RONALD BELLIN vs. FREDERICK J. KELLEY, JR., & others [Note 1]

GILLERMAN, J. The plaintiff was employed by the defendant Kelley Consultants, Inc. (company), a private collection agency whose business included collecting delinquent excise taxes for cities and towns. The defendant Frederick J. Kelley, Jr. (Kelley), was the president and treasurer of the company. There had been a theft of cash at the company's premises, and the plaintiff was suspected of being the thief. The defendant Wayne Minichielli, a Hopedale police officer investigating the theft, obtained the plaintiff's criminal offender record information (CORI) [Note 2] and gave Kelley that information after the plaintiff told Minichielli that he would not take a polygraph test. Kelley then threatened the plaintiff with the loss of his position unless he took the test, and the plaintiff finally agreed. Kelley learned the test results from Minichielli and discharged the plaintiff [Note 3]. No criminal charges were ever brought against the plaintiff for the theft.

The plaintiff brought suit, asserting claims against the company and Kelley for wrongful termination of employment, for violation of G. L. c. 149, s. 19B(2) (set out in note 11, infra), for wrongfully subjecting him to a lie detector test, and for violation of the Massachusetts Civil Rights Act, G. L. c. 12, s. 11I. He also brought claims under G. L. c. 6, s. 177 [Note 4], against the company, Kelley, Minichielli, and the town of Hopedale al-

Page 575

leging the wrongful dissemination of the plaintiffs CORI in violation of G. L. c. 6, s. 172; a claim against Minichielli for tortious interference with the employment relationship; claims against Minichielli and Hopedale for invasion of privacy and civil rights violations (G. L. c. 12, s. 111); and a claim against the town under G. L. c. 258, s. 2. Defendants Hopedale and Minichielli and the defendant company and Kelley brought motions for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 924 (1974). Both motions were allowed, and the plaintiff has appealed.

We state the material facts in more detail.

During the weekend of August 1, 1992, Kelley's office at Evergreen Avenue in Hopedale was broken into, and about $7,000 in cash was stolen. On August 3, 1992, Minichielli, a police detective employed by the town, was dispatched to conduct an investigation. A preliminary check for fingerprints and other signs of the crime yielded nothing significant.

Minichielli suspected that it was an inside job because the intruder seemed to know where the money was. He asked Kelley for a list of employees and ran a background check on all of them. He discovered that the plaintiff had a prior criminal record [Note 5]. On September 23, 1992, Minichielli met with Kelley and disclosed this information. Kelley told Minichielli that he was concerned about the plaintiff's possible involvement in the break-in because he was late for work on the morning after the break-in and appeared to be very nervous.

On September 28, 1992, Minichielli contacted the plaintiff and asked him to come to the police station. At the interview, Minichielli read the plaintiff his Miranda rights and told him that he was a prime suspect in the investigation. In response, the, plaintiff denied my involvement in the break-in and theft.

Several days later, Minichielli asked the plaintiff to take a lie detector test. He told the plaintiff that if he did not take the test "he [Minichielli] was going to tell. . . Kelley that [the plaintiff] had a record and [the plaintiff] would be fired." The plaintiff refused to take the test. Later, the plaintiff and Kelley talked.

Page 576

Kelley told the plaintiff (according to the plaintiff's deposition testimony) that because the plaintiff had "refused to take a lie detector test" and since he "had a record," the plaintiff was "through" unless he took the lie detector test. The plaintiff then agreed to take the test - an agreement he would not have made (we infer favorably to the plaintiff) unless faced with the sanction of loss of his job if he refused. The plaintiff took the test, which was administered at the State police barracks in Southborough. He did poorly when asked key questions concerning his whereabouts on the date of the break-in. The plaintiff was fired shortly after Kelley learned that the results of the test were unfavorable.

The police investigation ended without anyone being charged with the theft.

1. The CORI Act claim against all defendants. General Laws c. 6, s. 172 (as amended through St. 1990, c. 319, s.s. 7-12), of the CORI Act, see note 2, supra, permits the dissemination of criminal record information "only to (a) criminal justice agencies; (b) such other agencies and individuals required to have access to such information by statute . . . ; and (c) any other agencies and individuals where it has been determined [by the criminal history systems board (board), see c. 6, s. 168,] that the public interest in disseminating such information to these parties clearly outweighs the interest in security and privacy." Access under clause (a) is limited to "that necessary for the actual performance of the criminal justice duties of criminal justice agencies . . ."; access under clause (b) is limited to "that necessary for the actual performance of the statutory duties of agencies and individuals . . ."; and access under clause (c) is limited to "that necessary for the actual performance of the actions or duties sustaining the public interest . . . ." Further as to clause (c), the board may act only upon the favorable vote of a two-thirds majority of the members present and voting determining and certifying that "the public interest in disseminating such information to such party clearly outweighs the interest in security and privacy." In sum, the focus of clauses (a), (b), and (c) is to limit and tightly control the persons and agencies to whom CORI may be made available. Plainly excluded from these three approved groups is the undifferentiated public.

