IN THE SUPERIOR COURT OF GUAM
2 HERMAN T. GARRIDO, PAUL V. ) SPECIAL PROCEEDINGS 3 SAYAMA, and JAMES A. BUCCAT, ) CASE NO. SP#102-10 ) petitioners,~ 4
5 vs. ) ) DECISION AND ORDER Government of Guam, ) (Request for Writ of Mandate) 7 ) RespondentJ 8 ----------------------------) 9
10 This matter was scheduled to come on regularly for hearing on August 5, 2011, before 11 the HONORABLE JUDGE ELIZABETH BARRETT-ANDERSON. Petitioners, hereinafter the 12 "Officers", were present and represented by Attorney Jeffrey A. Moots. The Government of
13 Guam was represented by Assistant Attorney General Fred S. Nishihira. Having considered all
14 the evidence and arguments, the Court issues the following decision.
15 RELEVANT FACTUAL BACKGROUND 16 The Officers were employed with the Guam Police Department as non-exempt merit 17 employees at all time relevant herein 1. At certain time periods between 1998 and 2005, the 18 Officers were ordered by superior officers to perform temporary detail duties of exempt 19 .. 2 posItIons. 20 Department of Administration ("DOA") Rule 4.506(c) and (h) provides that an 21 employee detailed to a position longer than thirty (30) days must have proper documentation 22 submitted by management to effect the appointment, and is entitled to the differential pay in the 23 position having a higher pay grade than the employee's regular position added to his base pay.
25 I Herman Garrido was a Sergeant I assigned to Lieutenant duties. Paul Sayama was a Police Officer III assigned Sergennt II. James Buccat was a Police Officer III assigned to Sergeant II duties. 26
SP102-10 Compensation after thirty (30) days requires management to provide proper documentation to
2 benefit the employee. The crux of this dispute is the failure of the Guam Police Department ("GPD") to process the documentation for the Officers during the periods of time in question, 3 and its continued refusal to do so after being directed by DOA to take corrective action. 4 Each Officer made claims for detail pay consistent with the time periods in which they 5 performed detail work in exempt positions as required by their superior command. The DOA 6 conducted a full investigation of the Officers claims, and concluded the Officers were entitled 7 to detail compensation, but needed the required documentation to process the payments. DOA 8 concluded that the Officers were entitled to "promised compensation" for services performed. 9 (CSC Memo 2003-340; Attorney General's Opinion DOA-95-1 020). 10 DOA requested GPD to prepare respective personnel actions to compensate the Officers 11 for the work performed. GPD refused to prepare the requested GGls, because it determined the
12 Officers would be required to repay significant amounts of overtime earned by each Officer.
13 GPD asserts the Officers are not entitled to detail pay for work performed in exempt positions
14 and still keep accrued overtime pay in their non-exempt positions. The Chief of Police required each Officer to repay any overtime they had received during the time periods in question, the 15 impact of which nullified any detail compensation. GPD allegedly refused to process any 16 personnel actions because of this negative impact. 17 Petitioner Garrido (hereinafter "Garrido") filed a request for review by the Civil Service 18 Commission (hereinafter "CSC") on July 27,2007, and also by filing a government claim with 19 the Attorney General's Office on March 13, 2008. Both agencies rejected jurisdiction to 20 entertain Garrido's claims. There is no information in the record whether Petitioners Sayama or 21 Buccat made similar claim, however, based on the negative responses to Garrido, the Court 22 concludes the other Officers would not have faired any better. 23 The Officers filed this Petition for Writ of Mandate (hereinafter "Petition") seeking to
24 require the GPD to issue the GG 1s as recommended by DOA.
SP102-10 DISCUSSION
2 1. Writ of Mandate. In a petition for a writ of mandate, "the petitioner has the burden of showing that a writ 3 should issue." Guam Election Com In v. Responsible Choices for all Adults Coalition, 2007 4 Guam 20 ~ 26. The issuance of a writ of mandamus is an extraordinary remedy employed in 5 extreme situations. A.B. Won Pat Guam Int'l Airport Auth. v. Moylan, 2005 Guam 5 ~ 10. 6 "Mandamus is appropriate only where there is a 'clear, present and ministerial duty to act'''. 7 Limtiaco v. Guam Fire Department, 2007 Guam 10 ~ 8 (citing Holmes v. TLUC, et. al., 1998 8 Guam 8 ~ 11). "One of the essential conditions for issuance of the writ is a showing in the part 9 of the applicant that he has a clear legal right to the performance of the act the writ would 10 compel." McDaniel v. City & County of San Francisco, 66 Cal. Rptr. 384,386 (Cal. App. 11 1968). The first issue, therefore, is whether, GPD was under a clear, present and ministerial 12 duty to prepare the GGIs at the time this mandate was sought by the Officers. If the duty is
13 discretional, then there is no right to relief under mandamus. Limitiaco, 2007 Guam 10 ~ 10.
