VIDEO: Klitzkie – Senatorial Salary Increase “Was and Is” Illegal; Urges Passage of Bill #491

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Guam –  The hearing on Senator Chris Duenas’ “Bucks for Buses” bill took less than a half hour to complete Monday afternoon. It started just after 5 pm and was over before 5:30 pm.

Bill # 491 would undo the salary increases Senators gave themselves in 2010 and roll salaries back to about $55-thousand dollars from the current $60-thousand dollars. 

READ Bill #491 HERE

The move would save about $120-thousand annually which Duenas has proposed giving to DPW to help improve the troubled school bus service.

Among those providing testimony in favor of the measure was former Senator Bob Klitzkie who submitted written testimony arguing that the pay raise Senators got in 2010 “was … and is illegal.”

Klitzkie did not testify in person. But earlier he told PNC News that as the Legislature deliberates cuts in GovGuam’s budget they should set an example by rescinding their own salary increase.

In his written testimony, Klitzkie, who is an attorney, also argued that “ the salary increase of $5532 per annum which senators of the 30th legislature found for themselves and continues into the 31st legislature  was and is illegal as not supported by a proper interpretation of the law … because of the illegal salary increase senators who served in the preceding and current legislature pocket a windfall of $5532 per annum.”

 

READ former Senator Klitzkie’s Testimony in FULL below:

Testimony of Robert Klitzkie on 491-31

A FIVE THOUSAND FIVE HUNDRED THIRTY-TWO DOLLAR ($5532) PER YEAR windfall! A windfall caused by an illegal salary increase ought to be hard to defend while a bill that eliminates the windfall should be a “slam dunk.”  A glance at PLs 21-42 and 59 and the attached CSC paper reveals that the salary increase of $5532 per annum which senators of the 30th legislature found for themselves and continues into the 31st legislature  was and is illegal as not supported by a proper interpretation of the law.  (See copy of the text of an email to Sen. Respicio set out as a note below.)  Because of the illegal salary increase senators who served in the preceding and current legislature pocket a windfall of $5532 per annum.

There are probably a multitude of  reasons for passing bill 491. Eight are listed below not necessarily in the order of their importance:

As explained above and in the note the $5532 salary increase provides an illegal windfall which ought not to be difficult to correct.

Passage of the bill will distract attention from the overpayment of as much as $20,460 that senators serving in the 27th and 28th legislatures received if Senator Respicio’s interpretation of law is correct.  (It isn’t, but following Respicio’s interpretation means that senators in 27th and 28th legislatures should have received only 50% of a judge’s salary, i.e. $50,000 per annum not $55,308. It can’t be both ways.)

Extreme measures, i.e. layoffs, reduction in hours, furloughs, etc. are now foreseeable.  The people of Guam will look to senators for solutions. Senators can take the moral high ground and lead by example or they can, hunker down, rationalize, quibble and cling to their illegal raises.

Senators don’t ride school buses; children do.

There is law on the books that requires senators to fund “…regular, timely school bus transportation to and from the school for his [a student’s] attendance area…”  in your annual budgets(1 GCA 715, 12. (n) and PL 28-45 §13).  Obviously you haven’t done that.  Here’s your chance.

It will show that you can subordinate your self-interest for the good of the children.

You end the suspense created by what appears to be your attempt to “run out the clock.”  Every day that passes between the introduction of the bill on July 25 until its passage puts an additional $2.66  per hour, or $26.59, per day in a senator’s a pocket and  more for the Speaker–$5.91 per hour and $47.28 per day. So the longer it takes to pass the bill the more money for you and the less money for buses.

You show that you’re not immune to the concept of legislative reform.

Here’s a reason not to pass Bill 391-31:

It will cost you money.

The purpose of this testimony is to urge the speedy preparation of a committee report, the rapid placement of Bill 491-31 on the next session agenda and the swift passage of this salutary bill.

Respectfully submitted,

/s/
Robert Klitzkie      
Yigo
August 19, 2012

NOTE
________________________________________________________________________
April 25, 2011

Rory,

Thank you for the copy of the Opinion of Legislative Counsel entitled Compensation of Members of the Legislature.i Having reviewed the opinion and applicable law, I submit that the appropriate salary of a senator in the 31st Guam Legislature (GL) is $55,303 per annum.ii

Introduction

The Civil Service Commission (CSC) set a senator’s salary at L5 ($55,303) on October 1, 1991. (See Ex A, attached)

The enactment of PL 21-59 on September 27, 1991 apparently gave the CSC the authority to reduce a senator’s salary to L5 ($55,303) from L4 ($60,850) as set by PL 21-42, which was enacted September 15, 1991. PL 21-42 Part 8, Ch V, § 13(o) reads:

“(o) Notwithstanding any other provision of law including this section, the salary of the senators is set at L4 and the salary of the Speaker of the Legislature is five thousand ($5000) above L4 on the unified pay schedule adopted in this Section.” [Emphasis supplied]

PL19-34 §36, effective December 20, 1988, did link the salary of a senator to judicial salaries when it was enacted. However, under ordinary rules of statutory construction, PL 21-42 Part 8, Ch V, § 13 (o) (September 15, 1991), having been enacted later in time, repealed by implication the inconsistent earlier statute, PL19-34 §36 (December 20, 1988).  The use of the extremely strong statutory language, “Notwithstanding any other provision of law…” bolsters that interpretation.

Chronology

On December 20, 1988 PL19-34 § 36 linked senatorial and judicial salaries.
On September 15, 1991 PL 21-42 Part 8, Ch V, § 13(o) repealed PL 19-34 § 36 by implication and set a senator’s salary at L4 ($60,850).
On September 27, 1991 PL 21-59 apparently gave the CSC the authority to reduce a senator’s salary to L5 ($55,303).
On October 3 the CSC set a senator’s salary at L5 ($55,303) effective October 1, 1991. (See Ex A, attached)
From October 1, 1991 to March 3, 2003 the 21st, 22nd, 23rd, 24th, 25th, 26th and 27th GLs set a senator’s salary at $55,303.
On March 3, 2003 a senator’s salary was reduced to $40,000 pursuant to PL 27-005:IV §8.
On October 1, 2003 a senator’s salary went back to $55,303 pursuant to PL 27-005:IV §8.
From October 1, 2003 until counsel’s opinion a senator’s salary was  $55,303

Analysis
Counsel links the increase in a judge’s salary to the increase of a senator’s salary by citing 2 GCA § 1106(a) that, were it not for the enactment of PL 21-42 Part 8, Ch V, § 13 (o), would have coordinated a senator’s salary with a judge’s salary. A judge’s salary during the period March 3, 2003 to September 30, 2003 was $100,000 per annum. From October 1, 1991 to March 3, 2003 a senator’s salary was $55,303.

On March 3, 2003 PL 27-005:IV §8 provided a subsection (b) to 2 GCA §1106, which reads:

“(b) From the date of enactment of this Subsection (b) and until the end of Fiscal Year 2003, the annual salary of Senators of I Mina’Bente Siete
Liheslaturan Guåhan [the Legislature] shall be based on eighty percent (80%) of the amount as computed according to Subsection (a) of this Section, for a reduction of twenty percent (20%)”. [Emphasis supplied]

During the period that (b) was in effect a senator’s salary was reduced from $55,303 to $40,000, which is 80% of $50,000 (not 80% of $55,303 or $44,244.40.) A senator’s salary never was set at $50,000 (50% of a judge’s $100,000 per annum salary.) A senator’s salary was $55,303 before the applicability of (b) and returned to that level at the end of fiscal 2003 (October 1, 2003).  

The CSC established the $55,303 salary on October 1, 1991 (See Ex A, attached.) The CSC action was part of the implementation of Unified Pay Schedule (often referred to as the Hay Plan.) The CSC action is pursuant to provisions of PLs 21-42 and 59, which are controlling, thus 2 GCA §1106 is inapplicable.

PL19-34 §36 enacted 2 GCA §1106 on December 20, 1988 but §1106 was repealed by implication by the passage of PL 21-42, which was enacted September 15, 1991. PL 21-42 Part 8, Ch V, § 13(o) reads:

“(o) Notwithstanding any other provision of law including this section, the salary of the senators is set at L4 and the salary of the Speaker of the Legislature is five thousand ($5000) above L4 on the unified pay schedule adopted in this Section.” [Emphasis supplied]

A senator’s salary was set at $55, 303 and remained at that level henceforth except for the period beginning March 3, 2003 until September 30, 2003 when the salary returned to its pre-PL 27-005 level as required by 2 GCA §1106(b).

The enactment of PL 21-59 on September 27, 1991 apparently gave the (CSC) the authority to reduce a senator’s salary to L5 ($55,303) which was accomplished by the CSC on October 1, 1991 (See Ex A, attached)

The law sets a senator’s salary at L5 ($55,303) in the Unified Pay Schedule as per PL 21-42 Part 8, Ch V, § 13 (o) as reduced by the CSC pursuant to PL 21-59. Subsection (o), having been enacted by PL 21-42, would repeal by implication the inconsistent earlier statute, PL19-34 §36, under ordinary rules of statutory construction.  The use in (o) of the extremely strong statutory language, “Notwithstanding any other provision of law…,” which has retrospective, contemporaneous and prospective effect, bolsters that interpretation.

The CSC set a senator’s salary at L5 ($55,303) on October 1, 1991. The six GLs that convened after October1, 1991 obviously used this method of setting a senator’s salary.  Especially noteworthy is 27th GL when the salary of a senator was set at $55,303 after the seven month reduction provided by PL 27-005:IV § 8. The 28th, 29th and 30th GLs followed suit.

The language of 2 GCA § 1106(b) (set out below) instructs as to the proper usage of (a) of that section.  The key word is computed.

“(b) From the date of enactment of this Subsection (b) and until the end of Fiscal Year 2003, the annual salary of Senators of I Mina’Bente Siete
Liheslaturan Guåhan [the Legislature] shall be based on eighty percent (80%) of the amount as computed according to Subsection (a) of this Section, for a reduction of twenty percent (20%).” [Emphasis supplied]  

Subsection (a) never set a senator’s salary ex proprio vigore, but served only as the basis for computation pursuant to (b.)  The Legislature itself has, from October1, 1991 on, used the CSC established L5 ($55,303) to pay a senator (except for the seven months when the salary was set at $40,000.)

Summary
Proper construction of PL19-34 §36, PL 21-42 Part 8, Ch V § 13 (o), PL 21-59, PL 27-005:IV § 8 and Ex A (attached) set a senator’s salary at L5 in Unified Pay Schedule ($55, 303) without reference to PL 28-137 which is inapplicable because there is no statutory linkage between a judge’s salary and a senator’s salary after the enactment of PL 21-42 Part 8, Ch V, § 13 (o) on September 15, 1991.  PL 21-42 Part 8, Ch V § 13 (o) disconnected that linkage as later in time than PL19-34§ 36, which would have created the linkage. Also, the use of the phrase Notwithstanding any other provision of law (which has retrospective, contemporaneous and perspective effect) made 2 GCA §1106 ineffective except as a basis for the computation required by PL 27-005:IV § 8 in 2003.

It is noteworthy that the 21st, 22nd, 23rd, 24th, 25th, 26th, 27th,  28th, 29th and 30th GLs set a senator’s salary at the L5 ($55,303) level for almost 20 years.

Conclusion
The salary set by law for a senator in 31st GL is $55,303 or L5 in the Unified Pay Schedule. If I can provide further clarification or assistance please call me at 653-6607. (I have attached a copy of this letter for easy reference.)

Sincerely,

Bob 

i. Learned counsel’s opinion holds that the passage of PL 28-137 did prevent an increase in a senator’s salary, but did not prevent a salary increase based on the Judicial Council’s annual adjustment of a judge’s salary! So even though the Judicial Council’s authority arose from the enactment of PL28-137 there was no bar to the increase notwithstanding that but for the enactment of PL28-137 the Judicial Council would not have had such authority. Since the inapplicability of 2 GCA §1106 because of the passage of PL 21-42 Part 8, Ch V, § 13 (o) is clear, further analysis of this bifurcated interpretation of PL28-137 is unnecessary.

ii.The CSC set salary levels in the Unified Pay Schedule for the Governor, Lt. Governor, Senator, Mayor and Vice Mayor but not Speaker. Thus the salary level L5 ($55, 303) is applicable to all senators.