Telo Taitague, barely reelected to the Guam Legislature into the new Republican majority, broke the island’s transparency laws when she failed to disclose her text messages with Attorney General Douglas Moylan upon a request for the messages made under the Freedom of Information Act. The ruling this week by a Superior Court of Guam judge in attorney Thomas Fisher’s lawsuit filed last year to compel Ms. Taitague to follow the law now settles the question of whether the FOIA, also called the Sunshine Act, applies to senators, and opens the door for Ms. Taitague to face an ethics probe and to be charged with a misdemeanor.
Mr. Fisher, who was the citizen who asked Ms. Taitague last year for the public documents (mobile messages on a public official’s private phone or computer that contain information about government business are considered public documents), is preparing an ethics complaint against the senator. He also is calling on Mr. Moylan to charge Ms. Taitague with misdemeanor misconduct for capriciously and arbitrarily refusing to disclose public records.
Mr. Fisher, who was a member of the Guam Legislature the past two years, served his FOIA on Ms. Taitague inside the legislative session hall during a session of the legislature. She crumpled up the document and threw it in the trash can near her. She never responded to Mr. Fisher’s FOIA request.
Ms. Taitague, who ironically had been among the loudest defenders of open government and the public’s right and access to information, argued that her senatorial office was not subject to the FOIA because her office is not technically an “agency,” under the definition of the FOIA.
“The word ‘agency,’ as used in the Sunshine Act, ‘means any authority of the government and includes a department, institution, board, bureau, commission, council, committee of Guam government, branch, autonomous instrumentality, public corporation funded by public taxes or funds, or other public entity of the government of Guam, whether or not it is within or subject ot review by another agency,'” Judge Dana Gutierrez wrote in her decision and order proclaiming Ms. Taitague’s violaton of Guam law. “An individual senator is not an ‘agency.'”
“Given the expansive language employed throughout the Sunshine Act, as wel as the rhetoric of the Act’s legislative findings, it is clear that the ‘purpose and policy’ of the Sunshine Act is to ensure a broad right of access to al public, non-privileged records,” Ms. Gutierrez wrote. “Accordingly, the Sunshine Act must be interpreted in a manner that vindicates that right.”
The court will schedule a hearing to determine whether Ms. Taitague will have to pay a $1,000 fine for breaking the law. She also will determine whether Ms. Taitague’s actions were “arbitrary and capricious” under the FOIA, a finding that could lead to criminal charges.
“This decision affirms the fundamental principles of open government and transparency that the Sunshine Act seeks to protect,” Mr. Fisher said in a news release issued following the decision and order. “While the immediate case may be considered moot, the ruling reinforces the accountability mechanisms in place for those who violate the law. I remain committed to ensuring that these principles are upheld for the benefit of our community and will vigorously pursue punishment including referring the matter to the Office of the Attorney General for criminal prosecution.”
Taitague Used Your Tax Dollars to Defend Her Violation of the Island’s Transparency Laws
In response to her loss in court, Ms. Taitague issued a news release falsely claiming that the court is not considering a finding that can lead to misdemeanor charges, and falsely insinuating that the court found she should not be personally liable to pay the $1,000 fine. Her sole public statement on the matter dealt with Mr. Fisher’s use of public funds to pay the attorney who represented him in the lawsuit.
“Mr. Fisher spent a lot of the people’s time addressing his own personal issues in court rather than working on behalf of the People of Guam in the Legislature,” Ms. Taitague said. “If Mr. Fisher does not reimburse the public for attorneys’ fees wasted on the writ brought in his personal capacity, I will speak to my colleagues about addressing Mr. Fisher’s improper use of public funds. I look forward to moving forward and focusing on the people’s business in this new legislative term.”
However, Ms. Taitague also used public funds to hire a law firm to defend her in the case.
Asked by Kandit for his justification in using public funds to pay for his lawyer, Mr. Fisher said in late August, “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 in August. “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 last August also asked Chris Barnett, who was the chairman of the legislative Rules committee that ran the legislature, 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.”
Fisher Calls Out Hypocrisy by Some Lawmakers
Last month, a majority of senators led by then-Speaker Therese Terlaje and Ms. Taitague, approved a resolution censuring William Parkinson for making a lewd non-verbal gesture on the floor of the legislature against Joanne Brown, who lost reelection in November. Mr. Fisher, who voted against the resolution, called out the hypocrisy of senators who supported the censure of Mr. Parkinson over a hand gesture, but have yet to do anything to hold Ms. Taitague responsible for breaking the law.
