Post-riot lawsuit costs state $370K to defend officials

Lt. Steven Floyd

DOVER — The state has spent $371,011.57 defending several top leaders, including two former governors and a half dozen current and former prison officials, against a lawsuit filed in the wake of the Feb. 1 prison uprising at James T. Vaughn Correctional Center.

The sum was reported by Delaware’s Office of Management and Budget in response to a freedom of information act request.

The Floyd v. Markell lawsuit named former governors Ruth Ann Minner and Jack Markell, along with DOC commissioner Perry Phelps and three former commissioners, and state budget director Michael Jackson and his predecessors.

The original 52-page federal complaint was filed by Wilmington attorneys Thomas Neuberger and Tom Crumplar back in April.

Much of the complaint rested on the state’s alleged failure to provide a safe working environment for its employees and long-ignored staffing issues within the DOC and how these failures led to the Feb. 1 prison uprising that left correctional officer Lt. Steven Floyd dead and six other staff members injured or otherwise traumatized.

At the press conference in April when Mr. Neuberger announced the lawsuit, he claimed that his clients’ case would “paint a picture of widespread negligent behavior among top elected and appointed officials.”

He said then, “After an exhaustive two-month investigation, today we charge that for 16 years it has been the policy of two governors in Delaware deliberately not to employ enough officers to safely run Delaware’s prisons.

Instead, they spent up to $23 million per year forcing understaffed officers to work 16-hour shifts overtime to save money at the expense of putting their lives at risk.”

The lawsuit alleged that the administrations of former governors Markell and Minner sought to not only dismiss mounting issues within the DOC, but willfully obfuscate and hide the extent to which the state’s prison system was ailing.

Last December the state settled the lawsuit with 11 claimants out of court for a historic $7.55 million. However, the state’s legal counsel still insists that claims against defendants “lacked legal merit.”

The costs of the legal defense are merely a drop in the bucket compared to the expenses the taxpayer has had, and will continue, to shoulder in connection with the Feb. 1 incident. The known costs are already well over $30 million, according to records provided through FOIA requests and state documents.

The most clearly enumerated expenses so far have been the $7.55 million settlement and the alleged $21.6 million “historic investment” in the Department of Correction in the wake of the incident. The “investment,” often touted by the governor’s office, went primarily to raising correctional officers salaries to increase recruitment and retention efforts and toward purchasing sorely needed equipment and cameras.

Office of Management and Budget (OMB) Director of policy and external affairs Bert Scoglietti confirmed in early January that the actual state payout to settle the lawsuit was larger than $7.55 million — and that amount already is thought to be the largest state-paid settlement in Delaware’s 230-year history.

As part of the settlement terms, the state agreed to pay several survivors’ limited future salaries and medical bills not included in the payout sum.

Lt. Floyd’s widow will continue to receive her health benefits, a survivor’s pension and a “line of duty death benefit” — between $150,000 to $200,000 depending on when she filed a claim.

“I don’t have an estimate yet what the total cost to the state will be,” Mr. Scoglietti said in January.

Last week, this paper reported that the Division of State Police spent $184,694 in overtime pay in connection with the emergency response and ensuing investigation spurred by the incident.

Upcoming costs

Although the upcoming costs are the most uncertain, they will likely be considerable — namely, the expense associated with prosecuting the 18 inmates charged in the February riot and providing for their defense.

Delaware’s lead public defense attorney said he expects “hundreds, if not thousands of hours” will be spent representing the inmates.

In addition to attorney fees set at $90 per hour, the state will pay for other defense needs such as investigators and forensic experts, among other costs and rates to be determined.

“These expenses add up,” Public Defender’s Office Chief Brendan O’Neill has said. “They are paid with public funds.”

According to Mr. O’Neill, “there is no case in recent memory” that included so many first-degree murder charges in a single indictment.

The governor’s recently announced budget calls for allocating $24.8 million to the public defense office, an increase of $1.6 million from the current financial year.

In the DOC’s effort to continue addressing its “systemic” ills, steeply increased costs are expected in their budget as well.

The DOC originally indicated the need for an 8 percent in its budget. Gov. Carney’s FY2019 budget suggests allocating $328.6 million to the DOC up from a $308.1 million allocation this FY.

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