REPORT REGARDING COVID OUTBREAK AT THE YORK COUNTY JAIL Overview ‘On September 4, 2020, the York County Commissioners voted to seek an independent third party to “conduct a thorough and comprehensive review” of the COVID outbreak at the York County Jail ("YCJ") that commenced on August 19, 2020, and which ultimately resulted in 48 inmates, 43 staff members, and 16 household contacts of staff members contracting the virus. The Commissioners asked that the review include a determination of “when, how, and why the outbreak occurred and the nature and extent of the COVID-19 protocols that were employed at the jail.” See Ext Drummond Woodsum was retained by Libby O’Brien Kingsley & Champion, LLC, legal counsel for York County, to conduct said investigation, The charge contained in Exhibit 2 informed the scope of the investigation. During the course of the investigation, the investigators interviewed 19 witnesses, reviewed many hundreds of pages of documents produced by the County, and conducted independent research regarding COVID best practices as they evolved over time. Said research and document production included existing YCJ policies and procedures; policies implemented in preparation for, or in response to, the COVID outbreak; communications between jail administration and both outside agencies and County administration regarding COVID-related issues and suggested policies; and recommended policies and guidelines from various correction \dustry organizations, Maine Department of Corrections (“MDOC"), the Center for Disease Control (“CDC”), the County itself, and Governor Mills. These policies and orders, and "Given the Commissioners’ charge to be “thorough and comprehensive” in our investigation, we interviewed ‘broad array of witnesses with the goal of obtaining perspectives from all stakeholders ~ administration, supervisors, corrections officers (CO's), private contractors and inmates. 1the guidelines contained in them, evolved as more information became available about COVID. They serve as a point of reference for what best practices were at the relevant times regarding COVID prevention and mitigation strategies. This report is structured as follows. First, there is a chronology, which is hoped to serve as a helpful aid to the reader. The chronology not only provides an overview of the timeline of events at the YCJ, but also places them in a broader context of what was happening and when with respect to COVID prevention efforts and outbreaks elsewhere in the state and across the county. Second, there is an overview of the conclusions reached regarding the questions posed by the Commissioners, ie., when, how, and why the outbreak occurred and the nature and extent of the COVID-19 protocols that were employed at the jail. Third, there is a compendium of the most relevant documents referenced throughout the report. CHRONOLOGY 2/28/20 MDOC sends Pandemic Influence Response Plan to all counties as a model for COVID planning for county jails 3/5/20 ~ MDOC initiates its "Planning and Response Team COVID-19 Phased Response Plan” "This document outlines detailed chronology of MDOC’s establishment and implementation of COVID protocols in MDOC facilities (including the requirement for inmates and staff to wear face coverings on April 7th) and invitations to local sheriffs and jails to participate in various seminars and “lessons learned” exercises. 3/5/20 ~ Memo from Greg Zinser to “All employees” Re CDC recommendations (no mention of masks) but notes “rapidly evolving situation” 3/13/20 ~ Memo from Sheriff King to “All YCSO Personnel” discussing COVID precautions and outlining “what we know about Coronavirus” (citing CDC guidance) noting that masks were not recommended for well individuals and to conserve such resources for direct care staff and ill persons3/13/20 — Email report from Captain Bean Re: “Facility Safety” limiting access to secure areas in jail only to those providing critical services; all inmate programming on hold; discusses “best practices” including hand washing (no mention of masks) 3/13/20 - Email from Captain Ronco to Supervisors requiring all CO's to assist with infection control inside secured area (common areas) and to allow inmates extra time and materials to disinfect 3/13/20 ~ Memo from YCJ's medical provider Correctional Health Partners ("CHP”) to Lt. Col. Vitiello with COVID screening protocols for inmates (not staff) 3/15/20 ~ Governor Mills declares state of emergency 3/16/20 - YCC declares civil state of emergency 3/17/20 ~ Memo from Lt. Col. Vitiello to inmates stating that in light of pandemic, on-site visitation suspended effective immediately 3/17/20 - Memo from Greg Zinser and Linda Corliss to Department Leaders — “CDC is not recommending any PPE for staff — reserved for medical and first responders” 3/18/20 — Governor Mills issues Executive Order # 14 FY 19/20, "An Order to Protect Public Health” in which she limits gatherings of more than 10 people and closes restaurants and bars to dine-in customers given that “allowing the congregation of persons”... “constitutes an imminent health threat...” 3/18/20 ~ Memo from Greg Zinser to “All Employees” stating use of PPE is not recommended but employees required not to return to work if feeling ill or experiencing COVID symptoms 3/18/20 ~ Memo from Lt. Col. Vitiello to “All Uniformed Corrections Staff” Re: PPE stating that because they may be required to interact with individuals who are either suspected or confirmed to be infected with COVID, they must be in constant state of readiness to wear PPE 3/19/20 - Memo from Greg Zinser to All York County Residents restricting public access to all county buildings 3/19/20 ~ Sheriff King issues a memorandum indicating staff are required to wear masks when interacting with ill inmates 3/19/20 - Outbreak at Oceanview at Falmouth — closes to prevent further spread 3/23/20 ~ CDC issues “Interim Guidance on Management of Coronavirus Disease in Correctional and Detention Facilities” (replaced by Interim Guidance issued July 14th and updated July 22nd)Includes a PPE table, which states that PPE is only required when interacting with suspected or confirmed positives, or for inmates when someone is experiencing symptoms (July Guidance recommends masks) -Recommends social distancing regardless of whether or not symptomatic (single cells, if possible, increase distance in common areas, staggering meal and recreation time, cohorting) -Recommends increasing cleaning practices 3/24/20 - YCJ receives copy of CDC’s “interim Guidance on Management of Corona Disease in Correctional Detention Facilities,” which is forwarded by Captain Bean to Lt. Col. Vitiello and Captain Ronco 3/24/20 ~ Governor issues Executive Order # 19 FY19/20 “An Order Regarding Essential Businesses and Operations” stating that “the Maine [CDC] advises that additional social distancing measures are warranted to slow the spread of this life-threatening virus in order to save lives” and “to reduce the transmission of COVID-19, which is highly contagious.” Governor Mills orders that non-essential businesses work remotely and not convene more than 10 workers in a space where social distancing is not possible, and mandates 6 foot social distancing for all businesses 3/24/20 — First N95 masks requested for Sheriff’s Office and Jail and Fit Testing begins March 28th ‘Mid-March ~ first presumptive case at the YCJ, which ended up being negative 3/28/20 - Fit testing for N95’s commences. (Continues with a second session on 4/21/20) 3/30/20 ~ CDC issues guidance that masks not required unless experiencing symptoms 3/31/20 - Governor Mills issues Executive Order # 28 FY19/20 “Stay at Home Order” 4/3/20 and 4/11/20 ~ Email exchanges between York County EMA and Lt. Col. Vitiello about how N9S masks have been ordered and they will be a “game changer” 4/3/20 - CDC Recommends Face Coverings in addition to social distancing to prevent spread of covip 4/3/20 - Email from Lt. Col. Vitiello to supervisors with new Housing Protocol effective 4/6/20 -Any positive inmate must be masked and escorted to medical unit (negative pressure unit if available) -Staff escorting positive inmate must wear “appropriate PPE” -Inmate must wear mask at all times if not in cell4/7/20 ~ MOC issues guidance for all staff and inmates to wear cloth face coverings 4/7/20 - Memo from Greg Zinser to “All County Employees” Re: “Use of masks in workplace” -CDC now recommends face coverings in public settings where other social distancing measures are difficult to maintain because they slow the spread of the virus and help prevent symptomatic but infected individuals from transmitting it to others -Advises that the County has limited supply of masks and will sue one per employee ‘who requests one -Masks are a recommendation not mandate 4/10/20 - Memo from Chief Deputy Baran to YSCO Support Staff implementing one week on ‘one week off rotating schedule with self-monitoring while at home with instructions NOT to report if not feeling well and to report immediately if not feeling well while on