For months the Kasich administration – with support from Attorney General DeWine’s office – has insisted the Ohio State Highway Patrol already has the legal authority to operate at the newly privatized prison in Conneaut, Ohio.
And for months, we have disagreed.
Last week Kasich finally admitted we were right. Well, kind of. In his mid-biennium budget, Kasich included language to change existing law, which only allows troopers to operate on state owned or leased property, so that the patrol can also investigate serious crimes at private prisons.
While it’s nice to see he’s finally come to realize that state law probably trumps random things the Governor thinks are true, his latest “solution” is just one more mistake in a long line of confusing and poorly planned out actions related to this private prison.
In typical Kasich fashion, the language he has included is so vague that it will likely give troopers the authority to operate at dozens of other privately owned properties around the state, not just the private prison in Ashtabula County.
I’ll get to the proposed changes in a minute. But first I thought it might be worthwhile to do a quick review of …
HOW WE GOT HERE
In last year’s budget Governor Kasich authorized the sale of up to 5 state prisons to private owners. The stated goal was to save the state money on operating costs and to gain a one-time influx of cash to help plug a hole in the budget. After a review of all the bids – which were much lower than expected – the administration determined only one prison would be sold: the Lake Erie Correctional Institute in Ashtabula County.
The prison was turned over to Corrections Corporation of America (CCA), the former employer of Gary Mohr, the Director of the Ohio Department of Rehabilitation and Correction (ODRC), on December 31st, 2011. But months before the turnover, questions about who would investigate serious crimes at the prison were already being raised.
The Ohio State Highway Patrol is responsible for investigative duties at most prisons, but current statute is very clear, troopers can only operate on “state properties and state institutions, owned or leased by the state.” Once the prison became private property, the troopers would no longer have jurisdiction.
Throughout the process Kasich and his people at ODRC promised local officials that troopers would continue to handle investigations at the prison. But soon after the turnover, Attorney General DeWine’s office surprised Conneaut by opposing the use of troopers at the prison. The AG’s office insisted that liability issues might limit their ability to defend troopers. And they were adamant that they “won’t budge on that position until state statutes are changed.”
The AG’s opinion was the same as the one we argued: allowing the patrol to operate on private property, contrary to very specific state law that forbids it, would put rank and file troopers at personal risk of litigation. And as of January 4th, the AG’s office was unwilling to accept that risk.
Kasich’s team, however, continued to insist the patrol DOES have jurisdiction. As did Kasich’s ODRC team.
And then something crazy happened.
A week later, the AG’s office changed their mind. Seemingly out of nowhere, a very strange (and very wrong) letter from the AG’s office appeared that concluded the private prison was, in fact, a state institution and the patrol could perform law enforcement duties on this private property.
So what made them suddenly – and very incorrectly – change their mind?
After the release of the new letter I spent weeks communicating with the AG’s office attempting to obtain the name of the person who wrote the opinion or any other information, communication or documentation related to the opinion; something that might help me determine how and why the Attorney General’s office was involved in providing this clearly incorrect advice.
Unfortunately, my requests were denied, again and again, for “Attorney Client Privilege”. It’s worth noting that that the AG’s office is well organized and generally very professional when it comes to responding to public record requests. And they are usually pretty helpful. But not in this case. And while they may have been well within their rights to deny my request, their response left me feeling like they weren’t amazingly confident in this decision.
It seems Kasich and his team weren’t too confident in the decision either because …
HERE WE ARE TODAY
As I mentioned at the beginning, a new budget bill (HB 487) has just been introduced containing language specifically expanding the jurisdiction of the patrol to private prisons – and possibly other private property as well.
Here’s the text of the change:
This authority of the superintendent and any state highway patrol trooper to enforce the criminal laws shall extend to any privately owned correctional facility housing Ohio inmates in this state, if the facility is being operated under an agreement with the department of rehabilitation and correction, to the same extent as if the facility were owned by this state.
The obvious first question: if they already HAD jurisdiction, then why do we need to change the law?
I think we’ve already put that one to bed: they were wrong. We were right.
So what about the language itself?
VAGUE LANGUAGE EXPANDS POWERS
Mike Weinman, director of government affairs for the FOP and a retired Columbus police officer, mentioned in his testimony earlier this week about this proposed change in Kasich’s budget. According to Weinman, the language is “so vague one can easily interpret it to mean that wherever there is a DRC prisoner housed the highway patrol has enforcement authority.”
