the polygraph requirement or retaining his position.”

“There’s a strong public interest in how the public’s money is safeguarded,” Deight said in an interview Thursday. “Public employment is a public trust. We’re looking at the use of the polygraph purely for an investigation and with the results not to be used against the employees.”

Theft Problem Solved

According to Carolyn Sutter, general manager of the Long Beach Tidelands Agency, which oversees the marine bureau, no disciplinary action was ever taken against any employee as a result of the polygraphs. Eventually, she said, the theft problem was solved by redesigning the boxes to make them more secure and by limiting the number of employees with access to them.

Eric Lucas, head of the marine bureau in 1982 when the investigation took place, has since retired out of state and could not be reached for comment.

But among some of the workers subjected to the tests, painful memories remain. Although initially reluctant, most of the employees eventually submitted to the polygraphs after lodging complaints with the union.

A lower court, responding to an action brought by the union on the workers’ behalf, refused to halt the polygraphs. Later, many said they had submitted only because some were told that a refusal to take the test would lead to disciplinary action or firing.

Then Marine Security Officer Claude Tagger became so enraged at the manner in which his initial polygraph interview was conducted that the session had to be cut short and completed at a later date, after Tagger had been threatened in writing by his employer with “disciplinary action, up to and including dismissal . . . “ should he refuse to comply.

‘It Was Blatant’

“It made me feel that my employer thought I was a dishonest person,” says Tagger, who no longer works for the city. “It was blatant that they were trying to force us to do something to incriminate ourselves.”

Joseph Pitisi, 28, a marine patrol officer who says he would like to become a police officer, was left with fears that the stigma of even having taken a polygraph test may have damaged his future career.

“It didn’t feel too good,” he says of the test, which was administered at police headquarters by a police department examiner. “It made me kind of paranoid, like when you’re driving down the street and there’s a policeman behind you.”

‘Witch-Hunting Intimidation’

Union representative Buschman says the polygraphing “was witch-hunting intimidation” and the information thus gathered is “no better than a crystal ball.”

Crystal gazing or not, however, the city believes a municipality has the right to require polygraphs of employees deemed worthy of the public trust.

“No zone of personal privacy was invaded by the polygraph examination . . . which related directly and narrowly to the performance of the employees’ official duties,” wrote Deight in her brief.

The law clearly states, she said in the interview, that a public employee can be required to answer questions related to fitness for public employment, and the fact that a polygraph is the means by which those questions are posed does not automatically transform them into an invasion of privacy.

What the union is attempting to do, she wrote, is to “have the court make new law.”

On that point, at least, both sides agree.