Bad behavior in state workplace costs taxpayers nearly $2M in settlements

Posted Dec. 19, 2012, at 5:13 a.m.

One corrections officer spread a false rumor that the new female officer at the state prison in South Windham was a stripper.

Another one called her “Genitalia,” instead of her real name, which also began with a “G.”

She was asked by a colleague if he could measure her buttocks. When she said no, he did it anyway. She was asked about her favorite sexual positions and to describe her breasts.

When her complaints were not taken seriously, she quit her job and filed sexual harassment and retaliation complaints against the Department of Corrections with the Maine Human Rights Commission, detailing what she said happened to her in a sworn statement.

The state settled the case. Cost to taxpayers: $20,000.

A beginning state trooper – a male – was placed under the supervision of a male sergeant, who took him on assignments to secluded locations, rubbed the trooper’s inner thigh and talked about skinny-dipping. The sergeant gave the trooper a rug and told him how good it felt to lay naked on it, according to the trooper’s sworn statement.

The trooper got a transfer, but the sergeant called him regularly, making comments about penises and oral sex and suggested they take a naked sauna together.

The trooper filed a sexual harassment complaint and the state settled the case out of court. Cost to taxpayers: $50,000.

A park manager says she was threatened with losing her job after she refused to move out of her state housing so her boss, the commissioner of conservation, could use it to entertain guests. He denied the whistleblower and sex discrimination complaint. The state settled out of court for $30,000.

A corrections officer was threatened in a website run by anonymous corrections staff called the Rat’s Ass Gazette after she complained of sexual harassment. Cost to taxpayers: $137,500.

Retaliation in the human services department, disability discrimination in the Department of Public Safety, sex discrimination in the Corrections Department — it adds up to a total of 45 such cases settled by the state in the past 10 years.

The Maine Center for Public Interest Reporting investigated the extent and cost of employee discrimination cases settled by the state. (It excludes settlements made by the University of Maine System because they are not handled by state government.)

By analyzing documents obtained through the Freedom of Access Act from the attorney general’s office, the Maine Human Rights Commission and the state’s internal insurance office, the center has found:

• The cost to taxpayers for a range of alleged bad behavior by state employees towards their fellow workers in the past 10 years: $1,846,118.

• The state has spent about another half-million dollars to defend itself in the cases.

• Forty-four percent of the cases came from two law enforcement departments — corrections and public safety, which includes state police. Those 20 settlements cost taxpayers more than $1 million.

• The most common charges were sexual harassment, sex discrimination and retaliation, the latter often in response to filing an original charge.

• Of the 19 state employees who said they experienced sexual harassment or discrimination, two-thirds were women.

• In all of the settlements, the state admitted no liability.

No tracking by department

State law requires that all new employees receive sexual harassment training their first year on the job, according to Assistant Attorney General Susan Herman.

Herman said her office does not track the claims to find out where there might be a chronic problem.

“We have not analyzed the data by department,” she said.

When it comes to punishment for employees found to have harassed a coworker, Herman said any action is up to the commissioner of the department involved.

Public records do not include any disciplinary action that may have been taken in the 45 cases.

David Webbert, an Augusta lawyer who specializes in employment cases — including representing state employees — doubts training alone would solve the problem.

“No amount of civil rights training can overcome discriminatory attitudes at the top of an organization,” he said. But, he added, “The state could greatly reduce lawsuits and money settlements — and improve workplace productivity — by basing the evaluation and promotion of managers in a significant part on their record of promoting civil rights and eliminating

harassment and discrimination in the workplace.”

Some details kept secret

The settlement agreements — legally binding documents signed by the state and the employee — often are written in a way that prevents full public disclosure.

For example, in 34 of the 45 cases, in return for the settlement, employees and the state agreed not to disclose the terms of the agreements.

The secrecy goes even further in the 21 cases that have nondisparagement clauses. Typically, they state, “Both parties agree that they will not disparage the other.”

That means, for example, the park manager who received the $30,000 was barred, then and forever, from speaking badly of her boss, Patrick McGowan, commissioner of conservation. (McGowan ran unsuccessfully for governor in 2010.) And no one in state government can disparage the park employee.

However, the human rights commission and court file, which are public documents, often contain some details of the cases, although the attorney general’s office redacts from the commission reports the names of third parties under state confidentiality laws. That means, for example, that the names of supervisors are not public.

In 82 percent of the cases, the process began with the employee filing a complaint with the commission. (The others filed civil suits.) The commission, a state agency established in 1971, investigates complaints of discrimination from public and private employees.

“This discrimination costs the state a lot in employee morale, time and efficiency, and in money towards lawyers’ fees and recovery for the successful employee-litigants,” wrote Amy Sneirson, the commission’s executive director, in an email.

“What the public could take away from this data is that bad behavior at work has a tremendous impact,” she said, “including an impact on the taxpayers who ultimately subsidize settlements by state agencies.”

Payments come from state budget

The settlement payments don’t come from traditional insurance; the state is self-insured for these cases. That means the cash comes directly from the state budget.

Each state agency is assessed an annual amount that goes into the state’s self-insurance budget, which is about $1 million.

The departmental assessment is based on the number of employees and the claims history.

The Department of Corrections, which runs the state’s prisons, is currently assessed $101,000, which is 10 percent of the total self-insurance budget, while it only has 6.8 percent of the total number of 18,500 state employees. The reason is the disproportionate number of settlements in corrections.

The department’s employee discrimination settlements were one reason the Legislature asked its investigative agency to evaluate corrections in 2009.

The Office of Program Evaluation and Accountability report was titled “Organizational Culture and Weaknesses in Reporting Avenues Are Likely Inhibiting Reporting and Action on Employee Concerns.”

The report said intimidation, retaliation and distrust within corrections kept a lid on exposing internal problems. Combined, the practices “appear unethical” and “expose the state to unnecessary risks and liabilities.”

OPEGA’s study went to the legislative Government Oversight Committee, which directed corrections to develop a “strategic action plan” that addressed the problems.

But OPEGA’s executive director, Beth Ashcroft, said from 2010 until this year, “it was difficult to tell how much progress was being made and whether it made a difference.”

She said when the administration of Gov. Paul LePage took over in 2011, the agency learned that there “wasn’t a whole lot of progress that had been made. The new administration took it on, and they’ve updated the action plan and reported to the Government Oversight Committee two or three times since.”

According to two longtime state human resources officials, in the past two years there has been a push in state government to deal more effectively with discrimination and harassment.

Laurel Shippee, coordinator of the Equal Employment Opportunity office, said the attorney general’s office has added a trainer and ensured that a legal expert conducts all of the training in harassment and equal opportunity.

She said the change was at least partially a reaction to the costly settlements.

She also praised a new attitude in public safety, which she traced to a new head of the state police, Col. Robert Williams.

“Bob is much more interested in fairness and equity” than previous management, said Joyce Oreskovich, human resources director for the state.

Oreskovich and Shippee trace the changes to a meeting with LePage early in his tenure. They told him their priority was fixing problems that discouraged women from applying for state law enforcement jobs.

Oreskovich said LePage “just looked at me and said, ‘Do it.’”

The two women said there also has been a shift in corrections under Commissioner Joseph Ponte, who took the job in early 2011.

“Very early on, Commissioner Ponte began talking about changing the culture in corrections,” said Shippee. “I am definitely seeing an interest in swift and firm discipline that they’re not wavering on. That is one of the best ways to get across that we’re taking this seriously, if people are held accountable for these behaviors.”

One of the incidents that let to the OPEGA study was the 2008 case of Pamela Sampson, a corrections officer at the state prison in Warren.

In her suit against the state, she said she was sexually harassed by a sergeant who later was fired for sexually harassing another officer.

When she complained to management, she said they retaliated by investigating her on charges of molesting inmates.

She later was cleared, but she ultimately left the state job because of the stress and concern for her safety.

The state denied she was sexually harassed and that the sergeant was dismissed for harassment, but admits the charges against her “were not substantiated.”

The state settled her claim in 2007 for $66,000. Only six of the 45 claims were settled for a higher amount.

Although Sampson’s settlement has a nondisclosure and nondisparagement clause, she was willing to be interviewed.

“If you speak about anything against these guys [in corrections], it’s not good,” she said. “They use a lot of retaliation. That’s why everything was thrown out in my case: They tried to create a false investigation against me.”

Sampson now lives in Bangor and is looking for a job in security.

“I wanted to continue working at my job, and I miss it very much,” Sampson said. “It’s just really hard right now.”

The Maine Center for Public Interest Reporting is a nonpartisan, nonprofit news service based in Hallowell. Email: mainecenter@gmail.com. Web: pinetreewatchdog.org. Disclosure: David Webbert has been a donor to the center.

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