IN THE SUPERIOR COURT OF GUAM 2
3 DEPARTMENT OF EDUCATION, ) Special Proceedings Case no. SP0218-09 ) 5 Petitioner, ) DECISION AND ORDER re: Writ of Review ) 6 vs. ) ) 8 Respondent, ) ) 9 And ) 10 ) ELWIN QUITANO, ) II Real Party In Interest. ) 12
13 INTRODUCTION 14 This matter came before the Honorable Judge Michael J. Bordallo on October 5, 2012. 15 The Guam Department of Education ("DOE") was represented by Attorney Fred Nishihara and 16
17 Christina M. Pederson. The Real Party in Interest Elwin Quitano was represented by Attorney
18 Daniel Somerfleck. After considering the matters presented, the Court hereby issues the !9 following decision and order GRANTING DOE's petition for judicial review. The Court 20 reverses the Civil Service Commission's decision and order on the grounds that a Final Notice 21 of Adverse Action need only be issued within sixty (60) days of the 'alleged basis for the 22
23 adverse action'.
25 The instant action arises out of an adverse action appeal to the Civil Service 26 Commission ("CSC"). On February 13, 2009, management at DOE served a Final Notice of 27 Adverse Action to Employee, Elwin Quitano, informing him of his twenty (20) day suspension. 28 The notice stated that if Employee Quitano completed an anger management course within Page 1 of5 sixty (60) days of the notice, then the last ten (l 0) days of the suspension would be dismissed. 2 On March 17, 2009, Employee Quitano completed a course in anger management. 3 Subsequently, Employee Quitano filed a Motion to Dismiss for violation of 4 G.C.A. §4406, as 4 knovm as the "60 day rule". 5
6 CSC heard oral arguments on the motion and shortly after issued a Decision and Order
7 in Adverse Action Appeal, Case No. 09-AA05S, Elwin Quitano, Employee vs. Guam Public 8 School System, Management, finding in favor of Employee Quitano on September 29,2009. On 9 October 29, 2009, DOE filed a petition for judicial review to reverse and remand the CSC's 10 Decision and Order issued in September of 2009. The Court hereby reverses the CSC's II
12 judgment and hereby issues its decision and order based on the following analysis.
14 The Supreme Court of Guam found that a Petition for Judicial Review filed pursuant to
15 4 G.C.A. §4406 is the proper way to invoke the Superior Court's jurisdiction to challenge a 16 final decision by CSC. Carlson v. Perezm, 2007 Guam 6 ~65. While the Court has jurisdiction, 17 the statute does not provide a procedure for obtaining such a review. Previously, this Court has 18 stated that it applies the standard outlined in 5 G.C.A. §9240 to these types of special 19
20 proceedings. In the instant case, GDOE requests this Court to conduct a de novo review on the
21 question of statutory interpretation of the statute. 22 The standard of review to be applied by a trial court, upon judicial review of the 23 agency's action, is as follows: "If the agency decision is not in accordance with law or not 24 supported by substantial evidence, the court shall order the agency to take action according to 25
26 law or the evidence." 5 GCA § 9240. The court always reviews questions of law de novo.
27 Nissan Motor Corp. in Guam v. Sea Star Group Inc., 2002 Guam 5 ~ 10. Further, the court 28 must weigh the record as a whole, weighing both the evidence that supports and evidence that
Page 2 of5 detracts from the agency's decision. Lopez v. Guerrero, 882 F.Supp 952 (D. Guam App. Div. 2 1995) citing Baxter v. Sullivan, 923 F.2d 1391 (9th Cir. 1991). Additionally, the court must 3 uphold the agency's decision where the evidence is susceptible to more than one rational 4 interpretation. Gallant v. Heckler, 753 F .2d 1450, 1453 (9th Cir. 1984). 5
6 The question before the Court is whether or not Employee received adequate notice prio
7 to the adverse action in accordance with the law. Under Guam law, 4 G.C.A. §4406 provides th 8 procedures for such adverse actions and appeals and states as follows: 9 "An employee in the classified service who is dismissed, demoted or suspended 10 shall be given immediate notice of the action, together with a specific statement of the charges upon which such action is based in the manner required by Article 2 11 of this Chapter. Copies thereof shall be filed with the Commission and, if 12 applicable, with the government entity charged with hearing that person's appeal under the personnel rules governing that person's appointment not later than the 13 working day next following the effective date of the action. In no event may an 14 employee in the classified service be given notice and statement of the charges required by this Section after the sixtieth (60th) day after management knew or 15 should have knmvn the facts or events which form the alleged basis for such action. Any action brought by management in violation of this Section is barred 16 and any decision based upon such action is void." 17 Petitioner DOE assert sufficient notice was given before the adverse action. On the other hand, 18 Real Party in Interest Quitano contend by delaying the second half of the suspension by more 19
20 than six (6) months, the notice violated the sixty (60) days rules for adverse actions.
21 Specifically, adequate notice was not given within sixty (60) days for the second half of the 22 suspension. The CSC agreed and held in its decision and order failure to provide final notice 23 within the sixty (60) day voids the adverse action. 24 Petitioner urges the Court to adhere to the plain language of 4 G.C.A. § 4406, which 25
26 requires an employee to be provided with immediate notice that includes specific information
27 about the "action," not immediate action. Moreover, the notice is final even if it includes an 28 incentive to have part of the action dismissed. On the other hand, the CSC reasoned that the
Page 3 ofS Final Notice of Adverse Action must inform the Employee that he or she is presently demoted, 2 dismissed, or suspended; not purport to defer imposition of an action. 3 Real Parties in Interest assert the Guam Supreme Court has held when the statute is 4 silent or ambiguous on a particular point, the Court should defer to agencies interpretation and 5
6 states as follows:
7 In reviewing an agency's construction of a statute, the Court must reject those constructions that are contrary to clear congressional intent or frustrate the policy 8 that Congress sought to implement. Ada v. Guam Telephone Authority, 1999 9 Guam 10 (citing Chevron, USA., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9, 04 S.Ct. 2778, 2782 (1984); Trustees of the Cal. State IO Univ. v. Riley, 74 F.3d 960, 963 (9th Cir. 1996); Citizens for Clean Air v. EPA, 959 F.2d 839, 844 (9th Cir. 1992)). However, if statute is silent or ambiguous on a II particular point, the court may defer to the agency's interpretation; but the review I2 is limited to whether the agency's conclusion is based on a permissible construction of the statute. !d. (citations omitted. See Bias v. Guam Customs & 13 Quarantine Agency Opinion, 2000 Guam 12 at~ 12. I4 Government of Guam Personnel Policies and Procedures gives guidance on the intent and 15 policy of the statute and provides that employees are disciplined and not punished. According 16
17 to Government of Guam Personnel Policies 11.202(8):
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IN THE SUPERIOR COURT OF GUAM 2
3 DEPARTMENT OF EDUCATION, ) Special Proceedings Case no. SP0218-09 ) 5 Petitioner, ) DECISION AND ORDER re: Writ of Review ) 6 vs. ) ) 8 Respondent, ) ) 9 And ) 10 ) ELWIN QUITANO, ) II Real Party In Interest. ) 12
13 INTRODUCTION 14 This matter came before the Honorable Judge Michael J. Bordallo on October 5, 2012. 15 The Guam Department of Education ("DOE") was represented by Attorney Fred Nishihara and 16
17 Christina M. Pederson. The Real Party in Interest Elwin Quitano was represented by Attorney
18 Daniel Somerfleck. After considering the matters presented, the Court hereby issues the !9 following decision and order GRANTING DOE's petition for judicial review. The Court 20 reverses the Civil Service Commission's decision and order on the grounds that a Final Notice 21 of Adverse Action need only be issued within sixty (60) days of the 'alleged basis for the 22
23 adverse action'.
