AN ACT Relating to polygraph examiners; adding a new chapter to Title 18 RCW; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. This chapter may be known and cited as the polygraph examiners act.

NEW SECTION. Sec. 2. It is the purpose of this chapter to regulate all persons who purport to be able to detect deception or to verify truth of statements through the use of instrumentation such as lie detectors, polygraphs, deceptographs, or similar or related devices and instruments, without regard to the nomenclature applied thereto. This chapter shall be liberally construed to regulate all such persons and instruments. No person who purports to be able to detect deception or to verify truth of statements through instrumentation shall be held exempt from the provisions of this chapter because of the terminology that he or she may use to refer to himself or herself, to his or her instrument, or to his or her services.

NEW SECTION. Sec. 3. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of licensing.

(2) "Director" means the director of licensing.

(3) "Internship" means the study of polygraph examinations, and of the administration of polygraph examinations by a trainee under the personal supervision and control of a polygraph examiner in accordance with a course of study prescribed by the board, and the commencement of such internship.

(4) "Person" means any natural person, firm, association, copartnership, or corporation.

(5) "Polygraph examiner" means any person who purports to be able to detect deception or verify truth of statements through the instrumentation or use of a mechanical device.

(6) "Polygraph examination" means a minimum of two charts administered to any one subject, and each relevant question shall be asked a minimum of two times to constitute a polygraph examination.

NEW SECTION. Sec. 4. Any instrument used to test or question individuals for the purpose of detecting deception or verifying truth of statements shall record visually, permanently, and simultaneously: (1) A subject's cardiovascular pattern; (2) a subject's respiratory pattern; and (3) a subject's electrodermal response. Patterns of other physiological changes in addition to those in subsections (1), (2), and (3) of this section may also be recorded. The use of any instrument or device to detect deception or to verify truth of statements that does not meet these minimum instrumentation requirements is hereby prohibited and the operation or use of such equipment is subject to penalties and may be enjoined in the manner provided in this chapter.

NEW SECTION. Sec. 5. The director of licensing may appoint a polygraph examiner's advisory committee to assist with the implementation of this chapter. Committee members shall be reimbursed for travel expenses pursuant to RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 6. (1) The department shall issue rules consistent with this chapter for the administration and enforcement of this chapter and shall prescribe forms that shall be issued in connection therewith.

(2) All fees collected under this chapter shall be paid to the state treasurer. Funds necessary for the enforcement of this chapter and the administration of its provisions shall be appropriated by the legislature, but the funds so appropriated for a biennium shall not exceed the total amount of the fees that are anticipated to be collected under this chapter, during the biennium.

(3) The fees collected during the first biennium shall go to the administration of this chapter.

NEW SECTION. Sec. 7. It is unlawful for any person, including a city, county, or state employee, to administer polygraph or other examinations utilizing instrumentation for the purpose of detecting deception or verifying truth of statements, or to advertise as a polygraph examiner, or to refer to himself or herself by any other title that would indicate or that is intended to indicate, or calculated to mislead members of the public into believing that he or she is qualified to apply instrumentation to detect deception, or to verify truth of statements without first securing a license as provided in this chapter.

NEW SECTION. Sec. 8. A person is qualified to receive a license as an examiner:

(1) Who is at least twenty-one years of age;

(2) Who establishes that he or she is a person of honesty, truthfulness, integrity, and moral fitness;

(3) Who has not been convicted of a felony or a misdemeanor involving criminal violence or moral turpitude. The board shall be permitted to obtain criminal history record information from police agencies;

(4) Who is a graduate of a polygraph examiners course approved by the American polygraph association;

(5) Who has satisfactorily completed an internship of not less than six months as required by the department;

(6) Who has passed an examination that shall include a review of applicable state laws concerning the polygraph, conducted by the department or under its supervision, to determine his or her competency to obtain a license to practice as an examiner;

(7) Who certifies that he or she will respond to judicial process served on the director by courts of competent jurisdiction within the state and provides the department with an up-to-date address; and

(8) (a) Who has a four-year degree from a full four-year accredited university or college recognized as such by the department;

(b) Who has completed two years of study, or its equivalent, at such a university or college with two years of experience as an investigator or detective with a municipal, county, state, or federal agency; or

(c) Who has at least five years' experience as an investigator or detective with a municipal, county, state, or federal agency.

NEW SECTION. Sec. 9. (1) A polygraph examiner shall not ask a question during a polygraph examination unless such question is in writing and has been reviewed with the examinee prior to such examination.

(2) A polygraph examiner shall not inquire into any of the following areas during an examination:

(a) Religious beliefs or affiliations;

(b) Beliefs or opinions regarding racial matters;

(d) Beliefs, affiliations, or lawful activities regarding unions or labor organizations; or

(e) Sexual preferences or activities unless the topic is a specific issue, or unless it is a basic matter pertinent to the examination.

(3) All conclusions or opinions of the polygraph examiner arising from the polygraph examination shall:

(a) Be based solely on polygraph chart analysis;

(b) Contain no information other than admissions to relevant issues and interpretation of the chart data; and

(4) A polygraph examiner shall preserve and keep on file for a minimum of two years after administering a polygraph examination all opinions, reports, charts, questions, lists, and all other records relating to the polygraph examination.

(5) Each prospective examinee shall be required to sign a notification prior to the beginning of a polygraph examination that contains the following information:

(a) That he or she is consenting voluntarily to take the examination, with the exception of those exemptions as prescribed by state or federal statute;

(b) That he or she may terminate the examination at any time;

(c) That, upon written request, he or she shall be provided with a written copy of any opinions or conclusions rendered as a result of the examination for a reasonable fee established by the department;

(d) That he or she has specific legal rights and remedies if the polygraph examination has not been conducted in accordance with section 5 of this act; and

(e) That, upon request, he or she may receive a written copy of the notification.

(6) A polygraph examiner shall, upon written request from the examinee, provide the examinee with a written copy of all opinions or conclusions rendered and signed by the polygraph examiner with respect to the examinee's polygraph examination for a reasonable fee as established by the department.

(7) No action may be taken by an employer regarding the employment status of an employee or an applicant for employment that is based solely on opinions or conclusions of a polygraph examiner reached by analysis of a polygraph chart produced during the examination of the employee or applicant for employment.

NEW SECTION. Sec. 10. On the effective date of this act, any person who has actually been engaged in the occupation, business, or profession of a polygraph examiner in the state for a period of at least two years, and conducted at least two hundred examinations, and who is using for that purpose the instrumentation prescribed in section 4 of this act, shall, upon application within ninety days after the effective date of this act and payment of the required license fee, be issued a polygraph examiner's license that is effective no longer than one year from the date of issuance. However, the board may require the applicant to submit satisfactory proof that he or she is so engaged. The applicant must also satisfy the requirements of section 8 (1) through (4), (6), and (8) of this act.

NEW SECTION. Sec. 11. Applications for an original license shall be made to the director in writing under oath on forms prescribed by the department and shall be accompanied by the required fee, which is not refundable. Any application shall require sufficient information as in the judgment of the department will enable it to pass on the qualifications of the applicant for a license.

NEW SECTION. Sec. 12. (1) Each nonresident applicant for an original license or a renewal shall file with the department an irrevocable statement of consent stating that actions against the applicant may be filed in any appropriate court of any county or municipality of the state in which the plaintiff resides or in which some part of the transaction occurred out of which the alleged cause of action arose and that process on any such action may be served on the applicant by leaving two copies thereof with the director. The consent statement shall stipulate and agree that the service of process shall be taken and held to be valid and binding for all purposes. The director shall send one copy of the service of process to the applicant at the address shown on the records of the department by registered or certified mail.

(2) Nonresident applicants must satisfy the requirements of section 8 of this act.

(3) Nothing in this chapter shall prevent a polygraph examination of a person as part of a judicial proceeding by court order if the examination is conducted by a nonresident examiner who establishes to a court of competent jurisdiction his or her qualifications at the time the order is requested.

The court shall consider the basic qualifications set forth in section 8 of this act in determining whether or not to grant the order. In granting the order the remainder of the requirements of this chapter may be waived.

NEW SECTION. Sec. 13. An applicant who is a polygraph examiner licensed under the laws of another state or territory of the United States may be issued a license without examination by the department, in its discretion, upon payment of a fee of two hundred dollars and the production of satisfactory proof that:

(1) The applicant is at least twenty-one years of age;

(2) The applicant is of good moral character;

(3) The licensing requirements of the polygraph examiner in the other state or territory are recognized by the department, and are, at the date of the applicant's licensing, substantially equivalent to the requirements in force in this state;

(4) The applicant had lawfully engaged in the administration of polygraph examinations under the laws of the other state or country for at least two years and administered three hundred examinations prior to application for a license under this chapter;

(5) The other state or country grants similar reciprocity to license holders of this state;

(6) The applicant has complied with section 12 of this act;

(7) The applicant is familiar with the laws of this state concerning use of the polygraph; and

(8) The applicant certifies that he or she will respond to judicial process served on the director by courts of competent jurisdiction within the state and provides the department with an up-to-date address.

NEW SECTION. Sec. 14. (1) Upon approval by the department, the director shall issue an internship license to a trainee if the trainee applies for a license and pays the required fee within ten days prior to the commencement of his or her internship. The application shall contain such information as may be required by the department. A temporary intern license may be issued by the director for not more than six months upon payment of the necessary fee.

