A polygraph exam which revealed a former Colorado State Patrol captain is gay has forced CSP to change its policies.
In a critical 50-page report, an administrative law judge with the state personnel board found that CSP must "immediately incorporate sexual orientation into all existing diversity training programs" and "immediately designate a command-level point-of-contact for gay Patrol members."
A former captain seeking reinstatement to be a trooper was given a polygraph exam in May of 2010 that included a question which revealed he had a gay sexual encounter. The question itself violated polygraph policy. CSP determined the former captain failed his polygraph exam because he had a "significant reaction" to a question on illegal sexual conduct. State Patrol did not rehire the former captain based on his failed polygraph exam.
According to the state investigation, failing a polygraph exam is not reason enough to not hire a potential candidate. The state investigation also found other new hire and rehire candidates who were accepted despite failing their polygraph exams.
Jim Davis, the executive director of the Colorado Department of Public Safety, said Wednesday afternoon that the agency disagrees with the judge's decision and plans to appeal.
"We do not believe there is discrimination in the State Patrol or anywhere in the Department of Public Safety, based upon sexual orientation, which is why we are appealing the judge's ruling," said Davis.
However, Davis said the department is already planning to comply with some of the judge's orders, calling the requirements "a good idea."
He said new diversity training will address sexual orientation, and he will designate a command level point-of-contact for gay employees.
"I think it's a good idea," Davis said. "I think that this whole episode has brought to light an opportunity for us in DPS to conduct additional training and to look at the training we've been giving our employees."
He would not address the specific details of the judge's ruling or the former captain's case, citing legal concerns.
However, when asked if the person administering the polygraph should have questioned the trooper about sexual orientation, Davis said: "The facts of this case highlight our need to re-address some of what we do in the department, and that would include looking at our training as it relates to diversity and specifically to sexual orientation."
The former captain worked for CSP for 12 years. Throughout his career he received positive reviews.
In 2008, he witnessed and later filed a complaint about a "public any-gay incident." At an in-service training at the Patrol Training Academy, he said another Captain "put on a riot helmet with bunny ears taped to it, put on a tiger-print Speedo swimsuit over his pants, filled the crotch area with a rag, put a loufa on his buttocks as a tail, and pranced around the room lisping, mimicking a flamboyant gay male."
According to the report, he was "terrified about his sexual orientation being revealed in the Patrol."
His biggest fear was "if other Troopers learned of his sexual orientation, it would change how others perceived and treated him, potentially creating a personal safety hazard."
The report references rumors spreading about his sexual orientation between other CSP personnel.
He resigned in February 2010 to become a helicopter pilot, but sought reinstatement by the end of May.
He said he was told by a Major that if he sought reinstatement the process would not involve a background investigation or polygraph.
When he applied to be rehired, he was required to do both.
As part of the background investigation, he was required to fill out a self-certification form, which "contains detailed questions regarding illegal substance abuse, driving history, employment history and criminal history."
One of the questions asked, "Since the age of 18, have you ever been involved in the making, viewing, possessing, marketing or distributing of child pornography in any form?"
He admitted to being on a pornographic website and watching a video that he believed included a young couple that was younger than 18. He said he stopped watching the video after a few seconds and flagged the website about its content. He believed that he may have "inadvertently viewed child pornography."
When he took his polygraph exam, he was asked the one issue he did not want to talk about, that is embarrassing. He brought up the website where he potentially viewed child pornography.
Later in the exam, he admitted seeing a massage therapist in Thailand which ended in sexual contact.
The sergeant administering the exam asked, "Okay, a female, male?" He responded, "Male."
According to the Patrol polygraph exam policy, "the following issues are not to be used as a sole basis of an investigation; therefore, no questions are to be formulated or asked pertaining to these issues unless so directed by the court of the State Attorney General's office:" -Religious beliefs or affiliations
-Beliefs or opinions regarding racial matters
-Political beliefs or affiliations
-Beliefs regarding union or labor organizations
According to the report, CSP determined he failed the polygraph exam because he had a "significant reaction to the illegal sexual conduct question."
A "significant response" is also considered a deception.
The former captain admitted to the administrative law judge that he was withholding information about his sexual orientation. "He thought about the fact that he had just revealed a sexual encounter with another man and he had concealed his true sexual orientation from the Patrol for over 12 years. Complainant decided he was unwilling to make any additional statements about his sexual orientation that would enable (the sergeant) to tell others he had 'admitted to being gay' during the polygraph test."
He was told he was not going to be rehired based on his failed polygraph exam.
According to the report, a failed polygraph exam alone is not an acceptable reason to not hire a potential candidate.
The report points out other new hire and reinstatement candidates who failed polygraph exams, but were hired nonetheless.
But it also found "The anti-gay culture in the Patrol is well documented in this case," writes Judge Mary McClatchey in her report dated July 16. "There are no openly gay members of the Patrol."
McClatchey finds "the depth of (the) anti-gay culture permeating the organization at the command level. The clear presumption of all Captains and others (in the training) was that it was acceptable to publically denigrate homesexuality at the highest level of the organization."
"The Patrol condones routine use of anti-gay slurs such as 'f*****'. It has never trained its line or command members on sexual orientation discrimination; the subject remains taboo. Through its failure to decisively enforce its anti-discrimination policy, it has condoned anti-gay comments and behavior.." McClatchey writes.
In addition to changing CSP policies, the administrative law judge determined that, "reinstatement as a Trooper is not a viable option," so she awarded front pay to the former captain. The amount of pay will be determined following another hearing.
When reached by 7NEWS Tuesday night, Colorado State Patrol spokesman Trooper Nate Reid said, "CSP is aware of it and is just now digesting the response to the findings and will be able to put something in writing tomorrow."
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