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Filed 9:00 a.m.
09.27.2015

Why It’s So Hard to Fire an Abusive Prison Guard

Corrections officials say he injured an inmate and lied about it. He’s still a state employee. He’s more the rule than the exception.

A few days after Ramon Fabian arrived at the Ulster Correctional Facility on the southern edge of New York’s Catskill Mountains last year, a guard conducting the morning head count yelled at him to shut up.

This story was produced in collaboration with The New York Times.

Ramon Fabian at his home in Manhattan this month. A New York State inquiry found that while he was incarcerated at an upstate prison last year, a guard there, Michael Bukowski, used excessive force against him and then lied about doing so.

Inmates at Ulster, a medium-security state prison, are required to stay in place and keep their voices low during the count. Fabian, who was serving a one-year sentence for a drug conviction, had been talking to another inmate, but he said in a recent interview that he thought he had been following the rules.

After the count was over, the guard escorted him past a set of double doors out of view of other inmates and the prison’s electronic surveillance cameras. Fabian said the officer, Michael Bukowski, a seven-year veteran, had then ordered him to face the wall and brace himself in the “pat-frisk” position, arms outstretched and legs spread. As he did so, Fabian recalled, he looked down and saw the toe of a boot swinging up between his legs.

He saw a flash of light, felt a piercing pain and collapsed. “He told me to get up, but all I could do was crawl back to my cube,” Fabian, who is now 21, told investigators later. He lay on the floor in his cubicle in the prison’s dormitory, groaning and crying, for almost an hour before hobbling to lunch. In the mess hall, a sergeant sent him to the prison’s medical unit. He was soon loaded into a van and driven 80 miles north to a hospital in Albany. Doctors there performed emergency surgery, removing part of his right testicle.

Questioned by an investigator from the state corrections department’s inspector general’s office a few days after the episode on July 22, 2014, Bukowski said he knew nothing about the injury. He said he had “counseled” Fabian about the importance of keeping quiet during the count. He acknowledged that he had raised his voice, and that when he sent Fabian back to his cubicle, the inmate was “crying a little.” Corrections officials concluded that the guard had used excessive force and was lying. Officer Bukowksi was suspended without pay on July 31, 2014, and the department soon moved to fire him.

More than a year later, however, Bukowski is still a state employee. His disciplinary case remains unresolved, although he faces a criminal charge of assault. His case, described in court documents and interviews, offers a stark example of the intricate protections that shield New York’s 20,000 corrections officers, even when there is compelling evidence of abuse.

Michael Bukowski, in a photo taken after he was arrested on a criminal charge of assaulting Ramon Fabian. More than a year after state corrections officials moved to fire him as a result of the episode, he remains a state employee.

Since 2010, the state has sought to fire 30 prison guards accused of abusing inmates through a convoluted arbitration process that is required under the union contract. Officials have prevailed only eight times, according to records of disciplinary cases released under state Freedom of Information Law requests. Those records show that most abuse allegations never reach the arbitration level: Another 80 cases brought against corrections officers, sergeants and lieutenants since 2010 were settled directly with their unions for penalties other than dismissal, such as suspension.

Officer discipline has taken on special significance as New York faces fresh accusations of brutality in its vast incarceration system of 53,000 inmates. After three guards at Attica Correctional Facility pleaded guilty in March to beating an inmate there, new accusations were leveled against guards at Clinton Correctional Facility, where prisoners said they had been beaten after two inmates escaped, and at Fishkill Correctional Facility, where an inmate died after an altercation with officers. Critics such as the Correctional Association of New York, a nonprofit group that monitors the state’s prisons, say the episodes show that the state’s Department of Corrections and Community Supervision has often ignored brutality.

Current and former corrections officials say the union contract deserves part of the blame. “It is tough to get rid of a bad officer, just like it’s tough to get rid of a bad teacher,” said Brian Fischer, a former superintendent at Sing Sing Correctional Facility and the state corrections commissioner from 2007 to 2013. “It’s very frustrating.”

A Dedicated Correction Officer’

Shortly after the department informed Bukowski that he would be fired, his union, the New York State Correctional Officers & Police Benevolent Association, filed a grievance contesting the charges. When the corrections department declined to settle the case for a lesser penalty, the union moved to put the matter before an impartial arbitrator, a contractual right. Arbitrators are not chosen at random. Rather, both sides review a list of candidates and rate them based on how favorably inclined they believe they will be toward their arguments. Arbitrators, who earn $1,000 to $1,800 a day, often try to find a middle ground to avoid antagonizing either side, some officials complain.

