Civil Service Ass'n v. Civil Service Commission

After a civil service commission hearing, pursuant to section 8.341 of the Charter of the City and County of San Francisco, appellant was ordered terminated. Seeking reinstatement, she petitioned for a writ of mandate. She argued that (1) she was not a member of the department within the meaning of rule 2.45, and (2) the classification created by Government Code section 3307, which prohibits any disciplinary action against a public safety officer for refusing to submit to a polygraph test, denied her equal protection. Denying her petition, the trial court concluded that: (1) she was a member of the department; (2) section 3307 was inapplicable to charter cities such as San Francisco; (3) she had not established any denial of equal protection; and (4) she had been properly terminated.

I

n relevant part, section 2.45 of the Rules and Procedures of the San Francisco Police Department provides, “[a member] shall strictly obey and promptly execute the lawful orders of his superior officers.” First, appellant contends that as a civilian employee, she was not a member of the department for purposes of application of rule 2.45. Therefore, she reasons, she was not subject to termination for violation of that rule. The contention is without merit. Section V of the department’s rules and procedures defines “Member[s]” as “[t]he officers and employees of the department. ” “Police Employee[s]” are “[a]ll persons other than officers appointed to the department in any permanent or temporary Civil Service classification.” Appellant urges that despite that plain

Initially, we stress that appellant does not argue that the distinction drawn between public and private employees by Labor Code section 432.2 creates an unconstitutional classification. Accordingly, we will not consider that question, except to note that “ ‘[i]n the course of his work, a public officer or employee must yield some of the privileges which are enjoyed by the citizenry at large.’ [Citation.]” (Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904 , 916 [ 145 Cal.Rptr. 396 ].) Unlike a private employee, a public employee is “directly, immediately, and entirely responsible to the city or State which is his [or her] employer. ... He [or she] is a trustee of the public interest, bearing the burden of great and total responsibility to his [or her] public employer.” (Gardner v. Broderick (1968) 392 U.S. 273 , 277-278 [ 20 L.Ed.2d 1082 , 1086-1087, 88 S.Ct. 1913 ].) While a public employee cannot be forced to give an answer which may tend to incriminate him or her in criminal proceedings, he may be required to choose between disclosing information and losing his employment. (Id., at p. 278 [20 L.Ed.2d at p. 1086]; see Steinmetz v. Cal. State Board of Education (1955) 44 Cal.2d 816 , 824-825 [ 285 P.2d 617 ].)

First, relying on Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 [ 112 Cal.Rptr. 805 , 520 P.2d 29 ], appellant contends that because her termination involved a “fundamental vested right” to continued employment, our analysis of her equal protection claim must be predicated on the “strict scrutiny” test reserved for legislative classifications which touch upon “fundamental interests.” (See, e.g., People v. Olivas (1976) 17 Cal.3d 236 , 243 [ 131 Cal.Rptr. 55 , 551 P.2d 375 ].) A similar argument was rejected as specious by the Supreme Court in Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70 [ 177 Cal.Rptr. 566 , 634 P.2d 917 ], The court explained that under Strumsky, the “ ‘fundamental right’ category does not identify areas in which substantive legislative judgments are in any manner constitutionally suspect or justify unusual judicial scrutiny; rather, that category simply encompasses those quasi-judicial administrative decisions that have ‘an impact on the individual “sufficiently vital ... to compel a full and independent review” by the court.’ [Citation.]” (Id., at p. 83.) The court added, “. . . [it is] abundantly clear that the applicability of the independent judgment standard of review does not in any sense suggest that legislative measures pertaining to the individual interest at issue are properly subject to strict scrutiny review.” (Ibid.)

Is there a rational basis for protecting police officers alone among public employees from employer-administered polygraph tests? The Supreme Court has already agreed with the Legislature that avoiding labor unrest among police officers is so critical that it is a matter of statewide concern which justifies a limited impingement on charter cities’ general regulatory power over their employees. (See Baggett v. Gates, supra, 32 Cal.3d at p. 140.) We can only conclude that the Legislature must have determined that maintaining labor peace among public safety officers is more critical than among other public employees. We may not agree that that determination is either wise or absolutely equitable. Nevertheless, we cannot say that the Legislature could not rationally conclude that the threat to the citizens of the state which might result from an absence of police services is greater than that which might result from the interruption of any other public service. As the classification rests on a “ ' . . reasonable differentiation fairly related to the object of legislation . . .’” (Hays v. Wood, supra, 25 Cal.3d at p. 787), it does not offend equal protection principles.