25 The instant action arises out of an adverse action appeal to the Civil Service 26 Commission ("CSC"). On February 13, 2009, management at DOE served a Final Notice of 27 Adverse Action to Employee, Elwin Quitano, informing him of his twenty (20) day suspension. 28 The notice stated that if Employee Quitano completed an anger management course within Page 1 of5 sixty (60) days of the notice, then the last ten (l 0) days of the suspension would be dismissed. 2 On March 17, 2009, Employee Quitano completed a course in anger management. 3 Subsequently, Employee Quitano filed a Motion to Dismiss for violation of 4 G.C.A. §4406, as 4 knovm as the "60 day rule". 5
6 CSC heard oral arguments on the motion and shortly after issued a Decision and Order
7 in Adverse Action Appeal, Case No. 09-AA05S, Elwin Quitano, Employee vs. Guam Public 8 School System, Management, finding in favor of Employee Quitano on September 29,2009. On 9 October 29, 2009, DOE filed a petition for judicial review to reverse and remand the CSC's 10 Decision and Order issued in September of 2009. The Court hereby reverses the CSC's II
12 judgment and hereby issues its decision and order based on the following analysis.
14 The Supreme Court of Guam found that a Petition for Judicial Review filed pursuant to
15 4 G.C.A. §4406 is the proper way to invoke the Superior Court's jurisdiction to challenge a 16 final decision by CSC. Carlson v. Perezm, 2007 Guam 6 ~65. While the Court has jurisdiction, 17 the statute does not provide a procedure for obtaining such a review. Previously, this Court has 18 stated that it applies the standard outlined in 5 G.C.A. §9240 to these types of special 19
20 proceedings. In the instant case, GDOE requests this Court to conduct a de novo review on the
21 question of statutory interpretation of the statute. 22 The standard of review to be applied by a trial court, upon judicial review of the 23 agency's action, is as follows: "If the agency decision is not in accordance with law or not 24 supported by substantial evidence, the court shall order the agency to take action according to 25
26 law or the evidence." 5 GCA § 9240. The court always reviews questions of law de novo.
27 Nissan Motor Corp. in Guam v. Sea Star Group Inc., 2002 Guam 5 ~ 10. Further, the court 28 must weigh the record as a whole, weighing both the evidence that supports and evidence that
Page 2 of5 detracts from the agency's decision. Lopez v. Guerrero, 882 F.Supp 952 (D. Guam App. Div. 2 1995) citing Baxter v. Sullivan, 923 F.2d 1391 (9th Cir. 1991). Additionally, the court must 3 uphold the agency's decision where the evidence is susceptible to more than one rational 4 interpretation. Gallant v. Heckler, 753 F .2d 1450, 1453 (9th Cir. 1984). 5
6 The question before the Court is whether or not Employee received adequate notice prio
7 to the adverse action in accordance with the law. Under Guam law, 4 G.C.A. §4406 provides th 8 procedures for such adverse actions and appeals and states as follows: 9 "An employee in the classified service who is dismissed, demoted or suspended 10 shall be given immediate notice of the action, together with a specific statement of the charges upon which such action is based in the manner required by Article 2 11 of this Chapter. Copies thereof shall be filed with the Commission and, if 12 applicable, with the government entity charged with hearing that person's appeal under the personnel rules governing that person's appointment not later than the 13 working day next following the effective date of the action. In no event may an 14 employee in the classified service be given notice and statement of the charges required by this Section after the sixtieth (60th) day after management knew or 15 should have knmvn the facts or events which form the alleged basis for such action. Any action brought by management in violation of this Section is barred 16 and any decision based upon such action is void." 17 Petitioner DOE assert sufficient notice was given before the adverse action. On the other hand, 18 Real Party in Interest Quitano contend by delaying the second half of the suspension by more 19
20 than six (6) months, the notice violated the sixty (60) days rules for adverse actions.
