Filipino Nurses Vindicated but Fight Not Over, Lawyer Says

Published on January 31, 2009

The Avalon 10, a group of nurses who are part of the famous Sentosa 27++, were at last vindicated after being accused of a crime they did not commit. But their fight for justice and compensation is not yet over – not until the true culprits are punished in the full extent of the law.

BY NOEL SALES BARCELONA
Correspondent
MIGRANT WATCH
(Bulatlat.com)

Felix Vinluan, legal counsel for the Avalon 10 – the Filipino nurses in New York who were charged last year with endangering their patients through abandonment of duty – happily told this reporter that the case filed against them were dismissed by the Second Department of the New York (NY) Supreme Court.

“Finally, the Court heard and agreed with our arguments that prosecuting me and the nurses violated our constitutional rights,” Vinluan said.

The decision was released on Jan. 13, 2009, or almost six months after Vinluan and his clients – who are known as the Avalon 10 because they used to work at the Avalon Gardens health facility – petitioned against their accusers.

Gina Garboni, secretary-general of Migrante International, agreed with Vinluan that with the legal victory, the Avalon 10 has been vindicated.

‘This victory is, indeed, a vindication for the nurses,” Gaborni said. “This is a glimmer of hope for migrant workers who are up against an unscrupulous giant such as Sentosa Care.”

Elated, yet feelings are ambivalent

However, the lawyer said, his feelings are quite ambivalent for he believes that the persecution against them – who are the real victims of injustice and discrimination in the Land of Milk and Honey – will not stop and the full measure of justice has yet to come.

“While I may be elated and feel vindicated about this decision, I would like to say that my feelings are quite frankly ambivalent. For I know that even with the issuance of this decision, the people who caused this prosecution and who committed the acts of illegal recruitment, fraud in the immigration process, human trafficking and involuntary servitude, are still out there – perhaps victimizing more of our fellow kababayan (compatriots) who would like to migrate to the United States to better their and their families’ lives. This Enterprise continues with its operations, no thanks to the POEA (Philippine Overseas Employment Administration) and the powers that be that rescinded the suspension order of Sentosa Recruitment Agency (SRA),” he said.

Gaborni went further, saying, “The Sentosa Recruitment Agency must be shut down!”

No abandonment of duty

“The New York State Education Department ruled that our nurses did not abandon their patients. The Court (Appellate Division) ruled that our nurses did not commit the crime of endangering the welfare of their patients. In fact, the Court made findings of fact that support our nurses’ contention that they were hoodwinked by their recruiter and its US nursing home-principals into believing that they would be directly hired. However, they were actually made agency nurses of Sentosa Services or Prompt Nursing Employment Agency. Thus, the nurses’ contracts were breached by the contracting nursing homes. “Not having signed any contract with Sentosa Services or Prompt, the nurses had at-will employment with their actual employer (Sentosa Services). And being at-will employees, they could resign anytime,” he explained to this reporter.

In a 13-page decision, Justices Fred T. Santucci, J.P., Daniel D. Angiolillo, and Cheryl E. Chambers, said that the Avalon 10’s rights, pursuant to the Thirteenth Amendment of the US Constitution, had been violated.

“Guided by these principles, we conclude that this is not an exceptional case justifying a restriction of the petitioners’ Thirteenth Amendment rights,” read a part of the decision.

“The nurses in this case were engaged in private employment rather than the performance of public service. Moreover, while they possessed the education and training necessary to care for chronically ill patients, including children on ventilators, these skills are not so unique or specialized that they cannot be readily performed by other qualified nurses. Furthermore, although an employee’s abandonment of his or her post in an ‘extreme case’ may constitute an exceptional circumstance which warrants infringement upon the right to freely leave employment, the respondent District Attorney proffers no reason why this is an ‘extreme case’,” the ruling further read.

The justices also said, “District Attorney [John Spota] does not dispute that Vinluan acted in good faith (in advising the nurses, legally), but urges this court to conclude that his legal advice to the nurses was not constitutionally protected because he advised them to commit a crime. However, since the nurses’ conduct in resigning cannot, under the circumstances of this case, subject them to criminal prosecution, we cannot agree that Vinluan advised the nurses to commit a crime.

“More importantly, regardless of whether Vinluan’s legal assessment was accurate, it was objectively reasonable. We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect. Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice. The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing. A looming threat of criminal sanctions would deter attorneys from acquainting individuals with matters as vital as the breadth of their legal rights and the limits of those
rights. Correspondingly, where counsel is restrained, so is the fundamental right of the citizenry, bound as it is by laws complex and unfamiliar, to receive the advice necessary for measured conduct.”

The justices also explained that, by placing an attorney in the position of being required to defend the advice that he or she has provided, the state compels revelation of, and thus places within its reach, confidential communications between attorney and client.

“Such communications have long been held to be privileged in order to enable citizens to safely and readily secure “the aid of persons having knowledge of the law and [skill] in its practice,” the decision said.

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