Guam Housing Corp. v. CSC (Potter)

Opinion

SUh

IL. '

2 IN THE SUPERIOR COURT OF GUAM Cl_i . 3

4 GUAM HOUSING CORPORATION, ) Case No. SP 0119-13 5 Petitioner, ~ 6

7 vs. l DECISION AND ORDER ON GUAM HOUSING CORPORATION'S 8

9 GUAM CIVIL SERVICE COMMISSION,

Respondent, l ) ) PETITION FOR REVIEW

10 ) vs. ) II ) ) 12 JOHN E. POTTER, ) ) 13 Real Party in Interest. )

15 INTRODUCTION 16 This matter came before the Honorable Alberto C. Lamorena III on March 24, 2014 on

17 the Petition for Judicial Review filed by Petitioner Guam Housing Corporation (GHC). Attorney Thomas J. Fisher represents GHC, Attorney Vanessa Williams Ji represents Respondent Guam 18 Civil Service Commission (CSC), and Attorney Daniel S. Somerfleck represents Real Party in 19 Interest John E. Potter (Employee). For the reasons set forth below, the Court affirms the 20 Decision and Judgment of the CSC. 21 BACKGROUND 22 The underlying facts are not in dispute. The GHC employed Employee as a Senior 23 Tenant Relations Advisor since 1994. On January 16, 2013, a GHC tenant filed a complaint 24 against Employee alleging sexual harassment and misconduct. On January 16 and 17, 2013, the 25 GHC informed Employee of these allegations and placed him on administrative leave. On 26 January 24, 2013, the GHC issued a Notice of Proposed Adverse Action (Initial Notice) to

27 Employee in which it asserted that a tenant reported "that, on or about September of 2010, while meeting [in a GHC] office to discuss rental issues, [Employee] hugged [the tenant] and touched 28 Decision and Order SP 0119-13, GHC v. CSC v. Potter

her inappropriately." The Initial Notice further stated that such conduct constituted "1) discourteous treatment to the public; 2) acts of prohibited discrimination including sexual 2 harassment; and 3) other misconduct." On February 1, 2014, Employee, accompanied by 3 counsel, responded to the Initial Notice at a meeting held with the GHC. On February 5, 2013, 4 the GHC issued a Final Notice of Adverse Action (Final Notice) to Employee in which it 5 terminated Employee on account of "1) discourteous treatment to the public; 2) acts of 6 prohibited discrimination including sexual harassment; and 3) other misconduct." 7 On February 18, 2013, Employee appealed to the CSC, seeking to void his termination. 8 On May 28, 2013, the CSC heard the matter and, on July 30, 2013, the CSC issued its Decision

9 and Judgment (Judgment). The CSC focused its analysis on the notice requirements of 4 GCA § 4406 and on the GHC's Personnel Rules and Regulations. The CSC emphasized that providing 10 a "generic explanation of the nature of charges against an employee with an adverse 11 employment action is not sufficient to provide him or her with the ability to defend against the 12 same, thus denying due process rights." The CSC concluded that "[b]ecause the Notice of Final 13 Adverse Action fails to provide the Employee notice of the factual basis for the Final Adverse 14 Action the [CSC] is without jurisdiction and the adverse action must be voided." The CSC 15 accordingly entered the following unanimous Judgment in favor of Employee: 16 a) That the Employee shall be immediately reinstated to his position as a Senior Tenant Relations Advisor with [GHC]; 17

18 b) Employee shall receive back pay for all wages withheld from Employee during the period from termination on February 06, 19 2013 until he is reinstated; 20 c) Employee shall be credited with all sick leave and annual leave 21 that he would have accrued during the period from termination on February 06, 2013 until he is reinstated[;] 22

23 d) Management shall deduct Employee's retirement contribution from his back pay and then pay both Employee's and 24 Management's contributions to the Government of Guam Retirement Fund during the period from termination on February 25 06, 2013 until he is reinstated[;] 26 e) Employee shall recover his reasonable attorney's fees and costs 27 pursuant to 4 G.C.A. § 4406.1. 28

