OIG Sentinel Case No. 21-01

Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer Chief Deputy INSPECTOR GENERAL Inspector General Independent Prison Oversight OIG № 21–01 SENTINE L CASE JUNE 3, 2021 California Department of Corrections and Rehabilitation Prison Investigators Conducted an Inadequate Inquiry Into Allegations Staff Members Failed to Wear Face Coverings and, Despite a Reasonable Belief That Staff Misconduct Occurred, the Warden Failed to Refer the Case to the Office of Internal Affairs for an Investigation The Office of the Inspector General (OIG) allegations that staff members in a unit where the is responsible for, among other things, incarcerated person was housed failed to wear monitoring the California Department of face coverings as required by departmental policy. Corrections and Rehabilitation’s (the department) The department requires staff members to wear staff complaint process, internal investigations, face coverings at all times while performing duties and employee disciplinary process. Pursuant to on prison grounds, per written order signed by California Penal Code sections 6126 and 6133, the Secretary. the OIG reports annually on the staff complaint On October 27, 2020, the Secretary of the process and semiannually on its monitoring department and the federal receiver issued a of internal investigations and the employee memorandum to all employees ordering all staff disciplinary process. However, in some cases, performing duties on departmental grounds to where there are compelling reasons, the OIG correctly wear approved face coverings at all times, may issue a separate public report regarding our with the exception being when an employee is monitoring; we call these Sentinel Cases. The OIG alone in a hard-walled office, tower, or control may issue a Sentinel Case when it has determined booth, or when an employee in the performance that the department’s handling of a case was of their duties is running or jogging while actively unusually poor and involved serious errors, even responding to an incident. after the department had a chance to repair the damage. This Sentinel Case, No. 21-01, involves On November 19, 2020, the Secretary of the an incident in which an incarcerated person department and the federal receiver issued a alleged the misconduct of several staff members, memorandum to all employees updating previous providing detailed information concerning the memoranda related to face coverings stating that offenses, after which departmental staff conducted effective November 23, 2020, all staff performing a substandard inquiry into the misconduct duties on departmental grounds were required to allegations, disregarded departmental policy for wear polypropylene procedure masks or surgical handling incarcerated persons’ allegations of staff masks while performing duties on institutional misconduct, and ultimately took no action against grounds, except in the following circumstances: the staff members accused of committing the alleged misconduct. 1. While eating or drinking, if a minimum of six feet of physical distance is In correspondence dated November 29, 2020, maintained from all other individuals. an incarcerated person at a prison in northern California sent a letter to the department, 2. When alone in an office with the California Correctional Health Care Services, door closed. the Prison Law Office,1 and the OIG concerning 3. When alone in a tower or enclosed 1. The Prison Law Office is a law firm based in Berkeley, California control booth with no other that represents incarcerated persons in litigation related to the individuals present. conditions of incarceration in State prisons and county jails, among other things. Page 1 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 In his letter, the incarcerated person documented members were doing at the time of the policy specific dates and times he observed various staff violation. Below, we present excerpts from the members failing to wear face coverings, named letter in which the incarcerated person included 17 separate staff members in those incidents, the following observations (we have redacted the and provided brief descriptions of what the staff names of staff members and housing units). The incarcerated person documented a total of 19 instances, including Five Excerpts From the Incarcerated Person’s Letter the five reproduced here (excerpts, see right), in which he observed staff members not properly wearing face coverings between November 18, 2020, and November 29, 2020. The incarcerated person also described a 20th incident in which a sergeant and an officer alerted staff members or incarcerated persons to put on face coverings because the warden was walking around the prison. In every instance, the incarcerated person included either the name and classification of the offending staff member or a physical description of the staff member. Also, the incarcerated person alleged that, even though departmental executives had designated a particular dormitory as housing for incarcerated persons on medical quarantine, on November 3, 2020, officers assigned to that particular dormitory visited officers in other dormitories before an outbreak of the novel coronavirus could be determined not to exist. Furthermore, the incarcerated person who wrote the letter also identified 10 staff members and a group of clinicians who were “always careful to properly wear face covers.” Page 2 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 Prison Investigators Conducted the specified time frame. However, the inquiry report did not reflect that prison investigators a Biased and Inadequate Inquiry reviewed attendance records pertaining to the Into the Allegations Raised by the remaining two incidents, namely an incident Incarcerated Person on November 24, 2020, and an incident alleging The incarcerated person raised specific allegations that a sergeant and an officer warned others of misconduct against several staff members at the of the warden walking around the prison on prison. If the warden had determined there was a November 26, 2020. reasonable