Chapter 5

COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 1CHAPTER 5 OFFICE OF THE SURUHANU (OMBUDSMAN ) § 5101. Legislative Finding and Intent. § 5102. Definitions. § 5103. Creation of Office. § 5104. Qualifications. § 5105. Election of Suruhanu. § 5106. Certificates of Appointment. § 5107. Term of Office. § 5108 .Removal and Vacancy. § 5109. Suruhanu, Salary of. § 5110. Organization of Office. § 5111. Powers. § 5112. Investigation of Complaints. § 5113. Rights of Complainant -Communication With Complainant. § 5114. Rights of Agency. § 5115. Recommendations. § 5116. Reports. § 5117. Suruhanu's Immunities. § 5118. Witnesses' Privileges. § 5119. Obstruction. § 5120. Relation to Other Laws. § 5121. Severability. § 5101. Legislative Finding and Intent. The Legislature finds that government bureaucracies have a tend ency to serve group needs and forget individual needs. In today's system of government, the individual citizen with a problem often does not know where to start nor to whom to seek to solve his problem. Elected representatives are usually receptive to indi vidual requests for assistance, but they can only approach constituent requests on a one -to-one basis.

nor to whom to seek to solve his problem. Elected representatives are usually receptive to indi vidual requests for assistance, but they can only approach constituent requests on a one -to-one basis. Other responsibilities make it difficult for elected represen tatives to follow through on all problems submitted to them. Some system of overview is nee ded to expedite governmental action on individual complaints or requests for services, to hold the governmen tal agency accountable for satisfying a legitimate request for assistance and to COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 2suggest necessary legal or administrative changes to prevent conti nued abuses of an individual rights. The legislative intent of this bill is to create the Office of Ombuds man or Suruhanu and charge this office with the responsibility to correct and solve the individual problems citizens may have with their govern ment to provide a method by which each citizen will have open access to an expert in dealing with the Government so that each citizen will know his complaint will be investigated and the department or agency responsible for the solution will ultimately be held accountable for

pert in dealing with the Government so that each citizen will know his complaint will be investigated and the department or agency responsible for the solution will ultimately be held accountable for that solution. It is the intent of the Legislature to establish, in addition to other remedies or rights of appeal of any person under law, an independent and partial office readily available to the public, responsible to the Legislature, empowered to investigate the acts of the administrative agencies and to recommend appropriate changes toward the goals of safeguarding the rights of persons and of promoting high standards of competency, efficiency and justice in the administration of terri torial law. SOURCE: GC§ 1425 . Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5102. Definitions. As used in this Chapter: (a) Agency means any department, organization, board, commission, council, institution or other governmental entity of the govern ment of Guam, and any official, officer, employee or member thereof acting or purporting to act by reason of his connection with the government of Guam, except: (1) any court, judge and pertinent judicial staff; (2) the Legislature, its members,

yee or member thereof acting or purporting to act by reason of his connection with the government of Guam, except: (1) any court, judge and pertinent judicial staff; (2) the Legislature, its members, its commit tees, its staff and its employees; (3) the Governor and his personal staff; and (4) the Lieutenant Governor and his personal staff. (b) An Act of an Agency means any action, decision, failure to act, omission, rule or regulation, interpretation, recommend ation, policy, practice or procedure of any agency. (c) Person means any individual, aggregate of individuals, corporation, partnership or unincorporated association.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 3(d) Suruhanu also means Suruhana. In the case that the person elected is female, referenc e to the office shall be in the feminine, that is to the Suruhana. SOURCE: GC§ 1426. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5103. Creation of Office. The Office of the Suruhanu is created. SOURCE: GC§ 1427. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5104. Qualifications. (a) The Suruhanu shall be a person of recognized judgment, objec tivity and integrity who is well equipped to analyze

C§ 1427. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5104. Qualifications. (a) The Suruhanu shall be a person of recognized judgment, objec tivity and integrity who is well equipped to analyze problems of law, administration and public policy. (b) No person while serving as Suruhanu: (1) shall be actively involved in political party activities; (2) shall be candidate for or hold other public office, whether elective or appointive; or (3) shall be engaged in any other occupation, business or profession. SOURCE: GC§ 1429. Added by P.L. 14 -99; r enumbered by P.L. 15 -83. § 5105. Election of Suruhanu. The Legislature shall elect the Suruhanu by a two -thirds (2/3) vote of the membership. SOURCE: GC§ 1428. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5106. Certificates of Appointment. Immedia telyafter declaring the results of any election, the Legislative Secretary shall cause to be prepared Acertificates of appointment. @The form of such certificate shall be prescribed by the Legislative Secretary and shall contain the essential facts of the appointment. The Legislative Secretary shall cause to be placed in the hands of the appointed person a copy of such certificate

the Legislative Secretary and shall contain the essential facts of the appointment. The Legislative Secretary shall cause to be placed in the hands of the appointed person a copy of such certificate which shall constitute evidence of that person's right to office. The Legislative Secretary shall preserve the original certifi cate for a period of ten (10) years. SOURCE: GC§ 1446, as added by P.L. 15 -83. § 5107. Term of Office.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 4(a) The Suruhanu shall serve for a term of six (6) years commencing at 12 o'clock noon on April 1 of the year he takes office. He may be reappointed f or additional terms. SOURCE: GC§ 1430. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5108. Removal and Vacancy. (a) Qualified voters of Guam may initiate a petition for the removal of the Suruhanu by presenting a petition to the Election Commission s igned by voters equal in number to ten percent (10%) of all votes counted for all candidates for the Governor at the last preceding general election at which a Governor was elected. The format of the petition shall comply with the Election Commission regul ations and upon certification by the

or the Governor at the last preceding general election at which a Governor was elected. The format of the petition shall comply with the Election Commission regul ations and upon certification by the Election Commission, the petition shall be presented to the Legislature. (b) The Legislature, upon receipt of the certified petition, may by a vote of two -thirds (2/3) of the members present and voting remove the Suruha nu from office. The Legislature may also on its own initiative remove the Suruhanu for cause by the same two -thirds (2/3) vote. (c) If the position of Suruhanu becomes vacant for any reason, the Legislature shall elect a person to fill the vacant position to serve only until the end of his predecessor's term. SOURCE: GC§ 1431. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5109. Suruhanu, Salary of. The salary of the Suruhanu shall be established by a majority vote of the Legislature at the time of his election to office. During his term of office, the salary of the Suruhanu may be increased only upon the adoption of a resolution or a statute. The salary of the Suruhanu shall not be reduced during his term of office except as a part of a uniform and gov ernment

Suruhanu may be increased only upon the adoption of a resolution or a statute. The salary of the Suruhanu shall not be reduced during his term of office except as a part of a uniform and gov ernment -wide reduction of salaries of all elected officials and officers of the Government whose appointment is subject to the concurrence of the Legislature. SOURCE: GC § 1432. Added by P.L. 14 -99; renumbered by P.L. 15 -83. R/R by P.L. 16-120. § 5110. Or ganization of Office. (a) The Suruhanu shall select, appoint and fix the compensation within the amount available by appropriation of such other officers and employees, and including a Segundo Suruhanu as he may deem necessary to discharge his responsi bilities under this Chapter. All officers and employees of his office shall be unclassified and shall serve at the Suruhanu's pleasure.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 5(b) The Suruhanu may delegate to members of his staff any of his authority, powers or duties except this power of delegat ion and his duty to make any report under this Chapter. However, the Suruhanu may authorize the Segundo Suruhanu to act in his stead during illness, absence, leave or

ies except this power of delegat ion and his duty to make any report under this Chapter. However, the Suruhanu may authorize the Segundo Suruhanu to act in his stead during illness, absence, leave or disability. (c) The Suruhanu and his staff shall be entitled to participate in any employ ee benefit or retirement plan available to the government of Guam employees. SOURCE: GC§ 1433. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5111. Powers. The Suruhanu shall have the following powers: (a) To investigate, on complaint of a person but not an agency or on his own motion, any act of an agency without regard to its finality. (b) To adopt, promulgate, amend and rescind rules and regulations required for the discharge of his duties, including procedures for receiving and processing complai nts, conducting investigations and reporting his findings. However, he may not levy any fees for the submission or investigation of complaints. (c) To examine the records and documents of any agency except those records and documents privileged from inspe ction because of their confidential nature, including but not limited to juvenile court records, tax records and other records specifically

cy except those records and documents privileged from inspe ction because of their confidential nature, including but not limited to juvenile court records, tax records and other records specifically made confidential bylaw. (d) To enter and inspect without notice the premises of any government agency. (e) To su bpoena any employee or agent of the government of Guam to appear, give sworn testimony or to produce documentary or other evidence that is reasonably material to his inquiry and to administer oaths and affirmations in all matters incident to his duties. (f) To undertake, participate in or cooperate with persons and agencies in such conferences, inquiries, meetings or studies as might lead to improvements in the functioning of agencies (g) To obtain such information and make such inquiries from any agency o r person as he shall require for the discharge of his duties.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 6(h) To maintain secrecy in respect to all matters and the identities of the complainants or witnesses coming before him. (i) To concern himself with the strengthening of procedures and practices which lessen the risk that objectionable administra tive

d the identities of the complainants or witnesses coming before him. (i) To concern himself with the strengthening of procedures and practices which lessen the risk that objectionable administra tive acts will occur. (j) To bring civil proceedings in any appropriate court to enforce the provisions of this Chapter and to retain legal counsel to effectuate the intent of this Subsection and this Ch apter. SOURCE: GC § 1434. Added by P.L. 14 -99; renumbered by P.L. 15 -83; Subsection (e) amended by P.L. 15 -83; Subsection (j) added by P.L. 16 -24. COURT DECISIONS: The Suruhanu, as part of the Legislative Branch, has the power to bring actions in court to enforce only the powers given him under the Suruhanu Act in chief, namely those powers related to his functions of investigation, reporting and recommending. The Suruhanu has no substantive enforcement powers. Attorney General of Guam v. 16th Guam Legislat ure,et al. Sup. Ct. Civ. No. 593 -81 (1982). § 5112. Investigation of Complaints. (a) The Suruhanu shall investigate any complaint alleging that an ac t of an agency is: (1) contrary to or inconsistent with law, regulation or agency practice; (2) base d on mistaken facts or

aints. (a) The Suruhanu shall investigate any complaint alleging that an ac t of an agency is: (1) contrary to or inconsistent with law, regulation or agency practice; (2) base d on mistaken facts or irrelevant considerations; (3) inadequately explained when reasons should have been revealed; (4) inefficiently performed; or (5) unreasonable, unfair or otherwise objectionable, even though in accordance with law. Unless the Suruhan u at his discretion decides not to investigate a complaint because: (1) the complainant could reasonably be expected to use another remedy or channel, and then the Suruhanu shall furnish the complainant with written instructions on the procedural steps to be taken in connection with such other remedy or channel; (2) the complaint is trivial, frivolous, vexatious or not made in good faith;COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 7(3) the complaint has been too long delayed to justify present examination; and (4) his resources are insufficient for a dequate investigation in which case the Suruhanu shall refer the complaint to the proper legislative committee for investigation.

ify present examination; and (4) his resources are insufficient for a dequate investigation in which case the Suruhanu shall refer the complaint to the proper legislative committee for investigation. (b) The Suruhanu in his discretion may investigate any administra tive act of an agency not enumerated in Subsection (a). (c) If the Suruhanu declines to investigate a complaint he shall not be barred from reviewing on his motion acts of an agency whether or not included in the complaint. SOURCE: GC§ 1435. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5113. Rights of Co mplain ant -Communication With Com plainant. (a) After the Suruhanu has decided whether or not to investi gate a complaint, he shall suitably inform the complainant. (b) The Suruhanu shall, if requested by the complainant, report the status of his investigatio n to the complainant. (c) After investigation of a complaint, he shall suitably inform the complainant of his conclusion or recommendation, if appropriate, any action taken or to be taken by the agency involved. (d) A letter to the Suruhanu from a person h eld in custody including by detention, incarceration and hospitalization -by an agency shall be

e, any action taken or to be taken by the agency involved. (d) A letter to the Suruhanu from a person h eld in custody including by detention, incarceration and hospitalization -by an agency shall be forwarded immediately, unopened to the Suruhanu. A letter from the Suruhanu to such person shall be immediately delivered, unopened to the person. (e) No perso n who files a complaint pursuant to this Chapter shall be subject to any penalties, sanctions or restrictions in connection with his employment because of such complaint. SOURCE: GC§ 1436. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5114. Rights of A gency. (a) If the Suruhanu decides to investigate a complaint, he may, if he deems it appropriate, suitably inform the agency involved. (b) Before announcing or reporting a conclusion or recommenda tion that criticizes or is adverse to an agency, the Sur uhanu shall consult with that agency and permit the agency reasonable opportunity to reply.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 8(c) If any report that he issues criticizes or is adverse to an agency, the Suruhanu shall include any brief statement the agency may provide. SOURCE: GC§ 1437.

IVE BRANCH CH.5OFFICE OF THE SURUHANU 8(c) If any report that he issues criticizes or is adverse to an agency, the Suruhanu shall include any brief statement the agency may provide. SOURCE: GC§ 1437. Ad ded by P.L. 14 -99; renumbered by P.L. 15 -83. § 5115. Recommendations. (a) If, after investigation, the Suruhanu is of the opinion that an agency should: (1) consider the matter further; (2) modify or cancel an act; (3) alter a regulation, practice or rul ing; (4) explain more fully the act in question; (5) rectify an omission; or (6) take any other action; he shall state his recommendations and reasons therefor to the agency. If the Suruhanu so requests, the agency shall, within the time he has specified, inform him about the action taken on his recommendation or the reasons for not comply ing with them. After a reasonable period of time has elapsed, the Suruhanu m ay issue a report. (b) If the Suruhanu believes that an action has been dictated by laws whose results are unfair or otherwise objectionable and should be revised, he shall bring his views concerning desirable statutory change to the attention of the Legislature and agency.

tated by laws whose results are unfair or otherwise objectionable and should be revised, he shall bring his views concerning desirable statutory change to the attention of the Legislature and agency. (c) If the Suruhanu believes that any person has acted in a manner warranti ng criminal or disciplinary proceedings, he shall refer the matter to the appropriate authorities without notice to that person. SOURCE: GC§ 1438. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5116. Reports. The Suruhanu shall annually report on his activities to the Governor and to the Legislature. SOURCE: GC§ 1439. Added by P.L. 14 -99; renumbered by P.L. 15 -83.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 9§ 5117. Suruhanu's Immunities. (a) No proceeding, conclusion, recommendation or report of the Suruhanu or member of his staff shall be r eviewable in any court, unless it contravenes the provisions of this Chapter. (b) The Suruhanu and his staff shall have the same immunities from civil and criminal liabilities as a judge of this Territory. (c) The Suruhanu and his staff shall not be compel led to testify or produce evidence in any judicial or administrative proceeding with respect to

d criminal liabilities as a judge of this Territory. (c) The Suruhanu and his staff shall not be compel led to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of their official duties except as may be necessary to enforce this Chapter. SOURCE: GC§ 1440. Added by P.L. 14 -99; renumbere d by P.L. 15 -83. § 5118. Witnesses' Privileges. Any person required to provide information under this Chapte r shall be paid the same fees and travel allowances and accorded the same privileges and immunities, including right of assistance of counsel, as witnesses whose attendance has been required in the Superior Court. SOURCE: GC§ 1441. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 5119. Obstruction. Any person who willfully obstructs or hinders the proper and lawful exercise of the Suruhanu's powe rs or willfully misleads or attempts to mislead the Suruhanu in his inquiries, shall be guilty of a misdemeanor and subject to a fine of not more than One Thousand Dollars ($1,000.00). SOURCE: GC§ 1442. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 512 0. Relation to Other Laws.

be guilty of a misdemeanor and subject to a fine of not more than One Thousand Dollars ($1,000.00). SOURCE: GC§ 1442. Added by P.L. 14 -99; renumbered by P.L. 15 -83. § 512 0. Relation to Other Laws. The provisions of this Chapter are in addition to and do not in any manner limit or affect the provisions of any other statute under which any remedy or right of appeal is provided for any person or any procedure is provided fo r the inquiry into or investigation of any matter. The powers conferred on the Suruhanu may be exercised notwithstanding any provision in any statute to the effect that any administrative action shall be final or unappealable. SOURCE: GC§ 1443. Added by P .L. 14 -99; renumbered by P.L. 15 -83.COL1201062GCA LEGISLATIVE BRANCH CH.5OFFICE OF THE SURUHANU 10§ 5121. Severability. If any part of this Chapter shall be declared invalid, all other parts shall remain in full force and effect; the provisions of this Chapter are declared to be severable. SOURCE: GC§ 1444. Adde d by P.L. 14 -99; renumbered by P.L. 15 -83. ----------