Chris Barnett signed off on both Tom Fisher and Telo Taitague’s use of public funds for a lawsuit between the two Republican senators. The Democratic senator, who chairs the legislative Rules Committee and therefore is the arbiter of legislative operations spending, signed off on separate contracts for Taitague and Fisher to hire lawyers for a lawsuit involving allegations Ms. Taitague broke the law.
The lawsuit surrounds Mr. Fisher’s June 28, 2024 Freedom of Information Act (FOIA) – sometimes referred to as “Sunshine Act” – request for public documents from Ms. Taitague. Technically, she did not herself respond to the FOIA request as the law requires. However, the documents he wanted were given to him by another party, the legislature’s executive director.
Decades ago the legislature enacted the FOIA under the premise that because the government is a creature of the governed, the people own the government and thus have the right to inspect and take copies of public records. The act has been updated over the decades for modernity, and case law has made such interpretations as mobile phone communication involving any public business by a government employee being subject to the FOIA’s disclosure statute. That includes, for instance, WhatsApp messages.
On July 9, Mr. Fisher (in his personal and senatorial capacity) sued Ms. Taitague in her official capacity (inherently, only a government official can violate the FOIA) for failing to disclose the public documents he requested.
According to the law, “Whenever it is made to appear by verified petition to the Superior Court of Guam that certain public records are being improperly withheld from a member of the public, the Court shall order the officer or person charged with withholding the records to promptly disclose the public record or show cause why the person should not do so.”
In fact, a public official who violates the FOIA could face misdemeanor charges and prison time, if the court finds that the public official acted capriciously and arbitrarily in withholding public records.
“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 law states, adding, “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.”
The law, however, makes no mention of allowing for, regulating, or prohibiting the use of public funds so that a public official being sued for breaking the FOIA can hire a lawyer to represent him, her, or them. Neither does the law discuss the ability for public funds to be used so that one public official can sue another public official for violating the FOIA.
According to legislative records, prior to the lawsuit, Mr. Barnett approved a legal services contract using public funds so that Mr. Fisher could hire attorney Rachel Taimanao-Ayuyu to represent him as the petitioner in the lawsuit. The contract is for $9,000, and lasts between July 1 and September 30, 2024.
Weeks later, Mr. Barnett approved a contract for Ms. Taitague’s use of the law firm Razzano, Walsh, and Torres PC. That contract is for $10,000, and is for the period August 12 through September 30, 2024.
While the law says nothing about allowing or prohibiting these expenditures, the legislature’s standing rules specifically allow senators to use your money to pay for their defense against lawsuits, and to pay for lawyers to help them sue others.
“Members may initiate, continue, or defend against any civil lawsuit, federal, local or otherwise, related to legislative power, legislative work, or taxpayer lawsuit with legislative funds, either under Committee, or Senatorial office,” Section 15.12 of the legislature’s standing rules states.
Asked by Kandit for his justification in using public funds to pay for his lawyer, Mr. Fisher said, “I’m a [p]laintiff as a [s]enator and I want to see a public document. I have that right regardless of my capacity. Although I’m not required to disclose my reasons, I issued a FOIA because I want to confirm that Senator Taitague was not lying to the body about the content of the requested document. Her resistance to disclosing a simple text message suggests to me that either she was lying or she destroyed the public document. An act of stupidity of which she is most especially capable.”
“The use of public funds to respond to Senator Fisher’s lawsuit is something I tried to avoid,” Ms. Taitague said. “Unfortunately, Fisher, despite having been formally provided the information by the legislature and the attorney general’s office, the information he requested, saw fit to sue me in my official capacity as a senator. As such, the rules of the legislature provide that my defense be paid with legislative funds. Such a waste of time and money, as you will see as the case progresses. Use of public funds for my defense of a frivolous lawsuit is much different from Fisher suing me in his personal capacity using his personal attorney paid for with public funds. I have instructed my attorney in this case to work on getting this case resolved as soon as possible and to recover fees and costs associated with my defense. ”
Kandit also asked Mr. Barnett for his justification in approving the use of public funds for these senators’ lawyers.
“Standing rules allow for it,” he said. “Both of their offices hired lawyers and the matter is now playing out in court with both sides using counsel paid for with their office’s legislative funds, as allowed by the standing rules.”
Even if it’s legal, is it right? Is it ethical?
