Citizens for Criminal Justice Reform – New Hampshire

By Chris Dornin, Legislative Policy Committee Chair

The State House Professional Conduct Committee will hear our complaint Aug. 2 against Rep. John Sytek. As a legislative committee vice chairman he helped kill our bills in 2017 and 2018 to make the Department of Corrections get its policies approved by lawmakers as administrative rules. We asked him to recuse himself on both pieces of legislation, HB 192 followed by SB 373, because he is married to the head of the Parole Board. He refused to do so. Our complaint will help decide if that was a proper decision. >

His wife Donna Sytek chairs both the Parole Board and the committee reviewing our claim against her husband. She recused herself from acting on that complaint. So did her fellow committee member, David Hess, saying he is a close friend of John Sytek’s. We told journalist Nancy West about the complaint, but she recused herself as a friend of Donna Sytek’s.

We ask John Sytek to follow these same high professional standards as a lawmaker. He has generously waived his right to confidentiality, so the public and the press can watch the hearing Aug. 2. It starts at 10:30 a.m. in Room 104 of the Legislative Office Building. The same hearing was first scheduled in July, but the meeting lacked a quorum. 

Below is the text of the complaint. It is based on a scathing performance audit of the prison sexual offender treatment program, which you can read on line at this link.  http://www.gencourt.state.nh.us/LBA/AuditReports/PerformanceReports/DOC_Sex_Offender_Treatment_2016.pdf

The program auditors discovered that the Parole Board always deferred to the prison Administrative Review Committee on decisions to release or hold back sex offenders at the end of their minimum sentences. The study found that members of the Parole Board never received enough critical information to make their own independent parole decisions on these inmates. 

In other words, the Administrative Review Committee was the real Parole Board for convicted sexual offenders. An average of 200 sex offenders stayed in prison past their minimum sentences each year between 2014 and 2016, often leaving the joint years late. The Administrative Review Committee had never gone through the State House rulemaking process. It still hasn’t. We expect a hearing on it in late summer or early fall before the Joint Legislative Committee on Administrative Rules. Stay tuned. Be there. 

A legislative ethics complaint against Rep. John Sytek

By Chris Dornin, co-founder, Citizens for Criminal Justice Reform

This is a legislative ethics complaint against Rep. John Sytek for writing the House calendar blurb against SB 373 this May 2 without divulging he had a conflict of interest because his wife chairs the Parole Board. The bill would have required the Department of Corrections to get its policies approved as administrative rules by the Joint Legislative Committee on Administrative Rules. Rep. Sytek has committed half a dozen similar acts over the last two years in House committee and subcommittee by opposing SB 373 and an earlier version of the same bill, HB 192. His comments, motions and votes against these bills in committee, in subcommittee and on the House floor constitute an ethical violation because he failed to report his conflict. 

Both bills addressed a longstanding injustice committed by the Parole Board against every sexual offender who came up for parole between 2014 to 2106, described below. Inmates and parolees say this questionable practice also existed in years prior to 2014. The representative’s wife, Donna Sytek, chairs the Parole Board. She also chairs the Legislative Ethics Committee that will act on  this complaint. We ask that she recuse herself in this matter against her husband. Every fact in this complaint shows he breached the following three ethical guidelines for lawmakers. 

ETHICS GUIDELINES

1 PRINCIPLES OF PUBLIC SERVICE

!. Public Office as a Public Trust

Legislators shall treat their office as a public trust, only using the powers and resources of public office to advance public interests, and not to attain personal benefits or pursue any other private interest incompatible with the public good.

II. Principle of Independent Objective Judgment

Legislators shall employ independent objective judgment in performing their duties, deciding all matters on the merits free from conflicts of interest and both real and apparent improper influences.

III. Principle of Accountability

Legislators shall ensure that government is conducted openly, equitably and honorably in a manner that permits the citizenry to make informed judgments, have confidence in the integrity of the legislature, and hold government officials accountable. 

Under Donna Sytek the Parole Board allowed an obscure board within the prison called the Administrative Review Committee or “ARC” to function for several years as the real and only parole board for sexual offenders. Prison officials never gave the statutory Parole Board enough information to make their own independent decisions whether to retain or free these prisoners. Instead, the Parole Board accepted every recommendation of the ARC about a sexual offender, without getting crucial supporting information. In other words, the Parole Board was not acting like a statutory Parole Board. 

