Attorney General Douglas Moylan became the last line of defense to put the brakes on Gov. Lou Leon Guerrero’s mad dash to commit taxpayers to a $1 billion hospital development at Eagle’s Field after six democrat senators Thursday sided with the governor.
And Mr. Moylan did not disappoint the people.
Today, the attorney general, whose signature is required prior to the governor’s on a proposed lease agreement leasing Naval land at Eagle’s Field to the government of Guam, delivered a 12-page legal memo telling the governor what nine of the 15 senators have been saying all along:
‘Get the legislature’s approval on the lease, or you’ll be violating the Organic Act of Guam.’
“The Supreme Court of Guam has made clear that the Governor is unable to enter into a contract that constructively appropriates funds by obligating the Government to pay an entity, such as a Lessor,” Mr. Moylan wrote to Ms. Leon Guerrero. “In this case the Lease clearly binds and commits the Government of Guam to make actual fair market value payments int he event that the project is not completed in 10 years.”
According to the memo, an attachment to the proposed lease (the administration has never made the full documented lease with attachments public) states lease payment terms to the Navy that may be waived if the hospital is developed within 10 years of the lease signing.
“Further,” the attorney general wrote of the lease attachments, “it makes reference to an undefined ‘in-kind’ consideration obligating the Government of Guam to provide (unspecified) assets or resources.”
“[T]he Lease obligates the Guam taxpayers to paying the fair market rent at the time of signing of the Lease,” he wrote. “This money amount has not been appropriated by the Guam Legislature as required by Guam local and Federal law.”
Speaker Therese Terlaje and Sen. Tom Fisher – both attorneys – have been explaining this to their six democrat colleagues (who sided with the governor) the entire time the legislature was debating Bill No. 12. That legislation, sponsored by Ms. Terlaje and Sen. Chris Barnett, would have required the governor to receive legislative approval prior to signing any lease with the Navy.
All 15 senators voted to approve the bill in February. Then, the governor returned the bill to the legislature with her objections. This also is known as a veto. According to the Organic Act of Guam, which establishes and governs the separation of powers among the three branches of government, two thirds of senators must vote to override the governor’s objections in order for vetoed legislation to be enacted into law. In this case, 10 votes were needed.
On Thursday, Vice Speaker Tina Muna Barnes, and Senators Roy Quinata, Will Parkinson, Dwayne San Nicolas, Amanda Shelton, and Joe San Agustin voted against the override attempt, despite the very argument Mr. Moylan today has validated in the legal memo.
The nearest-to-coherent argument these six senators had for siding with the governor was their belief that she has the authority to expend monies for the hospital.
“The Supreme Court of Guam … acknowledged that the Governor does indeed have the prerogative to administer the expenditure of funds,” Mr. Moylan wrote, adding the inseparable, “however, the funds myust first have been appropriated.”
According to the case law Mr. Moylan referenced in Pangelinan v. Gutierrez, 2003, “However, where the Governor involves the Government in a contract for the payment of money, without the requisite legislative approval for such contract, the Governor acts so without authority.”
Violation of Guam Procurement Law
“The Lease appears to violate the Guam Procurement Law,” Mr. Moylan wrote. The attorney general again cited the Pangelinan case, quoting from the law: “No officer or employee of the government of Guam, including the Governor of Guam, shall …. [i]nvolve the government of Guam in any contract or other obligation for the payment of money for any purpose in advance of the appropriation made for such purpose.”
The Guam Legislature has not appropriated any money for the lease, nor has it approved the lease, as Bill No. 12 would have accomplished.
“The Least as written cannot be signed by this Office,” Mr. Moylan wrote.
If the governor does not have the lease changed to reflect the attorney general’s legal concerns, have the admiral sign the new lease, provide the new lease to the AG in time for proper legal review and his signature, and then sign the lease by April 15, then Eagle’s Field, Mangilao no longer will be an option for the construction of her medical campus.
Hospital Point, Tamuning, however, remains an option, as it belongs to the government of Guam, and it once held a hospital.
AG Moylan Letter to Gov LG Re GMC Lease03.31.2023
