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Corrections vs. union over brutality

ALBANY – The job of an internal affairs investigator in New York State’s Corrections Department can be thankless work. So it was a rare occasion last month when officials summoned all 150 members of the unit to the department’s training academy here for a pep talk.

The past year had been an unusually bad one for the agency, with the escape of two convicted murderers from the Clinton Correctional Facility in northern New York and a series of federal investigations into brutality by officers.

Not mentioned that morning, but understood by all, was that the internal affairs unit, responsible for investigating wrongdoing by guards, had been an embarrassment for years.

Investigators had often been reluctant to challenge the powerful corrections officers’ union, and the disciplinary system was so stacked in the union’s favor that a guard could be found guilty of brutalizing an inmate and not be fired.

But the internal affairs unit had been overhauled. It was now prepared to take the fight to the union, Daniel F. Martuscello III, the department’s deputy commissioner, declared.

“We will do anything necessary,” he said, adding, “I’m not here to make the union happy.”

When he finished speaking that morning, the investigators gave him a standing ovation.

For the New York State Department of Corrections and Community Supervision, which has long been seen as subservient to the union, it was an unusual move of defiance, one that could have reverberations across the prison system.

The possibilities for lasting change in the department largely rest on how this battle plays out, between a newly emboldened internal affairs unit and the 20,000-member union, the New York State Correctional Officers & Police Benevolent Association, which has long held the levers of power inside prisons.

Unbalanced power

The union is a formidable political force, protected in the Legislature, primarily by upstate lawmakers in districts where prisons are the biggest employers. The chairman of the corrections committee in the state Senate, Patrick M. Gallivan, a Republican who represents an area outside Buffalo and Rochester, has five prisons in his district alone. He was previously sheriff of Erie County.

Gov. Andrew M. Cuomo, a Democrat, has walked a thin line. While he oversaw the remaking of internal affairs, he also has ties to the union. His chief of staff, Melissa DeRosa, worked in public relations for the union for several months in 2009 and is the daughter of Giorgio DeRosa, a major Albany lobbyist whose firm received $691,000 from the union between 2010 and 2015, according to state filings. (A spokesman for Cuomo said DeRosa has always been recused from anything involving her father’s firm.)

Union leaders have managed to negotiate favorable labor contracts with a long line of governors, including Cuomo, giving them more control in many cases over personnel decisions than the prison superintendents or even the corrections department’s commissioner.

Under the current contract, union seniority rules dictate that superintendents have practically no power to transfer problem officers. Disciplinary rules give an arbitrator, not the commissioner, final say on who gets fired.

Rules governing internal affairs investigations require officers to receive 24 hours’ notice before being questioned, and while on the job, a guard cannot be penalized for refusing to answer questions from an outside law enforcement agency.

Moreover, details of disciplinary measures taken against guards are kept secret from the public, because of privacy protections won by the police and corrections unions over the years.

The result is that a culture of brutality has been allowed to thrive in the prisons, where a few rogue guards, often known on the cellblocks as beat-up squads, administer vigilante justice, while fellow officers look the other way, according to cases documented over the past year by the New York Times and its reporting partner, the Marshall Project.

The unit’s current caseload of suspected wrongdoing by officers numbers over 1,000: They include an officer at Southport Correctional Facility, Peter A. Mastrantonio, who has been sued 17 times in brutality cases that have cost the state $673,000 in settlements; an 81-year-old inmate at Sullivan Correctional Facility, James Willsey, who is partially deaf and losing his sight, and was knocked unconscious while handcuffed; and a Great Meadow inmate, Frank Povoski, who was beaten after being quoted in the Times about an inmate’s death at the hands of guards.

Michael B. Powers, the union president, said in an interview last week that while he was willing to work with the corrections department, he would fight to protect his officers “with any and all resources necessary.”

Asked whether brutality was a problem, Powers replied, “What are you talking about?”

The Cuomo administration appears to believe there is a problem, hiring additional investigators, bringing the number to about 150 from 116, during the last year and a half.

Previously, most investigators were career corrections officers, with little experience building cases. Several of the new employees, by contrast, came from law enforcement agencies like the FBI and the Drug Enforcement Administration.

Challenging the union

Dysfunction had long been the norm in internal affairs. In early 2015, the unit’s second in command, James A. Ferro, was arrested on charges of sexually harassing an investigator. (He later pleaded guilty and retired with an annual pension of $66,384.)

Stephen Maher, a former state assistant attorney general, was hired in September 2014 to fix the unit. He later picked another former assistant attorney general, Darren Miller, as his deputy.

About 10 percent of the unit’s investigators were removed because they were unqualified, Maher said.

A nurse was hired to assess injuries in brutality cases and a pilot program was started to equip officers with body cameras, a rarity in prisons.

In recent months, the new leadership has stepped up its pursuit of disciplinary action against guards, in some cases pushing the limits of union rules.

Defying seniority provisions in the labor contract, officials transferred two guards out of women’s prisons who were accused of repeated sexual misconduct with inmates. That had rarely happened in the past, in part because the corrections department feared protracted battles with the union. A lawsuit filed in February by the Legal Aid Society cited several examples of guards who were accused of raping female inmates but were allowed to continue working unmonitored in the same prison posts.

In one case that was not mentioned in the lawsuit, James Ford, an officer at a women’s prison, was investigated by the internal affairs unit four times between 2008 and 2012 on suspicion of sexual assault but was allowed to remain in his job. He was eventually caught on surveillance video having sex with an inmate and tipping his hat to the camera. Ford, 65, impregnated the inmate, 24.

A department investigator, Linda Carrington-Allen, later testified that despite finding “strong evidence” that Ford had previously sexually assaulted inmates, she could not order him transferred because of contract protections. He was ultimately convicted of rape; the state settled a civil suit in the case for $895,000.

Department investigators have in recent months also shown greater willingness to refer cases for criminal prosecution.

Ultimately, the crucial question may be how much political capital the Cuomo administration is willing to expend on confronting the union.

Remaking the disciplinary system would require substantial contract concessions from the union, something that has not happened in decades.

The current contract expired at the end of last month, and it could take years of difficult negotiations to reach a new agreement. (Until then, the current provisions apply).

While Cuomo has closed 13 prisons since taking office in 2011, most were fairly small. Even with the closings, there have been no layoffs.

Last month, the Governor’s Office introduced a bill that would allow the department to unilaterally terminate officers convicted of a misdemeanor; currently it takes a felony. To date, however, no lawmakers have sponsored the bill, and Gallivan, the chairman of the corrections committee in the Senate, said no one from the governor’s office has contacted him.