BEFORE THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF MONTANA

 

In the matter of the adoption of NEW RULE I pertaining to facilities exempt from geographic restrictions applicable to high-risk sexual offenders

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NOTICE OF ADOPTION

 

TO: All Concerned Persons

 

1. On April 13, 2018, the Department of Corrections published MAR Notice No. 20-4-64 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 684 of the 2018 Montana Administrative Register, Issue 7.

 

2. The department has adopted New Rule I (20.4.101) exactly as proposed.

 

3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

The department received 12 written comments from approximately 20 individuals during the public comment period specified in MAR Notice No. 20-4-64 published in the Montana Administrative Register (MAR) on April 13, 2018. One comment was received after the comment period closed and could not be considered by the department. All comments came from Glendive area residents and contained certain common themes which are summarized in Comment #1. A single response to the common themes is contained in the department's Response #1.   Some comments included additional unique perspectives or concerns. Individual responses are provided by the department to those comments.

 

COMMENT #1: All commenters opposed inclusion of the department's facility at 700 Little Street in Glendive, MT, among the facilities or programs listed in (1) of the proposed rule.   Commenters stated that the 700 Little Street address is situated in a residential neighborhood where families with young children live; that children play near and walk past the facility going to and from virtually anywhere in the vicinity; that the facility is not secure and was not built to house the category of sex offenders referred to in 45-5-513, MCA; and that placement of such sex offenders at that location would unacceptably compromise public safety.

 

RESPONSE #1: The department acknowledges that the commenters' concerns are valid in every respect. It is necessary for the department to provide some additional background to put the proposed rule in a clearer context. The 2015 Montana Legislature passed 45-5-513, MCA, establishing geographic restrictions on where certain high-risk sexual offenders can live and work and on their proximity to and behavior toward victims. The law became effective on October 1, 2015. By the terms of 45-5-513, MCA, a high-risk sexual offender placed by the department in one of its facilities or a contracted facility that existed as of October 1, 2015, is not in violation of the statute for being there and the department is not restricted under 45-5-513, MCA, from placing a high-risk sexual offender there.

In addition, under 45-5-513, MCA, the department may place a high-risk sexual offender in a facility established or contracted by it after October 1, 2015. The offender would not be in violation of the statute in that circumstance, provided that prior to establishing the facility the department held at least one public hearing in the community where it was to be located.

            The department has not established or contracted for any new facility since October 1, 2015. The list of facility addresses in the proposed rule includes every department or contracted facility in the state. All state prisons, regional prisons (including the regional prison at 440 Colorado Blvd. in Glendive), and the private prison in Shelby are included in the list of facility addresses in the proposed rule. High-risk sexual offenders are and will continue to be sentenced to or placed at those facilities.

All seven of the contracted prerelease centers are listed in the proposed rule although only three of them currently accept sexual offenders.

A secure youth correctional facility is listed in the proposed rule. An adjudicated delinquent youth whose conduct meets the criteria in 45-5-513, MCA, could be committed by the court to the youth correctional facility or committed to the department and placed there.

All department or contracted treatment facilities are included in the list although only four of them are currently considered by the department to be secure facilities (WATCh West at Warm Springs, NEXUS at Lewistown, Elkhorn at Boulder, and Passages ADT at Billings).

The remaining facilities which are not prisons, youth correctional facilities, prerelease centers, or secure treatment facilities are listed in the rule because they are department or contract facilities with specific purposes (e.g., assessment and sanctioning) and, like other facilities listed, could in a dynamic, evolving corrections environment, be retrofitted and repurposed.

The department is required by law to propose programs to the legislature to meet the projected long-range needs of corrections, including programs and facilities for the custody, supervision, treatment, parole and skill development of persons placed in correctional facilities or programs. Section 53-1-203(1)(e), MCA.

The facility housing the WATCh East chemical dependency treatment program for offenders at 700 Little Street in Glendive, is one of only three non-prison facilities in the state that the department owns. The others are contracted facilities. When the siting of a chemical dependency treatment program for offenders at the 700 Little Street location was under consideration by the department, there was substantial community opposition. The proposed chemical dependency treatment facility for offenders was formed under the Community Corrections Act (Act), Title 53, ch. 30, part 3, MCA.   Under the Act, offenders are screened by a board of local persons. The board has statutory authority to accept, reject, or reject after acceptance, the placement of any offender in the facility or program. 53-30-313(3), MCA. Administrative rules were adopted by the department that are specifically and exclusively applicable to the 700 Little Street, Glendive, MT facility. See, ARM 20.7.801, 20.7.804, 20.7.807, 20.7.810, 20.7.813, and 20.7.816.   Admissions criteria are set in ARM 20.7.807. Persons convicted of a sexual or violent offense as defined in 46-23-502, MCA, are ineligible for placement in the WATCh East chemical dependency treatment program for offenders under ARM 20.7.801. The department may not expand or modify the purpose of the chemical dependency treatment program at 700 Little Street in Glendive except as provided in ARM 20.7.816. 

