Meditations from Micronesia

Guam’s Elected Attorney General – Fighting with the Governor Isn’t a Flaw; It’s a Feature

rob.weinberg@yahoo.com (Robert M. Weinberg) — Thu, 27 Jun 2013 08:52:00 +1000

Originally Published in the Marianas Variety on June 18, 2013

Those who suggest that Guam should return to the “good old days” when Guam’s Attorney General was appointed by the Governor forget a critical part of their own history. From the Congressional Record of the 1998 amendments to Guam’s Organic Act: “Public concerns revolve around political interference with investigations, inefficiency of case work and dismissal of the Attorney General without cause. In response to the growing number of complaints, a survey was conducted to determine an acceptable resolution. It was clear that respondents (sixty-nine percent) favored an elected position.”

In 1996 former (appointed) Attorney General and then-Senator (now retired superior court judge) Elizabeth Barrett-Anderson submitted testimony to the House Subcommittee on Native American & Insular Affairs in which she said, “the people of Guam expect the Attorney General to protect their interest above all else. An appointed Attorney General unfortunately must respond to a great extent to the concerns of the Governor.” Senator Ben Pangelinan testified a year later that “it has become inherently clear that the appointed Attorney General is not capable of isolating himself or herself from political interference.” He argued the Attorney General should be “accountable solely to the public,” in a position to “isolate himself or herself from political interference.” Finally, he observed, “It is fundamental to the underpinning of our democratic process of openness and fair play that the Attorney General not be used as an apparatus of the head of the executive branch, for the power of the law is too great and pervasive to be used as a political tool of a single person.”

Guam’s three elected Attorneys General – Doug Moylan; Alicia Limtiaco; and Lenny Rapadas – have each had their critics, sometimes with good reason. It comes with the turf.

Charged with what he believed to be a mandate from the public to prosecute public corruption and to compel public officials to follow the law, as Guam’s first elected Attorney General Doug Moylan tested the limits of the office, and was criticized for what some perceive as tilting at nearly every windmill that came into view – from criminally and civilly prosecuting former Governor Carl Gutierrez and his political appointees, cases he lost, to suing then-Governor Felix Camacho to compel him to appoint members to the Procurement Appeals Board, a case he won; from trying to assert control over litigation by stipulating to a consent decree in federal court involving the Earned Income Tax Credit while the Governor was off-island to appearing as counsel and confessing error on behalf of the Guam Election Commission; from suing the Guam Police Department and Department of Corrections to compel them to pay overtime to being sued himself for refusing to sign off on an attorney-client contract between the Guam International Airport Authority and a private law firm for no apparent other reason than that as the Government of Guam’s “Chief Legal Officer” he didn’t have to. (Disclaimer: I was involved in many of these cases.) Finally, in a case that went all the way to the U.S. Supreme Court and was decided after he left office, Moylan successfully challenged the Governor’s interpretation of the term “tax valuation,” in that part of Guam’s Organic Act’s which proscribes public indebtedness exceeding 10% per year of “aggregate tax valuation of the property in Guam.” Every one of the cases Moylan won or lost helped clarify the role of the elected Attorney General on Guam. And win or lose, no one can ever say that Guam’s first elected Attorney General didn’t try to hold the government and public officials accountable to the voters who elected him.

Alicia Limtiaco’s short time in office may be remembered more for her interest in addressing international human trafficking as a stepping-stone to the U.S. Attorney’s Office than prosecuting local crimes and providing legal support to the host of departments, boards, agencies and officials that desperately needed it, but her real legacy as Guam’s second elected Attorney General is that she closed John F. Kennedy High School for failing to correct a decade’s worth of health, fire and safety violations. An appointed attorney general would never have had the temerity to challenge the government’s finances by closing schools as she did. She also sued the Governor’s appointed directors of the Department of Revenue & Taxation over the licensing of illegal gaming devices, with the Governor’s Office attempting to interject its own opinion of the law with legal analysis that had been authored by lawyers for the owners of the machines. Had Limtiaco asked the Governor’s permission before shutting down JKF High School or suing the Governor’s appointed directors to follow the law, she would not have received it.

