‘Ex-MPLA exec fails to give evidence of his termination’

The Superior Court has ruled that former Marianas Public Lands Authority commissioner Edward M. Deleon Guerrero failed to provide evidence that he was effectively terminated from the position.

Associate Judge Ramona V. Manglona said Deleon Guerrero has not produced any evidence of a public hearing wherein a majority of the MPLA board voted to terminate his employment contract “without cause.” The judge denied the former commissioner’s motion for summary judgment.

Citing DPL’s late filing, Manglona, in the same order, granted Deleon Guerrero’s motion to strike Department of Public Lands’ opposition to his motion for summary judgment.

Manglona said DPL’s opposition was filed and served 18 days after Deleon Guerrero’s second notice to DPL of the Oct. 23, 2006 hearing date for his motion.

DPL’s counsel Assistant Attorney General Gregory Baka’s “press of business” rationalization “falls flat in the face of the record,” the judge pointed out.

Manglona cited that in the opposition to the motion to strike, Baka appears to be seeking special exemption from the rules of procedure.

In court papers, Baka asserted that “filing motions for the enlargement of time for the filing of oppositions to motions that have not even been properly noticed for hearing would be counter-productive and only serve to make the AGO’s backlog worse.”

Manglona said she finds Baka’s “apparently unrepentant attitude disturbing: there can be no judicially-created exception to the rules of procedure in favor of busy government offices.”

Manglona set a scheduling conference for the case on Nov. 7 2006.

Court records show that in June 2006 Deleon Guerrero filed a lawsuit to collect $252,000 that the defunct MPLA allegedly owes him for his termination as commissioner. Deleon Guerrero, through counsel Brien Sers Nicholas, sued DPL, the successor of MPLA, for breach of contract. The plaintiff filed a motion for summary judgment. He also moved to strike DPL’s opposition to his motion.

In the motion for summary judgment, Deleon Guerrero alleged that DPL, as successor to the MPLA, is in breach of the agreement by refusing to pay him any amount under the employment contract.

In its answer, DPL denied its obligation, asserting that Deleon Guerrero’s termination was ineffective as a violation of the Open Government Act and that the terms providing for a lump sum payment violate public policy.

In her order, Manglona said that Deleon Guerrero’s evidence is not sufficient to demonstrate that he is entitled to the relief he is asking for.

Specifically, the judge pointed out, Deleon Guerrero has not produced evidence to show that there was an effective occurrence of the condition such as his legally valid termination by the board, that would give rise to DPL’s duty to comply with the written agreement.

Manglona cited a trial court’s decision in Hofschneider v. Demapan-Castro that found a violation of OGA because the record did not reflect that a public hearing was held.

Manglona said the same court found that the OGA was violated when plaintiff’s contract was terminated by an internal memo rather than at a public board meeting because a termination is indeed a “final action” that falls within the scope of the OGA.

“The facts of this case is similarly situated,” the judge noted.

With respect to Deleon Guerrero’s request to strike DPL’s opposition, Manglona said defendant’s opposition to the motion “is troubling.”

Manglona said DPL’s counsel states that he only received a “telephonic notice” of the notice of hearing, which is inconsistent with the court’s record in the case.

“Counsel proffered no explanation for this discrepancy. At the hearing, defense counsel conceded that he received the e-filed motion and notice of motion on Aug. 23, but stated that he never received the actual hearing date and time,” she said.

DPL’s reasons, the judge said, are “inadequate and unpersuasive.”