duty. Instructs staff to be vigilant both on duty and off 4/13/20 - MDOC modifies operations to require social distancing practices in all facility areas where it is “practical and possible” and to “require the use of cloth face masks in all facility areas when and where social distancing is not practical or possible” 4/13/20 — Effectively immediately, no transfers of inmates from county jails sentenced to MDOC state facilities 4/29/20 - Governor Mills issues Executive Order # 49 FY 19/20 "Stay Safer at Home,” which requires individuals to wear cloth face coverings in locations where physical distancing is difficult. Businesses that are not open to the public are given discretion regarding mask policies but “shall permit any employee who wants to wear a covering to do so.” (emphasis added) Late April/Early May ~ MDOC sends invitation to all county Sheriffs and jails to conduct and/or support tabletop exercises relating to COVID prevention and mitigation in their jails (YCJ does not participate) 5/5/20 - YC! institutes policy whereby all new arrests will be issued masks upon intake into secured area. While housed in intake, inmates must wear masks at all times when out of secured holding cells. Inmates are allowed to remove masks when secured in the holding cells. Inmates who test negative for COVID-19 will dispose of their mask prior to being escorted housing units. Inmates are specifically prohibited from bringing masks in to any housing unit. 5/15/20 ~ Governor Mills Issues Executive Order #54 suspending transfers from all county jails to Maine DOC facilities5/18/20 ~ Face masks required for York County employees in public areas at Courthouse, Government Building, and Sheriff's Office, and if they refuse comply, they must go home 5/19/20 — First documented case at Maine Correctional Center with 3 others through 5/23/20, 5/20/20 — Large outbreak in prison in Chino, California 5/21 and 5/22/20 ~ Fit testing for Envo masks 5/21/20 - Memo from Greg Zinser to “All MSEA and Non-Union Employees” discussing county re-opening plan and requiring them to: -conduct daily health assessments with supervisor -practice social distancing -conduct temperature checks -wear a facial covering if not able to maintain appropriate social distancing. “To clarify, it is required that unless you are in a private office alone, you should have on a mask or facial covering on. And if you are working in a private office, you will be required to ‘wear a mask if someone enters or you leave for any reason.” (emphasis added) 5/21/20 - Email from Sheriff King to YCSO Department Heads requiring that all “Command Staff, Civil Deputies, and Detectives will wear a mask when they leave their offices and go to the front office and common areas” but stating that “since Corrections Officers work in a “closed system” and wearing a mask is not feasible for them due to inmate climate concerns, they will not be required to wear cloth face coverings...” 5/22/20 ~ Email from Greg Zinser to Lt. Col. Vitiello, Sheriff King, and Linda Corliss asking ‘whether the Sheriff wants to edit the employee self-screening sheet before he speaks to NCEU’s president “since you are not wearing masks in the jail.” 5/22/20 ~ Email from Lt. Col. Vitiello to Sheriff King and Greg Zinser saying that he has proposed changes to the health certification form and asking “when are we going to start this,” to which Zinser responds, “Send me proposed changes [and] | will then formulate a notice to [NCEU President] Doyle. Do not do anything yet.” 5/23/20 — Public Health Advisory from CDC to “All Health Care” re: Universal Testing in Coneregate Living Settings (including correctional facilities), recommends universal testing of all staff and residents in a unit or building when there is a single case of confirmed COVID-19 ‘among staff or residents Late May (around 5/26/20) - Vendor (painter at Courthouse) tests positive. County re- implements rotating work schedule. Facilities employees who may have had contact sent home to quarantine for 2 weeks5/29/20 — Governor Mills issues Executive Order # 55 (FY 19/20) (“An Order to Further Implement the Restarting Pian”) expanding existing face covering mandate to require them at large gatherings, including those held outside 6/2/20 - MDOC offers a “Lesson’s Learned” Seminar to all Maine Sheriffs and Jail Administrators regarding outbreak at MCC and emails various examples of COVID protocols including: -DOC’s “Cloth Face Mask Guidance” (consistent with CDC guidance, MDOC will provide all staff and inmates a mask given CDC’s recommendation to wear cloth face coverings in public settings where other social distancing measures are difficult to maintain) -Recommends staff health screening and provides a DOC screening form implemented by DOC in April -Implemented mask protocol following May 26th outbreak in MCC: Fabric masks when no inmate contact but regular interaction with other staff and N9S's when interacting with inmates 6/5/20 Lt. Col. Vitiello revises screening form for staff to include language that masks will not be worn in the secure perimeter. Both Sheriff and Captain Bean reply that edits “look good” and Lt. Col. Vitiello forwards revised form to Greg Zinser on 6/6/20 6/16/20 ~ Lt. Col. Vitiello emails Greg Zinser asking about whether there had been any progress with his discussions with NCEU regarding masks and temperatures stating that, “if we are going to allow (require?) masks, | want to implement it at the same time for everyone.” 6/18/20 ~ Large outbreak at San Quintin prison 6/28/20 ~ CDC announces masks slow the spread of COVID-19 given that they decrease ability of droplets to spread 6/29/20 ~ Grievance filed by inmate complaining about the dangers of staff and inmates on work release bringing COVID in to the jail because they were not required to wear masks, with July 13, 2020 response from jail administration that “[¥Ci] is following all Maine CDC and Federal CDC recommendations” 7/8/20 - Governor Mills issues Executive Order # 2 FY 20/21, “An Order Strengthening the Use of Face Coverings,” requiring businesses open to the public to enforce cloth face covering mandate and increasing potential penalties for violations 7/9/20 ~ York County inmate tests positive for COVID on intake7/9/20 - Email from CDC to Lt. Col. Vitiello thanking him for report of infected inmate and. providing information regarding necessary isolation of inmate and staff quarantine, and directing that all staff interacting with inmate should be in N95 masks and full PPE 7/9/20 - Sheriff King arranges to test all officers with potential exposure to positive inmate (all staff tests came back negative) 7/14/22 (updated 7/22/20) — CDC issues updated “Interim Guidance on Management of COVID- 19 in Correctional and Detention Facilities -Provides operational guidance for prevention and management -Encourages all employees and inmates to wear face coverings unless PPE is indicated, ie.,: “Encourage all staff and incarcerated/detained persons to wear a cloth face covering as much as safely as possible, to prevent transmission...Because many individuals with COVID-19 do not have symptoms, itis important for everyone to wear cloth face coverings in order to protect each other.” (emphasis added) -Notes that “staff members should wear a cloth face covering unless contraindicated.” (emphasis added). The “unless contraindicated” language included a hyperlink to a CDC page that explains, “Who should not wear a mask” and includes the following categories: children younger than 2 years old; anyone who has trouble breathing; anyone who is unconscious, incapacitated or otherwise unable to remove the mask without assistance; and people with sensory, cognitive or behavioral issues.” 7/46/20 - Memo from Greg Zinser to all York County Employees reminding everyone of the County's mask requirement guidelines and that the only situation when masks need not be worn is if an individual has his/her own office and is in it alone. Also reminds employees of need to complete health self-assessment form on a daily basis and to turn it in to supervisor 7/16/20 - Email from Captain Bean to Lt. Col. Vitiello forwarding 7/16/20 memo from County Manager asking whether it applied to the jail and whether the YCJ needs to adjust mask guidelines 7/16/20 - Email from Sheriff King to Lt. Col. simmsls th referencing Zinser’s July 16th memo requiring masks, in which Sheriff King states, “we need to discuss.” 