Staff Misconduct Process Fact Sheet

Roy W. Wesley OFFICE of the Inspector General OIG INSPECTOR GENERAL Bryan B. Beyer Chief Deputy Inspector General Fact Sheet Independent February 16, 2021 Prison Oversight The California Department of Corrections and Rehabilitation: Its 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 The Office of the Inspector General is required to provide The Department’s Identification and Routing of Grievances That Potentially contemporaneous oversight of the California Department Alleged Staff Misconduct During the Three-Month Period From June 1, 2020, of Corrections and Rehabilitation’s (the department) process for Through August 31, 2020 reviewing and investigating incarcerated persons’ allegations of staff misconduct. In our January 2019 report Special Review of Salinas Valley State Prison’s Processing of Inmate Allegations of Staff Misconduct, we concluded that Salinas Valley State Prison’s handling of such Grievances That Potentially Contained Allegations of Staff allegations was inadequate, and that the lack of independence of the Misconduct, According to Prison N = 3,937 staff reviewing the allegations—their bias in favor of coworkers— Grievance Coordinators (100%) contributed significantly to the inadequacy of their investigative efforts. We recommended the department overhaul its process statewide by adopting a regionalized staffing model to ensure that inquiries into staff misconduct allegations were not performed by staff embedded with those whose actions they were investigating. In response, the department requested and was awarded $9.8 million Grievances Wardens in annual funding to perform such inquiries through a new unit. Determined Were Staff The department also developed new regulations and procedures Misconduct Grievances 1,374 (35%) for handling incarcerated persons’ grievances involving staff misconduct. This Fact Sheet presents highlights from our review of the department’s new unit, called the Allegation Inquiry Management Staff Misconduct Grievances Referred to AIMS 369 Section (AIMS), and of the department’s new process for handling (9%) incarcerated persons’ allegations of staff misconduct. Note: Prior to June 2020, the department did not track the number of grievances categorized as staff misconduct by grievance coordinators. Source: The Office of the Inspector General’s analysis of the California Department of Corrections and Wardens Referred Few Staff Misconduct Grievances to AIMS for Inquiry Rehabilitation’s grievance data associated with its 35 prisons. During the Five-Month Period From April 1, 2020, Through August 31, 2020 Prisons Handled the Vast Majority of Staff Misconduct 113 Referred Staff Grievances Internally, Choosing to Refer Only a Small Misconduct Grievances Not Accepted by AIMS Percentage to AIMS (21%) • During the five-month period from April 1, 2020, through N = 2,339 Total August 31, 2020, incarcerated persons filed 50,412 grievances. 1,798 Total 541 Staff Misconduct • Of those 50,412 grievances, wardens determined that only (77%) Sta G ff r M iev is a c n o c n e d s uct (23%) Ref G er r r i e e d va t n o c A es IM S 428 Referred Staff 2,339 alleged staff misconduct (4.6 percent). Misconduct Grievances Accepted by AIMS • Of the 2,339 staff misconduct grievances, wardens referred (79%) 541 to AIMS (23 percent). • Of the 541 grievances wardens referred to AIMS, the new unit accepted 428 (79 percent) and returned 113 (21 percent) without an inquiry. █ Staff Misconduct Grievances Wardens Retained at the Prisons • Grievances AIMS refused to accept included allegations █ Staff Misconduct Grievances Wardens Referred to AIMS for Inquiry of unreasonable use of force, threats and intimidation, dishonesty, neglect of duty, sexual misconduct, and retaliation, Source: The Office of the Inspector General’s analysis of the California Department of Corrections and Rehabilitation’s grievance data associated with its 35 prisons. among other serious allegations. Notable Results • The department’s budget proposal • In the first five months that AIMS was fully • By not referring to AIMS the 1,798 grievances requesting $9.8 million in additional operational, it opened only 86 inquiries per wardens determined involved staff misconduct funding for AIMS estimated the new unit month (18 percent of the projected volume), (77 percent), wardens undermined the purpose would perform 474 inquiries per month and yet prisons received 468 staff misconduct of the new unit, which was to create an 5,690 inquiries per year. grievances per month, nearly the volume the independent means, outside the local prisons, department projected AIMS could perform. to investigate possible misconduct committed by staff at the prison. Page 1 of 4 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley OIG OFFICE of the