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B.  Guam Daily Post article of May 15 titled “3 more pay raises rescinded.”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

THE CCU, BIG RAISES, LACK OF TRANSPARENCY, CONSPIRACY AND 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 this letter to the CCU.

                                 Robert Klitzkie, Esq.

                                              22 Baki Ct., Yigo, GU 96929

                         (671) 653-6607

                                     klitzkie@hotmail.com

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 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

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[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.