FORMER GUAM GOVERNOR ORDERED TO REPAY GOVERNMENT

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Gutierrez liable for $300,000 of unauthorized payments

By Brett Kelman

HAGÅTÑA, Guam (Pacific Daily News, June 5, 2009) - Former Gov. Carl Gutierrez must return $300,000 of government funding he issued to a Guam Memorial Hospital doctor in 2001, according to a ruling released yesterday by Superior Court of Guam Pro Tem Judge Richard Benson.

During the civil trial, Assistant Attorney General Benjamin Abrams argued that Gutierrez approved a settlement with Dr. Vivien Batoyan despite her never having filed a government claim against the hospital.

Two $100,000 payments were made while Gutierrez was running the hospital, before a settlement was even signed. One $100,000 payment was made while Dr. Davina Lujan was administrator, after Gutierrez signed a settlement.

Benson's ruling states that Gutierrez must return $300,000 and Lujan must return $100,000. They are jointly liable for $100,000.

Benson's ruling states that the prosecution provided "credible evidence" that Gutierrez instructed former GMH Associate Administrator Therese Hart to pay $300,000 to Batoyan before she filed a claim or a settlement was signed.

" ... It is outside the realm of reason to expend public money on a cause of action not yet actionable," the ruling states.

On April 25, Gutierrez testified under oath that he had "absolutely nothing" to do with the money that was paid to Batoyan before the settlement was signed.

Gutierrez couldn't be reached for comment despite three calls to his cell phone last night. A message wasn't returned.

Gutierrez served two terms as governor from 1995 until 2003, then failed to gain the Democratic nomination in 2006. He has announced that he will run again in 2010 with Sen. Frank Aguon.

Trial

Gutierrez and Lujan's civil trial lasted about two weeks in late April and early May. Benson heard final arguments May 2.

During closing arguments, Abrams said the case against Gutierrez and Lujan could set a precedent that would dissuade other politicians from spending money that wasn't theirs to spend.

Yesterday, Office of the Attorney General spokesman Eric Palacios wrote in an e-mail that Benson's decision "sends a message that government officials who manage and expend funds without proper authority will be held personally liable for those expenditures."

During trial, Gutierrez and his attorney, F. Randall Cunliffe, argued that it wasn't necessary for Batoyan to file a government claim. Batoyan had lost her hospital privileges, and although they were given back, she had received no damages.

Gutierrez testified that he knew a lawsuit was inevitable and he was saving the government money by settling.

During the trial, Abrams said he had an FBI document that included statements by Batoyan showing she discussed with Gutierrez how much money he would ensure she got from the hospital in a settlement.

The document was never admitted as evidence. Batoyan testified she didn't recall that conversation.

Abrams also theorized that the settlement was actually payment for illegal prescription drugs that were passed from Batoyan to Gutierrez through his staff, but those comments were stricken from the court record.

In March 2003, Batoyan pleaded guilty to conspiracy to illegally distribute a painkiller, according to Pacific Daily News files.

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