The York County Jail in Alfred Shawn Patrick Ouellette/Staff Photographer

The York County Jail flouted public health recommendations about masks before an outbreak spread to nearly half of the inmates and correctional officers and into the community, according to interviews and an internal document obtained by the Portland Press Herald/Maine Sunday Telegram.

Sheriff Bill King told the newspaper last month that masks were not mandatory for inmates or guards most of the time before the outbreak. But people who contracted COVID-19 at the jail have now confirmed that masks were in fact not allowed or were discouraged.

Even as the governor mandated face coverings in public places this spring, inmates at the jail were not allowed to wear masks once they tested negative for COVID-19 during their intake, a policy described by inmates and confirmed in an email to jail staff. And guards were told not to wear masks to avoid panicking inmates, according to one corrections officer and a lawyer who is working with several others.

The jail is now requiring masks, screening employees before their shifts and following other recommended protocols. The county has also launched an inquiry into the outbreak.

But those earlier policies likely contributed to the quick spread of COVID-19 through the jail, and they could make the county vulnerable to legal action. At least two attorneys have said they are considering taking cases related to the outbreak.

And tension inside the jail only increased after the recent death of an inmate who previously tested positive for COVID-19. State and county officials have said his death was not related to the virus, but the state medical examiner’s office has not officially determined the cause.

“We’re all worried now,” Joshua Walker, an inmate who tested positive, said in a telephone interview. “Who is going to be the next one to fall down on the ground and die?”

The corrections officer described the sense of fear after learning they also had the virus. The Press Herald/Sunday Telegram agreed not to identify the officer, who fears retribution for speaking out.

“The whole thing could have been prevented,” the officer said. “A lot of us could still be testing negative if they’d have just done something as simple as letting us wear (masks). That’s all it took.”

Sheriff Bill King told the Portland Press Herald last month that masks were not mandatory for inmates or guards most of the time before the outbreak. Gregory Rec/Staff Photographer

The outbreak is among the largest single-site outbreaks so far in Maine and the largest by far at a correctional facility. A jail employee attended an Aug. 7 wedding in the Millinocket region that is now considered a superspreader event linked to more than 170 cases statewide. By the time the first person in the jail tested positive for the virus two weeks later, dozens of people were infected.

The Maine Center for Disease Control and Prevention said Friday the total number of cases associated with the jail outbreak is now 87. That includes 48 inmates, 19 people who work in the building and 20 household contacts of employees. The agency has classified eight of those household contacts as confirmed cases and 12 as probable.

The county has not answered questions in weeks about COVID-19 protocols before the outbreak. County Manager Greg Zinser again deferred to the ongoing inquiry when asked to respond to the statements of inmates and the corrections officer.

“I want you to know that the County completely understands and respects the fact that individuals including County employees will have different perspectives on what contributed to the outbreak. … As you know, an investigator is in the midst of that review process and the County would prefer to let that process run its course before commenting on any person’s individual perspective on what contributed to the outbreak,” Zinser wrote in an email.

Zinser announced that inquiry one month ago but refused until last week to say who was conducting it. He eventually confirmed that the investigator hired by the county is Leah Rachin, an attorney who practices municipal law at Drummond Woodsum, but he denied a public records request for any written contract or payment records, saying they did not exist. Rachin said Friday that she could not comment on a pending investigation.

Zinser said there is no set deadline for Rachin to finish the inquiry. He has said no one has faced disciplinary action related to the outbreak or the inquiry. However, a payroll record obtained through a public records request shows that the jail administrator is on leave with pay, and the county has said the deputy is running the day-to-day operations. Zinser has not answered questions about why Lt. Col. Michael Vitiello is on leave.

‘THIS HAS ME SCARED’

An excerpt from a May 5 email obtained by the Press Herald/Sunday Telegram confirms that inmates were prohibited from wearing masks most of the time. It does not explain the reason for that policy.

