Tim Carpenter, TCF staff challenge warden: Officers say they are victims of workplace discrimination, The Topeka Capital-Journal, December 26, 2009
Topeka Correctional Facility officers Mary Carr and Sandra Hutton were reorganizing their office when the boss stopped by to check on progress.
Warden Richard Koerner, who has worked for nearly three decades in the upper echelon of the Kansas Department of Corrections, expressed displeasure with their decorating choices. Carr said Koerner's parting statement at the impromptu meeting — a reference to lynchings — sent a chill down the spines of the women, both of whom are black. Koerner is white.
"He did make a comment," she said, "saying to the effect that, 'You two wouldn't be happy if I hung you with a new rope.' We explained to him about slavery and how our ancestors were hung with ropes, old and new."
Meanwhile, Koerner repeatedly addressed TCF employee Willie Tabor as "boy." The officer viewed the workplace name-calling as racially insensitive.
"I was called Willie Boy," said Tabor, who is black. "I perceived it as being 'out of school.' "
Koerner confirmed he made "new rope" and "boy" references but said his remarks shouldn't be interpreted as discriminatory. He said the hangman's line was a joke and use of the term "boy" was intended as an affectionate reference rather than a racial put-down.
All three prison staff members made informal complaints through the chain of command. Koerner put a lid on both situations.
"I felt badly," he said. "I sure, you know, made a faux pas, inadvertently."
Koerner maintains powerful allies in state government, including Roger Werholtz, the secretary of the Kansas Department of Corrections and a longtime colleague. Gov. Mark Parkinson, who nominated Werholtz for a national leadership award, said he has confidence in the secretary's management of state prisons.
Werholtz invited corrections employees who believe they have been wronged to take legal action against the state.
Critics blame Koerner for shaping a work environment at the state's largest prison for women that creates particular hardships for female and minority employees.
They maintain Koerner's interactions with Tabor, Hutton and Carr reflect a pattern of questionable administrative decisions authorized by the warden during his 15-year tenure at TCF. That opinion is reflected in interviews with current and former TCF staff members and encased in thousands of pages of court documents, personnel files and state civil service records.
For example, officer Michelle Rice is pressing a sexual discrimination lawsuit after she was ordered by Koerner's ranking officers to remove her bra at the front gate and to keep the garment off until she reached her duty station. Male officers weren't forced to comply with comparable security protocol.
A different TCF officer, Kimberly Marack, convinced the Kansas Civil Service Board in October to reverse her firing by Koerner. The warden had signed her pink slip after physicians treating the officer's multiple sclerosis prohibited her from working overtime. Koerner insisted his decision to fire the officer wasn't tied to her illness. He said she deserved the harshest discipline for donating a bicycle to a person who later gave it to a TCF parolee. Koerner called it "undue familiarity" by proxy.
The board also gave TCF officer Mark Robertson, fired by Koerner, his job back. Robertson claimed entrapment after prison investigators orchestrated a sting that relied upon semi-nude pictures of an inmate.
A black officer contesting his dismissal by Koerner said the warden exaggerated implications of his interaction with inmates, in part, because of his race. Officer Kent Dunn said Koerner had allowed white employees who committed more serious infractions to remain on the payroll.
"The warden has a habit and practice of acting when his emotions are not exactly under control and, therefore, making arbitrary and capricious decisions," said Overland Park attorney Theodore Lickteig.
Corrections department attorney Fred Phelps Jr. said the characterization of Koerner by Lickteig was similar to posing the question, "Have you beat your wife lately?"
However, members of the state civil service board have cited Koerner's uneven treatment of corrections officers embroiled in disciplinary cases.
Koerner said workplace discrimination and undue familiarity weren't pervasive problems at the East Topeka prison. He has no precise accounting of claims of discrimination and legal challenges against TCF, but said between four and seven cases of undue familiarity surface annually among the 225 employees at the prison each year.
TCF administrators don't engage in favoritism when handling disciplinary cases, he said. Punishment of staff members, he said, complied with relevant labor law.
His perspective was echoed by Werholtz, a colleague of Koerner's for a quarter of a century. Werholtz said discrimination rarely occurred in the state prison system. He fiercely rejected allegations of cronyism.
"I don't think that's true," Werholtz said. "I'd want to see some evidence."
