HAGÅTÑA (The Guam Daily Post) — Two government officials indicted on corruption charges related to approving sanitary permits for public schools without legally required inspections will argue for the Office of the Attorney General’s disqualification because of a conflict of interest.
On Tuesday, former Department of Public Health and Social Services Director Arthur San Agustin and Masatomo Nadeau, current DPHSS chief environmental health officer, will appear in the Superior Court of Guam for an evidentiary hearing related to corruption charges alleging sanitary permits for Guam Department of Education schools were approved without performing legally required inspections.
The purpose of the evidentiary hearing stems from a motion filed by San Agustin’s defense counsel, Joaquin “Jay” Arriola Jr., to disqualify the OAG from prosecuting San Agustin and Nadeau. Arriola argued there was a conflict of interest in San Agustin and Nadeau’s charging, considering they had been given legal advice by the AG before being indicted.
The hearing, which was ordered to be under seal and not open to the public by Judge John Terlaje, will consist of Arriola and Nadeau’s attorney, Patrick Civille, questioning employees and former employees of the AG’s office about the investigation into San Agustin and Nadeau and if there are procedures in place at the OAG to establish a conflict wall between the Civil Division and Prosecution Division at the OAG.
Despite arguments from Attorney General Douglas Moylan to prevent the OAG employees from testifying, Terlaje ordered last month that Chief Deputy Attorney General Joseph Guthrie, investigator Maria Apuron and former employees Sandra Miller and Jessica Toft will be called to testify.
Terlaje also ordered that Moylan would not testify at the hearing. However, Moylan is now expected to after a subpoena was filed and he was listed as a witness in the OAG’s witness list for the hearing, court records show.
GRTA
When San Agustin and Nadeau were indicted last year, five officials from the Guam Regional Transit Authority were also accused of corruption related to the hiring of former interim executive manager of GRTA, Richard Ybanez, without Ybanez “having a requisite college degree.”
In the Transit case, Arriola represents the agency’s board chair Alejo Sablan and made a similar motion to disqualify the AG’s office from prosecuting Sablan and his co-defendants because of a conflict of interest, considering the GRTA board received advice from the OAG.
An evidentiary hearing was held in November 2023 for the motion and was taken under advisement by Judge Alberto Tolentino after hearing from AG employees, including attorney Tom Keeler who testified he wasn’t aware if a conflict wall was in place and had communicated via email to Moylan that it “wasn’t clear” Ybanez was “improperly in the interim position,” according to Post files.
Judges typically have 90 days to issue decisions on matters taken under advisement. However, Sarah Elmore-Hernandez, the Judiciary’s spokesperson, told The Guam Daily Post last week, “This time frame is subject to the discretion of the judicial officers and may vary depending on the complexity of the case and the facts and circumstances presented to the judge.”
Elmore-Hernandez said it’s anticipated Tolentino “will issue a decision soon.”
Withdrawal
While a decision is pending in the two cases, Moylan, on Feb. 28, issued a letter indicating he would temporarily withdraw representation from 22 government agencies currently under investigation by the Government Corruption Division at the OAG.
Moylan explained in the letter that the decision to temporarily withdraw stems from the conflict of interests arguments made in the DPHSS and GRTA cases. Moylan also stated the AG’s office withdrew until a decision is made in the current corruption cases.
The AG’s withdrawal was one reason that led Speaker Therese Terlaje to call the 37th Guam Legislature into an emergency session last week. The other was Bill 206-37, which was passed Thursday and enacted Friday. The law now extends the emergency period for Guam Power Authority’s temporary power procurement and waives the automatic stay that occurs in case of protest.
Moylan and his team appeared at the emergency session to answer questions lawmakers had about his office’s withdrawal, but no measures addressing the issue managed to make it onto the emergency session agenda.
On Friday, the day after lawmakers closed the emergency session, the governor called a special session to consider three bills addressing the AG’s withdrawal.
Bill 237-37 increases the threshold for the AG to have procurement oversight to $1 million. It is currently at $500,000.
Bill 254-37 and 255-37, both substituted versions, propose various changes to the law, including an authorization for government entities to hire legal counsel and ways to continue with procurement matters in case the AG withdraws his office’s representation from those entities. Bill 254 also increases the threshold for the AG’s procurement oversight to $1 million.
Despite lengthy discussion during the special session Friday, senators adjourned without passing any bill.
Although Moylan initially told affected agencies that his office would not sign any document needing his signature, he later asked agencies to sign a waiver to have their documents processed. Moylan now says that his office will still process documents but will append a disclaimer indicating that they are not serving as legal counsel for the agency, although he said he would prefer that agencies submit the waiver.
This hasn’t alleviated concerns for the Office of the Governor, however, which stated that the AG is still attempting to skirt his duties.
“The AG refuses to provide any legal services to these agencies, and his stamp confirms that. His ‘workaround’ is really just his attempt to circumvent his ethical obligations to the agencies, who are his client(s) according to the Organic Act (of Guam) and Guam law,” Krystal Paco-San Agustin, the governor’s spokesperson, stated.
The Guam Department of Public Health and Social Services Division of Environmental Health office in Hagåtña on Thursday, Feb. 8, 2024.
