Honolulu Weekly

More than two years after the American Civil Liberties Union called public attention to abusive conditions at the Hawaii Youth Correctional Facility in Kailua, the state has made little substantive progress in improving the situation. And one central obstacle appears to be active opposition from -the union representing guards at Hawai’i’s -only juvenile prison.

The United Public Workers, the state’s second-largest public employee union, was drawn into the fray when the ACLU identified 13 guards, nearly one-third of those assigned to HYCF at the time, as violent or abusive and called for them to be suspended pending a more thorough investigation.

The UPW made headlines in 2003 when it attempted to subpoena all records and notes from the ACLU’s investigation. But its broader campaign, which has challenged, obstructed and delayed the state’s attempts to implement changes at HYCF, has gone largely unreported, although it is well documented in records from proceedings before the Hawaii Labor Relations Board and several related court cases.

The youth facility is located in Kailua, across Kalaniana’ole Highway from the Oahu Women’s Correctional Center. It is made up of several buildings surrounded by green fields, including two housing units designed for a total of 20 boys, and one designed for 20 girls, although the overall population has frequently gone over 70. The teens, ages 13 to 18, spend an average of seven months in confinement. Originally designed as a ‘last resort’ for the most dangerous youth, many are less serious offenders sent to HYCF only because few options have been developed.

Conditions at the youth facility described by the ACLU, and in a subsequent report by the U.S. Department of Justice released just last August, are indeed shocking: young men forced to strip and squat naked before taunting guards, or strapped to chairs, held immobile for long periods, sometimes kept carefully out of view of watching security cameras. A guard who repeatedly grabbed boys by the testicles to force them into submission. Routine overcrowding, forcing some wards to sleep on the floor within inches of toilets. Physical and sexual assaults of girls and boys, including one rape that occurred after the ACLU began its investigation. Guards, known within the system as youth correctional officers, or YCOs, conspiring to halt any investigation of their actions. With a weak and detached administration, largely outdated or nonexistent rules and procedures, and an absence of staff training, guards effectively ran their own show for years.

First line of defense

The union was one of the first organizations to respond to the news of the ACLU’s findings, but its team of experienced, highly skilled lawyers wasn’t out to end the flagrant abuse of kids in state care. Instead, UPW denounced the ACLU investigation and launched a single-minded defense of its members, pursuing a strategy that has pitted the employment rights of guards, guaranteed by their union contract, against the constitutional and human rights of the young people entrusted to their care.

One provision of the UPW contract requires the state to consult with the union and gain its consent before proceeding with any changes that will impact the working conditions of union members. This provision has been interpreted broadly, and has given the union virtual veto power over any reforms planned by the state. Used sparingly, it protects union rights. Relied on extensively, as in this matter, it has created gridlock in a situation where failure to change likely means continued abuse.

‘The union has been just completely intractable,’ says Paul Alston, a former president of the Hawaii Bar Association whose law firm has assisted ACLU and now represents several victims of abuse at HYCF. ‘I’ve never dealt with UPW before, I’ve never seen this kind of behavior.’

Sharon Agnew, director of the Office of Youth Services that oversees HYCF, declined to comment on UPW’s role, as did Lisa Ginoza, first deputy attorney general, who is coordinating the state’s defense against lawsuits and an ongoing federal probe.

UPW State Director Dayton Nakanelua did not respond to requests for comment, but union attorney Herb Takahashi has repeatedly told the Hawaii Labor Relations Board that the union is merely enforcing the terms of its collective bargaining agreement and the rights of its members.

Technicalities

UPW learned about the ACLU investigation when Gov. Linda Lingle released the findings at an Aug. 26, 2003, press conference. Lingle went public less than two weeks after receiving the 34-page ACLU report, and used the occasion to announce the reassignment of the two top HYCF administrators, underscoring the state’s intention to independently probe the allegations.

‘I support the ACLU’s investigation and thank our Attorney General’s Office and the Department of Public Safety for their unconditional support on behalf of the wards at the youth correctional facility,’ Gov. Lingle said at the time. ‘Our responsibility,’ she added, ‘is to the children.’