Just like his elected and appointed predecessors, Lenny Rapadas who currently serves as Guam’s third elected Attorney General has had his share of criticism. Rather than accede to the Governor’s demand to negotiate settlement of a judgment in a tax collection case for what some see as pennies on the dollar, Rapadas withdrew, because one federal court has held that the Organic Act requires him to, a ruling that does not extend beyond income tax matters. Rapadas has declined to step aside voluntarily where the Organic Act does not require him to do so, most recently in federal litigation involving the closing of the Ordot solid waste landfill. And Rapadas has had to sue the directors of Revenue and Taxation over licensing of gambling machines again because the new Governor, based on faulty legal reasoning supplied by private lawyers, is saying that he thinks these particular devices are in fact legal. In each of these cases, it has been suggested, conflicts between the Governor and the Attorney General have arisen when the Governor’s decisions and legal analysis have been influenced if not authored by lawyers representing private interests and political supporters, not by career government lawyers in the office of an independently elected Attorney General answerable only to the voters.

We need only look to our neighbor to the north to see what happens when an appointed attorney general signs off blindly on whatever the governor puts before him. Both are facing criminal charges that would likely never have had reason to see the light of day if the CNMI’s attorney general were elected rather than appointed. Are these the kind of “good old days” we’re missing back home in Guam?

Tension between elected Attorneys General and Governors isn’t a sign of something that needs to be changed back to the way things were. It is proof that the system is working precisely as it was intended when we asked Congress to change it.

Robert M. Weinberg has practiced law on behalf of elected and appointed attorneys general in the State of Alabama; the Federated States of Micronesia (Pohnpei); Guam; and the Commonwealth of the Northern Mariana Islands (Saipan). He currently serves the government of Guam as an Assistant Attorney General assigned to the Civil Litigation/Solicitors Division of the Guam Attorney General’s Office. The views expressed here are entirely his own.

From the University ~ Ask the Professor

rob.weinberg@yahoo.com (Robert M. Weinberg) — Thu, 25 Nov 2010 15:00:00 +1000

I'm teaching at the local university as an adjunct in the political science department. My "regular" job is as a government lawyer for the Territory of Guam, most recently assigned to the Guam Memorial Hospital Authority as in-house counsel. A student in my freshman "Citizenship" class (a course about what it means, not how to become one) asked me if I'd be willing to be e-interviewed for a "professor interaction survey." Here it is.

1. Why might a student be interested in the Political Science major/field?

RMW: This is really a question that the student should ask him/herself. I’m not a career counselor, but if you’re in it “for the money,” you’re looking in the wrong direction, even as a pre-law major. It’s what the student’s passion is that is important. If you have an interest in understanding and some day helping shape and define “the common good,” then political science may be for you. If Shakespeare, philosophy, history and current events, politics, conflict resolution, logic and psychology excite you, but you can’t choose between them, political science may be for you. An understanding of political science is the means to many ends, but to succeed in it or any endeavor, you have to be dedicated to and passionate about the means itself. Viewing it as merely a means to a particular end will lead to disappointment because specific goals and interests will change over time. It has to be something that makes you want to get up in the morning.

2. How did you (the professor) become involved in Political Science?

RMW: My answer to the preceding question pretty well describes myself as a student. I did not know I was going to go to law school – which is only one avenue you can pursue with a political science degree – until my senior year in college. I went to law school because I wanted to learn to think like a lawyer, something I was exposed to during an internship in my senior year that I had one summer in Washington, D.C. I actually didn’t pick a major (Criminal Justice), until the beginning of my junior year or end of sophomore year. So, in my case, since I had to pick something, I made a choice in part because I liked the head of the Criminal Justice department (an ex-con from a Florida penitentiary who reformed himself through education) better than the head of the English Department (who had “issues” about the way Shakespeare should be approached), but with a degree in Criminal Justice, there’s not a lot you can do other than by a cop, corrections, or social work. Very few people who go to college really know what they’re going to major in, in advance; those that think they do, often change their mind along the way. I learned recently from her husband that U.S. District Judge Francis Tydingco-Gatewood was originally a pre-med major, who met her husband (now a dentist) in a physics class in college before changing her major to pre-law. As a lawyer, and a government lawyer in particular, I am of course involved in the real day-to-day world of political science. But even as a teacher, I’m involved in political science through giving back and hopefully shepherding future leaders in the process of becoming themselves, whoever that may be.

3. What might a student be able to do after graduation with a degree in Political Science?

RMW: Again, I’m not much of a career counselor. Teaching and the law are obvious possibilities. But teaching pays poorly unless you’re academically gifted, and law schools aren’t always impressed with someone who only has a degree in political science, as they’re inundated with thousands of applicants with those credentials already. Again, I personally believe that if you’re inclined toward the humanities, you have to look beyond the immediate ends of what you can do with a particular degree and focus on what a degree in political science can add to your overall intellectual make-up and skill set, and where it can take you next. The four year degree itself is one step along the way. Possibilities of where to go next are generally limited only by your tastes, imagination and immediate past experience, which is true in any endeavor.

4. What are some interesting facts about Political Science that the average person would not know?

RMW: One “fact” that the average person probably doesn’t think of is that we’re all amateur political scientists, whenever we’re talking about current events, how they affect us personally, and how they affect us as part of various collections or groups of people we belong to, sometimes thrown together by happenstance such as race, religion we’re born to, family connections, country of origin, even sexual orientation, but more importantly by choice such as political party preferences or where we stand on particular issues. Whether around the dinner table talking to family or around the water cooler shooting the breeze with colleagues, we’re all political scientists. You don’t need a degree or a title or a license to give your opinion on such things, or to participate in the “science” of politics in the various ways we’ve discussed in class (voting, jury service, etc.). But it does help to have been to college and have read a few books if you want to be taken seriously.

5. What are some things that a student can do now that will help a student in a job search in this field?

RMW: This I can answer, because I can tell you what I’m looking for in potential employees in the various organizations I belong to. The most important thing, beyond consistently good grades, is to show that you’ve got the aptitude to apply what you’re learning in other environments. One of the things I did when I got back from my internship in the Justice Department my last year of school was I went and volunteered at the local district attorney’s office. They were a bit flummoxed about what to do with me (as I am in my office when asked), but it did demonstrate initiative and willingness that I was willing to do it for free without even the expectation of academic credit, and I did learn about the internal workings of the local D.A.’s office, and it added another paragraph of real world experience to my resume’, even though I wasn’t paid for it. You’ll need proof of practice of the skills you’ll be using in a working environment. If you’ll be writing reports, you need good writing skills, and will need writing samples that show you know how to think and communicate ideas in a logical fashion; if working with numbers, you need to understand statistics and economics and spreadsheet analysis. If you’re working with people, you need good communication and presentation skills. When looked at in this light, college provides a real smorgasbord of potential skill sets you can add to your resume’. But you’ve got to get out there and be willing to work your way up through the ranks. Don’t expect them to come to you and just “know” how brilliant you are and what an asset you’d be to their organization. Prepare yourself to offer them the proof before going in. Make them “want” to know you. That means now is the time to start adding to those skill sets that have value in the real world.

6. Any other interesting information (i.e. internships, research opportunities, T.A. opportunities, volunteer work, part time jobs, graduate school information, any tips) that will make a student successful?

RMW: I am a big proponent of academic internships and volunteer experiences, for reasons I just shared. If you can’t find paid work, look for ways to volunteer in government offices, political parties, non-profit organizations, teaching and tutoring if you have the skills, ask professors if there are any research projects you can assist them with, to hone your research and writing skills. This not only adds to your resume’, it gives context to what you’re hopefully learning in class.

7. Any other helpful advice you might have for a student in general, or a student in this major?

RMW: The most important part about success as a student in this or any major, from my recent observations teaching (and from life in general), is that the student has to make the commitment to do whatever it takes to take away as much from college as possible. It’s trite but true: you get out of college (and life) what you put into it.

First, it’s important to identify what your weaknesses are and to focus on improving on them. It’s about the discipline of becoming the best we can be. We are all naturally endowed with a certain amount of ego, and we cannot let ego, fear of failure, or fear of being thought of negatively interfere with doing what we have to do to improve ourselves.

Second, it is critical that we do not allow outside distractions interfere with our purpose in attending college. Even the seemingly unavoidable conflicts and distractions – from personal and family crises to natural disasters – are in many ways predictable and can be prepared for to some extent. Always have a plan B, a contingency plan.

Third, it is imperative to identify and take advantage of support networks, family, other students, professors, services at college, whether you need help or not, because at some point, we all need help.

Fourth, take charge of your academic career. Don’t sit back and wait to be told what to read or limit yourself in what you take in to what just may be on a test. If someone mentions Machiavelli or Shakespeare or Rousseau or Plato, but it’s not assigned reading, read it for yourself anyway.

Fifth, as I’ve mentioned in class more than once, find a mentor or mentors. Find someone you can talk to, get advice from, run ideas past with. I am convinced that every successful person in the world has a mentor who is an email or a phone call away, even if the rest of the world doesn’t know it.

Sixth and finally, seize the day, be the day. Find your passion and follow it. We are the dreamers of the dream…

Most of these lessons I learned after the exams were over. The nice thing about life, though, is that it's never too late to learn them.

See you in class.

Meditations from Micronesia

Guam’s Elected Attorney General – Fighting with the Governor Isn’t a Flaw; It’s a Feature

From the University ~ Ask the Professor

Recommended Reading ~ A Teacher's Tale