DEMAND TO REOPEN PROCEEDINGS...AND DEMAND FOR INSPECTION OF DOCUMENTS

Robert Klitzkie, Esq.

22 Baki Ct., Yigo, GU 96929

 (671) 653-6607

Re: Demand to reopen proceedings re Complaint of June 24 and demand for inspection of documents

Maria[1]:

NB ¶ 12. of the complaint submitted the Commission on June 24:

Complaint to the Election Commission pursuant to 4 GCA § 8104; Petition to the Guam Education Board pursuant 48 USC § 1423k.  That paragraph is set out below:

“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.”

¶ ¶ 6. through 9. explicate upon Jon Fernandez’ § 8206 violation

Your letter of July 10 ignores this paragraph which is a complaint arising under 3 GCA § 8206. In the middle of the third page of your letter, which you labeled “PRINCIPLES OF LAW[2],” the following citation appears:

3 GCA § 8202

beneath the text of that section. You also cited 3 GCA § 8104 and 3 GCA § 2106 but no § 8206. In the second paragraph of your letter you said, “…the Commission expeditiously conducted an investigation into the matter.” Not so, as you either ignored the § 8206 allegation or pretended that you needn’t decide it as you did when Troy Torres submitted a claim sounding in 3 GCA Ch. 8 and the Commission declined jurisdiction per 3 GCA § 17! Here’s the prayer from the June 24 complaint:

“Prayer on the complaint to the Election Commission, please:

1.    Entertain this complaint pursuant to 3 GCA § 8104;

2.    Try, hear and decide this matter pursuant to 3 GCA § 2106;

3.    Obey all provisions of the Open Government and Sunshine Laws;

4.    Do not try to evade your responsibilities as you did with Alice Taijeron’s letter of June 1 to Troy Torres, by pretending that the complaint arises under Chapter 17 vice Chapter 8 as you did in the Taijeron letter.[3]”

You must deal with the Rodriguez+Cruz press release and the allegations based thereon. Here it is again from ¶ 6 of the June 24 complaint:

“The Rodriguez+Cruz release at ¶ 4 states: “DOE and the AG[4]

 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.”

What the Rodriguez+Cruz are saying is that the Attorney General, the Superintendent of Education and at least one person in the Governor’s office accommodated Cruz by changing his employment status so that you could continue to stay on the DOE payroll while he was a candidate for Lt. Gov. Here’s § 8206 as set out in ¶ 12 of the June 24 complaint:

Ҥ 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.

Here’s  ¶ 8 of the complaint:

“As pointed out supra, the contract, even if it creates an unclassified employment for Cruz, still violates our Mini Hatch Act.  As clearly described on page 6 of the June 17 petition, “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.”

And from ¶ 6 on the June 24 petition:

6. GCA § 15204 is implicated here: “4 GCA § 15204. Fair Treatment. No employee shall use or attempt to use an official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for himself or herself, a spouse, children, or others, including but not limited to the following: (a) seeking other employment or contract for services by the use or attempted use of the individual’s office or position; (b) accepting, receiving, or soliciting compensation for the performance of official duties or responsibilities except as provided by law;

It is obvious that the Commission is derelict in its duty and must reconvene to finish its work. The June 24 complaint prayed that the Commission try, hear and decide this matter pursuant to 3 GCA § 2106. The Commission accomplished none of its three statutory responsibilities even with respect to § 8202.

“§ 2106 (a) The Commission shall have the authority to summon the parties or any relevant witnesses to a controversy pending before it, issue subpoenas duces tecum, and otherwise to take testimony in any investigation or hearing pending before it…”

Sitting at a table and passing around papers which the Commission holds are not available to the public falls far short of trying (“try” is a component of “trial”) or hearing the matter brought before the Commission. Witnesses, testimony, findings of fact and conclusions of law usually come within the ambit of “try, hear and decide” but surreptitiously passing around papers and a legal analysis presented by a lay person fall far short of the mark.

You reported that the Commission determined “…Mr. Fernandez did not present Mr. Cruz with an ultimatum…” yet here’s the Rodriguez+Cruz  release:

“The Department of Education issued an ultimatum to public school teacher Dave Cruz, who also is a retired Air Force colonel and candidate for lieutenant governor: withdraw from the race for lieutenant governor, resign as a teacher, or face termination.”

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 Commision 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 Commission’s obvious failure to address that important issue requires me to bring your mishandling of the § 8202 matter forward so as to prevent a similar slipshod approach to the § 8206 claim.

A matter brought to the Commission per § 8104 is not an adversary procedure. There is no plaintiff[5] or prosecutor. § 8104 is inquisitorial not adversarial. § 8104 requires that a person allege or claim that a violation of election law has occurred. That person is not the prosecutor or plaintiff but is more in the nature of a relator[6]. Once the claim or allegation is laid before the Commission it must assume the burden of determining the facts and the law per §§  2106 and 8104. When the Commission “decided” the § 8202 claim by shuffling through non disclosable papers and then delegated its authority to issue a written decision to a lay person, it abdicated its § § 2106 and 8104 responsibilities.

Election law and maintenance of trust in the election process which the Commission oversees requires it to “try, hear and decide” the § 8206 claim. In order to properly accomplish your responsibility it is submitted that you must take the testimony of the candidates and all named in Rodriguez+Cruz press release, viz:

·       Dennis Rodriguez

·       David Cruz

·       The Attorney General

·       Jon Fernandez

·       Jadeen Tuncap

The June 24 complaint is incorporated by reference into this demand and is asserted per 4 GCA § 8104 and 48 USC § 1423k. This demand that you reopen proceedings is asserted per § 1423k.

Take notice that I will inspect all the documents subpoenaed on June 28. The inspection will be conducted in two increments:

1)    The seven documents referenced in the “FACTS” part of your letter will be inspected at 9 AM on August 10.

2)    The remaining inspection will be arranged at 9 AM on August 10.

Respectfully submitted,

/s/ Robert Klitzkie

Robert Klitzkie

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[1] This demand is addressed to you because in your letter there are no recitals or attributions that suggest that the letter is anything but your work product. Where you reference the Commission the demand addresses it. Of course relief is prayed for from the Commission.

[2] In the words of our Attorney General, it’s troubling that a lay person expounds on “PRINCIPLES OF LAW.”

[3] I will petition you to handle that matter later unless you do the right thing and, sua sponte, void Taijeron’s June 1letter and entertain the complaint on the merits pursuant to 3 GCA Ch. 8.

_________________________________________________________________________________

For immediate release, June 21, 2018 lease call Ashley Calvo-Rodriguez at 487-1194 for more information

Cruz chooses public service
Willing to walk away from pay

For immediate release, June 21, 2018
Please call Ashley Calvo-Rodriguez at 487-1194 for more information

The Department of Education issued an ultimatum to public school teacher Dave Cruz, who also is a retired Air Force colonel and candidate for lieutenant governor: withdraw from the race for lieutenant governor, resign as a teacher, or face termination.

“I’m not withdrawing from the race, and I find it highly suspect that all this is happening just days before the filing deadline,” Cruz said. “And I’m not resigning either. I’m not going to walk away from my students. I made a commitment that I’d stay in the classroom until we take office in January. So if I’m to be taken out of the classroom, it won’t be because I chose to.”

The campaign believes that Superintendent Jon Fernandez, on advice from the Attorney General’s Office, will fire Cruz for no other reason than Cruz’s political affiliation.

“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.”

Dennis and Dave are running a campaign based on three main pillars, the first among them being the fight against corruption. From the start of their campaign, many political forces have tried to tear this team down and prevent their run for Adelup.

“They want me to resign, not because I’m a bad teacher, but because of politics,” Dave said. “I’m not going to give up on my students just for politics. If I do that, it makes me no better than our opponents. The reason I’m running is to make a difference and get rid of these kinds of antics.”

If DOE terminates Cruz’s contract for political reasons, Dave wants his students to know when he and Dennis win the election, although he won’t be in front of them in the classroom, he will be their number one advocate from Adelup.

“Others have turned on this man, but Lena and I won’t,” Dennis said. “Today he had the opportunity to turn on us for the $124,000 annual pay he was getting, and he didn’t choose the money. He chose public service. He chose to run in this campaign. We are forever grateful for him and Jenny and the sacrifices they’re willing to make for the people of Guam.”

-- End Release -

[4] This complaint proceeds on the basis that references to “DOE” and “AG” refer to Superintendent of Education Jon Fernandez and Attorney General Elizabeth Barrett-Anderson, respectively. The presumption is that these public officials either knew or should have known of the matters stated in the Rodriguez+Cruz release or will step forward to set the record straight.

[5] In a sense Rodriguez+Cruz are the plaintiffs because the claims the Commission must decide are based on their complaint.

[6] In a sense I am the “relator.”