AN ACT Relating to polygraph examiners; adding a new chapter to Title 18 RCW; creating a new section; 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 may be held exempt from 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 or the director's designee.

(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 director, 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 and administration 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 director shall issue rules for the administration and enforcement of this chapter including, but not limited to, fees, penalties, and examinations and shall prescribe forms that shall be issued in connection therewith.

(2) All fees collected under this chapter shall be in accordance with RCW 43.24.086.

NEW SECTION. Sec. 7. It is unlawful for any person, including a city, county, or state employee, to administer polygraph or other examinations using 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) Consistent with RCW 9.96A.020, who has not been convicted of a felony or a misdemeanor involving criminal violence or moral turpitude during the last ten years. The director shall be permitted to obtain criminal history record information from police agencies;

(3) Who is a graduate of a polygraph examiners course approved by the director;

(4) Who has satisfactorily completed an internship of not less than six months as determined by the director;

(5) 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;

(6) 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

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

(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 before the 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 activities regarding unions or labor organizations;

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

(f) Any question designated by the state human rights commission rule or regulation to be an unfair preemployment inquiry.

(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 five years after administering a polygraph examination all opinions, reports, charts, questions, lists, and all other records relating to the polygraph examination.

(5) Before any polygraph examination, the examinee shall be notified in writing and verbally if necessary by the examiner of the following information:

(a) That no person, firm, corporation, or the state of Washington, its political subdivisions or municipal corporations may require, directly or indirectly, that the examinee take or be subjected to the polygraph examination as a condition of employment or continued employment with the exception of those exemptions as prescribed by state statute;

(b) That he or she has specific rights and remedies if the conduct of any employer or polygraph examiner is not in accordance with this chapter and RCW 49.44.120 through 49.44.135;

(d) 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; and

(e) That he or she has specific legal rights and remedies if the polygraph examination has not been conducted in accordance with this section and RCW 49.44.120 through 49.44.135.

(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 adverse 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. 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 before the effective date of this section, who has conducted at least one hundred fifty examinations, who is using for that purpose the instrumentation prescribed in section 4 of this act, and who satisfies the requirements of section 8 of this act shall, upon application within one hundred eighty days after the effective date of this section and payment of the required license fee, be issued a polygraph examiner's license. The director may require the applicant to submit satisfactory proof that he or she was so engaged.

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 director will enable the qualifications of the applicant to be evaluated.

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 may 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 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 and the production of satisfactory proof that the applicant has complied with sections 8 and 12 (1) and (2) of this act.

NEW SECTION. Sec. 14. (1) The director may issue an internship license to an intern if the intern applies for a license and pays the required fee before the commencement of his or her internship. The application shall contain such information as may be required by the director.

(2) An internship license shall be valid for a term of twelve months. The license may be extended or renewed for one more year upon a showing of extenuating circumstances.

NEW SECTION. Sec. 15. In addition to any other authority provided by law, the director shall have the following authority:

(1) To adopt rules in accordance with chapter 34.04 RCW necessary to implement this chapter;

(2) To set all fees required in this chapter in accordance with RCW 43.24.086;

(3) To establish forms necessary to administer this chapter;

(4) To issue a license to any applicant who has met the education, training, and examination requirements for licensure and deny a license to applicants who do not meet the minimum qualifications for licensure;

(5) To hire clerical, administrative, and investigative staff as needed to implement and administer this chapter and to hire individuals including those licensed under this chapter to serve as examiners or consultants as necessary to implement and administer this chapter;

(6) To maintain the official department record of all applicants and licensees;

(7) To conduct a hearing on an appeal of a denial of a license based on the applicant's failure to meet the minimum qualifications for licensure. The hearing shall be conducted pursuant to chapter 34.04 RCW;

(8) To issue subpoenas, statements of charges, statements of intent to deny licenses, and orders, and to delegate in writing to a designee the authority to issue subpoenas, statements of charges, and statements of intent to deny licenses;

(9) To determine the minimum education and experience requirements for licensure, including but not limited to approval of educational programs;

(10) To prepare and administer or approve the preparation and administration of examinations for licensure;

(11) To establish by rule the procedures for an appeal of an examination failure.

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.

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.

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 director upon payment of the required fee. Failure to renew shall invalidate the license and all privileges granted by the license. 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 of this act. 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, he or she furnishes the director 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 of this act must also be satisfied. Persons failing to renew their licenses for two years shall be required to pass the written examination and pay all fees and penalties before a subsequent license may be issued.

NEW SECTION. Sec. 19. No action or counterclaim may be maintained by any person holding himself or herself out to be a polygraph examiner or intern 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 for the services for which a license is required by this chapter without evidencing that the polygraph examiner had a valid license at the time the agreement was made and the services performed.

NEW SECTION. Sec. 20. The director may impose disciplinary action against a licensee if, following a hearing, the director finds that the licensee has violated any provision of this chapter or any rule adopted under it. Grounds for disciplinary action include, but are not limited to, the following:

(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 not mandatory;

(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. If, following a hearing, the director finds that an applicant or licensee has violated any provision of this chapter or any rule adopted under it, the director may impose one or more of the following penalties:

(1) Denial of a license or renewal;

(2) Revocation or suspension of a license;

(3) A fine of not more than five hundred dollars per violation;

(4) Issuance of a reprimand or letter of censure;

(5) Placement of the licensee on probation for a fixed period of time;

(6) Restriction of the licensee's authorized scope of practice;

(7) Requiring the licensee to make restitution or a refund as determined by the director to any individual injured by the violation; or

(8) Requiring the licensee to obtain additional training or instruction.

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

(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 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 director may impose penalties on the polygraph examiner intern or licensee 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 may the hearing be held fewer 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 may administer oaths and issue subpoenas 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 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, the licensee shall be subject to the penalties set forth in this chapter.

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, for each count.

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 to any individual employed by the United States government while in the performance of 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 chapter shall be known as the polygraph examiners act.

NEW SECTION. Sec. 31. Nothing in this act shall affect the rights, responsibilities, or prohibited actions of any person, firm, corporation, or the state of Washington as delineated in RCW 49.44.120 and 49.44.130.

NEW SECTION. Sec. 32. 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. 33. Sections 1 through 31 of this act shall constitute a new chapter in Title 18 RCW.