Robert Klitzkie, Esq.
August 5, 2018
Re:
Notice of Open Government Law violation and Sunshine Law demand
To:
Superintendent Fernandez as Executive Secretary of the Guam
Education Board(GEB) for the GEB
Because
the GEB violated the Open Government Law the action that it took in the special
meeting you called for July 10 is a nullity.
You
published notice of the July 10 special meeting of the Guam Education Board on
July 2. The notice contained no reference to my June 24 complaint. 5 GCA § 8108
requires that notices of special meetings contain the essential matters
concerning the meeting. That section reads in pertinent part:
Ҥ 8108. Special
Meeting. A special meeting may be called at any time by a public agency, by
delivering personally, or by mail, written notice to each member of a public
agency. Notice shall also be given to each newspaper of general circulation and
broadcasting station which airs a regular local news program within Guam . Such notice must be delivered personally or by mail
at least five (5) working days, and a second public notice at least forty-eight
(48) hours, before the time of such meeting as specified in the notice. The call and notice shall
specify the time and place of the special meeting and the business to be
transacted. No other business shall be considered at such meetings by the
public agency. …” [NB the use
of the words “business to be transacted.”]
The GEB’s failure to comply with the Open Government Law
makes its “decision” of July 10 a nullity per 5 GCA § 8114:
Ҥ 8114. Action Voided. Any action
taken at a meeting in violation of any Section of this Chapter shall be void and of no effect,
provided that this nullification of actions taken at such meetings shall not
apply to any commitment, otherwise legal, affecting the public debt of the
entity concerned.”
Even reference the use of the
words “personnel matters” in the July 2 notice doesn’t serve to legitimize the
action taken at the July 10 meeting even if the GEB recognizes you as having
the ability to see into the future! The GEB decision, the videos and the
minutes sent in response to my Sunshine Law request make it abundantly clear
that the Election Commission decision was the only thing considered in the
executive session at the July 10 GEB special meeting. The GEB couldn’t have
known on July 2 that it would have the July 10 Election Commission decision in
its hands on July 10. Ironically there isn’t even anything in the record of the
GEB that the Election Commission decision was ever received by the GEB.
The record shows that an unnamed
“legal counsel” was invited into the executive session. An assumption that
“legal counsel” is an attorney who can advise the GEB triggers the necessity to
comply with 5 GCA § 8111(c) (1) et seq.
the salient provisions of which are set out below with my highlights:
(c) Under no circumstances shall a
public agency hold an executive or closed meeting to discuss legal matters, impending legal matters
or legal strategies
with an attorney, except as herein provided below. All such discussions must be
held in a public meeting and minutes shall be kept and opened to the public,
except as herein provided:
(1) No such
meeting may be closed except
on the written
recommendation of the attorney, and an affirmative vote of a majority of
the members of the Board of the Public Agency to go into executive session.
5 GCA § 8111(c) (2) through (7) set out the requirements for
an executive session attended by counsel. The GEB did not comply with any of
these provisions.
A review of the proceedings shows
that somehow the Election Commission decision magically appeared in the improperly
called executive session at a meeting held in violation of the Open Government
Law. Any action taken re the petition of June 24 is void.
The opportunity for a “do over”
is actually beneficial for two reasons:
·
The Election Commission decided only one of the
two issues brought before it by the
petition.
·
I submit that the issue that was decided was so
poorly done that for the GEB to adopt it as its ratio decidendi is egregious error.
The Election Commission decided
only the 3 GCA § 8202 claim which can be described as the “ultimatum claim.”
The commission completely ignored the 3 GCA § 8206 claim which can be described
as the “payment to promote election claim.” Submitted herewith and incorporated
by reference is my Demand to Reopen Proceedings sent to the Election Commission
on July 31. That demand parses and reiterates
items from the July 24 petition. Set out below is ¶ 12. from the June 24
petition as quoted in the Demand plus a quote from the Rodriguez+Cruz press release. This quote is clearly lays out the
payment to promote election claim.
