Attorney General Douglas Moylan is threatening prosecution of anyone at the University of Guam, who uses money for the criminal defense of any of its employees.
In a June 6, 2023 resolution, the UOG Board of Regents adopted a policy that both indemnifies Regents and UOG officers from criminal proceedings, and allows the use of public funds for attorneys to represent those accused of crimes.
UOG is a publicly-funded instrumentality of the government of Guam.
“The government of Guam and people of Guam are not authorized to pay for any criminal defendant’s attorneys fees or costs,” Mr. Moylan wrote in a July 11 letter to UOG president Thomas Krise and board chairwoman Liza Provido. “The money that you are administering are in trust for the University of Guam and the People of Guam, who are the plaintiffs in these criminal cases. Nowhere in Guam law is there an exception for anyone (private party / criminal defendant) who either prevails, or has acted in “good faith” in a criminal case.”
The attorney general accused the board of taking illegal action, “and potentially criminal, especially if funds are actually paid out by all persons involved in making the expenditure.”
Asked for comment about the letter, UOG marketing and communications director Jonas Macapinlac responded, “UOG has received the letter, and it is under review.”
The June 6 resolution adopted amendments to UOG’s bylaws clarified a May 23 amendment that indemnified Regents and officers. Indemnification, put simply, is a form of protection. It is the party offering the protection (first party) to a party needing the protection (second party) from a party that may have a grievance (third party).
In the case of the May 23 amendment, the Board of Regents indemnified itself and UOG’s officers from complaints by a third party. In a government of Guam agency, this is a matter of sovereign immunity, a power only the Guam Legislature controls.
“The sovereign immunity doctrine likewise shields the People of Guam from any liability for anyone’s private criminal defense costs, absent the Guam Legislature specifically passing a law that allows for payment of monies to anyone not expressly authorized to receive those funds,” the attorney general wrote to UOG’s top officials.
But, the regents did not stop there. The June 6 resolution clarified the indemnification amendment to expand “that Regents and Officers will be indemnified in the event criminal proceedings are brought against them for their good faith performance of their official duties.”
The amended bylaws now state:
“Nothing contained in this Section shall limit the Corporation’s power to pay or reimburse expenses incurred in connection with the appearance of a Regent or Officer of the Corporation in their official capacity, in a proceeding at a time when he or she has not been made a named defendant or respondent in the proceeding. Nothing contained in this Section shall limit the Corporation’s power to use the Corporation’s General Counsel or outside Legal Counsel to represent a Regent or Officer of the Corporation in any civil, criminal, legislative, or administrative proceeding arising out of or in connection with their good faith performance of their official duties as a Regent or Officer of the Corporation.”
Citing the Organic Act of Guam, Mr. Moylan wrote, “UOG Resolution 23-20 cannot violate Guam’s sovereign immunity right granted to the People of Guam’s monies under the Organic Act of Guam by authorizing a payment not otherwise authorized in Guam law.”
According to the attorney general, the board’s actions violate both its enabling statute, and the appropriations laws.
“Our office is concerned why UOG decided to pass this type resolution that interferes with the People of Guam’s ability to maintain its fiscal responsibility, and is so clearly not authorized by any laws,” Mr. Moylan wrote. “We request that the UOG Board of Regents promptly meet to rescind Resolution 23-20, and we are prepared to appear at such a meeting.”