(2) An internship license shall be valid for a term of twelve months from the date of issue. Upon good cause shown to the department, the license may be extended or renewed for any term not to exceed twelve months.

(3) Upon a showing of extenuating circumstances, the trainee may petition the department for an additional extension.

NEW SECTION. Sec. 15. (1) The fee to be paid by an applicant for an examination to determine his or her fitness to receive a polygraph examiner's license is fifty dollars, which is not credited as payment against the license fee.

(2) The fee to be paid for an original polygraph examiner's license is fifty dollars.

(3) The fee to be paid for an internship license is thirty-five dollars.

(4) The fee to be paid for the issuance of a duplicate polygraph examiner's license is ten dollars.

(5) The fee to be paid for a polygraph examiner's renewal license is fifty dollars.

(6) The fee to be paid for the extension or renewal of an internship license is fifty dollars.

(7) The fee to be paid for a duplicate internship license is ten dollars.

(8) The fees required by this chapter may be paid by the governmental agency employing the examiner.

NEW SECTION. Sec. 16. A license or duplicate license shall be prominently displayed at the place of business of the polygraph examiner or at the place of internship. Each license shall be signed by the director and shall be issued under the seal of the department.

NEW SECTION. Sec. 17. Notice in writing shall be given to the director by the licensed examiner of any change of principal business location within thirty days of the time the examiner changes the location. A change of business location without notification to the director shall automatically suspend the license issued under this chapter.

NEW SECTION. Sec. 18. Each polygraph examiner's license shall be issued for the term of one year and shall, unless suspended or revoked, be renewed annually as prescribed by the department. A polygraph examiner whose license has expired may at any time within two years after the expiration thereof obtain a renewal license without examination by making a renewal application therefor and satisfying section 8 (2) and (3) of this act. However, any polygraph examiner whose license expired while he or she was in the federal service on active duty with the armed forces of the United States or the national guard called into service or training, or in training or education under the supervision of the United States preliminary to induction into the military service, may have his or her license renewed without examination if, within two years after the termination of such service, training, or education except under conditions other than honorable, he or she furnishes the board with an affidavit to the effect that he or she has been so engaged and that his or her service, training, or education has been so terminated. Section 8 (2) and (3) of this act must also be satisfied.

NEW SECTION. Sec. 19. No action or counterclaim shall be maintained by any person holding himself or herself out to be a polygraph examiner in any court in this state with respect to any agreement or service for which a license is required by this chapter, or to recover the agreed price of any compensation under the agreement, or for the services for which a license is required by this chapter without alleging and proving that the person had a valid license at the time the agreement was made or the services performed.

NEW SECTION. Sec. 20. The department may refuse to issue or may suspend or revoke a license on any one or more of the following grounds:

(1) Failing to inform a subject to be examined of the nature of the examination;

(2) Failing to inform a subject to be examined that his or her participation in the examination is voluntary;

(3) Making a material misstatement in the application for an original license or in the application for any renewal license under this chapter;

(4) Wilfully disregarding or violating this chapter or any rule issued pursuant to this chapter, including, but not limited to, wilfully making a false report concerning an examination for polygraph examination purposes;

(5) If the holder of any license has been adjudged guilty of the commission of a felony or misdemeanor involving criminal violence or moral turpitude;

(6) Making any wilful misrepresentation or false promises or causing to be printed any false or misleading advertisement for the purpose of directly or indirectly obtaining business or trainees;

(7) Having demonstrated unworthiness or incompetency to act as a polygraph examiner as defined by this chapter;

(8) Allowing one's license to be used by any unlicensed person in violation of this chapter;

(9) Wilfully aiding or abetting another in the violation of this chapter or any rule issued pursuant thereto;

(10) Where the license holder has been adjudged mentally incompetent;

(11) Failing, within a reasonable time, to provide information requested by the director as the result of a formal complaint to the department that would indicate a violation of this chapter;

(12) Failing to inform the subject of the results of the examination if so requested;

(13) Failing to abide by the code of professional ethics promulgated by the board;

(14) Failing to respond to a notice to appear before the director to answer a complaint when the notice is issued by the department; and

(15) Failing to respond to judicial process duly served on the examiner or upon the director.

NEW SECTION. Sec. 21. Any unlawful act or violation of any of the provisions of this chapter on the part of any polygraph examiner or trainee shall not be cause for revocation of the license of any other polygraph examiner for whom the offending examiner or trainee may have been employed, unless it appears to the satisfaction of the department that the polygraph examiner-employer has wilfully aided or abetted the illegal actions or activities of the offending polygraph examiner or trainee.

