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State Agency Email Preservation Policies Under Review

Ongoing court cases involving West Virginia’s corrections and foster care agencies have raised concerns on retaining state agency emails as litigation evidence. Lawmakers are now getting responses in their attempt to ensure that needed emails are not lost.

A federal, class-action lawsuit filed in 2019 regarding the state’s foster care system has plaintiffs seeking sanctions. The case includes allegations of deleting emails of former state officials with the state Department of Health and Human Resources.

During recent legislative interim meetings, Del. Amy Summers, R-Taylor, the House Health and Human Resources Committee chair, questioned the incoming secretary of the Department of Health and Human Services, Cynthia Persily. Summers noted that Persily said department leaders were unaware of Office of Technology policies regarding email preservation.

“Secretary Persily said they did not know that the Office of Technology had a policy to dump out accounts once people left, ” Summers said. “That makes me assume that [former] DHHR Secretary Bill Crouch, [former] Interim DHHR Secretary Jeff Coben, and [former] DHHR Deputy Secretary Jeramiah Samples emails have all been purged.”

Since that period, lawmakers have divided DHHR into three cabinet agencies, beginning in June 2024.

Persily responded that the department is working closely with the Office of Technology to establish protocols to ensure nothing like this happens again. Summers asked the chair of the House Technology and Infrastructure Committee, Del. Daniel Linville, R-Cabell, to follow up.

In a related case/issue, the state settled part of a class-action lawsuit last week over conditions at the Southern Regional Jail. The $4 million settlement came after a federal magistrate said there was intentional destruction of email and documents demanded in evidence discovery. Two state corrections leaders were fired after the magistrate’s ruling. Following all that, the Justice Administration said the missing emails were discovered in a different place.

Linville told his committee members he would forward a letter from the Office of Technology detailing the present process and pending improvements. He said the letter was requested and received to make sure that “anytime the state is experiencing litigation, we don’t lose emails.”

The letter noted that on a daily basis, there are half a million emails received and 125,000 sent from the Office of Technology domain. Linville said the procedure to close a state employee’s account requires the agency to submit a “Deprovison Form.”

“When a person leaves state government for whatever reason, or even transfers to a different department of state government, their email is closed after 30 days, and then there’s an additional 20 days or so,” Linville said. “That’s a total of 50 or 55 total days wherein you can recover any emails that that person had while being employed by state government.”

The letter said if litigation is anticipated by an agency, leadership or counsel can request a legal hold on specific email accounts. The letter also stated that the Office of Technology, at the governor’s request, is developing an updated form and process for these requests. Linville said the process update may refer to cleaning up technical jargon, referring to specifics communicated to the Office of Technology as to what is to be preserved.

“Sometimes it’s all the emails an individual got, sometimes it’s emails that have a particular subject or key phrase in it,” Linville said. “And then, over what period? Is it all that are presently there, and any that may come in the future? Or is it just those which are under some certain date range? There are certainly improvements needed to that process.”

Summers said email preservation policies need to be measured as to the employee’s status.

“You can’t store everything, but you have to have a way that emails are deleted,” she said. “If you have the top level people in an agency, I think you might want to make sure there’s a different policy for retention with those individuals.”

Linville said there should be a comprehensive plan, all across the government and its different agencies, regarding email preservation.

“I look to address this in legislation next year, and begin to change what our default is,” Linville said. “That 30-day policy may be fine for a heavy equipment operator with the Division of Highways, but perhaps not for a director level or secretary of an agency.”

The Office of Technology letter noted an internal default. It said once provided to an agency, production data – as in emails – is not retained. The letter said it is the responsibility of the agency to manage and maintain the information in line with its legal strategy.

Settlement Reached In Inmates Vs. State Jail Lawsuit

A settlement has been reached in the federal class-action lawsuit alleging inhumane and unsanitary conditions at the Raleigh County Southern Regional Jail.

This is a developing story and may be updated.

A settlement has been reached in the federal class-action lawsuit alleging inhumane and unsanitary conditions at the Raleigh County Southern Regional Jail.

U.S. District Judge Frank W. Volk filed an order Tuesday stating inmates Michael Rose and Edward Harmon reached a settlement with former Division of Corrections and Rehabilitation interim Commissioner Brad Douglas, former DCR Commissioner Betsy Jividen, current interim DCR Commissioner William Marshall, former Department of Homeland Security Secretary Jeff Sandy, and former Southern Regional Jail Superintendent Michael Francis.

With no details, the filing notes the settlement involves forming a Limited Fund Class Action to be approved by the court. Other parties, including the county commissions served by the jail, were not included in the settlement.

Volk ordered a status conference on the case for this Thursday at 12:30.

The inmate’s complaint, filed in September 2022, alleges the defendants subjected inmates to inhumane conditions and overcrowding at the jail. The complaint demands the state correct the jail conditions.

The settlement comes about a week after U.S. Magistrate Judge Omar J. Aboulhosn wrote a 39 page order, determining that Department of Corrections officials intentionally destroyed evidence, including emails and electronically stored documents. Aboulhosn recommended Volk side with the plaintiffs and issue a summary judgment.