belief that misconduct occurred which The inquiry report reflected that prison would result in adverse action, he would have been investigators also gathered written reports required to immediately refer the matter to the from some staff members and conducted Office of Internal Affairs. If the warden had not yet unrecorded interviews with some supervisors. established a reasonable belief, then he would have Moreover, the inquiry report reflected that prison been required to refer the matter to the Allegation investigators conducted and recorded interviews of Inquiry Management Section. In response to the 16 incarcerated persons, including the incarcerated letter, the warden did neither and instead directed person who submitted the letter. However, the the prison’s investigative services unit to conduct interviews were deficient. Investigators did not an inquiry. Based on the information provided, adequately address the incidents described by the warden should have immediately referred the the incarcerated person in his letter; instead, matter to the Office of Internal Affairs because they asked mostly general questions about how there was a reasonable belief misconduct occurred. staff were doing and were focused on gathering The incarcerated person set forth sufficient information to exonerate staff members. In the information in his letter to establish a reasonable OIG’s opinion, the closest the investigators came belief that misconduct occurred by providing to asking about any specific incident occurred detailed information regarding 19 separate during the December 7, 2020, interview with incidents involving 17 named staff members the incarcerated person who wrote the letter. over an approximate two-week period. Despite The exchange occurred after a discussion about there being sufficient information to forward how medical and mental health staff were the matter to the Office of Internal Affairs, the doing recently. warden instructed an investigative services unit One prison investigator asked the incarcerated lieutenant and a sergeant at the prison (prison person whether staff were wearing their face investigators) to conduct an inquiry, and the coverings at the medication pass on the morning investigative services unit lieutenant produced of the interview and over the weekend prior to an inquiry report. The OIG reviewed the inquiry the interview. The incarcerated person said the report and supporting exhibits, including interview person distributing medications wore his mask the recordings, and found the inquiry to be biased and night before the interview, but that he did catch woefully inadequate. him not wearing a face covering a week prior. A The inquiry report reflected that the prison prison investigator asked for this staff member’s investigators reviewed attendance records related name, but the incarcerated person did not know it. to 18 of the 20 alleged incidents and confirmed that The investigator asked was this person an “Asian,” every staff member who had been identified by referring to the incarcerated person’s letter in name in the incarcerated person’s letter as failing which he identified an “Asian male psychiatric to wear a face covering at a specific place and time technician.” The incarcerated person said it was was, in fact, working in that particular area during a “Black guy.” The incarcerated person said he Page 3 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 caught the staff member not wearing a mask a members were not wearing their couple of times while at the podium. masks. At times were they eating or drinking? One investigator then noted that the medications were passed through a window from inside an Instead of asking the incarcerated person for office. The incarcerated person pointed out that specific details about any of the incidents he the window was open and that they were not in a described, the prison investigators opened the “sealed-in office.” The incarcerated person then interview with a question attempting to elicit referenced an incident when an “Asian male” exonerating evidence. One prison investigator had the door cracked open. The investigator did also asked the incarcerated person what his not follow up to ask when these two incidents feelings were concerning incarcerated persons happened, if they were incidents described in the manipulating appeals to receive monetary incarcerated person’s letter, or if there were any compensation. The prison investigators asked other witnesses to these incidents. Instead, the the incarcerated person if he had received a investigator changed the subject to an irrelevant “writeup” (discipline) and why he had received it. issue and asked how the incarcerated persons were A prison investigator also asked the incarcerated doing with wearing their masks. person what was his motivation for bringing the allegations to light. Rather than addressing every allegation the incarcerated person made with specific The prison investigator proceeded to ask the questions, the prison investigators asked him incarcerated person a series of questions about mostly general questions about how staff were how staff members were doing generally with the doing recently, spent an unnecessary amount of face-covering order. Later in the interview, the time discussing issues unrelated to his specific prison investigator posited to the incarcerated allegations, and asked questions geared toward person that it was “ten times better” at the eliciting exonerating evidence. While impartial prison than it was in March 2020, and asked if investigators should attempt to gather all evidence the incarcerated person thought it was getting that could tend to exonerate those accused of better. The incarcerated person asked if she meant misconduct, the investigators in this case focused the department was doing better. The prison more on gathering information to exonerate staff investigator continued to argue that the number of in general than they did on gathering evidence incarcerated persons testing positive “increasingly that could prove the allegations. For example, at dropping to almost like