Official: OK for state to search employee e-mails

LANSING – The head lawyer for the Michigan Department of Corrections testified Wednesday she sees no problem with searching the e-mail and phone records of large numbers of department employees to find the source of a possible leak to the news media.

"If it's a state computer, there's no issue, because there is no expectation of privacy on a State of Michigan computer," Daphne Johnson testified at a Michigan Civil Service Commission grievance appeal hearing.

It's the second such hearing for Stephen Marschke, the department's former head of internal affairs.

Marschke, a former Berrien County sheriff and chairman of the Michigan Parole Board, alleges he lost his $110,000-a-year job heading internal affairs partly because he refused in 2012 to engage in a "witch hunt" involving the search of computers and phone records of employees in the Detroit area to try to identify a source of leaks to the Free Press about the department releasing dangerous offenders who were committing murders.

The department's No. 2 official, Randall Treacher, testified at the first hearing, in 2012, that Marschke's position was eliminated solely as part of a broader cost-cutting move.

At that time, the hearing officer ruled in favor of the department and against Marschke. But last year an Ingham County judge ordered a new hearing for Marschke after considering new evidence and finding that Treacher may have committed perjury.

Marschke now works for the department in a lower position as a parole and probation officer as he fights the loss of his earlier job.

Treacher is expected to testify on June 22, when the case resumes before hearing officer Matthew Wyman.

Johnson testified she recalls a meeting involving her, Marschke and Deputy Director Charles Sinclair at which Sinclair expressed concern about possible leaks to the news media by Corrections Department employees in the Wayne County area. She said she recalls Sinclair asking Marschke if he could try to find the source by searching computer and phone records.

Marschke's East Lansing attorney, Robert G. Huber, asked Johnson if she knew how many computers would have needed to be searched.

"Probably a lot," she replied, before explaining she didn't see any problem with such a widespread search if Sinclair believed department work rules might have been violated.

Johnson, who is to return to the stand June 22, wasn't asked whether Marschke refused to go along with the search and didn't testify about that.

The hearing was contentious at times, with Huber accusing Johnson of lying in an affidavit she filed for the earlier hearing in which she said the copying of the entire contents of Marschke's computer was standard procedure for departing employees who might be named as defendants in pending litigation.

Johnson maintained that was true, but she also testified the Marschke case was the only time the Department of Technology, Management and Budget delivered a CD with the entire contents of an employee's computer directly to her office.

"We didn't want it to get lost in the mail," said Johnson, who testified she kept the CD sealed and never looked at its contents.

Two officials with unions representing state employees -- Ray Holman of UAW Local 6000 and Nick Ciaramitaro of AFSCME Council 25 -- told the Free Press on Wednesday they agree state employees have no expectation of privacy on a state computer, but that doesn't mean such a widespread search with no specific suspect should be conducted.

"Obviously state employees need to follow the rules and employees have to be held accountable, but ... that sounds like it's going too far," Holman said.

"Just because you're a state employee doesn't mean you don't have constitutional rights."

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.