1/17/20 - Email from Captain Bean to Lt. Col. Vitiello asking whether they can start issuing masks and if they can determine next week whether masks will be required 7/17/20 - Email from Captain Bean to Captain Ronco advising that he has issued masks to staff 8/7/20 Millinocket wedding (YC) Corrections Officer attends) 8/13/20 ~ CO who attended wedding works at least 10 shifts before quarantining8/19/20 ~ Three CO's showing symptoms and were tested 8/20/20 - Outbreak confirmed with 4 staff testing positive 8/20/20 - Email from Linda Corliss to Greg Zinser and County Commissioners noting that she “spoke to Sheriff and emphasized the need to mandate masks for all staff regardless of the status of an agreement with NCEU...” Corliss indicates that all CO's and inmates will be tested as well as any County employees who have frequent interaction with jail 8/21/20 - Outbreak continues with 9 staff, 0 inmates testing positive (first outbreak meeting with CDC and MDOC representatives) 8/22/20 ~ Sheriff King declares state of emergency 8/24/20 ~ YCJ implements Employee Self-Certification Health Screening form and temperature checks 8/25/20 ~ Outbreak continues with 11 staff, 6 inmates testing positive (second outbreak meeting with CDC and MDOC representatives) 8/25/20 ~ CDC advises YCI that outbreak at jail linked to Millinocket wedding, 8/27/20 ~ MDOC implements emergency rule making for county jails; establishes rule requiring jails to submit pandemic plans and outbreak responses to MDOC and ME CDC 8/28/20 — Outbreak continues with 16 jail staff, 35 inmates testing positive 9/3/20 ~ Outbreak continues with 17 jail staff, 37 inmates, 1 county staff, 1 EMA staff testing positive 9/3/20 ~ Memo from Greg Zinser to all employees with reminder that “all employees are required to wear face coverings...at all times unless you are in a private office.” Also reminds staff of “inherent obligation when leaving work. We strongly encourage ALL employees to wear masks and adhere to all CDC guidelines for your general, everyday interactions to prevent the spread of COVID-19 at the workplace and in public.” 9/4/20 ~ On-site visit to YCJ by 2 representatives of MDOC and 2 representatives of CDC to review and update protocols 9/4/20 ~ York County Commissioners Issue Statement -Due to outbreak YCJ not accepting any new inmates-Announces independent investigation “including when, how and why the outbreak occurred and the nature and extent of the COVID-19 Protocols that were employed at the jail” 9/8/20 - YC1 Outbreak continues with 17 jail staff, 48 inmates, 8 confirmed household testing positive 9/8/20 ~ Memo from Sheriff King to “All Employees” naming Captain Bean as Acting Jail Administrator 9/16/20 - YC) Outbreak continues with 18 staff, 48 inmates testing positive Mid to late September - MDOC releases report entitled “Review of County Jail Pandemic Protocols” noting widespread failure in a number of county jails to implement COVID prevention measures (including mask mandates) 10/11/20 - YC) Outbreak declared “cleared” by CDC Late October 2020 ~ Outbreak begins at Maine Correctional Center.? CONCLUSIONS In their charge, the Commissioners tasked the independent investigator to ascertain: (1) the nature and extent of COVID-19 protocols that were employed at the jail; and (2) when, how, and why the outbreak occurred. These questions and associated conclusions are addressed, in turn, below. L THE NATURE AND EXTENT OF COVID-19 PROTOCOLS EMPLOYED AT THE JAIL ‘The totality of the e lence, as gleaned from both witness testimony and relevant documents, suggests that there was a discernible difference between the protocols implemented at the YCJ prior to the outbreak and after the outbreak. In the interest of clarity, According to press reports, there were more than 85 cases amongst staff/inmates in November, and more than 140 in mid-December. 10we provide separate overviews of the policies and protocols that were in place before the outbreak occurred, and those that were implemented thereafter. Pre-Outbreak Protocols ‘The evidence demonstrates that when compared with best practices for COVID prevention widely recommended by the CDC, MDOC, and Governor Mills’ various mandates, the YCI fell short of the mark. These shortcomings will be discussed in depth in the next section regarding when, how, and why the outbreak occurred, Outlined here, however, are those protocols that the YC! had implemented prior to the ‘August outbreak: + The Jail was closed to the public. As of March 13, 2020, in-person programming terminated. As of March 19th, visitation was suspended. Any non-staff entering the building, such as contractors, were required to wear masks during their visi * The Jail commenced fit testing for N-95 masks on March 28th with an additional session on April 21st. See Exhibit 4. Fit testing for Envo masks was conducted on May 21st and 22nd. Staff were issued masks, and were instructed to be clean-shaven at all times in case they needed to deploy the masks. They were not instructed to wear the masks. Rather, they were told “we are not wearing them now” but to keep them in their lockers in case they were needed. * The Jail purchased an electrostatic spray cleaning gun and increased its cleaning schedule. The cleaning gun was used to spray down the entire facility on a daily basis. u* The Jail conducted intake testing on inmates coming into the building beginning in April. The procedure for this changed over time, but at all times, inmates coming in were issued surgical masks and were assessed outside of the building in the sally port. While inmates were required to wear masks in intake while outside of their cells, they did not need to wear them while in their cells (even when in the large holding cell where multiple inmates were often held). At the outset of the new intake protocol, inmates were held in intake until their arraignment. After arraignment, if the inmate was to remain at the Jail, then the inmate would receive a COVID test and would be housed in intake until their test came back negative, at which point they were moved to the housing unit (without a mask). There was no requirement to quarantine for 14 days. Rather, as soon as a negative test was obtained, they would be moved into a housing unit. While being housed in intake, other new inmates might come in/out of the intake cells depending on how many inmates were in intake at the time, Inmates were not masked when in the intake cells. On July 16, 2020, the Jail stopped waiting until after arraignment to conduct a COVID test, and began testing during the initial assessment. Inmates again remained in intake until they received a negative test, at which point they would be moved to the housing unit. As was previously the case, other new inmates might come in/out of the large intake holding cell while waiting for test results. + Because of limited intake space and because the Jail houses male and female inmates, this procedure changed a third time. All inmates coming in were tested, but were housed in 12administrative segregation cells (C-1) while they awaited COVID-test results. The cells in C-1 were individual cells. Though the reason for this move was limited space and the need to house female and male inmates separately, the result was that new inmates had less contact with one another i itake and it decreased the likelihood of exposure occurring after an inmate had already been tested for COVID (from a new inmate coming into intake, which could have occurred when all intake inmates were housed together). + Some other supplies were secured, such as hand sanitizer, new thermometers and surgical and cloth facemasks, though these were not distributed, ‘Additional COVID mitigation strategies were employed at the Jail, such as video arralgnments and releasing inmates with low-level offenses to reduce the Jail population. However, these strategies were not initiated by Jail administration but rather by the court system and the District Attorney's office. While the Jail implemented the above-referenced protocols pre-outbreak, the totality of the evidence demonstrates that many widely suggested prevention measures were not employed (such as masks, social distancing of prisoners and staff, staff health self-evaluation and temperature screening) until after the outbreak. B. Post-Outbreak Protocols Once the outbreak occurred, the YCI rapidly implemented a number of additional COVID-19 mitigation strategies with the CDC's help. Most significantly, masks were mandated immediately, as were daily employee health-screenings, neither of which had been required prior to the outbreak, which practice was at odds with all available guidelines at the time. It is 13widely acknowledged that these changes were easier to implement given the CDC’s immediate and active involvement. Captain Bean, as Deputy Jail Administrator, was in charge of the Jail when the outbreak hit given that the Jail Administrator was out of state at the time. By all accounts, Captain Bean did an admirable job navigating what needed to be done and working collaboratively with the CDC to put in place best practices to minimize further spread. Post- outbreak, the following additional protocols were implemented: + Almost immediately after becoming aware that there was an outbreak on August 20, 2020, all Jal staff were required to wear masks. The N95’s and Envos for which staff had been previously fit-tested were required to be worn at all times. Since the outbreak was declared by CDC to be cleared on October 11th, staff can wear cloth/surgical masks and may remove them when located in isolated spaces where there are no staff/inmates nearby such as when the inmates