Inspector General INSPECTOR GENERAL Bryan B. Beyer Chief Deputy Inspector General Fact Sheet Independent February 16, 2021 Prison Oversight The Department’s Process for Determining Where to Route Staff Misconduct Grievances Is Overly Complex and Subjective, Diverts Staff Misconduct Grievances Away From the Allegation Inquiry Management Section, and Lacks Oversight The department requires staff to make a complex series of subjective decisions The Office of the Inspector General’s Analysis of the Department’s Existing to screen grievances before the grievances reach AIMS to be investigated. Staff Misconduct Grievance Process During the Five-Month Period Each decision diverts more grievances from AIMS’s independent investigative From April 1, 2020, Through August 31, 2020 process, and all of these decisions occur without oversight. Incarcerated person submitted • At each prison, an analyst, the grievance coordinator, and the reviewing grievance to the local prison’s Office of Grievances where authority (usually the warden) successively apply their interpretations staff and the warden made the of the term staff misconduct to decide where to route incarcerated following determinations: N = 50,412 persons’ grievances. • Next, the warden decides, prior to any investigation, whether or not an allegation of staff misconduct is likely to be true. St 1 ep D t i h d a t t h s e ta g ff r i v e i v o a la n t c e e d c a o n la t w ai , n r e a g lle u g la a t t io io n n , s R a e n t d a i c n a e t d e g th o e ri z g e r d ie v th a e n c g e r i a e t v a th n e c e p r a i s s o a n • This routing process provides no oversight of the decisions staff and policy, or procedure? NO ROUTINE GRIEVANCE wardens make at each step. N = 48,073 * YES *We suspect that as many as 4,200 of • Since our new unit for monitoring staff misconduct grievances these may have been mischaracterized primarily monitors AIMS, the prisons’ lack of referrals to AIMS also Step If the allegation(s) was/were true, as a routine grievance when they should 2 would the behavior likely lead to have been characterized as a staff circumvents our oversight. adverse disciplinary action? misconduct grievance, as discussed at NO the bottom of page 3. YES How Staff Determine Staff Misconduct Grievances The grievance was officially categorized as a The department defines a staff misconduct grievance as an allegation STAFF MISCONDUCT GRIEVANCE that staff violated a law, regulation, policy, or procedure, or acted N = 2,339 contrary to an ethical or professional standard, that would more likely Referred to the Office of Internal Affairs’ than not subject a staff member to adverse disciplinary action if it Central Intake Unit were found to be true. In evaluating grievances, staff and wardens Did the hiring authority have a YES for consideration of a formal make the following judgments: Step reasonable belief that the alleged investigation or for permission to take 3 misconduct occurred? adverse action without an investigation. • To discern whether a violation has occurred, staff and wardens N = 0 apply their individual, subjective interpretations of relevant NO policies and standards to the alleged acts as written on the grievance form. Because people differ in their awareness and Did any of the allegations include understanding of policies and standards, these subjective any one of the excluded types of YES Retained the grievance at the prison for determinations lack objectivity and consistency. St 4 ep m c i e s r c t o a n in d u u s c e t? s ( o S f e f x o u r a ce l m , f i a s l c s o e n r d u u le c s t , a local in N qu = iry 1 o , r 7 a 9 s 8 up ( e 7 rv 7 is % or ) y review. • To predict the penalty that would be imposed assuming the violation reports, and misconduct during the disciplinary and reasonable alleged acts are found to have occurred, staff and wardens are accommodation processes.) required to predetermine an appropriate level of discipline Referred to the Office of Internal without having much of the information that is necessary to the Affairs’ AIMS for inquiry. disciplinary determination, such as the employees’ disciplinary NO N = 541 (23%) history, the evidence uncovered by the investigation, and the existence of mitigating and aggravating factors. Source: The Office of the Inspector General’s analysis of the California Department of Corrections and Rehabilitation’s Staff Misconduct Grievance Process. The data included in this flowchart are for the five-month period ending August 31, 2020. Wardens Frequently Overruled Grievance Coordinators When Determining Whether a Without Reasonable Justification, AIMS Refuses to Investigate Several Grievance Alleged Staff Misconduct, Leading Us to Believe the Actual Number of Staff Serious Types of Staff Misconduct and Returns Without Investigation