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Story Publication logo December 2, 2020

In Trove of Officer Misconduct Records, Maine Sheriffs Hide the Worst Offenses

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A Maine State Police cruiser is shown outside the Penobscot County Jail on May 12, 2020. Image by Natalie Williams/Bangor Daily News
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In 2017, the top elected officials in Maine's westernmost county took a rare vote to ask the...

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Maine is one of only a few states where law enforcement discipline records are public. But that doesn’t always result in transparency. Illustration by Natalie Williams / Bangor Daily News.
Maine is one of only a few states where law enforcement discipline records are public. But that doesn’t always result in transparency. Illustration by Natalie Williams / Bangor Daily News.

Dana Kitchin died in a Kennebec County jail observation cell on Dec. 12, 2014, from a ruptured spleen. Before he died, other inmates heard him screaming for medical attention for seven to eight hours, according to a lawsuit filed by Kitchin’s family against a list of defendants that included the jail and the Kennebec County Sheriff’s Office. A man with mental and physical illnesses, Kitchin had smeared blood and feces on the window looking into his cell. Those smeared bodily fluids remained on the door for 14 hours, according to the lawsuit, which was settled for an unspecified amount in 2020.

Kennebec County, which runs the jail, disciplined three corrections officers who were on duty while Kitchin was pleading for help. Records of that discipline, obtained by the Bangor Daily News as part of an investigation into discipline at all 16 county sheriff’s offices, corroborates much of what Kitchin’s family alleged in the lawsuit.

The three corrections officers were punished for not notifying the medical department or logging that an unnamed inmate wanted medical attention. Two of them were disciplined for not checking on the inmate, and for making no attempt to clean the feces off the cell door window despite its presence “making it impossible to see inside,” according to the records. One of the officers was also disciplined for writing that he checked the cells every 15 minutes when he had not.

But those records failed to mention Kitchin — or his death. 

Anyone reading the records without prior knowledge of what happened to Kitchin would have no way to know that the discipline handed down to the three officers had anything to do with a man dying in his cell while begging for medical attention.

Likewise, the officers’ punishments wouldn’t lead anyone to suspect the incident was more than a few minor violations of jail policy. Two of the officers, Keith LaChance and Bryan Robbins, received “written reprimands.” The third officer, Myra Gagnon, recieved a lesser “verbal counseling.” 

Maine is one of more than a dozen states where law enforcement discipline records — like the ones that described how officers acted the day Kitchin died — are public. In many states, discipline records are either confidential by law or so difficult to obtain they might as well be. 

But Maine’s public access laws don’t always result in transparency.

Early this year the Bangor Daily News requested all discipline records since 2015 from Maine’s 16 sheriff’s offices and 15 county jails. The newspaper received nearly 500 records for corrections officers, deputies, lieutenants and sergeants, and found that, in many instances, the records didn’t actually describe the misconduct in question, leaving the public in the dark about what really happened, whether discipline is equitable across offices and violations, and whether elected sheriffs are holding their staff accountable.

In fact, a third of the records documenting serious punishments — a suspension, demotion or termination — or resignations in lieu of punishments did not contain enough information to determine with any certainty the misconduct that warranted the punishment. 

Records of less severe discipline, including written reprimands and verbal counselings, were more likely to be detailed, the BDN found. Only 10 percent of those records didn’t have enough information for a reader to understand the circumstances in question, demonstrating how some sheriff’s offices are more likely to provide details about minor infractions than serious misconduct.

Kennebec County Administrator Bob Devlin said that, while he couldn’t answer for the author of the records detailing the circumstances of Kitchin’s death, “the record is for employment purposes, so it is most likely that both the involved employee and the supervisor knew what the specific issues were and it wasn’t necessary to provide detail.”

As of November, the three officers were still employed at the jail. Current Maine Department of Corrections Commissioner Randall Liberty was Kennebec County sheriff at the time Kitchin died and a defendant in the lawsuit. He did not respond to questions. 

‘Not Good For Any of Us’

Like other private and public-sector employers, sheriff’s offices create discipline records for several reasons. They can help in deciding whether to grant promotions and can be examined by future employers deciding whether to hire someone. They can also be used in legal disputes between employers and employees.

Maine law mandates that only final disciplinary records are public, while internal investigations leading up to that final discipline record are confidential. 

Nearly 60 percent of the discipline records that the BDN determined to be lacking information mention the existence of an internal investigation, but they share little about the findings of the investigation or the conduct in question. Many only cite the numerical title of the policy violated. 

