In 2013, the Idaho Department of Correction’s top investigator held off conducting his own inquiry into a private prison operator’s staffing discrepancies because he was led to believe the Idaho State Police had already begun that investigation, according to public records recently obtained by the Idaho Statesman.
The records — released by the state police after a public records request from the Statesman — offer new details on the year in which the state police allowed state and legal officials — including a federal judge, lawyers for the ACLU, other IDOC officials and the attorney general himself and some of his key deputies — to believe that its investigators were looking into possible criminal actions at the private prison:
• The documents help explain the widespread belief that ISP was investigating alleged fraud by Corrections Corporation of America. A state police major introduced himself to IDOC Deputy Warden Timothy Higgins as the investigator in the case, did an interview with Higgins and took IDOC’s documents about the CCA allegations.
• A Feb. 10, 2014, ISP staff meeting document says: “The directors of ISP and IDOC met regularly from the time of the initial request (for an investigation) until now, and at each meeting Colonel Ralph Powell stated Idaho State Police was not conducting an investigation of CCA. ... This appeared to be a breach of contract dispute, and therefore a civil, not a criminal matter.”
But Higgins, who attended the same meetings as Powell, told ISP detectives he never heard Powell making such statements. No minutes were taken at the meetings and ISP provided no documents showing that the agency had communicated its decision not to investigate the CCA case.
• While IDOC officials believed that ISP had investigated alleged fraud by CCA, prison officials reached a $1 million civil settlement with the company. Higgins said that if IDOC knew that ISP had not investigated CCA, that would have factored in the department’s settlement negotiations. That sentiment was echoed by a member of the Board of Corrections who refused to sign off on the settlement; he said the board believed the State Police had investigated and found nothing wrong.
• In a Feb. 7, 2014, letter, Deputy Attorney General Paul Panther admonished ISP: “(T)he only entity really qualified to make a determination of whether criminal activity took place in this matter” was the county prosecuting attorney. “(T)he proper thing (for ISP) to do would be to complete the investigation, submit it to that office and let them decide if charges should or should not be filed.”
• The State Police did not correct a year’s worth of incorrect assumptions and multiple media reports about the existence of the criminal investigation. Why not? “No one contacted ISP to inquire whether or not ISP had a criminal investigation open in this matter,” an ISP spokeswoman said in an email exchange with an Associated Press reporter contained in the public records.
AFTER FALSE START, WASDEN URGES INVESTIGATION
Once allegations about falsified CCA staffing documents were reported by The Associated Press, IDOC Director Brent Reinke formally asked in February 2013 that ISP Col. Ralph Powell launch a criminal investigation. That is the investigation that IDOC and other officials believed was underway for the next year.
In February 2014, after the State Police announced it had not conducted the assumed investigation, Attorney General Lawrence Wasden urged Gov. Butch Otter to order one. Otter, after initial delay, agreed. But that investigation did not last long; detectives quickly determined that the ISP had a conflict because its investigation might entail examining State Police command staff or other employees. The investigation was turned over to the FBI.
It is the documents and reports that State Police investigators assembled before they turned the investigation over to the FBI that were obtained by the Statesman in its public records request.
As soon as they were assigned the case in February 2014, the first person ISP detectives interviewed was Higgins. He headed IDOC’s investigation unit, oversaw prison contracts and was among the first people to uncover discrepancies in CCA staffing.
Higgins declined to be interviewed by the Statesman; his account is drawn from the ISP records.
Higgins told detectives he held off on continuing his investigation into CCA because he assumed the investigation was underway once Reinke had formally asked Powell to conduct the probe. “We saw the colonel all the time,” Higgins told the detectives. “Every time we had a meeting discussing this, the colonel was present.”
Higgins also told detectives he was not the only one who assumed ISP was conducting the investigation.
“Everybody, from the ACLU to us to my legal counsel — every one of these meetings I had legal counsel present — we were all frankly under the impression a criminal investigation was going,” Higgins said.
