The 2022-23 Budget: Monitoring Correctional System Staff Misconduct Investigations

The 2022-23 Budget: Monitoring Correctional System Staff Misconduct Investigations FEBRUARY 2022 Summary. The Governor’s budget proposes BACKGROUND additional funding and positions for the California Department of Corrections and Rehabilitation OIG Oversees CDCR Handling of (CDCR) to implement a new system for handling Allegations of Staff Misconduct inmate and parolee allegations of staff misconduct OIG is as an independent state agency and for the Office of the Inspector General (OIG) to responsible for oversight of CDCR’s correctional independently monitor the new process. We find programs. Currently, OIG is required by statute and that the proposed resources for CDCR appear court orders to perform certain activities. As part reasonable. However, the proposed resources for of this responsibility, OIG monitors CDCR’s two OIG may result in a level of monitoring that does primary processes for handling allegations of staff not meet legislative expectations for oversight. misconduct, which we describe in detail below. Accordingly, we recommend that the Legislature (See the nearby box for more detailed information determine its specific expectations and adjust the on the history of OIG.) level of resources proposed by the Governor as needed to ensure expectations are met. To assist CDCR Process for Handling Allegations the Legislature in this process, we identify key Referred by Hiring Authorities issues for consideration. OIG Provides Input on and Monitors CDCR Allegation Routing Decisions. Hiring authorities at CDCR are staff in certain positions—such as History of the Office of the Inspector General (OIG) In the early 1990s, the California Department of Corrections and Rehabilitation (CDCR)— then known as the California Department of Corrections (CDC)—faced a succession of highly publicized cases alleging serious staff misconduct. At the same time, CDC was believed to be ineffective and inefficient in its ability to deter staff misconduct, to investigate misconduct when it did occur, or to discipline those who violated department policy or the law. In response to these ongoing problems, Chapter 766 of 1994 (SB 1462, Maddy) established OIG within the Youth and Adult Correctional Agency (YACA). The legislation specified that OIG’s role was to (1) review departmental policies and procedures for conducting investigations, as well as the department’s compliance with them; (2) investigate allegations of personnel misconduct, including complaints of retaliation and other wrongdoing; and (3) recommend related corrective action. In 1998, following continued complaints of staff misconduct within CDC, the Legislature moved OIG out of YACA and established it as an independent state agency responsible for oversight and investigation of correctional programs, reporting directly to the Governor. (We note that, in 2005, YACA and all the departments that reported to it—including CDC—were consolidated into CDCR.) 2022-23 Budget Series 1 wardens—who have the authority to hire and as grievances to contest departmental policies, discipline employees. Whenever a hiring authority actions, or conditions that have a negative effect on reasonably believes an employee committed their welfare. Grievances cover a variety of topics, misconduct warranting punitive action (such as such as disagreement with disciplinary actions and salary reduction or dismissal), he or she must concerns about housing conditions. (We note that submit a referral to the Central Intake Panel there are two categories of grievances, health care (CIP). The CIP is a collection of stakeholders— grievances and all other grievances, which we refer including OIG representatives—led by CDCR’s to in this post as regular grievances.) For example, Office of Internal Affairs (OIA). The CIP reviews any an inmate might file a grievance arguing that the information provided about the allegation by the temperature inside his or her cell is excessively hot. hiring authority—usually information from an initial In some cases, grievances allege that a violation of inquiry into the matter done by prison or parole law, policy, or ethical standards by staff has taken staff—and discusses how to route the allegation. place. For example, an inmate might file a grievance For example, the CIP can decide to authorize an alleging that staff intentionally placed him or her in administrative or criminal investigation to assess a particular cell that is known to reach excessive whether the alleged misconduct occurred. temperatures in retaliation for requesting to be Alternatively, if sufficient evidence already exists, moved to a different housing unit. the CIP can authorize the hiring authority to take Aside from grievances, inmates and parolees direct disciplinary action without an investigation. who have physical or mental disabilities can The final decision on how to route the allegation is submit claims requesting specific reasonable made by the OIA staff who lead the CIP. However, in accommodations to enable them to access its public reports to the Legislature and Governor, programs, services, or activities. For example, OIG notes instances when its staff disagree with inmates who are unable to walk can request a cane, decisions made by OIA. walker, or wheelchair. Inmates and parolees can OIG Focuses on Oversight of More Serious also use this process to report harassment as a Investigations Conducted. OIG reports that its result of their disability. In some cases, requests for staff monitor the quality of about 15 percent of reasonable accommodation contain allegations of investigations that are conducted and tends to staff misconduct—such as if an inmate is reporting focus its monitoring activities on the department’s being harassed by staff. more serious investigations, such as cases involving Allegations Referred by Inmates and Parolees alleged dishonesty, use of force, and criminal Historically Handled by Prison and Parole Staff. activity. In addition to monitoring the quality of the As we discuss below, the process by which CDCR investigatory work, OIG monitors the performance handles inmate or parolee allegations