Use of Polygraph Examinations in Investigating Disclosure of

Information About Pending Criminal Investigations

T h e A tto rn ey G eneral m ay o rd er Justice D epartm ent em ployees to subm it to polygraph 

tests to answ er questions relating to pending crim inal investigations, and m ay discharge 

an em ployee for refusing to take such a test.

E ven w here an em ployee is entitled to be discharged only “ for cause," failure to 

cooperate w ith an official investigation by taking a polygraph test m ay constitute 

adequate cause, as long as the em ployee is given reasonable assurances respecting the 

need for the test and th e use to w hich its results m ay be put.

February 22, 1980

M EM ORANDUM O PIN IO N FO R T H E A TTO RN EY G E N E R A L

You have asked us to consider the following questions regarding the 

use of polygraphs in investigating unauthorized disclosures of information about pending criminal investigations: (1) may a Justice D epartment employee be dismissed for refusing to submit to a polygraph 

test; and (2) may the results of a polygraph test be used against the 

employee |n (a) administrative proceedings and (b) criminal proceedings? We conclude that the Attorney General may order Department 

employees to submit to polygraph tests to answer specific questions 

relating to pending criminal investigations and that employees who 

refuse to take polygraph tests may be discharged. If any employee is 

threatened with dismissal for refusing to take a polygraph test, then any 

evidence obtained through the test may not be used against the employee in a subsequent criminal proceeding. Employees should be 

warned prior to taking the test that their refusal to participate may lead 

to their dismissal, but that nothing they say can or will be used against 

them in a criminal proceeding. It is doubtful that evidence obtained by 

way of polygraph would, in any event, be admissible in a federal 

criminal proceeding, unless the employee stipulates to its admissibility.

I. Polygraphs and Federal Employment

The use of polygraphs for federal employment purposes has been the 

subject of controversy for a number of years. T he discussion focuses on 

two conflicting trends: the growing scientific acceptance of the reliability of polygraphy and the increasing concern that polygraph examina421
tions violate privacy rights and the Fourth, Fifth, and Fourteenth 

Amendments.

In 1965, the House Committee on Governm ent Operations held hearings and issued a report on the use of polygraphs by the federal 

government. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). The Committee Report noted that 19 federal agencies used polygraphs; the most 

frequently reported purpose of the use involved security matters. A 

total of just under 20,000 tests were administered in 1963. Eight agencies used polygraphs to investigate employee misconduct. (The D epartment of Justice indicated its use was limited to security and criminal 

matters.) The Committee strongly criticized the use of polygraphs; it 

concluded that the accuracy of such tests was unproven and that 

operators were generally unqualified and undertrained. Id. at 1-2.

In 1968, the Civil Service Commission promulgated regulations 

which prohibit use of polygraphs in employment screening and personnel investigations for members of the competitive service, except for 

national security purposes. This regulation, which does not apply to the 

excepted service, is currently in force. Federal Personnel Manual chapter 736, Appendix D .1

Senator Ervin introduced a number of bills which would have 

prohibited the use of polygraphs in the hiring or firing of federal 

employees and employees of industries affecting interstate commerce. S. 

2156, 91st Cong., 2d Sess. (1971); S. 2836, 93d Cong., 1st Sess. (1973), 

reprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th 

Cong., 1st Sess. (1975). None of these measures was enacted.

Additional congressional hearings were held in 1974 before the 

House Governm ent Operations Committee.2 A Deputy Assistant A ttorney General for the Criminal Division testified that polygraphs had 

proven useful in a small number of investigations involving a “closed” 

group of persons—e.g., persons with access to stolen or embezzled 

property. However, he noted that even in these circumstances, the 

Criminal Division viewed the results “with caution and opposes their 

introduction into evidence . . . .” Hearings at 414. A representative of 

the Federal Bureau of Investigation (FBI) testified that “the FB I’s 

official position has always been that [it does] not consider polygraph 

examinations sufficiently precise to permit absolute judgm ent of guilt or 

non-guilt—lie or truth—w ithout qualifications.” Id. at 418. He added, 

however, that

with proper ethics by the polygraph examiner and tight 

administrative control by the user agency, there is no 

question but that the polygraph can be a valuable investi­

‘ T he regulations require that agencies using polygraphs advise the individual o f his or her privilege 

against self-incrimination and right to counsel. T he individual must voluntarily consent to the examination and a refusal to consent may not be included in his or her personnel file.

a The Use o f Polygraphs and Sim ilar Devices by Federal Agencies, Hearings Before the House Committee

on Government Operations, 93d Cong., 2d Sess. (1974) ("Hearings").

422
gative aid to supplement interrogation in selected criminal 

and national security cases. Interrogation is a basic tool of 

any investigative agency and the FBI considers the polygraph technique a thorough and specialized interview procedure in which a skillful interrogator is attempting to 

simply ascertain the truthful facts from a consenting individual regarding a matter in which we have jurisdiction.

In some instances suspects will admit deception and 

furnish confessions and/or signed statements. In most instances valuable new information or investigative direction is developed as a result of the examination and followup interrogation.

Id. at 419. The use of polygraphs was strongly criticized by the American Civil Liberties Union on constitutional and scientific grounds. Id.

at 2-84.

A study prepared in 1974 by the staff of the Subcommittee on 

Constitutional Rights of the Senate Judiciary Committee reached a 

conclusion similar to the House Committee in 1965. It stated that

[cjompulsory submission to a polygraph test is an affront 

to the integrity of the human personality that is unconscionable in a society which values the retention of individuals’ privacy. . . . The Congress should take legislative steps to prevent Federal agencies as well as the 

private sector from requiring, requesting, or persuading 

any employee or applicant for employment to take any 

polygraph tests.

Staff of the Subcomm. on Constitutional Rights of the Senate Comm, 

on the Judiciary, 93d Cong., 2d Sess., Privacy, Polygraphs, and Employment, 17-18 (Comm. Print 1974). The study also concluded, after reviewing the literature on polygraphs, that “doubt must be cast upon the 

objectivity, accuracy, and reliability of the polygraph test.” Id. at 9.

Based on the above, it is clear that use of polygraphs for federal 

employment purposes remains controversial.3 While civil service regulations prohibit their use for the competitive service, Congress has been 

made aware that no prohibition exists regarding the excepted service. 

Several bills that would have prohibited such use have not been 

enacted.

II. Attorney General’s Authority to Terminate Employment

Analysis of the authority of the Attorney General to dismiss an 

employee for refusing to submit to a polygraph examination must begin

s States have taken an active role in limiting use o f polygraphs in the em ployment context. Eighteen 

states have licensing procedures for polygraph examiners; IS states prohibit use of polygraphs. See

Comment, Privacy: The Polygraph in Employment. 30 Ark. L. Rev. 35, 37-38 (1976).

423
with an understanding of the statutory and regulatory protections afforded different classes of Department employees.

Under the civil service laws, Departm ent attorneys and employees of 

the FBI are in the excepted service. 28 U.S.C. § 536 (FBI); 5 C.F.R. 

§ 213.3102(d) (government attorneys). The Office of Personnel Management (OPM), by regulation, has exempted personnel in the excepted 

service from the statutory provisions regarding removal of civil servants. See 5 C.F.R. § 752.401(c). However, persons in the excepted 

service who are non-probationary “preference eligibles,”—primarily 

veterans and the spouses and mothers of disabled and deceased veterans—are afforded the civil service law protections. 5 U.S.C. 

§ 7511(a)(1)(B). See id. § 2108 (defining “preference eligible”). The civil 

service law protections are substantive and procedural. A preferenceeligible employee may be removed “only for such cause as will promote the efficiency of the service.” Prior to removal, an employee is 

entitled to 30 days’ advance written notice of the reasons for the action, 

a reasonable time to respond to the charges, the assistance of an attorney, a written decision, and an appeal to the Merit System Protection 

Board (MSPB). 5 U.S.C. § 7513; D O J O rder 1752.1.

Departm ent employees who are in the excepted service and are not 

preference-eligibles have no rights arising from a statute or OPM regulation to a statement of reasons for discharge or to an appeal from an 

adverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978). 

However, the Departm ent is bound by its own substantive standards 

and procedures even though the employee may have no legitimate 

expectation of continued employment and could, under relevant statutes, be summarily discharged by the A ttorney General at any time. See

Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584 

F.2d at 184; Mazaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir. 

1977). Departm ent O rder 1752.1 (1975), as supplemented by a March 

27, 1979 notice, establishes minimal procedures for Department attorneys who are not preference-eligibles. Chapter 6 of the order entitles 

them only to “a letter of termination prior to the effective date of the 

termination . . . [which provides] a brief statement of the reasons for 

the termination.” 4

Substantively, Departm ent attorneys are provided no protections by 

Departm ent regulations. And since they are not covered by the “for 

cause” standard of the civil service laws, attorneys apparently serve at 

the pleasure of the A ttorney General. The A ttorney General’s authority 

to remove Assistant United States A ttorneys (AUSA) is expressly recognized by statute. See 28 U.S.C. § 542(b).

This conclusion must be qualified because of recent cases that have 

held that agency handbooks and informal understandings may establish

4 FBI em ployees are excluded altogether from D O J O rder 1752.1.

424
substantive protections for federal employees. In Ashton v. Cmletti, 613 

F.2d 923 (D.C. Cir. 1979), the D.C. Circuit held that “the FBI has 

fostered rules and understandings which [entitle an FBI employee] to 

believe that he would lose his job only for a job-related reason.” 613

F.2d at 928.5 The court recognized that FBI employees are in the 

excepted service and that “[standing alone, the exception could suggest 

to an employee that he held his job at the sufferance of his employer.” 

It went on to find, however, that the FBI Handbook, Manual of 

Instructions, and the plaintiffs letter of appointment created an implied 

promise that the employee would be dismissed “only for failing to 

perform his duties satisfactorily and without prejudice to the FB I’s 

achievement of its law-enforcement mission.” 613 F.2d at 930. In essence, the court held that FBI employees, even though placed in the 

excepted service by statute, may be discharged only upon a finding of 

cause similar to that required for dismissal of members of the com petitive service.6 Once it is determined that an employee has a legitimate 

claim to continued employment—Le„ that he or she may be not be fired 

at any time—then procedural due process applies: the employee must 

be afforded a hearing and other procedural safeguards.

We are unaware of any handbooks or guidelines upon which D epartment attorneys could rely to establish a legitimate claim to continued 

employment. We cannot, however, rule out the possibility that an 

attorney could point to a letter of appointment or to informal understandings which a court would deem sufficient to establish a property 

interest.7

In sum, the Attorney General probably has the authority to dismiss a 

non-veteran Department attorney for any reason, and the attorney is 

entitled only to a statement of reasons for the discharge. Non-veteran 

FBI agents probably may be discharged only for job-related reasons, 

even though they are in the excepted service; they are entitled to a due 

process hearing. Department employees who are veterans may be discharged only for cause and are entitled to statutory, OPM and DOJ 

procedural rights.

5 The case concerned the FB I's discharge o f an employee because of his admitted homosexuality. 

The court held that (he employee was entitled to a due process hearing prior to term ination to 

determine w hether his homosexuality constituted a job-related basis for his dismissal.

6 See also Paige v. Harris, 584 F.2d 178 (7th Cir. 1978) (H U D Handbook provides rules and 

understandings creating legitimate claim to continued employment for employees in the excepted 

service); Colm v. Vance, 567 F.2d 1125 (D.C. Cir. 1977) (remanding for consideration o f w hether the 

Foreign Service A ct requires prom otion to be based solely on perform ance and merit, even though 

plaintiff could dem onstrate no constitutional property entitlement to promotion).