The underlying legislative purpose is to protect the privacy and security of those whose criminal record may no longer be

Page 577

relevant to current decisions regarding such persons. Thus G. L. c. 6, s. 171, first par. (as inserted by St. 1972, c. 805, s. 1), provides, inter alia, that the board shall promulgate regulations "(c) assuring the security of criminal offender record information from unauthorized disclosures at all levels of operation." The second paragraph of s. 171 provides: "The board shall cause to be initiated for employees of all agencies that maintain, receive, or are eligible to maintain or receive criminal offender record information a continuing educational program in the proper use and control of such information." See Commonwealth v. Vickey, 381 Mass. 762 , 765 (1980) (s. 171 reveals "the legislative purpose to protect individuals from unnecessary and overbroad dissemination of criminal record information").

Minichielli does not attempt to justify his dissemination of the plaintiffs CORI to Kelley under the provisions of s. 172. Rather, he relies on the provisions of a regulation of the board, 803 Code Mass. Regs. s. 2.04(5) (1995), which is captioned, "Authorization for Public Dissemination of CORI" (emphasis supplied). Subparagraph (a) provides: "A criminal justice agency with official responsibility for a pending criminal investigation or prosecution may disseminate CORI that is specifically related to and contemporaneous with an investigation or prosecution." The plaintiff responds that the regulation was in excess of the authority granted by the Legislature [Note 6], [Note 7].

General Laws c. 6, s. 168, third par. (as appearing in St. 1979, c. 702, s. 2) - cited by the board as authority for the promulgation of the regulation - gives the board the authority

"promulgate regulations regarding the collection, storage, access, dissemination, content, organization, and use of criminal offender record information" (emphasis supplied). However, the authority granted to the board under s. 168 may not be exercised

Page 578

in a manner that conflicts with the intent of the Legislature as expressed in s. 172. Section 172, as we have seen, provides for carefully restricted groups of persons and agencies to whom CORI may be released.

In addition to that limitation, s. 172 makes it clear that each disclosure by an agency is important. Thus, the fourth paragraph of s. 172 requires each agency to maintain "a listing of the agencies or individuals to which it has released or communicated such information" (emphasis supplied). These listings are subject to periodic review by the board to determine whether there has been a violation of law. There is no showing in this case that Kelley's name was added to the list maintained by the Hopedale police department. Further still, the sixth paragraph of s. 172 provides that "any person" may request conviction data, but each such request must be made to the board for approval. There is no showing in this case that such a request, if made by Minichielli individually, was approved by the board.

Section 2.04(5)(a) of 803 Code Mass. Regs., on the other hand, provides for the dissemination of CORI without limitation except only that the CORI dissemination must be "specifically related to and contemporaneous with an investigation or prosecution." The effect is to authorize the distribution of CORI to any member of the public so long as the CORI dissemination is connected to an ongoing investigation. This broad grant of authority to each criminal justice agency simply and completely undoes the carefully drafted limitations imposed by the provisions of s. 172 regarding authorized recipients of CORI. The consequence must be that the regulation exceeds the legislative grant of authority to the board and is invalid. See Simon v. State Examiners of Electricians, 395 Mass. 238 , 249 (1985) ("The duty of this court is to interpret the statute according to the intent of the Legislature and common sense. We are not simply to provide our imprimatur for regulations that the examiners might be able to defend on an excessively broad reading of the statute"). Here the regulation of the board "is not supported by the language of the statute, the context from which it arose, . . . or the legislative policy on which the statute is based." Ibid

We must measure Minichielli's conduct, then, against the standard of c. 6, s. 172, not 803 Code Mass. Regs. s. 2.04(5)(a). On that basis, Minichielli's distribution of the plaintiffs CORI

Page 579

to Kelley did not fall within the protections of clauses (a), (b), or (c), of c. 6, s. 172.

It does not follow, however, that Minichielli is necessarily liable to the plaintiff under G. L. c. 6, s. 177 (see note 4, supra). General Laws c. 258, s. 10(a) (inserted by s. 1978, c. 512, s. 15), provides that no claim based on an act or omission of a public employee may be maintained when the employee exercised "due care" in the execution of any regulation of a public employer (i.e., here, the board) whether or not the regulation is valid. That is to say, there can be no "willful violation" of s. 172 (the prerequisite of an action for damages under s. 177) by Minichielli if he was acting with due care under 803 Code Mass. Regs. s. 2.04(5)(a), which was not an invalid regulation when he acted. Whether Minichielli acted with due care in making CORI available to Kelley is a question of fact that must be resolved at trial, see Doe v. Blandford, 402 Mass. 831 , 836 (1988), and this claim must be remanded to the Superior Court.

