Delaware parole board split by chronic infighting

8-8-2010 Delaware:

Members say chairman oversteps his authority

Delaware's Board of Parole has been rocked by internal turmoil, its chairman facing allegations from board members that he released at least one inmate without a vote by the full board.

The split on the board got so bad that in late April, four of its five members asked a Superior Court judge to order board Chairman Dwight F. Holden to schedule hearings that the board had requested.

That dispute appears to have been settled without a court order, but the troubles within the board run deep, according to interviews with the five members and documents obtained by The News Journal.

Although the board is a small and somewhat obscure agency -- one that Gov. Jack Markell wants to abolish in a cost-cutting move -- it performs some vital functions. It decides whether certain serious criminals who've been behind bars for decades will be released from prison, and it is the only post-conviction venue that crime victims have to testify about the impact a criminal has had on their lives.

Board members charge that Holden, who as the board's sole full-time member also manages its administrative office, has overridden board decisions without statutory authority to do so. According to the Delaware Code, actions can only be taken with a majority vote of the board -- and to release certain serious criminals, a four-member majority is required. The law does not give the chairman power to override a decision.

But board members say Holden has told his office staff that while he is just one of five votes, his is the only vote that counts.

They also say he blindsided them by privately supporting Markell's proposal to fold the board's duties into the Department of Correction -- a plan that would have spared Holden's nearly $80,000-a-year job but gotten rid of his fellow board members, who are paid about $9,000.

Holden said he vaguely remembers ordering the release of one offender who was being held by mistake, calling that "a no-brainer." And he agrees the board has its problems -- but that's where the agreements end.

Holden blames the problems on meddling in office politics by part-time board members, some of whom "want to throw me under the bus."

"I don't think we'll ever get back to where we were. That may sound harsh," Holden said, adding that despite the divisions he is "taking the high road" and wants to resolve the problems.

"These are reasonable-thinking people," he said.

Red flags

The first inkling of trouble within the Board of Parole came June 26, 2009, when state Auditor R. Thomas Wagner Jr. issued the results of a special investigation prompted by a tip to his telephone hot line.

The audit found lax financial supervision and lack of employee oversight in the administrative office of the Board of Parole, one of the state's smallest agencies, with just six employees and a budget of only $501,200.

The audit also raised red flags in Markell's office.

From October through December, Joseph Hickey, a deputy human resources director from the Office of Management and Budget, was sent to work with board members and the staff to find out what was wrong and work out solutions.

"Meetings were initiated by Cleon Cauley, Deputy Legal Council, [sic] at Governor's request to address office issues," according to a document sent to Markell's office by a board member.

According to the document, which presents a timeline of troubling events within the office, Hickey, Holden and the board members reached an agreement that the board would stay out of office matters except "in extraordinary situations."

In turn, the agreement says, Holden manages the office, "seeks advice, consultation, and support from the Board ... [and] follows advice and recommendations for the Board."

But the agreement didn't hold for long, according to the timeline, documents filed in connection with the court case and interviews with board members. The court documents include minutes of board meetings that otherwise would be shielded from public scrutiny because the board is exempt from the Freedom of Information Act.

By March 24, the four board members had sent an e-mail to Holden that questioned his "inability or unwillingness to manage the issues that are important to the Board."

In the e-mail, the members questioned why Holden had not scheduled hearings they'd requested.

"Mr. Holden responded back that the Board is harassing him and he is boss," the timeline recounts. "Mr. Holden cc'd Governor Markell in his response."

Appeals pile up

Parole in Delaware was abolished for offenses committed after June 30, 1990, so the board has jurisdiction over a dwindling number of offenders who either are eligible or on parole.

But it has a number of other duties, one of which is to hear appeals of so-called tier designations for sex offenders convicted before 1994.

Under the federal Adam Walsh Child Protection and Safety Act of 2006, Delaware is notifying residents who were convicted of sex offenses prior to 1994 that they must register as sex offenders. They also are given a tier designation -- which determines whether their names are put on the state's sex-offender website and whether their neighbors are notified.

"You were looking at people who had been out all these years ... they've never done another thing wrong, living a good life in the community and all of a sudden they get a letter in the mail: You're going to be Tier III, your picture on the Internet, your neighbors notified," said board member James F. Jestice.

Understandably, he said, many of those people appeal their designation in hopes of being designated Tier I, in which their names are placed on the registry but can be seen only by law enforcement. The designation isn't set until the appeal is decided.

Appeals began piling up, yet board members say Holden disregarded their requests to schedule additional hearings to deal with a growing backlog.

"We had a backlog of as many as 150 cases and we wanted to get them moving because it disrupted people's lives," Jestice said.

"Our chairman said that he didn't have to listen to us when we wanted more hearings so that we could get them caught up," Jestice said. "He just told us he was boss and he was getting tired of us harassing him."

Other board members said they never received a satisfactory explanation from Holden on why hearings weren't scheduled.

"He kept putting us off, putting us off," board member George H. Williamson III said.

Holden only scheduled more hearings after the four members had petitioned Superior Court President Judge James T. Vaughn Jr. to order Holden to do so. Vaughn has taken the case under advisement.

Holden said in an interview that he had a perfectly good reason for not instructing his staff to schedule the hearings.

"Everything is either generated from the Department of Correction or the attorney general's office. The AG's office had a couple young [deputy attorneys general] going out on maternity leave. Why schedule hearings if they're not going to be represented?" Holden said.

Asked how the board members were harassing him, Holden replied: "You know what it was? There was a series of e-mails going back and forth. I had expressed that the AG had a right to be present at the hearing, and they said they didn't care if the AG was there or not. Common sense says you shouldn't do that."

'Not a lawful order'

Holden's failure to order additional hearings was troubling enough to the other board members. But learning that he had ordered at least one inmate released without the board's OK was even more troubling, at least to the two members who agreed to speak about it.

When board member Jestice was asked whether Holden had overridden board decisions, he replied, "Hmm, that's touchy." He would not elaborate.

Asked the same question, board member William C. Pfeifer replied, "I'm not aware of that."

But Williamson and fellow member Joe F. Garcia said Holden has overstepped his authority by ordering inmates released without board approval.

Releasing an inmate from prison, a status known as Level V, to a supervision level where he is on the street -- Level III or lower -- requires a majority board vote. If the majority agrees, the chairman issues a board order.

The chairman also can issue what is known as a chair's order, but that is for procedural matters. The law states a board vote is needed to release an inmate.

"Recently he took a person from Level V to Level III, and then just recently -- and I questioned him on this -- he took [another] person from Level V to Level III," Williamson said.

Williamson said Holden told him he had done so once with a chair's order and once with a board order. There was no vote on either measure, Williamson said.

"Why this bothers us is if a person commits a crime or does something wrong while he's at this level, it is possible [it will] come back and haunt the board and even the state, who technically released him on what was not a lawful order," he said.

Board member Garcia said he knew of one case in which Holden ordered someone released despite a board vote against it. Both Williamson and Garcia said that case involved a sex offender.

"We are in the process of investigating this to see if he's been systematically doing this. If he has, he's got a lot bigger problems than not scheduling [hearings]," Garcia said.

"He plucked it off the list by himself, issued a board order releasing the person. ... We voted on the case. The vote was four of us voted to keep the person incarcerated and he released the person over our four votes, which is a majority," Garcia said.

"His response was, 'I don't remember the case,' " Garcia said. "When I say we're upset, we're very, very upset."

Holden also told The News Journal he could not recall the case.

'They want to rule'

Garcia and Williamson aren't the only ones upset. So is Sen. Bruce Ennis, D-Smyrna. Ennis heads the Senate Adult and Juvenile Corrections Committee and serves on the Joint Finance Committee, where he voted to keep the Board of Parole independent.

"If one member of the board takes a position and puts out orders inconsistent with the board, I'm against that," Ennis said.

"There's no question that the system works with the majority of votes," Ennis said. "No one person should be able to make the decision."

Having a chairman act unilaterally to release an inmate also troubles Mary Faith Welch, a crime victim who sees the Board of Parole as the only barrier between her and the man who tried to kill her.

A former boyfriend shot Welch twice at near point-blank range with a .357 Magnum handgun in 1986. He is eligible for parole, and Welch has testified in his hearings that she fears he will stalk her again if he's paroled.

"I talk to the board as a whole, the board. I don't like the idea that one person can overrule the board," Welch said.

"I like the feeling that it's five people that are keeping me safe," she said. "It's not up to one person."

When told that board members charge he has overruled board actions, Holden said he couldn't recall having done so.

"I don't remember that. I guess they have better recall than I," Holden said.

But when Holden was told that two members said he'd released at least one inmate without board approval, he replied:

"I kind of think I know what you're alluding to, but I think it was something dealing with graduated sanctions."

The board uses graduated sanctions to deal with minor missteps by parolees, such as missing a curfew. A first offense might net a parolee a weekend in prison, while a second offense might be two weekends behind bars.

In this case, Holden said, an offender was supposed to spend the weekend in prison, but the Department of Correction erroneously held him into the next week.

"So yeah, I put him out on the street," Holden said, maintaining that he had authority to do so.

"He could've lost his job. Let's balance it out here," Holden said. "Here they are again, part-time board members, and I'm here all week."

"I think what's going on now is, they want a change. They want to rule, and I guess I'm just not following at this point."

A cost-saving proposal

When Markell proposed folding the board into the Department of Correction, he billed it as a cost-saving measure.

In addition to cost savings, the proposal also "was about instilling greater professionalism in the process," said Markell spokesman Brian Selander.

"Abolishing the board last session would've solved these problems, and we believe abolishing the board will solve these problems and it's something we'll continue to pursue in January," Selander said.

The recent bout of problems "just serves to make that point more clear," he said.

Ennis, the Senate committee chairman, said that is unfortunate.

"With the internal strife that's going on, it only weakens the position to keep the board," Ennis said, adding that he still sees "a clear need" for a Board of Parole that's independent from the Department of Correction.

Markell, asked whether he had confidence in Holden -- who serves at the pleasure of the governor -- replied in a statement:

"We are aware of many of the allegations and complaints made on each side of this issue. We expect that this News Journal review could raise even more. At this point, the administration is more focused on the permanent solution of abolishing the board than on short-term changes in membership or the chair."

'What's best for the state'
All five board members say they are committed to doing their best to serve the public by helping offenders and protecting victims.

Board member Pfeifer said he believes that with the hearing issue settled, the board will be able to move forward.

"We're getting along. We're very professional. There's no clashes at the meeting, none whatsoever," Pfeifer said. "I think this solves the problem."

The other members weren't quite so confident.

Holden said he thinks the best course of action would either be to expand the board's role or consolidate it within the Department of Correction.

The current board members, he said, "have a lot to offer the state if they use it like they used to. And I'm not being negative. I just want what's best and I don't want to sound like a politician. I want what's best for the state."

Holden said the experience has been so painful that he "just wanted to cry," and that he prays for guidance.

"I felt like I was going to walk away [from] this because I'm thinking, is it really worth it?" Holden said.

"And then some victim walks up to me and says, 'Thank you, Mr. Holden,' and I say, 'God, you got me there.' I just pray that it gets better." ..Source.. J.L. Miller