14 The Chief of Police refused to abide by DOA's request to process the GGls for compensation because in his opinion if the Officers were detailed to exempt positions, they 15 should not have been entitled to accrue overtime. Processing of the GG 1s would require the 16 Officers to repay their overtime. The Supreme Court of Guam in Limitiaco found that the 17 ministerial duty which involves "some exercise of judgment" is more than a ministerial act. 18 Unlike in Limitiaco, where the amount of back pay compensation due the petitioner was in 19 accord with the government's settlement agreement, hindered only by availability of fiscal year 20 appropriation to make the payments, in this case there is no such agreement between GPD and 21 the Officers. Further, there is no agreement between GPD and DOA on the ultimate outcome of 22 the Officers' claims. Where two (2) agencies are in disagreement it necessarily involves the 23 exercise of judgment in reaching opposing conclusions. Mandamus is not appropriate this case.
24 2. Adequate Remedy at Law / Exhaustion of Administrative Remedy.
25 Mandamus is an extraordinary remedy implored only in extreme cases, and "where
26 there is not a plain, speedy, and adequate remedy in the ordinary course of law." 7 GCA
SPI02-10 §31203 (2005). "Mandamus will not be granted where the petitioner has failed to pursue the
2 administrative remedies available to him. Where an administrative remedy has been provided by statute, this remedy must be exhausted before the courts will act." Limitaco, 2007 Guam 10 3 ~ 27. 4 CSC has historically been the administrative appellate tribunal for grievances filed by 5 merit employees. The 29 th Guam Legislature changed this decades long authority by stripping 6 the CSC of its appellate powers over personnel matters on January 1, 2006 (Public Law 28- 7 68:IV -45), transferring jurisdiction to DOA. This statutory transfer created the ping-pong effect 8 experienced by the Officers bouncing back and forth between DOA, CSC, and the Attorney 9 General's Office. No agency had jurisdiction to enforce DOA's determination, except perhaps 10 DOA itself, which they seemed powerless to do in the face of GPD's position on overtime. 11 Employee grievances throughout the government were thrown into limbo, and much confusion
12 ensued.
13 The 29 th Guam Legislature tried to remedy the confusion by reinstating the power of the
14 CSC to set aside and declare void any personnel action found to be in violation of personnel rules pursuant to Public Law 29-2:VI:27, effective May 18,2007. It did not, however, restore 15 the power of the CSC to hear appeals from employee grievances from personnel actions.
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IN THE SUPERIOR COURT OF GUAM
2 HERMAN T. GARRIDO, PAUL V. ) SPECIAL PROCEEDINGS 3 SAYAMA, and JAMES A. BUCCAT, ) CASE NO. SP#102-10 ) petitioners,~ 4
5 vs. ) ) DECISION AND ORDER Government of Guam, ) (Request for Writ of Mandate) 7 ) RespondentJ 8 ----------------------------) 9
10 This matter was scheduled to come on regularly for hearing on August 5, 2011, before 11 the HONORABLE JUDGE ELIZABETH BARRETT-ANDERSON. Petitioners, hereinafter the 12 "Officers", were present and represented by Attorney Jeffrey A. Moots. The Government of
13 Guam was represented by Assistant Attorney General Fred S. Nishihira. Having considered all
14 the evidence and arguments, the Court issues the following decision.
15 RELEVANT FACTUAL BACKGROUND 16 The Officers were employed with the Guam Police Department as non-exempt merit 17 employees at all time relevant herein 1. At certain time periods between 1998 and 2005, the 18 Officers were ordered by superior officers to perform temporary detail duties of exempt 19 .. 2 posItIons. 20 Department of Administration ("DOA") Rule 4.506(c) and (h) provides that an 21 employee detailed to a position longer than thirty (30) days must have proper documentation 22 submitted by management to effect the appointment, and is entitled to the differential pay in the 23 position having a higher pay grade than the employee's regular position added to his base pay.
