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Attorney General calls for criminal investigation of CCA understaffing at Idaho prison

The Idaho attorney general's office is calling for a criminal investigation into Correction Corporation of America's understaffing of the Idaho Correctional Center after learning that a police investigation announced last year was never done, the AP reports. Attorney General Lawrence Wasden wrote the letter to Idaho Gov. C. L. “Butch” Otter and the heads of the state police, Department of Correction and the Ada County prosecutor's office Friday. The Associated Press obtained the letter through a public records request.

In it, Wasden said there appears to be a “large degree of confusion” into whether, based on a forensic audit that showed thousands of hours of guard posts being left unstaffed, an investigation into alleged criminal wrongdoing should be conducted. “To ensure that there is no confusion going forward, I recommend that this matter be immediately referred to the Idaho State Police and the Ada County Prosecuting Attorney's Office for an investigation of any criminal wrongdoing,” Wasden wrote.

In a reply letter delivered by hand on Friday, Otter told Wasden thanks but no thanks. Click below for a full report from AP reporter Rebecca Boone, including a timeline of what state officials said when; the criminal investigation was announced Feb. 5, 2013, and in the year since then, it's been pointed to in testimony in federal court, in a judge's order, and in official denials from the state Department of Correction of public records requests, saying no information could be released because the matter was under a pending criminal investigation. ISP's chief now says he decided early in 2013 that the matter was civil and didn't pursue a criminal investigation.


Idaho attorney general seeks prison investigation
By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) — The Idaho attorney general's office is calling for a criminal investigation into Correction Corporation of America's understaffing of the Idaho Correctional Center after learning that a police investigation announced last year was never done.

Attorney General Lawrence Wasden wrote the letter to Idaho Gov. C. L. “Butch” Otter and the heads of the state police, Department of Correction and the Ada County prosecutor's office Friday. The Associated Press obtained the letter through a public records request.

In it, Wasden said there appears to be a “large degree of confusion” into whether, based on a forensic audit that showed thousands of hours of guard posts being left unstaffed, an investigation into alleged criminal wrongdoing should be conducted.

“To ensure that there is no confusion going forward, I recommend that this matter be immediately referred to the Idaho State Police and the Ada County Prosecuting Attorney's Office for an investigation of any criminal wrongdoing,” Wasden wrote.

In a reply letter delivered by hand on Friday, Otter told Wasden thanks but no thanks.

“There does seem to be some public confusion, fomented by media reports, about the degree to which the Idaho State Police (ISP) was involved in assessing potential criminal wrongdoing in Corrections Corporation of America's (CCA) operations at the Idaho Correctional Center (ICC),” Otter wrote in the letter.

The governor went on to state that both the Correction Department and the state police regularly assessed “for indications of criminal wrongdoing” the materials that had been collected for a forensic audit ordered by the state on the staffing matter. State police also consulted with the Ada County prosecutor, Otter said.

“Therefore, both ISP and the Ada County Prosecuting Attorney's Office have been involved, as have Deputy Attorney General Mark Kubinski representing IDOC, and, to a lesser degree, Deputy Attorney General Stephanie Altig representing ISP,” Otter wrote. “Thank you again for your recommendation.”

The Idaho Department of Correction asked the Idaho State Police to investigate any criminal wrongdoing last year after The Associated Press reported that there appeared to be anomalies in staffing reports that Correction Corporation of America was giving the state. Those reports showed some correctional officers working for as long as 48 hours straight to fill mandatory guard posts required under CCA's $29 million state contract.

The state hired an auditing firm, KPMG, which determined that Nashville, Tenn.-based CCA left more than 26,000 hours of mandatory guard posts unstaffed or inadequately covered during 2012. CCA has agreed to pay the state $1 million for the understaffing, but the company is contesting the KPMG report, which CCA claims has several errors.

Throughout the past year, officials with the Idaho Department of Correction have said repeatedly that the Idaho State Police's criminal investigation was underway. A federal judge even cited the police investigation in a contempt of court ruling against CCA, saying he wasn't going to take certain steps in his order because he didn't want to interfere with an ongoing criminal investigation.

But after The Associated Press filed a public record request last week asking for a copy of the Idaho State Police's investigation report, the agency revealed it had no records at all of an investigation because none had occurred.

Col. Ralph Powell said Thursday that after consulting with the deputy attorney general assigned to his agency and the Ada County prosecutor's office early last year, he determined that there was no applicable state criminal code to investigate. Rather, Powell said, he considered the issue a civil breach of contract matter. He said he attended every meeting the Idaho Department of Correction held regarding the financial audit in case something that seemed criminal in nature popped up. But, he said, it never did.

“I need to be clear, I'm speaking about this in consultation with my legal counsel,” Powell said. “I own my decisions. But I think that we did do due diligence to make sure the Ada County prosecuting attorneys looked at it. No additional information came back to that deputy prosecuting attorney about criminal wrongdoing.”

But that's not the way other agencies remember the past 12 months. Todd Dvorak, a spokesman for the Idaho attorney general's office, said his agency hasn't been involved in any of ISP's decisions on the matter. Wasden stands by his recommendation, Dvorak said.

“The clearest path to resolving this is a criminal investigation and a review by the prosecutor,” Dvorak said.

Ada County Deputy Prosecuting Attorney Roger Bourne says that he met with Powell about a year ago, and told him then that he couldn't determine whether or not there was a criminal violation until he saw the results of the ISP investigation.

On Tuesday, Idaho Department of Correction director Brent Reinke said Powell attended every meeting the agencies had on the forensic audit and staffing issues, and he “continued to evaluate the civil and criminal elements at each meeting.”

IDOC never gave the police advice on whether the investigation should be criminal or civil, Reinke said.