            When enacted in 2015, (4) and (5) of 45-5-513, MCA, required that the department adopt administrative rules specifying the "types" of facilities to which those subsections of the statute pertain. The legislative auditor brought to the department's attention that the required rulemaking had not been done. That circumstance prompted publication of the subject administrative rule proposal notice at this time. Historically, the department has not identified "types" of facilities that it utilizes for placement of offenders. All facilities are utilized according to the programming services provided at each and according to assessments of offenders' risks and needs. Facilities are not consistently categorized by the department as "secure" and "non-secure." Therefore, the department listed all facilities in the rule because all were in operation as of October 1, 2015. Any proposed new facility constructed, designated, or commenced after that date and subject to the community hearing requirement in 45-5-513(5), MCA will be readily identifiable in the future by its absence from the list in the administrative rule.

Because the department owns the facility at 700 Little Street in Glendive, it cannot responsibly represent there will never be a modification of the programming/use of the facility. Any modification would be done, if at all, after community hearing(s) and upon determination of public support, all in accordance with procedures established by applicable law and administrative rules. For that reason, the department declines to remove the 700 Little Street, Glendive, MT address, from the list of facilities in operation as of October 1, 2015. The legislature grandfathered those facilities and exempted them from the procedural requirements contained in 45-5-513(5), MCA, applicable to facilities that become operational after October 1, 2015.

Many safeguards are in place in the law and within the department to assure that decisions regarding placements of offenders committed to the department by the sentencing courts are well reasoned, taking into consideration the offender's rehabilitation needs and the safety and security of the public. The department's duty to protect the public is taken very seriously. That being said, the majority of all persons sentenced to prison for felony offenses are eventually released back into the community under the supervision of the department's probation and parole division until they fully discharge their sentences. The department also takes very seriously its duty to rehabilitate offenders and prepare them for re-entry to society. It does so by placing offenders where the services that they need are available.

 

COMMENT #2: Several commenters stated that placement of high-risk sexual offenders at 700 Little Street in Glendive would adversely impact property values of nearby homes. Two commenters stated that if the department ever decided to confine or treat high-risk sexual offenders at the subject facility, the decision will adversely affect property values and constitute department "action with taking or damaging implications" and, therefore, an impact assessment should be conducted in accordance with 2-10-105, MCA.

 

RESPONSE #2: The department's proposed rule does not state that high-risk sexual offenders will be placed at 700 Little Street, Glendive. There are currently no plans to expand or modify the purpose of the program (defined in ARM 20.7.801(7)) that is in operation at the location. Any future expansion or modification of the program in operation will be governed by all applicable laws and administrative rules.  ARM 20.7.816.

The property value comments make reference to Title 2, Chapter 10, Part 1 of the Montana Code Annotated which is the "Private Property Assessment Act." The phrase "action with taking or damaging implications" referred to in some comments is defined in 2-10-103(1), MCA, as "a proposed state agency administrative rule, policy, or permit condition or denial pertaining to land or water management or to some other environmental matter that if adopted and enforced would constitute a deprivation of private property in violation of the United States or Montana constitution. [The phrase] does not include: (a) proposed eminent domain proceedings."[1] (Emphasis added).

The department's proposed rule pertains to placement of offenders in department and contracted facilities. The proposed rule is unrelated to land or water management or other environmental matter and thus the impact assessment required under 2-10-105, MCA is inapplicable. Mont. Code Ann. 2-10-102 states, in relevant part, that: "It is not the purpose of this part to expand . . . the private property protections provided in the federal and state constitutions."

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COMMENT #3: One commenter referred to public meetings held by the department in Glendive when the facility at 700 Little Street was being considered as a site for the WATCh East chemical dependency treatment program for offenders under department jurisdiction. The commenter stated that assurances were made by the department that sexual offenders would not be placed there. The commenter also objected to the department only allowing a public forum for comments but not empowering the [community corrections] board to deny use of the facility to house sexual offenders.

 

RESPONSE #3: The commenter is correct that assurances were made to the community when the department was proposing to establish a chemical dependency treatment program at the 700 Little Street location, that no sexual or violent offender as defined in 46-23-502, MCA, would be placed there.   That assurance was incorporated into the department's administrative rules that are referred to in Response #1 and which are specifically and exclusively applicable to the facility at 700 Little Street, Glendive, MT. Those administrative rules remain in full force and effect.

