Robert Klitzkie ,
Esq.
June 17, 2018
Jon Fernandez
Superintendent of Education
Subject: The candidacy of your employee David Cruz for Lt.
Governor
Re: This 48 USC §1423k
petition;
4 GCA Ch. 5 Political Activity;
5
GCA Ch. 7 Enforcement of Proper Government Spending
DOA
Personnel Rules 11.63 I.
Dear Superintendent Fernandez:
1)
Your unlawful employment of candidate David Cruz as a
DOE teacher and expending money without proper authority, illegally, or contrary
to law and using your official authority or influence for the purpose of
affecting the result of an election causes your petitioner, the undersigned, a
taxpayer and resident of Guam, to bring these matters before you pursuant to
the referenced authority. As you know, Cruz became a candidate for Lt. Governor
on Thursday at a time when he is employed as a classified employee of DOE
pursuant to a personal services contract for 48 months at a rate of $124, 180 per annum.
2)
As an executive branch employee Cruz is not permitted
to run for office. Political activity for executive and judicial branch employees
is set out at 4 GCA Ch.
Ҥ 5101.
Definitions. In this
Chapter:
(a) Employee means a
person employed in the Executive Branch of the government of Guam, including
autonomous and semiautonomous agencies thereof, or in the Judicial Branch with
the following exceptions: (1) A person holding elective office;
(2) A special or
Staff Assistant to the Governor;
(3) A person
appointed by the Governor with the consent of the Legislature;
(4) A person
retained from time to time to perform professional or special services for a
specific fee; and
(5) A person working
on a casual basis on the days he performs no services. Employees includes a
person on administrative annual, or sick-leave unless such person has resigned
and has received a lump-sum payment for such leave. Subject to (5) above, it
includes persons not providing professional services for a specific fee who are
hired on a temporary, part-time, emergency or casual basis;
(b) Election means
any local, primary, general or special election;”
***
This chapter refers to Chapter 5 POLITICAL ACTIVITY and as can
be seen regulates political activity of all employees within the Executive
branch. Employees not subject to the strictures of Chapter 5 are listed at (1)
through (5) of § 5101 (a). This list of five categories identifies the only
employees in the Executive Branch who may engage in otherwise impermissible
political activity.
3) Cruz
is an employee of DOE. While I maintain that Cruz’ contract makes him a
classified employee, as explained, infra,
it doesn’t matter what label attaches as the five exceptions to § 5101 (a)
govern.
(1) exempts: “A
person holding elective office,” i.e.
not Cruz.
(2) exempts: “A
special or Staff Assistant to the Governor,” i.e. not Cruz.
(3) exempts: A
person appointed by the Governor with the consent of the Legislature, i.e. not Cruz,
(4) exempts: A
person retained from time to time to perform professional or special services
for a specific fee, i.e. not
Cruz. Cruz has a contract for 48 months at a rate of $124, 180 per annum. 48 months is hardly “from
time to time.” 48 months at a rate of $124, 180 per annum is not a fee at all. It’s a salary. Nor is Cruz retained
“to perform professional or special services” as will be shown, infra, at 6) Two.
(5)
exempts: A person working on a casual basis on
the days he performs no services. Employees includes a person on administrative
annual, or sick-leave unless such person has resigned and has received a
lump-sum payment for such leave. Subject to (5) above, it includes persons not
providing professional services for a specific fee who are hired on a
temporary, part-time, emergency or casual basis i.e. not Cruz, nor even close.
Cruz
not coming within the ambit of any of the exceptions to the operation of Chapter
5 Political Activity, is therefore subject to the prohibition of against
candidacy.
Here’s the law
on what an employee can’t do:
4)
§ 5103. Prohibited Activity. (a) An employee
shall not use his official
authority or influence
for the purpose of interfering with or affecting the result of an election. (b) Specific
activities in which employees are prohibited from participating include, but
are not limited to: (1) soliciting, collecting, handling, disbursing or
accounting for 4 assessments, contributions or other funds for a political
party, partisan political organization or candidate; (2) organizing, selling
tickets to, seeking support for or actively participating in a fund-raising
activity of a political party, partisan political organization or candidate;
(3) taking an active part in managing the political campaign of a candidate; (4) being a
candidate; (5) discharging, promoting, demoting or changing the
compensation of any other employee or promising or threatening to do so,
because said other employee advocates or fails to advocate through
contribution, voting or otherwise, a candidate; and (6) using government travel
allowances, government transportation, government supplies or government
facilities for the benefit of any political party, partisan political
organization or candidate.
When § 5101 and 5103 are read
together it is abundantly clear that Cruz, as a candidate for Lt. Governor, is
in violation of the law prohibiting government employees from being candidates.
And as per 7) infra, you, as
Superintendent of Education, are arguably complicit. As mentioned in 3) supra, it doesn’t matter whether Cruz’
employment is characterized as “classified” or “unclassified.” Realizing that my statement flies in the face
of popular mythology, as a public service which is not essential to this
analysis of your conduct and Cruz’ employment, I will debunk the myth.
5) Debunking
the myth: “Well, everybody knows that the mini Hatch Act don’t apply to
unclassified employees,” is a fair rendition of the myth. And here’s from the
PDN of May 20 spreading the myth:
Government
contract paves way for candidacy of David Cruz Jr.
After
more than seven years running the Junior ROTC program in the island’s public
schools, David M. Cruz Jr. volunteered
to switch from being a classified employee to an unclassified contract
employee.
That move allows him to keep his current
salary and benefits, but prevents him from receiving annual pay
raises, according to the school system.
As an unclassified contract employee, Cruz also became eligible
to run for elected office — something he was prohibited from
doing as a classified GovGuam employee because of Guam
law. One of the exceptions to the candidacy ban, the law states, is “a person retained from time to
time to perform professional or special services for a specific fee.”
Fernandez said it is unlikely classified employees
would want to abandon their protected status and enter into a contract that
allows them to be easily terminated. It was a surprise when Cruz volunteered to
make the switch to a contract, he said.” It was unexpected for anyone to do that,” Fernandez said,
adding he understands Cruz’s reasons for doing so. [NB the statement “Fernandez…understands Cruz’s reasons for doing
so, ” i.e. the unclassified-to -be-a
candidate scheme.]
The truth is that
classified, unclassified, declassified, petrified or ossified matters not a whit
as to who can be a candidate for
public office while remaining a government employee. Repeating. It is not true
that being an unclassified executive branch employee means that that employee
can run for senator, Lt. Governor, etc. NOPE!
Exemption from
the prohibition of Executive Branch employees holding on to their government
jobs while they run for political office can be found only in the cited § 5101
(a) (1) through (5.) As pointed out, supra
at 3) and infra, at 6) Cruz doesn’t
even come close.
6)
As per 1) supra,
I maintain Cruz is a classified employee of the Executive Branch or, in the
alternative, his employment contract that you signed on February 12 either
makes Cruz a classified employee or is void, and advance three highlighted
reasons therefore, viz:
One.
4 GCA § 4102 defines classified and unclassified:
§ 4102. Classified
and Unclassified Services. All
offices and employment in the Government of Guam, except for employment
as academic personnel of the Guam Community College (GCC) and the University of
Guam (UOG), as the term academic personnel is defined in enabling laws of GCC
and UOG, shall be divided into classified and unclassified services as follows:
(a) The unclassified service shall include the positions of:
(1) elective
officials;
(2) judges;
(3) Superior Court
marshal, chief clerk, chief probation officer and court administrator of the
Superior Court;
(4) heads of
agencies and instrumentalities and not more than one (1) secretary for each
such officer;
(5) The first
assistant, by whatever title denominated, to the heads of agencies and
instrumentalities stated in paragraph (4) of this Subsection;
(6) persons employed
on a temporary basis;
(7) members of
boards and commission;
(8) executive
director of the Commissioner's Council;
(9) all offices and
employment in the Executive Branch whose appointment are required to be
confirmed by the Guam Legislature;
(10) all offices and
employment made, by law, to be at the pleasure of any board, commission or
officer;
(11) all legislative
employees;
(12) members of the
Guam Gaming Commission;
(13) physicians and
health care administrators employed at the Guam Memorial Hospital Authority;
(14) With the
exception of civilian non-uniformed positions, all positions in the Department
of Military Affairs, including the Executive Secretary and Executive Services
Coordinator.
(15) employees of
the office of the Governor and Lieutenant Governor including off-island offices
and Government House, as authorized in the applicable appropriation law.
(16) Property
Management Officer at the Department of Corrections.
(17) persons
employed on a seasonal basis.
(18) not more than
one (1) Special Assistant each to the Attorney General of Guam and the Public
Auditor.
(b) The classified service shall
include all other positions in the government of Guam
Unless
a position is listed in (1) through (18) per the operation of (b), it is a
classified position. None of the
language in Cruz’ contract describing his position is even close to (1) through
(18), ergo Cruz is a classified
employee.
Two.
