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.
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Guam Daily Post article of May 11 titled “GPA, GWA raises rescinded.”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 Dueñas, Guthertz, Limtiaco, Santos
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.
“…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.
It is unfortunate for the CCU secretary to have a cavalier attitude towards the FOIA request. Actions like this should be exposed.
ReplyDelete