Monday, May 13, 2019


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 this letter to the CCU.

                                 Robert Klitzkie, Esq.
                                              22 Baki Ct., Yigo, GU 96929
                         (671) 653-6607

May 12, 2019

Subject: 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.

Reference: A. Letter of Bernadette Lou Sablan CCU Board Secretary to Kevin Kerrigan of May 1 denying Kerrigan’s FOIA request the minutes.
B. Guam Daily Post article of May 11 titled “GPA, GWA raises rescinded.”
C. Undated opinion of counsel discussing “pay adjustments.”

Dear Commissioners DueƱas, Guthertz, Limtiaco, Santos and Sanchez,:

Your failure to cause the disclosure of the minutes of your illegal meeting compounds the November 27 wrong.[1] The CCU perpetrated a grave injustice upon the people of Guam in general and rate payers in particular last November 27. An illegal executive session was held during which illegal discussions were held resulting in salary increases for employees of the two utilities. In addition the General Manager of GPA received a $25,000 bonus and the recording secretary of the CCU a $5,000 bonus in violation 4 GCA § 6118.2. Violation of that section makes each member of the CCU in attendance at the November 27 subject to being charged with a misdemeanor.

Given the presence of counsel, the blatantly illegal discussion of salary increases and what appears to be a conspiracy to pay illegal bonuses are serious matters which cannot be dismissed as mere inadvertence or excusable neglect. As serious as these matters are the seriousness is compounded by your apparent adoption of the decision of the Bernadette Lou Sablan, the CCU Board Secretary, when she denied Kevin Kerrigan’s valid request for the minutes of the November 27 meeting.

Sunshine Law requests are matters of great importance as exemplified by the 4 GCA § 10112 $1,000 fine levied on the personal funds of any official who violates the law. But the cavalier manner in which Kerrigan’s request was sloughed off borders on scandalous.

Sablan excused timely compliance with Kerrigan’s request by what “protocol dictates” as though CCU protocol trumps statute. Sablan’s denial spoke for all of you when she said:

“…it is the position of the Consolidated Commission on Utilities that the electronically recorded minutes of the executive session will not be disclosed pursuant to your FOIA request.” [Emphasis mine.][2]

Sablan then went on to “rule” on what served the public interest before signing off.

The Sunshine Law, 5 GCA Ch. 10 requires that

“…the Director of an agency shall require all personnel in charge of receiving any incoming mail, electronic mail, faxed documents or other communications to immediately notify the Director or his designee upon receipt of a request for records under this Chapter.” § 1015 (a)

 Either or both of the utility general managers were responsible for dealing with Kerrigan’s request.

Ҥ1015(b) upon receipt of a request for records under this Chapter, the Director of an agency or his designee shall immediately assign the request to be fulfilled or responded to by an employee of the agency.

Nothing in Sablan’s letter suggests a delegation of authority from either director. To the contrary, the language of Sablan’s letter connotes her absolute authority. In addition to being ultra vires and disrespectful, Sablan’s letter is wrong on the law as is the referenced opinion of counsel.  Counsel relies on the popular but erroneous myth[3] that that there is a “personnel matters” exception to 5 GCA § 10103 (c)’s requirement for disclosure:

“5 GCA § 10103 (c) Except with respect to public records exempt from disclosure by express provisions of the law, each agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person…”

5 GCA § 10108 lists a myriad of limitations on the right to inspection, none of which reads, “personnel matters.” That term, “personnel matters,”  appears nowhere in the statute, nor does “evaluation.”

The word “personnel” occurs four times: 5 GCA §§ 1015 (b), 10108 (b), 10105 (n) (6), none of which are applicable here. Parsing 10 GCA § 10108(c) shows that it can’t serve as the basis for advancing the “personnel matters” myth as the ratio decidendi for counsel’s conclusion that the minutes, etc. should not be disclosed:

5 GCA § 10108 Except as provided in § 10109 of this Chapter, nothing in this Chapter shall be construed to require disclosure of records that are any of the following: …(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. All information regarding salary, and the name, and worksite mailing address of each employee and public official shall be public record.

Personnel. Neither Kerrigan’s nor my FOIAs seek files of any kind.  The minutes of the executive session are presumed to be Sablan’s notes as to who said what (see FN 1.) The recording and the minutes are obviously not a file.

Personal privacy. One would assume that personal information was not discussed in the process of setting salaries. The discussion of employee performance in this context is clearly public, not private, information. NB (c) states:

All information regarding salary, … public official shall be public record.

Personal information does not mean conversations about job performance. Items e.g. recorded information about an identifiable individual that may include his or her
(1) name, address, email address, phone number,
(2) race, nationality, ethnicity, origin, color, religious or political beliefs or associations,
(3) age, sex, sexual orientation, marital status, family status,
(4) identifying number, code, symbol,
(5) finger prints, blood type, inherited characteristics,
(6) health care history including information on physical/mental disability, (7) educational, financial, criminal, employment history,
(8) others' opinion about the individual, and
(9) personal views except those about other individuals are examples of personal items. Absent discussion of personal information of the employees who got the raises or bonuses the minutes and recording are required to be disclosed.

Unwarranted.  Even if personal information were discussed in the illegal executive session its disclosure would be prohibited only if unwarranted. The word unwarranted means, “…not having a good reason and therefore annoying or unfair: 2. lacking a good reason; unnecessary:”[4] As an example, disclosure of an evaluation and salary increase based upon nepotism would not be unwarranted even though it implicates marital status or family status, (3) supra.

Counsel’s attempt to ground his opinion on the “personnel matters” myth:

“Inasmuch as evaluations are personnel matters…”

is at best a red herring and not even arguably sufficient to excuse compliance with 5 GCA § 10103 (c).

The minutes and recording of the illegal executive session of November 27 are not personnel files, obviously dealt with salary and their disclosure would not constitute an unwarranted invasion of anyone’s privacy.

The minutes, recording and all papers related to the illegal November 27 executive session must be sent to me forthwith.

Respectfully submitted,
/s/ Robert Klitzkie
Robert Klitzkie

CC John Benavente, Miguel Bordallo. Attorney General Leevin Camacho

[1] 5 GCA § 8113 Minutes. makes it clear that minutes must be kept at every meeting. NB there is no express or implied exception for illegal executive sessions.
 § 8113.The minutes of every meeting of each public agency shall be promptly and fairly recorded, shall be open to public inspection and shall include but not be limited to a record of all motions, proposals and resolutions offered, the results of any votes taken and a record of individual votes in event of roll call. Insofar as it may do so without violating § 8103 of this Chapter, an agency may also maintain a record of persons present at a meeting
[2] All bolding is added for emphasis by the author.
[3] The myth is also cited in the executive session context, e.g. “a board can go into executive session to discuss personnel matters. 5 GCA § 8111 (a)  the contradicts the myth:
§ 8111. Executive Sessions. (a) No public agency is prohibited because of this Chapter from holding executive sessions with the Attorney General, Chief of Police or the respective designated representatives of each on a matter which poses a threat to the public health, safety or welfare or from holding executive sessions during a regular or special meeting

to consider the appointment, employment or dismissal of a public officer or employee or to hear complaints or charges brought against such officer or employee

 by another public officer, person or employee unless such officer or employee requests a public hearing. 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.
When an officer is appointed, an employee hired or an officer or employee is fired deliberation in executive session is appropriate. Mumbling, “It’s a personnel matter” is not a sufficient predicate for an executive session.

[4] Cambridge English dictionary.

1 comment:

  1. It is unfortunate for the CCU secretary to have a cavalier attitude towards the FOIA request. Actions like this should be exposed.