CNMI Shut Out

October 8, 2010

The CNMI government may be “shut down” because of the failure to pass a balanced budget, but for a long time it has also been in “shut out” mode. The current rogue Fitial Administration appears to think that it is above the law; has to answer to no one; can fabricate false scenarios and promote lies (think DOI Report); withhold documents even in OGA requests; refuse to share data and statistics; and block entry to federally funded facilities to federal officials.

On October 6, 2010 the Northern Marianas Protection and Advocacy Systems, Inc. through attorney Matthew Holley, filed a complaint for declaratory and injunctive relief against Department of Community and Cultural Affairs Secretary Melvin Faisao in his capacity as supervisor of the Kagman Juvenile Detention and Corrections Facility.

NMPASI is tasked by Congress with protecting and advocating the civil rights of persons with disabilities.  In that official capacity that agency requested to inspect the juvenile detention center. The complaint alleges that Faisao and the representing attorney from the Office of the Attorney General, AAG Tom Schweiger, failed to return phone calls and messages requesting that NMPASI be allowed to inspect the facility. From the complaint:
7. Because many persons with disabilities living in private and public institutions suffer from abuse and neglect, Congress has mandated that each state have a "protection and advocacy system" designed to have independent access to such institutions in order to detect and prevent such abuse and neglect. Because the CNMI receives federal funds under the P&A Acts, it is required to establish systems "which are designed to -protect and advocate the rights of individuals with mental illness; and investigate incidents of abuse and neglect of individuals with mental illness ..." see e.g. 42, U.S.C. §10801 et. seq. NMPASI has been designated by the CNMI to be that system.

8. There have been numerous violations reported concerning the Facility this past year, some publicly and others privately. One such violation was reported this past June, when Federal Bureau of Investigation agents arrested a guard at the Facility who allegedly used his position of authority to force detainees to engage in sex acts. Another is that even though the new school year has begun, juvenile detainees at the Facility are not receiving the required education, nor any education for that matter. Additionally, there have been reported violations that have not been made public due to confidentiality reasons.

9. At this time, NMPASI has one client detained at the Facility who has requested NMPASI’s services. NMPASI has worked with the juvenile's attorney to assist the juvenile.
The complaint continues to outline a disturbing documented list of NMPASI’s attempts to contact AAG Schweiger and others to gain access to the facility without success. The first such attempt was made in July 2010 with a phone call to Schweiger that he ignored. He ignored three other phone calls made in July and August 2010 and an August 27, 2010 mailed and faxed letter.

NMPASI contacted JDF Supervisor Jaclyn Mendiola on September 13, 2010 and was told to send her an email with the request. The email was ignored, so another was sent on September 16, 2010 and she replied telling NMPASI to contact Faisao. From the complaint:
13. On September 16,2010, after not receiving a response, the undersigned sent another email to supervisor Mendiola. She responded via email, informing the undersigned that she is referring the matter to Defendant. The same day Defendant sent an email to the undersigned simply stating to call the Attorney General's Office and "ask to speak to the responsible/designated Assistant Attorney Genera1." The undersigned responded by asking for the specific name of the "responsible/designated" AAG as numerous attempts had already been made to contact AAG Schweiger.

14. On September 17,2010, Defendant Faisao replied to the specific request by merely stating, "[a]s it was indicated earlier in my previous e-mail correspondence and re-directed or re-iterated again ... call and ask ..."

15. On September 17, 2010, the undersigned called and verified, as anticipated, that AAG Schweiger is the designated AAG for the Facility. Subsequently, the undersigned sent a final email to Defendant explaining that no more attempts to contact AAG Schweiger would be made in light of the unanswered messages, letter and fax by AAG Schweiger. A ten (10) day notice was given to Defendant to make the proper arrangements or action would be taken through the court system. Defendant responded by stating he had forwarded the undersigned's email to the Attorney General's Office.

16. Since the last correspondence on September 17, 2010 with Defendant, neither Defendant nor anyone from the Attorney General's Office has contacted NMP ASI concerning the matter.

17. Under the above-described circumstances, the Defendant has acted in his official capacity to create and maintain a system that hampers the Congressionally-mandated function and duties of NMPASI at the Facility. Plaintiff has no obligation to exhaust administrative or other remedies in this case. Nevertheless, Plaintiff spent considerable time attempting to negotiate with Defendant in an effort to eliminate Defendant's illegal policy and practice of denying to NMPASI full, complete, meaningful and timely access to the Facility. These attempts of negotiating have been unsuccessful.
The irresponsible and negligent officials and attorneys should be terminated. AAG Schweiger and Secretary Faisao are being paid by public funds, and their offices are federally funded. This lawsuit will cost the bankrupt CNMI government more money that is not available. More importantly their negligence has potentially put a child at-risk. Are they not aware that the parents can also file civil lawsuits against the CNMI government?

A Kagman Juvenile Detention Center guard, Tyrone Fitial, has been accused of sexually assaulting minors at the detention center.

The federal government needs to audit and investigate every single federally funded CNMI office, department and agency.

Read the complaint: