Attorney General Lawrence Wasden wrote the letter to Idaho Gov. C. L. "Butch" Otter and the heads of the state police, Department of Correction and the Ada County prosecutor's office Friday. The Associated Press obtained the letter through a public records request.
In it, Wasden said there appears to be a "large degree of confusion" into whether, based on a forensic audit that showed thousands of hours of guard posts being left unstaffed, an investigation into alleged criminal wrongdoing should be conducted.
"To ensure that there is no confusion going forward, I recommend that this matter be immediately referred to the Idaho State Police and the Ada County Prosecuting Attorney's Office for an investigation of any criminal wrongdoing," Wasden wrote.
In a reply letter delivered by hand on Friday, Otter told Wasden thanks but no thanks.
"There does seem to be some public confusion, fomented by media reports, about the degree to which the Idaho State Police (ISP) was involved in assessing potential criminal wrongdoing in Corrections Corporation of America's (CCA) operations at the Idaho Correctional Center (ICC)," Otter wrote in the letter.
The governor went on to state that both the Correction Department and the state police regularly assessed "for indications of criminal wrongdoing" the materials that had been collected for a forensic audit ordered by the state on the staffing matter. State police also consulted with the Ada County prosecutor, Otter said.
"Therefore, both ISP and the Ada County Prosecuting Attorney's Office have been involved, as have Deputy Attorney General Mark Kubinski representing IDOC, and, to a lesser degree, Deputy Attorney General Stephanie Altig representing ISP," Otter wrote. "Thank you again for your recommendation."
The Idaho Department of Correction asked the Idaho State Police to investigate any criminal wrongdoing last year after The Associated Press reported that there appeared to be anomalies in staffing reports that Correction Corporation of America was giving the state. Those reports showed some correctional officers working for as long as 48 hours straight to fill mandatory guard posts required under CCA's $29 million state contract.
The state hired an auditing firm, KPMG, which determined that Nashville, Tenn.-based CCA left more than 26,000 hours of mandatory guard posts unstaffed or inadequately covered during 2012. CCA has agreed to pay the state $1 million for the understaffing, but the company is contesting the KPMG report, which CCA claims has several errors.
Throughout the past year, officials with the Idaho Department of Correction have said repeatedly that the Idaho State Police's criminal investigation was underway. A federal judge even cited the police investigation in a contempt of court ruling against CCA, saying he wasn't going to take certain steps in his order because he didn't want to interfere with an ongoing criminal investigation.
But after The Associated Press filed a public record request last week asking for a copy of the Idaho State Police's investigation report, the agency revealed it had no records at all of an investigation because none had occurred.
Col. Ralph Powell said Thursday that after consulting with the deputy attorney general assigned to his agency and the Ada County prosecutor's office early last year, he determined that there was no applicable state criminal code to investigate. Rather, Powell said, he considered the issue a civil breach of contract matter. He said he attended every meeting the Idaho Department of Correction held regarding the financial audit in case something that seemed criminal in nature popped up. But, he said, it never did.
"I need to be clear, I'm speaking about this in consultation with my legal counsel," Powell said. "I own my decisions. But I think that we did do due diligence to make sure the Ada County prosecuting attorneys looked at it. No additional information came back to that deputy prosecuting attorney about criminal wrongdoing."
But that's not the way other agencies remember the past 12 months. Todd Dvorak, a spokesman for the Idaho attorney general's office, said his agency hasn't been involved in any of ISP's decisions on the matter. Wasden stands by his recommendation, Dvorak said.
"The clearest path to resolving this is a criminal investigation and a review by the prosecutor," Dvorak said.
Ada County Deputy Prosecuting Attorney Roger Bourne says that he met with Powell about a year ago, and told him then that he couldn't determine whether or not there was a criminal violation until he saw the results of the ISP investigation.
On Tuesday, Idaho Department of Correction director Brent Reinke said Powell attended every meeting the agencies had on the forensic audit and staffing issues, and he "continued to evaluate the civil and criminal elements at each meeting."
IDOC never gave the police advice on whether the investigation should be criminal or civil, Reinke said.
Mark Warbis, a spokesman for Otter, said the governor believes everyone involved took the issue seriously and did what they needed to do, and that while there wasn't an "investigation," per se, police took a close look at the data.
"ISP has been engaged with IDOC throughout the process. This is a matter of semantics," Warbis said.