That is the finding of a 2016 performance audit by the Office of Legislative Budget Assistant. Below is a passage from page 33 of the audit report, a copy of which is provided for each member of the Legislative Ethics Committee. I discussed this performance audit with Rep. Sytek at a subcommittee meeting he chaired concerning HB 192 on Oct. 26, 2017. In front of half a dozen lawmakers he denied having a conflict on this legislation. I gave him a copy of the performance audit at that meeting, I read aloud from it as part of my testimony, and he should be familiar with it. The subcommittee voted down his motion to kill HB 192. Instead, they retained it. All members of his full legislative committee received the audit report nine months earlier at the public hearing on HB 192, a bill similar to SB 373. 

Page 33 of the audit says the Parole Board for many years lacked critical information to make independent decisions on convicted sexual offenders. The report elsewhere says that Donna Sytek and her colleagues always took the advice of the secretive ARC.  The ARC had never gone through legislative rulemaking and it never gave Parole Board members vital information about these inmates. Both HB 192 and SB 373 would have corrected that problem. Rep. Sytek led the opposition to both bills. Here is maybe the most important finding from the performance audit. 

“Adult Parole Board members reported the type of information relayed to Board members (by the ARC) when considering a sexual offender for parole could be improved. For each sexual offender completing the Intensive Sexual Offender Treatment (ISOT) program, the Board received a list of recommendations for further treatment or restrictions which were eventually incorporated as parole conditions. For example, based on the offender’s crime, it was not uncommon for SOT clinicians to recommend restrictions on computer, internet, or social media use; prohibitions on frequenting specific places; or further counseling for other underlying issues.  While all Board members stated these recommendations were helpful, members also reported other information such as the sexual offender’s assessment scores, treatment progress, level of participation in treatment, and whether they showed signs of accepting responsibility for their crime would also be helpful for making parole decisions. However, this information was not directly provided by the ISOT program.” 

Just to be clear, the report says the Parole Board did not receive a sexual offender’s assessment scores, progress and level of participation in sexual offender treatment, and the degree to which the offender took responsibility for his crime. It was unacceptable for the Parole Board and its chairperson to let that mistake occur. They abdicated their duty to make their own well informed parole decisions regarding 25 percent of the state’s prisoners. Instead, they allowed the ARC to serve as the real Parole Board for these inmates. SB 373 would have helped to correct the problem described on page 33 of the audit. Rep. Sytek has repeatedly denied having any ethical conflict in this matter. If he is mistaken, he will need to publicly admit his conflict on bills we plan next year to require both the Department of Corrections and the Parole Board to get their policies vetted as rules before the Joint Legislative Committee on Administrative Rules. SB 373 recently died on the House floor after Rep. Sytek wrote the following blurb against it. We submit that his blurb constitutes acting with an undivulged ethical conflict on legislation. 

 SB 373, requiring rulemaking by the department of corrections. INEXPEDIENT TO LEGISLATE. Rep. John Sytek for Executive Departments and Administration. This bill is substantially the same as HB 192, which this House referred for interim study in January. Both bills would require additional rules of the Department of Corrections (DOC) to be subject to RSA 541-A, and the formal rulemaking process, through JLCAR.  This bill required internal process rules, such as those for inmate behavior, be subject to RSA 541- A, and the committee was not convinced that these rules were appropriate for this process. The majority was convinced that this bill was unnecessary since it duplicated the provisions of HB 192. Further review of that bill in interim study will ensure that the DOC implements its commitment to update its rules expeditiously, and that effort is progressing. Those who voted against the Inexpedient to Legislate motion wanted to be certain that the DOC maintains its rate of progress and that the legislature would continue to monitor the situation – a kind of belt and suspenders approach. The majority felt referring two very similar bills for interim study would be redundant. Vote 11-7.

Donna Sytek has informed me the Parole Board now receives all the information on sexual offenders it lacked in 2014, 2015 and 2016. From Parole Hearings I have watched, I would question her assertion. Even if her opinion is true, it does not remove her husband’s ethical conflicts on HB 192 and SB 373. Corrections leadership told our organization in 2014 that only six sexual offenders were going past their minimum sentences. Now we know that for at least three years, and perhaps much longer, the Parole Board failed to perform its statutory work and thereby caused enormous harm. According to the performance audit, 200 sexual offenders stayed in prison past their minimum sentences every year. That was a $7 million impact on the state budget, because each prisoner costs $35,000 per year. Nearly all of them reached the Parole Board long after their minimum terms expired. Below are comments from inmates about the sexual offender treatment program in 2016. Their remarks bear directly on this complaint against Rep. Sytek. The performance audit verifies each inmate concern.  