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On August 27, 2013, the GHC timely filed its Petition for review of the CSC's Judgment. The GHC seeks judicial review pursuant to 7 GCA § 3105 and 4 GCA § 4406 and 2 presents the following issues: "1) Whether [Employee's] receipt of notice, and his actual notice 3 of the circumstances leading to his termination, was sufficient; 2) Whether the [CSC] may enter 4 orders in an appeal where it lacks jurisdiction." The GHC contends that the Court should 5 reverse the CSC's Judgment because the CSC erred in concluding that the GHC provided 6 Employee with insufficient notice or, in the alternative, because the CSC impermissibly 7 reinstated Employee to his position notwithstanding the CSC's finding that it lacked 8 jurisdiction.

9 On September 9, 2013, Employee filed his Answer to Petition for Judicial Review and Request for an Order to Show Cause. Citing 7 GCA § 311 01, Employee first asserts that this 10 Court lacks jurisdiction because the GHC fails "to establish subject matter jurisdiction and the II factual and legal basis for judicial review[.]" Employee next argues that neither the Notice nor 12 the Final Notice were sufficient pursuant to 4 GCA § 4406. Employee further contends that the 13 CSC lacked jurisdiction only insofar as it could not consider the matter on the merits once it 14 concluded that the GHC failed to provide proper notice to Employee. Employee accordingly 15 seeks dismissal of the Petition. 16 On September 17, 2013, the GHC filed its Reply to an Answer to a Petition for Judicial 17 Review and Opposition to a Request for an Order to Show Cause. The GHC argues that its 18 proffered grounds for jurisdiction in this Court, 7 GCA § 3105 and 4 GCA § 4406, are correct

19 and are accompanied by supporting facts. The GHC further argues that 7 GCA § 31101 IS

20 inapposite because a writ of review is not presented here. On January 22, 2014, the Court issued its Decision and Order on Order to Show Cause, 21 "find[ing] that enforcement of the CSC's Decision and Judgment pending review would be 22 improper under the circumstances[,]" and noting that the Decision and Order "does not affect 23 the final outcome ofthe Petition for Judicial Review." 24 On February 28, 2014, Employee filed his Brief in Supplement to Answer in which he 25 reiterates arguments from his Answer. 26 On February 28,2014, the CSC filed its Brief. The CSC contends that jurisdiction lies in 27 this Court pursuant to 4 GCA § 4406 and the CSC's determination that it lacked jurisdiction 28 "was as to the issue of whether the matter should proceed to a hearing on the merits."

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Accordingly, the CSC argues that this Court affirm the CSC's conclusion that the GHC failed to provide sufficient notice to Employee. Alternatively, the CSC requests that this Court remand 2 the case for a hearing on the merits if the Court concludes that the notice was sufficient. 3 On March 21, 2014 the GHC filed its Reply to Employee's Brief and the CSC's Brief, in 4 which it addresses the parties' arguments and reiterates the substance of its Petition. 5 On March 24, 2014, the Court heard oral argument and took the matter under 6 advisement. 7 DISCUSSION 8 I. Superior Court Jurisdiction and Standard of Review

9 Employee denies that this Court has jurisdiction to consider the GHC's Petition. The GHC filed its Petition for Judicial Review of the CSC' s Judgment pursuant to 7 GCA § 3105 10 and 4 GCA § 4406. These statutes provide that the Superior Court maintains "original 11 jurisdiction over all causes of action, and, except for those causes exclusively vested in the 12 Supreme Court, may have appellate jurisdiction as may be provided by the Legislature[,]" 7 13 GCA § 3105, and that decisions of the CSC are subject to judicial review. 4 GCA § 4406. 14 "[T]he law establishing the CSC governs appeals to the CSC from adverse actions and provides 15 for judicial review of the CSC decisions." Carlson v. Perez, 2007 Guam 6, ~ 60 (citing 4 GCA 16 §§ 4105(b), 4403(b), and 4406). Similarly, "agency personnel decisions are appealed via the use 17 ofthe 'Petition for Judicial Review."' Id., ~ 65 (citing Perez v. Judicial Council of Guam, 2002 18 Guam 12, ~ 12; 7 GCA § 7117); see also DCK Pac. Guam, LLC v. Morrison, 2010 Guam 16, ~

19 15. Although Carlson and Perez concerned review sought by an aggrieved classified employee, rather than by an employer such as the GHC, this is a distinction without a difference because 20 the instant Petition nonetheless presents an appeal of an agency personnel decision. Indeed, the 21 Guam Supreme Court, without reference to the identity of an appellant, has characterized 22 Carlson and Perez as cases in which the Court has "spoken on the issue of how to appeal an 23 agency's personnel decision." See DCK, 2010 Guam 16, ~ 15. Simply put, a Petition for 24 Judicial Review is the appropriate vehicle by which to appeal an agency personnel decision. 25 The GHC commenced the instant action by filing such a Petition and, therefore, properly 26 invoked the jurisdiction of this Court. 27 Although the foregoing statutes and cases preserve the right of judicial review of agency 28 personnel decisions, the Court must note that the applicable statutes are silent as to a standard of

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review. Pursuant to 7 GCA § 7117, "[w]hen jurisdiction is by law conferred on a court or judicial officer, all the means necessary to carry it into effect are also given[,]" and the Court 2 accordingly may adopt "any suitable process or mode of proceedings [... ] which may appear 3 most conformable to the spirit of [Title 7.]" See also Carlson, 2007 Guam 6, ~~ 62-65 (invoking 4 power recognized in § 7117 to fashion appropriate procedures); Perez, 2002 Guam 12, ~~ 9-12 5 (same). The Court is persuaded by the approach adopted in DCK: the Supreme Court held that 6 the procedures set forth in 7 GCA § 31101, et seq., governed review of a judicial function and 7 noted that "the court is not constrained by the formal denomination of a writ in determining

8 what procedures and remedies to actually invoke, but rather is guided by the contents of the

9 petition and the particular relief sought." 2010 Guam 16, ~~ 17,20-21. The general procedure for obtaining a writ of review with respect to a final decision of 10 an inferior tribunal by the Superior Court is set forth in 7 GCA § 31102. The CSC is such an II inferior tribunal, per 4 GCA §§ 4403 and 4406. Moreover, the GHC questions the CSC's 12 jurisdiction and asks this Court to reverse or void the CSC's Judgment. Pursuant to 7 GCA § 13 33109, the Court possesses authority to affirm, nullify, or modify the CSC's Judgment. Because 14 the statutes and cases governing the esc provide an unspecified form of review and because 15 the review and relief sought by the GHC are authorized by 7 GCA 33101, et seq., the Court 16 exercises the power granted by 7 GCA § 7117 and adopts the standard of review applicable to 17 writs of review. The Court, accordingly, must determine whether the CSC "regularly pursued"

18 its authority or exceeded its jurisdiction in the instant matter. 7 GCA §§ 33102, 33108.

19 II. The Judgment of the Civil Service Commission The parties dispute the extent to which the CSC determined that it lacked jurisdiction to 20 consider Employee's appeal. In its Judgment, the CSC concluded that " [b]ecause the Notice of 21 Final Adverse Action fails to provide the Employee notice of the factual basis for the Final 22 Adverse Action the [CSC] is without jurisdiction and the adverse action must be voided." The 23 GHC reads this statement to mean that the CSC concluded that it lacked jurisdiction over the 24 matter entirely-and thus was without jurisdiction to void the adverse action-while Employee 25 and the esc maintain that the esc meant only that it lacked jurisdiction to consider the merits 26 of the case once it properly concluded that the GHC failed to provide adequate notice to 27 Employee. The parties acknowledge that the CSC's Judgment voiding the adverse action and 28 reinstating Employee is valid only if the CSC had jurisdiction.