7 For example, it is conceivable that a court could find that w hen an A U SA agrees to a 3-year 

commitment with a U.S. A ttorney's Office, that that agreem ent constitutes a promise by the D epartment not to discharge the attorney during that period w ithout good cause. A court m ight also hold 

that the D epartm ent's regulation requiring a statement of reasons for termination implicitly requires 

the. D epartm ent to have a “good” reason.

425
III. What Constitutes “Cause”

As noted above, the civil service laws authorize removal of covered 

civil servants “only for such cause as will prom ote the efficiency of the 

service.” 5 U.S.C. §7513. The D.C. Circuit has similarly held that an 

FBI employee may be dismissed “only for failing to perform his duties 

satisfactorily and without prejudice to the FB I’s achievement of its lawenforcement mission.” Ashton v. Civiletti, supra.6 The question is 

w hether failure to obey an order to submit to a polygraph examination 

is sufficient cause for discharge under these standards. The following 

discussion assumes that at the time the employee is ordered to take the 

test, the employee is assured both that he or she may be discharged for 

refusing to take the test and that no information obtained in the course 

of, or as a result of, the examination may be used against him or her in 

a subsequent criminal proceeding.9

At the minimum, failure to obey a legitimate order of a superior 

constitutes insubordination—an offense punishable by removal. See FBI 

Manual of Instructions, Part I, § 1-20-2 (refusal to cooperate during an 

interview regarding work-related matters permits discipline for insubordination); § 13, Schedule of Offenses and Penalties for FBI Employees 

(insubordination punishable by censure to removal). A refusal to submit 

to a polygraph test also arguably impedes investigation of government 

misconduct. It thus directly effects the efficiency of the Department by 

hindering removal of offending employees and restoration of public 

confidence in the Department. The Schedule of Disciplinary Offenses 

and Penalties for DO J Employees, included in DOJ O rder 1752.1, 

identifies the offense of “refusal to cooperate in an official government

8 It is quite clear that the underlying conduct—disclosure of facts of a pending criminal investigation—permits removal o f the offending employees. T he conduct may violate various criminal statutes 

and plainly violates a number of OPM and DOJ standards o f conduct. See, e.g.. 5 C.F.R. 

§§ 735.201a(c) (impeding governm ent efficiency); (e) (making a governm ent decision outside official 

channels); (0 (affecting adversely the confidence of the public in the integrity of the government); 

73S.206 (misuse of information not made available to the general public); 735.209 (conduct prejudicial 

to the government); 28 C .F.R . §§ 45.735-2(c)(3) (impeding governm ent efficiency); (c)(6) (affecting 

adversely the confidence of the public in the integrity of the governm ent); 45.735-10 (im proper use of 

official information); 45.735-18 (1980) (conduct prejudicial to the government).

It is possible that an employee charged with unauthorized disclosure may assert a First Amendment 

defense: that the government may not constitutionally prohibit him or her from commenting on 

matters of public importance. W hile the employee may have an interest in commenting upon matters 

o f public interest, this interest must be balanced against the governm ent's interest in prom oting the 

efficiency o f the public services it performs through its employees. See Pickering v. Board o f Education,

391 U.S. 563 (1968). T he D.C. C ircuit has identified the relevant factors in the “balancing test" as: the 

sensitivity and confidential nature of the employee’s position and the governm ent's consequently 

legitimate need for secrecy; the subject m atter of the speech; the truth or falsity of the speech; the 

interference with job performance; the context of the speech; the effect of the speech on agency 

morale and working relationships with immediate superiors. Hanson v. Hoffman. 628 F.2d 42, 50 (D.C. 

Cir. 1980). It would appear that the governm ent’s interest in preventing disclosure is at its maximum in 

regard to information relating to pending criminal investigations.

9 W ithout these assurances, an em ployee could not constitutionally be fired for refusing to take the 

polygraph test. See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973); see also Sanitation Men v. 

Sanitation Commissioner. 392 U.S. 280(1968).

426
inquiry” and lists the suggested discipline as “official reprimand to 

removal.”