Inmate comments on sexual offender program in June, 2016

Each inmate statement below starts with an asterisk. A different inmate wrote each comment for the auditors from the Office of Legislative Budget Assistance in 2016. Citizens for Criminal Justice Reform has withheld inmate names, but they signed their statements. 

  *What the hell is the Administrative Review Committee? Is that a second parole board?   Why doesn’t anyone else have two parole boards?

• The Administrative Review Committee has no PPDs that govern how it works. An inmate does not have any due process rights with it. The inmate is not allowed to be at the board, nor is the meeting audio or video taped. Nor is there any transcript of the meetings. This ARC board slows down the treatment program greatly. 
• The ARC has no prison rules and regulations. They have no set schedule or standards or oversight by anyone. I’m not even sure anyone outside the prison knows about it. My lawyer had no clue what it was.
• There is a big backlog waiting for the illegal ARC board. They use it to punish people.  
• The ARC, it’s a parole board before the parole board.
• When you ask for the policy on the ARC they tell you to find it in the law library. The law library tells you it doesn’t exist.
• The ARC keeps people from leaving on time. This in turn keeps others from getting into the program. 
• They use the ARC as a weapon to keep sex offenders back longer.
• The ARC made me take programming before I could leave. I am way past my minimum because of their backlog. 
• The ARC is a bottleneck parole board before the actual parole board. 

Other key passages from the performance audit

Below are several pages from the performance audit that bear directly on this complaint against Rep. John Sytek. These passages document that a secret board within the prison had thoroughly usurped the job of the Parole Board for many years. Here is the most damning statement: “According to Board members, it did not grant sexual offenders parole unless the ARC granted a discharge from the ISOT program.” Rep John Sytek strongly opposed legislation in 2017 and again in 2018 designed to correct that poor administration by his wife as chairperson of the Parole Board. In both committee and subcommittee meetings he denied having a conflict.

Page 8 of the audit    Before being discharged from ISOT (Intensive sexual offender treatment), an inmate’s case was brought before the Administrative Review Committee (ARC), which performed an external review to ensure treatment goals were satisfactorily met. The ARC consisted of seven behavioral health clinicians, one of whom worked in the SOT program. Inmates remained in the therapeutic community while awaiting the ARC’s review, continuing to attend group sessions. If the ARC determined treatment goals were met, it recommended outside treatment options to the Adult Parole Board. However, if the ARC determined goals had not been met, it may recommend the inmate remain in ISOT.

page 23 of the audit    However, we found the (sex offender treatment) program could benefit from codifying the Administrative Review Committee (ARC) and developing policies to address potential conflicts of interest when its clinical therapeutic staff also provide services to the general public.

page 26 of the audit

Observation No. 4     Establish The Administrative Review Committee In Rule And Develop Policies And Procedures. Even though the ARC had a lot of power in granting sexual offenders a discharge or terminating and removing them from ISOT, the DOC did not formally establish the ARC in rule or document its operations in policy and procedure directives. While the ARC did not review sexual offenders recommended for community treatment, it performed an external review to ensure ISOT participants satisfactorily met their treatment goals and, if necessary, recommended further treatment. The ARC was also responsible for determining whether participants should be terminated and removed from the program, as well as when they may return. If the ARC determined treatment goals were met, it granted the participant a discharge and submitted its recommendations for parole restrictions or further treatment to the Adult Parole Board (Board). According to Board members, it did not grant sexual offenders parole unless the ARC granted a discharge from the ISOT program. Additionally, the ARC’s recommendations were usually incorporated into the offender’s parole conditions. 

RSA 21-H:13, III required the DOC to promulgate administrative rules relative to management and operation of rehabilitation related programs, including counseling and therapy. Administrative rules are meant to prescribe or interpret agency policy, procedure, or practice binding on persons outside the agency, whether members of the public or personnel in other agencies. Formal rulemaking provides the opportunity for public and legislative oversight, and provides greater certainty and accountability in agency interactions with outside parties. The contract ISOT participants signed indicated any violation of program rules may be referred to the ARC and its role was discussed in the handbook given to all ISOT participants. However, the ARC’s role in the sexual offender treatment process and its responsibilities were not formalized in administrative rules or DOC policy and procedure directives. Without rules, policies, or procedures describing the ARC’s roles, responsibilities, and scope of authority, the DOC risks uncertainty and irregularities when performing its function. One Board member stated the Board was under the impression the ARC reviewed all sexual offenders including those who were recommended for community treatment. In addition, ARC members reported that because there was no manual or document outlining its responsibilities, they learned their duties through participating in meetings and asking other ARC members. Recommendations: We recommend DOC management formally codify the ARC and ensure policies and procedures outlining its role, responsibilities, scope of authority, and practices in the sexual offender treatment process are developed. The DOC should consider: the population of sexual offenders subject to the ARC’s review; its authority in terminating and removing participants from, as well as returning participant to, the ISOT program; Program Operations; its role in granting a discharge from the program; and its responsibility as it pertains to interactions with the Parole Board. 

Agency Response: We Concur. We will codify the Administrative Review Committee in rule and policy. 

Additional material from page 33 of the audit

 (Parole) Board members reported receiving less information regarding sexual offenders assigned to community treatment. While SOT staff provided recommendations for further treatment and restrictions for offenders completing ISOT, Board members did not receive similar recommendations for offenders required to obtain treatment with a provider in the community after their release. For example, they did not have information regarding whether it would be appropriate to prohibit internet, social media, or cell phone use; whether the offender should be restricted from having contact with minors; or other conditions. Additionally, members reported assessment scores used to determine an offender’s recidivism risk were not made available to Board members. 

We found discharge information for which sexual offenders have granted a release was available to the Board through the DOC’s electronic mental health records system. However, members may not have been fully aware of how to access it or where within the system this information was located. 

We suggest SOT management work with the Board to identify what information is currently available and where it can be found. We also recommend SOT management collaborate with the Parole Board to increase information sharing regarding sexual offenders recommended for community treatment.

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SB 373 - AS AMENDED BY THE SENATE

03/15/2018   0995s

2018 SESSION 18-2941 05/10

SENATE BILL 373

AN ACT requiring rulemaking by the department of corrections.

SPONSORS: Sen. Feltes, Dist 15; Sen. Reagan, Dist 17

COMMITTEE: Executive Departments and Administration

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 AMENDED ANALYSIS

 This bill revises certain rulemaking requirements for the department of corrections.

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 Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/15/2018   0995s 18-2941 05/10 

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eighteen

 AN ACT requiring rulemaking by the department of corrections.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  Department of Corrections; Powers and Duties of Commissioner; Rulemaking.  Amend the introductory paragraph of RSA 21-H:8, III to read as follows:

III.  The commissioner shall adopt, as rules under RSA 541-A, such reasonable internal practices and procedures, [which shall not be considered rules subject to the provisions of RSA 541-A,] except for security protocols, as may be necessary to carry out the duties and programs of the department and its divisions, consistent with this chapter.  These procedures shall include at least the following elements:

2  Department of Corrections; Powers and Duties of Commissioner; Rulemaking.  Amend RSA 21-H:8, XI to read as follows:

XI.  The commissioner and the commissioner of the department of health and human services shall jointly establish procedures for sharing data, at least in the aggregate, on delinquents and offenders for purposes of correctional planning and needs assessments.  These procedures shall not be considered rules subject to RSA 541-A, but shall be subject to RSA 91-A, and shall be established so as to ensure compliance with state and federal confidentiality and privacy laws.

3  Behavior of Inmates.  Amend RSA 21-H:14 to read as follows:

21-H:14  Behavior of Inmates.  The commissioner shall establish written standards regarding the behavior and responsibilities of inmates.  These standards shall be made available to all such inmates and shall be considered public records.  These standards shall [not] be considered rules, subject to the provisions of RSA 541-A, unless the standards are needed on an emergency basis, in which case they shall be exempt from the rulemaking requirements of RSA 541-A.

4  Sentences and Limitations; Home Confinement.  Amend RSA 651:2, V(e) to read as follows:

(e)  The department of corrections [and the various county departments of corrections] shall adopt rules pursuant to RSA 541-A governing eligibility for home confinement, intensive supervision, and special alternative incarceration programs.

5  Repeal.  RSA 541-A:21, I(aa), relative to the rulemaking exemption for internal practices and procedures of the department of corrections, is repealed.

6  Effective Date.  This act shall take effect one year after its passage.

See Attached .pdf file for the decision -

Chris Dornin can be reached at cldornin@aol or at 603-228-9610.