are locked in their cells and they are the sole staff ina particular unit. + Inmates were issued cloth face masks, which still must be worn at all times when they are outside of their cells. + Commencing August 24th, staff were required to perform daily self-screening evaluations. Each day, staff are to provide this form to the Jail, which is reviewed and kept on record, Initially, this self-screening tool required staff to check their own temperature at home before reporting to work. When the Jail realized this was not being done (completed forms showed consistent temperatures, which would be unusual if temperature were taken every day), the Jail started taking staff temperatures themselves. When the Jail 4secretary is present, she takes staff temperatures, but when she is away, a supervisor takes temperatures. Inmate temperatures were taken twice daily during medical checks. This practice was only recently discontinued. When staffing levels allowed, staff were placed into two “cohorts” in an attempt to limit the number of individuals any given staff member would come into contact with. Staff who had previously tested positive for COVID were assigned to work in the wing of the. building that housed inmates who never tested positive (with the theory being that those staff who previously tested positive were less likely to be contagious even if they were exposed a second time, meaning those inmates would be unlikely to ever be exposed to someone who was contagious). Staff who tested negative were assigned to work with inmates who had tested positive and recovered, Staff were not cohorted for roll cal, but given how brief these meetings are (i.e., less than 15 minutes), the thought was that even if someone was infected, this would not result in a “close contact.” The practice of, cohorting CO's by assigning them only to certain housing units was discontinued after approximately one month due to complaints from staff regarding the Jail’s collective bargaining obligation to rotate them. Immediately after the outbreak began, inmates were kept in their cells full-time. Meals Were brought to them, and they were not given recreational time. After a few days of total lockdown, inmates were permitted to leave their cells for 45 minutes to shower, and eventually recreational time was reintroduced. 15+ Inmates were also placed into “cohorts” and remain in cohorts at the time this report was drafted. Only half of the inmate population is permitted out of their cells at any given time, either for meals, recreational purposes, etc., which allows for social distancing measures. Intake was shut down during the initial outbreak. When intake resumed, one major change was made. Inmates continue to be tested and evaluated on intake and housed in administrative segregation and are put in individual cells. However, even if their COVID test comes back negative, inmates are not moved into the general housing units until after they completed a 14-day quarantine period. Additionally, because inmates and staff ‘wear masks at all times, an inmate being escorted into their housing unit and the officer escorting the inmate now wear masks. ‘+ When the outbreak began, all inmates were tested. Those who were positive (8 inmates) were moved immediately into an “isolation” area in the medical unit. Medical only has 5 cells, so when the second round of testing revealed more than 20 inmate positives, inmates were moved. The general housing unit (8-3) became the isolation unit for all inmates testing positive. All other inmates were moved to the cells that previously housed female inmates (C-4), and these inmates were considered “quarantined” due to close contact with all other inmates. Female inmates were moved to intake, which was possible given that the YCJ was closed to new intakes at that time. See Exhibit 30. ‘There were a series of new safety protocols implemented during the outbreak for PPE, laundry, meals, and many other daily tasks, as outlined in Captain Bean's September 3, 2020 memoranda. See Exhibit 3¢ 16Il, WHEN, WHY, AND HOW THE OUTBREAK OCCURRED ‘The question of “when” the outbreak occurred is far simpler than the “why” and the “how.” While the first question needs only a brief discussion, the other two require more in-depth analysis. With respect to “when” the outbreak occurred, the evidence is clear that the outbreak was suspected on August 19, 2020, when three CO's were exhibiting symptoms during their shifts. The outbreak was confirmed and was reported to the CDC on August 20th, when four CO's were confirmed positive for COVID-19. From that date forward, the spread became rapid and exponential. By August 21st, 9 staff tested positive. By August 25th, 11 staff and 6 inmates tested positive, By August 28th, 16 staff and 35 inmates tested positive. By September 3rd, 17 staff, 37 inmates, 1 county staff, and 1 EMA staff tested positive. By September 8th, 17 jail staff, 48 inmates, and 8 household members tested positive. By September 16th, 18 staff and 48 inmates tested positive. (Note: The records provided by the County ended on or around September 16th. News reports indicate, however, that the number of cases peaked on September 16th and that the outbreak was ultimately declared cleared by the CDC on October 11, 2020) With respect to questions of “why” and “how” the outbreak occurred, the totality of the evidence strongly suggests that the answer cannot be distilled to any one particular cause. Rather, based on our review of the voluminous documents and the extensive witness testimony obtained during the course of this comprehensive investigation, we conclude that the outbreak resulted from a perfect storm of causes, all of which are intertwined and which mutually ‘enhanced the possibility of an outbreak at the Jail. They are discussed below. 17A. The Virus Entered the Jail Via a Staff Member The CDC determined that the virus was introduced into the YCJ by a CO who had attended the now infamous August 7th wedding in Millinocket, which was ultimately linked to at least 8 deaths and more than 270 cases of COVID, including the YCi outbreak.’ For the purposes of this investigation, given the extensive contact tracing that was conducted to arrive at its determination that the CO who attended the Millinocket wedding was the source of the outbreak, we have accepted the CDC’s determination and have not independently investigated this issue. After attending the wedding on August 7th, the CO worked on August 13th. It is believed that he worked approximately 10 shifts over a subsequent five day period while he ‘was symptomatic, thereby exposing fellow staff and inmates. The evidence suggests that this CO apparently did not believe that COVID-19 was a legitimate threat to public health and safety, which several witnesses report was a view shared by a number of CO's. Other CO's began showing symptoms a day or two prior to August 19th, and at least two called out sick around that time, However, at least one of those CO's worked while experiencing cold-like symptoms. Based on these facts, the CDC determined that the CO who attended the wedding, and who subsequently worked numerous shifts thereafter, transmitted the virus to other CO's, who in turn, spread it to inmates, other CO's, and members of their households. 2 See httos:/ www wevb.com/article/Bth-death linked -to-coronavirus-outbreak-stemming-from-maine-wedding- offcials-say/34088248% 18That COVID entered the Jal via the above-referenced CO is well-established. However, that is only one part of the story. The fact that virus spread so quickly and widely indicates that conditions at the Jail were vulnerable to an outbreak. What follows is a discussion of those contributing factors — in other words, the “how” and the “why.” B. Failure to Consult and Implement COVID Prevention and Mitigation Best Practices It must be acknowledged that the YCJ implemented a number of COVID prevention protocols prior to the outbreak. Specifically, the Jail: ceased all in-person programming and visitation; intensified its cleaning protocols; purchased and utilized an electrostatic sprayer for dally application of germicides; and implemented testing of inmates before they were allowed to enter the general population.