Judge restores authority to directors

by Mindy Aguon

Guam - When the District Court appointed the federal management team in March two years ago, the team said it would cost upwards of $25 million and 36 months to bring the Government of Guam into compliance with an amended permanent injunction. With some $4.8 million in the bank, the federal management team reported today that its job will be done before the end of the year.

The statement was made in light of numerous efforts to have the team removed completely.

District Court Chief Judge Consuelo Marshall has denied motions to replace the federal management team and instead has decided to allow the directors of the Department of Mental Health and Substance Abuse and the Department of Integrated Services for Individuals with Disabilities to take back management of their respective agencies. The authority was taken away more than two years ago when the court appointed the federal management team. 

During a status hearing this morning, FMT member Dr. James Kiffer announced that there is an end in sight, giving a timeline of when he expects the government will be in compliance with the amended permanent injunction. "We've put procedures in place to satisfy each sentence. That completes it. I think we can do that and then make a transition plan and a sustainability plan, all of that by the end of the year, yes," he summarized.

'I think the transition is going to happen fairly quickly; actually, I've been working with the directors and the transition will happen relatively quickly since we've laid the groundwork for it and I think over the next four months and I think my work is done at the end of four months," added Kiffer. He maintains he has taken the injunction apart sentence by sentence to ensure compliance and begin transitioning management back to the hands of government agencies. 

He informed the court that 33 of 39 protocols have been completed and the adult inpatient units have been consolidated, saying, "I think it was a personnel issue and some organizational issues and procedural issues for policies and procedures and management issues and i think those have been addressed. We've hired probably over 120 people. We have a few more to hire to make sure it all happens. We've got policies in place now that provides guidelines and I think that's what was necessary and I saw that before and I think that's what we've done."

Today's order was extremely disappointing for the plaintiff's attorney, Daniel Somerfleck, who filed the case more than 11 years ago in an effort to force the government to provide the most basic care to individuals with disabilities.  Somerfleck filed several motions for the removal, calling the FMT "tragically ineffective with rudderless leadership", and "wasting hundreds of thousands of dollars". Somerfleck said, "Hopefully under the judges wisdom the department will correct their house and we will move forward."

The judge issued an order this afternoon transferring the management of DISID back to the director effective immediately on the caveat that director Ben Servino transfer funding and administrative responsibilities of the community habilitation and respite programs to the Department of Mental Health and transferring the management of Mental Health back to director Wilfred Aflague on December 3 to allow for a transition with the federal management team.

"Miracles can happen," said Somerfleck. "The judge made a ruling. It's not my place to second-guess the judge's thoughts. As far as where we go from here, we'll have to see. Dr. Kiffer came forward and said by January everything will be fixed. I don't see that as even being possible seeing as how we still have four people living off-island, but maybe he's got some plan."

Even the governor and the Attorney General's Office moved to have the federal management team removed, saying the team had done little to advance the progress of the agencies. Kiffer noted, "Certainly, I think it's over-criticism, sure! I think we need the support of all stakeholders.

"The idea has been not to get wrapped up in their criticism and not to involve myself with it. I'm kind of like, 'Yup, there they are', but I know what I'm supposed to do and I'm going to do it."

Judge Marshall said she doesn't agree that nothing was done to advance the care of the target population, which is now estimated to be 212 individuals.  The court noted that people have been hired, homes have been found and individuals have been placed in residential homes.  In issuing her decision, Judge Marshall said she wanted to give the directors an opportunity to manage their departments.  If they are unable to, she may decide to appoint another court manager.

Both directors say they're up to the challenge.

The judge also issued several other decisions, denying Somerfleck's request to be appointed a court monitor finding it inappropriate but stressing the attorney should be given access to best serve his clients. The judge noted that Senior Pro Tem Judge Elizabeth Barrett Anderson was highly qualified to be a court manager but wants to give the directors an opportunity first.

Governor's legal counsel Maria Cenzon also noted that the Calvo Administration intends to appoint a deputy director to the Department of Mental Health to assist Wilfred Aflague.