by Mindy Aguon

Guam - The Attorney General's Office has released a highly anticipated legal opinion on the legality of two Port Authority of Guam board of directors members that was called into question recently by port oversight chair Senator Tom Ada. It was during a recent informational briefing where senators questioned the legality of the two members that they had previously confirmed.

The AG's Office determined that the board members are lawfully holding office.

The opinion was issued today and signed by Attorney General Leonardo Rapadas and Assistant Attorney General Robert Weinberg. Senator Ada asked for the legal opinion as he and the Calvo Administration disagreed on the issue of whether board chair Dan Tydingco and Mike Benito were legal board members. Senator Ada believed that the two were filling the unexpired terms of their predecessors. The law requires the port board members to have staggered terms.

In January 2011, Governor Eddie Calvo relieved the previous five Port Authority board members of their duties. The AG's Office, however, doesn't believe the action was authorized under the Organic Act. But because none of the former members challenged their removal and the legislature confirmed new members, the matter is moot. The opinion also noting that the governor's appointment letters do not reflect which appointments were designed to fill the specific vacancies left by unexpired terms.

Additionally the AG's Office found that the legislature failed to consider this when they were confirming the appointments and made the assumption that the individuals were confirmed for a new three-year term. The opinion states it "does not matter what the governor's appointment and transmittal letters said with respect to the effective dates or the length of the appointees' term nor does it matter what the legislature did or did not say in its notices of confirmation as to when any particular board members terms began and ended because the Governor is permitted to make an appointment that commences a new three year term."

Now in order to determine which members of the current board are holding which terms of office, the AG's Office worked backward from the most recently confirmed board members. They determined that Christine Baleto's term will expire on June 30, 2014; Shelly Gibson and Tydingco's terms will expire on June 30 of this year.

The AG's Office, however, was unable to ascertain which seat belongs to Benito and which belongs to Eduardo Ilao, but the office still believes that the current members are all, at this time holding office in de jure capacities which means that even if Ilao or Benito's terms expired back in December of last year, the law allows hold over capacity for 90 calendar days plus 3 legislative days and the other director's term would expire on June 30th and could be extended, as well.

Meanwhile, the Civil Service Commission delayed hearing motions filed by seven terminated Port workers because they wanted to first obtain a copy of this legal opinion before addressing the appeals.

The seven workers were fired for allegedly conspiring to defraud the government and then trying to cover it up.

Meanwhile, Senator Ada says he's pleased with the AG's opinion as he believes that the appointments should only be for the balance of the unexpired term. He says he intends to reach out to the AG's Office to discuss the facts at how he arrived at his expiration dates for the two positions and how the AG arrived at his conclusion that the terms are still legal. Based on the opinion, Senator Ada says he intends to renew his call to the Governor's Office asking that he reappoint individuals to the Port board and send those appointments over to the Guam Legislature.