21 Specifically, adequate notice was not given within sixty (60) days for the second half of the 22 suspension. The CSC agreed and held in its decision and order failure to provide final notice 23 within the sixty (60) day voids the adverse action. 24 Petitioner urges the Court to adhere to the plain language of 4 G.C.A. § 4406, which 25
26 requires an employee to be provided with immediate notice that includes specific information
27 about the "action," not immediate action. Moreover, the notice is final even if it includes an 28 incentive to have part of the action dismissed. On the other hand, the CSC reasoned that the
Page 3 ofS Final Notice of Adverse Action must inform the Employee that he or she is presently demoted, 2 dismissed, or suspended; not purport to defer imposition of an action. 3 Real Parties in Interest assert the Guam Supreme Court has held when the statute is 4 silent or ambiguous on a particular point, the Court should defer to agencies interpretation and 5
6 states as follows:
7 In reviewing an agency's construction of a statute, the Court must reject those constructions that are contrary to clear congressional intent or frustrate the policy 8 that Congress sought to implement. Ada v. Guam Telephone Authority, 1999 9 Guam 10 (citing Chevron, USA., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9, 04 S.Ct. 2778, 2782 (1984); Trustees of the Cal. State IO Univ. v. Riley, 74 F.3d 960, 963 (9th Cir. 1996); Citizens for Clean Air v. EPA, 959 F.2d 839, 844 (9th Cir. 1992)). However, if statute is silent or ambiguous on a II particular point, the court may defer to the agency's interpretation; but the review I2 is limited to whether the agency's conclusion is based on a permissible construction of the statute. !d. (citations omitted. See Bias v. Guam Customs & 13 Quarantine Agency Opinion, 2000 Guam 12 at~ 12. I4 Government of Guam Personnel Policies and Procedures gives guidance on the intent and 15 policy of the statute and provides that employees are disciplined and not punished. According 16
17 to Government of Guam Personnel Policies 11.202(8):
18 Agency heads are accountable for assuring that each supervisor and manager has received orientation and training on the government's basic intent that discipline 19 shall be a method for correcting people in such a way as to produce satisfactory 20 job performance. The use of discipline in a punitive matter is inconsistent with the governments concept of discipline as an opportunity to provide constructive 21 correction. 22
23 The CSC based their decision on the principle that effective discipline requires immediat
24 discipline. Real Party in Interest further argues the principle of immediate discipline delineate 25 from the constructive correction intent as stated in the Guam Personnel Policies and Procedures. 26 By isolating the consequence from the event requiring discipline by such an extended period o 27
28 six (6) months, the intended discipline is lost and the actuality of punishment is clear.
Page 4 of6 The Court agrees with Real Party in Interest's rational and adherence to the principle o 2 constructive correction. However, the plain language of the statute clearly states notice of th 3 adverse action is to be given within sixty (60) days "after management knew or should hav 4 knO\vn the facts or events which form the "alleged basis for such action" 4 G.C.A. §4406. I 5
6 other words, notice of disciplinary action is to be given within sixty (60) days of the incident.
7 plain reading of the statute does not lead to the conclusion that the discipline must be complete 8 within sixty (60) days of the "allege basis for such action." In fact, in many cases, th 9 disciplinary action begins after the sixty (60) day period, where notice is received on the sixtiet 10
II day. See 4 G.C.A. §420 1, §4202. The interpretation adopted by the CSC is neither reasonabl
12 nor feasible. DOE is in full compliance of 4 G.C.A §4406. Additionally, the specific disciplin
13 ordered in this matter greatly enhances the employee's 'constructive correction' concept b 14 encouraging further training in exchange for a reduced penalty. Similar approaches have bee 15 utilized in drug and alcohol related situations. The Court finds that the penalty was fair and Real 16
17 Party in Interest Quitano was properly noticed in accordance with the law.
Page 5 of6 CONCLUSION 2 Based on the foregoing, the Court GRANTS Petitioners Writ of Review. The Court 3 holds the notice of disciplinary action need only be given within sixty (60) days of the "alleged 4 basis for such adverse action." The Court hereby reverses the Civil Service Commission's 5
6 decision and finds in favor of the Petitioner DOE.
8 SO ORDERED, this day 9
II
12 ffON9ftABLE MICHAEL J. BORDALLO 13 Judg( Superior Court of Guam
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