Judges have ruled in recent years that the Kentucky Department of Corrections’ poor administration of an educational credit program is “arbitrary and capricious” and a violation of inmates’ constitutional rights, which may now be tied to recent firings of top officials in the department.
While a law allows inmates to receive “good time credit” off their sentences by completing educational and behavioral classes — designed to reduce recidivism and save money — an ongoing lawsuit first filed in 2012 has uncovered that DOC officials have failed to keep track of those records, creating the likelihood that many have been imprisoned for months or years longer than they should have been.
Developments in this case over the past few months may also tie into the recent upheaval in the DOC, as three top officials who testified in this lawsuit and have some degree of responsibility for oversight of the credit program were either fired or put on investigative leave on Feb. 8 — the same day that the state paid $222,131 in attorney fees for the plaintiffs to comply with a judge’s order in December.
Commissioner James Erwin and Chris Kleymeyer, the director of operations and program services for adult prisons, were both fired without cause on Feb. 8, the same day that Martha Slemp, the education manager for prisons, was placed on a 60-day leave while she is under internal investigation.
However, identifying the direct cause of these personnel moves has remained difficult, as statements from the Justice and Public Safety Cabinet overseeing Corrections have remained vague, while allegations concerning the mishandling of sexual harassment and assault claims in prisons and within the Division of Probation and Parole have also rocked the department in recent months.
Erwin’s wrongful termination lawsuit asserts he was fired for refusing Cabinet Secretary John Tilley’s order to fire two jail officials who were accused of sexually harassing female employees, saying the internal investigation was flawed. Tilley fired Probation and Parole Director Johnathan Hall last month for allegedly mishandling an accusation of sexual assault against an officer, with a Cabinet spokesman stating that “while former leadership at the DOC may have tolerated this type of negligence and misconduct, the Justice Cabinet finds it unacceptable and is taking decisive steps to root it out.”
Even with those sexual misconduct allegations in the background, the specifics from the lawsuit regarding the educational credit program suggest that they could also play a role in the firings.
First filed in Franklin Circuit Court in September of 2012, the case drug on for years as Judge Phillip Shepherd gave the DOC time to go back and collect the records of classes taken by inmates, which had not been properly managed since 2010.
In his 2015 order, Shepherd ruled that Corrections’ administration of the program was “arbitrary and capricious” and denied the plaintiffs’ due process and equal protection rights under the state and federal constitutions, certifying a class of inmates who sought good time credit by taking classes since 2007. Shepherd also ordered the parties into a mediation process supervised by the former U.S. Magistrate Judge C. Cleveland Gambill, which fell apart in 2017 when little progress had been made by DOC on the compilation of those records.
Depositions and evidentiary hearings were held in 2016 and 2017 questioning Slemp, Kleymeyer and Erwin about DOC’s administration of the program and recordkeeping of the classes. In Shepherd’s eventual ruling in November — ordering Corrections’ to hire an outside independent auditing firm to compile the records and pay the attorney fees of the plaintiffs — he noted that despite being the deputy commissioner of adult institutions since 2010 and the acting commissioner of DOC for several months, Erwin testified that summer that “he was unaware” of Shepherd’s 2015 order blasting the DOC’s administration of the program as arbitrary and capricious.
The defendants, including the Justice Cabinet and Sec. Tilley, then successfully moved the case to the U.S. District Court for the Eastern District of Kentucky in 2018, where Judge Gregory Van Tatenhove presided.
While the defendants attempted to dissolve or modify parts of Shepherd’s order, Van Tatenhove only pushed in the opposite direction. Having still not hired an auditor, Van Tatenhove ruled that DOC would be fined until it did so — which it finally did in October. In his December ruling, he also ordered the defendants to pay $222,131 in plaintiffs’ attorney fees for the over 1,000 hours they worked in the previous six years.
After a delay in that payment of nearly two months, the plaintiffs’ attorneys, Gregory Belzley and Camille Bathurst of Prospect, finally received a check from the Kentucky Department of Treasury for the full amount on Feb. 8, the same day that Erwin and Kleymeyer were fired and Slemp was put on investigative leave.
According to state records, the DOC has a $3.7 million contract with auditing firm KPMG to compile their educational credit records over the past decade, the work of which is underway.
Even though the attorney fees have been paid, the DOC is still appealing Judge Van Tatenhove’s December order for those fees to be paid. Belzley filed a brief responding to that appeal last week, arguing that the state’s payment has made the appeal moot and asking the judge to find it frivolous and award the plaintiffs more attorney fees.
While the DOC is appealing the award of attorney fees, the Justice Cabinet opted not to join that appeal. Spokespersons for each cabinet failed to respond to an emailed question from Insider Louisville inquiring about why the DOC was appealing but the cabinet was not.
No matter the outcome of the appeal, the lawsuit on behalf of the class of inmates who have taken educational classes in state prison goes on, as the court-ordered audit of classes and good time credits continues — which may ultimately reveal individuals who have served a sentence longer than what was necessary under the law.