Right after Aboulhosn’s order, Gov. Jim Justice’s Chief of Staff, Brian Abraham, said the missing evidence in the lawsuit was located. Abraham also said the Justice Administration fired Brad Douglas, the former interim corrections commissioner and recent executive officer for the jails system, and Phil Sword, chief counsel for the homeland security agency.

For more than a year, Justice has maintained an emergency crisis situation noting severe staffing shortages throughout West Virginia’s jails and prisons. More than 300 West Virginia National Guard members continue to provide jail assistance in non-guarding duties.

An August special session saw legislation passed to increase the pay for correctional officers and give two one time bonuses to correctional staff.

In an October legislative interim committee meeting, Department of Corrections and Rehabilitation Commissioner Billy Mitchell told lawmakers jail systems were improving. Mitchell said for the first time since COVID-19 hit, jail and prison guard vacancies have fallen below 1,000 – standing at 990.

Two Top W.Va. Corrections Officials Fired, Missing Documents Found

The positions held by Brad Douglas, the former interim corrections commissioner and recent executive officer for the jails system, and Phil Sword, chief counsel for the homeland security agency have been terminated.

Abraham also said the emails, grievances and other documents requested in a class-action lawsuit against the state that were thought to be purged, have been recovered. He says all the information has been located in electronic and paper form at the Southern Regional Jail (SRJ) and is available to be turned over to the court.

The Wednesday firings follow a Justice media briefing where the governor said any parties guilty of intentionally destroying evidence should be terminated or jailed.

“When people are directed to not destroy something, or to supply something, and then they just don’t,” Justice said. “I think that it will be a very long and difficult day for those folk.”

U.S. Magistrate Judge Omar J. Aboulhosn ruled Monday that state employees intentionally destroyed emails and documents relating to a lawsuit alleging inhumane conditions at the Southern Regional Jail in Raleigh County.

In the briefing, Justice referred questions about the emails to his Homeland Security Secretary Mark Sorsaia, who said destroying the emails was not intentional. He said there were administrative failures in preserving that evidence and some people were disciplined.

In producing discovery evidence regarding the civil suit, the state was ordered to put a legal hold on the emails and documents that were later deleted. Sorsaia blamed an automatic email deletion policy regarding outgoing state employees. Abraham now says the documents deleted elsewhere have always been in possession of Corrections personnel at the SRJ.

Aboulhosn recommended a default judgment, holding the state liable for the charges in the lawsuit. Aboulhosn’s judgment will now go before District Judge Frank W. Volk to be confirmed. The defendants in the case have 14 days to object to the judgment and “modify or set aside any portion of the Order found clearly to be erroneous or contrary to law.”

WVPB knows of no action taken yet in light of the new discovery findings.

The judge also ordered the court clerk to send a copy of the order to the United States Attorney to consider an investigation of the West Virginia Department of Corrections and Rehabilitations.

Justice: Any State Employee Derelict Or Purposeful In Withholding Corrections Lawsuit Evidence Should Be Terminated Or Jailed

Homeland Security Secretary Mark Sorsaia,said nothing was intentional. He said there were administrative failures in preserving that evidence and some people were disciplined.

In his weekly media briefing, Justice said if that happened, the guilty parties should be terminated or jailed.

“When people are directed to not destroy something, or to supply something, and then they just don’t,” Justice said. “I think that it will be a very long and difficult day for those folks.”

In the briefing, Justice referred to his Homeland Security Secretary Mark Sorsaia, who said nothing was intentional. He said there were administrative failures in preserving that evidence and some people were disciplined.

“At this time, we have no evidence that any individual or individuals intentionally destroyed evidence or took affirmative action to make sure that evidence was hidden from disclosure,” Sorsaia said.

Sorsaia did not say any employee was terminated and gave no details on the “administrative failures.” He said he disagreed with the judge on that issue.

“We will agree that there were some mistakes in that process by individuals and those individuals no longer have any responsibility for future discovery,” Sorsaia said.

“We discovered that the emails that they wanted belonged to people that had been gone more than five months,” Sorsaia said. “The IT department just routinely deleted them.”

The judge also ordered the court clerk to send a copy of the order to the United States Attorney to consider an investigation of the West Virginia Department of Corrections and Rehabilitations.

W.Va. Correction Commissioner Says Jails System Improving

Corrections Commissioner William Marshall said for the first time since COVID-19 hit, jail and prison guard vacancies have fallen below 1,000 – standing at 990.

We have a class of 55 right now that will graduate next month,” Marshall said. “Our previous class we graduated was 45. And the class before that was 53. So we’ve made some significant hires and some significant impact when it comes to recruiting”

Correctional guard vacancies were recently up to 1,100. Speaking Monday before the Legislative Oversight Committee on Regional Jails and Prisons, Marshall said the $21.1 million the legislature approved for pay raises is helping grow guard academy classes and retirees are coming back to work.

Marshall said changes in the six week class – getting recruits out on the floors at two and a half weeks – gives recruits and supervisors decision making experiences.

“It gives them an opportunity to see if this job fits them or not,” Marshall said. “It also gives the superintendent and the lieutenants and sergeants the opportunity to see how they respond on the floor, how they respond around inmates.”

Marshall said the new academy teaching plan also allows savings when it comes to training.

“We’re not training someone for six weeks at the academy, then they show up the first week in a facility like this and think, ‘This is not what I thought it was,’ and they’re walking out the door,” Marshall said. “We’ve already spent $18 to $20,000 on training. And so this has really greatly helped that.”

Marshal said 330 to 340 National Guard members, under emergency orders, continue to staff non-inmate contact posts at correctional facilities.

“We’re working towards trying to eliminate as many of those as we can going forward,” Marshall said. “As long as we continue to hire, we continue to bring new recruits in.”

He said a new comprehensive recruiting campaign is just underway, including a young public information officer hiree who is well versed in social media.

“We’ve started a new campaign with the Department of Commerce in regards to recruiting,” Marshall said. “We’re on the verge of releasing a new stand alone logo for our division, to try to attract some of the newer, younger generation of workers that would want to come and work for us, whether it be officers, counselors, therapists or office assistants.”

Marshall told the committee that, while a few facilities are at or just under capacity, some overcrowding continues. He said North Central Regional Jail in Doddridge County, with a population of more than 800, is about 300 inamtes over capacity.

“It’s just such a hotbed of an area right now when it comes to drug crimes and crimes in general that are feeding into North Central,” Marshall said.

Marshall said over the last calendar year, there was a point where they hired about 700 people, but lost about 650.

“Those numbers are starting to slow down,” he said. “Obviously because of the new pay plan. I’ve received several waivers recently, which is a good sign for the academy, which means we got people coming back that are already academy trained.”

Overcrowding and understaffing, along with physical conditions in the jail system, have sparked numerous lawsuits, alleging dangerous and deplorable living facilities.

Marshall said $60 million in eight deferred maintenance projects are underway statewide.

“We’ve also been working with some energy savings groups with the potential of working with them in order to get some additional projects completed in our jails and prisons and juvenile centers as well,” Marshall said.

He mentioned one project that would have a company set up a HVAC class for inmates at Salem.

“That company is also looking at fixing a lot of our HVAC systems going forward that are ready,” Marshall said. “Instead of trying to fix them by just completely replacing them.”

He said a new initiative called Desert Waters specifically offers mental mental health care for corrections officers.

“It’s another tool for our people to be able to talk to people,” Marshall said. “To be able to share experiences with people who actually speak their language and know what they are saying,”

Marshall told the interim committee that he’s hopeful, with new recruiting efforts, pay raises, retention plans and maintenance upgrades, the emergency crisis within the corrections system will lessen over time.

“The one thing that I knew coming into this job in January is, we were never going to conquer this,” Marshall said. “It will constantly be a challenge that we’ve accepted and I think we’re heading in the right direction.”

New Corrections Lawsuit Alleges Women’s Prison Gang Terrorized Inmates

The complaint said a female gang known as the “A-8 Gladiators” freely and severely beat an inmate while she was incarcerated,

Yet another lawsuit involving a state jail was filed in federal court earlier this month. The complaint from former inmate Nicole Henry named the state Department of Corrections and Rehabilitations and unidentified Southern Regional Jail guards as defendants. It said a female gang known as the “A-8 Gladiators” severely beat Henry while she was incarcerated, along with numerous other prisoners.

Henry’s attorney, Steve New from Beckley, said that jail administrators and guards did not just permit the gang to freely inflict terror and violence, but would direct certain prisoners to section “A-8.”

“Women who those guards, for whatever reason, didn’t like or wanted to see something bad happen to them,” New said.

The complaint says Henry was beaten twice and suffered “serious and permanent injuries.”

“John/Jane Doe Correctional Officers failed to ensure plaintiff’s cell was properly locked and secure at appropriate times, ignored plaintiff’s attempts to receive help, failed to intervene in the beating, failed to separate the gang following the beating and failed to take plaintiff to the medical unit following the beating,” the lawsuit said.

New said there are up to a dozen more lawsuits coming from other inmates alleging they were beaten and terrorized by the “A-8 Gladiators.”

He said these cases, along with several others alleging overcrowded and unsanitary jail conditions – including the lawsuit calling for a special legislative session, that demanded the state spend $330 million for deferred maintenance and worker vacancies in state corrections – all dovetail into the state’s long running jail emergency crisis.

“Just imagine having upwards of 50 or 60 people in a space designed for 32,” New said. “Then you have the issues with the horrible conditions and lack of running water in the cells, the lack of operable toilets, the lack of operable showers, and it just creates a powder keg.”

In his media briefing on Friday, Gov. Jim Justice said the state has an obligation to fix the jail and prison problems.

“We still are in a state of emergency in regard to this,” Justice said. “I’m confident now that we’ve gotten everybody’s attention, we’ll get there with stuff that will make real progress.”

New said the Corrections funding legislated in the August special session offers promise.

“The interim in August did about half of what was needed in terms of the $270 million, deferred maintenance and the money needed to fully staff the jails with corrections officers and other personnel,” New said. “Hopefully the legislature will see to it to get all of this finished.”