Sins of Commission
A few Sunday mornings ago, Mary and Ernie Howard found a sitter for their three children and drove to American Legion Post 75 in north Phoenix.
The Glendale couple didn't know anyone at the Sunnyslope chapter, but had been invited to attend a flag-raising ceremony in honor of Mary's late brother, Vietnam veteran Donald Ellison.
The idea had come to legion regular Bob Hancock after he read a New Times story ("A System Gone Mad," October 24) about Donald's death on July 26. Donald collapsed on a South Phoenix street in 109-degree heat, one day after his release from the Maricopa Medical Center psychiatric ward.
The official cause of death was "hyperthermia secondary to environmental heat exposure." He was 48.
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The story detailed Donald's life--his upbringing in rural Gila Bend, his traumatic experiences as a 19-year-old Army machine gunner in Vietnam, his struggle with profound mental illness that doctors linked to his war experiences--and his seemingly preventable death.
It described how two agencies responsible for Donald's welfare, the Arizona Veterans Service Commission and the mental-health authority known as ComCare, had failed in their missions.
"When I read it, I felt a great deal of respect for Donald, and sadness, too," Hancock said before the flag-raising ceremony. "It just didn't sound like he got a square deal from the people taking care of him."
Post 75 wears its biases proudly: Men using the urinal relieve themselves on a likeness of "Hanoi" Jane Fonda. Slogans about God and country dot the walls. The American flag is revered.
Shortly before noon, Commander Ed Sherman led members of Post 75's honor guard--five men and three women--into the brilliant sun.
As the Howards looked on, the guard solemnly performed its duties. One man gently unfurled a worn American flag and hooked it to a pole that towers over the building.
"We raise this flag in honor of Donald Ellison, Private First Class and Vietnam vet," Hancock intoned.
A rifleman fired a blank into the air as Hancock raised the flag.
"That's it," he said, after a moment's reflection.
The simple tribute to her brother warmed Mary Howard's heart. She's the last of Donald's eight surviving siblings who still lives in Arizona, and had witnessed his mental deterioration and depressing trek through jails, mental wards and the streets of Phoenix.
A Maricopa County official had notified Howard of her brother's death, but not until six days after he'd collapsed.
She'd then learned that the Arizona Veterans Service Commission (AVSC)--Donald's guardian/conservator and legal equivalent of a parent--hadn't known he was dead. Neither had ComCare, a private agency funded to treat Donald and the county's other 13,000 seriously mentally ill.
ComCare had placed Donald alone in a Phoenix apartment after his release from the psych ward, five days after a supervisory-care home had turned him away because he was too unstable.
Records show ComCare employees who were supposed to monitor Donald's antipsychotic-drug intake instead slipped his pills under his apartment door at least twice after he didn't answer. (He was dead.) ComCare case managers failed to notify police or AVSC of his suspected absence, even after they hadn't seen him for six days.
Records also indicate that Donald's AVSC social worker had no contact with the vet after July 19--the day the supervisory-care home rejected him. The social worker didn't contact Donald after county doctors agreed with ComCare that he'd "stablized" and okayed his July 24 release from the psych ward.
"I'm no expert," Mary Howard said after the flag ceremony, "but I know when something stinks. The way they did Donald stinks. I hope what came out about how they treat people like Donald just doesn't get swept away."
Developments in the wake of "A System Gone Mad" make that unlikely:
* The state's Department of Behavioral Health Services has undertaken an investigation of ComCare's role in Donald's death.
* A Maricopa County court commissioner has ordered AVSC to appear December 10 to explain why it apparently misspent thousands of dollars of Donald Ellison's money. The county's presiding Probate/Mental Health judge also has asked accountants to begin auditing AVSC's handling of its wards' money.
* A top AVSC official who was recently demoted admits the agency is slipshod and routinely breaches its legal duties to its wards.
Not everyone is pleased Donald Ellison's sad saga has come to light. The naysayers include two of the seven AVSC commissioners who oversee the agency.
"I feel the article was truly inappropriate," says Sierra Vista resident Carroll Fyffe, immediate past national president of the Military Order of the Purple Heart. "It subjected the family to an awful lot of pain in my view. It was unfortunate that the man died, but it happened and I have no further comment. Mr. Gallion speaks for the commission as far as I'm concerned."
"Mr. Gallion" is AVSC executive director Norm Gallion, who spoke briefly with New Times before the first Ellison story.