25 I Herman Garrido was a Sergeant I assigned to Lieutenant duties. Paul Sayama was a Police Officer III assigned Sergennt II. James Buccat was a Police Officer III assigned to Sergeant II duties. 26
SP102-10 Compensation after thirty (30) days requires management to provide proper documentation to
2 benefit the employee. The crux of this dispute is the failure of the Guam Police Department ("GPD") to process the documentation for the Officers during the periods of time in question, 3 and its continued refusal to do so after being directed by DOA to take corrective action. 4 Each Officer made claims for detail pay consistent with the time periods in which they 5 performed detail work in exempt positions as required by their superior command. The DOA 6 conducted a full investigation of the Officers claims, and concluded the Officers were entitled 7 to detail compensation, but needed the required documentation to process the payments. DOA 8 concluded that the Officers were entitled to "promised compensation" for services performed. 9 (CSC Memo 2003-340; Attorney General's Opinion DOA-95-1 020). 10 DOA requested GPD to prepare respective personnel actions to compensate the Officers 11 for the work performed. GPD refused to prepare the requested GGls, because it determined the
12 Officers would be required to repay significant amounts of overtime earned by each Officer.
13 GPD asserts the Officers are not entitled to detail pay for work performed in exempt positions
14 and still keep accrued overtime pay in their non-exempt positions. The Chief of Police required each Officer to repay any overtime they had received during the time periods in question, the 15 impact of which nullified any detail compensation. GPD allegedly refused to process any 16 personnel actions because of this negative impact. 17 Petitioner Garrido (hereinafter "Garrido") filed a request for review by the Civil Service 18 Commission (hereinafter "CSC") on July 27,2007, and also by filing a government claim with 19 the Attorney General's Office on March 13, 2008. Both agencies rejected jurisdiction to 20 entertain Garrido's claims. There is no information in the record whether Petitioners Sayama or 21 Buccat made similar claim, however, based on the negative responses to Garrido, the Court 22 concludes the other Officers would not have faired any better. 23 The Officers filed this Petition for Writ of Mandate (hereinafter "Petition") seeking to
24 require the GPD to issue the GG 1s as recommended by DOA.
SP102-10 DISCUSSION
2 1. Writ of Mandate. In a petition for a writ of mandate, "the petitioner has the burden of showing that a writ 3 should issue." Guam Election Com In v. Responsible Choices for all Adults Coalition, 2007 4 Guam 20 ~ 26. The issuance of a writ of mandamus is an extraordinary remedy employed in 5 extreme situations. A.B. Won Pat Guam Int'l Airport Auth. v. Moylan, 2005 Guam 5 ~ 10. 6 "Mandamus is appropriate only where there is a 'clear, present and ministerial duty to act'''. 7 Limtiaco v. Guam Fire Department, 2007 Guam 10 ~ 8 (citing Holmes v. TLUC, et. al., 1998 8 Guam 8 ~ 11). "One of the essential conditions for issuance of the writ is a showing in the part 9 of the applicant that he has a clear legal right to the performance of the act the writ would 10 compel." McDaniel v. City & County of San Francisco, 66 Cal. Rptr. 384,386 (Cal. App. 11 1968). The first issue, therefore, is whether, GPD was under a clear, present and ministerial 12 duty to prepare the GGIs at the time this mandate was sought by the Officers. If the duty is
13 discretional, then there is no right to relief under mandamus. Limitiaco, 2007 Guam 10 ~ 10.
14 The Chief of Police refused to abide by DOA's request to process the GGls for compensation because in his opinion if the Officers were detailed to exempt positions, they 15 should not have been entitled to accrue overtime. Processing of the GG 1s would require the 16 Officers to repay their overtime. The Supreme Court of Guam in Limitiaco found that the 17 ministerial duty which involves "some exercise of judgment" is more than a ministerial act. 18 Unlike in Limitiaco, where the amount of back pay compensation due the petitioner was in 19 accord with the government's settlement agreement, hindered only by availability of fiscal year 20 appropriation to make the payments, in this case there is no such agreement between GPD and 21 the Officers. Further, there is no agreement between GPD and DOA on the ultimate outcome of 22 the Officers' claims. Where two (2) agencies are in disagreement it necessarily involves the 23 exercise of judgment in reaching opposing conclusions. Mandamus is not appropriate this case.
24 2. Adequate Remedy at Law / Exhaustion of Administrative Remedy.
25 Mandamus is an extraordinary remedy implored only in extreme cases, and "where
26 there is not a plain, speedy, and adequate remedy in the ordinary course of law." 7 GCA
SPI02-10 §31203 (2005). "Mandamus will not be granted where the petitioner has failed to pursue the
2 administrative remedies available to him. Where an administrative remedy has been provided by statute, this remedy must be exhausted before the courts will act." Limitaco, 2007 Guam 10 3 ~ 27. 4 CSC has historically been the administrative appellate tribunal for grievances filed by 5 merit employees. The 29 th Guam Legislature changed this decades long authority by stripping 6 the CSC of its appellate powers over personnel matters on January 1, 2006 (Public Law 28- 7 68:IV -45), transferring jurisdiction to DOA. This statutory transfer created the ping-pong effect 8 experienced by the Officers bouncing back and forth between DOA, CSC, and the Attorney 9 General's Office. No agency had jurisdiction to enforce DOA's determination, except perhaps 10 DOA itself, which they seemed powerless to do in the face of GPD's position on overtime. 11 Employee grievances throughout the government were thrown into limbo, and much confusion
12 ensued.