NEW SECTION. Sec. 22. Each polygraph examiner shall register with the county clerk in the county in which the examiner maintains a business address. The county clerk of each county shall maintain a list of all polygraph examiners registered in the county.

NEW SECTION. Sec. 23. (1) Any person may file charges of misconduct against a licensed examiner with the department.

(2) If there is cause to refuse an application or to suspend or revoke the license of any polygraph examiner or intern, the department shall, not less than thirty days before action is taken, notify the person in writing, in person, or by certified mail at the last address supplied to the department by the person, of the impending refusal, suspension, or revocation, the reasons therefor, and of the right to an administrative hearing for the purpose of determining whether or not the evidence is sufficient to warrant the action proposed to be taken by the department. If, within twenty days after the personal service of the notice or the notice has been deposited in the United States mail, the person has not made a written request to the department for an administrative hearing, the department may suspend or revoke the polygraph examiner's license of the person without a hearing. Upon receipt by the department of the written request of the person within the twenty-day period, an opportunity for an administrative hearing shall be afforded as early as is practicable. In no case shall the hearing be held less than ten days after written notification thereof, including a copy of the charges, has been given the person by personal service or by certified mail sent to the last address supplied to the department by the applicant or licensee.

(3) The department shall conduct the administrative hearings and it is authorized to administer oaths and issue a subpoena for the attendance of witnesses and the production of relevant books, papers, documents, etc. On the basis of the evidence submitted at the hearing, the department shall take whatever action it deems necessary in refusing the application, or suspending or revoking the license.

NEW SECTION. Sec. 24. Any person dissatisfied with the action of the department in refusing his or her application or suspending or revoking his or her license, or any other action of the department, may appeal the action of the department by filing a petition within thirty days thereafter in the superior court in the county in which the person resides or in the superior court of Thurston county. The court is vested with jurisdiction and it shall be the duty of the court to set the matter for hearing upon ten days' written notice to the department and the attorney representing the department. The court in which the petition of appeal is filed shall determine whether or not a cancellation or suspension of a license shall be abated until the hearing has been consummated with final judgment or whether any other action of the department should be suspended pending hearing. The court shall enter its order accordingly, and it shall be operative when served upon the department. The appellant shall provide the attorney representing the department with a copy of the petition and order. The department shall be represented in such appeals by the prosecuting attorney of the county or the attorney general, or any of their assistants. The department shall initially determine all facts, but the court upon appeal shall set aside the determination of the department if the department's determination: (1) Is not based upon substantial evidence upon the entire record; (2) is arbitrary or capricious; (3) is in violation of statutory requirements; or (4) was made without affording due process of the law to the licensee or applicant.

NEW SECTION. Sec. 25. Upon the revocation or suspension of any license, the licensee shall surrender the license or licenses to the director. Failure of a licensee to do so shall be a violation of this chapter and upon conviction, shall be subject to the penalties set forth in this chapter. At any time after the suspension or revocation of any license, the director shall restore it to the former licensee, upon the written recommendations of the board.

NEW SECTION. Sec. 26. If any person violates any provisions of this chapter, the director shall, in the name of the state of Washington, through the attorney general, apply in any superior court of competent jurisdiction, for an order enjoining the violation or for an order enforcing compliance with this chapter. Upon the filing of a verified petition in the court, the court, or any judge thereof, if satisfied by affidavit or otherwise that the person has violated this chapter, may issue a temporary injunction without notice or bond, enjoining the continued violation. If it is established that the person has violated or is violating this chapter, the court, or any judge thereof, may enter a decree perpetually enjoining the violation or enforcing compliance with this chapter. In case of violation of any order or decree issued under this section, the court, or any judge thereof, may try and punish the offender for contempt of court. Proceedings under this section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this chapter.

NEW SECTION. Sec. 27. Any person who violates this chapter by conducting examinations without a license as provided by this chapter or any person who falsely states or represents that he or she has been or is a polygraph examiner or trainee or that he or she is qualified to apply instrumentation to the detection of deception or verification of truth of statements shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars or by imprisonment in the county jail for a term of not to exceed six months, or both.

NEW SECTION. Sec. 28. (1) This chapter shall not apply to any person who uses a polygraph for the sole purpose of conducting scientific, medical, or academic research or experiments. Results of this research or experiments shall be used exclusively for academic, medical, or scientific pursuits and shall not be used for specific employment, law enforcement, or public safety objectives.

(2) This chapter does not apply with respect to any individuals who are employed by the United States government while in the performance of their assigned duties.

NEW SECTION. Sec. 29. If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 30. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.

NEW SECTION. Sec. 31. Sections 1 through 29 of this act shall constitute a new chapter in Title 18 RCW.