By Gina Tabonares
Variety News Staff

THE 13-year-old cost of living allowance case is facing a new round of impediments after a group of Guam taxpayers yesterday questioned the objectivity of Superior Court Judge Arthur Barcinas who ordered the payments of $123 million in the COLA settlement, as well as two Retirement Fund board members who are going to receive a substantial amount from the class settlement as members of the class.
Atty. Robert J. O’Connor, on behalf of Pat Duque, Arnold Davis Jr., Thomas Sheldon and Armando Dominguez, filed four pleadings yesterday in the trial court, which included a motion to disqualify Judge Barcinas, a motion to vacate judgment orders, and a motion to intervene.
The taxpayers-intervenors want to stop the payment of the $123 million to the COLA class as ordered by Judge Barcinas, as they object to the judge’s competence.
The taxpayers say the decision on the amount of the COLA settlement should not have been entrusted to Judge Barcinas because his father, Jose T. Barcinas, is a member of the plaintiff class, and stands to benefit financially from the court ruling.
The judge’s father, according to O’Connor, is entitled to receive $134,595, the sixth largest amount in the COLA class.
O’Connor said that other close relatives of the trial court judge are also class members and will also receive lesser but still substantial amounts under the settlement.
The intervenors’ lawyer claimed that Judge Barcinas rejected other calculations proposed by the governor and the Retirement Fund where the total recovery for the class would have been substantially lower because the recovery for his father and other relatives will be less.
The taxpayers said because of Judge Barcinas’ questionable impartiality, his Nov. 21, 2006 judgment should be vacated and all orders entered in the case since the judge was assigned on March 17, 2005 should be abolished.
Conflicts of interest
Besides Judge Barcinas’ conflict of interest, the intervenors also questioned Retirement Fund Board members Wilfred Leon Guerrero and Joe T. San Agustin’s failure to disclose that they will also benefit from the court decision to almost as great an extent as the judge’s father.
Leon Guerrero and San Agustin were listed as the 11th and 19th highest beneficiaries of the court order.
The intervenors’ attorney also argued that Judge Barcinas applied a flawed consumer price index that grossly overstated the inflation rate when the law required him to apply instead a cost of living index.
“The cost of living index cannot lawfully be used in place of a consumer price index,” O’Connor said, adding that the power to set a cost of living index formerly vested in the Department of Commerce has been reverted to the governor upon the dissolution of that government agency.
He said that a floating base must be applied to the cost of living index for all persons retiring after 1988.
The intervenors also questioned the awarding of $12 million in attorney’s fees to class counsel Mike Phillips. They said the amount should be determined through a fairness hearing.
O’Connor added Judge Barcinas erred in allowing hundreds of retirees to get COLA increases that they were not entitled to, and did not subtract from the COLA payments the millions of dollars they had already received.
Peoples’ money
O’Connor, in a press statement, said his clients are in favor of GovGuam retirees receiving their COLA but he said the monies allocated for the COLA class are public funds paid out of the general fund, which was paid into by the intervenors and other taxpayers.
“Retirees deserve a fair cost of living adjustment because they worked hard for many years but this money belongs to all the taxpayers and the decision should not appear to be influenced by family concerns nor timed to take advantage of political concerns,” O’Connor said.
He said the timing of the $123 million COLA payment decision is suspicious as it came out on Oct. 5, 2006, which is less than 30 days before the gubernatorial election.
“This timing seemed designed to make it politically impossible for the governor to appeal within the 30-day time limit and keep his job,” O’Connor added.
Wrong and mistaken
COLA class lead counsel Mike Phillips, however, said O’Connor is completely mistaken regarding Judge Barcinas not subtracting the monies already paid to the class.
“He’s just wrong. The judge did subtract the earlier COLA amounts paid,” Phillips said.
Phillips said the intervenors’ lawyer also made a mistake in his interpretation of the language of the COLA statute.
“The law referred to the inflation rate contained in a cost of living index. Atty. O’Connor is mistaken about the language of the statute. The law required retirees to be paid at the rate of inflation with the base year 1988. All the issues the new group raises were raised before Judge Healy Weeks and she ruled in favor of the COLA class,” Phillips said.
He added that Judge Barcinas allowed those fighting against the COLA to make their arguments at least twice.
“He ruled in favor of the COLA class. To blame the law on anyone other than the Legislature is nothing more than playing games. Both Judge Weeks and Judge Barcinas said their upholding the law did not mean they agreed with the wisdom of the Legislature, but the law had to be followed,” Phillips added.