Nothing within the four
corners of Cruz’ contract[1]
overrides the textual delineation of § 4103. Additional Positions. As an element of deceptive chicanery, you attached a
reference to 4 GCA § 4103 to Cruz’s contract. That section contains eight
subsections and 528 words. Only the very curious would take the time to
discover what your vague citation refers to. Perusal of the eight subsections,
(a) through (h) yields the result that only one subsection, subsection (e), is
even arguably in the right ballpark but is demonstrably on the wrong base.
Here’s 4 GCA § 4103 (e) with my emphases:
“(e) No person may
be temporarily employed in a non-professional capacity for more than one
hundred twenty (120) days in any calendar year except pursuant to an exception
provided for by Paragraph (d). No person may be temporarily employed in a professional capacity for more
than one hundred twenty (120) days except upon a contract in writing,
and a determination in writing by the appointing authority that such employment
is critical to the public health, safety or welfare of the community. For
purposes of this Paragraph a person is employed as a professional if the
person’s job description in the Dictionary of Occupational Titles, published by
the U.S. Department of Labor, has as its first digit zero (0) or one (1). Any
person whose job description does not have as its first digit zero (0) or one
(1) shall be deemed to be a non-professional employee.”
§ 4103 (e) provides
nothing more than a way around budgetary limitations on the number of employees
in the Executive Branch. The first sentence of § 4103 (a) makes this clear:
“(a) Except as
hereafter authorized by law, the number of employees in the executive and
judicial branches shall
not be increased beyond the numbers provided for in the annual General
Appropriation Act.”
Obviously Cruz,
with a 48 month $124, 180 per annum contract, is the antithesis of a temporary
employee. Cruz is obviously a permanent employee since the beginning of the
fiscal year. Thus your reference to 4 GCA § 4103 in the first and second
WHEREAS clauses and set out as Form A on
the last page of Cruz’ contract is obviously
meant to deceive by providing a sneaky
way to use emotional terms, e.g.
“critical to the…welfare of the community” when their use is clearly
inapplicable.
Even if you are
able to distort the provisions of Cruz’ employment so as to be viewed through
the lens of the requirements of 4 GCA § 4103, Cruz’ contract would not comply.
A myopic interpretation of Cruz’ contract that would over look the fact that
the contract is for 48 months at a rate of $124, 180 per annum in order to hold that it is temporary but longer than 120
days, runs headlong into the term “professional capacity” in the penultimate sentence of § 4103
(e):
For purposes of
this Paragraph a person is employed as a professional if the person’s job description in
the Dictionary of Occupational Titles, published by the U.S. Department of
Labor, has as its first digit zero (0) or one (1).
Exhaustive study of
the Dictionary of Occupational Titles, published by the U.S. Department of
Labor, does not unearth even a single occupational title that is even close to
any occupational title to be gleaned from the four corners of Cruz’ contract.[2]
The last sentence of the subsection defines Cruz’ status:
Any person whose
job description does not have as its first digit zero (0) or one (1) shall be
deemed to be a non-professional employee.”
Of course this is
an interesting but substantively irrelevant analysis because the purpose § 4103
(e) is to provide an exception to employee number limitations in budget laws.
Therefore § 4103 has no relevance to Cruz since he continues to occupy the same
position he held at the beginning of the fiscal year. The purpose of § 4103 (e)
is not to allow employees to flit back and forth from classified to
unclassified positions, nor for the appointing authority to manipulate the
personnel system and certainly not to create a fiction that would allow an
Executive Branch employee to violate the “mini Hatch Act” by running for office
while working for the government.
The relevance of
the above analysis is that it demonstrates the trickery used to accommodate
your employee, David Cruz; trickery dedicated to creating a fiction that Cruz
can continue his employment amounting to $124, 180 per annum at the same time that he is a candidate for Lt. Governor.
Egregious enough as it is, but even more egregious is that, in the event he
loses, Cruz is protected by a “Golden Parachute” of $124, 180 per annum until February 2022 to cushion
his fall from political grace.
Three.
As fraught with irony as this entire Cruz candidacy
charade is, the greatest irony is that Elizabeth Barrett-Anderson, Attorney
General, signed off on Cruz’ contract approving it “as to form and legality.” If anyone should be aware of
the Organic Act infirmity of Cruz’ contract it is Elizabeth Barrett-Anderson.
The key provision of the Organic Act here is 48
U.S.C. §1422c(a) which directs the government of Guam
to establish a merit system and, as far as practicable, and to make employment decisions in
accordance with such system. The landmark case on the merit system and
practicability arose during the first term of Attorney General Elizabeth
Barrett-Anderson (Jan. 1987 to Jan. 1995.)
During that time
General Anderson worked with then-Senator Parkinson to change the employment
terms of assistant attorneys general so that newly hired assistant attorneys
general would be unclassified. (PL 19-52) Later on an assistant attorney
general, Alan Haeuser, was fired. Haeuser challenged the provision of PL 19-52
that allowed his termination as unclassified, arguing, inter alia, that the government’s failure to comply with 48 U.S.C.
§1422c(a) required his reinstatement. (Haeuser was ultimately awarded in excess
of $400, 000 for his wrongful termination.) Haeuser lost at trial, lost at the
Appellate Division of the District Court but prevailed at the Ninth Circuit.[3]
The key to
understanding not only the Haeuser case but the GovGuam merit system in
general, i.e. what we call classified
employees, is the difference between to words that sound remarkably similar:
practical and practicable
The Haeuser case explains the
difference:
Practical refers to
something that is also sensible and worthwhile. The dictionary contrasts the
usage of “practical” and “practicable”: “Practicable refers to something that can be put
into effect. Thus, it
might be practicable to transport children to school by balloon,
Here’s why
“practicable” is so important:
§1422c.
Executive agencies and instrumentalities
The Governor
shall, except as otherwise provided in this chapter or the laws of Guam , appoint, by and with the advice and consent of the
legislature, all heads of executive agencies and instrumentalities.
The
legislature shall establish
a merit system and, as far as practicable, appointments and promotions
shall be made in accordance with such merit system.
In GovGuam the
“merit system” is the entire system of classified employees. Unclassified
employees are not in, i.e. are outside of, the merit system. Thus according
to Haeuser only when there is a finding that it would not be practicable
for a job to be within the merit system can an employee be “unclassified.”
Given an understanding of the Haeuser case, it’s impossible to argue
that it is now not practicable for Cruz to be classified since he was
classified on March 7 and for seven years[4]
before that! Application of 48 USC §1422c (a) as interpreted by Haeuser
would make Cruz’ a classified employee if he were to invoke the judicial power
to enforce his contract. However, classified employee status under the contract
would also be problematic for all the reasons stated supra.
While it is
impossible to argue that it is now not practicable for Cruz to be classified,
it is likewise hardly possible to assume that Elizabeth Barrett-Anderson,
Attorney General, was unaware of 48 USC §1422c (a) as interpreted by Haeuser when she signed off on Cruz’ contract approving it “as
to form and legality.” General Anderson testified at our Superior Court during
Haeuser’s trial:
"I looked
at it; discussed it with some of the deputies, and sometimes with Senator
Parkinson. You don't
know if it's good or bad, but you cross your fingers and agree, because
I knew we needed a salary increase. And I told Senator Parkinson “I
can't see anything objectionable about it.”
After explaining
her “crossed fingers” legal analysis in the Superior Court and watching the
progress of the case move to a more than minus $400,000 outcome for us, one has
to wonder how General Anderson could have forgotten Haeuser v Dept. of Law
and signed off on Cruz’ contract on February 27.
7) As demonstrated supra there is no tenable basis to assert that your employee, David
Cruz, can continue his government employment now that he is a candidate for Lt.
Governor. An explanation for your extraordinary treatment of Cruz, knowing that
he was about to be a candidate, is potentially available in a PDN article (my
highlights) of May 20:
Government contract paves way for candidacy of David
Cruz Jr. 20
After
more than seven years running the Junior ROTC program in the island’s public
schools, David M. Cruz Jr. volunteered
to switch from being a classified employee to an unclassified contract
employee.
That move allows him to keep his current
salary and benefits, but prevents him from receiving annual pay
raises, according to the school system.
As an unclassified contract employee, Cruz also became eligible
to run for elected office — something he was prohibited from
doing as a classified GovGuam employee because of Guam
law. One of the exceptions to the candidacy ban, the law states, is “a person retained from time to
time to perform professional or special services for a specific fee.”
Fernandez said it is unlikely classified employees
would want to abandon their protected status and enter into a contract that
allows them to be easily terminated. It was a surprise when Cruz volunteered to
make the switch to a contract, he said.” It was unexpected for anyone to do that,” Fernandez said,
adding he understands Cruz’s reasons for doing so.
Repeating: “It
was unexpected for anyone to do that,” Fernandez said, adding he understands Cruz’s
reasons for doing so.”
In other words
you understood that Cruz wanted the contract so that he could run for Lt.
Governor and still keep his $124, 180 per year job. If that is the case it
explains why you were willing set up the sham “unclassified” contract for Cruz
relying on the myth “Well, everybody knows that the mini Hatch Act don’t apply
to unclassified employees.”
Re this matter, reference to 4 GCA §
5103 (a) is appropriate:
4 GCA § 5103. Prohibited Activity.
(a) An employee shall not
use his official
authority or influence for the purpose of interfering with or affecting the result of an
election.
If Cruz’ candidacy were
conditioned upon your setting up the contract to allow him to keep his job plus
be protected by a “Golden Parachute” should he lose, then the quoted PDN
article and your statement make alarmingly perfect sense.
7) Since
he became a candidate on Thursday Cruz has pocketed $477.62 per day. By COB
Monday Cruz will have earned $1437.85 or $437. 85 in excess of the
jurisdictional threshold of 5 GCA § 7106 which reads:
§ 7106. Minimum
Amount of Suit. No suit may be brought under this Chapter unless the cumulative amount of
illegal expenditures alleged, both past and future, are equal to or exceed
$1,000.
This
chapter refers to 5 GCA Ch.
§ 7103. Taxpayer
Standing to Sue. Any taxpayer who is a resident of Guam shall have standing to
sue the government of Guam and any officer, agent, contractor, or employee of
the Executive Branch of the government of Guam for the purpose of enjoining any
officer, agent, contractor, or employee of the Executive Branch of the
government of Guam from expending money without proper appropriation, without proper authority,
illegally, or contrary to law, and to
obtain a personal judgment in the courts of Guam against such officers, agents,
contractors, or employees of the government of Guam and in favor of the
Government of Guam for the return to the Government of Guam of any money which
has been expended without proper appropriation, without proper authority, illegally, or contrary to law.
For purposes of this Chapter, the Governor and Lt. Governor of Guam are
officers of the government of Guam , and are
included within the scope of this Chapter.
Because of her approval of the contract as to legality, the
Attorney General has an interesting, but not yet defined role here:
§ 7105.
Government May Intervene. The government of Guam ,
through the Attorney General, shall be entitled as a matter of right, to
intervene in any suit brought under this Section.
8) I bring this matter before you pursuant to the
aforementioned 5 GCA Ch. 7 Enforcement of Proper Government Spending requesting
that you stop illegal spending.[5] I
also bring this matter before you pursuant to 4 GCA Ch.
9) Initially and finally, I invoke 48 USC § 1423k:
§1423k. Right
of petition
The legislature
or any person or group of persons in Guam
shall have the unrestricted right of petition. It shall be the duty of all officers of
the government to receive and without delay to act upon or forward, as the case may require,
any such petition.
Being a taxpayer, a resident of Guam and a person in Guam I respectfully request that you act upon this
petition forthwith.
Your petitioner,
Original
signed by Robert Klitzkie
Robert Klitzkie
[1] Occasional references to the word “unclassified” in the
label of text of the contract are of no effect if inconsistent with the terms
of the contract, are inorganic, not permitted by statute or contrary to
statute.
[2] Given that the last version of the DOT issued in March
1999, it is clear that those invoking the remedy of § 4103 (e) must reference
their positions to titles at 00 or 01 of that issue. The Compiler’s note for §
4103 (e) shows: “Added by P.L. 16-111:24 (Oct. 7, 1982). Subsection (e) amended
by P.L. 22-144:6 (Dec. 27, 1994). Subsection (e) amended by P.L. 24-327:15
(Dec. 30, 1998).” Thus the Legislature
is obviously aware of the DOT and its efficacy in determining “professional.”
The effect of a construction of the statute in disregard of the March 1999
issue of the DOT for lack of update would be to hold that there can be no
temporary professional employment for 120 days per subsection (e). By far the
better view is that the statute refers to the March 1999 issue of the DOT, so
as to uphold the statute.
[3]
United
States
Alan F. HAEUSER, Plaintiff-Appellant, v. DEPARTMENT
OF LAW, GOVERNMENT OF GUAM; Civil Service Commission of Guam ,
Defendants-Appellees.
94-16987. No.
Decided: October 08, 1996
[4] See 5).
[5] If Cruz is an unclassified employee he can be
terminated forthwith, even without cause, which of course is abundant. If Cruz
is a classified employee he can be terminated IAW DOA Personnel Rules 11.63 I.
Political Activity Prohibited by Law. It is submitted, however, that Cruz would
be estopped to deny than he is an unclassified employee.