"We do care about the veterans we serve," he said, promising to provide specific answers about the Ellison case. He didn't, and hasn't provided answers to subsequent queries.
"There wasn't a lot of substance against the commission in my opinion," says AVSC commissioner Neal Sundeen, a Phoenix attorney affiliated with the American Legion. "It was a sad story, but I think the focus was ComCare, not the commission. We're not a medical agency, and we didn't shove the drugs under the door. If we erred on the accountings, we'll fix it."
But Homer Townsend, an AVSC commissioner and a national vice president of the Paralyzed Veterans of America, sees it differently.
"Nobody wants to take responsibility for something like this," says the Mesa resident, who was appointed to the volunteer post by the governor this year. "I've been around long enough to say 'no comment' and go to Mr. Gallion for answers. That's the party line. But it looks like the left hand in this system doesn't know what the right hand is doing.
"I don't want to put less importance on Mr. Ellison's death, but it isn't an isolated case. I'm speaking as a guy who volunteered for years down at the VA Hospital and saw guys getting the brush-off on a regular basis."
As for ComCare, it operates under a no-comment blanket of "patient confidentiality," even when its patient, Donald Ellison, is dead and his survivors want answers.
A veteran ComCare case manager says Donald's death has sparked little dialogue at her office.
"We try to do good things for people, and I'd like to think we succeed sometimes," says the case manager, who requested anonymity. "But when we seriously blow it, we should chop off some heads--mine included, if I deserve it--and do better next time. I've heard nothing but spin control."
Veterans' Administration hospital psychiatric nurse Randy Brumm, who knew and treated Donald Ellison for years, remains irate about the vet's death.
"How the hell could this happen?" says Brumm, president of the 1,500-member American Federation of Government Employees Local 2382. "He was paying someone--the AVSC--to take care of him. Instead, they let ComCare send him to his goddamned death. AVSC and ComCare are crazy if they thought Don was gonna make it on his own, cooking and cleaning and going to church on time."
Days after "A System Gone Mad" was published, Brumm attended a meeting chaired by a top aide to U.S. Senator John McCain. Also in attendance were officials from ComCare and AVSC--including director Gallion--and representatives from area mental hospitals. (Another participant, who requested anonymity, corroborates Brumm's account.)
"McCain's guy [Tom McCanna] was talking about how bad the publicity was and how we all had to work together, et cetera," Brumm says. "ComCare and AVSC started to get after it--playing the blame game, pointing fingers. It ended with a decision to have another meeting real soon."
Barbara Valdez is not a whistle-blower or rabble-rouser by nature.
Only after seeking counsel of family and friends did the reserved Glendale native agree to tell New Times about her stormy tenure at AVSC.
"The Legislature and the Governor's Office should be investigating our agency," says Valdez, an attorney hired in September 1995 to run AVSC's fiduciary division.
The 12-person unit is legally responsible for its wards' financial obligations and physical well-being.
"The waste of our wards' assets is staggering," Valdez says. "Mr. Gallion has no clue what a guardian/conservator's responsibilities are. The only oversight is done at the courts, but the judges only monitor financial mismanagement in reaction to a specific complaint. I hate to say this, but what happened to Donald is going to happen again and again unless there are big changes . . ."
It would be a mistake to dismiss Valdez's comments as those of a disgruntled employee. What she says comports with what several jurists and county officials also are saying.
"Barbara was trying to protect the integrity of the system, and she got shot in the foot," says Pima County public fiduciary Anita Royal. "That agency has some serious, serious problems."
The Arizona Legislature established AVSC in 1951 to provide vets and their families with a legal guardian and/or a conservator when needed.
Most of the state agency's 550 or so wards are incapacitated and, like Donald Ellison, susceptible to all manner of abuse.
"I thought she was tailor-made for the job," says Pam Franks, presiding judge of Maricopa County's Probate/Mental Health courts. "She's a caring, dedicated individual, and there are few attorneys in this county with more nuts-and-bolts knowledge about guardianships and conservatorships."
Valdez had served as counsel to the Probate Court before moving to AVSC with high hopes that the agency would be receptive to reform.
"The commission has had a bad reputation at the courthouse for years," she says. "Their annual accountings were routinely late, and court commissioners would question them about how much they really were doing for their wards, such as how often they visited them and other things."
One such jurist was Commissioner Kenneth Reeves, an expert in probate law now assigned to Juvenile Court.
