PETITIONING THE AG FOR RELIEF, I.E. TO GET JOEY TO STOP TAP DANCING

The CCU's playing fast and loose with the Open Government Law and tap dancing instead of complying with the Sunshine Law prompted me to send a letter to the CCU. More tap dancing so I asked the AG to set the CCU straight.

Robert Klitzkie, Esq.

22 Baki Ct., Yigo, GU 96929

 (671) 653-6607

klitzkie@hotmail.com

May 20, 2019

Reference: A. Your letter to the Consolidated Commission on Utilities (CCU) of April 23 informing the CCU that the salary adjustments they made in an executive session on November 27 were void ab initio.

B.  Guam Daily Post article of May 15 titled “3 more pay raises rescinded.”

C. Letter May 12 to CCU Commissioners titled “Demand pursuant to the Sunshine Law that the minutes, recording and all other public records created or generated during the executive session of the Consolidated Commission on Utilities (CCU) on November 27 be emailed to me NLT COB May 17” which was CC’ed to you on even date.

D. 5 GCA §§ 30102 & 30103

Re: Petition re 48 USC § 1423k

Dear General Camacho:

The CCU continues to violate chapters 8 &10 of 5 GCA requiring openness and transparency. The CCU has moved at a glacial pace to implement the requirement stated in Reference A. The CCU has “played hide the ball” with the minutes and recording of the illicit November 27 meeting where they discussed salaries and bonuses in executive session in contravention of the requirement of 8 GCA § 8111 (a) which reads in pertinent part:

Under no circumstances, however, shall a public agency hold an executive or closed meeting to discuss salaries, salary levels or salary adjustments of any employee or officer. All such discussions or decisions must be held in a public meeting and minutes shall be kept and opened to the public.

In addition to concealing the minutes from those who filed properly drawn Sunshine Law demands with the CCU, the CCU has also failed to cause the posting of the minutes, etc. on the GPA and GWA websites and the audio recording of the November 27 executive session on the website of the Office of Public Accountability as required by 5 GCA § 8113.1. The policy and letter of the law are clear. The minutes and other paper and the audio recording of the illegal executive session are public records and must be posted and provided to those who have requested.

The policy of the Territory is set out below:

5 GCA § 8102. Policy. The Legislature declares it is the policy of this Territory that the formation of public policy and decisions is public and shall not be conducted in secret. The people of Guam do not yield their individual rights to the public agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

5 GCA § 10111 (c) The burden is on the agency to sustain its action. All records shall be presumed public and the burden of establishing that a document or record is private shall be upon the agency or person claiming that the document on record should not be disclosed or inspected.

5 GCA § 10112. Penalties for Nondisclosure. (a) If the Court finds that the public official’s decision to refuse disclosure is not justified under this Chapter, the Court shall order the public official to pay a fine of One Thousand Dollars ($1,000.00). The fine shall be a personal expense for the responsible official and in no way shall the fine be paid by the agency or the government of Guam.

8 GCA § 8111 (a) through (c) deal with matters which may be discussed in executive session as exceptions to the 8 GCA § 8103 (a) requirement that “Every meeting of a public agency shall be open and public,…” None of the § 8111 exceptions allow for the discussion of “… salaries, salary levels or salary adjustments of any employee or officer…”  To the contrary, the second sentence of § 8111 (a) (set out supra) expressly requires that   salaries, salary levels or salary adjustments be discussed in public and minutes kept.

Our Sunshine Law 5 GCA Ch. 10 at 10108 (a) through (r) provides for exemptions from disclosure. Not surprisingly, there is no confidentiality allowance for papers or recordings generated in a meeting held in violation of the law that requires the meeting to be open to the public, i.e. being generated in an illegally held  secret meeting does not make the record of meeting confidential. If the CCU get’s away with this ploy it would make a nullity of

8 GCA § 8111 (a)…Under no circumstances, however, shall a public agency hold an executive or closed meeting to discuss salaries, salary levels or salary adjustments of any employee or officer. All such discussions or decisions must be held in a public meeting and minutes shall be kept and opened to the public….

Rather than complying with the Sunshine Law demands for the public records and electronic recordings the CCU offers the rather weak excuse that it need not release personnel files that deal with “personnel evaluations.”  Without disclosing the secret of the documentary alchemy that converted minutes, etc. and an electronic recording into files, the CCU cites two decisions as authority for its failure to provide the minutes and electronic recording: Copley Press, Inc. v. Board of Education for School District No. 150 and U.S. Dept. of State v. Ray. Copley is an Illinois intermediate court decision that has not been followed by any other court. Copley deals with the dismissal of a school superintendent, Royster, not salary increases and bonuses. The plaintiff filed an Illinois FOIA seeking the letter to Royster and two personnel evaluations that were contained in Royster’s personnel file. The decision did not cite Illinois law containing language at all similar to our “5 GCA § 8111 (a) Under no circumstances…” Copley is clearly inapposite as a justification for the CCU failure to comply with our law.

Ray is a SCOTUS case dealing with Haiti and political asylum and is of little value.

The anti transparence animus of at least Chairman Dueñas  of CCU is apparent. Reference B contains:

Dueñas said he was not comfortable releasing anything.” I think the best thing to do is to go to court and let the judge decide if those salary things are releasable and let him do the releasing. I don't want the liability of inadvertently releasing something by mistake," Dueñas said.” For me, personally, I will tell you that I will not vote to release anything – I would rather have a judge release it. And the judge may say the discussion is so intertwined that none of it is releasable. I don't know," he added

Dueñas’ comfort level can’t be the touchstone upon which important questions of public policy turn nor need the wheels of the judicial process be set in motion because Commissioners want to take advantage of their own wrong doing to achieve an illicit purpose. to subscribe to the CCU's reasoning would have the perverse effect of authorizing agencies such as the CCU to hide all salary discussions within discussions of performance evaluations, defeating the Legislature's intent that salary discussions shall be public, recorded, and minutes created in accordance with legislative intent as per “8 GCA § 8111 (a)…Under no circumstances…”

I am requesting that IAW Reference D. you provide the Commissioners listed below with the same kind of clear forceful direction that you did in your letter to Chairman Dueñas of April 23, i.e. that minutes be released and the electronic recording be posted.

Respectfully submitted,

/s/ Robert Klitzkie

Robert Klitzkie

CC. Commissioners Joey Dueñas, Judy Guthertz, Michael Limtiaco, Francis Santos, Simon Sanchez