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AGO 1987 No. 15 - May 05, 1987
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COUNTY ‑- LAW ENFORCEMENT AGENCY ‑- POLYGRAPH EXAMINATIONS ‑- AUTHORITY TO ADMINISTER POLYGRAPH EXAMINATION TO NEW EMPLOYEES

 The security committee of the Grant County dispatch center, consisting of the representatives of the law enforcement agencies of Grant County, has the authority under RCW 49.44.120 to require polygraph examinations of those current employees of the dispatch center who have never been under the control of a law enforcement agency prior to commencing employment at the dispatch center.

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                                                                    May 5, 1987 

Honorable Paul Klasen
Prosecuting Attorney
County of Grant
P.O. Box 37
Ephrata, Washington 99923

Cite as:  AGO 1987 No. 15                                                                                                                

 Dear Sir:

             By letter previously acknowledged, you have requested our opinion on a question we have paraphrased as follows:

             Does the security committee of the Grant County dispatch center, consisting of the representatives of the law enforcement agencies of Grant County, have the authority under RCW 49.44.120 to require polygraph examinations of those current employees of the dispatch center who have never been under the control of a law enforcement agency prior to commencing employment at the dispatch center?

             We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             As background you stated in your request that the Grant County Commissioners recently established a dispatch center in the courthouse.  The center is part of the County's newly established "911" network and includes law enforcement dispatching that was formerly handled by the sheriff's office.  The employees who formerly handled dispatching for the sheriff's office were administered pre‑employment polygraph (lie detector) tests and will  [[Orig. Op. Page 2]] not be retested.  Your question relates only to those employees who were not employees of the sheriff's office prior to establishment of the dispatch center and who have never taken a polygraph test in conjunction with Grant County employment.  All employees of the dispatch center have access to the National Crime Information Center (NCIC).  Because your question informed us that the Grant County dispatch center is a law enforcement agency, for purposes of our analysis we assume that to be true.

             RCW 49.44.120 states in part:

             It shall be unlawful for any person, firm, corporation or the State of Washington, its political subdivisions or municipal corporations to require, directly or indirectly, that any employee or prospective employee take or be subjected to any lie detector or similar tests as a condition of employment or continued employment:  PROVIDED, that this section shall not apply to persons making initial application for employment with any law enforcement agency. . . .

This statute presents a very strong and broad legislative policy against the use of polygraph tests as a condition of employment.  The proviso, however, contains an exception for employees of law enforcement agencies.  Since provisos operate as limitations on, or exceptions to, the general terms of the statute, they "generally should be strictly construed with any doubt to be resolved in favor of the general provisions, rather than the exceptions."  State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974).

             To fall within the exception contained in the proviso, an individual must be making "initial application for employment."  Unless otherwise defined, words of a statute should be given their usual and ordinary meaning.  Foremost Dairies, Inc. v. State Tax Comm'n., 75 Wn.2d 758, 762, 453 P.2d 870 (1969).  "Initial" means "that which begins or stands at the beginning."  Black's Law Dictionary, 923 (4th rev. ed. 1968).  Thus, an "initial application for employment" is one that occurs when a person first commences the employment relationship with a law enforcement agency.1/

              [[Orig. Op. Page 3]]

            We assume by your question that some or all of the potential dispatch center employees may have been previously employed by Grant County and will now begin entirely new job functions with the dispatch center.  Further, you indicated that the employees selected to be administered polygraph tests were not employees of any Grant County law enforcement agency prior to the formation of the dispatch center.  Accordingly, we conclude that because these individuals are new employees of a law enforcement agency, RCW 49.44.120 does not prohibit the administration of polygraph tests as part of the initial application process.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MEREDITH WRIGHT MORTON
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/This construction is supported by the second proviso of RCW 49.44.120, which relates to "initial application for employment or continued employment of persons who manufacture, distribute, or dispense controlled substances" and which specifically permits polygraph testing at a later time in the employment relationship.

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