BOISE, Idaho — Idaho's settlement with private prison company Corrections Corporation of America releases the company from all civil liability connected to the understaffing at the prison south of Boise, as well as any liability stemming from staffing issues not yet discovered.
But the full scope of the settlement is difficult to determine. The Idaho Attorney General's office, which reviewed the settlement on behalf of the state, refused to comment on the document, claiming attorney-client privilege.
Gov. C.L. "Butch" Otter's office referred all questions to the Idaho Department of Correction, and Division of Purchasing Administrator Bill Burns didn't return phone messages left by The Associated Press. Idaho Board of Correction members Robin Sandy and David McClusky did not immediately respond to emails from The Associated Press.
The Idaho Department of Correction refused to comment on the settlement, saying only that it would not affect the Idaho State Police criminal investigation currently underway.
The settlement says that in exchange for CCA paying $1 million, the Idaho Department of Administration, Division of Purchasing, Department of Correction and Board of Correction agree to release the prison company from all liability arising from the staffing of the Idaho Correctional Center.
That release of liability lasts forever and is irrevocable and includes but isn't limited to "any claims under any other federal, state or local statutes or ordinances not referenced above (the "Staffing Damages")..." according to the document. The settlement also states that it isn't tied to a forensic audit that found that CCA understaffed the prison by thousands of hours in 2012, and that CCA doesn't agree with those audit findings.
CCA has operated Idaho's largest prison for more than a decade. The Idaho Department of Correction asked the Idaho State Police to launch a criminal investigation into CCA last year after an Associated Press investigation showed that the Nashville, Tenn.-based company's staffing reports given to the state listed some guards as working 48 hours straight in order to meet minimum staffing requirements. CCA then acknowledged that its employees falsified the documents to hide thousands of hours of understaffing at the prison in violation of the $29 million state contract.
For the past 12 months, state officials have said that the investigation was underway. But after the AP filed a public-records request for the Idaho State Police investigation documents late last month, the law enforcement agency revealed no investigation ever occurred.
The release of liability stretches from Dec. 23, 1997 the day Idaho and CCA first inked a contract until Feb. 18, 2014 the day the settlement went into effect. Feb. 18 was the same day that the governor announced he had changed his mind and was directing the Idaho State Police to criminally investigate the matter after all.
"Throughout this process, we've operated under the same understanding as the Board of Correction and the public that a criminal investigation had been conducted," said CCA spokesman Steve Owen in an email to The Associated Press. "Our own internal investigation concluded that this was not a criminal matter, and we remain confident in those findings. We'll of course continue to cooperate with the state as we have all along in their review."
Monica Hopkins, the executive director of the ACLU of Idaho, said the wording of the settlement is troubling. The ACLU sued CCA several years ago, contending that the understaffing contributed to high levels of violence between prison inmates.
"The settlement agreement, in the way it's written, potentially gives CCA the inch they need to fight any criminal proceedings. What remains to be seen is whether or not the state will vigorously fight CCA on behalf of the taxpayers of Idaho," Hopkins said, noting that neither the Attorney General's office nor the Ada County Prosecutor's office were a party in the settlement.
However, the Attorney General's Office did advise the Department of Correction and others on the settlement agreement, and state law doesn't expressly state whether Attorney General Lawrence Wasden has any authority to sue CCA on his own. The same law that allows the state to enter private prison contracts gives Wasden authority to sue to enforce the contracts, but Wasden's spokesman Todd Dvorak says Wasden can only exercise that authority if the Idaho Board of Correction or the Correction Department first asks him to.
"The attorney general of this state shall enforce an agreement or contract made under this section in a civil suit," the law reads.
Board of Correction member J.R. Van Tassel the only state official who agreed to talk to the Associated Press about the settlement and the lone board member to vote against the agreement said he is concerned about the amount of information the board had when negotiating with CCA.
The board members voted on the agreement on Feb. 3, Van Tassel said, and at the time they believed the Idaho State Police had already done a criminal investigation and decided that there was no crime to prosecute. Van Tassell said he thought the Idaho State Police investigation found that the CCA employees responsible for falsifying the staff reports had been fired.
"The way it was described to us or explained to us was that it was found that the people who had been dismissed by CCA hadn't gained materially by their activities, therefore there was no crime. So we were left without any charges on the table, left with just civil remedies," Van Tassel told The Associated Press in a phone interview. "Quite frankly, on Feb. 5th, when you told me that there hadn't been any ISP investigation, that kind of floored me. I was at a loss for words."
At that point, Van Tassel said, he believed the settlement agreement had already been signed and officially taken effect.
"I think that the board may have treated this a little differently had it been clear to us that (Idaho State Police) Col. Powell wasn't going to present us with any factual findings pursuant to an investigation, which we felt were coming," Van Tassel said.