The obligation of public officials to answer questions related to the 

performance of their public duties is well-recognized. The Supreme 

Court has upheld the right of public employers to fire employees solely 

for their refusal to sign affidavits or answer questions related to their 

fitness to perform their public functions. See, e.g., Lefkowitz v. Turley,

414 U.S. 70, 84 (1973); Sanitation Men v. Commissioner, 392 U.S. at 285; 

Beilan v. Board o f Education, 357 U.S. 399 (1958). These holdings are 

based on the recognized public interest in the accountability of public 

servants. This interest appears at its zenith when the integrity of lawenforcement activities is at stake. As stated by Justice Harlan,

[I]t is surely plain that [a State] may . . . require its 

employees to assist in the prevention and detection of 

unlawful activities by officers of the state government.

The urgency of these requirements is the more obvious 

. . . where the conduct in question is that of officials 

directly entrusted with the administration of justice. The 

importance for our systems of justice of the integrity of 

local police forces can scarcely be exaggerated.

Garrity v. New Jersey, 385 U.S. 493, 507-08 (1967) (Harlan, J., 

dissenting).10

Thus, if the use of polygraphs is deemed a necessary part of an 

investigation of leaks, then a refusal to submit to such a test could 

impede the investigation and consequently hinder the efficiency of the 

Department. Department standards of conduct recognize the affirmative duty of employees to cooperate with official investigations, and 

refusals to cooperate are deemed serious enough offenses to warrant 

removal in appropriate cases. We can see no meaningful difference 

between compelling an employee to answer questions or sign an affidavit and compelling an employee to submit to a polygraph test.11 While 

the results of the test may be open to question and debate, the refusal to 

take the test may properly be characterized as conduct which does not 

promote the efficiency of the Department. Accordingly, we believe 

that an employee could be dismissed for refusing to take a polygraph 

examination.12

10 Although the C ourt held in Garrity that the incriminating statements of a public official obtained 

under threat of dismissal could not be used in a criminal proceeding, the majority did not disagree 

with Justice Harlan's statement regarding the public interest that public officers provide information 

about the conduct of their activities. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968).

11 We reach this conclusion even though we recognize that the use of a polygraph is a greater 

intrusion into an individual's privacy to the extent it probes unrelated matter, private thoughts, and 

beliefs.

12 One district court has upheld the authority o f a city transit authority to fire employees suspected 

o f intoxication who refuse to submit to urinalysis or blood tests. The court relied upon the Garrity line 

o f cases for the proposition that public employees may be discharged for refusal to properly account 

for the performance o f their duties. Division 241, Amalgamated Transit Union v. Suscy. 4fi5 F. Supp. 

750 (N.D. III. 1975), a ffd , per curiam, 538 F.2d 1264 (7th Cir.), cert, denied. 429 U.S. 1029 (1976).

427
An arguable objection to this conclusion may be phrased as follows. 

Polygraph tests have not achieved recognized acceptance among the 

courts and the experts as accurate indicators of truth-telling. For example, the test may show deception where a truthful subject is nervous, 

tense, over-tired, or angry, or when an examiner asks misleading or 

inadequate questions. See United States v. Alexander, 526 F.2d 161, 165 

(8th Cir. 1975). Thus, where an employee believes that the results of 

the polygraph will not be accurate, refusal to take the examination 

should not be grounds for removal.

We believe that if the investigator can establish a reasonable basis for 

the use of the polygraph in the course of the investigation, then a 

refusal by an employee to take the test would be impermissible, notwithstanding the subjective fear of the employee. A reasonable basis 

would be established by showing the need for use of the technology 

and the state of the art. We believe that adequate scientific evidence 

exists which would support an investigator’s decision that polygraphy 

could be helpful in the pursuit of the investigation. See, e.g., United

States v. De Betham, 470 F.2d 1367 (9th Cir. 1972) (per curiam), cert,

denied, 412 U.S. 907 (1973) (although holding that district court did not 

abuse discretion in excluding polygraph evidence, court noted that 

evidence “vigorously supported] the accuracy of polygraphic evidence”); United States v. Oliver, 525 F.2d 731, 737 (8th Cir. 1975), cert,

denied, 424 U.S. 973 (1976) (upholding admission of polygraph evidence 

w here parties stipulated admissibility; court could not conclude that 

polygraph “is so unreliable as to be inadmissible in this particular 

case”); Tarlow , Admissibility o f Polygraph Evidence in 1975: An A id in

Determining Credibility In a Perjury-Plagued System, 26 Hastings L.J. 