"I did say in open court that I'm a vet and I'm not sure I'd want the Veterans Service Commission managing my affairs," says Reeves, who, coincidentally, served in the same Vietnamese province--Quang Tri--as Donald Ellison. "It came out of frustration after seeing many cases in which AVSC did not go to bat for wards and how rarely the caseworkers visited wards."
Valdez says her efforts to correct AVSC's most visible shortcomings--slipshod financial accountings, haphazard case management and an oppressive caseload--fell on deaf ears.
"AVSC says it can provide services it can't provide," she says. "If you take on new cases that you can't handle, you're breaking the law. But they've gotten away with it. Mr. Gallion doesn't understand the definition of the word 'fiduciary.'"
The word comes from the Latin fidez, which means faith, honesty, confidence, trust, veracity, honor. The fiduciary relationship, according to Black's Law Dictionary, should be "founded on trust or confidence reposed by one person in the integrity and fidelity of another . . . and scrupulous good faith and candor."
Valdez says her employer violated that trust with Donald Ellison, financially and personally: "The proof of that is in court records and our records. We promised Donald, his family and the court that we could take care of him. They took us at our word. But we obviously didn't come through. We mishandled his money and we just let ComCare take control of his life."
AVSC carries a heavy caseload. Its social workers have been responsible for more than 100 wards each, far more than the 40 recommended by the National Guardianship Association.
Director Norm Gallion denies the caseloads are too burdensome.
"I don't think the caseloads are impossible to keep track of," he says. "We're on the high side, but we're not that far out of line with other fiduciary programs nationwide. And we have additional staff coming on."
Valdez says Gallion won't scream poverty and lack of staff because he doesn't want the entities that refer cases to his place--the Veterans' Administration, the Public Fiduciaries and others--to suspect AVSC can't do the job.
"When we turn down cases, we're turning down revenue," Valdez says. "That's the bottom line, not the issue of whether we can properly do the job. And since no one has ever really questioned AVSC about much of anything, why not take on as many cases as possible?"
Arizona law allows AVSC to charge an annual conservator's fee of up to 5 percent of a ward's income. That meant about $1,000 annually from Donald Ellison into AVSC's coffers and, theoretically, that much less it would have to request from the Arizona Legislature.
(AVSC's operating budget for fiscal 1995-96 was $3.85 million, with $2.46 million of that going toward the Arizona Veteran Home. The program is funded by fees charged to the wards and by taxpayers.)
Salaries of AVSC social workers start at $21,000 annually, a pittance when considering the critical decisions they make daily involving scores of wards. Barbara Valdez recognizes that, but she also saw laxness in some employees.
"I had one social worker who didn't even know if one of his wards was an amputee or not," she says. "He'd supposedly been looking after the man for a few years. I said, 'How can't you know this?' He came up with all kinds of excuses. Turns out the ward was a double amputee. I was shocked by the lack of accountability."
The issue of caseloads came to a head shortly before Donald Ellison died last July, when Pima County public fiduciary Anita Royal suggested a moratorium on client referrals to AVSC.
"I thought I had an ethical duty to say something to Barbara Valdez," recalls Royal, who is an attorney. "I felt her agency was committing malpractice based on what I was seeing. I ended up telling Mr. Gallion flat out to look at his caseload numbers. He didn't want to hear it. He just doesn't understand liability issues, that if something bad happens to someone on my watch, my county's going down."
Valdez assumed she'd done Gallion a favor by calling attention to the agency's lack of resources.
"But he told me, 'We do not refuse any cases, period,'" Valdez recalls. "He said, 'You shouldn't have done that.' It was the beginning of the end for me."
In late August, Valdez says, Gallion asked for her resignation, citing unspecified communication problems with the staff and an alleged lack of leadership skills.
Valdez wouldn't quit.
The impasse continued until late September, when Gallion demoted her--without a commensurate cut in pay. These days, Valdez spends her days completing paperwork on long-closed estates.
Donald Ellison's death had no obvious impact inside the Arizona Veterans Service Commission. AVSC director Gallion issued no memos, held no meetings to assess what had gone wrong.
"Sure, everybody felt it shouldn't have happened," Barbara Valdez says. "We felt ComCare had screwed up by placing Donald into an apartment and then slipping the meds under a door. But we were his guardian/conservator--his legal mom and dad--and we'd passed the buck."