Questions about Koerner's approach surfaced as the Topeka prison undergoes dual external reviews by a national consultant hired at the request of the governor and by auditors operating in collaboration with an oversight committee of the Kansas Legislature.
"Obviously," Parkinson said, "some very bad things were taking place."
Both investigations began after disclosures by The Topeka Capital-Journal of incidents in which TCF employees trafficked in contraband and engaged in sex with female inmates, including an instance in which a vocational teacher impregnated an inmate. Plumbing instructor Anastacio "Ted" Gallardo was charged with rape, while inmate Tracy Keith had an abortion.
TCF prisoners and officers estimated one-third of the Topeka facility's employees had been involved in trafficking contraband, but deputy corrections secretary Charles Simmons said a smaller fraction of 3,000 people employed by the agency risked dismissal for engaging in black market activities for pleasure or profit.
"There are 2 percent I don't trust," Simmons said.
In October, following repeated inquiries by The Capital-Journal about the conduct of TCF officer Nathan Vandyke, Koerner dismissed the officer. The action was based on statements to The Capital-Journal and state investigators by former inmates Heather Morales and Rebecca Fleetwood, who both said they were pressured into having sex with Vandyke while being transported in a prison patrol car.
Fleetwood said she had intercourse with a second officer when he escorted her to an apartment to sign a lease in anticipation of being paroled. That officer remains on the TCF staff.
The split decision was made despite Simmons' assertion that Kansas corrections employees who engage in sexual activity with inmates were fired "100 percent of the time."
Lovisa Stannow, executive director of the Los Angeles prison policy organization Just Detention International, said muddled responses to misconduct by employees undermined the integrity of corrections departments. Sustained problems at prisons are a byproduct of "poor management, inadequate policies and bad practices," she said.
"Prison management has to set the right tone," Stannow said. "Not just by what they themselves say and do, but what they accept that others say and do. It's about a lack of professionalism.
"Prison officials have such immense powers. That's exactly why we need independent oversight, so there are some checks and balances. That's obviously a failure of the corrections system and a failure of broader society in the sense that policymakers and lawmakers should insist that they know what is happening inside their own prisons."
TCF officer Richard Short, chief union steward at the Topeka prison, said Koerner's brand of management complicated the job of front-line officers. The warden's definition of undue familiarity appears to change on a whim, he said.
Use of inmates as undercover operatives makes employees vulnerable to fictitious allegations crafted by prisoners intent on pleasing their handlers, Short said. Prisoners found to have made false statements against the staff don't face consequences from Koerner, he said.
Short said the warden's cultivation of a system in which guards are pressured to inform on peers made it difficult to build collaborative staff relationships. There are running feuds among different shifts at the facility, he said. Instead of placing the prison under tighter control, he said, the warden's approach escalated the prospect of security problems.
"They've created their own monster," said Short, who previously was briefly suspended at TCF for breaking rules. "When you walk in the door, the odds are stacked against you."
Michelle Rice handled duties of a TCF officer for more than a year before she was stopped cold April 2, 2008. The impediment was a new, unpublished rule regarding security checks of staff members at the front gate. It purportedly covered all guards, but implementation had special meaning to female staff members. Rice suddenly came to realize wearing a bra with an underwire support — just as she had since being hired at TCF — now was considered a breach of security by Koerner.
Court documents and interviews indicate Rice anticipated a routine day when she arrived for her 2 to 10 p.m. shift. Corrections officer James Johnstone, manning a new metal detector not scheduled to be operational for several weeks, played a role in making it exceptional.
Johnstone told Rice to remove her boots and belt and cut metal waist clips from her prison-issued slacks before moving through the scanner. The alarm sounded as she walked through. She informed Johnstone the underwire was the culprit. Using a hand-held wand, Johnstone confirmed metallic objects in her upper torso. She said he reluctantly instructed her to remove the undergarment and walk through again. Without the bra, she passed cleanly.
Rice said the indignity of the process was compounded by TCF brass, including Maj. Joseph Essman, Capt. Rick Matthias, Lt. Keith Adams and Lt. Tammy Shoulders. Rice wanted to put on her bra before walking across the prison compound to her post, but this group of higher-ranking officers forbid it. They informed Rice that TCF policy prohibited her from wearing the bra until she had reached the cell house. She was permitted to put on her boots and belt.
"Contrary to the officers' statements, this was not facility policy," said Topeka attorney Luanne Leeds, who represents Rice.
