The state attorney general and the state Commission of Correction sued Erie County Sheriff Timothy B. Howard on Wednesday alleging he has not properly reported or investigated sexual misconduct between inmates and staff at the two jails he oversees.
It is the Commission of Correction’s third lawsuit attempting to force Howard to abide by the rules imposed on New York’s local jails. The latest case, an Article 78 proceeding, follows the commission’s 2017 directives telling the sheriff to properly report the serious incidents that occur behind bars or face legal action.
The Howard team had no immediate comment on the lawsuit, which asks a State Supreme Court judge to order the sheriff to follow the state’s rules and train key staff on the proper response to sexual misconduct. It also asks the sheriff to appoint an independent monitor to audit the extent to which incidents have gone reported or unreported.
“For years, the Sheriff’s Office turned a blind eye to rampant sexual misconduct allegations at its correctional facilities,” Attorney General Letitia James said in a written statement announcing the lawsuit.
“By refusing to appropriately investigate and report the allegations, the Sheriff’s Office permitted those under their care to be taken advantage of by the very individuals who hold power over them every single day. It is inexcusable that these issues went unaddressed for so long, and it is my hope that our action today will encourage transparency, accountability, and diligence moving forward.”
State and federal laws treat a jail staff member’s sexual contact with an inmate as a crime. Because of the power imbalance, inmates are considered unable to consent to sexual contact with the people who guard them.
“The Erie County Sheriff’s Office has an abysmal track record of complying with the requirement to notify the commission of incidents that jeopardize the safety and well-being of individuals in custody, facility staff and the community,” Commission of Correction Chairman Allen Riley said in the written statement.
“This latest failure to report and properly investigate allegations of crimes committed within the Erie County Holding Center and Correctional Facility is particularly egregious: There can be no consent when someone is incarcerated,” Riley said.
With Howard not running for reelection, a Democratic candidate seeking to replace him seized on Wednesday's news to set himself apart from the Republican's administration and Republicans in this year's race who have not criticized the incumbent.
"I think, like the rest of Western New York, we should be outraged that an elected official, the sheriff of Erie County, is not doing the job he was elected to do," said Brian Gould, assistant chief of the Cheektowaga Police Department.
Gould said the Commission of Correction should be seen as a partner in ensuring the safety of people in the county's custody, and he will be fully transparent with the agency if elected.
The lawsuit accuses the Howard team of failing to timely and fully report accusations of sexual misconduct, or reporting them only after they surfaced in the news media, including The Buffalo News. The legal petition cites, among others, the case of Holding Center Sgt. Robert Dee, who once married a woman he met behind bars.
Two separate internal investigations unfolded against Dee in 2020. The first began after a female inmate told jail officials she had seen Dee kissing and embracing another female inmate as Dee supervised inmate cleaning crews. Further, other inmates told investigators that the woman who reportedly engaged in the contact with Dee had bragged of it with them. The investigation hit a dead end, however, when the woman in question denied the stories and said she and Dee had done nothing.
The second investigation began after another female inmate said she had engaged in sexual contact with the sergeant. However, the sheriff’s investigators wrote in an internal summary that they were unable to fully confirm her story and they could no longer access video from security cameras. Both matters were closed as “unfounded,” though the jail’s watch commanders were told to avoid assigning Dee to women’s units.
Jail Management Superintendent Thomas Diina told The News in 2020 that the Dee matters were not reported to the Commission of Correction as required. He called it an oversight and sent the relevant documents to the commission, which was already asking for them.
The Commission of Correction's court petition speaks of a problem with the second Dee investigation beyond the failure to report it. When internal investigations involve potential crimes, agencies are to devote criminal investigators to the probe. Just days ago, Howard assured a county Legislature committee he follows that protocol. But the complaint says criminal investigators were not involved in the second examination into Dee’s conduct.
According to the petition, Erie County officials explained that too much time had elapsed between the date of the “supposed incident” with Dee and the woman coming forward. The investigation was conducted by Howard’s Office of Professional Standards, which was looking for administrative violations, the petition says.
The lawsuit cites a case at the county Correctional Facility in Alden. In 2018, the command staff began investigating rumors that male corrections officers were having sexual contact with female inmates and bringing them contraband. Of the five officers implicated, four denied having sexual contact with inmates. Internal documents obtained by The News indicate Howard’s investigators accepted those denials without further examination.
One officer, Keith Roberts, who is no longer employed by the county, admitted to clothed and suggestive contact with female inmates, internal documents show. He was suspended for 30 days. Two other officers, Ronald Dolyk and John Valenti, admitted to sex with former female inmates after they were freed, violating the sheriff’s rules barring contact with former inmates. Dolyk was suspended for seven days, and Valenti resigned rather than be fired because, documents show, he initially lied about his liaison with a former inmate.
Diina, the jail management superintendent, told The News in December that his team properly filed an incident report with the commission about the first case to surface, involving Roberts, and kept the commission apprised as other officers were implicated. But the lawsuit says Erie County failed to fully report the entirety of the later incidents, especially within the required 24 hours of learning about potential sexual contact or beginning an investigation.
The full reports were provided to the commission after The News began asking about the matter late last year. The lawsuit says the sheriff’s officials took 1,001 days to properly provide an incident report that should have been sent within a day.
In a third matter, the commission’s lawsuit says the sheriff’s team failed to properly investigate a male inmate’s complaint that he had been sexually assaulted during a strip search in the Holding Center. While the Sheriff’s Office reported the matter to the commission, it did so incompletely, failing to mention the strip search, the petition says. Further, while the Office of Professional Standards and criminal investigators deemed the inmate’s claim “unfounded,” there was no sign investigators reviewed security footage, interviewed witnesses or considered the results of a hospital nurse’s examination for signs of sexual assault, the petition says.
Howard, who is in his final months as sheriff, took office in 2005. At the time, the Holding Center was straining as it held defendants arrested by police agencies around the county and defendants arrested by Buffalo police. In a stab at government consolidation, the Holding Center had just been asked to take city defendants who would have been in a Buffalo police lockup before arraignment.
In 2006, the Commission of Correction sued Howard because of overcrowding at the Holding Center and Correctional Facility. Four years later, with Howard arguing he should not have to provide items of personal hygiene and other necessities to inmates awaiting arraignment, a judge ordered him to comply with those requirements and other minimum standards.
In 2017, after The Buffalo News revealed that the Howard team had been categorizing inmate suicide attempts as individual inmate disturbances, which did not require an automatic incident report to the Commission of Correction, the state agency ordered him to follow its rules on reporting serious incidents or face legal action.
While Howard protested at first, Diina eventually assured the commission that Erie County would follow its rules and submitted a plan for corrective action. But the legal petition filed Wednesday indicates there was a glitch as far as sexual abuse allegations were concerned. It says the Sheriff's Office admitted that sexual abuse allegations were not internally tracked as part of the “normal incident process,” and such allegations were not necessarily generating an internal incident report.