2007 Summer, Pg. 50. The Magic Lasso: The Implications of Waterman on Public Employees in New Hampshire.

AuthorBy Luke Webster

New Hampshire Bar Journal


2007 Summer, Pg. 50.

The Magic Lasso: The Implications of Waterman on Public Employees in New Hampshire

New Hampshire Bar JournalSummer 2007, Volume 48, No. 2Annual Survey of New Hampshire LawThe Magic Lasso: The Implications of Waterman on Public Employees in New HampshireBy Luke WebsterI. Introduction

"Polygraph them all. I don't know anything about polygraphs and I don't know how accurate they are, but I know they'll scare the hell out of people."

- Richard M. Nixon(fn1)

Following the Supreme Court's decision in In re Waterman, 910 A.2d 1175 (N.H. 2006), public employers in New Hampshire may share President Nixon's sentiment and now have the ability to follow through on unlimited and unrestricted use of lie detector examinations. Every employer has faced issues involving theft, credibility disputes between employees or questions regarding employee honesty. For this reason, employers would love to get their hands on Wonder Woman's magic lasso, which, when cast around a villain would force them to tell the truth. Is the polygraph the lasso's equivalent? When employers entangle their employees in a lie detector examination is the truth always revealed? Some public employers in New Hampshire may think so, and now have the ability to polygraph all prospective and current employees due to the lack of a statute or case law governing polygraph use in the public employment arena.

Although private employers are restricted with limited exception from using lie detectors by the Employee Polygraph Protection Act (EPPA), the Act does not apply to federal, state or local governments or any political subdivision of a state or local government.(fn2) The Court's Waterman decision highlights the glaring hole created by the EPPA exemption by upholding the termination of a New Hampshire state trooper for refusing an order to submit to a polygraph examination during an internal investigation.(fn3)

The Supreme Court's Waterman decision, if read broadly, encompasses every public employee working in New Hampshire. Even if read more narrowly to include only those public employees that must be above suspicion of the laws they are sworn to enforce, it still includes a myriad of employees. For example, the decision may include the Attorney General, Supreme Court justices and the Governor's staff. The Waterman decision may also come as a surprise to some readers given the fact that New Hampshire litigators are barred from even referring to polygraph results in the courtroom due to the inherent unreliability of such tests.(fn4) Additionally, for decades, scientists have questioned the accuracy and reliability of polygraph technology. Finally, the very reason the federal government enacted the EPPA and other states have created more restrictive statutes on the use of polygraphs in employment is because employers were abusing lie detectors and either screening out many competent applicants or firing current employees based solely on polygraph results.

This article will begin by discussing the facts and reasoning behind the Court's Waterman decision. Next, it will analyze why employers and examiners find the polygraph so irresistible in the workplace, while scientists, criminal suspects and employees cringe at the mere mention of an examination. It will then explore the federal government's response to polygraphs in employment and the more restrictive actions taken by some jurisdictions. Finally, this article will describe the possible effects of Waterman on public employees in New Hampshire. Additionally, it will comment on how the legislature may adequately respond to prevent abuses surrounding the use of lie detectors.

  1. The Case: In re Waterman

    1. Background(fn5):

      Tracy Waterman worked as a trooper for the New Hampshire State Police.(fn6) On August 29, 2003, Vicky Lemere, the wife of one of Waterman's fellow troopers, informed Lieutenant Nedeau, one of Waterman's supervisors, that Waterman made threatening remarks about her supervising officers.(fn7) Lamere alleged that Waterman stated she would "like to put a bullet in Lieutenant Nedeau's head" and would "like to deck Sergeant McCormack" if they yelled at her.(fn8)