For example, in 2019, the Sagadahoc County Sheriff’s Office fired Deputy Matthew Shiers based on the results of an internal investigation, according to his discipline record. But the record did not mention what prompted the investigation or what it concluded, meaning anyone looking at it wouldn’t know he had been charged with aggravated assault, domestic violence assault and cruelty to animals after fighting with his girlfriend. 

A September 2018 discipline record for Deputy Robert Potter from the Knox County Sheriff’s Office contained no written description of misconduct, only a box checked by an investigator indicating “misconduct noted” and another checked box showing the discipline levied was “termination.”

Hancock County Sheriff Scott Kane shakes hands with well-wishers after being sworn into office on Jan. 1, 2015. Image by Bill Trotter / Bangor Daily News. United States, 2015.
Hancock County Sheriff Scott Kane shakes hands with well-wishers after being sworn into office on Jan. 1, 2015. Image by Bill Trotter / Bangor Daily News. United States, 2015.

Also in 2018, Hancock County terminated corrections officer Leslie Duncan “for being untruthful with Chief Deputy Patrick Kane and Captain Timothy Richardson,” but the associated record provided no other information. As a new employee, Duncan was under a probationary period, said Hancock County Sheriff Scott Kane, who declined to elaborate on what transpired.

Records related to internal investigations may be more vague because those investigations can contain confidential information, said Bill Doyle, regional director for the National Correctional Employees Union, which represents corrections officers. 

“They’re trying to discipline the officer,” said Doyle, who is also the mayor of Saco. “I don’t think they’re trying to hide the conduct, but I think in certain circumstances they are looking to shield protected information.”

But two Maine sheriff’s offices — in Washington and Somerset counties — didn’t provide any discipline records at all, a dearth of data experts found troubling. County sheriff’s offices differ in how often they administer and document discipline, including among similarly sized offices.

“We need to, as a state, all be on the same page here,” said Aroostook County Sheriff Shawn Gillen, whose office was more likely than others to document a narrative of why employees needed to be disciplined. “Is it fair for one county to see it and not the other county? No, I don’t think so.” 

These gaps in discipline records are “not good for any of us,” said Rep. Charlotte Warren, D-Hallowell, co-chair of the Maine Legislature’s Committee on Criminal Justice and Public Safety, in response to the BDN’s findings. 

The coming legislative sessions will produce “a lot of legislation having to do with keeping track of the disciplinary records of law enforcement in Maine at all levels,” she added. 

Several states — including New York and California — have recently opened law enforcement discipline records to the public, and more are considering legislation to do so after the killing of George Floyd and the nationwide protests against police violence that followed. 

But Maine could serve as a warning: The records can be public and still not shed light on some of society’s most closed institutions.

Maine is still “on the transparent end” of states when it comes to laws around the disclosure of police discipline records, said Rachel Moran, a law professor at the University of St. Thomas in Minnesota who has studied law enforcement discipline records and public access. 

While Maine law has long held that discipline records are public, “there is no legal requirement that a final disciplinary action statement has to be of any particular length or contain any particular content,” said Linda McGill, an attorney with Portland law firm Bernstein Shur who has worked on employment issues on behalf of municipal governments. 

There is also no entity responsible for reviewing discipline records or rates of discipline. County jails are required to report some data to the Maine Department of Corrections, which runs the state’s prisons, but they aren’t required to submit any information on employee misconduct. The Maine Sheriffs’ Association doesn’t provide model policies or best practices to its members, said its president, Penobscot County Sheriff Troy Morton.

Penobscot County Sheriff Troy Morton is pictured in Bangor in June 2017. Image by Nick Sambides Jr. / Bangor Daily News. United States, 2017.
Penobscot County Sheriff Troy Morton is pictured in Bangor in June 2017. Image by Nick Sambides Jr. / Bangor Daily News. United States, 2017.

Similarly, there are no nationwide standards for what a discipline record should look like or what information it should contain, experts said. While some academics have studied law enforcement misconduct, those experts were unaware of any research into how discipline records document it.

Due to a lack of standardization around discipline, each sheriff’s office has its own disciplinary forms and policies, which are often reached in agreement with the unions representing officers. 

Kennebec County, for example, documents discipline in a form that asks the person filling it out to “please be specific in stating observable behaviors and comments whenever possible.” Some forms used by other counties only had a place for “comments.” 

Different counties also have different rules about when discipline records are removed from officers’ personnel files, per collective bargaining agreements. This leaves some union officials wishing for more standards around discipline.