no inmates” showed the beginning of the interview of the incarcerated that the prison was doing better and asked the person who submitted the letter, the following incarcerated person if the improved numbers spoke exchange ends with the first question the prison to how people were taking “it” more seriously, and investigator asked: that the face coverings were effective. The prison investigator then asked, The reason that we are here today is because we received the allegation Because imagine if staff would not you are making regarding all the be wearing their masks on a constant staff members not wearing their basis, then I think we would have more mask [sic], and I just wanted to get of an infection, right? [sic] some clarifications regarding your observations. So you identified on multiple occasions that these staff Page 4 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 The incarcerated person responded, saw someone not wear a face covering, and he responded it was a couple of days ago. She asked Well, it’s possible. I think there’s too what time of day, and he said “third watch.” The much that people don’t know about prison investigator asked if there was one staff member who did it more than others, and the this virus yet. incarcerated person identified an officer by name In short, during the interview with the incarcerated who did not wear a face covering at “the podium.” person who wrote the letter, the prison investigator The incarcerated person who submitted the letter attempted to offer excuses for staff members had previously indicated the same officer did not and argued as to why the prison was doing properly wear a face covering while standing at better. However, the prison investigator failed to the “officer work station” on four occasions, along adequately address the specific allegations raised with a fifth occasion for which the incarcerated by the incarcerated person in his letter. person did not specify the location.2 During interviews with other incarcerated Furthermore, one of the prison investigators asked persons, the prison investigators did not inform the incarcerated person whether the officer who incarcerated persons they were doing an inquiry was not wearing a face covering at the podium was into allegations against staff and did not ask any eating or drinking at the time. The incarcerated incarcerated persons about any of the allegations person responded he did not look long enough to raised by the incarcerated person who submitted see whether the officer was eating or drinking. In the letter, whether it be dates, locations, or times of another interview, a third incarcerated person told an incident, or the staff member who was involved one of the prison investigators that sometimes in the incident. Instead, the prison investigators staff members did not wear face coverings. again focused on asking general questions about When asked where the incarcerated person how staff were doing with wearing face coverings. observed officers not wearing face coverings, the individual responded, “the podium,” corroborating Nevertheless, some of the incarcerated persons the allegation of the incarcerated person who provided evidence that corroborated the submitted the complaint that on several occasions information provided by the incarcerated person officers were not properly wearing face coverings who submitted the letter. For example, one at the officer’s work station or “podium.” incarcerated person told the prison investigators that sometimes staff members at the podium, In the letter, the incarcerated person documented also known as the officer’s work station, in the 19 incidents of staff members not properly building did not wear face coverings. The prison wearing face coverings. These incidents included investigator asked the incarcerated person if he observations concerning a staff member walking could identify the involved staff members in a without wearing a face covering, or officers photo lineup, to which the incarcerated person gathering and conversing in front of a dormitory answered he could. However, there is no record the without wearing face coverings. However, the prison investigators actually followed up and asked most common location cited for staff members the incarcerated person to review photographs failing to properly wear a mask was the officer’s and identify the staff members who did not wear work station, or podium. The incarcerated person face coverings while situated at the podium in the building. 2. When summarizing the allegations identified in the letter, in the inquiry report, the prison investigator referred to the “officer work The prison investigator asked this same station” as “the Officer’s work station,” “the Officer station,” and incarcerated person when was the last time he “the Officers podium.” It appears based on the inquiry report that the term “work station” refers to the “podium.” Page 5 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 identified nine separate incidents in which actually paying attention to that, and multiple staff members—sometimes as many as they weren’t. seven—congregated at the officers’ work station while at least one of those staff members was not Contrary to the incarcerated person’s statement, properly wearing a face covering. The incarcerated the prison investigator noted in her summary person identified a 10th incident in which a staff of this interview that the incarcerated person member working at the officer’s work station was said he observed staff drinking soda on a not properly wearing a mask, but did not indicate couple of occasions. The following is the prison any other staff members were in the area. investigator’s summary of that exchange: Furthermore, during the interviews, the prison [Incarcerated person] stated that staff investigators continually asked incarcerated was not eating and or drinking when persons if officers pulled down their face coverings they had their mask off. He recanted to eat or drink. However, the prison investigators and said it had only happened on a did not ask the other incarcerated persons about couple