      The State Police (Division) initiated an internal investigation and interviewed a number of witnesses including, Lemere and Waterman.(fn9) During the Division's investigation, Waterman denied making the threats.(fn10) The investigators found Lemere more credible than Waterman and recommended that Waterman be subjected to a polygraph examination.(fn11) The Division Director, Colonel Gary Sloper, authorized investigators to conduct Waterman's examination on September 15, 2003.(fn12) Waterman arrived for the polygraph examination accompanied by her attorney and refused to take the test.(fn13) The investigating officer informed her that by refusing Waterman was in violation of a direct order from Colonel Sloper and she could be disciplined up to and including dismissal.(fn14) On September 18, Waterman received a memorandum from Sloper notifying his intent to dismiss her for willful insubordination for failing to take the polygraph examination. Waterman and her attorney met with Sloper on September 23 and she was dismissed the following day.(fn15)

      Waterman appealed her termination to the Personnel Appeals Board (PAB).(fn16) During the PAB hearing, Waterman acknowledged that the Division's professional conduct standards authorize the use of polygraph examinations in internal investigations.(fn17) She also acknowledged that she had refused her supervisor's order and that she was advised in the presence of counsel that her refusal could result in dismissal.(fn18) The PAB found that under the Division's professional standards of conduct, an employee is willfully insubordinate when he or she "deliberately and/or intentionally disobeys a lawful order."(fn19) Waterman argued that she was not willfully insubordinate because the order was unlawful because polygraphs are unreliable, degrading and the results are inadmissible in a court proceeding.(fn20) Additionally, she urged that the order to take the polygraph was retaliatory.(fn21) The PAB affirmed Waterman's dismissal and Waterman appealed.(fn22)

    2. Court's Analysis:

      This was a matter of first impression for the Court. The Court first addressed whether the order to take a polygraph examination was unlawful. It utilized conclusions established in other jurisdictions that found it is reasonable for law enforcement officers to be subjected to polygraph examinations. The Court stated that "a police officer must be above suspicion of violation of the laws that he is sworn to enforce...and must perform his duty to investigate crime and maintain the public trust, questions concerning the propriety of his conduct must be resolved promptly."(fn23)

      Accordingly, the court adopted the reasoning by the Arizona Supreme Court in Eshelman v. Blubaum. In Eshelman, the court held that a police officer must submit to a polygraph examination upon penalty of dismissal if (1) there are reasonable grounds for demanding such a test; (2) the answers are not used in any subsequent criminal prosecution; and (3) the questions relate specifically and narrowly to the performance of the police officer's official duties.(fn24) The court also implicated that failure to submit to an ordered polygraph violates the officer's sworn duty to cooperate with the investigation of a crime.(fn25) Further, the court reconciled the reliability of polygraph examinations by reasoning that although courts have found the tests to be inadmissible as evidence, they are reliable enough to be utilized as a tool for internal departmental investigations.(fn26)

      The Court distinguished two cases cited by Waterman, which held that officers may not be terminated for refusing to submit to a polygraph examination. The Court explained that the departments in those cases did not have regulations, ordinances or policies requiring officers to submit to polygraphs.(fn27) By contrast, the Division had a professional conduct standard expressly stating that, "Division members may be compelled to provide specialized information or submit to testing or examinations," which may include polygraph tests.(fn28) Pursuant to this provision, any such testing or examination "shall be specifically directed and narrowly related to the matter under investigation."(fn29)

      In applying the Eshelman test, the court found that the grounds for the order were reasonable because Waterman's credibility was in question and the Division did not have authority to question Lemere.(fn30) Additionally, there was a Division regulation in place requiring Division members to submit to examination, supporting the reasonableness of the order.(fn31) Next, the court explained that before any interview of a Division member a "Garrity warning" must be given which provides that neither "self-incriminating statements, nor the fruits thereof" will be used against an employee in any criminal proceeding.(fn32) Thus, there was a protection in place preventing the use of answers given during the polygraph in a subsequent criminal proceeding, fulfilling the second element of the test.

      The Court did not analyze the final prong because by refusing to submit to the polygraph, Waterman made it impossible for the Court to know whether the questions were narrowly tailored to the performance of her duties.(fn33) Additionally, there was no further information that would lead to...

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