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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6542 October 6, 1988 POLYGRAPH TESTS: Request by public employee for polygraph examination Request for public employees to submit to examination during criminal investigations Communication of the results of examination or refusal to take examination by police agency to county prosecuting attorney An employee of the Department of State Police may, in the course of a criminal investigation, request a fellow employee to submit to a polygraph examination. The Department of State Police may, in the course of a criminal investigation initiated by another state department, request an employee of another state department to submit to a polygraph examination. The results or analysis of a state employee's polygraph examination conducted during a criminal investigation, or the fact of a refusal of the state employee to submit to an examination requested during a criminal investigation, may be shared with the prosecuting attorney having jurisdiction to prosecute the crime. The results of a polygraph examination requested by a state employee during the course of a criminal investigation may be shared with the prosecuting attorney having jurisdiction to prosecute the crime. A local police officer may, in the course of a criminal investigation, request another member of the police department to submit to a polygraph examination. A local police officer may, in the course of a criminal investigation initiated at the request of an administrator of the local governmental unit, request an employee of that governmental unit to submit to a polygraph examination. Colonel R.T. Davis Director Department of State Police 714 South Harrison Road East Lansing, Michigan 48823 My opinion has been requested on six questions pertaining to the Polygraph Protection Act of 1981, 1982 PA 44, MCL 37.201 et seq; MSA 17.65(1) et seq (Act). The questions generally concern instances where a law enforcement agency desires to utilize a polygraph examination in the course of a criminal investigation and ask whether the Act is implicated in various hypothetical situations. The purpose of the Act is found in its title, which states in pertinent part: "AN ACT to prohibit employers and employment agencies from requiring polygraph examinations of employees and applicants for employment; ... [and] to regulate the use of polygraph examinations by employers and employment agencies; ...." MCL 37.203(1); MSA 17.65(3)(1), provides in pertinent part: "[A]n employer ... shall not as a condition of employment, promotion, or change in status of employment, or as an express or implied condition of a benefit or privilege of employment, do any of the following: (a) Request or require that an employee ... take or submit to a polygraph examination." MCL 37.202; MSA 17.65(2), provides in pertinent part: "(a) 'Employee' means an individual who works for another person for compensation. "(b) 'Employer' means a person who employs 1 or more persons or who accepts applications for employment, including an agent of an employer. "(e) 'Person' means an individual, firm, partnership, association, corporation, or other legal entity, this state or an agency of this state, or the federal government or an agency of the federal government." In addressing the questions, a brief analysis of the uses of polygraph examination results in the legal and law enforcement communities is appropriate. Evidence of a polygraph examination is inadmissible in a criminal trial. People v Yatooma, 85 Mich App 236, 238; 271 NW2d 184 (1978), lv den 406 Mich 865 (1979). One of the primary reasons for this exclusion is that such evidence is not yet considered sufficiently reliable, by way of scientific recognition, to risk the possibility that the trier of fact will rely solely on the results of the polygraph examination rather than the trier of facts' powers of deliberation. Id at 241. However, polygraph examination results may be used by a judge to help determine whether to grant a post-conviction motion for a new trial. People v Barbara, 400 Mich 352, 359; 255 NW2d 171 (1977). Under these circumstances, the test results would be used merely to buttress the credibility of new witnesses, the evidentiary value of whose testimony must still satisfy traditionally strict criteria for ordering a new trial, and thus, the polygraph examination would not, itself, be evidence. Id. In the law enforcement community, polygraph examinations are sometimes used as a means for a suspect to clear himself or herself from suspicion of criminal wrongdoing. They are generally employed where an investigation has uncovered ambiguous or contradictory evidence. In these instances, law enforcement officials may offer a person under investigation the option of submitting to a polygraph examination, with the understanding that if the person passes the examination, he or she will not be charged criminally. Such examinations are administered in a carefully controlled setting by specially trained police personnel. The use of polygraph examinations in this manner is acknowledged as a legitimate investigative tool. The use of polygraph examinations by employers, however, has been attacked on several grounds, including that the tests have marginal validity, that they cause an unwarranted invasion of privacy, and that they are used in place of a more thorough screening process involving reference checks and similar procedures. See House Legislative Analysis, HB 4402 Substitute H-2, May 20, 1981. With this background, the questions will now be addressed seriatim. The first question is: "In the course of a criminal investigation, may an employee of the Department of State Police request a fellow employee to submit to a polygraph examination?" In order to answer this question, it is necessary to determine whether the Legislature, by passing the Act, intended to limit the use of polygraph examinations in criminal investigations. The primary rule of statutory construction is to discover and give effect to the legislative intent. In re Certified Questions Karl v Bryant Air Conditioning Co, 416 Mich 558, 567; 331 NW2d 456 (1982). The legislative intention is derived from the actual language used in the statute. Id. Additionally, if the language used is clear and the meaning of the words chosen is unambiguous, "a common-sense reading of the provision will suffice, and no interpretation is necessary." Id. Upon examination of the Act, it is clear that the particular objective of the Legislature in enacting it was to prevent abuses in the use of polygraph examinations in employment situations. In particular, the Legislature used clear and unambiguous language in MCL 37.203(1); MSA 17.65(3)(1), in prohibiting employers from requesting or requiring employees to do certain things "as a condition of employment, promotion, or change in status of employment, or as an express or implied condition of a benefit or privilege of employment." The Legislature did not bar employers from requesting that an employee take a polygraph examination in all other circumstances. Another rule of statutory construction is that in construing the words of