‘I AM THE DETECTIVE’
Higgins told detectives he learned there was no criminal investigation from press accounts of ISP’s Feb. 5, 2014, announcement that it had not done an investigation and had not assigned a case number or detective.
“Up to that point, I had assumed somebody would be doing what you guys are doing here. Going in and interviewing the staff, taking the KPMG report and putting closure to this thing, because frankly I do not consider this closed,” Higgins told the detectives.
Higgins told detectives he had already provided documents six months previously to Major Steve Richardson, the ISP investigator he believed was assigned to the criminal investigation, according to the investigation report.
“He said, ‘I am the detective assigned to the case,’” Higgins told detectives. “He sat next to me in the meeting. We talked quite a bit.”
While he was not personally involved in the settlement negotiations, Higgins said that knowing that ISP had not investigated CCA could have factored in the department’s settlement negotiations. “If I had known there was not going to be any criminal investigation, you better believe I would be interviewing those people who falsified this trying to find out how far this went, because that would have been a key item that we would have used in the discussions on settlement,” Higgins told investigators.
In declining to be interviewed, Higgins referred the Statesman to an IDOC spokesman who issued this statement: “The records you obtained from the Idaho State Police show that from the start we have fully cooperated with investigators. We have turned over tens of thousands of pages of documents and spent countless hours answering questions — often the same questions multiple times. In fact, there’s not a single question we have refused to answer nor a single document we have refused to produce.”
IDOC said that with the FBI investigation concluded, “we do not believe it is productive for us to go over this well-plowed ground yet again and speculate about what might have been.”
ISP did not respond to Statesman requests to comment on Richardson’s role or answer what happened to the investigative materials Higgins turned over.
MISCOMMUNICATIONS, NOT CRIMINALITY
On May 20, U.S. Attorney Wendy Olson said that the subsequent yearlong FBI investigation into Corrections Corporation of America staffing discrepancies found evidence of false entries and understaffing, but “did not produce evidence of a federal criminal violation.”
The federal prosecutor also looked at whether the Idaho State Police, the governor’s office or the Idaho Department of Correction had sought to delay, hinder or corruptly influence a state investigation into contract fraud at the prison.
What Olson described as “miscommunications” and “uncorrected assumptions” created “suspicion,” she said. But state officials’ actions did “not rise to the level of criminal misconduct.” While she declined to offer specifics, she did say “a number of other actions or inactions ... may be of concern” to state agencies and Idaho voters.
WHAT WERE THE RIPPLE EFFECTS?
Why is this more than just an embarrassing misstep for the State Police and the governor who publicly defended the agency’s work?
What Olson described as miscommunication and “uncorrected assumptions” also slowed a federal lawsuit against CCA. It led state officials to withhold public documents, based on what they believed was a pending criminal investigation. A top IDOC official and a deputy attorney general had to explain why they had not committed perjury by telling a federal judge about an investigation that apparently did not exist.
When the ACLU issued a subpoena for documents it needed for its class-action lawsuit against CCA over violence at the prison it ran, Idaho Department of Correction refused to provide ACLU the documents, saying such a release might interfere with the ongoing criminal investigation. The ACLU later got the documents.
In that same case, the court declined ACLU’s request for an order related to CCA staffing because the judge said he would “not intrude on CCA staffing decisions when a criminal investigation is ongoing.”
NEGOTIATING IN THE DARK?
Even a member of the Board of Correction expressed concerns about being misled about the investigation.
J.R. Van Tassel was the only board member to vote against the state’s $1 million settlement agreement with CCA and the only one to talk about it. He told The Associated Press that at the time the board voted, it believed the State Police had done the criminal investigation and decided there were no crimes to prosecute.
“I was at a loss for words,” Van Tassel told The AP about the lack of an investigation. “I think that the board may have treated this a little differently had it been clear to us that Col. Powell wasn’t going to present us with any factual findings pursuant to an investigation, which we felt were coming.”