Agency of Human Services Secretary Mike Smith is calling for an end to secret agreements and transfers of state Department of Corrections staff who commit misconduct.
Smith also said he would be seeking legislation to make correctional staff subject to drug testing, a move that faces strong opposition. The union representing correctional officers says the mandate is a bid to cover up for bad management and a way to circumvent the bargaining process.
Those changes were among Smith’s recommendations following a review of the state Department of Corrections in the wake of reports of misconduct and drug abuse by correctional staff.
“Most importantly we must change the pattern as it relates to responding to substantiated claims of Misconduct,” Smith wrote in his review released Monday.
“We should no longer agree to confidential, stipulated agreements or move people to different positions while maintaining higher rates of pay,” Smith wrote. “While a settlement may be more expedient or limit financial liability to the state, there are clearly deeper repercussions. This practice needs to stop.”
VTDigger reported last week that the state signed off on a secret agreement with Edward Adams, the former superintendent of Southern State Correctional Facility in Springfield, the state’s largest prison, in December 2018. Adams was demoted to a probation officer position and his rate of pay maintained at $45 per hour.
Why Adams was removed from that post remains hidden by the state; VTDigger is pushing ahead in its lawsuit seeking records related to his firing from that position. The records released so far by the state only reveal that Adams was investigated after employee “allegations.”
Adams had previously served as the superintendent of Chittenden Regional Correctional Facility, which is the state’s only women’s prison, for 18 months before moving to Southern State in Springfield January 2016.
The Burlington Free Press first reported that a former female correctional officer at the Chittenden Regional Correctional Facility had filed a complaint against Adams and the DOC.
That complaint, according to the news report, alleged that officials had created a hostile work environment through sexual harassment and inappropriate comments.
Smith, in an interview Monday, said the Adams case was among those that prompted him to make the call for change. He added that he believed there were other such cases across state government, and not limited to the Department of Corrections.
Smith said he didn’t know how many cases there had been within DOC, but added there “were enough” to alert him of the need to call for change.
Asked if the allegations against Adams had been found to be substantiated, Smith said he wasn’t sure and didn’t know himself the nature allegations.
“I have not reviewed that case totally,” said Smith, who was appointed AHS secretary in October. “I have not reviewed the investigation report.”
Smith’s review follows a report earlier this month in Seven Days about the women’s prison that detailed allegations of sexual abuse and harassment as well as drug use by guards at the prison.
Shortly after that report was published, Smith pledged to conduct a review of the Corrections Department and also called for an independent investigation.
There have also been several other personnel moves in the DOC in recent days.
Mike Touchette, corrections commissioner, resigned last week from his post.
Deputy Commissioner of Corrections Judy Henkin has stepped in as acting corrections commissioner and will handle complaints and other matters related to the women’s prison.
Amy Jacobs, who had been working for probation and parole in St. Albans, has also been named as a second assistant superintendent at the women’s prison. Theresa Stone is that prison’s superintendent and Lori Perkins is the other assistant superintendent.
Smith outlined next steps to change the culture of the prison system.
“DOC has been working to develop a culture of continuous improvement,” Smith wrote. “Clearly, these cases indicate the state must do more, faster and better, to support the work and hold people fully accountable.”
He added, “We cannot shirk our responsibility to address culture change. This report is not a thorough investigation of what has transpired, but it does provide steps we propose to begin to correct the challenges our corrections system faces.”
The recommendations include:
— The launch of an independent investigation by Jan. 1 that would run no more than 120 days.
Smith wrote in the report that the investigation needs to be “transparent” and “expeditious.” He said he has determined that it should be done by a “team within a law firm,” and he is currently working to simplify the bid contracting process to have that team in place by the end of next week.
That team, the report stated, will report “directly” to Smith and will be able to work in any of the state’s correctional facilities, though it will mainly focus on the women’s prison.
According to the report, the investigation will look at the “pertinent facts related to the incidents of alleged sexual abuse and misconduct perpetrated by state employees on women inmates and employees.”
Smith said Monday he did consider asking the U.S. Attorney’s Office to handle the investigation, but ultimately decided to pursue a different approach.
“The federal government keeps their investigations close to the vest in terms of what they’re doing, when there doing it,” Smith said. “It wasn’t as expeditious as I wanted it, nor was it as transparent as I wanted it.”
He said should federal prosecutors decide to conduct a separate investigation, the agency would cooperate.
— Selection of an interim commissioner by Jan. 4.
After the independent investigation, a permanent commissioner will be selected to head the corrections department.
— The introduction of legislation to broaden protections for former inmates in the probation and parole system from sexual assault by officers.
The current statute, according to the review, applies only to a DOC employee who has a “supervisory relationship” to an inmate and assigned to that person’s caseload.
Current state law inhibits prosecution of a DOC employee who has a sexual relationship with a former inmate on probation.
“The individual,” according to the review, “would still be under the supervision of DOC while out on probation but would not be on the caseload and, therefore, the CO could not be charged under this statute.”
— A push for legislation in the 2020 session to mandate drug testing for correctional officers.
“Requiring drug testing for current employees would be considered a ‘change in working conditions’ requiring bargaining under the Collective Bargaining Agreement,” Smith’s review stated.
“A more expeditious route to implement drug testing would be if the legislature were to pass legislation requiring it for correctional officers,” the document added. “If such legislation were to pass, the State would then be in a situation where they would be bargaining the impact only – meaning they would bargain what would happen to an employee upon a positive test result.”
— An update of minimum qualifications for correctional officers.
The report stated that the recruitment and retention of correctional officers has been an issue for some time.
“The impact on this can be seen in the ever-growing amount of overtime being paid each year,” the report stated. The report doesn’t outline what changes in standard should be made, stating that the “discussion” on the matter is needed.
“But more importantly,” the report stated, “our recruitment efforts must focus on diversifying our workforce to make sure that it more accurately reflects the population incarcerated.”
Sen. Dick Sears, D-Bennington and chair of the Senate Judiciary Committee, said Smith’s report is a “good first step,” but more reforms could be in the offing.
“It’s got a lot of good ideas, good points,” Sears said of Smith’s report. “This is not unique to Vermont, these problems. I think it’s always helpful to have an outside look.”
Sears said Monday that he expects Smith will be appearing to testify before the Senate Judiciary Committee during the first week of the upcoming legislative session.
Sears said he believed that the Legislature had previously taken action to address sexual relations between correctional workers and parolees.
“I will check when I get back on that law,” he said. “I’d be more than happy to update the law, but I thought we did something.”
Sears expects pushback from the Vermont State Employees’ Association, the union which represents correctional staff, on drug testing.
“I can’t see them agreeing to drug testing,” he said of the VSEA.
Steve Howard, VSEA executive director, said Monday the union opposes both of Smith’s proposals.
“I think I would characterize it as an overreach to try to hide from the public the fact that this case is really gross managerial incompetence,” Howard said. “I think what they’re trying to do is make it look like it’s all the COs who are guilty here, but it’s really the management of the Department of Corrections that is at fault.”
He said “99 percent” of the correctional officers are “upstanding” employees and they’re all being painted by a “broad brush” in the report.
Howard said correctional officers had been raising concerns and reporting incidents of misconduct to DOC and getting little response.
He said the report’s recommendations to make changes through legislation rather than collective bargaining are an effort to “cut” the union out of the process.
“It shows that the administration really wants to trample on the rights of the correctional officers in order to cover up the failures of management,” Howard said. “I think we should expect more of the administration than that.”