 

COMMENT #4: One commenter stated that 45-5-513(4), MCA, does not require that any or all programs or facilities be exempted from the geographic restrictions applicable to high-risk sexual offenders.

 

RESPONSE #4: Facilities in operation on or before October 1, 2015 were grandfathered, i.e., exempted by the terms of 45-5-513, MCA itself. The legislature stated in 45-5-513(4), MCA that "[t]his section [45-5-513. Geographic restrictions applicable to high-risk sexual offenders] does not apply to offenders placed in a facility in operation by the department or a contractor of the department before October 1, 2015." The department's proposed rule does nothing more than identify which department and contracted facilities were in operation before October 1, 2015, and state that no new facilities have been established since that date.

Section 45-5-513(5), MCA, states that "[as] part of the process of granting an exemption to a facility contracted or designated after October 1, 2015, the department of corrections . . . shall hold at least one public hearing in the community where the facility is to be located."

As previously stated, the department owns the facility at 700 Little Street, Glendive. The department is empowered by the legislature under 53-1-203(1)(a)(v), MCA, to adopt rules necessary for the admission, custody, transfer, and release of persons in department programs. Exercise of that power is subject to the provisions of the Community Corrections Act under which the facility at 700 Little Street in Glendive is operated.

 

COMMENT #5: One commenter served as the law enforcement officer member of the Community Corrections Board when a chemical dependency treatment program was proposed to be operated in the department's facility at 700 Little Street, Glendive, MT. In addition, the commenter served for a time on the applicant admission screening committee. The commenter stated he knew of no one in the community who was aware of the 2015 legislation (codified as 45-5-513, MCA) before now and he knew of no one in the community who was aware of the hearing held in Helena on the department's proposed rule concerning 45-5-513, MCA, prior to the rule hearing taking place. The commenter proposed that the 700 Little Street address in Glendive, MT be removed from the proposed rule because there are ample other [facility] options available to the DOC to treat the high-risk sex offenders.

 

RESPONSE #5: The legislation (Ch. 412, L. 2015) that passed in 2015 and was codified as 45-5-513, MCA, was not a department bill. The department neither supported nor opposed the bill. Bills introduced during each legislative session may be reviewed and tracked on the Legislative Branch website (LAWS). The content of bills as introduced and as amended throughout the legislative process and the dates, times, and places of the legislative hearings on bills, are always available to the public in real time on that website. Audio and video recordings of hearings are available online.

The procedures that must be followed by a state agency when it proposes to adopt, amend or repeal administrative rules, are very detailed and are set out in the Montana Administrative Procedure Act (MAPA), Title 2, chapter 4, part 3 of the Montana Code Annotated. The department complied with the MAPA rulemaking requirements. The department's hearing officer for the proposed rule at issue was contacted by a Glendive city official well in advance of the rule hearing in Helena. The official was aware of the proposed rule and called the department's hearing officer about it. The department's hearing officer corrected the caller's misconception that the rule hearing would be in Glendive. The caller was encouraged to attend the hearing in Helena and to encourage other concerned citizens to do so as well. The purpose of an administrative rule hearing is to give proponents and opponents of the rule an opportunity to present their oral comments on the record and/or submit their written comments to the hearing officer during the hearing. A rule hearing is not conducted in a debate format or in a question and answer format and so submission of written comments is an equally effective means of making the commenter's position/opinion known to the department. No members of the public personally attended the subject rule hearing in Helena. All comments on the rule proposal came in the form of written submissions by email from Glendive area residents.   In contrast to an administrative rule hearing, any hearings under 45-5-513(5), MCA, concerning proposed expansion or modification of the purpose of the chemical dependency treatment program in operation at 700 Little Street in Glendive will be conducted in Glendive.

Pursuant to 2-4-302(2)(a)(iii), MCA, the department maintains an "interested persons list" consisting of the names and contact information for persons who wish to receive notice of the department's rulemaking notices. Those who submitted comments to the rule proposal notice at issue and any other concerned citizens are encouraged to send to the department a request to be added to its interested persons list to ensure receipt of timely notice of the department's rulemaking activities.   Please refer to paragraph 6 of the rule proposal notice, MAR Notice No. 20-4-64, for further information about the interested persons list.

With respect to the commenter's proposal that the 700 Little Street address in Glendive be removed from the rule because there are ample other options available to the department for the treatment of high-risk sex offenders, please refer to the department's Response #1.

 

 

 

/s/ Colleen E. Ambrose                              /s/ Reginald D. Michael                

Attorney                                                     Director

Rule Reviewer                                           Department of Corrections

           

Certified to the Secretary of State August 14, 2018.