Further, as to the plaintiffs CORI Act claim under s. 177 against Kelley and the company, the plaintiff argues that Kelley had no right to use the plaintiffs CORI in discharging him [Note 8]. Bynes v. School Comm. of Boston, 411 Mass. 264 , 270-271 (1991), precludes recovery by the plaintiff. In Bynes the court held that to prove a violation of G. L. c. 6, s. 172 [Note 9], the plaintiff must show that the individual or agency receiving CORI was "in violation of the statute and at fault," id. at 271. There is no evidence in this case Oust as there was none in Bynes) that Kelley or the company, in receiving plaintiffs CORI information, violated the CORI Act and was at fault in doing so. See ibid. Whether Kelley's use of the plaintiffs CORI violates other

Page 580

legal constraints is discussed infra [Note 10].

2. The polygraph test. The plaintiff claims that he was wrongly coerced by Kelley and the company to take a he detector test which was administered by the Massachusetts State Police. At issue is G. L. c. 149, s. 19B(2), which we set forth in the margin [Note 11]. The judge concluded that there was no violation of s. 1913(2), and we agree.

In Baker v. Lawrence, 379 Mass. 322 (1979), a case involving an investigation by the head of a police department into a theft from a store alleged to have been committed by police officers in the course of their duties, the court discussed and analyzed s. 19B [Note 12] in some detail. We follow that analysis.

The first sentence of s. 19B(2) forbids all employers, public and private, to impose polygraph tests on their employees, or to request their employees to undergo such tests. The second sentence creates an exception to the first sentence. "The situation plainly within the exception is one where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not

Page 581

forbidden, to administer a polygraph test to that employee. If, then, the employee refuses or indicates hesitance to submit to the test at the agency's request, the employer (relieved of the prohibition of the first sentence of s. 19B [now s. 19B(2), see note 12, supra]) may request that the employee do so, with implied job sanctions if the employee finally declines." Baker v. Lawrence, 379 Mass. at 327. See Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., 391 Mass. 429 , 440-442 (1984) (union's acquiescence to police department's demand for submission of its employees to lie detector test is not required under s. 19B, citing Baker v. Lawrence, supra).

The plaintiff would distinguish Baker: he argues that it applies only to an employee who is under investigation for having committed a crime "while on the job." We see no basis for imposing this limitation on Baker. Baker itself eschewed such a limitation. See id. at 327 n.8: "We have dealt here with the core meaning of the excepting language of s. 19B [i.e., investigation of criminal acts alleged to have been committed by employees in connection with the duties of employment]. We are not called on to explicate any possible ampler meaning."

Plainly, there must be a sufficient nexus between the crime under investigation and the suspect's employment so that pressure by the employer on the employee to take the test may be correctly seen, not as an act of a vigilante, but as a reasonable effort by the employer to maintain an honest work force and a working environment secure against criminal incursions. See Baker v. Lawrence, 379 Mass. at 329 n. 11 (the legislative intent was "to balance the privacy interests of employees against the legitimate needs of certain criminal investigations"). In Baker, the crime (theft of property from a store) was allegedly committed in the course of performing the employees' duties; here, the suspected crime was a robbery allegedly by an off-duty employee of company assets on the company's premises. The victim in Baker was a third party; the victim in this case was the company itself. As we see it, the case for applying the s. 19B(2) exception is at least as compelling as it was in Baker.

We conclude that neither Kelley nor the company violated G. L. c. 149, s. 19B(2) [Note 13]. The plaintiff's claim against Kelley and the company for an unlawful termination of his at-will

Page 582

employment thus also fails, as does his claim for a violation of civil rights.

We sum up the results of the plaintiff's appeal. There having been no violation of G. L. c. 6, s. 172, or of G. L. c. 149, s. 19B(2), by Kelley or the company, the order granting summary judgment for those defendants is affirmed. That portion of the order granting summary judgment to Minichielli and the town on the claim for violation of G. L. c. 6, s. 172 (count IV), is reversed, and that claim will be remanded for further proceedings [Note 14]. Because G. L. c. 258, s. 1(c), prohibits the claim against the town for invasion of privacy, the entry of summary judgment for the town on that claim may stand. Because the ruling that there was no violation of G. L. c. 6, s. 172, was the sole basis for the grant of summary judgment to Minichielli and the town on the claim for violation of the Civil Rights Act, G. L. c. 12, s. 11I (count VII), and to Minichielli on the claims for tortious interference with the employment relation (count V) and invasion of privacy (count VI) and because the other issues raised by the defendants have not been ruled on below, the order insofar as it grants summary judgment on those claims is

Page 583

reversed, and the claims will be remanded to the Superior Court for further proceedings.

