The opinion of the court was delivered by: Thelton E. Henderson United States District Judge
CLASS ACTION ORDER RE (1) SPECIAL MASTER'S REPORT RE "POST POWERS" INVESTIGATIONS AND EMPLOYEE DISCIPLINE, AND (2) CCPOA'S MOTION TO INTERVENE
A. The Special Master's "Post Powers" Report and Recommendations
On July 24, 2003, the Special Master reported to this Court that he had discovered a potentially disturbing pattern of events. The events related to the apparent failure of the California Department of Corrections ("CDC") to adequately investigate whether three Pelican Bay State Prison ("PBSP") officers had perjured themselves when they testified in the defense of two fellow guards, Sergeant E.M. Powers, and Correctional Officer J.R. Garcia, who were facing criminal charges for misconduct at PBSP. The Special Master was particularly concerned because it appeared that the CDC had not followed its own "Post Powers Plan," which it had specifically created to govern internal investigations and discipline of employees who had engaged in misconduct relating to the Powers/Garcia trial. See Report, Ex. 2 ("Follow-up Investigative Plan and Disciplinary Review Process" or "Post Powers Plan").
Accordingly, on July 28, 2003, the Court directed the Special Master to fully investigate the matter, including whether there had been any deliberate attempts to mislead the Court with respect to the investigations, and to prepare a full record and report of what had transpired. The Special Master thereafter undertook an extensive inquiry over several months that included review of numerous documents and five days of hearings during which 20 witnesses were called to testify by either the Special Master or the parties. He initially reported his findings and recommendations in draft form in January 2004. After considering the parties' objections and comments in follow-up hearings, he submitted his final "Report Re 'Post Powers' Investigations and Employee Discipline" ("Report") on June 24, 2004.
This Report, which is quite detailed and thorough, concludes that the perjury investigations of the three officers - William Jones, C.P. Matlock, and Owen Tuttle - were riddled with failures and mishandled from the start. The Report finds, for example, that the three perjury investigations (referred to as the "Post Powers investigations") were delayed for months, grossly understaffed, and not completed within the limitations period governing administrative discipline. Neither the investigative agent nor the CDC Employment Law Unit ("ELU") attorney assigned to the Post Powers cases were even informed of the Post Powers Plan by Thomas Moore ("Moore"), then Deputy Director of the Office of Investigative Services ("OIS"), or any other superior. These, and other significant failings, the Report finds, are indicative of serious systemic problems in the OIS and the ELU. As the Special Master also observes, the Office of Inspector General previously identified many of these same problems almost three years earlier in an audit of OIS, but the CDC never effectively addressed them.*fn1 Overall, the Special Master concludes that the CDC "has lost control of its investigative and discipline processes." Report at 103. Notably, the Special Master's findings of pervasive systemic deficiencies were recently corroborated by the comprehensive June 2004 Report of the Corrections Independent Review Panel, chaired by former Governor George Deukmejian.
Even more disturbing, the Report finds that the then Director of the CDC, Edward Alameida ("Alameida"), prematurely shut down the Post Powers investigations in an unusual and hastily called meeting on March 27, 2003, just days after the Post Powers investigator, Bob Ballard, had informed the California Correctional Peace Officers Association ("CCPOA") that CDC was planning to refer one of the three perjury cases to the San Francisco District Attorney's office for criminal charges (and despite the fact that the other two investigations had barely begun). The Report also finds other instances in which the CDC had deferred to the CCPOA in matters involving the investigation and discipline of guards accused of abuses of force, and discussed some of the ways in which the Memorandum of Understanding ("MOU") between the CCPOA and the CDC may unduly interfere with the ability of the CDC to effectively investigate and discipline officers charged with such abuses.
Finally, the Report finds that after Alameida prematurely shut down the three Post Powers investigations at the March 27, 2003 meeting, it was decided at that same meeting that the decision to close the investigations would be communicated to the Special Master with a "Fact Finder" letter. The Report finds that four days later, on April 1, 2003, Moore sent a letter to the Special Master that was designed to deceive the Court by papering over the aborted investigations. In particular, the Report finds that Moore submitted a letter to the Special Master stating that the investigations were closed because they lacked sufficient merit to warrant further investigation. The letter attached, as support, a Fact Finder memorandum that emphasized only the weaknesses of each case.
In short, the Special Master's Report, in vivid and damning detail, documents that the CDC's system for investigating and disciplining officers is broken to the core. Not only is the system dysfunctional from a managerial standpoint, but it is also subject to interference and obstruction from the CCPOA.
The Special Master follows his findings with two categories of recommendations to the Court. The first category consists of recommendations aimed at addressing his findings with respect to the specific conduct of Alameida and Moore. The second category concerns recommendations that are aimed at remedying the systemic, institutional deficiencies in the CDC's methods for investigating and disciplining employee officers.
With respect to the first category, the Special Master recommends that the Court consider (1) issuing an Order to Show Cause ("OSC") re criminal contempt for Alameida and Moore based on their actions (or inactions) taken in connection with the three Post Powers perjury investigations, and (2) referring perjury charges against Moore to the United States Attorney's Office based on the Special Master's conclusion that Moore gave false testimony under oath at a July 30, 2003 hearing regarding the Special Master's Post Powers investigation. See Special Master's Report at 119-21 (Recommendations 1 and 2).
With respect to the second category, the Special Master begins with the observation that the CDC has begun showing a genuine commitment to reforming the deficiencies identified in the Report under the leadership of the new Secretary of the Youth and Adult Correctional Agency ("YACA"), Roderick Hickman, and the new Director of the CDC, Jeanne Woodford. The Report notes that, under this leadership, Joe McGrath, the former Warden at PBSP, was specially assigned to assist in developing a remedial plan, and Martin Hoshino, formerly of the Office of Inspector General, was appointed to replace Thomas Moore and begin reforms in the OIS. Kathleen Keeshen, the CDC's Deputy Director of Legal Affairs, had also initiated reforms in the ELU. Finally, Governor Arnold Schwarzenegger had recently nominated Matthew Cate to the newly revived Inspector General position and Cate was actively involved in the remedial process.
All in all, the Special Master reports that defendants are making a "strong effort to address the serious and persistent problems with inadequate investigations and correctional officer discipline." Report at 109. Accordingly, he concludes that civil contempt proceedings do not appear necessary to secure compliance with the Court's remedial orders. He cautions, however, that "[p]owerful outside forces oppose the implementation of fair and effective investigations and discipline in the [CDC], and development and implementation of an effective remedy is far from complete." Report at 109-10. The Special Master thus recommends that the Court direct him to continue working with defendants to develop and implement an adequate remedial plan to address the systemic problems with investigations, adverse action discipline and the code of silence identified in his Report. See Special Master's Report at 121-22 (Recommendation 3(A)).
The Special Master also recommends that the Court take several other actions to address the findings of systemic deficiencies. First, he recommends that defendants be directed to modify their use of force remedial plans so as to exclude CCPOA participation from Executive Review Committee evaluations of the use of force at PBSP. Second, he recommends that the Court direct the Special Master to investigate and report on whether provisions of the CCPOA's MOU with the CDC violate, by their terms or practice, the Court's use of force remedial plans. Third, he recommends that the Court direct the Special Master to work with the parties to develop and implement a plan for monitoring the Post-Powers remedial efforts. Finally, he recommends that defendants be directed to post copies of the Special Master's Report in the prisoner law libraries at PBSP. Report at 121-24 (Recommendations 3(B)-(E)).
B. Proceedings Subsequent to Issuance of the Special Master's Report
No party filed objections to the Special Master's recommendations relating to systemic reform. Alameida and Moore, however, both filed objections to the Special Master's recommendations that the Court consider issuing an OSC re criminal contempt. Moore also objected to the Special Master's recommendation that the Court refer perjury charges to the United States Attorney's Office. On October 25, 2004, the Court heard extensive and helpful argument on these objections.
On June 14, 2004, the CCPOA filed a motion to intervene in this case on the ground that the Special Master's recommendation regarding review of the MOU's impact on the remedial process could directly affect its contractual interests. This motion remains pending. On July 29, 2004, this Court issued an order directing the Special Master to identify the specific provisions of the MOU, or any amended MOU, that he seeks to investigate should the Court adopt his proposed recommendation 3(B). This was done on August 31, 2004. The Court also directed plaintiffs to clarify what specific discovery they believe is necessary to permit the Court to address the issues raised by the CCPOA's motion to intervene. In response, plaintiffs filed their discovery plan on August 12, 2004, and the CCPOA filed its opposition thereto on August 19, 2004.
On July 29, 2004, this Court also adopted two recommendations relating to systemic reform that had not been objected to: (1) a portion of the Special Master's Recommendation 3(D) - which concerned an interim monitoring plan - and (2) Recommendation 3(E) - which concerned the posting of the Special Master's Final Report.
The Court now addresses (1) the Special Master's recommendations regarding the conduct of Alameida and Moore, (2) the remaining recommendations for systemic reform that the Court has not yet addressed, and (3) the CCPOA's motion to intervene.
II. THE SPECIAL MASTER'S RECOMMENDATIONS RE CRIMINAL CONTEMPT AND PERJURY
A. Objections to Recommendations re Criminal Contempt
In his Report, the Special Master recommends that the Court "consider issuing an Order to Show Cause re Criminal Contempt for Edward Alameida and Thomas Moore because of willful violations of the Court approved Use of Force Discipline Remedial Policy, Use of Force Disciplinary Procedure, and the Use of Force Investigation Policy and Procedure." Report at 119. In particular, the Report identifies four actions or omissions by Edward Alameida ("Alameida") and Thomas Moore ("Moore") that he concludes potentially constitute criminal contempt of this Court's orders:
(a) The failure to adequately investigate the perjury allegations against Correctional Officers Jones, Matlock, and Tuttle;
(b) The failure to prepare a report of the Post Powers investigations on CDC forms 989 A and B;
(c) The failure to set forth findings concerning each of the allegations against Officers Jones, Matlock, and Tuttle in a manner that notes whether the inquiry supports or refutes the allegations, and the failure to arrive at one of the findings specified by ...