Attorney Challenge Delays Hiring Of Special Prosecutor On Guam

Procurement of someone to investigate illegal retroactive pay raises challenged

Shawn Raymundo

HAGÅTÑA, Guam (Pacific Daily News, May 27, 2016) – The governor’s former campaign attorney has filed a protest with the attorney general’s office, delaying the solicitation of a special prosecutor to potentially investigate pay raises given to Adelup staffers.

Approximately $800,000 in raises was paid to 107 staffers in the governor and lieutenant governor’s offices in December 2014.

Attorney General Elizabeth Barrett-Anderson issued an opinion last December that stated the raises were illegal because they were paid retroactively without specific authorization by law.

In February, Barrett-Anderson announced a special prosecutor would be hired to investigate the payments.

Since the attorney general’s office initiated the procurement process to hire the prosecutor, the request for proposals has been amended four times. The first three amendments were primarily issued to push back certain meetings and due dates.

Attorney Thomas Fisher, Gov. Eddie Calvo’s former gubernatorial campaign counsel, took issue with the series of changes and amendments that were made to the request for proposals and filed the protest on April 14.

In the protest, Fisher wrote the process by which the RFP has developed “may undermine public confidence in the procurement” and calls into question the fairness of Guam’s procurement system.

Fisher, who is also legal counsel for the Guam Economic Development Authority, added that the changes in the procurement process have disadvantaged potential bidders “who have abided by the conditions of the RFP and are admitted to practice on Guam.”

Fisher and his firm, Fisher and Associates, has multi-year contracts with the government of Guam worth more than $1 million, according to government contractlistings.

Fisher on Thursday did not wish to answer Pacific Daily News’ questions about the protest because the procurement is ongoing.

“I can’t make a statement because the procurement is still open,” he said. “I don’t feel comfortable making a statement about it.”

The due date for interested attorneys and law firms to bid on the contract was April 29, but the protest has prevented the attorney general’s office from moving forward, according to spokeswoman Carlina Charfauros.

The attorney general’s office hasn’t issued a response to Fisher, as it’s still reviewing the protest. If the attorney general’s office responds that Fisher’s protest doesn’t have any merit, he could file an appeal with the Office of Public Accountability.

In her legal opinion to Calvo this past December, Barrett-Anderson advised Calvo to get legislation passed to legalize the action or have the staff repay their retroactive lump-sum payments — many of which were retroactive to January 2014.

The Calvo administration has maintained it never meant to give the Adelup staffers retroactive raises, which violated the government’s compensation laws. In recent months, the governor’s office announced it would begin getting the money back from the staffers, through installment payments.

Gov. Calvo recently sent a bill to the Legislature proposing the staffers be allowed to keep their raises. Vice Speaker Benjamin Cruz, who chairs the legislative committee with oversight of such measures, has stated he doesn’t support a bill that interferes with an issue involving a pending investigation.

Pre-proposal conference

During the procurement process, a pre-proposal conference was held on March 11 at the attorney general’s office in Tamuning where prospective attorneys were required to attend in order to pick up a disc containing confidential materials related to the Adelup raises. The disc wouldn’t be available to any attorney after the close of that business day.

The confidential documents were to essentially serve as a conflict check, so if attorneys, upon review of the evidence, had a conflict of interest, they were to return the disc and recuse themselves from procurement process.

Fisher, along with former Attorney General Leonardo Rapadas and Sandra Miller, the governor’s chief legal counsel, attended the March 11 meeting. Adelup officials have stated that Miller, who was one of the employees to receive a raise in December 2014, didn’t attend the meeting because she’s interested in bidding on the contract.

Oyaol Ngirairikl, Adelup’s director of communications, previously said that Miller had attended the meeting because she wanted to know what sort of documents the attorney general’s office was giving out.

“The reason why she wanted to view the documents is because she didn’t know what was being provided and therefore certainly didn’t know if this was — or was not — the same information and evidence in (Adelup’s) payroll records,” Ngirairikl said.

Ngirairikl acknowledged that a conflict of interest would arise if Miller were to submit a bid.

Amendments to RFP

The first two amendments to the request for proposal subsequently delayed the pre-proposal conference from its original date of Feb. 25 to Feb. 26, then to March 11. In both amendments, the conditions of the conference remained the same, Fisher noted in his protest.

The same day of the meeting, the attorney general’s office issued a third amendment, which changed the conditions of the pre-proposal conference. In the third amendment, it was no longer a requirement for the attorneys to attend the meeting to get the disc, and could make alternate arrangements with the office to pick it up at a later time.

In the same amendment, the deadline for prospective attorneys and law firms to submit their bids for the contract was delayed from March 31 to April 29.

The fourth amendment opened up the procurement to off-island attorneys through pro hac vice application, meaning such lawyers would be allowed to practice in Guam for this occasion only with the sponsorship of a local firm.

According to the General Services Agency’s list of available requests for proposal and invitations to bid, there are several amendments and changes that have been made to the bid specifications.

Such changes are neither unusual nor uncommon, according to Sen. Tom Ada, who chairs the Legislature’s Committee on Procurement.

“The fact that there’s numerous changes being made to the specifications, that’s just making the RFP that much clearer and more precise (for the bidder) to be able to submit their offers,” he said.

Pacific Daily News
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