Mark Warbis, a spokesman for Otter, said the governor believes everyone involved took the issue seriously and did what they needed to do, and that while there wasn't an “investigation,” per se, police took a close look at the data.

“ISP has been engaged with IDOC throughout the process. This is a matter of semantics,” Warbis said.

TIMELINE:

State officials appear to remember different versions of events regarding whether or not the Idaho State Police had launched a criminal investigation into understaffing and falsified reports at a prison operated by Corrections Corporation of America. Here's some of what they've said over the past 12 months:

___

Feb. 4, 2013:

Idaho Department of Correction Director Brent Reinke gives Idaho State Police Lt. Col. Ralph Powell a letter requesting ISP's help. “This letter seeks an independent party to investigate and audit these records to determine the extent of the problem and any potential violation of state law,” Reinke wrote in the letter.

___

Feb. 5, 2013:

Reinke informs the Board of Correction that he's asked the Idaho State Police to launch an investigation into possible criminal wrongdoing at the Idaho Correctional Center: “I've had two visits, actually, three visits now, with Col. Powell … He considers this an issue now under investigation,” Reinke said. “We are working through our staff with his staff to be able to transfer documents off. The Idaho State Police will take it to the next level as far as that's concerned.”

The Idaho Department of Correction issues a news release, which reads, “IDOC has asked ISP to conduct an independent investigation and audit of these records to determine the extent of the problem and any potential violation of state law.”

CCA spokesman Steve Owen said his company is also investigating. “It is premature and speculative to draw conclusions before all of the facts have been gathered, and to do so at this point would undermine the investigation that is taking place. If our efforts uncover inconsistencies, we will take swift action to rectify any issues,” Owen said.

Mark Warbis, spokesman for Gov. C.L. “Butch” Otter, tells a reporter after a meeting of the Joint Finance-Appropriations Committee that Otter remains a supporter of private prisons, and the news of the police investigation “hasn't changed that.”

___

Feb. 12, 2013:

In response to a public records request for CCA's payroll records made before the ISP investigation was announced, Department of Correction spokesman Jeff Ray responded via email: “I know that is what you're most interested in, but we can't release them yet because they are critical to the investigation. As you know records related to an investigation are exempt from disclosure. We don't want to be accused of ignoring that portion of the statute and somehow tainting the investigation.”

___

May 9, 2013:

At the Board of Correction meeting, Reinke tells board members that in 14 months, CCA's contract will go into an automatic extension unless the board chooses to take action. “There's a couple of things that we have not talked about yet, on how best to proceed with this contract and the Idaho Correctional Center. We have not had any discussion as a department with you,” Reinke said. “Part of that is because of the investigation, which we will not go into today because it's still under investigation.”

___

Aug. 7, 2013:

IDOC Deputy Warden Tim Higgins, while testifying under oath, is asked by U.S. District Judge David Carter about the investigation. “For one thing, in the last sentence of this news release, it mentions an IDOC investigation into the same issues. Do you see what I'm talking about?” the judge asks Higgins. Higgins says he does, and says his agency has done an initial audit. “Based off that initial audit by our own people, the determination was made that this could possibly be a criminal matter. So, as such, we have referred it to the state police for criminal investigation,” Higgins says. “We are providing support.” The judge interrupts, “And the reason for that is, of course, not to be … .” ''Not to interfere with the ongoing criminal process,” Higgins responds.

In response to a reporter's question about whether CCA made an offer of $177,000 to settle the understaffing issue, Ray says: “Yes, CCA did make an offer. We declined it because we are waiting for the results of the ISP investigation.”

___

Sept. 16, 2013:

In an email responding to a request for information from The Associated Press, Ray writes: “The Idaho State Police has an active criminal investigation underway into CCA's staffing patterns at the Idaho Correctional Center. As part of that investigation, the Idaho Department of Correction has hired the internationally respected accounting firm KPMG to conduct a forensic audit of CCA's records. We want to get to the truth of what's been going on at ICC, so we're not going to do or say anything that might make the investigators' jobs more difficult.”

Judge Carter finds CCA in contempt of court and orders civil penalties. But the judge writes in his ruling that he won't order CCA to discipline more employees because of the ongoing criminal investigation. “The Court does not find it appropriate to order CCA to discipline more staff in response to the falsified records. As discussed above, the fact that supervisors who signed falsified rosters remain at ICC is a concern for compliance going forward. But the Court will not intrude on CCA staffing decisions when a state criminal investigation is ongoing,” Carter wrote.

___

Jan 31, 2014:

The AP makes a public records request for the Idaho State Police final investigation report and any documents related to the ISP investigation of CCA. The Idaho State Police says no such records exist.

___

Feb. 6, 2014:

Idaho State Police Col. Ralph Powell says the agency never launched a criminal investigation because he determined that the matter was a civil issue. He said he made the decision in early 2013 after reviewing Idaho Department of Correction documents and consulting with state and county attorneys. The attorney general's office and the Ada County prosecutor's office deny any involvement with the decision. Powell also says he advised the governor's office regularly on the status of his agency's involvement.

___

Feb. 7, 2014:

The Idaho attorney general's office calls for a criminal investigation into the staffing matter, saying it's the clearest path to resolving the confusion. Gov. Otter declines the attorney general's recommendation, writing a letter blaming media reports for whipping up confusion. “There does seem to be some public confusion, fomented by media reports, about the degree to which the Idaho State Police (ISP) was involved in assessing potential criminal wrongdoing in Corrections Corporation of America's (CCA) operations at the Idaho Correctional Center,” Otter wrote, noting that the ISP was involved with multiple agencies in making its decision and remained engaged with IDOC for the forensic audit.


  

Copyright 2014 The Associated Press


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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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