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First-term N.C. House Rep. Dudley Greene, R-McDowell, has introduced a bill to allow sheriffs to challenge jail inspection findings by the state Department of Health and Human Services.
The problem, according to Greene, who was formerly McDowell County sheriff, occurs when sheriffs and DHHS jail inspectors disagree in good faith on whether a jail is complying with the rules.
“There’s a whole lot about that inspection process that is left open to interpretation by an individual inspector, and so that was my reason for filing the bill,” Greene said.
As it stands, he said, no mechanism exists for a sheriff to appeal or challenge a finding of a violation by DHHS investigators.
Jails are required to undergo twice-annual inspections by DHHS, which last year made significant updates to rules for jail conditions for the first time since 1990, according to Susan Pollitt, the supervising attorney at Disability Rights North Carolina who specializes in incarceration issues.
The N.C. Sheriffs’ Association opposed the new rules last year, though the effort was ultimately defeated in a bipartisan vote, and they went into effect in September.
Greene’s proposed law is a direct response to the new rules, Pollitt said, which require a suicide prevention program, suicidality screenings and services for people with mental illness, developmental disabilities or substance use disorders.
“House Bill 561 would just logjam everything and leave people at risk,” Pollitt said.
She pointed to the recent deaths of people detained in Buncombe, Durham and Rockingham counties, which are part of a long-standing problem of deaths in jails due to suicide or overdose.
“These are serious consequences to families in North Carolina and to neighbors and friends,” Pollitt said. “So, it’s something that we need to improve and increase the oversight and transparency of, and this bill goes in the other direction.”
Greene’s bill, which has 10 other Republican sponsors, including the Republican House majority whip, Bobby Hanig, is backed by the N.C. Sheriffs’ Association with “high priority,” according to David Mahoney, sheriff of Transylvania County and president of the association.
“If you had an inspector that the sheriff felt like misinterpreted a rule and wrote the deficiency up in the report, the sheriff doesn’t have any ability to be heard on why he or she feels like it was not a deficiency,” Mahoney said.
Pollitt and her colleague Luke Woollard, a staff attorney at DRNC, disagree. They said the right to appeal is not relevant at this stage of the process, since DHHS is not forcing the county to take any action.
“Sheriffs have appeal rights whenever the state takes, or threatens to take, any corrective action against the facility (including closing),” Woollard wrote in an email to Carolina Public Press.
Even when DHHS cites a violation of the rules but does not take corrective action, there should still be an ability to appeal, Greene said.
“A sheriff or a local government is left with either option sometimes of either having to spend money or put staff at unnecessary risk based on an inspector’s interpretation, or be left with an inspection report that shows you out of compliance, which could expose you to some potential liability,” Greene said.
Neither Greene nor the Sheriffs’ Association officials identified instances in which a violation from a jail inspection contributed to a lawsuit.
Greene referenced a situation where another county spent significant amounts of money to fix a violation that a new inspector said was not necessary, but he declined to name the county.
He also described an ongoing disagreement he had with DHHS during his decade as a sheriff in McDowell County.
DHHS said the jail was out of compliance with a rule that staff needed to check on people detained at the jail twice an hour using “direct observation.” Greene said the jail was built in such a way that staff members could see all detainees in a certain unit through a window and that they had followed this procedure for many years. A new DHHS inspector wanted a staff person to be physically in the room to make the checks.
Greene thought this was a potential safety hazard for staff members, an “undue risk,” as they would be alone with 30-50 people detained in a high-security unit of the jail. He said that being able to see each person through a window counted as a legitimate wellness check.
The jail was not closed or issued any kind of fine, though it did have outstanding violations of the jail rules at the time that Greene retired, he said.
When he was sworn in as a legislator in January, Greene began looking for a solution to this problem, he said.
But the bill would delay fixing problems in the jail, according to the DRNC attorneys.
“This bill, really, instead of encouraging sheriffs to work with (state inspectors) to find swift solutions to problems in their jail and bring the jails up to code, it allows them to defer taking any action to remedy these problems and really undermines one of the only oversight mechanisms that the state has to make sure these jails are in compliance with these regulations,” Woollard said.
CPP brought these concerns to Edmond “Eddie” Caldwell Jr., the executive vice president and general counsel for the Sheriffs’ Association.
“I just think that’s an unfounded fear,” Caldwell said.
Caldwell expects the appeals process would be used extremely rarely. Sheriffs are concerned with the well-being of their jails and generally want to resolve violations of the rules quickly, he said.
“Nobody wants to go to the Office of Administrative Hearings and have lawyers involved and all that,” Caldwell said.
Responding to these hearings “would be a significant strain on NCDHHS resources,” according to Catie Armstrong, press assistant at DHHS.
The bill does not contain a provision to limit the use of the appeals process or set a standard for when it would be appropriate, and Caldwell said it would be difficult to write that kind of threshold into the bill. The appeal process would likely take a matter of weeks, Caldwell said.
A difference of opinion also exists about how well-supervised jails are.
Greene said jails are “some of the most inspected places,” which includes inspections from the local health and fire departments and grand jury inspections, in addition to the semiannual DHHS visits.
But the statute describing grand jury inspections does not include much detail about what examiners are supposed to look for or how a court could follow up, according to Jamie Markham, public policy professor at the UNC School of Government.
Even with DHHS inspections, jails are subject to less scrutiny or enforcement mechanisms than other congregate care facilities, such as those for the elderly or for people with mental health issues, according to DRNC attorneys.
“Notable here that there’s no fines or penalties, other than, please bring your facility into conformity with the standards,” Woollard said.
If jails want the right to appeal DHHS inspection findings, then jails should also be subject to greater levels of oversight as are facilities for the elderly or people with mental health issues, Woollard said.
Another consequence of the bill would be limiting public scrutiny of jail conditions, Pollitt said. When DHHS completes an inspection, it sends the results to the jail and to the county commission, which reviews the document “at its first regular meeting.”
Under the potential changes proposed by Greene, the county would have 30 days to review the report. This change, Pollitt said, could remove the inspection report from the regular meetings of a board of commissioners and therefore could limit public access to the information.
“I don’t think that was an intentional part of the bill,” Greene said. “However, I do think that before something becomes public record, and it’s showing out of compliance, I think the sheriff should have an option to appeal that before it becomes a matter of record.”
Caldwell said there was no intention on the part of the Sheriffs’ Association to change the procedure for public transparency.
“Certainly, if the way it’s worded reduces transparency, the Sheriffs’ Association would be in favor of restoring it to its current level of transparency,” Caldwell said.
DHHS is also required to conduct inspections of jails after deaths in custody. This bill, as it stands, would not change a county’s responsibility to respond to violations found in those inspections, according to Woollard.
Gov. Roy Cooper will review the bill, according to spokesperson Dory MacMillian.