of occasions where he had the specific incidents in the letter and whether observed staff drinking soda. staff members were eating or drinking during those incidents. Also, nowhere in the letter did The prison investigator did not ask questions the incarcerated person mention the officers to identify which incident this was, whether the were eating or drinking. In fact, the incarcerated officer was merely holding the soda or drinking person wrote, from it, whether there were other staff members It’s also important to note that in every around and whether they were socially distanced, instance that I documented, none of or whether there were any other incidents in which the staff members was [sic] eating, an officer was holding or drinking a soda. drinking or making any effort to social According to departmental policy, staff members distance. Either way, it’s not possible may remove their face coverings while eating or to social distance in [housing unit] drinking “if a minimum of six feet of physical Officer work stations. distance is maintained from all other individuals.” The inquiry report did not reflect that prison When one of the prison investigators asked the investigators conducted an analysis or attempted to incarcerated person who wrote the letter whether ascertain the following: any staff members were eating or drinking on any of the occasions he identified, the incarcerated 1. Whether the staff members claimed they person replied as follows: were, in fact, eating or drinking on the dates and at the locations specified; No they weren’t. Most of the times that I identified, I was paying attention 2. Where the staff members typically ate to..., I was paying attention to that, to their meals while on duty; and whether they were eating or drinking, 3. Whether it is impossible to socially and I saw that they weren’t. Maybe distance at the podium as the once or twice. I wanna say one officer incarcerated person alleged. that was in front of [dormitory], he had a soda or something in his During many interviews of incarcerated persons, hand. But other than that, no I was one of the prison investigators was assigned a dual Page 6 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 role, creating a potential conflict of interest. In In addition to interviewing the incarcerated eight of the interviews, the investigative services persons, the prison investigators gathered reports unit lieutenant introduced a sergeant as a “staff from nine staff members who may have been assistant” for incarcerated persons and noted present during some of the alleged violations. on the record in six of those interviews that the Eight of the staff members documented that they interviewee was in the mental health delivery did not remember or could not recall anyone not system at the enhanced outpatient program (EOP) properly wearing face coverings on a specific date level of care.3 Although the report does not address in question, with a couple making statements this assignment, it can be reasonably inferred that they only witnessed staff remove their face that the investigative services unit assigned the coverings to eat or drink. Only one of the nine staff sergeant as the staff assistant to these incarcerated members did not qualify their memorandum as the persons because they were designated as EOP. other eight had and wrote that they did not observe any staff members not wearing or incorrectly In these interviews, the investigative services unit wearing face coverings. lieutenant introduced the sergeant as the interviewee’s “staff assistant” in case he did not Three of the officers who submitted reports understand something, or if the investigative were officers who were accused of failing to services unit lieutenant spoke too fast. However, properly wear a mask. However, their reports the investigative services unit lieutenant also did not address the allegations against them introduced the sergeant as her “partner” in one and only contained statements concerning their of those interviews. In addition, the sergeant observations on a day they had not been accused introduced himself as an “investigator” in some of misconduct. The prison investigator did not interviews and as “with investigations” in others. document any interviews with any of these nine He performed investigatory tasks during the staff members. inquiry, including asking questions in interviews. There is also no documentation showing prison The prison investigators compounded the problem investigators interviewed any of the staff members of bias when they failed to assign a staff assistant suspected of not wearing a face covering. The to the incarcerated person who wrote the letter, inquiry report only reflects that the prison even though the investigative services unit investigators conducted unrecorded interviews of lieutenant referred to him during the interview as a six supervisors who, with a couple of exceptions, “very high functioning EOP inmate.” stated staff members complied with the face- covering policy. The blending of the two roles of “staff assistant” and investigator is a poor practice, and if the Regarding the allegation that officers from department is going to assign a “staff assistant” [housing unit] were visiting officers from other to assist incarcerated persons in interviews, it dormitories before a possible novel coronavirus should assign someone who is not already assigned (COVID-19) outbreak in [housing unit] could be to conduct the investigation, so as to remove the ruled out, the prison investigator merely noted implication of bias. Furthermore, the department in her report there was documentation that the should treat complainants and other witnesses unit was not placed on quarantine status until equally and fairly when assigning a staff assistant. November 4, 2020 — not November 3, 2020, as the incarcerated person had alleged. However, the investigators did not ask the incarcerated person any specific questions about the allegation, 3. The enhanced outpatient program is an outpatient mental including on what days and where he alleged the care program at the