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Filed 5:00 a.m.
04.11.2016

The State That is Taking on the Prison Guards Union

For decades, New York state’s corrections officers union has held the power in disciplinary decisions.

Daniel F. Martuscello III, a deputy commissioner in the corrections department, said he was ready to take the battle to the prison guards’ union. Nathaniel Brooks for The New York Times

ALBANY — The job of an internal affairs investigator in New York State’s corrections department can be thankless work. So it was a rare occasion last month when officials summoned all 150 members of the unit to the department’s training academy here for a pep talk.

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

The past year had been an unusually bad one for the agency, with the escape of two convicted murderers from the Clinton Correctional Facility in northern New York and a series of federal investigations into brutality by officers.

Not mentioned that morning, but understood by all, was that the internal affairs unit, responsible for investigating wrongdoing by guards, had been an embarrassment for years.

Investigators had often been reluctant to challenge the powerful corrections officers’ union, and the disciplinary system was so stacked in the union’s favor that a guard could be found guilty of brutalizing an inmate and not be fired.

But the internal affairs unit had been overhauled. It was now prepared to take the fight to the union, Daniel F. Martuscello III, the department’s deputy commissioner, declared.

“We will do anything necessary,” he said, adding, “I’m not here to make the union happy.”

When he finished speaking that morning, the investigators gave him a standing ovation.

For the New York State Department of Corrections and Community Supervision, which has long been seen as subservient to the union, it was an unusual move of defiance, one that could have reverberations across the prison system.

The possibilities for lasting change in the department largely rest on how this battle plays out, between a newly emboldened internal affairs unit and the 20,000-member union, the New York State Correctional Officers & Police Benevolent Association, which has long held the levers of power inside prisons.

Unbalanced Power

The union is a formidable political force, protected in the Legislature, primarily by upstate lawmakers in districts where prisons are the biggest employers. The chairman of the corrections committee in the State Senate, Patrick M. Gallivan, a Republican who represents an area outside Buffalo and Rochester, has five prisons in his district alone.

The corrections officers’ union is a powerful in part because the prison system is the main employer in some politicians’ districts. Patrick M. Gallivan, a Republican, has five prisons in his district, which is outside Buffalo and Rochester.

Gov. Andrew M. Cuomo, a Democrat, has walked a thin line. While he oversaw the remaking of internal affairs, he also has ties to the union. His chief of staff, Melissa DeRosa, worked in public relations for the union for several months in 2009 and is the daughter of Giorgio DeRosa, a major Albany lobbyist whose firm received $691,000 from the union between 2010 and 2015, according to state filings. (A spokesman for Cuomo said DeRosa has always been recused from anything involving her father’s firm.)

Union leaders have managed to negotiate favorable labor contracts with a long line of governors, including Cuomo, giving them more control in many cases over personnel decisions than the prison superintendents or even the corrections department’s commissioner.

Under the current contract, union seniority rules dictate that superintendents have practically no power to transfer problem officers.

Disciplinary rules give an arbitrator, not the commissioner, final say on who gets fired.

Rules governing internal affairs investigations require officers to receive 24 hours’ notice before being questioned, and while on the job, a guard cannot be penalized for refusing to answer questions from an outside law enforcement agency.

Moreover, details of disciplinary measures taken against guards are kept secret from the public, because of privacy protections won by the police and corrections unions over the years.

The result is that a culture of brutality has been allowed to thrive in the prisons, where a few rogue guards, often known on the cellblocks as beat-up squads, administer vigilante justice, while fellow officers look the other way, according to cases documented over the past year by The New York Times and its reporting partner, The Marshall Project.

The unit’s current caseload of suspected wrongdoing by officers numbers over 1,000: They include an officer at Southport Correctional Facility, Peter A. Mastrantonio, who has been sued 17 times in brutality cases that have cost the state $673,000 in settlements; an 81-year-old inmate at Sullivan Correctional Facility, James Willsey, who is partially deaf and losing his sight, and was knocked unconscious while handcuffed; and a Great Meadow inmate, Frank Povoski, who was beaten after being quoted in The Times about an inmate’s death at the hands of guards.

In November, the state correction’s department suspended Peter A. Mastrantonio, an officer at Southport Correctional Facility, who wrote in a agency report that he “instinctively” punched an inmate, Jonathan Rosado, right, in the face several times. Mr. Mastrantonio has been named in 17 brutality lawsuits, costing the state $673,000 in settlements, including $175,000 each to Marc Payne, left, and Tony Tacheau, center.

Michael B. Powers, the union president, said in an interview last week that while he was willing to work with the corrections department, he would fight to protect his officers “with any and all resources necessary.”

Asked whether brutality was a problem, Powers replied, “What are you talking about?”

The Cuomo administration appears to believe there is a problem, hiring additional investigators, bringing the number to about 150 from 116, during the last year and a half.

Previously, most investigators were career corrections officers, with little experience building cases. Several of the new employees, by contrast, came from law enforcement agencies like the Federal Bureau of Investigation and the Drug Enforcement Administration.

Frank Povoski, an inmate at Great Meadow, was beaten in February shortly after being quoted in The Times about an inmate’s death at the hands of guards.

Challenging the Union

Dysfunction had long been the norm in internal affairs. In early 2015, the unit’s second in command, James A. Ferro, was arrested on charges of sexually harassing an investigator. (He later pleaded guilty and retired with an annual pension of $66,384.)