12.The
same conduct described in ¶4 of the Rodriguez+Cruz release [incorporated below
for easy reference] suggests a violation of 4 GCA § 8206, which reads: “§ 8206.
Payment to Promote Election. Any person who, with the intent to promote the election of himself
or herself or any other
person, furnishes or engages
to pay or deliver any
money or property for any purposes intended
to promote the election of any nominee or candidate, except as to the expenses
of holding and conducting public meetings
for the discussion of questions, and of
printing and circulating handbills and other papers prior to an election, is guilty of a misdemeanor.
Jon Fernandez violated § 8206.”
¶4
of the Rodriguez+Cruz release is set out below:
“DOE and the AG knew from the start that Dave was
changing his employment status so that he could legally remain a teacher while
running for public office,” Dennis said. “Even the Governor’s Office was aware
of this back in February, which is why Jadeen Tuncap put the contract over our
heads as ransom for my support of the governor’s tax bill. We took the steps to
see to it that everything was legit, and we didn't hide anything from anyone.
So for these same entities to come back and tell Dave something different, it
tells you that this ultimatum
is being given for nothing else but political considerations.”
Simply put Rodriguez+Cruz allege
that Superintendent Fernandez colluded with David Cruz re his contract so he
could stay on the payroll and run for Lt. Governor. Other paragraphs in the
Demand and Petition flesh out this argument that alleges violation of § 8206.
This claim should be decided by the GEB and not shrugged off sub silencio in the manner of the
Election Commission.
The GEB is also in position to
make its own decision on the “ultimatum claim” rather than erroneously adopting
the decision of Election Commission. An example from that decision demonstrates
the maladroitness of Election Commission’s handling of that matter. Here’s the
description from the Demand:
“Cruz lays out an unmistakable case of “ultimatum.” So when Cruz was sworn in and his testimony
taken on the matter what was his response? Dumb question isn’t it, as the Commission didn’t take any testimony.
The Commission completely stonewalled Cruz. The so-called “facts” as set forth
on page two of your letter refer to documents submitted by Fernandez seven
times. The only time Cruz appears in the “Facts” is the hearsay statement at ¶
6. Cruz is not referenced anywhere else in the “Facts.”
In the absence of Cruz’ explanation of
the use of “ultimatum” there is no legitimacy in the Commission’s decision.
Your letter uses “weasel words” to describe what can only be described as an
“ultimatum,” to wit:
·
“…that
Mr. Fernandez gave
Mr. Cruz an opportunity
to comply with the law.
·
“...Mr.
Fernandez’ indication that he may have to terminate Mr. Cruz’ contract if he did not comply with
Guam law.”
Fernandez clearly had the ability to
fire Cruz for misconduct. If he had, end of story. If Fernandez decided not to
fire Cruz, end of story (at least that story.) But when Fernandez “gave Mr.
Cruz the opportunity to comply with the law” or he would “have to terminate Mr.
Cruz’ contract”—ULTIMATUM. “Ultimatum” was brought before the Commission by the
Rodriguez+Cruz press release.”
The GEB now has the opportunity to decide both the §§ 8202
and 8206 claims on its own as befits its role as an agency independent of the
Election Commission and not slavishly follow the inept half decision of the Commission.
Quaere: if the Election Commission
had decided against Superintendent Fernandez would the GEB have been so quick
to adopt its decision?
It is respectfully requested that GEB take notice of the
papers I have submitted and make its own decision on the §§ 8202 and
8206 claims. It is also requested that Superintendent Fernandez, pursuant to
the Sunshine Law, email the following documents to me NLT COB August 9:
- Documents received
from the Election Commission re its decision comcerning Superintendent
Fernandez,
- Documents transmitting
the decision to members of the GEB.
- Emails sent or
received by any member of the GEB related to the decision.
- Any other
correspondence in possession of any officer of
employee of the Department of Education related to the decision.
/s/ Robert Klitzkie
Robert Klitzkie
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