department for those incarcerated persons officers visited other officers. requiring a more enhanced treatment plan with mental health staff. Page 7 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 The Prison Investigator’s Conclusion That the Allegations Were Not Sustained Was Meritless and Without Basis At the end of the inquiry report, the investigative services unit lieutenant concluded, in part, the following: The investigative services unit lieutenant’s face-covering policy. Failing to recall anyone not conclusion was meritless and without basis. The properly wearing a face covering is not the same as investigative services unit lieutenant asserted refuting specific allegations about specific officers that the “vast majority of witnesses interviewed” failing to properly wear a face covering at a specific refuted the incarcerated person’s claims. However, place and at a specific time. although most of the incarcerated persons What we find most troubling, however, is the indicated staff members were generally doing conclusion that there was “no evidence” to prove well complying with face-covering requirements, staff members did not comply with the face- the prison investigators did not ask any of them covering order. This is not true. The incarcerated about the specific incidents identified by the person who submitted the letter spelled out incarcerated person who submitted the letter. For 19 specific incidents of staff members not wearing example, prison investigators did not ask any of the face coverings and noted the specific places and incarcerated persons about the specific allegation times of those incidents. That is evidence. that, on November 20, 2020, at 10:47 a.m., specifically named officers gathered at an officer’s Interestingly enough, the investigative services work station without face coverings, nor did they unit lieutenant herself noted in the inquiry report ask if they recalled any similar incidents in the that the incarcerated person was “extremely previous weeks. accurate” about the specific dates and times staff members were on duty. Furthermore, two other Furthermore, contrary to the investigative services incarcerated persons corroborated the allegations unit lieutenant’s conclusion, staff members did not made by the incarcerated person who submitted refute the incarcerated person’s specific claims. the letter, noting they observed officers at the Eight of the nine staff members who submitted podium without face coverings. One of those other reports wrote that, on one specific date, they did incarcerated persons also identified an officer not recall anyone in violation of the department’s Page 8 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 who more frequently failed to properly wear a face Despite the inadequate inquiry, there was sufficient covering; the incarcerated person who wrote the evidence to determine that there was a reasonable letter identified the same officer as not wearing a belief that misconduct occurred. However, the face covering on five occasions. The statements of hiring authority did not refer the matter to the the other incarcerated persons are also evidence. Office of Internal Affairs for investigation, and the department issued no disciplinary action or Despite the corroborating evidence provided by corrective action to any of the staff members who incarcerated persons and the lack of refutation were specifically identified as having violated concerning the specific allegations, the investigative departmental policy concerning face coverings, services unit lieutenant inexplicably determined the as well as a direct order from the Secretary of allegations to be not sustained. Subsequently, the the department. warden approved the findings of the investigative services unit lieutenant and did not refer the matter We elevated the decision that had been made to the Office of Internal Affairs for an investigation. to not take any further action to a departmental The OIG previously identified as a concern executive, an undersecretary, and voiced our strong that wardens found staff violated policy in only disagreement with the department’s decision to 1.7 percent of cases resolved between June 1, 2020, not take any action despite specific evidence of and August 31, 2020.4 The warden’s findings in this staff misconduct. Nevertheless, the undersecretary case along with the manner in which this inquiry confirmed the decision to not take any action was conducted provides further evidence supporting against the staff members who committed our concern that the exoneration rate of more misconduct. Interestingly, following the inquiry, than 98 percent demonstrates a lack of fairness in the warden instituted a policy ordering that for any the process. staff member observed not wearing a face covering, management would immediately issue a letter of In the OIG’s opinion, the prison investigators instruction. A letter of instruction is a form of conducted a woefully inadequate and biased corrective action, not disciplinary action. inquiry and made incorrect findings. The manner in which the interviews were conducted and the The OIG has published various reports way questions were posed to incarcerated persons detailing the department’s failure to seriously leads us to conclude that the investigators did not investigate allegations of staff misconduct believe the allegations made by the incarcerated proffered by incarcerated persons within the last person from the outset and that the inquiry was not two years (e.g., also see our 2019 report on Salinas conducted in order to gather information relevant Valley State Prison, our inaugural Sentinel to the allegations made, but that it was conducted Case, No. 20–01, and our special review cited in such a way so as to reach a conclusion that the herein as footnote 4). In the OIG’s opinion, this allegations were not true. case is yet another example of the department failing to seriously investigate allegations of staff misconduct made by incarcerated persons and also of prison investigators conducting severely inadequate inquiries and investigations into alleged staff misconduct. 