of staff of department attorneys involved in the investigation misconduct made through grievances or requests and discipline process and hiring authorities’ for reasonable accommodation claims has been imposition of discipline. OIG includes these findings undergoing transition in recent years in response in its public reports to the Legislature and Governor. to various concerns. Historically, allegations of staff We note that because hiring authorities must file a misconduct arising through grievances or requests Form 989 in order to refer an allegation to the CIP, for reasonable accommodation were typically this investigation and discipline process is often handled by prison or parole staff. Specifically, referred to as the “989 process.” staff were responsible for screening claims to identify those that contained allegations of staff CDCR Process for Handling Allegations misconduct. Staff then conducted inquiries into Referred by Inmates and Parolees those allegations and reported the results to hiring Some Grievance and Reasonable authorities. Unless the hiring authority determined Accommodation Claims Contain Allegations that the report warranted a referral to CIP via of Staff Misconduct. CDCR regulations allow Form 989, these allegations did not rise to the inmates and parolees to file certain claims knowns attention of OIA or OIG. 2022-23 Budget Series 2 OIG Raised Various Concerns About force, dishonesty, and sexual harassment.) Claims Historical Process. In 2018, in response to alleging serious misconduct will be referred to a concerns raised by inmates’ rights attorneys, the new unit within OIA—the Allegation Investigation Secretary of CDCR requested that OIG review the Unit (AIU)—for an investigation. Claims containing quality of inquiries into inmate allegations of staff allegations not determined to constitute serious misconduct at Salinas Valley State Prison (SVSP) misconduct will be sent back to local prison or in Soledad. In its report, OIG concluded that such parole staff to conduct an inquiry into the matter. inquiries were inadequate because staff used All local inquiry reports will then be reviewed by poor investigation techniques, were inadequately OIA staff for completeness and independence. trained, and showed signs of bias in favor of fellow At full implementation, CDCR expects that CST staff members. Moreover, OIG indicated that will receive about 220,000 claims per year with these problems were likely not unique to SVSP. about 46,000 (21 percent) containing allegations In a subsequent 2021 report, OIG raised concerns of misconduct. Of these 46,000 allegations, CDCR that staff at prisons statewide responsible for expects that CST will refer 8,424 (18 percent) to screening claims were failing to classify some AIU for an investigation due to the allegations grievances as containing allegations of staff constituting serious misconduct and the remaining misconduct. These concerns have been echoed by 37,576 (82 percent) to be referred back to the plaintiffs in an ongoing class action lawsuit (known prison or parole region for a local inquiry. as Armstrong v. Newsom) concerning CDCR’s OIG Monitoring of New Process. In recent treatment of inmates with disabilities. years, the Legislature has expressed interest in OIG CDCR Currently Implementing New Process. oversight of CDCR’s handling of staff misconduct In response to these concerns, CDCR has been allegations arising out of the grievance and request revising its process for handling inmate and for reasonable accommodation processes. As parolee allegations of staff misconduct since a result, the 2019-20 budget package provided 2019. When fully implemented, the process—as OIG with five positions and about $780,000 in outlined in emergency regulations that CDCR ongoing General Fund support to monitor CDCR’s filed with the Office of Administrative Law on handling of inmate and parolee allegations of December 28, 2021—will include allegations of staff staff misconduct. However, this funding level was misconduct toward inmates and parolees that arise determined based on an earlier iteration of the new through grievances and requests for reasonable process under which it was assumed that fewer accommodation. In addition, claims filed by third allegations would be received by OIA annually. parties (such as members of the public) will be reviewed for allegations of staff misconduct. GOVERNOR’S PROPOSAL Under the new process, all claims will be Funding for CDCR to Implement New Process forwarded by prison and parole staff to a new for Handling Allegations Referred by Inmates Centralized Screening Team (CST) within OIA. and Parolees. The Governor’s budget provides CST will screen all claims to determine whether $35.6 million General Fund in 2022-23 (increasing they contain allegations of staff misconduct. to $37 million in 2023-24, and generally decreasing If CST does not identify any allegation of staff to $34.2 million annually in 2026-27) for CDCR misconduct, the claim will be sent back to the to align its process for handling staff misconduct prison or parole staff to be addressed. If CST allegations with the emergency regulations filed on does identify an allegation of staff misconduct, December 28, 2021. Under the proposal, CDCR CST will assess whether the allegation constitutes would receive 175 additional positions in 2022-23 serious misconduct against inmates or parolees. (increasing to 192 positions in 2023-24). This (Regulations define a specific list of activities that includes positions to staff CST and AIU. constitute serious misconduct for the purposes of this screening decision, including excessive use of 2022-23 Budget Series 3 Funding for OIG to Monitor New Process percentage of cases that constitutes a sample size for Handling Allegations Referred by Inmates adequate to carry out effective monitoring. Under and Parolees. The Governor’s budget provides the Governor’s proposal, OIG would be monitoring $2.3 million General Fund and 16 positions in a relatively small sample size of investigations— 2022-23 (increasing to $3.6 million and 24 positions and not monitoring the screening of certain claims in 2023-24) for OIG to monitor CDCR’s new