* The YCJ should be commended for being ahead of the curve with respect to its new inmate testing protocols, having implemented them well before other correctional facilities did, including MDOC facilities. However, the totality of the evidence supports a conclusion that the YCI's efforts fell short because they failed to incorporate recommended protocols from reputable sources (such as the CDC). Such protocols are particularly important in congregate living environments such as the YCI. The most glaring shortcomings involved the YCI's failure to implement adequate policies to: (1) prevent COVID from entering the Jail through staff in the first place (i.e., by employee «The Jal also worked with local law enforcement agencies, the courts, and the District Attorney's office to decrease arrests and release inmates where possible (in order to minimize the jail population) and to implement video appearances and arraignments (in order to avoid transport and in-court appearances). These changes, however, were nat made at the direction of Jail administration. Rather, they were initiated by the court system and the DA's office 19health screening and establishing expectations for off-duty conduct); and (2) mitigate COVID's spread once it had entered the Jail (by imposing mask and social distancing mandates). It must be recognized that given the highly contagious nature of the virus, there is no guarantee that an outbreak would not have occurred even if the YC! had implemented best practices. However, the failure to implement guidance from many available resources (such as the CDC, MDOC, various executive orders from the Governor, and other branches of York County government itself, even within the Sheriff's department) relating to masking, social distancing, and staff health screening, was clearly a contributing factor to the introduction and spread of the virus at the YCI. (1) Jail Administration Was Unaware of and/or Did Not Follow or implement Available Resources and Recommended Protocols Areview of the documentary evidence produced by the County in conjunction with this, investigation, together with a Google search, identified the guidelines issued by the CDC (both Maine and US), MDOC, and contained in Governor Mills’ various executive orders. These sources identified and established best practices for COVID prevention and mitigation as they evolved, ‘The totality of the evidence leads to the conclusion that the YCJ had not implemented important COVID prevention protocols prior to the outbreak, such as mask mandates, social distancing, and employee screening. These basic protocols are widely acknowledged to greatly reduce the chance of transmission. The decision not to implement them appears to have contributed to the introduction and spread of the virus at the YCJ. 20{a) YCSO Pre-Pandemic Pol es ‘The YCSO had a number of existing (i.e., pre-pandemic) Standard Operating Procedures ("SOP’s"), which directly related to infectious disease prevention — some directly and some tangentially. There were several general SOP's relating to “Facllity Sanitation,” “Housekeeping Plans," “Inmate Personal Hygiene,” “Laundry Services,” and “Kitchen Sanitation,” all of which promoted good hygiene and cleaning practices. Notably, there was an “Infectious Disease Control” SOP enacted in 2007 (last revised in 2017), as well as an Exposure Control Plan adopted in 2011. See Exhibit 3. While these policies focus largely on blood borne pathogens, they also discuss airborne infectious diseases such as tuberculosis and outline precautions to take when respiratory pathogens are suspected. YCJ administration could have implemented these policies and related protocols as COVID came on the horizon, but they did not. The following statement in YCSO’s Infection Disease Control SOP turned out to be remarkably prescient: “The most dangerous person may be the one that shows no outward sign of a present infection. The best protection is to assume that all inmates are potentially infected.” See Exhibit 3 at 3. (b) York County COVID Policies/Protocols In addition to the existing internal YCSO policies regarding infectious disease control that the Jail could have referenced and/or implemented for the purposes of COVID prevention, York County (including all other departments within the YCSO besides the Jail) implemented COVID prevention and mitigation strategies. Once again, the Jail could have adopted and implemented these policies but it did not, to its apparent detriment. 21In the early days of COVID (March through early April, masks were not recommended in any County department except when in direct contact with a symptomatic individual. This approach was consistent with CDC recommendations at the time given scarcity of PPE, which was to be reserved for health care providers and first responders. However, this changed ‘commencing April 7, 2020, when the County Manager acknowledged the CDC's recommendation to wear face coverings and offered masks for employees who needed one, See Exhibit 7. ‘As of May 18th, masks were required for all York County employees in public areas. On ‘May 21, 2020, the County Manager sent a memo to all MSEA and non-union employees advising that in addition to wearing masks, they were required to conduct daily health assessments and temperature checks. See Exhibit 12, On July 16th, the County Manager once again reminds all York County Employees of the County's masking requirement. See Exhibit 23. Sheriff King appeared to be aware of the importance of masks when on May 21st, he sent an email to all YCSO Department Heads noting that all command staff, civil deputies, and detectives must wear masks, but exempted corrections staff from this requirement, stating that the Jail was a “closed system.” See Exhibit 13. As the evidence demonstrates, this assumption ‘was proven to be incorrect given that the source of the outbreak was a staff member who brought the virus into the Jail from the outside. Not only did the YC! have existing internal pre-pandemic policies it could have followed, it also had the example of the rest of the County, (and even all other departments in the YCSO) that had implemented mandatory mask policies and employee health screening months before the outbreak in the Jail 22(c) Governor Mills’ Executive Orders As the virus entered and took hold in Maine, Governor Mills enacted several Executive Orders discussing COVID precautions, specifically noting the “life-threatening” and “highly contagious” nature of the virus, and highlighting the importance of social distancing, and later, mask wearing. After declaring a state of emergency on March 15, 2020, Governor Mills issued Executive Order ("EO") # 14 FY 19/20 on March 18th entitled, “An Order to Protect Public Health” in which she limited gatherings of more than 10 people and closed restaurants and bars to dine-in customers given that “allowing the congregation of persons”... “constitutes an imminent health threat..." On March 24th, she issued EO #19 ordering: non-essential workers to work remotely; businesses not to convene more than 10 workers in a space where social distancing was not possible; and mandating 6 foot social distancing for all businesses “in order to slow the spread of this life-threatening virus.” On March 34st, Governor Mills issued EO #28 based, in part, on the fact that “New England states have seen a dramatic rise in positive COVID-19 tests and deaths related to the COVID-19 virus in recent days,” ordered people living in Maine to stay home except to participate in essential activities, closed public schools, and imposed in-store gathering limits. On April 29th, Governor Mills issues EO #49, which required individuals to wear face coverings locations where physical distancing is difficult. While this order gave discretion to businesses that are not open to the public regarding mask policies, it expressly requires that business “shall permit any employee who wants to wear a covering to. do so.” (emphasis added) See Exhibit 9. On May 29th, Governor Miills issued EO #55, supplementing existing face covering requirements to extend to large gatherings, even if held 23outside given “serious health and safety risks of the highly contagious COVID-19.” On July 8th, Governor Mills issues EO #2 FY 20/21 requiring business open to the public to enforce cloth face covering mandate and increasing penalties for violations. The distancing and mask mandates ordered by Governor Mills outlined above largely apply in public settings. While it would be technically correct to assert, as some did, that most of the requirements outlined in the various E0’s did not apply to the jail because it is neither a “business” nor a “public setting,” this position was inconsistent with the growing body of scientific evidence that COVID-19 was a highly contagious virus that spread quickly in settings where appropriate distances cannot be maintained. As the chronology demonstrates, there ‘were many outbreaks in congregate living and correctional facilities both in Maine and across the country throughout the spring and early summer of 2020, well before the August YCI outbreaks. For example, there were outbreaks: in late March at Oceanview at Falmouth (an assisted living community); at the Maine Correctional Center (“MCC”) in May; and large ‘outbreaks in California prisons in May and June. (d) CDC's Specific Guidance for Correctional and Detention Facilities ‘As noted above, not only was there the generally available CDC guidance and various Governor's executive orders emphasizing the importance of masks, screening, and social distancing to prevent the spread of COVID, the CDC issued specific guidance for correctional facilities on March 23, 2020 (the “March Interim Guidance”). See Exhibit 5. One of the expressly enumerated targeted audiences for the guidance was “local jails.” The documentary evidence