4. The California Department of Corrections and Rehabilitation: Its OIG Recent Steps Meant to Improve the Handling of Incarcerated Persons’ Allegations of Staff Misconduct Failed to Achieve Two Fundamental Objectives: Independence and Fairness; Despite Revising Its Regulatory Framework and Being Awarded Approximately $10 Million of Annual Funding, Its Process Remains Broken (Sacramento: State of California, the Office of the Inspector General, 2021). Page 9 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 DocuSign Envelope ID: 96EFC39C-6480-4AA4-8EA2-35444AFF8E94 STATE OF CALIFORNIA — DEPARTMENT OF CORRECTIONS AND REHABILITATION GAVIN NEWSOM, GOVERNOR OFFICE OF THE SECRETARY P.O. Box 942883 Sacramento, CA 94283-0001 May 14, 2021 Mr. Roy Wesley Office of the Inspector General 10111 Old Placerville Road, Suite 110 Sacramento, CA 95827 Dear Mr. Wesley: The California Department of Corrections and Rehabilitation (Department) submits this letter in response to the Office of the Inspector General’s (OIG) draft Sentinel Report 21-01 titled California Department of Corrections and Rehabilitation Prison Investigators Conducted an Inadequate Inquiry Into Allegations Staff Members Failed to Wear Face Coverings and, Despite a Reasonable Belief That Staff Misconduct Occurred, the Warden Failed to Refer the Case to the Office of Internal Affairs for an Investigation. In this report, the OIG notes that an incarcerated person sent correspondence to the Department, California Correctional Health Care Services, the Prison Law Office, and the OIG concerning allegations that staff members failed to wear face coverings in a unit where incarcerated persons are housed. The Department has reviewed the draft report and has the following comments: Sentinel Report 21-01, page 3: Based on the information provided, the warden should have immediately referred the matter to the Office of Internal Affairs because there was a reasonable belief misconduct occurred. Response: Under the current policy, the allegations in this letter would be considered staff complaints rather than allegations of staff misconduct because even if true, these allegations are not likely to result in adverse disciplinary action. As outlined in the October 27, 2020, memorandum titled STAFF WEARING FACIAL COVERINGS AND PHYSICAL DISTANCING REQUIREMENTS IN INSTITUTIONS AND FACILITIES, “Whenever managers or supervisors observe a subordinate employee fail to adhere to face covering or physical distancing directives, corrective action shall be taken in accordance with Departmental Operations Manual, Article 22, 1 Employee Discipline, section 33030.8, Causes for Corrective Action.” If this inquiry had established proof of masking violations, the hiring authority would have appropriately taken corrective action to change the employee’s behavior. Adverse action, on the other hand, would be utilized only after corrective action had already been taken and the employee continually failed to adhere to policy. Because the consequence for non-compliance was corrective action, not adverse action, under current policy and procedure, the allegations should not have been referred to the Office of Internal Affairs as the OIG suggests. Lastly, the allegations were reviewed by the hiring authority who appropriately initiated a local inquiry as the allegations were not submitted via the grievance process. The OIG’s comments begin on page 13. Page 10 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 DocuSign Envelope ID: 96EFC39C-6480-4AA4-8EA2-35444AFF8E94 Roy Wesley, Office of the Inspector General Page 2 Sentinel Report 21-01, page 3: The incarcerated person set forth sufficient information in his letter to establish a reasonable belief that misconduct occurred by providing detailed information regarding 19 separate incidents involving 17 named staff members over an approximate two- week period. Response: The complaint did include dates and times; however providing dates and times in and of itself is not always sufficient evidence to open an internal affairs investigation. While the letter 2 is evidence and the details add credibility to the incarcerated person’s statement, treating any single accusation as the only source required to establish reasonable belief is not appropriate. Sentinel Report 21-01, page 3: A prison investigator asked for this staff member’s name, but the incarcerated person did not know it. The investigator asked was this person an “Asian,” referring to the incarcerated person’s letter in which he identified an “Asian male psychiatric technician.” The incarcerated person said it was a “Black guy.” Response: During the interview, the claimant was not always able to identify the staff he alleges were in violation of the face mask policy. At one point, the claimant noted the allegation was 3 against an “Asian guy” and later it was a “Black guy”. Inconsistencies such as these make it difficult to positively identify any staff member, and calls in question the reliability of the information being provided. Sentinel Report 21-01, page 5: During interviews with other incarcerated persons, the prison investigators did not inform incarcerated persons they were doing an inquiry into allegations against staff, and did not ask any incarcerated persons about any of the allegations raised by the incarcerated person who submitted the letter, whether it be dates, locations, or times of an incident, or the staff member who was involved in the incident. Instead, the prison investigators again focused on asking general questions about how staff were doing with wearing face coverings. Response: The Investigative Services Unit (ISU) staff have been specifically trained not to ask leading questions in order to elicit an unbiased response from the person being interviewed. In addition, the ISU staff take great care not to divulge too much information that could put the 4 safety of any person, including the person who originally submitted the complaint, in jeopardy. Sentinel Report 21-01, page 9: In the OIG’s opinion, the prison investigators conducted a woefully inadequate and biased