The use of public funds to pay for lawyers on both sides of a case – criminally and civilly – has longstanding precedent. For example, when a person is charged with a crime, his prosecutor is a government lawyer. If that criminal defendant can’t afford an attorney, he may be appointed a public defender or otherwise a court-appointed attorney, either of whom will be paid with public funds.
Governors usually have one attorney on staff to represent them. The current governor as of the last staffing pattern had three lawyers on staff. Governors also have contracted outside attorneys to represent them when they bring lawsuits or defend themselves against lawsuits in their official capacities.
The legislature also has an attorney, called the Legislative Counsel, who represents the interests of the legislative branch as a whole. Oftentimes, the minority party also will contract an attorney to represent the minority senators as a bloc. It is a rarity when one senator sues another senator in their official capacities. In this case, the lawsuit is about one government official who is accused of breaking the law, and possibly committing a misdemeanant crime.
The FOIA was designed to protect every citizen’s right to public information. Thus, any government official in custody of a particular public record who fails to timely disclose that public record to a citizen can be sued by that citizen. According to the law, if the government official is found to have erroneously withheld a public record, that public official would have to pay the aggrieved citizen up to $1,000. However, the law doesn’t put that government official who broke the law on the hook for court costs and attorneys fees, if awarded by the court. Those monies would have to come from the agency in which that public official works.
If you or any other citizen aggrieved by a public official who breaks the law wants to sue that public official, there is no public fund you or any other citizen can use to hire a lawyer. When Michael Borja, the former director of land management, was sued in 2017 by Bob Klitzkie for breaking the FOIA, Mr. Borja retained private counsel.
Should public funds be used by two senators engaged in a lawsuit? Does it matter that Mr. Fisher’s purpose for the lawsuit is a public purpose; one that compels another senator to follow the law? Does it matter that Ms. Taitague was sued in her official capacity? And should Mr. Barnett have allowed the expenditures at all?
When Kandit asked for Mr. Barnett’s justification for approving the contracts and he replied, “Standing rules allow for it,” Kandit asked him:
“Do you agree with those rules?
“What do you think of the ethics of it? That a Senator accused of violating the FOIA is using public funds to defend her ability to not comply with the law?”
He did not answer those questions.
We also pointed out that the standing rules state that senators “may” use public funds for lawyers, and that as the expenditure authority for the legislature, he had a choice to approve or not allow the use of public funds for these lawyers. We asked him:
“Why did you think it was right to approve Fisher’s expenditure?
“Why did you think it was right to approve Taitague’s expenditure?”
He did not answer those questions either.
The Fisher FOIA
During session on June 28, Mr. Fisher wrote a handwritten demand for production of public documents and gave it to Ms. Taitague at her desk in the session hall. She looked at the paper, then threw it in the trash.
“A handwritten FOIA request was mistakenly discarded due to its vague legibility, lack of a proper addressee, and incomplete address for response,” Ms. Taitague said in a news release reacting to Mr. Fisher’s news release that informed the public of the events. “In fact the request made no mention of who or where a response should be sent. Whether or not the request was properly done, I fully intend to respond. The request, however, remains in the trash bin where it belongs.”
That action formed the basis of Mr. Fisher’s allegation that not only did Ms. Taitague fail to disclose the public records, she did so arbitrarily and capriciously.
“[B]ecause her actions were arbitrary and capricious and therefore criminal, [Taitague] should be declared a misdemeanant and punished in accordance with the criminal laws of Guam,” Mr. Fisher wrote.
This story keeps getting intriguing, because the public documents Mr. Fisher wanted were screenshots of Ms. Taitague’s WhatsApp conversation with Attorney General Douglas Moylan, whose office decides whom to prosecute.
Keep reading, because the facts and allegations of the story become more sordid.
Ms. Taitague has called the lawsuit frivolous, asserting that Mr. Fisher indeed received the public documents he requested.
“Here, the FOIA was received on June 28, 2024, and the Guam Legislature responded to it four (4) working days later on July 5, 2024, and it supplemented its response on July 11, 2024,” Ms. Taitague wrote to the court. “Therefore, this matter is moot because the FOIA was responded to in the time required and no records that were requested were withheld from the Petitioner.”
It was not, however, Ms. Taitague or her office that provided Mr. Fisher the response. It was the legislature’s executive director. The law, Mr. Fisher asserts, compels Ms. Taitague to respond to Mr. Fisher by either disclosing the documents timely, asking for an extension due to factors spelled out in the law, or denying disclosure and stating the reasons for the denial.
“Taitague has not complied,” Mr. Fisher wrote in one court document in the case.
Mr. Fisher also asserts that Ms. Taitague’s handling of the original FOIA document and a series of incidents when a process server tried to serve her with summons is a matter of public concern under the FOIA, in that court action short of punishing Ms. Taitague will only embolden her and others to break the FOIA in the future.
“‘A controversy is not moot when the case ‘presents issues capable of repetition yet evading review,'” Mr. Fisher replied to Ms. Taitague’s response to the lawsuit. That citation, according to the Fisher reply, comes from the case Guam Election Comm’n v. Responsible Choices for all Adults Coal., 2007 Guam 2013. “[Taitague] has made and continues to attempt to avoid transparency and accountability within her office. [Fisher] has a reasonable expectation that she will continue to withhold public documents in similar future requests for information.”
Back to the matter of the process server.
In a July 17 Declaration of Non-Service to the court by process server Joselito Marquez, he described several attempts he made to serve Ms. Taitague the alternative writ in the case.
“On July 12, 2024 at about 2:45pm,” Mr. Marquez declared to the court, “I attempted to serve [Taitague] at her office located at 309 DNA Building, Hagatna, Guam. According to a staff; member the [Taitague] was at the Guam Legislature Building, Hagatna, at that time.”
Ten minutes later, he said he attempted to serve her again at the Guam Congress Building, but a legislative staffer stopped him and said the senator could not be bothered. He said he asked the staffer to let her know he wanted to serve her court documents. He waited, he said in his declaration, but she never came out.
At 4:47 p.m. that day, he saw her exiting through the back and heading to her car. “She evaded service by hurrying to her vehicle as I called out to her,” Mr. Marquez declared. “She entered her vehicle and reversed out of the parking slot while ignoring me as I was attempting to talk to her by the driver side window which she kept rolled up.”
On July 15 at about 1:50 p.m., he again tried to serve her at her office, and again a staffer told him she was not available.
About 10 minutes later, he was back at the Guam Congress Building, where the senator was attending a public hearing. At about 3 p.m., he said, “I attempted to serve the Respondent as she exited the building when she shoved me out and shut the door in front of me, yelling ‘You’re not allowed in here!’ I stumbled and was caught off guard from her assault.”
Kandit has not reached out to Mr. Marquez to ask whether he filed any police complaint against the senator.
1 Comments
Richard
08/26/2024 at 5:59 AM
The General Guam Public falls victim again to the guffaws of the LIE-Jester-lature in this matter. The overview still shows immature Senator who believes the Guam Public doesn’t need to know, valid info.
That’s the nefarious, gas lighting politics played by those ‘senatorial pari, connections and familia name politrix handbookers’ on 160k+ Americans on a small Island owned by Uncle Sam.
Several possible facts stand out. There’s the Brown vs. White, Local vs. Haole picture. Yup, flashback to Matt Rickter vs. Jud-THIEF Won Pat over the ‘Gavel Ownership.’ It was another local vs. Haole affair. Yup, the ‘he touched me accusations’ had fire but then you practice the same ‘touching and variations exist during greetings, wakes, get together, family reunions, etc. The point is that senators can be honest or dishonest. Remember, Guam host a measly 160k+ Americans with numerous relations.
The Guam Public NOTES again another gaffer. Yup, we have some people who are inept at understanding the American Law vs. the Chamorro Law. Or definitely that Executive staffer willingly did his job, knew he violated the law, had Taitague play the ‘I didn’t know answer,’ or maybe she’d get the Court and LIE-jest-lature sympathy. Its the local vs. Haole sickness.
You know what? Its clear that other Senators didn’t want to challenge Taitague on her facts. Fisher could DEFINITELY be right. Remember, this is Election Year. All those relatives and their VOTE come into play.
What’s more are those ‘Silent Chiba’ SinActors who rather participate not doing their Senator jobs.
Remember, no one sided with Fisher. Yup, the Guam Public feels those spineless SinActors ‘begging’ for your VOTE.
Ethecally, the Guam Public NOTES the financial disparity of this particular legistion. This legislation has seen some changes considering communication advanvest. Yup, no SinActor deliberately ‘ignored the What If argument.’ Yup, the guilty party gets off scot free to. In fact, frivolous amounts less than the established Fines for Lawyer cost employment, should be paid by the LOSER.
Yup, another MAS MESsy Chamorro Joke!