February 22, 2019 Dena Jensen

I have written a couple posts now on the part of the January 15, 2019 meeting of Whatcom County Council’s Criminal Justice and Public Safety Committee related to the Whatcom County Sheriff’s proposal to repeal and replace Whatcom County Code (WCC) 1.28 regarding correctional facility standards.

According to the documents supplied to the Council Members on the committee and the presentation given by Whatcom County Undersheriff Jeff Parks, the Title 289 Washington Administrative Code (WAC), which Whatcom County had adopted as WCC 1.28, had been deemed obsolete and was done away with in 2006.

The language regarding correctional facility standards in WCC 1.28 had been very detailed in how it outlined standards for 40 different aspects of correctional facilities. The ordinance that was proposed by the Sheriff’s Office had an Exhibit A attached to it that was supposed to be the language that replaced WCC 1.28 after it would be potentially repealed. The language in Exhibit A, in contrast, was brief, vague, and gave all authority to the Sheriff’s office to adopt “any and all” operational standards, rules, and procedures for the Whatcom County Sheriff’s Office Corrections Bureau as needed.

At the end of Undersheriff Parks’ presentation (at around 29:10 on the audio of the meeting) committee members, Satpal Sidhu, Barry Buchanan, and Tyler Byrd, along with additional County Council Members Rud Browne and Barbara Brenner all made comments and/or asked questions.

Here are some notes on that discussion:

Council Member Browne made remarks to the effect that he wanted to make sure the language that replaced WCC 1.28 would, more thoroughly than in the proposed Exhibit A, reassure members of the public that specific standards still would be in place that were being followed. He also expressed that although he understood that the Sheriff should have the capability to adopt standards, rules, and procedures (such as those mandated by federal and state case law and legislation), that he felt that it should be done with review of the council, potentially on an annual basis.

Undersheriff Parks assured Council Members that the Sheriff’s Office expected that the County Council would want to have some kind of insight and involvement, knowledge, and due notice over policies and standards. He explained that the policies do not remain static, they are constantly being updated and that the Sheriff’s Office is forced to do so because of court decisions, best practices, and things that come down on a regular basis. He said staff is sent out to conferences and trainings to find out that information and that there are regular risk management meetings. They review claims and lawsuits and work closely with the prosecutor’s office civil division to see where risk areas are.

Undersheriff Parks said the Sheriff’s Office just received their accreditation from the National Commission on Correctional Healthcare. They meet their standard of compliance by achieving a score of at least 85% compliance within their published standards. But he said even within the published standards things change with, for example, ADA, or another body of law that may be federal or other external laws to what they have here locally. The Sheriff’s Office currently has three areas they still have to work on.

Undersheriff Parks acknowledged that the Council would want to have a code understanding of certain standards needing to be met, but if things are too closely monitored he said it would mean that every time they would want to make a change they would have to bring it before Council and he implied that would be prohibitive. On the other hand, he communicated that he felt an annual review would not be a problem.

Council Member Brown stated that he agreed that he would like specific standards removed from the code in order that those standards could be more dynamic. He said he did not want the Sheriff’s Office to be forced into situations where they could end up out of compliance because the process to approve changes was too lengthy to match deadlines that might be issued by the Supreme Court, for example. He suggested that theoretically the Council’s annual review could be retroactive. He said he felt citizens would want to know that there is a check and balance and oversight in place for authorizing these standards.

Undersheriff Parks expressed that he agreed that the Sheriff’s Office would want citizens to know this, as well. He said they wanted to be transparent and that they have nothing to hide about what they do and how they do it, excepting certain security things that cannot be disclosed for the security of inmates, facility, and staff.

Undersheriff Parks mentioned immigration detainers as an example, where people can’t be held on a detainer absent an actual warrant. Their office had to respond to that right away. They issue what they call a “special order” which can be issued very quickly. They put it out to all staff and advise other agencies that use the facility and say, “here’s the standard as mandated by the federal government.”