13 The 29 th Guam Legislature tried to remedy the confusion by reinstating the power of the
14 CSC to set aside and declare void any personnel action found to be in violation of personnel rules pursuant to Public Law 29-2:VI:27, effective May 18,2007. It did not, however, restore 15 the power of the CSC to hear appeals from employee grievances from personnel actions. Full 16 authority was finally reinstated by the 30th Guam Legislature pursuant to Public Law 30-112:2, 17 enacted into law on March 15,2010. The Guam Legislature expressed its intent as follows: 18
19 I Liheslatura finds that the passage of Public Law 28-68 resulted in most of the non-adjudicatory functions of the Civil Service Commission (CSC) 20 being repealed entirely or transferred to the Director of the Department of Administration (DOA), one major function being the administration of 21 compensation and classification for government of Guam employees. Much 22 confusion was caused by Public Law 28-68 .... Some other check-and- balance functions once performed by the CSC were eliminated by Public 23 Law 28-68, and have resulted in a lack of uniformity in the application of the merit system and some questionable employment practices, 24 including the post-audit review and the full null and void authority .. .1 Liheslatura now finds that the restoration of the jurisdiction and 25 clarification of certain functions of the CSC are necessary and will improve 26 the merit system ... and to eliminate the strict demarcation of adjudicatory
SP102-10 versus non-adjudicatory functions imposed by Public Law 28-68 and other laws. 2
3 It was during this period of upheaval that the Officers sought compensation. At the time 4 the Officers filed their Writ on May 21,2010, the Guam Legislature had fully reinstated CSC's
5 jurisdiction to review, investigation and hear appeals of employee grievances involving matters
6 of management violations of personnel rules and regulations, and personnel actions. Therefore,
7 this Court finds that at the time of filing of this mandamus action the Officers had an adequate
8 remedy before the CSc. Hence, mandamus is not appropriate. 3. GGls - Pay Adjustment. 9 DOA relied upon CSC Memo 2003-340 and the Attorney General's Opinion DOA-95- 10 1020 in support of its determination that an employee who is required to perform duties outside 11 their job classification is entitled compensation for worked performed. This is the substance of 12 "promised compensation" which has been recognized by the Attorney General's Office, DOA 13 and CSC as an equitable remedy to correct violations of personnel rules and regulations by 14 management. 15 DOA's request for corrective processmg of GGls to compensate the Officers is 16 appropriate, fair, and equitable. This does not, however, suggest that the Officers are 17 retroactively elevated to the exempt statuses. DOA states in its memoranda to the Officers that
18 the GG 1s, or required personnel actions, is necessary to "effectuate the compensation actions"
19 so as to correct management's violations. A GG1, or a personnel action, is the appropriate
20 vehicle to effect a corrective pay adjustment. Without a GG 1 no compensation can be administratively paid. 21 The Court disagrees with GPD that the Officers should be required to reimburse the 22 overtime they were paid during the time periods in question. It was GPD's violation and non- 23 compliance with mandatory personnel rules and regulation that facilitated the Officers' earning 24 overtime. Had GPD processed the detail personnel actions temporarily appointing the Officers 25 to exempt positions this would have automatically prevented their earning overtime. The 26 personnel actions would have been processed with DOA and the merit system would have
SPI02-10 recognized the Officers as perfonning exempt duties on detail assignment. Without the required
2 documentation there was no way that DOA would have been alerted to the change in statuses of
3 the Officers from non-exempt to exempt. The Officers should not be required to repay overtime as a consequence of now taking 4 corrective action to remedy GPD's violation. The GGls are for the sole purposes of effecting 5 pay adjustments for the Officers, and do not alter the non-exempt status of the Officers during 6 the time periods in question. GPD can either comply with DOA's request, or the Officers can 7 seek enforcement through the CSc. 8
9 CONCLUSION 10 Mandamus is not appropriate where two (2) agenCIes are exerclSlng opposmg 11 judgments as to outcome of a matter in dispute. Mandamus is also not available where there is 12 a plain and adequate remedy before the CSC. Application for mandamus is DENIED.
14 IT IS SO ORDERED this 20th day of February 2012.
17 HONORA LE ELIZABETH B 18 Judge, Superior Court of Guam
SP102-10