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AVOIDING A RECORD OF ALLEGED DISCIPLINARY CHARGES

Posted by: POLC Staff Posted date: October 6, 2017


AVOIDING A RECORD OF ALLEGED DISCIPLINARY CHARGES BY RESIGNATION OR SETTLEMENT NOW PREVENTED BY THE SOON TO BE ENACTED LAW ENFORCEMENT OFFICER SEPARATION OF SERVICE RECORD ACT

                                                                                    By: Peter P. Sudnick, Esq.

The Michigan legislature has overwhelmingly approved a bill to create the Law Enforcement Officer Separation of Service Record Act to mandate that law enforcement agencies maintain a record of the reasons and circumstances surrounding an officer’s separation from service or employment.  This record is in addition to the employment history record a law enforcement agency is already required to maintain under the Michigan Commission on Law Enforcement Standards Act (MCOLES).

Under the bill, the separating officer has a right to review the record of separation and may request a correction or deletion of any portion of the record that appears incorrect.  If the agency and officer disagree, the separating officer may submit a written explanation that becomes part of the record.

If the separating officer later seeks employment with another agency, he or she must execute a waiver that allows the prospective employer to receive the record of separation kept by the former agency.  The former agency upon receipt of the waiver must provide the prospective employer with the record describing the reasons and circumstances for separation of employment.  The former agency is immune from civil liability where it acts in good faith at the time of disclosure.  Under the new act, “good faith” means that the former employer did not knowingly disclose false or misleading information, did not disclose information with a reckless disregard for the truth, or otherwise disclose information that was specifically prohibited by state or federal law.

The impact of this Act will be that a department cannot, as a practical matter, accept a resignation or separation of employment negotiated with the union that prevents disclosure of underlying misconduct, whether proven or unproven, as in the case of alleged disciplinary charges and specifications.  This generate the fear or concern that police unions will be hamstrung in their effort to settle discharge cases.  The number of discharge cases proceeding to arbitration may increase with corresponding costs and varying results.

Senate Bill 223 was introduced by its sponsor, Sen. Rick Jones, to ostensibly address the issue of police officers who are alleged to have engaged in misconduct being allowed to resign and seek employment elsewhere without the alleged misconduct, by virtue of settlement or otherwise, being placed or recorded in their personnel files.  Subsequently, prospective law enforcement agencies are purportedly without knowledge of the misconduct that led to separation thereby allowing so-called “bad officers” to continue in employment elsewhere.  It is argued, as stated above, that unions representing the interest of separated officers will not be as likely to settle discharge cases by resignation contingent on the employer’s promise to drop any alleged charges and keep the personnel file without taint.  It is further argued on the union’s side that the disclosure of alleged misconduct after an officer has resigned will make it appear that the officer was guilty without the benefit of a hearing.  Consequently, this bill is likely to increase the number of discharge cases that, instead of being settled by resignation, move to arbitration.

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