a statute, effect must be given to each part of a sentence, so as not to render any other part nugatory. Pittsfield Twp v City of Ann Arbor, 86 Mich App 229, 235; 274 NW2d 466 (1978). Application of this rule compels the conclusion that it is permissible for an employer to request that an employee submit to a polygraph examination under certain, albeit unspecified, circumstances. The House Legislative Analysis Section recognized that HB 4402 Substitute H-2 was not intended to preclude the use of polygraph examinations in criminal investigations by law enforcement agencies when it stated, in response to an argument that employers needed to be able to use polygraph examinations to reduce the rate of theft among employees, that: "If employers want specific instances of employee theft investigated, they should call in law enforcement agencies, which have the full range of investigative tools, including lie detectors, at their disposal, rather than invading the privacy of their employees in the course of what are, at best, unofficial criminal investigations." House Legislative Analysis, supra. The employer in your first question is itself a law enforcement agency, and any criminal investigation undertaken by it would, therefore, be an official investigation. The legislative intention in enacting the Act was to prevent abuses in the use of polygraph examinations in employment situations. Nowhere does the Act give any indication that it was meant to limit the use of polygraph examinations in the course of criminal investigations. It is my opinion, in answer to the first question, that in the course of a criminal investigation, an employee of the Department of State Police may request a fellow employee to submit to a polygraph examination. (1) The second question is: "In the course of a criminal investigation initiated by another state department involving an employee of that department, may the Department of State Police request such employee to submit to a polygraph examination?" It is assumed for purposes of this question that at the time the request is made, the Department of State Police is in charge of the criminal investigation. Under these circumstances, insofar as the Department of State Police is neither the "employer" nor an "agent of the employer" of the employee under criminal investigation, the Act is not implicated. It is my opinion, in answer to the second question, that in the course of a criminal investigation initiated by another state department involving an employee of that department, the Department of State Police may request such employee to submit to a polygraph examination. The third question is: "May information which communicates the results or analysis of an employee's polygraph examination, or the fact that an employee refused to submit to an examination, emanating from a request under circumstances described in questions one or two, if permitted, be shared with the prosecutor having authority to prosecute the crime?" MCL 37.205; MSA 17.65(5), provides in pertinent part: "An employer ... shall not share with any other person information which communicates the results or analysis of an employee's ... polygraph examination or the fact that an employee ... refused to submit to a polygraph examination." A statute which is clear and unambiguous is nonetheless not to be given a construction which is absurd. Scholten v Rhoades, 67 Mich App 736, 745; 242 NW2d 509 (1976). Where a construction of a statute would lead to an absurd result, it is presumed that some exception or qualification was intended by the Legislature. Id. Furthermore, as was stated by the court in Williams v Secretary of State, 338 Mich 202, 208; 60 NW2d 910 (1953): " ' "Effect to be Given to True Intent of Act. Modification of Language.--Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence. This is done, sometimes, ... by interpolating other words; ... where the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though, in so doing, the exact letter of the law be sacrificed, or though the construction be, indeed, contrary to the letter." ' " Having already concluded that the Legislature intended only to prevent abuses in the use of polygraph examinations in employment situations and did not intend to limit their use in the course of criminal investigations, it would be absurd to read MCL 37.205; MSA 17.65(5), to prohibit a law enforcement agency which rightfully requested a person to submit to a polygraph examination from conveying the person's test results or refusal to the prosecutor with jurisdiction over the alleged offense. It would be equally absurd to so limit a law enforcement agency which also happened to be the employee's employer; to adopt such a position would lead to the incongruous result that an outside law enforcement agency could request a polygraph examination which the employing law enforcement agency could not. It is my opinion, in answer to the third question, that the results or analysis of an employee's polygraph examination, or the fact that an employee refused to submit to an examination, emanating from a request in a criminal investigation under circumstances described in questions one or two, may be shared with the prosecuting attorney having jurisdiction to prosecute the crime. The fourth question is: "May information which communicates the results or analysis of the polygraph examination of an employee described in questions one or two where the examination was administered solely at the request of the employee be shared with the prosecutor having authority to prosecute the crime?" The reasoning employed in response to the third question is equally applicable to this question. It is my opinion, in answer to the fourth question, that the results of a polygraph examination requested by the employee in the course of a criminal investigation may be shared with the prosecuting attorney having authority to prosecute the crime. The fifth question asks: "May a police officer employed by a local police agency in the course of a criminal investigation involving a member of his/her department request that member to submit to a polygraph examination?" For the reasons set forth in question one, it is my opinion, in answer to the fifth question, that a police officer employed by a local police agency in the course of a criminal investigation involving another member of the department may request that member to submit to a polygraph examination. The sixth question asks: "May a police officer employed by a local police agency in the course of a criminal investigation initiated by an administrator of that governmental entity and involving an employee of that governmental entity request that employee to submit to a polygraph examination?" For the reasons set forth in question two, it is my opinion, in answer to the sixth question, that a police officer employed by a local police agency in the course of a criminal investigation initiated by an administrator of that governmental entity and involving an employee of that governmental entity may request that employee to submit to a polygraph examination. Frank J. Kelley Attorney General (1)
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