Stephen Maher, a former state assistant attorney general, was hired in September 2014 to fix the unit. He later picked another former assistant attorney general, Darren Miller, as his deputy.

About 10 percent of the unit’s investigators were removed because they were unqualified, Maher said.

A nurse was hired to assess injuries in brutality cases and a pilot program was started to equip officers with body cameras, a rarity in prisons.

In recent months, the new leadership has stepped up its pursuit of disciplinary action against guards, in some cases pushing the limits of union rules.

Defying seniority provisions in the labor contract, officials transferred two guards out of women’s prisons who were accused of repeated sexual misconduct with inmates. That had rarely happened in the past, in part because the corrections department feared protracted battles with the union. A lawsuit filed in February by the Legal Aid Society cited several examples of guards who were accused of raping female inmates but were allowed to continue working unmonitored in the same prison posts.

In one case that was not mentioned in the lawsuit, James Ford, an officer at a women’s prison, was investigated by the internal affairs unit four times between 2008 and 2012 on suspicion of sexual assault but was allowed to remain in his job. He was eventually caught on surveillance video having sex with an inmate and tipping his hat to the camera. Ford, 65, impregnated the inmate, 24.

A department investigator, Linda Carrington-Allen, later testified that despite finding “strong evidence” that. Ford had previously sexually assaulted inmates, she could not order him transferred because of contract protections. He was ultimately convicted of rape; the state settled a civil suit in the case for $895,000.

Department investigators have in recent months also shown greater willingness to refer cases for criminal prosecution.

Stephen Maher, center, was hired in September 2014 to improve the correction department’s internal affairs unit.

In May, Lavar Thomas, a corrections officer at Sing Sing prison, admitted in a department report that he repeatedly punched an inmate for making “a gurgling, hocking sound as if he was going to spit.” The incident was captured on surveillance video.

The department moved to fire him. (Thomas also had an erratic work history: He had been put on leave a dozen times without pay, went on sick leave nine times and was out on workers’ compensation once, according to state comptroller records.) But the state arbitrator, who has ultimate authority over discipline under the labor contract, ruled in Thomas’s favor.

Frustrated, corrections officials took the offensive. They stripped a training officer of his certification after he testified that Thomas had used appropriate force when he repeatedly punched the inmate.

They also referred the case to the Westchester County district attorney’s office, which filed misdemeanor criminal charges. A trial is set for this month.

Joey Jackson, the lawyer representing Thomas, said his client was simply defending himself. The only reason the department pursued the criminal case, he said, was to show “that they’re taking matters seriously involving inmate abuse.”

Even if convicted, Thomas, whose legal fees are paid by the union, may keep his job. Under the contract, an arbitrator’s decision is “final and binding” and a misdemeanor conviction is not grounds for automatic termination.

Onerous contract provisions, however, are not the only obstacles internal affairs investigators say they must overcome.

Guards can be slow to produce inmate witnesses from the cellblocks and will routinely confer, in efforts to get their stories straight, current and former department officials said.

There have even been times when investigators were blocked from entering prisons, said Patrick Dunleavy, who was the unit’s deputy director until 2005.

“I once knew of an investigator who got his jaw broken by a C.O. from Clinton,” Dunleavy said.

Silence and Retaliation

Perhaps the biggest challenge for investigators is the culture of silence among guards. Barbara Kowaleski, a 26-year veteran of the corrections department, learned firsthand the price an officer can pay for reporting a fellow officer. In 2002, she spoke out after she said she saw another officer, Michael Rorick, assault an inmate at Hale Creek prison in Johnstown. From then on, she said, she was harassed by fellow guards and eventually fired.

She sued the department, was later exonerated as a whistle-blower and awarded a $200,000 settlement. In her lawsuit Kowaleski identified two union officials, Rorick and Donald Rowe — who both still work at the prison, according to state records — as leaders of the campaign against her.

At one point, according to the suit, when she was driving home from work, Rowe, who was then the union shop steward, drove up and forced her pickup truck off the road.

Rowe was later elected president of the statewide union.

Ultimately, the crucial question may be how much political capital the Cuomo administration is willing to expend on confronting the union.

Remaking the disciplinary system would require substantial contract concessions from the union, something that has not happened in decades.

The current contract expired at the end of last month, and it could take years of difficult negotiations to reach a new agreement. (Until then, the current provisions apply).

While Cuomo has closed 13 prisons since taking office in 2011, most were fairly small. Even with the closings, there have been no layoffs.

In two high profile cases reported last year by The Times, one at Clinton prison involving allegations of brutality from dozens of inmates and the other at Fishkill describing the death of an inmate after a violent encounter with guards, the Cuomo administration played down the culpability of officers.

There is no indication that any officer involved in the cases was disciplined, even after Preet Bharara, the United States attorney for the Southern District of New York, opened an investigation into the Fishkill death. Last month, the governor’s office introduced a bill that would allow the department to unilaterally terminate officers convicted of a misdemeanor; currently it takes a felony. To date, however, no lawmakers have sponsored the bill, and Gallivan, the chairman of the corrections committee in the Senate, said no one from the governor’s office has contacted him.

For his part, Powers, the union president, said he was confident the bill was going nowhere.

“I don’t believe it will ever get to the floor of the Senate or the Assembly,” he said.

Powers, who was elected to his position in 2014, said “99.9 percent” of the officers conduct themselves professionally.

“We’re the best at what we do,” he said, “best in the nation.”

A photo that accompanied an earlier version of this story misidentified former New York state Sen. George Maziarz as state Sen. Patrick Gallivan.