Misconduct Grievances Was Much Higher Than Reported During the Three-Month Period Allegations that Do Not Meet Various Procedural Requirements From June 1, 2020, Through August 31, 2020 AIMS will not perform inquiries into the following types of allegations or filed grievances: uses of force that staff reported but that did not 1,400 result in “serious bodily injury” ◆ due process violations during the disciplinary process ◆ violations of the Prison Rape Elimination Act 1,200 (PREA) ◆ disagreement with disciplinary decisions staff make ◆ false rules violations ◆ misconduct during the Americans With Disabilities N = 3,937 854 Additional 1,000 Grievances Act’s reasonable accommodation process ◆ allegations AIMS does not 1,374 Grievances 2,563 863 Potentially believe constitute staff misconduct ◆ grievances filed more than 30 days (35%) P A ot ll e e n g t i i n a g lly (65%) 800 860 840 Staff A M lle is g c i o n n g d uct after alleged misconduct occurred ◆ misconduct that did not have a Staff Misconduct Each Month, “material effect” on the claimant ◆ allegations concerning harm to on Average 600 someone other than the person who signed the grievance ◆ grievances in which the claimant refuses to cooperate with staff’s attempts to obtain further information. 400 458 Grievances Identified as █ G Al r l i e e g v a a t n io ce n s s T o h f a S t t a P f o f t M en is t c ia o l n ly d C uc o t n , t A ai c n c e o d rd ing 200 467 468 439 St G a E r f a f i W e c M h v a a i r M s n d c c e o o e n n n s s t d h b u , y c t R G a ri t e h v e a r n t c h e a , n A P IM erf S o I r n m v e a s t C ig o a m to p r le s t A e b In ru q p u t i l r y y S I t n o t p o T a h S e t i a r ff W M or i k sc a o s n S d o u o c n t as to Prison Grievance Coordinators on Average They Form a Reasonable Belief that Staff Misconduct Occurred 0 June July August █ Grievances That Reviewing Authorities AIMS stops all investigative activity when it discovers sufficient evidence Determined Were Staff Misconduct Grievances to determine that any form of misconduct occurred, even when an inquiry involves several allegations of misconduct. Terminating an inquiry Note: Prior to June 2020, the department did not track the number of grievances categorized as staff misconduct by grievance coordinators. before gathering all evidence and interviewing all witnesses risks leaving undiscovered relevant evidence and may cause related allegations to Source: The Office of the Inspector General’s analysis of the California Department of Corrections and Rehabilitation’s Offender Grievance Tracking System data for June 1, 2020, through August 31, 2020. pass uninvestigated. Page 2 of 4 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley OIG OFFICE of the Inspector General INSPECTOR GENERAL Bryan B. Beyer Chief Deputy Inspector General Fact Sheet Independent February 16, 2021 Prison Oversight The Low Rate at Which Wardens Determined Very Few of the Department’s Resolved Claims of Staff Misconduct Resulted in Policy Violations Their Staff Violated Policy and the Department’s Use During the Three-Month Period From June 1, 2020, Through August 31, 2020 of Ambiguous Language to Track the Results of Its All Resolved Claims Reviews Raise Serious Concerns About the Fairness All Resolved Claims of Staff Misconduct of Staff Misconduct of the Process Determined as Approved Between June 1, 2020, and August 31, 2020, wardens exonerated staff in 98.3 percent of incarcerated 22 persons’ allegations. Policy Violations Similarly, our 2019 review of the former process in place at Salinas Valley State Prison found that the prison 4 Pending exonerated staff at a rate of 97.3 percent, a full percentage point lower than the department’s new statewide process. Dis 1 ap ,0 p 7 ro 0 ved N = 1,293 70 Total Approved 10 Unknown No Total Resolved Approved Staff Misconduct The department’s grievance referral process is designed Policy Claims of Staff (5%) Claims in such a manner that wardens are instructed to refer to Violations Misconduct AIMS only those allegations of staff misconduct that they (83%) O 1 t 5 h 3 er 34 do not reasonably believe to have occurred. Resolved No Claims Policy In our opinion, among other factors contributing to the (12%) Violations low rate at which wardens found policy violations against their staff is this requirement that wardens predetermine the outcome of the inquiry before it has even begun. █ Disapproved The reviewing authority found by a preponderance of the evidence available that all applicable policies were followed and that all relevant decisions, actions, conditions, or omissions by the department or departmental staff were proper. Weaknesses in Its Data Collection and Tracking █ Approved The reviewing authority did not find by a preponderance of the evidence available that