“We have a culture of arbitrators who engage in ‘split the baby,’ no matter the offense,” said a state corrections official, who spoke on the condition of anonymity because he was not authorized to discuss the subject publicly.

Ann Lesser, a vice president for labor, employment and elections for the American Arbitration Association, disputed that claim. “I don’t believe that is what happens,” she said. “Arbitrators make their decisions based on the facts.”

Under the state’s contract with the union, the arbitrator’s decision is considered final and binding. Even errors of law or fact by the arbitrator are insufficient to overturn a decision, courts have ruled. Decisions can be vacated only if it can be shown that they were somehow irrational or violated public policy.

For the Bukowski case, the parties settled on a veteran arbitrator, Larry Dais, a former assistant vice president of Columbia University who had been hearing labor disputes since 1999. Over three days last fall, Dais heard testimony and evidence. The union maintained that Bukowski was innocent and described him as “a dedicated correctional officer.” Dais ruled in November that Bukowski was guilty of using excessive force and lying to investigators. But noting in his five-page decision that this was the officer’s first such infraction, Dais reduced the penalty from termination to a 120-day, unpaid suspension.

Because corrections officers have the contractual right to pick work assignments based on seniority, the ruling would have allowed Bukowski to return to the Ulster prison after completing his suspension.

In addition to the internal disciplinary proceeding, Bukowski was indicted in Ulster County in March on a charge of misdemeanor assault. He has pleaded not guilty and is scheduled to go on trial on Oct. 26.

Under the state’s public officers law, a misdemeanor conviction would not automatically bar him from keeping his job.

Bukowski did not respond to requests for comment made through his lawyers, his union and his Facebook account. Reached at his home, Dais declined to comment. “I would not be comfortable speaking about it until it’s fully resolved,” he said.

The specifics of most officer discipline cases are kept largely out of public view. Under state law, the personnel records of corrections officers, like those of police officers and firefighters, are exempt from outside scrutiny. The records obtained under the Freedom of Information Law provide only some spare details.

The Ulster Correctional Facility, the medium-security prison in Napanoch, N.Y., where the episode involving Ramon Fabian and Michael Bukowski occurred.

In 2013, the corrections department agreed to a 19-day, unpaid suspension for an officer charged with falsely reporting an episode in which he was accused of “unjustified, unauthorized use of force” — striking an inmate on the head. Last year, an officer accused of lying about using “verbal and physical” force on an inmate was allowed to return to work after a 20-day suspension without pay. Another officer, cited for “unauthorized and excessive” use of force on an inmate, settled the charge with an eight-day unpaid suspension.

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Corrections department officials declined to comment about disciplinary issues, saying they did not want to aggravate labor relations. After the convictions of the Attica guards, the state’s acting corrections commissioner, Anthony J. Annucci, said he would push for “substantial changes” during contract negotiations next year that would allow him “to appropriately discipline any security staff who commits egregious acts of misconduct.”

In a statement, a spokesman for the union said members “conduct themselves with professionalism and integrity on a daily basis.”

“In the event of a disciplinary process initiated by DOCCS,” the statement continued, referring to the corrections department, “there is an expectation by the union that the process is done fairly and is not biased towards any member.”

In sharp contrast to the corrections department, the State Police have great latitude in disciplinary matters. Charges against troopers are heard by three commissioned officers, two appointed by the state police superintendent and one chosen by the troopers’ union. The panel’s decisions are subject to the superintendent’s final approval. A similar arrangement governs disciplinary actions against New York City officers, with the police commissioner retaining final say.

Obstacles to Enforcing Discipline

Part of the difference in bargaining rights stems from the turbulent labor history of New York’s prison guards. In 1979, corrections officers walked off the job for 16 days in a contract dispute. Gov. Hugh L. Carey responded by calling out the National Guard to run the prisons. The walkout violated the state’s Taylor Law, which bars strikes by public employees, but after paying modest fines, the guards won a new contract with better wages and bargaining conditions. Despite the decline in the number of state prisons to 54 from 67 as the inmate population has fallen, the officers’ union remains a political force upstate thanks to the presence of its sizable membership in the constellation of prisons that dot the northern New York landscape from the Vermont border to Lake Erie.

But union resistance has not been the corrections department’s only obstacle to enforcing discipline. Last year, the head of the agency’s inspector general’s office — the unit that handles internal investigations, including those involving allegations of inmate abuse — abruptly retired amid an inquiry by state investigators into claims of sexual harassment in the office. In January, the unit’s former No. 2 official, James Ferro, was arrested in a case brought by Attorney General Eric T. Schneiderman on charges of bullying and sexually harassing one of his investigators. The conduct continued, Schneiderman alleged, even after the victim complained to Ferro’s supervisor. Ferro has pleaded not guilty and is scheduled to go on trial in November in State Supreme Court in Albany.

