Advocates: Not enough detail in TYC grievance procedures

On Wednesday afternoon, the Texas Youth Commission held its first, post-conservatorship public hearing to receive input about agency rulemaking - a landmark, of sorts, even if the agency only grudgingly admitted it should use official mechanisms for accepting community input.

The subject was creation of new youth grievance procedures at the agency as required in SB 103 passed earlier this year. I couldn't attend, but Isela Gutierrez of the Texas Criminal Justice Coalition took detailed notes and agreed to let me publish them here along with her testimony, which I've uploaded here into a Google document. Here are Isela's notes:

Today’s public hearing was slightly less than an hour long. It was presided over by Wade Phillips, Deputy General Counsel, with Mary Strong, Director of Youth Rights Division, and DeAnna Lloyd, Manager of Policy, Grants, and Accreditation, also sitting on the dais.

Phillips thanked everyone for coming and for their comments which were ultimately intended to help make TYC a better place. He clarified that the purpose of the hearing was to take comments and hear suggestions, not so much to debate. He asked speakers to limit their time to 10-15 minutes per person and said that TYC had already received a number of written comments from Texas Appleseed, Texas Legal Services Center, Advocacy, Inc., and others. The hearing was recorded. Phillips said TYC will respond in writing to any written comments made before the rule is published.

Lisa Graybill, Legal Director for the ACLU of Texas Foundation: She thanked TYC for holding this public hearing at the ACLU of Texas’ request. ACLU is just as interested in the process of the reforms as in the substance. She used to work for the US Department of Justice in the Special Litigation Section doing the very same kinds of investigations that DOJ is doing at Evins. In her experience, transparency is integral to process of reform. Hearings like this are key parts of that process. ACLU is also very interested in substance of issue, of course, and did a lot of work (via former ED, Will Harrell) on the legislative reforms that took place this session. She urges TYC to continue to keep the process open.

Monica Thyssen, Advocacy, Inc.: Advocacy, Inc. (AI) is the federally designated Protection & Advocacy (P&A) group for Texans with disabilities. Inside of TYC, their primary focus is incarcerated youth with disabilities. AI goes in and out of facilities; she went just this week. Thyssen recommends that the policy establish a designated staffer to receive grievances at each facility. She also would prefer that people outside of the facility review the grievances, possibly the Ombudsman.

She said that youth have no faith in the complaint process. She is also concerned about youth being able to access the forms. The current structure of youth receiving the complaint form from another youth on the dorm (the Youth Grievance Clerk) results in some youth feeling a sense of intimidation based on what kind of relationship they have with that youth and the JCO on that dorm.

Also, as P&A, Advocacy, Inc. has authority to speak with youth with disabilities. If youth are minors, they get permission from the parents to file complaints about any allegations of abuse or neglect. Once AI files a grievance, they become a legal representative of the youth. But, some of the grievances AI had filed were followed up on by TYC staff speaking directly to youth and not including AI. TYC staff would ask youth “did you mean to file this?” Sometimes youth would forget that they had filed the grievance, and sometimes they were intimidated, so then the grievance was dropped without AI’s knowledge. Thyssen said that this interferes with AI’s attorney-client privilege as defined in Rule #4.02 of the Texas Disciplinary Rules of Professional Conduct.

Phillips asks: What does the form look like? Who are the parties to the document?

Thyssen: I can send you a copy of the form, I don’t have on with me, but with a minor youth, we ask the parents to sign it, and if a youth is over 18, they can sign it themselves.

Phillips: So, you think you’ve got a situation where someone is going behind your representation and disavowing that relationship?

Thyssen: Yes. I hear from kids that the complaint process is a joke and that they don’t have any faith in it. They feel like they can trust us because we are outsiders.

Ms. Clark-Kingery (didn’t catch her first name), Parent: She is the mother of a child that was in Corsicana and is now in Ash. What Monica Thyssen said is true about kids being intimidated. She said she still hasn’t heard back about the grievances she filed on her son’s behalf, who is afraid and easily intimidated. Her son was assaulted at Corsicana, had been injured, had surgery, and she couldn’t get any response on her grievances.

Lynn White, Texas Appleseed: Thank you for inviting us to this hearing and for having the hearing. It is very important for advocates and others to be able to give feedback. Submitting the policies to the Register and holding hearings like this shows a good faith effort to adhere to the transparency required by SB 103.

