GEC doesn't have the power - lawmakers, courts do - KUAM.com-KUAM News: On Air. Online. On Demand.

GEC doesn't have the power - lawmakers, courts do

by John Davis

Guam - For the last couple of months, we've heard different sides of the story regarding Matt Rector fibbing on his GEC affadavit and his Government of Guam Employment application.  for the last couple of months, the Guam Election Commission, the Guam Police Department, the Office of the Attorney General and the Legislature have been conducting separate investigations to determine whether or not Rector could keep his senatorial seat after KUAM confirmed he lied on 2 applications. 

Well the GEC is the first government agency to come up with a conclusion to their investigation and typically, they do not have the authority to address the issue any further.  However; the GEC Legal Counsel did provide two avenues for a solution to removing a liar and a convicted criminal.  Let's take a look at why GEC has no power, then look at the government entities that do have power to resolve the issue

The Legislature is the first stop for action, here's why.  According to title 3 of the Guam Code Annotated, there exists no procedures addressing or allowing the de-certification of a candidate upon issuance of a valid certificate of election by the GEC.  On top of that, the GEC has not been able to obtain any documents from California where Rector was convicted explaining how the crime was committed and what actions were taken against him. 

The reason Rector's Guam Police and Court clearance came back clean was there is a big chance Guam's court records are not connected to records from California, it is my belief that court and police records kept are for incidents that take place on Guam.  Did anyone try to get a hold of the California court that Rector was convicted at? I don't think so, but it would be real nice if someone attempted to get that information in hopes of resolving this issue.  For the specific reason that there is lack of proof Rector was infact convicted of burglary, it doesn't surprise me that the GEC is taking this position.  After all, the GEC is mandated to administer elections, not investigate the election process.

From the beginning, I have said if GEC could not determine if Rector actually qualifies to be a sitting senator, the the Legislature and the Court have the authority to answer this question, but somebody has to pose the question. That is exactly the position the GEC is now taking so let's take a closer look at my original projection, which is now GEC's conclusion stated in the legal opinion from their Legal Counsel.  The first avenue that can be pursued lies with the legislature. 

According to language in the Organic Act the legislature plays the role of the judge when it comes to selection and qualification of its members.  Even after a candidate is certified by the GEC, the Legislature still maintains its authority to qualify its member and install the certified member by oath.  The Organic Act further states that no person shall sit in the Legislature who is not a citizen of the United States, who is not at least 25 years of age and who has not lived on Guam for at least five years.  If a member of the Legislature has been convicted of a felony or a crime involving moral turpitude, they can not sit as a senator until a pardon restoring the individuals is granted.  There's only one person who can pardon criminals on Guam and that is the Governor of Guam, so do I think Governor Felix Camacho, who is a republican will pardon Matt Rector, who is a democrat? Nope.

Here's how I think the legislature can resolve the Rector issue.  First, lawmakers need to request information related to Rector's conviction from the California Court that convicted him so there will be proof he committed burglary and proof he was convicted of burglary. 

Second, if the information is not obtained before lawmakers go in to session in January, the body should make a motion to exclude Matt Rector from all legislative proceedings pending the outcome of the legislature's investigation.  Rector should not be allowed to participate in session because there is great concern from the people, as well as other lawmakers, that Rector no longer belongs in the legislature.  I'm sure the majority of the super majority Democrats and super minority republican's will agree on this, it is fair to the people and reasonable to ask of the legislature.

If the legislature can not seem to address this issue themselves, they can petition the courts to answer the question.  The Election Code is devoid of any authority or any statutory mechanism allowing GEC to de-certify or remove a sitting senator who has been discovered to have been convicted of a felony or moral turpitude crime.  Language contained in the GCA allows for election contest procedures, where the scrutiny of the Guam Courts can be invoked when certain expressed conditions precedent are involved. 

The question that must be asked of the Court is "Based on information obtained from the California Court in which Matt Rector was convicted in, was the crime of burglary that was committed a crime of moral turpitude?  If this crime is defined as a crime of moral turpitude will the Court order de-certification of Rector's election results or will the Court order the legislature to uphold its rules and remove Rector from his legislative seat?"

If the documentation GEC lacks turns up, the Legislature and the Court should not have a problem upholding Guam Law and remove Matt Rector from his senatorial seat.  If the legislature or the Courts order Rectors removal from office, will it be done before February? 

According to title 3 of the GCA, a special election shall be called whenever one or more vacancies occur prior to 8 months before the next general election of members of the Guam Legislature.  If nothing happens by February 2010, Rector could possibly keep his seat until the next General election is over.  What do you think our leaders and the court will do?  Go ahead, I'm interested to read what you think.

The views and opinions expressed on KUAM Columns do not reflect those of Pacific Telestations, Inc. or its advertisers

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