is clear that the YCJ received a copy of this guidance from the American Corrections 24Association the day after it was issued by the CDC. Moreover, a copy of the guidance was Circulated to jail administration (excluding the Sheriff). See Exhibit 6. ‘The CDC's March Interim Guidance only recommended the use of masks for symptomatic and/or quarantined inmates and staff who have close contact with said individuals (given that PPE was in low supply at the time the March Interim Guidance was issued). However, it emphasized the importance of social distancing and provided detailed recommendations in this regard. For example, the CDC recommended staggered meal times, rearranging seating with more space between chairs and not allowing inmates to sit across from one another. It also recommended alternating recreation times in order to limit the number of inmates recreating together at any given time. It suggested limiting numbers of inmates in holding cells, avoiding double-bunking in cells if possible (and if not, having inmates sleep head to foot to increase distance between them), and cohorting inmates to reduce the chance of spread between units and/or cohorts. The March CDC Interim Guidance also recommended screening and temperature checks for staff. While, as noted above, the YCI implemented heightened inmate screening and cleaning practices, itis undisputed that none of the CDC’s many recommendations relating to social distancing and employee health screening were implemented until after the outbreak. ‘The March Interim Guidance was updated on July 14th and again on July 22nd (the “July Interim Guidance"). See Exhibit 22. In addition to the recommendations outlined in the March Interim Guidance, the July Interim Guidance recommended the universal use of face coverings by both inmates and staff “unless contraindicated.” The CDC's guidance regarding when masks were “contraindicated” made no reference to the possibility that mask use might be 25inappropriate in a correctional setting. Rather, the only situations in which the CDC indicates that mask use is contraindicated are as follows: children younger than 2 years old; anyone who has trouble breathing; anyone who is unconscious, incapacitated or otherwise unable to remove the mask without assistance; and people with sensory, cognitive or behavioral issues.® {e)__ MDOC Policies and Educational Opportunities As early as February 28, 2020, MDOC sent a copy of its existing Pandemic Influenza Response Plan to all county jails noting that it might serve as a model for their COVID planning. On March 3rd, MDOC initiated its “Planning and Response Team COVID-19 Response Plan.” On April 7th, MDOC required that all employees and inmates wear masks. On April 13th, MDOC further modified its operations to require social distancing practices in all facility areas where it ‘was “practical and possible” in addition to the mask mandate. In late April/early May, MDOC sent invitations to all county Sheriffs and jails to conduct “table top” exercises relating to COVID prevention and mitigation in their respective jails. Similarly, MDOC extended invitations to all counties to participate in a “lessons learned” seminar on June 2nd to discuss the recent May outbreak at the MCC and what steps could be implemented in their jails to prevent similar outbreaks. It does not appear that the YCI was represented at either program. The YCI did not adopt or implement any of the suggested forms and protocols suggested by MDOC. Both the Sheriff and the [EEE expressed a belief that MDOC policies could not be relevant to a county jal setting, and therefore, did not implement them. Once the outbreak occurred, the protocols adopted by the YC) were based largely on those originally shared with the counties by MDOC. 5 See https://mww.cde.gov/coronavirus/2019-ncov/prevent-getting sick/cloth-face-cover-quidance. htm! 26(2) Shortcomings Relating to COVID Policies and Protocols, By mid-August when the outbreak occurred at the CI, there were well-established best practices identified in guidance issued by the CDC. These practices were being widely implemented throughout the country, state, and even in every other department of the County (even within the YCSO itself). Yet, the Jail continued not to implement mask and social distancing protocols. (a) Masks Despite all of the above-referenced protocols (at the national, state, and local level) that recommended face coverings, particularly in environments where social distancing was not possible (like jails), the YCJ continued its practice of not using them. Not only did YCJ not. recommend that either inmates or staff wear face masks, masks were prohibited, at least for the inmate population other than initially while they were in the intake section of the jail.® ‘There is some question whether masks were expressly prohibited among staff. Without exception, witnesses indicated there was a collective understanding that CO's would not be ‘wearing masks. Yet, nobody could point to a written policy in this regard. The evidence was inconclusive as to how this “no mask” policy was actually communicated (whether at roll call, in the pass on report, or simply by word of mouth), but it was universally understood that CO's were simply not wearing masks on duty. A number of witnesses reported that “I don’t know how we knew it, we just did” as if through osmosis. © On May 5, 2020, the Operations Captain sent an email to al jail administration and supervisors directing that all new arrests would be issued masks upon intake. The emall made clear that once they received a negative test result and were moved to a housing unit, “Inmates are not permitted to bring PPE (Procedure Masks) into any housing unit." (emphasis in original). See Exhibit 10 a7‘The evidence is inconclusive, however, whether any CO specifically asked if they could ‘wear a mask and was specifically denied the right to do so.” While some witnesses report having asked various members of jail administration whether CO's were going to be wearing masks and were told that “we are not wearing masks at this time,” no witness testified that he/she asked to wear a mask and was denied the right to do so. While one supervisor reported that he went with a CO to speak with a higher ranking supervisor to ask if he could wear a mask, there were significant inconsistencies in the testimony of the parties involved in that conversation. The CO denied ever having asked to wear a mask, stating that he would not have done so for fear he would have been teased by his fellow CO's for wearing it. Ultimately, whether the no mask policy was formally drafted and circulated is irrelevant. CO’s and inmates alike were not wearing them, and this very likely contributed to the outbreak. One of the justifications asserted for the no mask mandate was the lack of availability of PPE, It is true that in the early days of the pandemic (February and March) PPE, including masks, were hard to come by given the massive demand for them. Moreover, at that time, masks were not recommended by the CDC (except for when in direct contact with symptomatic individuals) because masks were being prioritized for health care providers and first responders. By April, however, face coverings were being recommended by the CDC. While it isnot clear exactly when the YCJ’s supply of masks would have been sufficient to roll out a universal mask mandate (for staff and inmates alike), any suggestion that there was an * Had they been denied, this would have run afoul of Governor Mills’ EO # 43, which expressly requires employers to allow any employee wanting to wear a face covering to be allowed to da so. See Exhibit 3 28insufficient supply by mid-summer — well before the August outbreak — is contradicted by the evidence, It is worth noting that the CO’s with whom | spoke were divided on the mask issue. Some expressed frustration with and were perplexed by the no mask mandate in light of all of the mounting directives to wear them and what they viewed as scientific evidence that conclusively established that masks help prevent spread. Others expressed little feeling either way and reported a fairly pervasive view among other CO’s (if not themselves) that COVID was either not a genuine threat to public health, or, that concern was overblown. This disparity of views regarding mask use is not surprising as it is representative of the polarized views found in the population at large. Some CO's expressed annoyance about being fit tested yet not being directed to wear the masks (not because of public health concerns but because the fit testing was a waste of their time). The union representatives with whom | spoke (both inside the Jail and NCEU's Regional Director) reported that they received no complaints from members about the no mask policy. The reason for the no mask policy was well known among the witnesses whom we interviewed, (ie., masks might cause panic among the inmates and associated negative the IEEE and was accepted by the Sheriff out of deference to the EEN s expertise and experience in Jail operations. The behaviors). This position originated rationale was summarized in Sheriff King’s May 21, 2020 email to Chief Deputy Baran, Lt. Col Vitiello, and Paul Mitchell (the heads of each of the divisions within the YCSO). The Sheriff directed that while, “Command Staff, Civil Deputies, and Detectives will wear a mask when they 29leave their offices and go to the front office and common areas,” that “since Corrections Officers work in a “closed system” and wearing a mask is not feasible for them due to inmate climate concerns, they will not be required to wear cloth face coverings...” (emphasis added). See Exhibit 23. The statement that the Jail was a “closed system” is incorrect given that three shifts of CO's were coming in and out of the building on a daily basis.