Gallion apparently also failed to inform the agency's commissioners about Donald Ellison's death. Four commissioners say they learned of Donald's death by reading New Times.
"This has been kind of a rude awakening for me," says Terry Nolan, a northern Arizona businessman and a national board member of the Vietnam Veterans of America.
"I just didn't know the nuts and bolts of our guardian-conservator role. As a commissioner, I think I'm responsible for what happens to the vets in our care, regardless of anything bad another agency may have done. It's a shame it took this for me to become aware of some things."
Nolan, appointed to the commission this year, says most discussion at the board's meetings revolves around the Arizona Veteran Home, also headed by director Gallion.
The 200-bed nursing home opened in September 1995 at Third Street and Indian School Road in Phoenix. The $14 million facility has been plagued by cost overruns, lower-than-expected census and personnel problems, and has dominated much of Gallion's time.
But there's no place for seriously mentally ill vets of Donald Ellison's ilk at the shiny new facility, though his disability income of about $2,000 per month would have allowed him to pay his own way.
People familiar with Donald's plight say it's cruelly ironic that authorities deemed him stable enough to live alone in an apartment, but too unpredictable to reside at a nursing home for military veterans.
Norm Gallion claimed before the first Ellison story was published that he didn't know the details surrounding Donald's death. But Barbara Valdez says she pieced together what had happened--and it chilled her.
It was Valdez who took the call from Mary Howard, Donald's sister, informing AVSC of his death. And it was Valdez from whom Howard later demanded Donald's case file.
"I was shocked we hadn't known he died," Valdez says. "Then, after [Donald's social worker] Gary Warner gave me his case notes, I knew something was really, really screwed up."
She's talking about two things:
Warner's notes indicate he didn't check on Donald's welfare for days before, and never after the vet's release from custody.
Then, in an apparent effort to deflect blame from himself and AVSC, Warner's notes dated July 29 summarize phone messages that a ComCare case manager allegedly left for him--". . . ComCare had spoke to Donald through the door on Saturday, 7-27, and that he was not doing well . . . Donald passed away on 7-26-96."
Valdez believes the document is phony, because neither she, Warner nor anyone else at AVSC learned of Donald's death until July 31--two days after Warner's accusatory case note.
Warner did not return a message requesting comment.
"I'm sure Mrs. Howard suspected we were covering our butts, and it was true," Valdez says. "I wanted to tell her, 'We've got a problem here, ma'am,' but I just kept my mouth shut. That's something I'll have to live with."
Randy Brumm is blunt, practical and compassionate, traits valuable to a psychiatric nurse and union leader.
He's also outraged about what happened to Donald Ellison.
"When Donald was crazy, he was real crazy," says Brumm, who has worked at the Phoenix VA Hospital for two decades. "There were times I had to get down on the ground with him, subdue him, 'cause he was out of it. But when the meds were clicking, you could see another part of him. He was always crazy, but he'd give another vet his last cigarette if the other guy really needed it. He was part of the family."
No stranger to the labyrinthine mental-health "system," Brumm sees the Ellison case as horrific, but not exceptional:
"ComCare makes one awful decision after another about where to put all these SMI [seriously mentally ill] folks. They base their bullshit on supposed marching orders from the Arnold v. Sarn [class-action] case, which says we've got to put SMI back in the, quote, community. Their idea of stable is different than the rest of the world's, partner.
"AVSC had the legal duty to tell ComCare where to stick it--'It's our ward, and he's just not safe on the streets!'--but they really don't seem to care where their wards are. . . . Anyone who had anything to do with Donald Ellison going down should be fired, at the least."
On October 31, the state Department of Behavioral Health Services initiated an investigation into ComCare's role in Donald's death.
BHS is expected to probe ComCare's role in Donald's release from the psych ward, the propriety of placing him in an apartment, leaving drugs at his apartment when he didn't answer the door, and not notifying proper authorities of his absence.
State rules provide for several possible sanctions, though it remains to be seen if the BHS investigation will have teeth.
Also, at a December 10 hearing before Commissioner Robert Colosi, AVSC and its attorney, Harold Merkow, will be compelled to answer questions about the apparent mishandling of Donald Ellison's money.
However, it is beyond that hearing's scope to consider other glaring issues raised in the Ellison case.
Ultimately, AVSC and ComCare--which failed as sentries for a most vulnerable veteran--are likely to carry on as if Donald Ellison never existed.
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