Updated: Dec 10, 2019
By Troy Torres
(Tumon, Guam) Controversial CSC Commissioner Priscilla Tuncap admitted in an exclusive interview with Kandit News today that the bag of documents she gave to Port legal Counsel Joe McDonald came from former Port Legal Counsel Mike Phillips.
Tuncap admitted to the ex parte communication which is now the subject of investigation by the Civil Service Commission and also admitted she told McDonald when giving him the documents, “you can’t let them get away with this.” Tuncap says in her defense “I guess that’s just a figure of speech.”
Tuncap is a CSC commissioner hearing the cases of the Port 7, who were illegally terminated eight years ago in one of the biggest political witch hunts in the history of our island. They won in the CSC but then former port attorney Mike Phillips tied them up in appeals in the Superior and Supreme Court for the past 8 years. While winning at every level, the court recently sent the cases back to the CSC to determine if the proper legal burden of proof was used. The first case up was Francine Rocio and the commissioners - all except Priscilla Tuncap - agreed the correct burden of proof was heard and ruled again that she was wrongfully terminated. During that hearing, Tuncap tried to introduce the bag of documents into the hearing but was prohibited by her fellow commissioners from doing so because it is improper conduct. Tuncap then approached Port Attorney Joe McDonald following Maina Mass on November 24th of this year and handed him the bag of documents to use against the Port 7 in the case he is arguing before her.
On November 26th, McDonald sent all the documents back to Tuncap and memorialized the ex parte communication in a letter based on advice he received from an ethics expert. On December 2nd, CSC attorney Eric Miller wrote to McDonald and informed him that “My Executive Director received information that Commissioner Tuncap had a conversation with you about a case pending before the Commission. He has asked me to investigate the matter.”
At times clearly reading from a prepared statement, the 84-year old commissioner defended her actions in her interview with Kandit News today by saying she was only trying to return documents that former port legal counsel Mike Phillips secretly gave to her and former CSC Director Tony Lamorena.
Tuncap said: “During the hearing I made a motion to address the body to follow the instructions of the court by addressing the merits of the case but the chairman refused to allow me to speak depriving me of section 17. The documents that I gave the port constitute their own documents. Since I have no use for the only course --- I’m sorry --- since I have no use for – it is the only course or resolution was to refer to the port I mean the report to the port who conceived the documents in the first place. That’s it. That’s my whole story on the Rocio.”
She says she hunted down Port Legal Counsel Joe McDonald and gave him the bag of documents but only because she wanted to save on gas but also de-clutter her house.
“By that I figured they don’t want to do it or discuss it further so I am returning the documents that I got to the counsel of the port.” Tuncap said. “I don’t want to keep that here because there’s no use for it - it just makes trash in my house and I don’t want that.”
Tuncap says she never considered giving the documents to current CSC administrative director Danny Leon Guerrero. “No I didn’t go that far.”
Tuncap admits to ex parte communication involving current port legal Counsel Joe McDonald.
“He comes to Mass in Maina and I thought that would be a convenient time to give to him instead of going to the port and wasting my gas,” she said. “I am just returning it to him but I guess he makes something out of it.”
When Kandit News first asked Tuncap if the secret bag of documents were given to her by former Port legal counsel Mike Phillips, she said “Oh gosh I wouldn’t know.” Later she admits the documents came from Port legal counsel Mike Phillips and that he gave a copy as well to former CSC Director Tony Lamorena. Lamorena never disclosed this ex parte communication to any of the attorneys involved nor did Commissioner Tuncap.
Former port attorney Mike Phillips actions secretly giving documents to a member of the commission as well as the former executive director of the CSC is a violation of Rule 3.4: Fairness to Opposing Party and Counsel and Rule 3.5: Impartiality and Decorum of the Tribunal of the Guam Rules of Professional Conduct which governs actions of attorneys. There are numerous ethical complaints against Mike Phillips under investigation by the Guam Bar Association Ethics Panel including ethics complaints from Senator Mary Torres.
Meanwhile, the Port 7 continue to have their cases heard before Tuncap and the commissioners in the Civil Service Commission. Attorneys in the cases indicate they will petition to have Tuncap disqualified from the case. The Port 7 have already been ordered reinstated with back pay at nearly every level of the judicial proceedings. Next week will be the 8th year anniversary of their terminations.
You can watch the entire interview with CSC Commissioner Priscilla Tuncap below: