Subsection 201-10-30.7 - VariancesPOLICY VARIANCES
The Commissioner of the Department of Corrections is authorized under 34-A MRSA, Section1208, paragraph 5, to grant municipalities and counties variances to Maine Standards for County Jail, Holding Facilities, and Short-Term Detention Areas when the variance will not result in diminishing the safety, health or security of staff, inmates, or visitors of county or municipal detention facilities. Such a mechanism for granting variances is necessary as standards cannot be written to anticipate all situations. The intent of a variance is to offer municipalities and counties the opportunity to achieve compliance with the intent and spirit of a standard without attaining exact compliance with that standard.
Procedure A. Application Process for Variances
1. Upon written request from a municipality or county, the Department of Corrections shall, within fifteen (15) working days, provide the municipality or county with a variance application which must be completed when applying for a variance. The Variance Application shall include, but not limited to, the following information: Section I: Name of Department and Facility for which a variance is being requested;Section II: Type of facility;Section III: Current variances, if any, granted to that facility;Section IV: Specific standard for which a variance is being sought;Section V: Length of time Variance is requested for; (Variances may be granted for up to a two year period.)Section VI: Summary of non-compliance;Section VII: Detailed description of variance sought and the efforts which are underway to achieve compliance with the standards.2. A municipality or county shall submit the completed Variance Application to the Jail Inspector who will review the application.3. The municipality or county seeking a variance must provide public notice to solicit public comment on its application. Such notice must include the following: posting notice of its request in a conspicuous place within the municipal or county detention facility and posting a legal notice in a newspaper of general circulation in the county in which the facility is located. The municipality or county shall provide proof of public notice and any public comments received as a result of this process to the Jail inspector.4. If the Jail Inspector determines that the application is unclear or incomplete, he will return the application to the municipality or county and may assist in completing or clarifying the application.5. If the Jail Inspector determines it is necessary, he will make a visit to the site to review the request further.6. The municipality or county may make a written request for an opportunity to present its position to the Jail Inspector orally, provided such a request is made within fifteen working days of submission of the written application to the Jail Inspector. The municipality or county will be notified of the time and place for such a meeting at least five days prior to the meeting. If a meeting is requested under this section, it will be considered part of the application process and an application will not be final until after the meeting has been conducted.7. The Jail Inspector will issue a written decision on a request for a variance within thirty (30) working days of receipt of a complete and final application.8. The Jail Inspector shall advise the municipality or county of the provisions for appeal of his decision to the Commissioner.Procedure B. Criteria For Granting A Variance
1. The Jail Inspector shall consider the following factors in deciding whether to grant or deny a variance: a. would the variance result in diminishing the safety, health or security of staff, inmates or visitors;b. are efforts underway by the municipality or county to achieve full compliance;c. could the intent and spirit of the, standard be attained by the municipality or county through other means;d. will the granting of a variance have an impact on other facilities and on the credibility of the standards;2. The Jail Inspector may grant or deny the application in whole or in part, or way make amendments or special conditions as a condition of approval of the variance.Procedure C. Appeal Of Decision
1. A municipality or county may initiate an appeal of the Jail Inspector's decision by making a written request for a meeting with the Commissioner of Corrections within fifteen (15) working days after receiving written notification of the Jail Inspector's decision.2. Upon receiving a request for a meeting, the Commissioner shall schedule a meeting at a time and location convenient for all parties.3. The Commissioner may, at his discretion, refer an appeal to the Jail Advisory Commission for review and for a meeting with a representatives of the. municipality or county. If such a referral is made, the Jail Advisory Commission will provide its recommendation to the Commissioner within fifteen (15) working days after receipt of the referral or the meeting held.4. The Commissioner will provide the municipality or county with at least a five day notice of any meeting scheduled pursuant to this section.5. During the meeting, the representatives of the municipality or county will be allowed to present their ease directly to the Commissioner of Corrections who will then reconsider the application. Appropriate and creative solutions should be explored which will satisfy the Department's standards- while allowing the municipality or county needed flexibility.6. The Commissioner may consider the recommendations of the Jail Advisory Commission and shall make- a decision to grant or deny a municipality's or county's application for a variance.7. The Commissioner of Corrections shall give the municipality or county written notice of his decision on the appeal within thirty (30) working days after the meeting. This decision shall be considered final. Re-application for the same variance will not be considered for at least two (2) years. C.M.R. 03, 201, ch. 10, subsec. 201-10-30.7
EFFECTIVE DATE (Chapter 10): February 18, 1984
AMENDED: August 7, 1985 - Section 30.7
EFFECTIVE DATE (ELECTRONIC CONVERSION): October 30, 1996
NON-SUBSTANTIVE CORRECTION: November 15, 1998 - this Section split off into a separate file.