® The fact that jails are not “closed systems” was expressly acknowledged by the CDC in its March Interim Guidance for Detention Facilities when it stated in its introductory comments about “Why is this guidance being issued?” that, “there are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and earess....”® (emphasis added). The significance of this erroneous belief that the Jail was a “closed system” becomes apparent in light of the CDC’s determination that the source of the outbreak was a staff member. ‘The assumption that wearing masks would cause panic among the inmates was not based on any tangible support in the corrections community. The iM candidly admitted that this belief was not based on any research he conducted or information from industry sources, rather, it was based on his instinct after years of experience. Sheriff King similarly indicated that he had not conducted any research in this regard but was instead relying on the EEN s guidance and experience in the corrections context, which he lacked, A few witnesses believed that wearing masks could have caused panic if it triggered a * itis noteworthy that although Sherif King and some CO's seemed impervious to the possibilty thet staff could bring the virus into the jail, inmates were not. See Exhibit 20a June 29, 2020 Inmate Grievance Form in which inmate complained about how CO's and inmates wha worked out in the community on work release were ‘endangering inmates because ofthe possibilty of bringing COVID into the Jal * See Exhibit 5 at . 2 of 26. 30concern that COVID had entered the Jail and/or that some people were being valued more than others by being given masks. However, all agreed (including inmates themselves) that a universal mask mandate, coupled with basic communication with inmates that the masks were for their own protection, would have prevented any such panic. itis noteworthy that many witnesses (who spanned the spectrum from Jail administration, CO's, and inmates) mentioned that no panic actually occurred once the mask mandate was put in place. The [EEE pointed out that this was because the inmates went in to lock down at the time the mask mandate was put into effect. Others noted, however, that when inmates were let out of their cells a few days later, no panic or riots ensued. ‘The (EEE vas adamant that both Sheriff King and County Manager Zinser were aware that jail staff were not wearing masks at all relevant times prior to the outbreak. The weight of the evidence suggests that Sheriff King was likely aware that they were not being worn. The County Manager's knowledge is legally irrelevant given that under Maine law, he has no control over jail operations or policy as these are within the Sheriff's exclusive statutory authority. Additionally, his purported knowledge is based on communications that occurred a ‘month prior to the County Manager's directive to all employees on July 16, 2021. {b) Employee Screening/Expectations Regarding Off-Duty Behavior Witnesses universally agreed that the YCJ did not implement staff screening until after the outbreak even though both the CDC’s March and July Interim Guidance for Correctional Facilities recommended daily screening and temperature checks of staff prior to entry into the 31facility as best practice, See Exhibits 5 and 22. Moreover, the rest of the County required such screenings by sometime in May. In addition to the absence of staff health screening, there was consensus among witnesses that there was little, if any, discussion about off-duty behavior. Unlike the County, (which advised staff ofits expectation that staff must be mindful of their off-duty behavior), and the Sheriff's Office itself, (which advised support staff on April 10, 2020 that they should: stay home unless absolutely necessary; practice social distancing; not invite friends and neighbors in to their homes, and be vigilant both on and off duty), YC) administration did not discuss the need for such practices with its staff. Itis noteworthy that the himself was out of state when the outbreak hit. This failure to address off-duty behavior is concerning given that there was a scare in the spring when it was discovered there was a gathering of CO’s and that one of the participants was thought to have COVID. Whether or not conducting employee health-screening and/or communicating ‘expectations for off-duty behavior would have prevented the outbreak at the jail is unknown, given reports that many CO's simply did not believe that COVID was a legitimate threat to public health and that a number of them attended work while symptomatic. However, the absence of any such screening or discussion about expectations for off-duty conduct was inconsistent with best practices. (c) Social Distancing As early as late March 2020, the CDC suggested in-depth practical social distancing strategies geared at increasing space between inmates. See Exhibit 5 at p. 11 of 26. These recommendations include : increasing distances between individuals in holding cells and 32waiting areas (by removing seating); staggering recreation times to decrease the number of inmates using a space at any given time; providing meals in cells or rearranging seating by removing every other seat and prohibiting inmates from sitting across from each other; limiting the number of individuals who could be in common spaces (i.e., “out time”) at a time; if unable to provide single cells, having inmates sleep head to foot in their bunks; and cohorting inmates to minimize chance of transmission outside of their respective cohorts. The evidence establishes that the Jail did not implement any of these social distancing protocols contained in both the CDC’s March and July Interim Guidance for Correctional Facilities prior to the August outbreak. See Exhibits 5 and 22. (d) Intake Procedure Many witnesses, including Jail administrators and CO’s alike, reported feeling safe and protected from COVID given what they perceived to be thorough intake procedures utilized at the YCJ. The CJ should be given credit for having the foresight to implement inmate testing well before other county jails and MDOC facilities did. The fact that the YCI was testing inmates upon intake and that they wore masks and were not placed in to housing units until they received a negative test appears to have instilled a sense of relative safety among administrators and staff. Many witnesses credited these intake screening protocols for detecting an asymptomatic COVID positive inmate on July 9, 2020 and preventing an earlier outbreak.” +© 4 number of witnesses referred to the intake protocol of testing new inmates as “universal testing.” This was erroneous given that neither existing inmates nor staff were tested. "Universal testing” is the term used by the CDC nits May 23, 2020 Public Health Advisory, which recommends that all staff and residents in congregate living facilties be tested when there was a single confirmed case of COVID among staff or residents 33‘There appeared to be a fairly widespread belief that the Jail was a “closed system,” such that if inmates were tested upon entry and segregated from the general inmate population until they received a negative test, this would prevent COVID from entering the facility. As discussed elsewhere, this belief entirely ignored the possibility that COVID might enter the facility via staff rather than inmates, which obviously occurred in this case. While it does not appear that any flaws in the intake procedure caused the outbreak, the prevailing notion that the intake process was infallible was contradicted by the evidence. In particular, inmates would sometimes be placed in a large holding cell with other inmates while awaiting their test results. This problem was compounded by the fact that while inmates were required to wear masks in intake while outside of their cells, they could remove them while inside the cell ‘Also contrary to CDC recommendations, inmates who were being held in intake were not required to quarantine for the recommended 14 days. Rather, as soon as they received a negative test, they were housed with the general population. As we know from the available scientific evidence, mixing individuals in intake, as well as not requiring them to quarantine