inquiry and made incorrect findings. The manner in which the interviews were conducted and the way questions were posed to incarcerated persons leads us to conclude that the investigators did not believe the allegations made by the incarcerated person from the outset and that the inquiry was not conducted in order to gather information relevant to the allegations made, but that it was conducted in such a way so as to reach a conclusion that the allegations were not true. Page 11 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 DocuSign Envelope ID: 96EFC39C-6480-4AA4-8EA2-35444AFF8E94 Roy Wesley, Office of the Inspector General Page 3 Response: As previously noted, ISU asks general questions to elicit an original answer without unintentionally leading the person into a response. Furthermore, while the department and the OIG may disagree on the outcome of the inquiry, to describe an inquiry that resulted in a 5 21-page report and that included the review of attendance reports, interviews with supervisors, written reports from staff, and interviews with 16 incarcerated individuals, as “woefully inadequate” is disingenuous and misleading. Thank you for the opportunity to review and comment on the draft report. If you have further questions, please contact me at (916) 323-6001. Sincerely, KATHLEEN ALLISON Secretary Page 12 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 COMMENTS OFFICE OF THE INSPECTOR GENERAL’S COMMENTS ON THE RESPONSE FROM THE DEPARTMENT OF CORRECTIONS AND REHABILITATION To provide clarity and perspective, we are commenting on the California Department of Corrections and Rehabilitation’s (hereinafter referred to as the department) response to our Sentinel Case No. 21–01. The numbers below correspond with the numbers we have placed in the margin of the department’s response. 1. The department’s response minimizes the allegations made by the incarcerated person in his letter. The incarcerated person’s letter did not refer to an isolated incident of an employee failing to a wear a mask, nor was this an instance of a supervisor observing a staff member failing to wear a mask on a single occasion. The incarcerated person’s letter paints a picture of widespread and pervasive failures by staff to wear face coverings in and around a dormitory unit over a 12-day period from November 18 through November 29, 2020. The incarcerated population, as well as staff, suffered greatly as a result of the COVID-19 outbreak earlier in the year, making the failures even more egregious. The incarcerated person identified two officers who failed to properly wear a face covering on five occasions over a 12-day period and another officer who failed to do so on four occasions. A total of nine employees were identified, including eight officers, who failed to properly wear a mask multiple times during this time period. The incarcerated person documented these violations in his letter, providing specific names, dates, times, and locations. The incarcerated person also noted incidents in which supervisors and officers were properly wearing a mask, but were present when staff members failed to properly wear a mask. There is no record in the inquiry report that any of these staff members reported the failure of staff to properly wear a mask. The incarcerated person identified incidents in which multiple staff members congregated without socially distancing and failed to wear face coverings in violation of a clear policy meant to protect incarcerated persons and staff members alike. The incidents described clearly amounted to potential misconduct, and the hiring authority should have referred these allegations to the Office of Internal Affairs or the Allegation Inquiry Management Section. Page 13 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 Incidents Reported by the Incarcerated Person Concerning Staff Members Who Failed to Wear Masks November 2020 (Dates and times are listed in next row) 18 18 19 19 20 21 21 22 24 24 25 26 27 27 28 28 29 29 29 No. of 1520 1708 804 1100 1047 903 1402 1526 1057 1545 1420 2nd 230 1430 1315 1706 822 940 1000 Staff Member Incidents hrs hrs hrs hrs hrs hrs hrs hrs hrs hrs hrs watch hrs hrs hrs hrs hrs hrs hrs Officer 1 2 X X Psychiatric Technician 1 2 X X Doctor 1 1 X Psychiatric Technician: Asian Male (unnamed) 1 X Officer 2 2 X X Officer 3 5 X X X X X Officer 4 5 X X X X X Officer 5 1 X Officer 6 2 Y Y Officer 7 1 X Counselor, Male (unnamed) 1 Y Sergeant, Female (unnamed) 1 Y Officer 8 2 X X Officer 9 1 X Officer 10 2 X X Officer (unnamed) 1 X Psychiatric Technician: Black Male (unnamed) 1 X Officer 11 3 X X X Officer 12 4 X X X X Officer 13 1 X Sergeant, Tall Male (unnamed) 1 Y Psychiatric Technician: Asian Male (unnamed) 1 X Officer (unnamed) 1 Y Officer 14 1 X Officer 15 1 X Lieutenant 1 1 Y Sergeant 1 1 X Key X = Failed to wear a mask properly Y = Wore a mask properly, but was present when other staff failed to wear a mask properly Note: All staff members listed with a number were identified by name by the incarcerated complainant, but their names have been redacted. If the incarcerated person did not name the staff member, but otherwise described them, they are referred to as unnamed. Page 14 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 2. Even if the department determined that the letter alone was not sufficient to establish a reasonable belief that misconduct occurred, it should have immediately referred the matter to the Allegation Inquiry Management Section as required by departmental policy. The hiring authority did not refer the matter to either the Office of Internal Affairs or the Allegation Inquiry Management Section. Instead, the investigative services unit conducted an inadequate inquiry and failed to ask all the necessary questions to corroborate or contradict the allegations made by the incarcerated person. The incarcerated person detailed 19 separate incidents that took place over a 12-day period, and prison investigators failed to adequately investigate any of them. The OIG dismisses the department’s contention it could not establish a reasonable belief that misconduct occurred based on the incarcerated person’s letter because the department decided to conduct a local inquiry and failed to adequately address whether there was a reasonable belief that misconduct occurred in any of the incidents raised in the letter. 