Department officials say operations within the unit, which was renamed the Office of Special Investigations, were not hampered by the allegations. But after the arrest of Ferro, officials brought in two outsiders from the state attorney general’s office to take charge. Most of the office’s investigators are corrections officers recruited from within the department’s ranks, officials acknowledge. They are members of the same union as the guards they are investigating, and sometimes return to uniformed jobs. Corrections officials say the unit benefits from insider knowledge, but the overlap has long troubled critics of the agency.

“To me, that is really problematic,” Jack Beck, director of the Prison Visiting Project for the Correctional Association, said. “If you know you are going to come back and work with these guys, what is the incentive for being critical?”

Among prisoners, allegations of staff misconduct have remained high even as the prison population has fallen. According to the corrections department’s most recent annual report on grievances filed by inmates, there were 5,471 complaints lodged against staff members in 2013, an increase of 175 from the previous year. The department does not provide a breakdown of the types of misconduct alleged in the complaints. But the annual report’s language conveys an overall official skepticism about the claims. “The perception among staff is that some of the harassment complaints are filed in an attempt to discredit misbehavior reports” against inmates, the report states.

The suspicion that claims of abuse are invented or embellished by inmates lingers throughout New York’s correctional establishment, among both labor and management. Advocates for those behind bars acknowledge that it happens. “Clearly, there can be exaggeration,” Beck said. “I’ve been doing this for almost 35 years. I don’t believe every story I hear. But when you start putting those stories together, you say, ‘This makes a lot of sense.’”

New York State corrections officers picketing outside Sing Sing Correctional Facility in Ossining, N.Y., in April 1979. Though it violated state law, the prison guards' strike that year yielded better pay and bargaining power for their union.

The skepticism inevitably affects the way inmate testimony is viewed in arbitration proceedings, officials say. That problem played out in 2011 when the department tried to convince an arbitrator to allow it to fire a guard at a medium-security prison in Oneida County who was alleged to have beaten and stomped on a partially disabled prisoner. The inmate said the guard, Michael Wehby, a 24-year corrections department veteran, had first teased him about a protective helmet he wore to avoid injury during seizures. When the inmate objected, he said, Wehby took him to an alcove where he allegedly kicked and beat him with a radio.

Evidence was introduced that showed bruises on the inmate. But after hearing conflicting versions of the episode from other guards, the arbitrator decided against dismissal and sent Wehby back to work.

The guard was criminally charged, but a jury found him not guilty of two assault charges and deadlocked on a third charge. Wehby later resigned after a deal was reached that let him retire with a full pension. He did not respond to requests for comment relayed through his union, his lawyer and his Facebook account. Michael Daley, who represented Wehby in the criminal trial, said criminal charges should never have been brought. “The arbitrator had already ruled that he was entitled to have his job back,” Daley said.

Overruling the Arbitrator

In the Bukowski case, corrections officials decided on a rare course of action: They refused to abide by the arbitrator’s decision. “The feeling was, ‘How can we leave this guy out there unsupervised?’” said the corrections official.

After the department refused to allow Bukowski back to work, union lawyers sued on his behalf. In court papers, they cited longstanding court precedents that had upheld the right of arbitrators to render decisions without judicial interference. In an affidavit countering that argument, Patrick J. Griffin, a corrections department assistant commissioner, wrote that the sanction imposed on Bukowski by Dais “was grossly disproportionate to the actions” and went against clear public policy on inmate abuse.

In a decision handed down in July, Justice Kimberly A. O’Connor of State Supreme Court in Albany agreed with the corrections department. A 120-day suspension for the kind of assault for which Bukowski had been found guilty, O’Connor wrote, “shocks the judicial conscience and cannot be upheld.” That was true, she added, “especially given the arbitrator’s findings of guilt as to all charges.” She ordered that the case be reheard. The union has appealed her decision.

A union spokesman referred questions to its lawyer, William Golderman, whose firm handles most arbitration hearings for corrections officers. Golderman declined to comment. “It’s in litigation,” he said. “Let the process take its course.”

Fabian, who is tall and soft-spoken, got out of prison just before Christmas. On parole, he worked at a grocery near his home in the Inwood section of Manhattan until it closed. He is now trying to go back to school to get his high school equivalency diploma and has retained a lawyer to pursue a lawsuit. Asked recently about what happened to him at Ulster, he lowered his head and shook it back and forth. “I just don’t want to ever go back there,” he said.