for the recommended period before introducing them into the general population, created circumstances that could have allowed transmission. (3) Lack of Awareness of and Failure to Follow Best Practices Created a Climate ‘That Made the Jail Vulnerable to an Outbreak In addition to not implementing MDOC suggested COVID prevention protocols, the ill HR 203 Sheriff appeared not to have done sufficient research about governing best practices, particularly in congregate living and detention facilities. Even when they were provided with such resources through an industry group, they did not implement them, 34Neither the Sheriff nor the EEE appeared to be aware until after the outbreak that the CDC had issued specific guidance for correctional facilities that expressly applied to county jails (even though the CDC’s March Interim Guidance on Detention Facilities was sent to the [EEE the day after it was issued). See Exhibit 6. Additionally, neither were aware that the CDC had issued updated guidance in July, which superseded the March guidance and which recommended the use of masks by both inmates and staff. See Exhibit 22. Sheriff King was candid about his lack of a thorough understanding (pre-outbreak) about how the virus could spread. His belief that the early adoption of heightened inmate screening protocols would prevent the introduc \n of the virus into the Jail appeared to be genuinely held. He was not the only one who felt this way. This widely held blind spot (that only an inmate and not a staff member could bring COVID into the Jail) resulted in a strong focus on inmate screening to the exclusion of other preventative practices like masks, employee screening, and social distancing, As hindsight tells us, this was a critical oversight given that it was staff, and not an inmate, that introduced the virus into the Jail. By not requiring masks, employee screening, or social distancing, Jail administration also ignored the broader context, which included Governor Mills’ various executive orders, MDOC’s suggested protocols, and the CDC's pervasive recommendations regarding these practices— both generally and in the specific context of correctional facilities. Given that these practices have been identified as some of the most effective means to prevent the transmission of COVID, the failure to implement them likely contributed to the introduction and spread of COVID at the YC). 35(4) Sheriff King’s Deference to the J Throughout this investigation, it became apparent that Sheriff King relied heavily on the RR (0 the day-to-day operations of the Jail. It is clear that the Sheriff has great respect for the [IEEE s expertise and that he defers to him. Many witnesses remarked on this level of deference and the Il KEI s operational control over the Jail. The only witness who had an opposing viewpoint was the EE himself who stated that it was the Sheriff who was in control of all major decisions. While the Sheriff agreed that under Maine law, “the buck stops” with him, itis universally believed that the Sheriff defers the [EEE in most matters. Scientific evidence, CDC protocols, the Governor's executive orders, and suggested guidelines from MDOC all indicated that masks were critical to COVID prevention. Given the absence of any recognized corrections industry authority that would support a conclusion that the risk of inmate panic outweighed the public health benefits of wearing masks, itis difficult to understand why they were not required. This is especially true in a congregate living environment like the YCI where the risk of spread is so high. It is also markedly inconsistent with the Sheriff's decision to mandate masks in all other divisions of the YCSO under his authority. Even assuming that concern about inmate panic was a legitimate basis for not requiring masks, it would not have prevented the implementation of other best practices such as employee health screenings and temperature checks, neither of which were conducted at the Jail until after the outbreak. (5) Existing Legal Structure and Institutional Culture 36As alluded to previously, the existing statutory framework is such that the Sheriff has oversight over YCSO operations (including the Jail). What follows is an overview of the governing provisions of Maine statute that establish the respective roles, responsibilities, and authority of the Sheriff on the one hand, and the County Commissioners and County Manager ‘onthe other. Ultimately, aside from budgetary issues and some personnel issues over which the Commissioners have authority, neither the Commissioners nor the County Manager can direct the Sheriff on how to operate the jail Under 30-A M.RS. § 82(3), the County Manager is “responsible for the administration of all departments and officers controlled by the county commissioners.” (emphasis added). Under governing statute, however, neither the Sheriff's department nor the (a constituent part of the sheriff's department) is “controlled by the county commissioners.” Rather, “t]he sheriff...s responsible for administering and directing the sheriff's department as authorized by the county budget...” Moreover, the Commissioners may not give orders to any subordinates of the Sheriff, (which would include the [END . See 30 M.R.S. §§ 401(1) and (2). Additionally, “[t]he sheriff has the custody and charge of the county jail and of all prisoners in that jal...” See 30-A M.RS. § 1501. Ultimately, the sole recourse of the Commissioners, if they believe that “the sheriff is not faithfully or efficiently performing any duty imposed by [law] or that the sheriff is improperly exercising or acting outside the sheriff's authority” is to file a complaint with the Governor seeking his or her removal from office. See 30-A MRS. § 441 These provisions, when read together, lead to the conclusion that neither the County Manager nor the Commissioners have the authority to tell the Sheriff how to run the YCSO's operations. 37Itis this statutory structure that allowed the YC) to implement COVID-related policies that were different from those all other County employees were required to follow. Moreover, it creates an institutional culture that may result in a lack of collaboration between the Jail and the rest of the County. ‘The statutory framework within which the County and the Sheriff's department, (including the YC) operate is a reality over which neither have control. Yet, it appears to have contributed to the lack of unified COVID policies and the inability of the County to compel the Jail to adopt best practices. When the County Manager sent various memoranda to “All County Employees” about COVID prevention strategies, they did not truly apply to “all employees.” The COVID outbreak at the Jail shines a light on how the statutory framework allowed different departments within the same county, which ideally should be speaking with one voice to its employees (particularly during a public health crisis), to implement radically contradictory policies. Summary In their charge, the County Commissioners sought to understand “when, how, and why” the COVID outbreak occurred at the YCJ. As discussed in detail in the foregoing report, there was no single cause of the outbreak that occurred between August 20th and October 11th Rather, a multitude of factors coalesced, which made the YCJ vulnerable both to the introduction of COVID into the facility by a staff member, and, to its rapid spread among, inmates, staff, and their family members. The totality of the evidence suggests that the primary cause of the outbreak was the YCI's failure to implement best practices that were being universally recommended by the CDC, 38Governor Mills, and MDOC. While it is clear that the YC) made good faith efforts to implement ‘a number of COVID prevention measures (and should be applauded for being ahead of the curve in implementing inmate screening protocols well before other county jails and MDOC facilities did so), these efforts fell short. Specifically, the Jail did not implement those best practices widely acknowledged to be among the most effective means of preventing COVID transmission, i.e., masks, social distancing, and employee health screening. While the evidence strongly supports a conclusion that the YCJ did not implement important best practices, itis impossible to reasonably conclude that an outbreak would have been prevented had it done so. As we know, the virus is highly contagious. Moreover, many staff members (notably, the CO who was the source of the outbreak at the Jail) question whether COVID represents a serious health risk. Such individuals might not have complied with mask, distancing, and self-screening mandates had they been implemented. Even if they did abide by these requirements at work, they might not have done so when off duty. Even considering these variables, given what we know about how COVID spreads, the failure to require masks, social distancing, and employee health screening was very likely a contributing factor to the introduction and spread of the virus at the CI. 39