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Bro, Sunshine is the best disinfectant

Tall Tales By Robert Klitzkie

Bro, we will be having a motion hearing before the OPA on Dec 27th. Last day to file documents is on Dec 23. Would it be possible for CLB Investigations section to be able to sign at least the attached sample letter by Dec 22nd? This will really help our case ….”

An email containing these words is central to a procurement dispute involving two construction companies—one local, JMI-Edison and the other off-island, Menzies Aviation—in addition to Public Auditor Benjamin J “BJ” Cruz, the airport, the Contractors Licensing Board, and Cecil “Buddy” Orsini.

BJ dismissed JMI’s appeal of the airport’s decision to award a contract to the allegedly unlicensed Menzies because of JMI’s “bro” email and Buddy’s quick turnaround. The public auditor characterized the exchange as a “fraud on this tribunal.”

JMI has spread papers before the court accusing BJ of arbitrary and capricious action. In those same papers, JMI alleges several irregularities in the airport’s handling of the bid and protest thereof. According to JMI, the airport did not maintain a record of the procurement underlying the bid to Menzies, a serious violation of the GovGuam procurement regime. The controversy is now before the Superior Court.

“Bro-gate” has been pretty interesting reading for Law & Order buffs. And transparency advocates can take heart from the fact that our Sunshine Law, 5 GCA Ch. 10, was a key factor in the kerfuffle.

First, JMI alleged that the airport could only respond to its Sunshine law demand for the procurement record after it had gathered the documents that should have been aggregated contemporaneously with the procurement activities they described. In short, the airport violated the law by not maintaining a record of procurement, a serious violation of procurement law.

Second, the “bro” email and a corresponding transmittal to BJ were unearthed when Menzies sent a Sunshine law demand to “Buddy.”

A little “Sunshine” goes a long way. Supreme Court Justice Louis Brandeis foreshadowed our Sunshine law. Brandeis made the famous statement, “Sunlight is said to be the best of disinfectants,” in a 1913 Harper’s Weekly article, titled “What Publicity Can Do.”

Our Sunshine law is available to everyone not just litigants. 5 GCA § 10108 (a) reads: “Every person has the right to inspect and take a copy of any public document on Guam, except as otherwise expressly prohibited in law, and except as provided in § 10108 of this Chapter.” The Sunshine law has teeth as several GovGuam officials found out when they had to pony up $1,000 out their own pockets for not honoring a proper demand.

The Sunshine law’s coverage is broad, reaching all public records, which “include any writing containing information relating to the conduct of the public’s business,” according to 5 GCA § 102 (d).

There is a loophole in our Sunshine law. GovGuam directors have some discretion. That loophole section reads: “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: (a)-(r). The key words are, “…nothing in this Chapter shall be construed to require…” This rather unartfully-worded statute allows GovGuam directors to deny production of certain public records because they want to. There is no prohibition.

The public should be leery of GovGuam directors who claim a prohibition of disclosure where none exists, i.e., the infamous “personnel matter” exception. A classic example is Rory Respicio, Port of Guam general manager. When questioned about misconduct by employees at the port, Respicio replied: "Because this is a personnel matter, we are prohibited from further comment on the matter.” There was no prohibition. Respicio just didn’t want to talk about misconduct at the port.

Notwithstanding the occasional scofflaw director, as JMI and Menzies discovered, Sunshine is the best disinfectant.

Bob Klitzkie is a former senator and Superior Court of Guam judge pro tem. He hosts the talk show, “Tall Tales,” on KUSG-FM (93.3 FM) weekday afternoons from 4 to 6 p.m.

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