Council Member Sidhu said he agreed that the Whatcom County Code currently being used for correctional standards needs to be updated. He pointed out he felt that overcrowding was only one issue out of numerous ones needing to be addressed. He explained he felt that code regarding correctional standards should be somehow determined and written out so that details are clear and not conflicting with each other. He gave an example of how County staff had recently and painstakingly gone through existing permitting codes to clarify those codes so that they were consistent and clear to people who have to rely on and follow those codes.

Council Member Sidhu felt that having codes written down somewhere that members of the public, and other Council Members in the future, for example, could easily access them. He said that once the code is created then the Sheriff’s office could go on to make their policies which would not require Council’s oversight. He felt that the proposed Exhibit A was way too broad to approve.

Undersheriff Parks responded, saying the reason overcrowding had been mentioned was that it was the “lynchpin in this conflict that we had of why that code was suspended.” He confirmed that it can no longer be said that the jail is overcrowded due to the fact that weekly reports are issued that often enough reflect that the jail is not overcrowded. He said this matter was especially important to address regarding the code because of the latest jail use agreements.

Undersherrif Parks pointed to “use of force” as another problematic issue in the current WCC 1.28. He said that this is an area that is legislated at a much higher level that what that existing code puts forth. He encouraged Council Members that they would want to to go with accepted court, and constitutional and other clearly established law on such issues.

Council Member Byrd said he would support something along the lines that the Undersheriff was proposing. He said he thought it was important for the Sheriff’s Office to have some flexibility. He suggested that there be some high-level standards offered that could be looked at and, on an annual basis, be approved by the Council. He pointed out that the Council would have some liability on their side, for instance, in cases where the standards did not work and there was a lawsuit. This issue of liability was his reason for feeling annual Council oversight would be appropriate. He suggested possibly not looking for standards or “granular” measures, but for outcomes instead, and gave some safety and health related examples: less than 5 people getting sick each year, or less than 10 people a year trip and hurt themselves.

Council Member Buchanan asked what the review and approval process was for General Office Policies, the Sheriff’s Office Corrections Bureau Operational Policies and Procedures, and medical policies.

Undersheriff Parks replied that it gets reviewed on many levels. Usually it’s some kind of issue bringing something to the forefront. When something comes in they send it to their subject matter experts on staff, they reconfigure the policy, it’s put into electronic format and is circulated to all the command level people within corrections. It goes to the Chief of Corrections and her staff and they propose the changes. When it’s applicable they get legal review on items. Then they update and publish the policy.

Council Member Buchanan asked if that medical policies and procedures goes to the Health Department for review.

Undersheriff Parks answered that, no, such matters would go to the Sheriff’s Office medical staff and then they retain, on contracts, doctors and subject-matter-experts to review that for the Sheriff’s Office.

Council Member Browne proposed that there be something added to the ordinance proposed by the Sheriff’s Office that would say “The Sheriff’s Office shall, at least annually, review with the County Council all changes to the policies and explain the reasons why. The review would normally be held in open session, except where the nature of the information is protected under RCW…” He expressed he was sure someone would have the citation for the RCW regarding the public disclosure exemption to include in the language.

Council Member Brenner voiced that she was confused and wanted to know if there were state standards or not regarding correctional standards.

Undersheriff Parks assured her that there was no manual or anything like a corrections manual for the State of Washington. He said no jail commission exists. He said this is common in many areas including corrections, law enforcement, or specialized investigations. Each jurisdiction and agency works with their legal advisors to develop, or gets accredited, and gets input from outside agencies. He said that when state standards are referred to, it was in the sense of best practices. He said WASPC (Washington Association of Sheriff’s & Police Chiefs) has a jail expert that works directly with all the jail managers in the state and coordinates and exchanges information. WASPC also puts our model policies. He said all jurisdictions and all correctional facilities are different. He emphasized again that laws often set the standards.