Appellant also contends that terminating her solely because of her refusal to submit to a polygraph examination was arbitrary and capricious, because she

It is true that the general rule in this state has been that the results of polygraph tests are not admissible at trial. (People v. Jones (1959) 52 Cal.2d 636 , 653 [ 343 P.2d 577 ]; People v. Thornton (1974) 11 Cal.3d 738 , 763 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ], overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668 , 684, fn. 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ].) In addition, at least one court has held that polygraph evidence is insufficiently reliable for admission into evidence at an administrative hearing. (Aengst v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 275 , 283 [ 167 Cal.Rptr. 796 ].) It is also true, however, that despite the general rule, polygraph evidence may be admitted at trial pursuant to a stipulation by both parties. (People v. Trujillo (1977) 67 Cal.App.3d 547 , 554 [ 136 Cal.Rptr. 672 ].) Moreover, in Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24 [ 183 Cal.Rptr. 615 ] one court recently rejected a blanket exclusion of polygraph evidence, and ordered an evidentiary hearing on the expert qualification of a polygraph examiner and on the validity of the premises upon which his opinion was based. (Id., at pp. 33-35.) In short, appellant’s assertion that the results of a polygraph are always inadmissible is open to some doubt.

What is more important, however, is that despite the tests’ arguable reliability and inadmissibility, numerous courts in this state and in other states have upheld their use in internal investigations in police departments, provided that the questions relate specifically, directly, and narrowly to the performance of the employee’s official duties. (See, e.g., Fichera v. State Personnel Board, supra, 217 Cal.App.2d at pp. 620-622; Frazee v. Civil Service Board, supra, 170 Cal.App.2d at pp. 334-336; McCain v. Sheridan, supra, 160 Cal.App.2d at pp. 176-178; Seattle Police Officers’ Guild v. City of Seattle (1972) 80 Wn.2d 307 [ 494 P.2d 485 , 489]; see Annot., supra, 15 A.L.R.4th 1207 .)

In Szmaciarz v. State Personnel Bd., supra, 79 Cal.App.3d 904 , this court held that a public employee other than a sworn peace officer could be terminated for refusing to submit to a polygraph. During a Department of Corrections investigation into employee involvement in the traffic of marijuana to San Quentin inmates, informants reported that a particular correctional officer had been bringing the drug into the prison. The court held that although statements obtained from that officer under threat of dismissal could not be used in any criminal prosecution against him, the department was justified in advising him that he could be dismissed for refusing to answer questions or for refusing to submit to a polygraph. (Id., at p. 916.) In support of its holding, the court emphasized the officer’s “peculiar and delicate position in society,” which required him to “answer questions posed by his superiors that concern the welfare of the inmates and that may reflect on the image a correctional officer

We emphasize, of course, that had appellant agreed to submit to the polygraph, its results could not have been used against her in any subsequent criminal proceedings, as a statement obtained under threat of removal from a job is deemed to be coerced. (Garrity v. New Jersey (1967) 385 U.S. 493 , 499-500 [ 17 L.Ed.2d 562 , 566-567, 87 S.Ct. 616 ]; Szmaciarz v. State Personnel Bd., supra, 79 Cal.App.3d at p. 917.) To avoid Fifth Amendment objections to the use of polygraphs in internal investigations, we agree with those courts which have held that before being ordered to take a polygraph, an employee must be notified: (1) that the questions will relate specifically and narrowly to the performance of his official duties; (2) that the answers cannot be used against him in any subsequent criminal prosecution; and (3) that the penalty for refusing is dismissal. (Rivera v. City of Douglas, supra, 644 P.2d 271 , 275; Gandy v. State ex rel. Div. of Invest. & Narc. (1980) 96 Nev. 281 [ 607 P.2d 581 , 584]; Seattle Police Officers’ Guild v. City of Seattle, supra, 494 P.2d 485 ; see also Kelly v. State Personnel Bd. (1979) 94 Cal.App.3d 905 , 913-914 [ 156 Cal.Rptr. 795 ].) In short, the employee should be advised of his options and the consequences of his choice. (Rivera, supra, 644 P.2d at p. 275.)

An administrative body has broad but not unlimited discretion in the imposition of discipline. The overriding consideration is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, harm to the public service. Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. In an administrative proceeding to review the determination of the penalty by an administrative body, that determination will generally not be disturbed unless there has been an abuse of discretion. (Skelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 217-218.)

Appellant was neither a sworn public safety officer nor a correctional officer in a prison. Nevertheless, as one of the few police department employees with access to the area of the crime lab where narcotics were stored, she too occupied a “peculiar and delicate position in society,” or a position of public trust. She does not dispute the accuracy of any of the facts which caused suspicion to be focused on her during the investigation of the missing narcotics. The importance to both the public and the department of determining how those narcotics disappeared from the police laboratory is obvious. (Cf. Kelly v. State Personnel Bd., supra, 94 Cal.App.3d at p. 917.) After questioning appellant

Judgment is affirmed.

White, P. J., and Feinberg, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied April 20, 1983. Bird, C. J., was of the opinion that the petition should be granted.