3. The department responded the incarcerated person noted that one allegation was against an “Asian guy,” then later that it was against a “Black guy,” and that these statements were inconsistent. This contention is not accurate, as the incarcerated person never accused an “Asian guy” and a “Black guy” of the same specific misconduct as we will explain below. The incarcerated person described in his letter three instances in which he observed psychiatric technicians failing to properly wear face coverings, but he did not name those individuals. He described those instances as follows: a. “11:00 a.m., 11-19-20, Asian male psychiatric technician, distributing medications and insulin (redacted) without face cover and with med-room door slightly open.” b. “3:45 p.m., 11-24-2020, Black male psychiatric technician who worked (redacted) at officer work station wearing face cover on his chin with mouth and nose exposed.” c. “5:06 p.m., 11-28-2020, Asian male psychiatric technician issued me medications in (redacted) without face covering.” The letter never indicates that any one of the psychiatric technicians involved in these instances was the same person. Page 15 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 During the interview, the investigators asked the incarcerated person if the staff were wearing masks during medication pass on the day of the interview (December 7, 2020) and over the weekend prior to the interview. The incarcerated person said the person distributing medication the night before had his mask on, but that he did catch him not wearing a mask about a week prior to the interview. The investigator asked if he was “Asian.” The incarcerated person said he was a “Black guy” and that the incarcerated person had caught him not wearing a mask a couple of times at the podium. The incarcerated person did not state in the interview that he was an “Asian guy” as the department claims in its reply. Furthermore, the incarcerated person’s statement was consistent with his letter in which he identified a Black male psychiatric technician who failed to properly wear a face covering while at the workstation, or podium. The department contends the incarcerated person was inconsistent and calls into question the reliability of the information being provided. This is simply not true. As we pointed out in our report, the investigators failed to ask during the interview if the incidents discussed were the same as those described in the incarcerated person’s letter, or if there were any other witnesses to these incidents. The department’s inadequate inquiry failed to establish that the incarcerated person was being inconsistent. Finally, the department replied that the inconsistency makes it difficult to positively identify any staff member. However, the department ignores that the investigator was able to identify psychiatric technicians who were on duty at the time of these incidents. The investigator did not ask the incarcerated person if he could identify by photograph any of the psychiatric technicians as being the person who failed to wear a mask. As we noted in our report, investigators asked a second incarcerated person if he would be able to identify by photograph staff members who failed to properly wear a face covering at the podium. The incarcerated person said he could. There is no record the prison investigators actually followed up and asked the incarcerated person to review photographs and identify the staff members who did not wear face coverings. It is difficult to identify staff members involved in misconduct when investigators fail to take obvious and reasonable steps to follow up on readily available information. Page 16 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–01 SENTINEL CASE JUNE 3, 2021 4. The department contends it is unable to ask incarcerated persons about specific allegations without asking leading questions. A leading question is one in which the question prompts, implies, or encourages the respondent to give the desired answer. There are many ways to ask witnesses about allegations regarding a specific incident without asking leading questions, and the OIG observes investigators with the Office of Internal Affairs do so in almost every investigation. Furthermore, the investigators failed to ask the incarcerated complainant about the allegations he raised in his letter. The department’s concerns about safety are not relevant to the investigators’ failure to ask specific questions of this incarcerated complainant. 5. The department contends our opinion that the inquiry was woefully inadequate is disingenuous because the investigator wrote a 21-page report, conducted 16 recorded interviews of incarcerated persons (11 of which were fewer than three minutes long), conducted unrecorded interviews of some supervisors, and reviewed attendance records. The OIG disagrees with the department that this work amounts to an adequate inquiry. While we disagreed with the outcome of the inquiry, that is not why we described it as woefully inadequate. As we pointed out in our report, investigators failed to sufficiently ask questions concerning the incidents described in the letter written by the incarcerated person. Furthermore, they failed to follow up with the incarcerated person who said he could identify by photograph those staff members who failed to properly wear a face covering while at the podium. The investigators failed to interview the accused staff members about the allegations against them. In addition, the investigators failed to determine whether it was possible for staff members to congregate at the podium without masks and safely socially distance while eating. For these reasons and for the remainder set forth in this Sentinel Case, we have properly concluded that the inquiry was woefully inadequate. Page 17 of 17 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov