There may be a problem with the emergency legislation passed by the legislature over the weekend.
Legislative legal counsel Ana Maria Won Pat Borja sent a memo to senators Saturday after they unanimously passed Bill 259 which, as amended, would allow the newly appointed Yona Municipal Planning Council to name an acting mayor in that village, without the need for a recall election subject to legislative approval.
However, in her memo, Borja raised concern about whether the bill’s grant of appointment authority to the planning council deprives the governor of her appointment authority in violation of the Organic Act.
“We recognize that the governor’s authority to appoint officers of the executive branch may call into question the provisions of the bill,” states Borja. “And mayors are generally understood to be part of the executive branch.”
The bill has now been sent to the governor for review by her legal counsel.
READ the memo in FULL below:
From: Legislative Counsel <[email protected]>
Date: Sat, Jan 18, 2020 at 2:57 PM
Subject: Memo re B259-35
Håfa Adai Senators,
Prior to voting on the engrossed version of Bill 259-35 (COR), we want to inform the Body of an issue that was raised during emergency session regarding whether the bill’s appointment mechanisms to fill a temporary or permanent vacancy of a Mayor divest the Governor of her appointment authority in violation of the Organic Act of Guam. In light of the limited time to research this question, and the lack of authority on the precise issue presented, we submit the following analysis for your review without a conclusion as to the organicity of the Bill 259.
The bill does two things relative to the issue of appointment:
1) It establishes a new 3 GCA § 13106.1, which provides a mechanism to fill a temporary vacancy of a Mayor. Under proposed 3 GCA § 13106.1, if a Mayor is temporarily unable to fulfill his duties under 5 GCA § 40112 for more than thirty (30) consecutive calendar days, the Municipal Planning Council (MPC) shall appoint an Acting Mayor with the advice and consent of the Legislature.
Note that this new provision provides the same mechanism—appointment by the MPC to fill a vacancy in the office of Mayor—as that laid out in current law at 5 GCA 40110(b) (vacancies for Mayors less than 240 days before next general election) for a different event, i.e., temporary vacancy.
2) It amends 5 GCA § 40110(b) by adding a new subsection (3) to establish a mechanism to fill a permanent vacancy of Mayor in cases when no MPC exists. Under the proposed 5 GCA § 40110(b)(3), if the MPC is not established, the Executive Director of the Mayors Council of Guam (MCOG) shall be appointed as Acting Mayor for up to ninety (90) calendar days. The Acting Mayor shall nominate members to establish the MPC, who shall be approved by a 2/3 vote of the MCOG.
In effect, once the MPC is established under 5 GCA § 40110(b)(3), the MPC shall, pursuant to 5 GCA § 40110(b)(2), fill the vacancy of a Mayor by majority vote of the MPC and subject to the advice and consent of the Legislature.
The Governor’s appointment authority derives from 48 U.S.C. § 1422 of the Organic Act, which provides that the Governor, shall appoint, and may remove, all officers and employees of the executive branch of the government of Guam, except as otherwise provided in this or any other Act of Congress, or under the laws of Guam, and shall commission all officers that he may be authorized to appoint.
In at least once instance, the Guam Supreme Court has stated that this power may be “limited.” Sablan v. Gutierrez, 2002 Guam 13 ¶ 13 (“Assuming arguendo that the GEC is an executive agency, the phrase “except as otherwise provided. . . . under the law . . . .” is an “unmistakable recognition of the authority of the lawmaking department to provide for the appointment of all officers whose appointment is not definitely regulated by the Constitution itself.”) (citation omitted). In Sablan, the Supreme Court upheld a statute requiring the Governor to appoint members of the Guam Election Commission from lists of candidates provided by the main political parties on Guam and rejected the Governor’s argument that the statute violated his appointment authority. Id. at 14-16. The Court distinguished other cases involving challenges to the Governor’s appointment authority, namely Bordallo v. Baldwin, 624 F.2d 932 (9th Cir. 1980) and Nelson v. Ada, 878 F.2d 277 (9th Cir. 1989), stating that the facts in Sablan were different:
Unlike the facts presented in Bordallo v. Baldwin , and Nelson , no other provision within the Organic Act limits the manner in which the legislature may restrict the power of appointment with respect to the GEC. See Bordallo, 624 F.2d at 934-35 (finding that a statute rendering the Governor’s power to appoint hospital trustees ministerial confected with the provision of the Organic Act that vested the Governor with authority to maintain Guam’s health services); see also Nelson, 878 F.2d at 279-80 (finding that at a statute divesting the Governor of this power to appoint school board members conflicted with the provision of the Organic Act that vested the Governor with authority to maintain Guam’s public school system). Therefore, section 2101(a) is a legitimate exercise by the legislature of its express authority to determine how the members of a board it created are to be selected and appointed. (citation omitted). Sablan at 14.
We note that the facts presented here are akin to those in Sablan, and arguably no other provision within the Organic Act limits the Legislature’s authority to fill mayoral vacancies. But, we recognize that the Governor’s authority to appoint officers of the executive branch may call into question the provisions of the bill. Here, the appointment involves Mayors of Guam, who are generally understood to be part of the executive branch. See 5 GCA § 40115(a) (Mayors and Vice Mayors are “empowered [t]o act as the executive head for the administration of the laws of Guam in his jurisdiction. Unlike GEC, however, the offices of Mayor and Vice Mayor are elected positions, and no clear authority has addressed the distinct question of whether a vacancy in an elected position of Mayor that is filled by an appointing authority other than the Governor is a violation of the Organic Act.
We will continue to research this issue and are available to discuss the matter further on request.