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Employees cautioned about LEIN misuse in discipline cases

Posted by: Jennifer Foley Posted date: January 21, 2015


— By Jennifer Foley, POJ Editor

Police officers and dispatchers are well versed in the legal use of the Law Enforcement Information Network (LEIN) system and know misuse of it is a crime and can result in discipline, termination and even criminal prosecution.

According to PA 163 of 1974, “A person shall not access, use, or disclose nonpublic information governed under this act for personal use or gain.” It also states, “A person shall not disclose information governed under this act in a manner that is not authorized by law or rule.” That statute establishes a policy council within the Michigan State Police (MSP) that writes LEIN use policy and rules.

But while Employers are required to train officers and dispatchers in the correct and legal way to use the system, it is not uncommon for employers to make light of the illegal use of LEIN, said POLC Labor Attorney Brendan Canfield.

POLC Labor Attorney Tom Zulch, a former Berkley Police Officer, recalls spending about 10 minutes taking a LEIN test after reviewing the answers. He said this easygoing attitude could lead employees to falsely believe a violation of LEIN use will not have serious repercussions. “No one’s going to fail that test going in – it’s not taken seriously, but when there is a LEIN violation the employer might take it seriously suddenly,” Canfield said.

A person who “intentionally violates” LEIN laws or policy “is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500 or both. “In many instances, when there’s a LEIN violation, many employers understand that the LEIN violation, despite being technically a criminal misdemeanor, just isn’t that big of a deal. The employer might give the employee a slap on the wrist with a written reprimand,” Canfield said. “The officer should know some LEIN violations are a big deal, but sometimes people violate LEIN on accident.”

He explained that a driver could ask if his license is suspended and if the officer looks it up to do him a favor, the unwarranted LEIN use could be used against the officer. This is especially true when an employer is looking for a way to discipline or even terminate an employee. Canfield said sometimes employers use LEIN violations coupled with other allegations and rule violations. “In these instances, the employer might trump up even a relatively innocuous LEIN violation, done with intent to harm or harass anyone, to make them seem much more serious than they are,” Canfield said. “Employers then might go on a fishing expedition and search years of the employee’s LEIN inquiries to look for additional violations.”

Another problem that can arise is an inexperienced arbitrator may uphold these violations when MSP representatives testify at disciplinary arbitrations. The employer is required to notify MSP if they become aware of a LEIN violation and MSP determines whether there is a LEIN violation. “The employer will ask questions and MSP will say stuff like it’s a criminal violation to make it sound as bad as possible,” Canfield said. “The lesson is that, even though LEIN training may not be taken seriously by the employer, that doesn’t mean the employer won’t suddenly take the LEIN rules very seriously to support discipline.”

“There’s always the threat that the State Police has the authority to pull the LEIN system from the department. That’s part of the statute, but like in one case where we got a reduction, the State Police admitted they’ve never pulled anybody’s LEIN system,” Zulch said. “It would completely interfere with any of the work they’re trying to do, but there’s always that threat. The chiefs like to point that out when they discipline but it’s not reality when it comes down to it.”

NOTEWORTHY POLC LEIN CASES

  • An Oakland Community College Officer searching for a student wanted on a felony warrant  went to a class where the student was expected to show up. He told the professor the student had a felony warrant and he should advise them if he shows up for class. “That’s releasing LEIN information to a third party,” Zulch said. “You would think you’d want to warn a professor,” however, Zulch said, “It’s a violation.” The OCC officer was given a suspension, which the POLC grieved and it was later reduced to a written reprimand.
  • An employee of the Allegan County Sheriff’s Department was terminated for LEIN violations, which occurred several years prior. The 18-year Deputy Sheriff received written reprimands and suspensions for various violations. She was accused of running nine LEIN checks over several years on a friend of hers who wanted to make sure he had an accurate application for military purposes. The officer also ran a LEIN checks twice on the man’s girlfriend. “They didn’t find out until four or five years after she did it and they still fired her,” Zulch said. “They had other issues with her and she had quite lengthily discipline. The LEIN violation was the main charge that everything surrounded.”
  • A Saugatuck-Douglas Police Officer had his 14-day suspension reduced to a 7-day suspension without pay and benefits by an arbitrator. The officer was suspended because he ran a LEIN check on a friend of his brothers after the man in question left a note threatening suicide. His brother was concerned about his friend’s safety and didn’t know if he could get into trouble by being in the friend’s presence since there were potential warrants for his arrest. The officer ran a LEIN check on the suicidal man and found out a LEIN was already entered because he was a missing/endangered person and potentially armed. He also discovered there were no outstanding warrants for his arrest, which the officer notified his brother about. The arbitrator ruled that since the officer disclosed LEIN information to a third party, his “actions violated state law and the employer’s policy.” However, the arbitrator said, “He clearly was motivated by humanitarian objectives. Stated another way, he did not access the LEIN out of idle curiosity, but rather to go to the aid of a man who was threatening suicide.”

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