In Rice's case, the only private area at the front gate was on the unsecured side of the entrance. If she put the bra on in that room, she would again have been required to go through the detector and would again be denied entry.
The Catch-22 put Rice in an emotional state. In tears, she realized the confrontation had attracted a crowd of employees, prisoners and volunteers. Rice was told she could be fired if she refused to remain temporarily braless before reporting to duty or if she left the facility in protest. In the end, she followed orders and went to work.
She said male staff members at the prison who triggered the metal detector weren't required to remove garments.
In the days following the front-gate confrontation, Rice said TCF male employees spoke in her presence about the incident. She said a male officer claimed he would have "liked" to choose which female guards had to remove undergarments.
Rice accused the state corrections department of sex discrimination in a complaint submitted to the U.S. Equal Opportunity Employment Commission. She made the same claim in a federal lawsuit filed six months after the bra incident.
Phelps, the corrections department attorney, said the lawsuit should be dismissed. Meanwhile, Koerner authorized the demotion of Rice and a 10 percent reduction in her salary. Prior to the controversy associated with the metal detector, Rice had received positive job evaluations at TCF. Her reviews turned negative after the bra event.
Rice's attorney said the warden's reaction to the showdown was to retaliate against the complaining officer.
"It's not a good thing to make trouble, to make waves," Leeds said.
Rice said TCF administrators with access to personnel records violated her privacy by leaking information about her case to colleagues and inmates.
"It's been horrific," Rice said. "I need my job. I just don't need the harassment."
TCF Sgt. Kimberly Marack gave a spare, used bicycle to an acquaintance, Deva Shore, who had served time at the Topeka prison and was released in 2006.
"At no time did I think I was doing anything wrong," Marack said. "I was just trying to help someone out."
Civil service documents indicate her generosity in the fall of 2008 became a problem after Shore passed the old Huffy to another former TCF prisoner, Melony Reed, who was on parole. Department rules prohibit employees from making gifts to "offenders" under the jurisdiction of the corrections system. Reed's parole officer discovered the bicycle transfer in July and informed TCF officials. Prison officials opened an investigation.
Marack said she hadn't been aware the bicycle had subsequently been donated to Reed.
The inquiry was part of an unfolding nightmare for Marack. Koerner had issued a new policy on compulsory overtime in June. It required all employees to carry a share of extra shifts. The policy emerged two weeks before Marack returned to work after treatment for multiple sclerosis, a condition prompting doctors to limit her to a regimen of eight-hour shifts.
Koerner decided in August to terminate Marack's employment. Ouster for undue familiarity in relation to the bicycle escapade was warranted, the warden said, despite the officer's 11 years of positive job evaluations. He didn't reference Marack's disability in her official letter of dismissal.
"I am satisfied that the action I am proposing is warranted and reasonable," Koerner wrote to Marack. "Such behavior cannot and will not be tolerated."
Marack appealed Koerner's firing to the state civil service board. In this type of proceeding, employees have the burden of proof. Marack admitted, records show, that during the formal hearing she said she could have been more wary when interacting with a former inmate, but said she didn't have reason to think the bicycle would be transferred to another person.
In October, the state board concluded there was no evidence Marack's gift of the bicycle had a detrimental influence on TCF. The panel overturned her firing and awarded back wages and benefits.
"The board has had other cases in the past in which other officers had exhibited behaviors of a far more egregious nature with inmates, not offenders, and received only suspensions rather than being dismissed," the board's final order states. "The board finds that the level of discipline imposed in this case was excessive in comparison to the level imposed in prior cases."
TCF Capt. Mark Robertson, now in his 24th year on staff at the Topeka prison, was fired by Koerner eight years ago based on allegations he engaged in undue familiarity with inmate Ginger Stauffer.
When initially confronted by the warden, Robertson said he wasn't allowed to see evidence against him.
"They refused to allow me to even defend myself when I went in front of the warden," Robertson said.
It was 2001 and Robertson was a lieutenant. He said Stauffer had written notes to him articulating how she wanted to develop a relationship with Robertson after her parole. On Aug. 19, she showed him three photographs of herself, including two semi-nude shots. He confiscated the pictures, which TCF policy forbids inmates to possess, and placed them in an envelope in his office.
TCF employees have 48 hours to report contraband infractions by prisoners, but corrections department investigators approached Robertson about his ties to Stauffer before the end of his shift.
Robertson turned over the photographs and subsequently learned TCF's internal investigation division was using Stauffer as a covert operative in a series of stings to gather evidence on allegedly wayward officers. Stauffer had participated in at least four previous undercover probes.
On Aug. 20, within the time frame required, Robertson submitted an official report outlining his seizure of the provocative photographs in Stauffer's possession.
Koerner was firm. He concluded Robertson was guilty of sexually motivated undue familiarity for seeking "figure revealing boudoir photographs." The warden fired Robertson on Sept. 7, 2001, for the "good of the service."
Robertson challenged his firing before the civil service board. In his presentation to the board, Robertson said no proof existed to indicate he reciprocated the inmate's advances. Robertson said he was a victim of entrapment by his employer. In an attempt to gather incriminating comments by Robertson, TCF officials put a bug in the power strip of Stauffer's cell. Records indicate the recordings produced nothing useful to support Koerner's case against Robertson.
"There were no letters from me to that individual," Robertson said. "There was no nothing. Period."
Thomas Odell Rost, a Topeka attorney who represented Robertson, said Stauffer's actions could be interpreted as sexual harassment.
"If there was any sexual harassment," Rost said, "it was initiated by inmate Stauffer in an attempt to establish a friendship, a romantic relationship, a nurturing relationship or a sexual relationship."
In August 2002 — nearly one year from his dismissal — the state board rejected Koerner's bid to end Robertson's career as a corrections officer. The hearing panel concluded Koerner's handling of the case was "unreasonable."
"There was absolutely no evidence to corroborate any of the allegations made by inmate Stauffer," the board's final order said. "The information gathered by inmate Stauffer is not credible."
Instead of promptly reinstating Robertson with back pay and benefits, however, Koerner refused to abide by the civil service board's edict to return Robertson to duty. Robertson had to obtain a Shawnee County District Court order to compel TCF to relent.
Kent Dunn, a former TCF corrections officer, said he was never a Koerner confidante. The black officer admits the incident that brought heat on him from Koerner should have resulted in a short suspension from work. But the 17-year veteran of TCF believes his firing demonstrated the warden's racial bias in handling disciplinary cases.
"The warden is a dictator," Dunn said.
On May 5, 2008, Dunn was scheduled to oversee evening activities in a prison gym. Since no inmates chose to participate, he went to a commons area of the maximum-security unit. Based on video taken by a security camera, Koerner accused Dunn of engaging in horseplay with inmates, reading a magazine and pretending to kiss a prisoner's hand.
Koerner fired him nearly a month later and declared him a major security hazard. The civil service board upheld Dunn's dismissal.
"Was he one of them or was he one of us?" Koerner said. "Mr. Dunn has been compromised. It creates a situation that can lead to contraband, can lead to escape, can lead to more serious behavior."
Raymond Roberts, warden of the 1,350-inmate El Dorado Correctional Facility, agreed Dunn crossed the line from courteous behavior to friendship with inmates.
"When that happens," Roberts said, "inappropriate activities occur and security breaches follow."
Dunn said he was perplexed by the analytical leap by both wardens. He viewed himself as an employee worthy of another chance, not someone capable of orchestrating a jail break. He also said his firing contrasted with Koerner's handling of personnel decisions regarding other officers guilty of a misstep.
In 2008, Dunn said, Koerner retained a corrections officer after the officer admitted kissing an inmate and slapping a prisoner's rear. A maintenance worker was suspended for five days for caressing an inmate's face. The warden issued a 10-day suspension for an officer found to have engaged in undue familiarity with an inmate for the third time in 2007, Dunn said. He said Koerner chose to suspend for 30 days an officer found sleeping on duty in 2005, despite three previous sanctions for being inattentive to duties. The warden waited until the fourth instance of undue familiarity with a guard in 2003 before ordering dismissal.
Dunn said the warden fired him, in part, as retribution for a meeting Dunn had two years earlier with Werholtz, the agency's top official. At that meeting, Dunn said he discussed his belief that Koerner engaged in discriminatory behavior.
"My dismissal is a form of retaliation for that statement I made to the secretary," said Dunn, who is convinced Koerner exhibited racist sentiments in the workplace. "He doesn't like minorities."
Werholtz said the agency didn't operate that way.
"If they think we're retaliating," the secretary said, "they can take us to court."