Former Prison Guards Sue Over Telephone Tap : Privacy: Officers allege that authorities illegally eavesdropped to gather information to fire them.

Three former guards at the California Institution for Men here are suing the prison, its warden and top state corrections officials, alleging that authorities illegally eavesdropped on their telephone conversations and used their taped remarks as fodder to fire them.

An administrative law judge already has ruled that the state’s wiretapping of a phone in a prison watchtower manned by one of the guards was illegal, prompting the State Personnel Board to order that the officers be reinstated.

But prison officials are appealing the ruling, contending that the guards had no “expectation of privacy” on the job and that the phone was for internal use only and thus legally subject to wiretapping.

The lawsuits, filed in federal court in Santa Ana, seek $32 million in damages and an injunction barring further “misconduct” by prison officials. The plaintiffs allege that the wiretapping constituted an unlawful invasion of privacy and, in the case of two officers, was initiated because of the guards’ involvement in labor activities.

Joining in the litigation is a fourth officer still employed at Chino, Charles Bruce III, who claims he was demoted because of his involvement in union activities.

Last week, the case took a new turn when the chairman of the Legislature’s Joint Committee on Prison Construction and Operations, state Sen. Robert Presley (D-Riverside), convened a meeting between the guards and state Corrections Director James Rowland.

Presley said he became involved at the request of the California Correctional Peace Officers Assn. “I don’t know enough about the law to make a judgment on whether what (the prison) did was right,” Presley said. “But if it is illegal, obviously it can’t be condoned.”

Presley said his primary goal is to reach a compromise that will avoid a costly court battle.

According to the lawsuits, prison officials wiretapped the telephone in Tower No. 11, manned by Corrections Officer Ray Feldmann, and taped 42 hours of his conversations between Aug. 12 and Sept. 30 of 1988.

Prison officials in Chino declined to discuss the case, citing the pending litigation, and a spokesman for Rowland--named as a defendant in the lawsuits--said he also would have no comment.

But documents obtained from the State Personnel Board say prison officials decided to tap the tower phone because the line was frequently busy, making it difficult for others to call in. Monitoring was initiated “in order to detect and correct any employee abuse,” the documents say.

The taping revealed numerous “non-business-related conversations”--with some calls lasting up to four hours--and “additional inappropriate conduct,” including threats of “violent acts” against Warden Otis Thurman and other prison officials, as well as racial remarks about fellow employees, according to the documents.

Based on evidence gathered from the conversations, Feldmann, 42, was fired on Dec. 12, 1988. The Rialto resident, a 17-year veteran at Chino, was charged with inefficiency, inexcusable neglect of duty, misuse of state supplies, discourteous treatment of the public or other employees and “other failure of good behavior.”

Three other officers whose conversations with Feldmann were recorded--Joseph Buscher, Hans Peter Kopf and Elbert Hernandez--also were fired in December, 1988, charged with similar violations. All but Kopf subsequently sued.

In an interview, Feldmann called the explanation offered for the wiretapping--a busy signal--”completely absurd,” noting that an emergency override system allows a caller to break in on the line if necessary. Indeed, transcripts show that in at least one instance, on Sept. 23, 1988, a supervisor did interrupt Feldmann’s conversation with another guard to conduct prison business.

Feldmann contends that the phone was wiretapped because of his leadership role in the prison union and his activism on behalf of fellow guards pursuing grievances against the institution. Prison supervisors “were conspirators in a scheme” that was “retaliatory in nature,” Feldmann’s lawsuit says.

The officers also insist that the remarks used as grounds to fire them were taken out of context and misinterpreted.

Buscher, for example, said the charge against him of “theft of state supplies” stemmed from his tape-recorded comment about a fly swatter he planned to remove from his tower.

“Another guy who worked in the tower was using this swatter to kill flies, and I got sick of cleaning bug guts off the window and said I was going to take the swatter home,” said Buscher, 42, a Hesperia resident employed at Chino for eight years.

Buscher said he never actually took the swatter, but nonetheless was “fired for stealing state property.”

Robert Thompson, the Colton attorney representing the officers, said: “That is what’s so dangerous about taping people’s telephone calls. . . . They took the conversations, totally distorted them and then came up with these trumped-up charges.”

Regardless of the content of the conversations, the officers contend that the wiretap was illegal, citing a section of state law that makes it a criminal offense to record a confidential conversation without the consent of all parties.

Administrative Law Judge Byron Berry, considering a motion to suppress the tapes, agreed, and in December ruled that evidence obtained as a result of the wiretap was not admissible. Because prison officials had no other evidence supporting their firing of the guards, the State Personnel Board ordered the men reinstated.

But Chino authorities have so far refused to rehire the guards and instead have appealed for a rehearing by the personnel board. Melvin Segal, supervising deputy attorney general, said the appeal relies on an exemption in state law that permits officials to eavesdrop on any telephone system used exclusively within a correctional facility.

“Secondly, it is our position that there should have been no expectation of privacy in a prison guard tower, because those are official phones to be used for official business and the prison setting mandates that monitoring be permitted for security,” Segal said.

Attorney Thompson called such reasoning absurd. He argued that the tower phone system “clearly can be used to make calls outside the prison” and therefore is not subject to the wiretap exemption.

“Any sensible person realizes that exemption was created so prisons could monitor the conversations of inmates,” he said. “I don’t believe the Legislature ever intended for (the prison) to be able to record private conversations between officers.”