LANSING — A judge has found that the No. 2 official at the Michigan Department of Corrections may have committed perjury when he testified at a civil service hearing about his role in the firing of another corrections official two years ago.

Ingham County Circuit Judge James Jamo ordered the state Civil Service Commission to hold a new hearing in the case after finding that MDOC Chief Deputy Director Randall Treacher’s testimony at a 2012 hearing was at odds with Corrections Department documents that have since been uncovered.

The Civil Service Commission last week appealed Jamo’s ruling to the Michigan Court of Appeals, saying the judge “improperly substituted (his) judgment for the commission’s.”

The case involves the termination of Stephen Marschke, who was removed as head of internal affairs at the MDOC in May 2012 and escorted out of his state government office in Lansing.

The state called it a cost-cutting move, butMarschke maintains he was fired from his $110,000-a-year-job because he was a whistle-blower who complained the MDOC was releasing dangerous criminals without adequate supervision. He also said he refused to conduct a sweeping search of employee computers to determine who was leaking stories to the Free Press.

The newspaper wrote a series of articles in 2012 about high-profile crimes committed by parolees and probationers under the department’s supervision.

At a hearing late in 2012 before a Civil Service Commission administrative hearing officer, Treacher — then a deputy director who later was promoted to chief deputy director — testified he couldn’t recall whether Marschke’s computer was searched after Marschke’s removal.

Treacher also said he never instructed the department’s head of legal affairs, Daphne Johnson, to collect Marschke’s computer.

“No, and I don’t know why I would,” Treacher said when asked about giving instructions to Johnson.

But Marschke’s attorney, Robert G. Huber, later filed a Michigan Freedom of Information Act request and found Treacher signed documents in four places the day after Marschke’s removal related to a confidential investigation and a search of e-mails and other records on Marschke’s computer going back to January 2011.

“The documents appear to show something different than what he testified to,” Jamo said Aug. 5 when he sent the case back to the Civil Service Commission to consider additional evidence.

“There is a fundamental flaw in the record if it is based on false, or, should I say perjured testimony,” Jamo said.

Huber went to the circuit courtin April after the Civil Service Commission upheld the hearing officer’s rejection of Marschke’s arguments and refused to reopen the case.

At a June hearing in front of Jamo, Huber said the evidence he received through the FOIA shows Treacher “basically covered up the fact of the investigation” related to Marschke. “He didn’t want us to know about it.”

The Civil Service Commission, represented by Assistant Attorney General Jason Hawkins, opposed the motion to reopen the case at the June hearing. He said Marschke had already asked the commission to accept the new evidence and reconsider the case.

“The commission determined that it didn’t need that evidence to reach its decision.”

Hawkins hit on those arguments again in his appeal filed Aug. 26, saying Jamo “should have recognized that Marschke’s motion was simply a collateral attack on part of the commission’s decision,” and should have been rejected.

In response to Huber’s request to the commission to reopen the Marschke case, Johnson, the legal affairs chief, signed an affidavit that said she instructed staff to put a routine “litigation hold” on Marschke’s computer — meaning the department seized it in order to identify and preserve anything relevant to ongoing lawsuits involving the department.

“To the best of my knowledge … there was no investigation regarding (Marschke’s) computer,” Johnson said in the affidavit.

But Huber argued the litigation hold makes no sense because Marschke was involved in lawsuits from 2007 and 2009 — well outside the time frame cited in the search of his computer.

“Now, both of them can’t be telling the truth, and I don’t know who is and who isn’t telling the truth here,” Huber told the judge. “But I do know that what Mr. Treacher said in his testimony contradicts the documents that he signed and what happened.”

Huber said the evidence suggests Treacher and other officials disliked Marschke because they viewed him as “not a team player” and decided “the best way to get him out would be to abolish his position, have him escorted out, which is unprecedented for a person at his level, and then access his computer.”

Corrections Department spokesman Russ Marlan declined to comment, citing the ongoing litigation.

Source: http://www.freep.com/