Council Member Sidhu wanted to know how such a detailed code as WCC 1.28 came into being.

Undersheriff Parks said it was a patchwork of different standard sources.

Council Member Sidhu clarified that he wanted to know why it was written in such detail.

Undersheriff Parks explained this was because the state statute said that each county should establish standards.

Council Member Sidhu confirmed with Undersheriff Parks that this statue still exists today.

Liz Gallery from the prosecutor’s office (civil division), then spoke The RCW 70.48 says every local government must adopt standards. Her understanding was that 7-10 counties had adopted, in a county code, what the commission had established under the WAC, what’s called corrections standards. There was something that was a model and it was called Title 289 from the WAC Corrections Standards Board. The rest of the counties adopted the standards that were required in policies, in jail manuals. The things that some people think look beautiful about the code is something that is already included the Practice Manual and in the Operations Manual for the jail. The WAC from 1988 is now decodified and no longer exists. These jail standards no longer exist. The RCW still requires counties to adopt standards. The vast amount of counties adopt the standards in the jail. Their code is silent on jail standards. The county adopted the policies in jail operations.

Council Member Sidhu said his question is that most of the material from WCC 1.28 is now somewhere else, somewhere in procedures and policies and was there a way this can be placed in order?

Undersheriff Parks said that this is what their office had done and that was provided in a disc that he gave to Council Members during the meeting. He indicated that the Sheriff’s office had gone through and done pretty much exactly what Council Member Sidhu was asking about.

Council Member Sidhu, explained that this was very important because just approving the 2 or so page document that had been given to Council Members before the meeting would make the Council’s approval a blind process.

Undersheriff Parks emphasized that the Sheriff’s Office knew that the Council would need more than just that couple page document.

Council Member Sidhu laughed, referencing that it was less important for the County Council to be able to see the documentations of standards and policies than it was for members of the public. He went on to say there needed to be a formal way of showing they would be discarding one thing and replacing it with another and that it should be a public, transparent document for everyone to see.

Liz Gallery then said the question was, are those policies open to the public. She said it was her understanding that they were completely open to the public.

Undersheriff Parks added, the majority of them are and there would be a very small portion that would be confidential.

Liz Gallery provided the example that King County’s code states simply “The county adopts the operational masterplan,” and that operational masterplan is the jail policies, practices, and procedures. She said that way the operational masterplan can change when policies or standards regarding things like shackling change, when immigration, transport, bedding, lighting, or any of the state or federal laws change.

Council Member Sidhu asked who has the prerogative to change these things or who supervises such things.

Liz Gallery responded that part of it is just trust in that County institution, because they are under legislative authority and accreditation. They have to follow the federal, constitutional, state, and institutional law. She said that those with such authority look to best practices in jail standards from national standards, Washington Association of Sheriffs & Police Chiefs (WASPC). She described that this assures that policies and procedures, manuals and operation, is up to constitutional standard, even though she said to question this is wise regarding things like how someone who is incarcerated can wear his hair or what their religious practices are and how that can be asserted within the institution. Things like special diets, these things you won’t get in a law, but you will get it in case law and that’s where changes and updates in polices come in from case law review and by legal process. Practices and procedures are hundreds and hundreds of pages. Oversight would come through 1. to trust that the institution has to meet the law in legal requirements 2. there can be an operational manual, practices, and procedures that can be viewed by the public or as recommended, annually reviewed to see what the changes are.

Council moved to hold the ordinance in committee, and the motion passed unanimously.

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After listening to the meeting, I made a public records request for, and subsequently obtained, a copy of the materials on the disc that Undersheriff Parks had provided the Council Members. Additionally I had asked Whatcom County Public Records officer Mark Burnfield if those files were ones that were available currently any place on the Whatcom County website. Mr. Burfield said that, no, these were currently not posted anywhere for members of the public to view. So, despite the fact that these records can be obtained by members of the public, as I did, via a public records request, so far, they are not easily accessible since no one could just go find them online somewhere.