917 (1975).13 We recognize, however, that reliability of polygraphy 

remains hotly contested, and courts of appeal have permitted introduction of polygraph evidence only when the parties have stipulated to its 

admissibility. See United States v. Alexander, supra (summarizing cases 

and denying trend of admitting polygraph evidence); Hearings, supra. 14

The reasonableness of the use of a polygraph would be supported by 

a record establishing the reason for its use, the expected accuracy of 

the technology, the qualifications of the examiner, and the reliance 

upon other evidence to establish and corroborate the results of the 

investigation.15 Once the reasonable basis for the use of polygraphy is 

established, we do not believe than an employee can, with impunity,

13 One factor frequently ciled by courts for excluding polygraph evidence is the probability that the 

jury will accord it undue weight. O f course, this concfern is nbt present when administrative proceedings are contemplated.

14 T he D.C. Circuit continues to adhere to its per se rule against admissibility as established by the 

leading case o f Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See United States v. Skeens, 494 

F.2d 1050 (D.C. Cir. 1974).

15 Presumably, the quality of the examination and the qualifications of the examiner would be quite 

high if the examination is conducted by FBI polygraph experts.

428
refuse to take the examination any more than he or she could refuse to 

submit to fingerprinting or blood-typing.

IV. Use of the Results of a Polygraph Test

As long as the employee is promised that any evidence obtained in 

the course of the polygraph test will not be used in a subsequent 

criminal proceeding, the Fifth Amendment does not bar its use in an 

administrative proceeding.16 O f course, such a promise, and the Fifth 

Amendment, prohibit use in any criminal proceeding. Garrity v. New

Jersey, supra.

V. Conclusion

We conclude that the Attorney General may discharge an employee 

for refusing to take a polygraph examination where the examination is 

necessary to an official investigation of unauthorized disclosures about 

pending criminal investigations, provided that the employee has been 

warned that failure to submit to the test could lead to his or her 

dismissal and that nothing obtained in the examination will be used 

against the employee in a subsequent criminal proceeding. Even if a 

court were to hold that Department attorneys may only be discharged 

“for cause,” we conclude that, generally, failure to cooperate with an 

official investigation is adequate cause, although each situation must be 

evaluated on a careful case-by-case basis.

L a r r y A . H a m m o n d

Acting Assistant Attorney General

Office o f Legal Counsel

16 Because of the controversy surrounding the use of polygraphs, it is possible than an employee 

discharged solely on the basis of polygraphic evidence would challenge the dismissal as arbitary and 

irrational agency action. We do not believe that, absent a judicially recognizable property or liberty 

interest, an employee may challenge agency action as a violation of due process unless the agency has 

not followed its own regulations. See Paige v. Harris, 584 F.2d at 184; c f Bishop v. Wood, 426 U.S. 341 

(1976). At least one court, how ever, has held that a government decision is subject to challenge as 

arbitrary and capricious even w here the employee has no property right in continued employment. 

Heaphy v. U.S. Treasury Dept., 354 F. Supp. 396 (S.D.N.Y. 1973) (Tyler, J.), a f f d on opinion below. 489 

F.2d 735 (2d Cir. 1974). If a court w ere to permit a challenge to a dismissal based solely on the results 

o f a polygraph examination, the non-arbitrariness o f the action would depend upon such factors as the 

quality of the examination, the skill and training of the examiner, and the inherent credibility of the 

employee’s statements.

429