Therefore, the judgment insofar as it dismisses the claims against Minichielli and the town of Hopedale in count IV for violation of G. L. c. 6, s. 172, dismisses the claim against Minichielli in count VI, and dismisses counts V, VII, and VIII is reversed. The judgment insofar as it dismisses the claims against Kelley and Kelley Consultants, Inc., and the claim against the town of Hopedale in count VI for invasion of privacy is affirmed.

So ordered.

GREENBERG, J. (dissenting in part). I respectfully dissent from part 2 of the majority opinion. General Laws c. 149, s. 19B(2), as appearing in St. 1985, c. 587, s. 1, provides in relevant part that "[i]t shall be unlawful for any employer or his agent, with respect to any of his employees . . . to subject such person to, or request such person to take a lie detector test . . or to discharge . . . such person for the assertion of rights arising hereunder." There follows an exception contained in the second sentence of the statute which permits law enforcement agencies to administer such tests "as may be otherwise permitted in criminal investigations." I dissent because I conclude that in these circumstances the exception was not applicable.

"[A]n exception from the coverage of a statute is ordinarily to be construed narrowly so as to prevent the purposes of the statute from being rendered ineffective." Singer Friedlander Corp. v. State Lottery Commn., 423 Mass. 562 , 565 (1996), quoting from Martin v. Rent Control Bd. of Cambridge, 19 Mass. App. Ct. 745 , 747 (1985). To put it colloquially, an exception not construed narrowly "would swallow the rule." Brum v. Dartmouth, 428 Mass. 684 , 693 (1999). The majority's interpretation of G. L. c. 149, s. 19B(2), allows just that. Under their interpretation, any time a crime is reported at a place of business, any one of that business's employees could be fired for refusing to take a lie detector test, without anything more. I do not believe the Legislature intended this statute to protect so little.

The majority likens the situation here to Baker v. Lawrence, 379 Mass. 322 (1979), a case in which the Supreme Judicial

Page 584

Court held that an investigation, conducted by the administrative head of a municipal police department into a theft of a store allegedly committed by police officers, could include a demand that the officers take a lie detector test. Justice Kaplan explained in Baker that the exception applies to circumstances "where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph to that employee." Id. at 327.

Even so, a grant of adequate immunity was necessary for the employer in Baker, a government agency, to lawfully compel its employees to take a lie detector test [Note Dissent-1]. While the right against self-incrimination is not necessarily raised in circumstances where an employee is compelled by a private employer to testify, all individuals are protected by the United States Constitution and the Massachusetts Declaration of Rights against self-incrimination in any instance where testimony is compelled by the government. See Commonwealth v. McGrail, 419 Mass. 774 , 777 (1995); Commonwealth v. Dormady, 423 Mass. 190 , 193-194 (1996). If the plaintiff was coerced, even by Kelley, to take the lie detector test, then absent an adequate grant of immunity its administration by the police was not "otherwise permitted." Ruling differently allows a law enforcement officer to use this statute to compel testimony in violation of an individual's constitutional rights, simply by involving that individual's employer. This is precisely what appears to have happened here.

The defendants argue that no constitutional rights are implicated because the plaintiff took the test voluntarily, not as a result of police pressure. "In determining whether a statement was made voluntarily, in compliance with due Proccess of law, we examine . . . the totality of the circumstances surrounding the making of the statement," including "all of the relevant

Page 585

circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant." Commonwealth v. Selby, 420 Mass. 656 , 662-663 (1995). Commonwealth v. James, 427 Mass. 312 , 315 (1998). The plaintiff furnished testimony at his deposition indicating threats and pressure exerted by Minichielli and Kelley to obtain his consent to the test. The burden is on the defendants, therefore, to demonstrate that there is no genuine issue of material fact and that as a matter of law the plaintiff freely consented to take the test. For his part, Minichielli points out that the plaintiff testified that Minichielli only suggested that he take the test, that he never told him that he had no choice. Consequently, there was a genuine issue of material fact as to whether the plaintiff's cooperation was compelled. As there is no question that the plaintiff was not offered adequate immunity from criminal prosecution [Note Dissent-2],' viewing the materials in a light most favorable to the plaintiff, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437 , 438 (1995), a fact finder could determine that the administration of the test was proscribed by the statute and that the plaintiff had a right to refuse. I would permit both of the plaintiff's claims to proceed to trial.