Bob & Ray draft resolution

What follows is the draft resolution Ray sent to the chairman of the GOP for retransmission to the five Republican senators whose names appear on the resolution in hopes that they would introduce it. Blogger software changes the formatting of the resolution.

I MINAʹTRENTAI SINGKO NA LIHESLATURAN GUÅHAN

2020 (SECOND) Regular Session

 

 

RESOLUTION No. _385-35 (COR)

 

                                                                                                                                                                                                                 

                           Introduced by:                                                                         Telo T. Taitague Taitague 

                                                                                                                            Jim Moylan

                                                                                                                            Wil Castro

                                                                                                                             Mary Torres

                                                                                                                              Louise Muña_

 

 

RELATIVE TO TERMINATING THE EMERGENCY HEALTH POWERS CREATED BY 10 GCA CH. 19 PURSUANT TO 10 GCA § 19405 (c) IN ORDER TO RESTORE THE CIVIL RIGHTS OF THE PEOPLE OF GUAM

                                                         

 

SHORT TITLE: This resolution may be cited as:

THE RESTORATION OF CIVIL RIGHTS ACTION

BE IT RESOLVED BY I MINA’TRENTAI SINGKO NA LIHESLATAURAN GUÅHAN:

WHERAS, the governor invoked the Emergency Health Powers provided by 10 GCA Ch. 19 by promulgation of Executive Order 2020-03 on March 14; and

WHEREAS, even though 10 GCA § 19402 requires that such executive orders specify “the conditions that have brought about the Public Health Emergency;” said executive order does not specify those conditions but only references organizations e.g. CDC and WHO while stating that “…no COVID-19 cases have been identified in Guam…”

WHEREAS, the governor then  proceeded to promulgate thirty-three more executive orders plus a plethora of DPHSS  Guidance Memos, the effects of which were to arbitrarily and capriciously “lock down” the island, destroy commerce, restrict the liberty of citizens, isolate and q civil uarantine people and generally abuse whatever authority is available under 10 GCA Ch. 19;

WHEREAS, pursuant to 10 GCA § 19405 (d) the legislature finds as follows:

·        The nature of the emergency was infection of some residents with COVID-19

·        The area threatened was the island of Guam

·        The conditions that make possible the termination of the declaration are that the governor has overreacted to the situation caused by COVID-19, imposing draconian conditions on the population in derogation of their constitutional rights in a manner unnecessary to deal with the emergency which does not pose a high probability of a large number of deaths.

WHEREAS, 10 GCA § 19405 (c) which reads: “[The Guam Legislature]. By a majority vote, [The Guam Legislature] may terminate the declaration of a state of Public Health Emergency at any time from the date of original declaration upon finding that the occurrence of an illness or health condition that caused the emergency does not or no longer poses a high probability of a large number of deaths in the affected population, a large number of incidents of serious permanent or long-term disability in the affected population or a significant risk of substantial future harm to a large number of people in the affected population. Such a termination by [The Guam Legislature] shall override any renewal by I Magalåhen Guåhan [The Governor].” The 35^th Guam Legislature hereby finds that termination of the Public Health Emergency declared by Executive Order 2020-3 as extended by subsequent executive orders is warranted; now therefore, be it

RESOLVED, the Public Health Emergency begun by Executive Orders 2020-03 et seq. is hereby terminated and be it further

RESOLVED, that the Speaker certify and the Legislative Secretary attest to, the adoption hereof and that copies of the same be transmitted to the Honorable Lourdes A. Leon Guerrero, the Governor of Guam and to The Ray Gibson Show.

DULY AND REGLARLY ADOPTED BY I MINA’TRENTAI SINGKO NA

LIHESLATUARAN GUAHÅN_______DAY OF OCTOBER 2020.

 

 

___________________________                _________________________          

TINA ROSE MUÑA-BARNES                     AMANDA L. SHELTON

Speaker                                           Legislative Secretary

 

TESTIMONY ON BILLS 357-, 358-, 359- AND 361-35

Robert Klitzkie, Esq.

22 Baki Ct., Yigo, GU 96929

 (671) 653-6607

klitzkie@hotmail.com

TESTIMONY ON BILLS 357-, 358-, 359- AND 361-35

Honorable Joe S. San Agustin and members of the Committee General Government Operations, Appropriations and Housing I oppose all four the bills before your committee.  All of the bills appear to address perceived inadequacies in Department of Administration Personnel Rule 8.406. That rule containing two categories of benefits is not an exemplar of clear draftmanship.

Governor Leon Guerrero apparently determined on March 19 that she would not implement the provisions of DOA Rule 8.406 when she issued XO 2020-05:

¶4 of Executive Order 2020-05 reads in pertinent part:

…all government of Guam employees remain in regular work status and are expected to report for duty within two hours for duty within two hours from receiving notice from his/her supervisor.

Since ALL GovGuam employees were in regular work status Director of Administration, Ed Birn, stated, inter alia, that the double pay feature of 8.406 was not triggered. That interpretation was not made known  until very recently by an off-the-cuff announcement by the governor’s acting chief of staff.

The March 19 Rule 8.406 intrepretation was bolstered by two subsequent acts of the governor, her ultra vires[1] promulgation of XO 2020-8 COVID-19 Response Differential Pay on April 5 and here veto message of Bill 336 which would have mooted the Birn interpretation that all employees remain on work status. The governor suggested that the cost of Bill 336, were it to become law, would be $36 million, probably necessitating the layoff of GovGuam employees.

An analysis of DOA Rule 8.406 is appropriate. Per 8.406 when the Governor declares a state of emergency two categories of benefits are created.

Category I is composed of employees who do not have to report to their regular jobsite but still draw their regular pay without being charged leave. DOA Rule 8.406 C. 1.

Category II is composed of employees who must go to work at the jobs for which they were hired.

DOA Rule 8.406 C. 2.

The author of Rule 8.406, apparently governed by some misbegotten sense of barnyard equity,[2] perceived an unfairness when some employees were allowed to stay at home with pay while others must report to work. The four bills attempt to correct the perceived unfairness by paying those who were required to work twice—once for working and once because others were paid and didn’t have to work. Thus, adding for working pay to didn’t have to work pay equals double pay, one for working and one because others didn’t work

Rule 8.406 is set out in the margin.[3] A review of what that rule doesn’t say is entlightening. Terms like “frontline workers,” “danger” and “sacrifice” being solely the products of the demagogic pandering advanced in support of double pay for “heroic frontline workers.” A good example of the demagogic pandering occurred on May 20 when Speaker Barnes called the legislature into emergency session and waived the public hearing requirement for these bills finding a danger to  the public health or safety!  Those who were required to work reported to their regular jobs. Nurses work at the hospital. Because hospitals are inhabited by sick people and harbor bacteria, viruses and fungi there is an  inherent risk in just being in a  hospital.[4]

Employees required to work did their regular jobs: firement put out fires, cops caught crooks and nurses went to the hospital. All are entitled to their regular compensation nothwithstanding that other employees were paid for not working.  Basing salary policy on the anomalie that some workers get paid for not working can never, even in the best of times, lead to a proper result. These are far from the best of times when thousands of workers are receiving no pay at all. The vast majority of unemployed and under employed workers likely can’t help but being repulsed by the spectacle of GovGuam employees, who didn’t miss a paycheck, carping about double pay.

Respectfully submitted,

Robert Klitzkie

---

[1] XO 2020 asserts the governor’s authoriy to promulgate the COVID-19 Response Differential Pay sans a citation to her authority to do so. Cf. the final sentence of the Attorney General’s opinion of May 14 which reads, “The Organic Act, in fact, expressly authorizes the Legislature ot set the compensation of all government of Guam employees.”

[2] https://books.google.com/books?id=2RU7AAAAIAAJ&pg=RA22-PA17&lpg=RA22-PA17&dq=barnyard+equity&source=bl&ots=Kb7-xYOOOz&sig=ACfU3U33B8T_NRbZ1iL_AkI7xUtNUbCEbA&hl=en&sa=X&ved=2ahUKEwiUoobvwc7pAhW9xYsBHRGeBwcQ6AEwAnoECAcQAQ#v=onepage&q=barnyard%20equity&f=false

[3] 8.406 Natural Disasters and Other Emergency Conditions

A. Excused absence with pay and without charge to leave shall be granted to employees when natural disasters or other emergency conditions create unsafe working conditions.

B. Excused absence, for natural disaster or other emergency conditions, may be granted only when there has been an official proclamation of the hazardous conditions by Executive Order, or an equivalent announcement by the Governor.

C. When the Governor declares a State of Emergency, the appointing authority shall determine whether affected facilities or portions thereof, which are located in the area covered by the Executive Order or proclamation, are to be closed.

1. Except for those employees determined by the appointing authority to be necessary for providing essential services, employees shall be released from duty with pay, without charge to leave, for the period the facility is closed.

2. Those employees, required to remain on duty to provide essential services, shall be paid at double the regular rate, or granted compensatory leave credits for the hours worked during the period the facility is closed and the other employees are on excused leave

[4] https://zaggocare.org/can-hospitals-make-you-sick-unfortunately-yes/

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A PART-TIME LEGISLATURE IS A GOOD IDEA ANY TIME TO PUT THE PUBLIC INTEREST AHEAD OF SELF-INTEREST

Letter to the Editor

Part-time legislature does away with pomp and perks

     Robert Klitzkie

(Editor's note: Former Sen. Robert Klitzkie disagrees with parts of The Guam Daily Post editorial on the part-time legislature idea. He italicized parts from the editorial, followed by his comments. He also feels the issue has never been debated by the legislature, although discussions have been made about the idea, but these talks didn't reach the legislative session floor for debate.)  

Editor:

“Pursuing a part-time legislature isn’t a good idea right now,” read the headline on today’s editorial. What you said is italicized.

"A part-time legislature would save money, but it could bring a number of disadvantages. For one, it could make the Legislature less representative of the community."

Now the legislature is primarily representative of those who have worked for a GOP or Democratic administration. Sen. Castro apparently still is!