Sheriffs “should have a standard as far as how they are holding guys accountable,” said Matt Nadeau, president of the Maine Fraternal Order of Police and a sergeant with the York County Sheriff’s Office.

County sheriffs are elected by voters and therefore subject to less oversight than municipal police chiefs, who are hired and fired by local elected officials. The documents could inform voters about sheriffs’ management skills and leadership. But a lack of uniformity makes it difficult to compare rates of misconduct and punishment.

“It’s mind boggling to me how little data is kept on county jails,” said Michele Deitch, a professor at the University of Texas School of Public Affairs who specializes in the oversight of correctional facilities. Deitch added that county jails are “among the most opaque institutions in our society” and that looking at discipline records could “shine a light on the culture of the facility.”

Cumberland County Sheriff Kevin Joyce speaks at a press conference outside Portland City Hall on June 3. Image by Troy R. Bennett / Bangor Daily News. United States, 2020.
Cumberland County Sheriff Kevin Joyce speaks at a press conference outside Portland City Hall on June 3. Image by Troy R. Bennett / Bangor Daily News. United States, 2020.

Making sure discipline records contain enough information for the public to understand the misconduct involved is a “challenge,” said Cumberland County Sheriff Kevin Joyce. He noted that every supervisor has a different “style,” and “sometimes I notice after the fact that the supervisor could have been more descriptive of the allegation, violation, behavior or misconduct.” 

“The discipline finding/document should articulate that due process was provided, and there exists just cause for the discipline meted out,” Joyce said.  

What information is available shows that Maine corrections officers and sheriff’s deputies rarely get suspended for the same type of infraction twice. Only 10 county officers in the state were suspended more than once in the last five years — four in Franklin County, three in Penobscot County, two in Cumberland County and one in Sagadahoc County. Six of them were still working in Maine law enforcement as of February 2020. 

To put that number in perspective, there were 1,315 licensed full- and part-time officers working for sheriff’s offices and jails in 2019, according to the Maine Criminal Justice Academy. Sheriff’s offices have issued 94 suspensions, demotions or terminations since 2015, and at least three officers resigned in lieu of facing discipline, the records showed. Sheriff’s offices issued another 374 written reprimands, verbal warnings and other less severe forms of discipline over that same time.

But the records didn’t include some instances in which officers resigned to avoid punishment. For example, a 2018 BDN investigation found that Penobscot County Jail Corporal Steven Buzzell had sent obscene photos to a number of female coworkers and inmates over the course of many years. He was not punished because he ultimately resigned amid an investigation into his behavior, meaning there is no mention of Buzzell in the discipline records kept by the Penobscot County Sheriff’s Office. 

Counties can also purge discipline records as part of settlement agreements with employees, as Knox County did with corrections officer George Girodet. 

After he pleaded guilty to the crime of disorderly conduct, in August 2019 the county agreed to pay Girodet $12,500 in exchange for his resignation. What’s more, it would “remove the disciplinary termination” from his personnel file and “replace it with Employee’s voluntary written resignation,” according to the settlement agreement. As a result there is no mention of Knox County disciplining Girodet in its discipline records. 

Knox County Sheriff Tim Carroll said he could not talk about Girodet because he didn’t want to violate the conditions of the settlement agreement and risk a lawsuit.

Law enforcement leaders and experts agreed that more information and transparency is better for the public. 

“The community should have the ability to monitor and in essence audit the performance of their law enforcement services,” said Dave Mahoney, sheriff of Wisconsin’s Dane County, which is home to Madison, the state capital. Mahoney is also president of the National Sheriffs’ Association. “There needs to be transparency so that the public trusts the work.” 

Nadeau, of the Maine Fraternal Order of Police, agreed. “Transparency is the best policy,” he said. “We have no issue with discipline being a public record. It helps keep everybody honest.”

‘They Still Represent Conduct Unbecoming’

Some counties, including Franklin and Knox, were more likely than others to produce vague or incomplete discipline records. 

In 2016, Franklin County Sheriff Scott Nichols wrote a letter to Deputy Colt Bernhardt that an internal investigation had confirmed Bernhardt committed “several ethics violations that occurred on different days while you were off shift (however still wearing a uniform and operating a county cruiser representing the Sheriff’s office.)” 

Nichols noted that “while none of these incidents rise to the level of criminal activity, they still represent conduct unbecoming of a police officer.”

Franklin County Sheriff Scott Nichols speaks in Augusta in February 2019. Image by Troy R. Bennett / Bangor Daily News. United States, 2019.
Franklin County Sheriff Scott Nichols speaks in Augusta in February 2019. Image by Troy R. Bennett / Bangor Daily News. United States, 2019.

The letter offered no other description of the conduct in question but noted Bernhardt had resigned from his position before facing discipline. Bernhardt is now an officer with the Southwest Harbor Police Department. He did not respond to two emails and a voicemail seeking comment about what happened. 

Nichols did not respond to three emails and two voicemails seeking comment. 

In total, Franklin County had records of 14 suspensions, demotions, terminations and resignations in lieu of discipline over the last five years. Eight of those lacked enough information to determine what transpired. The county employed 40 certified corrections and law enforcement officers in 2019, the least of all the counties with jails or detention centers. 

Knox County had records of 13 serious violations, and eight of them similarly lacked detail. Knox County Sheriff Carroll, who replaced former Sheriff Donna Dennison in 2019, did not directly respond to a question about the relatively high percentage of vague records.

“We are only to report when discipline is imposed and upheld,” he said, while noting he was limited in what he could legally say about the records. 

In comparison, much larger Cumberland County had 24 such violations and only one incomplete record.

While sheriffs generally spoke about the need for transparency, Waldo County Sheriff Jeffrey Trafton mentioned that a fear of lawsuits might be behind a lack of information. Trafton described receiving training from attorneys on personnel issues in which “the main message we got from most of them was details of the actual discipline or investigations were confidential,” Trafton said. 

While public employers occasionally worry about the public nature of the records, they tend to be more concerned with ensuring that they document just cause for firing someone, so the termination sticks if it is challenged, said McGill, the Portland lawyer.

‘Really?’

Two sheriff’s offices, in Washington and Somerset, did not produce a single record of misconduct, even though some of their officers have committed crimes and lost the certification that makes them employable. 

The Washington County Sheriff’s Office employed 58 full- and part-time officers in 2019 and disciplined none of them over the last five years. In comparison, the similarly sized Knox County Sheriff’s Office employed 57 officers and disciplined employees 32 times.

“We don’t have major problems with our employees,” said Washington County Sheriff Barry Curtis. “We’re so small, we can keep an eye on everything that is going on better than some other counties.”

The Maine Criminal Justice Academy, which can revoke the certification of law enforcement officers for misconduct, decertified a Washington County corrections officer, Patrick Spencer, in 2017 for stealing drugs, however, according to academy records.

“I don’t even recognize that name,” said Curtis, who has been sheriff since 2015, when asked about Spencer.

Washington County Sheriff Barry Curtis speaks to reporters in Machias the evening of Feb. 3. Image by Natalie Williams / Bangor Daily News. United States, 2020.
Washington County Sheriff Barry Curtis speaks to reporters in Machias the evening of Feb. 3. Image by Natalie Williams / Bangor Daily News. United States, 2020.

Experts said a lack of discipline records wasn’t necessarily indicative of a lack of misconduct. It could be that offices with more discipline are stricter about adherence to their rules. 

“If you’re finding no discipline in a department of that size, that’s concerning to me, particularly because of the corrections angle,” said Moran of the University of St. Thomas, noting that she had no knowledge of the Washington County Sheriff’s Office operations. “It’s so incredibly easy to take advantage of prisoners and have a potentially abusive environment with no way for them to speak up.” 

The Somerset County Sheriff’s Office is the fourth largest sheriff’s office in the state, with 112 full- and part-time officers in 2019, according to the Maine Criminal Justice Academy. Only Cumberland, Kennebec and Penobscot County sheriff’s offices employ more. But, like Washington County, it also did not provide any documents in response to the BDN’s public records request. 

In an interview on Oct. 27, Somerset County Sheriff Dale Lancaster said he had disciplined employees over the last five years, but “didn’t really have an answer” as to why his office did not provide discipline documents.

In that interview, he said he would look into why records were not provided, but he did not respond to follow-up emails. 

Somerset County Administrator Dawn DiBlasi said she told Lancaster that his office was legally obligated to turn over the records. 

“[Lancaster] told me he was very upset about the request, and he didn’t think by law he had to turn it over,” DiBlasi said. “I had to say, ‘If you have anything, you have to turn it over.’”

The BDN has since refiled its initial request for Somerset County discipline documents.

Sen. Susan Deschambault, D-York, said she would like to see “more standardization” in the recording of discipline.

“I think the best thing would be a requirement to have a central repository in the state,” Deschambault said. “So you could hold a county like Somerset responsible and say, ‘Really?’”

 

BDN editor Erin Rhoda contributed to this report.

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