Attorneys disagree over AG's representation in Ordot case

by Mindy Aguon

Guam - The federal shutdown could impact a hearing set for this Saturday in the District Court.  District Court Chief Judge Frances Tydingco-Gatewood noted in an order issued today that Saturday's hearing is subject to change in the event the shut-down is extended and if the operations of other federal agencies who provide services to the court is affected.  The news comes as parties for both sides disagree on who the Attorney General's Office represents in the Ordot consent decree case.   

Has the Government of Guam been afforded due process? The answer varies depending on who you ask.  Governor's legal counsel Sandra Miller believes it hasn't, telling KUAM News, "In the latest filings in the Ordot consent decree case, the parties continue their dispute over who the Attorney General's Office truly represents.  The AG's Office contends it does in fact represent the government and have provided meaningful representation."

Miller additionally wrote: "The Ninth Circuit is likely to reach the inescapable conclusion that the Government has been and continues to be denied a meaningful opportunity to be heard by this Court's orders preventing a full substitution of counsel and allowing the AGO to continue to participate on behalf of the Receiver.  The Government's success on its appeal is highly likely."

As we reported the Governor's Office is seeking an emergency stay until an appeal in the case is resolved by the Ninth Circuit Court of Appeals. Miller argues there is a clear conflict of interest as she contends AG's Office filings indicate that the agency, by its own admission, had not been representing the government since April 2011 and that its client is the Guam Solid Waste Authority, which by the court's direction is under control of federal receiver Gershman, Brickner & Bratton.  Miller has been trying to get the government an un-conflicted counsel to act in GovGuam's best interests moving forward. "The AGO's abandonment of the Government violates all of its fiduciary duties to the Government.  As a matter of professional responsibility, an attorney owes a duty of loyalty to his client," she said.

But the AG's Office opposes any stay.  Assistant AG Kathy Fokas argues in her opposition that the AG's Office, "Does and always has represented the Government of Guam in both this case and the condemnation case." She adds the court resolved that there are no conflicts of interest.  Fokas wrote: "The hostile assertions made against the AGO by the Office of the Governor in its pleadings are shocking. The AGO represents the Government of Guam, including its line agencies and autonomous agencies, and not the Receiver, both in this case and in the Condemnation Case...The Governor's Office has offered no credible evidence of clear error by the Court, or asserted there has been a change in controlling law, or that substantially difference changed circumstances exist that would result in manifest injustice."

But Miller contends the government will be irreparably harmed unless the stay is granted or the court replaces the government with the Guam Solid Waste Authority as the sole party to the consent decree and litigation and requires the federal receiver to operate the GSWA in such a way that it will insure that obligations are met under Guam law and consent decree obligations are funded without further involvement or funding from the government.

The court meanwhile was supposed to hold a quarterly status hearing next Wednesday, but moved it to Saturday, October 26. The federal receiver will be providing the court with an update on the progress made toward compliance with the consent decree

The governor or the lieutenant governor, speaker or vice speaker, Guam EPA administrator, and Guam Solid Waste Authority board members were ordered to attend.  The court also encouraged members of the 32nd Guam Legislature to attend the hearing as well.