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Arizona appealing safety violation fine in prison rape case

Created: 02/06/2015 2:52 PM
By: By BOB CHRISTIE

PHOENIX (AP) — The Arizona Department of Corrections does not believe it should have to pay a $14,000 fine that state workplace safety regulators levied against the agency for failing to protect a teacher who was raped by an inmate in a sex offender unit.

Documents obtained by The Associated Press show the department filed an appeal last week to overturn the fine issued by Industrial Commission of Arizona. A prisons spokesman said the agency believes there is a basis for the appeal, but he did not elaborate.

Arizona has faced intense criticism over the attack. Prison officials sent out only a vague press release that referred to an assault on an employee after the January 2014 rape. The details of the assault came to light only after The Associated Press obtained documents under a public records request and interviewed people familiar with the case.

The attack raised questions about prison security because the teacher was put into a room full of sex offenders with no guards nearby and no closed-circuit cameras. She had only a radio to call for help.

The state found itself facing more scrutiny this week after lawyers for the attorney general's office argued in court that the woman's lawsuit should be thrown out. Assistant Attorney General Jonathan Weisbard wrote that the teacher routinely worked in classrooms and there is always a risk of assault when working with prisoners.

A federal judge on Thursday refused to dismiss the teacher's civil rights lawsuit, writing that the lawsuit raised plausible allegations that the warden and other top officials created a dangerous environment that led to the rape.

The workplace-safety investigation was launched last July after the AP story provided the first detailed account of the incident.

Authorities have said inmate Jacob Harvey, who was less than a year into a 30-year sentence for a home-invasion and rape, lingered after other inmates left the room on Jan. 30, 2014, then repeatedly stabbed the teacher with a pen before raping her.

Harvey remains in prison, and he is awaiting trial on new charges. He has pleaded not guilty.

The appeal of the $14,000 fine levied in January by the state Industrial Commission seeks a hearing before an administrative law judge.

The Arizona Division of Occupational Safety and Health recommended a fine of $9,000 for two violations of workplace-safety rules. But commissioners boosted that to $14,000 at a hearing last month, with one commissioner saying the violations showed the rape "should never have occurred in that facility."

Commissioner Joseph Hennelly Jr. even suggested the department could be hit with an additional $25,000 fine, but he was told state laws didn't allow it in this case.

A spokesman for the Department of Corrections said the department believes there are a significant number of factual inaccuracies in the worker safety agency's report that it plans to contest.

"The 2014 assault on the ADC teacher was a cowardly and despicable crime, for which the inmate is rightfully facing prosecution," spokesman Doug Nick said in an email. "The safety and well-being of all ADC staff is the department's paramount priority, and the victim has our full assistance and support."

Scott Zwillinger, the teacher's lawyer, criticized the Corrections Department for appealing the workplace safety citations.

"They refuse to acknowledge when they have issues. They refuse to be introspective and look and evaluate and make changes," Zwillinger said Friday. "So rather than accept what seems a relatively obvious conclusion and to correct these matters, all they simply do is deny and fight on."

State prison officials have since installed cameras in prison classrooms, increased patrols and issued pepper spray to civilian workers. They have said issuing pepper spray had been planned before the rape.

In minutes of the Jan. 8, 2015, meeting of the Industrial Commission where the fines were levied, commissioners repeatedly questioned how the teacher could have been placed in a room filled with sex offenders unattended. Commission Chairman David Parker said he understands there are situations where prisoners can end up alone with civilian staff.

"But something went wrong here, and this is different," he said.

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Follow Bob Christie at http://twitter.com/APChristie .

(Copyright 2015 by The Associated Press. All Rights Reserved.)

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