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Because the parties offer competing interpretations of the CSC's Judgment, the Court must determine which interpretation is proper. Although principles of construction typically 2 apply to the interpretation of statutes and regulations, they are likewise applicable to the 3 interpretation of administrative decisions and orders. AT&T Commc'ns of Cal., Inc. v. Pac-W. 4 Telecomm, Inc., 651 F.3d 980, 992, n.17 (9th Cir. 2011) (concluding that agency "intended to 5 convey different meanings by its disparate word choice"); S. Utah Wilderness Alliance v. 6 Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1238-39 (lOth Cir. 7 201 0) (deferring to agency's interpretation of its own order and declining to give administrative 8 orders strained and unnatural constructions); Fiero v. Fin. Indus. Regulatory Auth., Inc., 660 9 F.3d 569, 579 (2d Cir. 2011) (concentrating on substance of agency's order, as opposed to label

10 applied by agency). Principles of statutory construction enunciated by the Guam Supreme Court are instructive here. First, while a statute's plain meaning prevails absent clear legislative intent 11 to the contrary, the Court need not follow the plain language of a statute "where the result 12 would lead to absurd or impractical consequences, untenable distinctions, or unreasonable 13 results." Sumitomo Const., Co. v. Guam, 2001 Guam 23, ,-[ 17. In addition, determining a 14 statute's plain meaning or its animating legislative intent, the Court must read a statute in its 15 entirety and construe it in conjunction with the "entire statutory scheme." Id.; Amerault v. 16 Intelcom Support Servs., Inc., 2004 Guam 23, ,-[ 14. 17 Although it must be noted that the CSC's conclusion that it was "without jurisdiction" 18 was inartfully stated, the Court is unconvinced that the CSC made a sweeping conclusion that it 19 lacked jurisdiction over the matter. It is plain from the Court's review of the Judgment and the

20 underlying hearing transcripts that the esc repeatedly emphasized the lack of notice afforded to Employee, and the record is devoid of any suggestion by the CSC that it broadly lacked 21 jurisdiction over the matter. Indeed, the matter came before the CSC not for a hearing on the 22 merits or on the issue of jurisdiction, but only as to the adequacy of notice. After consideration 23 of the written and oral submissions of the GHC and Employee, the members of the CSC 24 discussed in detail how the GHC afforded notice to Employee only in the form of legal 25 conclusions and vague factual assertions. Further, in its Judgment, the CSC reiterated that a 26 "generic explanation of the nature of charges against an employee with an adverse employment 27 action is not sufficient to provide him or her with the ability to defend against the same[.]" The 28 CSC likewise cited 4 GCA § 4406, which requires the GHC to provide a "specific statement of

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the charges," as well as the Personnel Rules and Regulations, 2 GARR § 11.311 (A), which requires that the notice contain "the specific facts upon which [the final adverse] action is 2 based." 3 Construed in conjunction with the Judgment and the transcript, therefore, the CSC's 4 statement with respect to jurisdiction applied only to the merits of the case, i.e., the CSC 5 concluded that, on account the GHC's inadequate Final Notice, the adverse action would be 6 voided and the CSC lacked jurisdiction to consider the matter any further. To conclude 7 otherwise would be to adopt an unreasonable construction of the entirety of the record in light 8 of one ill-crafted sentence. The Court, accordingly, concludes that the CSC did not lack

9 jurisdiction to issue the Judgment. As to the sufficiency of the Final Notice issued by the GHC to Employee, the CSC may 10 "declare null and void any personnel action of an employee in the classified service if the [CSC] 11 finds after conducting the necessary investigation that the personnel action was taken in 12 violation of personnel laws or rules[.]" 4 GCA § 4403(d). As set forth above, the Court 13 emphasizes the reasoning employed by the esc in its Judgment and after considering the 14 parties' arguments. The CSC, citing the notice requirements of 4 GCA § 4406 and 2 GARR § 15 11.311 (A), concluded that the GHC had not provided sufficient notice to Employee. Upon 16 review of the applicable statutes and regulations, the Court discerns no basis to disturb the 17 Judgment. There is simply no indication that the CSC failed to "regularly pursue[]" its authority 18 or exceeded its jurisdiction in the instant matter under 7 GCA §§ 33102 and 33108. The Court,

19 therefore, affirms the CSC's Judgment.

20 CONCLUSION 21 In light of the foregoing, the Court AFFIRMS the Judgment of the CSC. 22

23 IT IS SO ORDERED this day of July 16,2014. 24

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