process or quality of local inquiries at all. As such, it is for screening for and investigating staff misconduct possible that the Governor’s proposal may not meet alleged in claims submitted by inmates, parolees, legislative expectations. Specifically, under the and third parties. Under the Governor’s proposal, Governor’s proposal: OIG would do the following: OIG Would Not Monitor Certain Types • Monitor 30 Percent of Regular Grievances of Claims Received by CST. As previously Received by CST ($1.7 Million). Under the mentioned, under the proposal, CST screening proposal, OIG would receive resources to of the annual estimated 68,000 health care monitor about 30 percent of the estimated grievances, requests for reasonable 147,500 regular grievances reviewed by CST. accommodation, and third-party claims would not The proposal does not include resources for be monitored by OIG, based on the assumption that OIG to monitor the remaining 72,500 claims they are less likely to contain allegations of staff consisting of health care grievances, misconduct than regular grievances. According requests for reasonable accommodation, and to CDCR, based on three months of data, about third-party claims. OIG indicates that it plans 22 percent of regular grievances contain allegations to focus on regular grievances, rather than of staff misconduct, whereas CDCR estimates that other types of claims, because it believes about 19 percent of all other claims will contain they are more likely to contain allegations of allegations of staff misconduct. Accordingly, the staff misconduct. frequency with which misconduct allegations are expected to be found in other claims is not • Monitor 10 Percent of Investigations substantially lower than for regular grievances. Conducted by AIU ($624,000). Under the proposal, OIG would receive resources to OIG Would Monitor Lower Percent of monitor AIU investigations. Along with the Investigations Than Under 989 Process. Under resources initially provided in 2019-20, the the Governor’s proposal, OIG would monitor about proposal would allow OIG to monitor about 10 percent of investigations conducted by AIU. In 10 percent of the investigations conducted comparison, OIG reports that it typically monitors by AIU. about 15 percent of investigations under the 989 process. It is unclear why OIG would monitor a lower percentage in this case. ASSESSMENT OIG Would Not Monitor Local Inquiries. Funding Proposed for CDCR to Implement CDCR expects that CST will annually identify New Process Appears Reasonable. We find that 37,600 claims that contain allegations of less the funding proposed for CDCR to align its process serious misconduct that would not be investigated for handling inmate and parolee allegations of staff by AIU. These claims will be sent by CST back to misconduct to its current emergency regulations the referring prison or parole staff for a local inquiry appears reasonable and would likely help address into the matter. Reports prepared based on these concerns that have been raised over the years. inquiries will be reviewed for completeness by OIA Proposed Level of OIG Monitoring May staff. However, the Governor’s proposal does not Not Meet Legislative Expectations. The goal include resources for OIG to monitor these reports of monitoring is typically to be able to draw or the quality of review performed by OIA staff. conclusions about an entire system by focusing on This is notable because concerns about the quality an adequately sized sample of cases processed of local inquiries were a key driver for creation of in the system. There is no universally agreed upon CDCR’s new process. 2022-23 Budget Series 4 RECOMMENDATION • Should OIG Monitor a Larger Portion of AIU Investigations? Under the proposal, Ensure Level of Monitoring Resources Meets OIG would monitor about 10 percent of AIU Legislative Expectations. As noted above, in investigations. If the Legislature wants OIG to recent years, the Legislature has expressed interest monitor a higher percent of AIU investigations in OIG oversight of CDCR’s handling of staff it would need to provide additional resources. misconduct allegations arising out of the grievance For example, we estimate that having OIG and request for reasonable accommodation monitor 15 percent of AIU investigations—the processes. In reviewing the Governor’s proposal, same as the portion of investigations that OIG we recommend that the Legislature determine monitors in the 989 process—would require its specific expectations and adjust the level of an additional seven positions and $1 million resources proposed by the Governor as needed to annually at full implementation. ensure its expectations are met. Specifically, the Legislature will want to consider the following: • Should OIG Monitor Local Inquiry Reports? The Legislature could consider funding OIG • Should OIG Monitor All Types of Claims so that it would be able to monitor a portion Received by CST? Under the proposal, of the estimated 37,600 local inquiry reports. OIG would monitor 30 percent of regular For example, we estimate that requiring OIG to grievances screened by CST but would not monitor 20 percent of these reports—similar monitor screening of health care grievances, to the portion of investigations that OIG requests for reasonable accommodation, and monitors in the 989 process—would require third-party claims. If the Legislature wants an additional four positions and $500,000 OIG to monitor 30 percent of all types of above the Governor’s proposed resources. claims submitted to CST, we estimate that an We note, however, that the Legislature could additional five positions and about $600,000 make this change in a relatively cost neutral annually above the Governor’s proposal would manner by reducing the portion of these be required. reports monitored by CDCR OIA staff from 100 percent to 80 percent and redirecting savings from CDCR to pay for the increased OIG staff. 2022-23 Budget Series 5 2022-23 Budget Series 6 2022-23 Budget Series 7 LAO PUBLICATIONS This post was prepared by Caitlin O’Neil, and reviewed by Drew Soderborg and Anthony Simbol. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. 2022-23 Budget Series 8