And he really does have a point.
No where in existing code, or in the proposed changes, is a definition of “privately owned correctional facility” or “inmates” provided. Which means this language could be interpreted in a lot of ways – including allowing the Patrol to investigate crimes on a variety of other privately owned properties. Halfway Houses, for example. Or Independent Housing and other facilities that divert offenders from prisons and local jails throughout Ohio.
It’s unclear if the vagueness was intentional or if it was just another mistake on the part of the Kasich budget team. But we do know that Kasich has failed to adequately address the issue of authority for criminal inventions at every step of the privatization process, and since turning over control of the prison to a private company 3 months ago, he’s continued to ignore existing state law.
He insisted he was right, despite clear evidence otherwise, and even enlisted the help of the AG’s office to cover his ass.
So why is Kasich so insistent that the patrol continue to investigate crimes at these private prisons?
We’ve put forth a few theories before including the fact that Kasich owes Public Safety Director Tom Charles for his politically-motivated investigations back when he was Inspector General. But to be honest, we just don’t know. We do know the patrol’s leadership has long believed they have the authority to operate anywhere DRC houses prisoners, and Kasich and DeWine have worked to help push that theory, despite clear restrictions in state law that say otherwise.
Personally I think the Governor just doesn’t care. John Kasich doesn’t like to concern himself with the ‘the small stuff’ that always seems to be getting in the way of his big ideas. Selling off the prison was his big idea. Who investigates crimes at the prison is just an unimportant detail – or at least that’s how he seems to have approached it.
But if Kasich and his people HAD looked at all the details, they’d realize the jurisdiction decision should have been included in the discussion over…
Kasich’s public excuse for privatizing prisons has always been to save the state money.
In reality, the savings being achieved through privatization is minimal and the main purpose of this exercise is to allow Kasich to achieve his political and ideological goals of privatizing state assets and reducing the number of unionized state employees.
But for the sake of argument, let’s take him at his word.
The “savings” achieved at the private prison are, in large part, accomplished on the backs of the prison’s employees. Private prison companies cut costs by reducing the benefits and pay of the people who work at the prison.
So it’s a little ironic, and very inconsistent, that Kasich is now pushing to have the patrol operate at the prison when you consider the cost difference: A trooper with 10 years experience makes 35% more than a deputy with the same experience. ($49,754/yr vs. $66,536/yr)
The Ashtabula County Sheriff already has jurisdiction to investigate crimes on private property – including the newly privatized prison – and, according to Weinman’s testimony, the Sheriff “has indicated that he can take on those duties”.
There may be a case to be made for keeping the patrol engaged at the prison, and expanding the law to legally allow them to operate there, but so far Kasich has not made it.
And given the fact that county law enforcement already has jurisdiction and they are ready and willing to perform the duties at a lower cost, if Kasich wants anyone to believe his privatization plan was about saving the state money and not just reducing the number of unionized corrections officers, then he almost has to give in and let the Sheriff take over.
If Kasich simply wanted to save the state money, as originally promised, he would have relieved the patrol of their duties at the prison the day it was no longer in state hands. Kasich has never shown any concern over adding further financial burden to locals before, so why would this case be any different?
And if Kasich simply wanted to continue allowing the patrol – for whatever reason – to investigate at this prison once it was privatized, he should have written it into the original bill authorizing privatization – or at least had someone introduce it BEFORE the prison was turned over to private operators.
Instead he let it fall through the cracks, he insisted the patrol operate outside of state law, he pressured someone at AG DeWine’s office to give him some cover, and now he’s been forced to introduce this latest language in his new budget bill – language that is so poorly written and vague that it likely expands the patrol’s powers to dozens of other privately owned facilities and homes throughout the state.
This latest attempt to fix the problem Kasich created when he decided to sell off this prison is really too much, too late. The best thing Kasich and DeWine can do right now is just admit they were wrong, let the Sheriff’s office take over duties for investigating crimes at the prison, let the OSHP continue focusing on state property, and let Governor Kasich move on to implementing his next big idea. Consider it a lesson learned. And next time the Governor and his team decide to sell off a state asset – the Ohio Turnpike for example – maybe they will spend a little more time concerning themselves over the details BEFORE they carelessly turn it over.