SWANSON V. CONCORDIA NURSING HOME

Quis custodiet ipsos custodes? *

“Quis custodiet ipsos custodes?” is a Latin phrase found in the work of the Roman poet Juvenal. It is translated as, "Who will guard the guards themselves?" This phrase is used generally for the philosophical question of how to hold the powerful accountable. It is a central concern of democracy, namely that the government should serve the people and that its powers must be circumscribed by the rule of law. In return, the people must always have authority to watch over the behavior of their leaders.

It is tempting for an attorney general to ignore abuses of power by administrative agencies by claiming that the “government” is the client and using the attorney-client privilege as a shield of silence to hide government lapses. Lori Swanson bucked this temptation as Attorney General and, before that, while serving as Deputy Attorney General—understanding her role to be the “People’s Lawyer.” As discussed elsewhere on this website, she took solemnly her oath of office to support and defend the Constitution and bear truth and allegiance to it, especially when the government goes astray.

In 2004, Swanson was as Deputy Attorney General when it came to light that the Minnesota Department of Corrections was placing predatory sex offenders in nursing homes, never advising the other residents of the exposure to such danger. Employees of the Concordia Nursing Home reported to the Attorney General’s Office that there were multiple incidences of sexual contact and other abuses between sex offenders and aged and infirm residents. They made complaints about the activity, but the nursing home administration, the Minnesota Department of Corrections, and the Minnesota Department of Health ignored their pleas. The incidences included the following allegations:

• A 44-year-old level two sex offender with a history of sexual conduct with vulnerable adults was admitted to the nursing home from Oak Park Heights penitentiary and stalked a female resident until the staff discovered him hovering over her in her room.
• A 54-year-old male who had been charged with three felony counts of sexual conduct in the first degree had sex with a nursing home patient whose physician stated that she was unable to make informed sexual decisions. The nursing home categorized the encounter as “consensual sex.”
• The nursing home houses a 26-year-old who had been charged with six counts of second-degree criminal sex in the second degree and who court papers referred to as a pedophile. A patient with borderline intelligence and schizoaffective disorder was admitted to an emergency room with report of abdominal pain from being digitally penetrated. Photographs of the patient in nudity were found in the sex offender’s wallet.

Neither Concordia nor the Minnesota Department of Corrections advised the residents or their families of the danger presented by the offenders.

Concordia was unsafe in other ways. It had rats and cockroaches. Live rats were trapped in the facility, and rat feces were found in the drawers of patients. Some staff members refused to enter certain patient rooms because of the rats. Some residents with dementia were told that the rats were really bunnies.

Inquiry by the Attorney General’s Office revealed that two state agencies failed to monitor or address the situation. The Minnesota Department of Corrections, which placed many of the sex offenders, showed little effort to inspect or audit the nursing home. The Minnesota Department of Health, which regulates nursing homes, was silent.

Following the dogma of “Who will guard the guard themselves,” Lori spearheaded a lawsuit against the nursing home in 2004, bringing to light the haphazard approach of the two agencies. As a result of the lawsuit and attendant publicity, the state legislature held a hearing on the matter, and the Commissioner of Corrections acknowledged that the agency had not understood how widespread was the act of placing sex offenders in nursing homes.

It eventually was discovered that other nursing homes were involved. Concordia was soon closed, and sex offenders were soon removed from all nursing homes but one: Ah-Gwa-Ching in Walker Minnesota, which housed offenders in a secure unit.

Quis custodiet ipsos custodes - who will guard the guards themselves? Swanson believed, in a democracy in which government power depends on the consent of the people governed, the answer must lie in the transparency of the legal process and the rule of law. Justice lets in the light and allows the public to scrutinize the workings of the government, for good or for ill.

REFERENCES:

1. State v. Benchmark Healthcare of Minneapolis, Inc. d/b/a Concordia Care Center, Hennepin County District Court. Court file No. MC-04-007963
2. http://www.cbsnews.com/htdocs/pdf/concordiacarenursinghome.pdf
3. http://news.minnesota.publicradio.org/features/2004/05/26_zdechlikm_offenders/
4. https://www.consumeraffairs.com/news/index/2004/05/