In the email, a sergeant outlined a new intake procedure in the email to jail supervisors. He wrote that all new arrests would wear masks in the intake area, and once they tested negative for COVID-19, they would then dispose of those masks in front of jail staff.

The next sentence is bolded and underlined: “Inmates are not permitted to bring PPE (Procedure Masks) into any housing unit.”

In phone interviews, inmates expressed frustration about that policy and other aspects of the jail’s COVID-19 response.

Shain Johnson said he was booked at the jail in early June, and he quickly filed a grievance because he was upset to see the correctional officers were not wearing masks. He said he never received a response. The Press Herald/Sunday Telegram filed a public records request Wednesday for a copy of that grievance and any related documents. Zinser had not responded to that request as of Friday.

“This has been something that I have been complaining about since I got here,” Johnson, 38, said.

Johnson is facing multiple charges, including burglary, theft and possession of methamphetamine. He said he hopes to get into the drug court program, but the outbreak has delayed court appearances. He was among the inmates who tested positive for COVID-19. He said last week that he was still experiencing chest pains and headaches, and he did not believe the medical staff at the jail was taking his concerns seriously.

Now, inmates and staff are required to wear masks. But Johnson said the environment inside the jail is tense and fearful.

“At the end of the day, I see a bunch of scared COs and a bunch of scared inmates,” Johnson said. “There’s not a lot of stuff that would honestly scare me, but this has me scared.”

Walker, another inmate who tested positive for COVID-19, is waiting to be transferred to a state prison to serve his sentence for theft and burglary. He said he heard inmates ask for masks before the outbreak, but correctional officers denied that request and called masks “contraband.”

Before the outbreak, he said he worked in the jail kitchen with Jason Daigle, who died Sept. 20 after experiencing what officials have only called “a medical issue.” Walker described the other man as a seemingly healthy person, and he was shocked by his sudden death.

“We are supposedly coming out of the storm, but then something like this happens,” Walker, 45, said.

Steven Brocuglio said he wore a mask in the intake area when he first arrived at the jail in June, but he was not allowed to keep it when he tested negative and moved into the general population. He said he is in custody for violating his probation from a theft conviction.

“No one was wearing masks whatsoever. …  That made no sense because the officers were coming and going without getting tested,” Brocuglio, 43, said.

Brocuglio tested positive for COVID-19 during the outbreak, and he said last week that he is still experiencing low oxygen levels and shortness of breath. Now, he said both inmates and officers are wearing masks.

“It’s enforced now,” he said. “It’s a little late.”

Five other inmates also described their frustrations with the jail’s policies before and after the outbreak. They said they spend hours more locked in their cells each day, which limits their time to call their families and their attorneys. They said they eat in their cells now as well, and sometimes the food is cold by the time it arrives.

Zinser said the current procedures in the jail were implemented in response to the outbreak and are consistent with guidance from the Maine CDC.

LAWYER ‘GRAVELY CONCERNED’

Inmates and employees have turned to lawyers with their frustrations.

Attorney Tim Zerillo said he has been in touch with an inmate and their family about a possible lawsuit.

“It is a sensitive process when the plaintiff is incarcerated in the very institution he or she may be suing,” Zerillo wrote in an email. “So, we are still in the exploratory stage, but I am gravely concerned with what has happened at the YCJ.”

Attorney Roger Champagne is representing the corrections officer who spoke to the Press Herald/Sunday Telegram anonymously. He said he is working on a claim against the county on behalf of numerous officers based on lost wages and workers’ compensation.

“The legal issue is whether or not the jail was negligent in protecting their employees,” Champagne said. “The further legal issue is whether or not the employees are covered by workers’ comp because of the abject negligence of the jail. It sounds like the administration made a conscious decision … to discourage their deputies and their corrections officers from protecting themselves.”

The corrections officer said employees were fitted for N95 masks at the start of the pandemic, but higher-ups said not to wear them and brushed off questions. The officer wasn’t sure of that policy’s origin but said no one wore the masks in the housing unit as a result.

“I was told by people not to wear a mask, period,” the officer said. “It was forbidden. The main reason they told us that we weren’t allowed to wear masks was because they did not want to panic the inmates. So now, my question to them is if you were so worried about the inmates being panicked, why don’t you give them masks and protect them, as well as let us wear ours and protect us?”

The outbreak in York County prompted the Maine Department of Corrections to visit the other 14 jails in the state to review COVID-19 protocols. The department found that at least four other jails in Maine were not requiring inmates and employees to wear face masks to prevent the spread of COVID-19. Every jail is now updating its policies, and department staff will return to the jails after 60 days to review the changes.

But the state has few tools to enforce those policies or sanction a county jail.

Commissioner Randy Liberty said his department writes the standards for the jails and conducts annual inspections. He issues a certificate of occupancy to each jail every two years. If a county is not complying with the rules set by the state, Liberty can threaten or even withdraw the certificate of occupancy.

That action is dramatic and extremely rare, and Liberty was not aware of any jail losing that certificate in the past. He said he issued a probationary certificate to the Penobscot County Jail last year because of serious overcrowding, but he recently renewed it for another year because the sheriff has boarded inmates in other counties to reduce the population at the Bangor facility. And he said the certificate for the York County Jail is not in jeopardy.

“York County is in crisis right now,” Liberty said. “I think that it would be ill advised to pull an occupancy certificate at this point. I think that now that York County has better clarity and understanding of the necessary steps to be taken, they’ve taken those, and they’ll be taking those going forward.”

The commissioner said his leadership team meets daily with public health officials from the Maine CDC to discuss the pandemic. Then, the department hosts a daily meeting for all the sheriffs to pass on the latest information. But Liberty said regular attendance was “very light.”

“I understand the challenges,” Liberty, who was previously the sheriff in Kennbec County, said. “The best I can do is coach and mentor and provide resources. … When COVID entered York County and it was obvious that the York County Sheriff’s Office needed some assistance, it became obvious to me that the Maine Department of Corrections had to be engaged and conduct an inspection to ensure that the sheriffs were following the best practices.”

Asked about those meetings, Zinser said he could not speak for the sheriff. King did not return a voicemail Friday.

‘LIFE AND DEATH’ STAKES

Attorneys and advocates have demanded for months that jails and prisons reduce the risks of an outbreak by releasing as many people as possible. But nearly 90 percent – more than 1,200 out of 1,400 – of the people in Maine jails are pretrial, which means they are held on bail and have not been convicted of any crimes.

One of them was Daigle, the man who died last month after having been infected in the outbreak. A background check showed Daigle had never been convicted of a crime in Maine. He was arrested in June and charged with unlawful trafficking of scheduled drugs. A judge set his bail at $2,500 cash.

Defense attorney Nathan Hitchcock was representing Daigle at the time of his death. He described the man as “an honest, caring man who wanted nothing more than an opportunity to learn from his mistakes and start a new life.”

Hitchcock said he hopes Daigle’s death prompts the courts to consider changes to the bail system.

“During a pandemic, the stakes are literally life and death,” he said. “Jason Daigle lost his opportunity at a second shot in life. I think he would want us to use the tragedy of his death as an opportunity to bring about meaningful change. I sincerely hope that happens.”

Emma Bond, legal director at the American Civil Liberties Union of Maine, said the information released so far about the outbreak and Daigle’s death raises more questions than answers.

“Why wasn’t the York County Jail implementing basic precautions – such as mandatory masks and symptom checking for staff – before the outbreak? Why was Mr. Daigle incarcerated before trial, simply because he didn’t have enough money to pay $2,500 bail? How can the state guarantee that Mr. Daigle’s death is not related to COVID-19, before the mandatory medical examiner review?” she said.

“Here is what we do know: despite the known risks of COVID-19 and near-impossibility of social distancing in jails and prisons, jail populations have actually risen in recent months. That is unacceptable. To protect people during this public health crisis, police, prosecutors, jails, and the judiciary must take all measures to protect people from the risks of unnecessary incarceration.”

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