all applicable policies were followed or that all relevant decisions, actions, conditions, or omissions by the department or Process Limit the Department’s Ability to Effectively departmental staff were proper. Analyze Trends and Assess Its Process for Handling █ Other Resolved Claims We are using the term resolved to include grievance decisions of approved, disapproved, Staff Misconduct Grievances rejected, and time expired. We exclude unresolved claims categorized as no jurisdiction, reassigned, redirected, and under investigation. The department maintains numerous information systems that capture data regarding the staff misconduct grievance Source: The Office of the Inspector General’s analysis of the California Department of Corrections and Rehabilitation’s grievance data associated with its 35 prisons. process, but none of these systems can produce basic management reports that enable managers to perform meaningful trend analyses or assessments of the process. Fewer Than 2 Percent of Staff Misconduct Grievances Were Found to Contain Policy Violations Between June 1, 2020, and August 31, 2020 The department cannot produce basic reports necessary to successfully manage the process from a statewide • Because the department could not produce a report showing the number of staff misconduct perspective or at the level of the individual prison, grievances in which accused staff had violated policy, we examined a department report showing including any of the following: the number of allegations of staff misconduct that wardens had approved. • California regulations define approved as meaning the reviewing authority (i.e., warden) did not • A report identifying the inquiries that resulted in find by a preponderance of the evidence available that all applicable policies were followed and policy violations or disciplinary actions that all relevant decisions, actions, conditions, or omissions by the department or departmental • A report identifying the number or names of staff were proper. Disapproved is the opposite. staff who have been accused of misconduct by • Of the 1,293 allegations the department resolved between June 1, 2020, and August 31, 2020, only incarcerated persons 70 were resolved as approved (5 percent). • A report identifying the names of staff found • Of those 70 approved claims, only 22 were found to contain policy violations (1.7 percent). to have violated a policy in connection with an • Wardens used the term approved inconsistently, applying it to claims they determined to be in allegation of staff misconduct policy, out of policy, or still pending. • A report identifying any actions taken against staff • The department’s ambiguous use of the term approved obscures accurate reporting of inquiry to rectify any related policy violations outcomes and undermines the department’s transparency in reporting. The Office of the Inspector General’s Analysis of Grievances Potentially 3-Month Period, 5-Month Period, Containing Allegations of Staff Misconduct Ending Ending August 31, 2020 August 31, 2020 * Annualized * Grievances That Potentially Contained Allegations of Staff Misconduct, A According to Prison Grievance Coordinators 3,937 6,562 15,748 Grievances That Reviewing Authorities Determined Met the Criteria for B a Staff Misconduct Grievance 1,374 2,339 5,614 C Staff Misconduct Grievances Referred to AIMS 369 541 1,298 Grievances We Believe Were Potentially Mischaracterized as Routine Grievances (the difference between A and B) 2,563 4,223 10,134 * Prior to June 1, 2020, the department did not capture the number of grievances that prison grievance coordinators identified as potentially containing allegations of staff misconduct. Due to this limitation, we adjusted the values in bold for the five-month period based on the monthly average for the three-month period. We then annualized the values on all three rows based on the monthly average for the five-month period. Source: The Office of the Inspector General's analysis of the department's grievance data associated with its 35 prisons. Page 3 of 4 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley OIG OFFICE of the Inspector General INSPECTOR GENERAL Bryan B. Beyer Chief Deputy Inspector General Fact Sheet Independent February 16, 2021 Prison Oversight Filled Staffing Levels for AIMS to Conduct Inquiries Were Near or Above Capacity The Department’s Budget Proposal Demonstrated AIMS Had Ample Capacity During the Five-Month Period From April 1, 2020, Through August 31, 2020 to Handle Staff Misconduct Grievances Filed During the Five-Month Period From April 1, 2020, Through August 31, 2020 Full staffing capacity of 42 positions, including 36 investigator-lieutenants and six captains.