The primary issues TX Appleseed is concerned about are: access to grievance process, resolution of the grievance process, and the appeals process. The State Auditor’s investigation revealed systemic issues with the grievance system. But, the problem was not so much the written policy that created the problem, but the culture in the agency. Of course, a strong written policy is very important.

The biggest problem with the proposed policy is that there is not enough detail. In written comments, Appleseed suggested language to make the policy stronger, including: creating grievance officers, which would help ensure uniformity and responsiveness; language indicating TYC accommodate disabled youth in filing grievances, which proposed policy doesn’t address at all; grievance forms must be available to youth without contact with staff; need a definition of the role of the “youth advocate.” One of the most serious issues revealed in the State Auditor’s report was the lack of access youth in security had to complaint forms. Proposed policy doesn’t address that at all.

In terms of attorney-client privilege problems addressed by Monica Thyssen, Appleseed suggests that facility staff be trained to understand issues of attorney-client privilege rather than inadvertently undermining the attorney-client relationship. The proposed policy should: provide for someone on staff to explain the appeals process to youth; allow access to legal counsel in case of violation of federal, state or constitutional law. Also, language regarding retaliation needs to be strengthened.

Other states have taken a more hard line approach to the issue by making retaliation grounds for immediate dismissal. Even though it seems that implicit references to the executive director appeal in GAP 93.35 are interwoven throughout the proposed rule, there is no explicit reference to it. The new policy also implements an extra level of appeal, which seems like it would delay opportunities to exhaust the administrative process.

Isela Gutiérrez, Texas Criminal Justice Coalition: Read her full testimony here.

Editors' note: Here's an important excerpt from her testimony voicing concerns about a pattern of pending TYC rulemaking proposals where the details are filled out in administrative directives that allow no public input:

[T]he proposed rule does not provide sufficient detail about how this new grievance process will actually function to strengthen, standardize, and enforce the youth complaint system. The lack of specific information in the proposed rule about how this improvement will take place is troubling. The proposed rule fails to provide clarification on a number of key issues, including:

• How the complaint process will be standardized and centralized;
• How the agency will ensure that the period for resolving grievances will be shortened;
• Which staff member(s) will be responsible for receiving, responding to, and resolving grievances;
• How the agency will prevent youth from being retaliated against;
• How long a child, parent, or advocate should expect to wait for a response to a grievance;
• Whether attorneys, advocates, and others will be able to assist youth in presenting and resolving a grievance, any limitations placed by the agency on that assistance;
• How the internal grievance system will interact with the Independent Office of the Ombudsman and Office of the Inspector General created by S.B. 103;
• How the agency will accommodate the special needs of disabled youth in filing complaints;
• How the agency will guarantee that the new informal conference process is not used to intimidate or otherwise coerce youth who have complaints, and;
• How to appeal to the executive director.

In addition to our concerns about the lack of specific detail in the policy, TCJC is further troubled by the change in how the agency now plans to write and implement its policies. Previously, TYC’s administrative policies were very detailed and provided a great deal of information to outside stakeholders, such as parents and advocacy groups, about how the system was supposed to be run. Since this information was contained in the Texas Administrative Code, youth, agency staff, and outside stakeholders were able to submit proposed changes to policy at any time for the agency to consider.

Currently, it is our understanding that the new administration plans to implement a bi-furcated administrative rule/administrative directive system, in which the published administrative rule is only a shell of the policy, which will actually be implemented according to the content of a lengthy, internal, administrative directive that contains the actual “meat” of the policy (i.e., practices and procedures for the implementation of the policy).

Although the agency has agreed to make these administrative directives available to the public via its website, TYC has no avenue or process in place to receive public comment on these internal administrative directives. Since these administrative directives are not a part of the Texas Administrative Code, the development of these directives and any significant changes to them may be made behind closed doors at any time with no input or oversight from anyone except agency staff, as there is no requirement that these directives be published in the Texas Register or advertised in any other way. While TCJC can appreciate that this new system may increase TYC’s ability to expedite any needed changes to procedures implementing policy, we also believe that it impedes the public’s ability to participate in the policy-making process, which is critical in this time of rapid and far-reaching change for the agency.