AN ACT Relating to creating an office of the corrections ombuds; adding a new chapter to Title 43 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

(1) "Abuse" means any act or failure to act by a department employee, subcontractor, or volunteer which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to an inmate.

(2) "Corrections ombuds" or "ombuds" means the corrections ombuds, staff of the corrections ombuds, and volunteers with the office of the corrections ombuds.

(3) "Council" means the ombuds advisory council established in section 4(1) of this act.

(4) "Department" means the department of corrections.

(5) "Inmate" means a person committed to the custody of the department, including, but not limited to, persons residing in a correctional institution or facility; persons released from such facility on furlough, work release, or community custody; and persons received from another state, another state agency, a county, or the federal government.

(6) "Neglect" means a negligent act or omission by any department employee, subcontractor, or volunteer which caused, or may have caused, injury or death to an inmate.

(7) "Office" means the office of the corrections ombuds.

(8) "Organization" means the private nonprofit organization that operates the office of the corrections ombuds.

(2) The council initially consists of the following four members:

(a) The president of the senate shall appoint one member from each of the two largest caucuses of the senate.

(b) The speaker of the house of representatives shall appoint one member from each of the two largest caucuses of the house of representatives.

(3) The council membership in subsection (2) of this section shall select the following additional members:

(a) One former inmate, who has successfully reintegrated into the community and is no longer in the custody of the department.

(b) Two family members of current inmates.

(c) One expert with significant criminal justice or correctional experience who is not an employee or contractor with Washington state.

(d) A community member with extensive knowledge and experience in issues related to racial, ethnic, or religious diversity within the correctional system.

(e) A community member with extensive knowledge and experience in the accommodation needs of individuals with disabilities.

(f) An individual with dispute resolution training who has experience working in the criminal justice or corrections fields.

(4) The governor shall select the following two additional members of the council:

(a) A representative of the department.

(b) A representative of the collective bargaining unit of employees of the department.

(5) After the full membership is attained, the council shall develop a process for replacing members in case of resignation or expiration of terms.

(6) Council members serve a term of three years, except that the council shall create and implement a system of staggered terms, and no member may serve more than two consecutive terms. The council shall convene at least quarterly. Council members will serve without compensation, except that funds appropriated for the implementation of this act may be used to reimburse members who are not employees of Washington state for expenses necessary to the performance of their duties.

(2) The contracting organization and its subcontractors, if any, are not state agencies or departments, but instead are private, independent entities operating under contract with the state.

(3) The governor or state may not revoke the designation of the organization contracted to provide the services of the office of the corrections ombuds except upon a showing of neglect of duty, misconduct, or inability to perform duties. Prior to revoking the designation, the state must provide notice and an opportunity for the organization, the ombuds, and the public to comment upon the proposed revocation, and must provide the organization an opportunity to appeal the decision to the state supreme court.

(a) Establish priorities for use of the limited resources appropriated to implement this act;

(b) Maintain a statewide toll-free telephone number, a collect telephone number, a web site, and a mailing address for the receipt of complaints and inquiries;

(c) Provide information, as appropriate, to inmates, family members, representatives of inmates, department employees, and others regarding the rights of inmates;

(d) Provide technical assistance to support inmate participation in self-advocacy, utilizing existing kite, grievance, and appeal procedures;

(e) Monitor department compliance with applicable federal, state, and local laws, rules, regulations, and policies with a view toward protecting the rights of inmates;

(f) Monitor and participate in legislative and policy developments affecting correctional facilities and advocate for systemic reform aimed toward protecting the rights of inmates;

(g) Establish a statewide uniform reporting system to collect and analyze data related to complaints regarding the department;

(h) Establish procedures to receive, investigate, and resolve complaints;

(i) Submit annually to the council, by November 1st of each year, a report analyzing the work of the office, including any recommendations; and

(j) Adopt and comply with policies and procedures necessary to implement this chapter.

(2)(a) The ombuds may initiate and attempt to resolve an investigation upon his or her own initiative, or upon receipt of a complaint from an inmate, a family member, a representative of an inmate, a department employee, or others, regarding:

(i) Abuse or neglect;

(ii) Department decisions or actions;

(iii) Inactions or omissions;

(iv) Policies, rules, or procedures; or

(v) Alleged violations of law.

(b) The ombuds may decline to investigate any complaint as provided by the rules adopted under this chapter.

(c) The ombuds may not investigate any complaints relating to an inmate's underlying criminal conviction.

(d) The ombuds may not investigate a complaint from a department employee that relates to the employee's employment relationship with the department.

(e) The ombuds may refer complainants and others to appropriate resources, agencies, or departments.

(f) The ombuds may not levy any fees for the submission or investigation of complaints.

(g) At the conclusion of an investigation of a complaint, the ombuds must render a public decision on the merits of each complaint, except that the documents supporting the decision are subject to the confidentiality provisions of section 8 of this act. The ombuds must communicate the decision to the inmate, if any, and to the department. The ombuds must state their recommendations and reasoning if, in the ombuds' opinion, the department or any employee thereof should:

(i) Consider the matter further;

(ii) Modify or cancel any action;

(iii) Alter a rule, practice, or ruling;

(iv) Explain in detail the administrative action in question;

(v) Rectify an omission; or

(vi) Take any other action.

(h) If the ombuds so requests, the department must, within the time specified, inform the ombuds about any action taken on the recommendations or the reasons for not complying with the recommendations.

(i) After the conclusion of an investigation, if the ombuds believes that additional action is warranted, the ombuds may:

(i) Report a finding of abuse, neglect, or other rights violation to the appropriate committees of the legislature.

(ii) Commence litigation, but state funds may not be used for purposes of litigation.

(iii) Take any additional action that the ombuds considers appropriate.

(j) Before announcing a conclusion or recommendation that expressly, or by implication, criticizes a person or the department, the ombuds must attempt to notify the person or the department. The ombuds may request to be notified by the department, within a specified time, of any action taken on any recommendation presented. The ombuds must notify the inmate, if any, of the actions taken by the department in response to the ombuds' recommendations.

(3) This chapter does not require inmates to file a complaint with the ombuds in order to exhaust available administrative remedies for purposes of the prison litigation reform act of 1995, P.L. 104-134.

(a) An incident is reported or a complaint is made to the office;

(b) The ombuds determines there is probable cause to believe that an incident has or may have occurred; or

(c) The ombuds determines that there is or may be imminent danger of serious abuse or neglect of an inmate.

(2) The ombuds must have reasonable unaccompanied access to department facilities, including all areas which are used by inmates, all areas which are accessible to inmates, and to programs for inmates at reasonable times, which at a minimum must include normal working hours and visiting hours. This access is for the purpose of:

(a) Providing information about individual rights and the services available from the office, including the name, address, and telephone number of the office;

(b) Monitoring compliance with respect to the rights and safety of inmates; and

(c) Inspecting, viewing, photographing, and video recording all areas of the facility which are used by inmates or are accessible to inmates.

(3) Unaccompanied access to inmates includes the opportunity to meet and communicate privately and confidentially with individuals regularly, both formally and informally, by telephone, mail, and in person.

(4) If the department or a department employee denies access to any premises under the control of the department to the ombuds, or subcontractors or volunteers who are performing ombuds functions or acting under the supervision of the ombuds, the department is liable for a fine of up to one thousand dollars per day of denied access.

(5) The ombuds has the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the department that the ombuds considers necessary in an investigation of a complaint filed under this chapter, and the department must assist the ombuds in obtaining the necessary releases for those documents which are specifically restricted or privileged for use by the ombuds.

(a) When conducting an investigation of potential abuse or neglect, the ombuds must have access to relevant records not later than three business days after the ombuds makes a written request for such records.

(b) The ombuds must have immediate access, not later than twenty-four hours after the ombuds makes such a request, to relevant records, without consent from another party, if the ombuds determines there is probable cause to believe that the health or safety of an inmate is in serious and immediate jeopardy, or in any case of death of an inmate while in department custody.

(6) A state or local government agency or entity that has records that are relevant to a complaint or an investigation conducted by the ombuds must provide the ombuds with access to such records.

(2) The office shall establish confidentiality rules and procedures for all information maintained by the office.

(3) The office shall preserve the confidentiality of information obtained while providing services, including general information, technical assistance, and investigations, to individuals, including inmates, family members and representatives of inmates, department employees, and others. Confidential information may not be disclosed unless the individual gives informed consent, the disclosure is impliedly authorized in order to carry out ombuds services, or the disclosure is authorized by subsection (4) of this section.

(4) To the extent the ombuds reasonably believes necessary, the ombuds:

(a) Must reveal information obtained in the course of providing ombuds services to prevent reasonably certain death or substantial bodily harm; and

(b) May reveal information obtained in the course of providing ombuds services to prevent the commission of a crime.

(2) No discriminatory, disciplinary, or retaliatory action may be taken against a department employee, subcontractor, or volunteer, an inmate, or a family member or representative of an inmate for any communication made, or information given or disclosed, to aid the office in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith.

(3) The department may not hinder the lawful actions of the ombuds or employees of the office, or willfully refuse to comply with lawful demands of the office. If the department or a department employee willfully hinders the lawful actions of the ombuds or willfully refuses to comply with the lawful demands of the ombuds, the department is liable to a fine of up to one thousand dollars per incident of hindrance or noncompliance.

(4) This section is not intended to infringe on the rights of an employer to supervise, discipline, or terminate an employee for other reasons.

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