* N = 2,339 50 AIMS’s Funded Capacity (474 per month) 4.5 4.5 500 40 5.5 421 ██ Staff Misconduct 5.0 5.9 400 378 Grievances █ Retired 372 Wardens Retained Annuitant, 338 289 at the Prisons 30 42.0 Intermittent █ Staff Misconduct 41.6 300 Grievances 35.3 █ Permanent, Wardens Referred 20 34.4 34.0 Full Time to AIMS for Inquiry That AIMS Did 200 Not Accept █ Staff Misconduct 10 14 20 Grievances 100 17 38 Wardens Referred 83 91 24 130 t In o q A u I i M ry S T h fo a r t 0 58 66 AIMS Accepted April May June July August 0 April May June July August * This analysis excludes the four support positions and the one managerial position that were also established within AIMS. For comparison purposes, we adjusted the number of retired annuitants Note: The dotted line represents AIMS’s average monthly handling capacity of 474 staff to reflect their full-time equivalent value. Some retired annuitant positions did not perform misconduct grievances. We calculated this value by dividing 5,690 (the number of staff investigations; for example, one retired annuitant maintained an information system. misconduct grievances the department estimated in its fiscal year 2019–20 budget proposal that it would handle) by 12 (the number of months in a year). Source: The Office of the Inspector General’s analysis of the California Department of Corrections and Rehabilitation’s fiscal year 2019–20 budget proposal and Allegation Inquiry Management Source: The Office of the Inspector General’s analysis of the California Department of Section staffing and workload data. Corrections and Rehabilitation’s grievance data associated with its 35 prisons. According to Its Own Analysis, AIMS Had the Resources to Investigate • The department projected that AIMS would handle approximately 5,690 staff Significantly More Staff Misconduct Grievances Than It Did misconduct inquiries per year, based on the number of staff misconduct grievances the department processed in the 2018 calendar year. • The department’s fully funded AIMS unit included 47 positions. Among • With nearly all positions filled, AIMS has handled only about 18 percent of the these were 36 lieutenants to perform the inquiries, and six captains, three staff misconduct grievances the department stated it would handle. Between office technicians, one analyst, and one chief deputy administrator to April 2020 and August 2020, AIMS’s investigators handled between one and provide supervision, management, and administrative work. With this four inquiries per month, well short of the projected rate of 13 inquiries per staffing, the unit was expected to handle all of the department’s staff month. Yet the number of investigators and captains AIMS employed during misconduct grievances. this period was either near or above its authorized capacity. Recommendations: The Department Should Require Incarcerated Persons to Submit Staff Misconduct Grievances Directly to the Allegation Inquiry Management Section to Increase the Independence and, Ultimately, the Fairness of the Process To provide greater independence, consistency, and legitimacy to the Recommended Process for Handling Incarcerated Persons’ Grievances Alleging Staff Misconduct staff misconduct grievance process, we recommend the department take the following actions, among others: Incarcerated Person Deposits Into Lockbox Grievance Form Alleging • Revise its process for receiving and referring allegations of Staff Misconduct staff misconduct, as depicted to the right. • Remove the procedural and substantive limitations to Prison Staff Scans Forms AIMS’s jurisdiction. to AIMS Central Intake • Require AIMS to perform complete investigations rather than stop its investigations when it believes misconduct has AIMS Central Intake Grievances Not Alleging been substantiated. Refer Decides to Refer, Open, Return Staff Misconduct or Return Complaint Returned to Warden to Handle Internally • Redefine staff misconduct to remove the subjectivity inherent in its current definition. Request a Formal Completed Inquiry • Prepare a workload analysis factoring the length of time it takes Investigation If There Returned to Warden for Is Reasonable Belief of Open AIMS Inquiry Disposition If There Is to conduct an inquiry and the number of staff it would need to Staff Misconduct No Reasonable Belief handle the total volume of allegations of staff misconduct. of Staff Misconduct • Implement a statewide review process to ensure wardens make Completed Open Formal Investigative Report consistent and fair disciplinary determinations. Investigation or Approve Returned to Warden Direct Action for Disposition of • Develop a centralized information tracking system that Staff Misconduct comprehensively tracks key information and data involving the Central Intake AIMS Warden entire staff misconduct process. Source: The Office of the Inspector General. Page 4 of 4 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov