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Puerto Rico workers union sues fiscal board

By on August 7, 2017

SAN JUAN – The Irrigation & Electrical Workers Union (Utier by its Spanish acronym) filed Monday lawsuits in federal court against the fiscal oversight board, the Puerto Rico Electric Power Authority (Prepa) and the Government of Puerto Rico, challenging the constitutionality of the appointment of the members of the body established by the Promesa federal law.

Ángel Figueroa, the spokesperson for the workers, explained that the first lawsuit is addressed at the fiscal board because of the process that gave rise to the appointment of the members of the body, in which, allegedly, the established procedure in the U.S. Constitution itself was violated, as it stipulates that the president must name the the board’s officials.

Utier argues that it should be the U.S. president who nominates the board’s individual members, with the advice and consent of the U.S. Senate, and not through the allegedly irregular mechanism used. It claims that the process violated the separation of powers to prevent undermining how the president of the United States meets his constitutional mandate to appoint federal officials.

Utier spokesman Ángel Figueroa, center, announces the two lawsuits filed in federal court. (Agustin Criollo / CB)

“The nomination process in the United States is the same as in Puerto Rico. The president is the one who nominates, like here, with the governor. If you recall, Congress created a mechanism in which there were Republican and Democratic nominations, and it was the president who had to select from a list that the parliamentary majority presented to him. That is unconstitutional because it violates the separation of powers.

“The person with the freedom to name, not in an imposed way, but discreetly, is the president of the United States, and it is the Senate that decides whether to consent or not. Thus, this violates the U.S. Constitution and therefore those designations are completely unconstitutional and the decision-making of these people are void,” Figueroa argued alongside two Utier attorneys.

The union leader added that not only is that congressional disposition unconstitutional, but also the certifications, designations and all actions implemented by the fiscal board.

Puerto Rico electric utility union sues gov’t, fiscal board

For his part, Rolando Emmanuelli , legal representative for Utier, explained that the active legitimization that courts and federal Judge Laura Taylor Swain have bestowed on the fiscal board to make decisions and file lawsuits on behalf of Puerto Rico wouldn’t affect Utier’s lawsuit, as this is the first time the argument is raised.

“It is the first time that it has been suggested that such actions could be null for violation of the appointment clauses. If I’m not appointed in accordance with law, I had no authority, and if there is no authority to exercise those powers then acts are void,” Emmanuelli Jiménez said.

He added the matter must be addressed “to see if it is necessary to take another course; for example, the Promesa law should be amended to establish the procedure that complies with the constitution.”

Puerto Rico hit with 2 lawsuits challenging board’s power 

“If the court with its judiciary [branch] power determines the appointments clause was violated, the executive and the legislative [branches] would have to act,” he added.

Regarding the second lawsuit, Figueroa said that as established in the U.S. Constitution’s Article 1, Section 10, no state shall pass “any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts,” and emphasized the Constitution of the Commonwealth of Puerto Rico establishes a similar provision in its Article 2, Section 9.

The union leader argued that because it was a law that establishes contractual obligations, these can only be altered under certain circumstances, which in this case do not exist, sonce both the government and Prepa have at their disposal other options and measures to achieve greater revenue and fiscal controls.

“This second lawsuit argues that the labor conditions agreed upon with Utier through collective bargaining agreements are rights that have passed on to become private property for every employee when they were obtained as an integral part of their negotiated wages. The government has undermined these proprietary rights with at least four laws, three passed this year and one in 2014,” he stressed, refering to Act 66 of 2014, Act 3 of 2017, Act 8 of 2017, and Act 6 of 2017.

He also emphasized that these rights acquired by workers are protected by the Fifth Amendment of the U.S. Constitution, which establishes that a proprietary right cannot be seized without fair compensation. He insisted that the government and Prepa’s fiscal plans are unconstitutional under the Constitution of Puerto Rico because it establishes a similar provision in its Article 2, Section 9.

Among the contractual obligations affected, Figueroa noted the reduction of vacation days, pensions, health plan, workers’ employment security and accident compensation, among others. However, the process could be slow since any of the parties that does not prevail would probably use their right to an appeal.

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