Apparently UPW did not feel the same way. Instead, just a week later, UPW’s attorneys filed a prohibited practices complaint with the Hawaii Labor Relations Board, attacking Lingle for exposing YCOs to ‘public humiliation’ and violating their privacy by publicly disclosing the allegations of brutality. Lingle’s comments, according to the union, were an ‘improper reprimand’ that ‘disparaged and denigrated’ guards and violated a contract provision requiring disciplinary action to be taken ‘discreetly to avoid embarrassment.’

According to the union, ACLU should never have been allowed into HYCF to conduct its interviews because a state investigation would have had to strictly separate administrative and criminal matters, a restriction that was not applied to the independent group.

The union even argued that Lingle’s receipt, distribution and mere continued possession of the ACLU report was improper and demanded all copies in the hands of state officials be destroyed.

The state’s actions, a union lawyer told the labor board, were part of a ‘campaign to denigrate the youth correctional officers.’ Somehow, in the union’s view, kids were dropped from the equation.

By staking out such a broad claim before the labor relations board, a venue where the union’s lawyers hold a distinct advantage over their state counterparts, UPW created a significant problem for state officials. The state was suddenly put on the defensive, and attention shifted from the conditions of teens confined at HYCF to whether each and every step taken by the state was in full technical compliance with the most favorable interpretation of contract terms.

The state now had to stop and prove that each of its actions was permitted under the terms of the union contract. This bogged down the system in the same way that strict enforcement of exact speed limits by radar-equipped vans snarled traffic and raised tempers when the ‘Talivan’ law was in effect on O’ahu’s highways several years ago.

UPW also pressured the ACLU directly by demanding that Brent White, the group’s legal director at the time, appear before the labor board, where Takahashi accused him of ‘complete insensitivity’ to the rights of employees.

‘We do not dispute that according to this report there are numerous types of outrageous conditions that need changes down there, no one disputes that,’ Takahashi said, according to a transcript of the session. ‘But the question is, where does Mr. White get off talking to 70 youths, and then recommending the termination ofÖup to 13 youth correctional officers with a one-sided investigation, mixing up and commingling factual statements that pertain to criminal matters and administrative matters, disciplinary matters, which are in violation of the constitutional rights of the employees.’

White responded by accusing Takahashi of a ‘pattern of harassment.’

‘I certainly believe that if someone has abused or raped a ward, they should be fired. But I didn’t say violate the rights of employees, I didn’t say disregard the rights,’ White said.

Kids pay the price

White had special reason to be angry about delays caused by the union’s action. After leading the ACLU’s initial inspection of HYCF in early June 2003, White contacted Attorney General Mark Bennett to express several specific concerns, including the absence of female YCOs on duty overnight in the girls’ units, a practice that he said raised the danger of rape or sexual assault.

Within weeks, as White predicted, a young woman was raped by a male ACO, who was later convicted and sentenced to 15 years for the offense.

Following that assault, female deputy sheriffs were assigned on an emergency basis as overnight observers to protect the girls. Again, UPW challenged the move, saying it violated the contract, and demanded compensation for its members who might otherwise have been assigned the work.

The combined impact of the union’s efforts has slowed the pace of change to a crawl.

‘In the past two years, conditions have not changed significantly,’ says ACLU legal director Lois Perrin. ‘For two years, [state officials] have claimed they are making progress, but when you see the documents and other evidence, it is difficult to understand the factual basis for their claim that progress is being made.’

Attorney Alston agrees with Perrin’s assessment. ‘We were given very clear and specific assurances [by state officials] that improvements would be made, but for whatever reason, nothing happens,’ he says.

Records show the state has spent substantial time and money on planning and developing new policies, but most remain incomplete and follow-through on the front lines appears to have been elusive.

Alston disclosed correspondence indicating new procedures claimed by the state have not yet been successfully implemented, or varied depending on the whims of individual staff on duty at any time.

The difficulty of getting staff to comply with administrative directives has been a longstanding problem. The Department of Justice reported, for example, that even ‘attempts to investigate alleged acts of abuse by staff were met with intransigence and deliberate interference from staff.’ When pressed, ’sick-outs’ by YCOs have ‘paralyzed the institution and occurred on a routine basis,’ according to the DOJ report.

Union obstruction not new

Russ Van Vleet, a leading national consultant on juvenile justice and former director of youth corrections for the state of Utah, said union protection of abusive guards was already a problem in Hawai’i by the early 1990s. At the time, Van Vleet was assisting the late Wayne Matsuo, the first director of the Office of Youth Services and the driving force behind an earlier round of reforms in the treatment of young offenders.

‘I remember sitting in the old facility with Wayne as he made up a list of staff that he knew from his own experience had been very abusive,’ Van Vleet says by phone from his home in Salt Lake City. ‘We could not get rid of them.’

Matsuo was already coping with the impact of what has come to be known as the Hicks Decision. At about 10pm on Friday night, May 20, 1983, Gilbert Hicks, then a guard at the predecessor of the current youth facility, confronted several young men who were suspected of getting high by sniffing insecticide. A scuffle followed in which Hicks allegedly swung a heavy multicelled flashlight, striking one young man in the head and causing ‘massive injuries,’ according to a later report. Hicks was immediately suspended and, following an investigation, fired for using excessive force against a juvenile ward.

But UPW filed a grievance on Hicks’ behalf, alleging he had not gotten fair treatment, and the case was assigned to attorney and labor arbitrator Peter Trask. In a precedent-setting decision that has since been widely cited by UPW, Trask overturned the firing and ordered Hicks reinstated with back pay. Trask ruled that although the state had a clear policy against the excessive use of force, state attorneys had failed to prove Hicks had been properly informed that he could be fired for violating it, and the state’s failure to keep a transcript of the administrative proceeding deprived Hicks of a fair hearing.

Hicks was reinstated, and remained a YCO until July 2005 when he was convicted of sexual assault and sentenced to 90 days in prison for grabbing the testicles of an 18-year-old boy at the facility and squeezing so hard that they remained painful, swollen and required medical care even two weeks later. An internal staff investigation reportedly found Hicks had been involved in at least two similar incidents.

How many youths suffered at Hicks’ hands following his 1984 arbitration victory will never be known, but what is clear that it became difficult terminate staff even for serious misconduct, says Van Vleet. ‘It made no sense to me that someone essentially proven guilty of abuse could retain his position. That is obviously a huge problem that the state has to face.’

Matsuo tried to overcome the problem by assigning allegedly abusive staff to positions involving less direct contact with young people in the facility, Van Vleet recalls. Matsuo also brought in mainland experts to train staff on how to respond to problems without unnecessary use of force, but that effort failed because staff refused to take part.

‘My memory is still very vivid,’ says Van Vleet. ‘There was only a small group who actively participated. I talked to Wayne about this in great detail. The fear we had was that we were not going to get the staff to respond willingly and would continue to have staff over reacting to kids and, as a result, face accusations of abuse.’

Just doing my job

That is precisely what has occurred, but Labor attorney Michael Nauyokas, who as arbitrator authored a decision that UPW has relied on, says it’s unfair to blame the union for standing by its members.

‘All the union is doing is enforcing the contract the state agreed to,’ Nauyokas said. ‘Whether I think that’s right or wrong, or you think that’s right or wrong, or whether I personally think it morally corrupts the system and allows things to happen that shouldn’t happen, is beside the point. When I’m an arbitrator under the contract, I’m sworn to uphold the contract, I’m a creature of the contract. And in the contract, in successive contracts for 30 years, the state agreed they wouldn’t change anything without first notifying the union and gaining consent. [The state] didn’t have to agree with that, they voluntarily agreed to that.’

There have also been recent hints of a potential ‘breakthrough’ with the union. Following a meeting at the end of August attended by Agnew, Ginoza and UPW state director Nakanelua, one official privately spoke of a new attitude of openness to change on UPW’s part. It is possible that a new spirit of cooperation could have been prompted by the ongoing federal probe and the return of federal investigators, scheduled for the end of this month.

However, neither Nakanelua nor the state officials present at the meeting have responded to requests for comment and to date there appears to be no let up in the union’s full court press.

Meanwhile, state records -show continued delays at nearly every point where consultation with the union is required. -The ACLU filed a second class action lawsuit Monday against the state and HYCF reflecting the group’s lack of confidence -in the commitment of the state to truly protect the young people in its care.