Port Authority of Guam v. Civil Service Comm.

Opinion

Fl n SUPERI COURT OF GUAM 1 lHlB APR 13 PH 3: 22 2 CLERK OF COURT 3

4 IN THE SUPERIOR COURT OF GUAM 5 PORT AUTHORITY OF GUAM, ) SPECIAL PROCEEDINGS CASE NO. 6 ) SP0072-16 7 PETITIONER, ) v. ) 8 ) CNIL SERVICE COMMISSION, ) FINDINGS OF FACTS AND 9 ) CONCLUSIONS OF LAW RE: PETITION 10 RESPONDENT, ) FOR JUDICIAL REVIEW ) 11 AND ) ) 12 EDDIE N. CASTRO, ) ) 13 REAL PARTY IN INTEREST.) 14 __________________________________ ) 15 INTRODUCTION 16 This matter came before the Honorable Maria T. Cenzon on December 18, 2017, for a 17 hearing on Petitioner Port Authority of Guam's ("Petitioner" or the "Port") Petition for Judicial 18 Review. Joanne Brown, General Manager of the Port, and counsel of record, Attorney Michael 19 Phillips were present. Real-Party-in-Interest Eddie N. Castro ("Castro") and his counsel Attorney 20 William Pole were also present. Although notice of the hearing was provided to the Civil Service 21 Commission (the "Commission"), no representatives attended the hearing. 1 At the conclusion of 22 the oral arguments, the Court took the matter Under Advisement pursuant to CVR 7.1 of the 23 Local Rules of the Superior Court. 24

25 26 1 At the time the Commission's Brief on the Petition for Judicial Review was filed, the Commission was represented by Attorney John G. Nowakowski. On December 28, 2017, a Substitution of Counsel was filed wherein R. Todd 27 Thompson is identified as the interim successor to former Commission Administrative Counsel John G. Nowakowski. 28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 1 of 8 1 The Port argues the Court should reverse the Commission's Judgment because A) the

2 Commission utilized the incorrect burden of proof pursuant to 4 Guam Code Ann. § 4407, and

3 B) the Commission exceeded its authority under 4 Guam Code Ann. § 4406, by demoting Castro

4 to a non-existent position of "Guard." Petitioner's Opening Brief on Petition for Judicial Review;

5 pp. 1-2 (Oct. 9, 2017).

6 In response, Castro asserts the Commission has no authority to apply a lower burden of

7 proof in his case, thus the Court should defer to the Commission's interpretation that the

8 allegations against Castro did not involve a crime. Opp. to Port Authority Of Guam's Opening

9 Br. and Real Party in Interest Request for Attorney Fees, pp. 7-8 (Nov. 6, 2017). Moreover,

10 Castro maintains reinstatement of his position does not hinge on whether the position of "guard"

11 is currently open and is not subject to the competitive actions. ld. pp. 10, 14. Finally, Castro

12 argues he is entitled to attorney's fees pursuant to legal precedent set forth in Guam House. Corp

13 v. Guam Civil Serv. Comm'n (Potter), 2015 Guam 22, and Guam Mem'l Hosp. Auth. v. Civil

14 Service Comm'n (Chaco), 2014 Guam 27. 2 Id. p. 15.

15 The Commission also opposes the Port's petition for judicial review and contends the

16 Port's argument is moot because the Commission found that Castro committed the acts after

17 applying the "clear and convincing" standard. Respondent's Br. on Pet. for Judicial Review, p. 2

18 (Nov. 6, 2017). Additionally, under Section 4406, the Commission argues, it is granted broad

19 authority to "sustain, modify, or revoke the action taken," and that there is no legal deference

20 owed by the Commission to the Port's decision on the appropriate level of discipline. Id. at p. 3.

21 The Commission also contends even if a "guard" position is not available, substantial

22 compliance is possible where the Commission's decision was to "enact the severest demotion."

23 !d. at p. 6.

24 II

25 II

27 2 Opinion Amended and Superseded on Rehearing by Guam Memorial Hospital Authority v. Civil Service Commission, 2015 Guam 18. 28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 2 of8 1 FINDINGS OF FACT

2 1. On April 5, 2013, the Port served Castro with a Notice of Final Adverse Action, where 3 his employment was terminated pursuant to 4 GCA Section 4406. The action was taken 4 in accordance with Chapter 11, Rule 11.303, governing Authorized Causes for Adverse 5 Action, of alleged violations of the Personnel Rules and Regulations, specifically (B) 6 Refusal or failure to perform prescribed duties and responsibilities, (D) Falsification of 7 Records, (E) Insubordination, and (H) Unauthorized absences. Incident 1 was described 8 as Castro utilizing the Port Police official vehicle near the Naval Magazine area of Santa 9 Rita, beyond Port Police jurisdiction at approximately 1:00 a.m. on February 14, 2013. 10 Incident 2 was described as Castro falsifying the time he reported to and left work on his 11 timesheet on February 16, 2013. Castro reported he was on duty from 5:00p.m. to 11:00 12 p.m., but actually reported only from 9:15 p.m. to 9:30p.m. 13 2. Castro was employed by the Port for twenty (20) years and was approximately three (3) 14 weeks from retirement when he was terminated.

15 3. Castro appealed his termination to the Commission on April 17, 2013. The Commission 16 held Merit Hearings from June to August, 2015.

17 4. In August, 2015, after the Port indicated the correct standard applicable was the 18 "substantial evidence" standard, but the Commission voted to use the "clear and

19 convincing" evidence standard. Accordingly, the Commission applied this standard in

20 determining whether the Port proved Castro committed the acts charged and whether the 21 Port was correct in its act terminating Castro.

22 5. On March 29, 2016, the Commission issued its Decision and Judgment.

23 a. The Commission held the Port "proved by clear and convincing evidence that 24 Castro committed" Incidents 1 and 2.

25 b. The Commission took a separate vote to determine the appropriate penalty to be

26 taken against Castro for his actions. Three (3) of the Commission members voted

27 to modify the termination and three (3) members voted to uphold the Port's

28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 3 of8 1 decision to terminate Castro. After further deliberation, the Commission decided,

2 by a vote of 5 to 1, to place Castro in the position of "Guard" at the Port.

3 c. The Commission did not find that Castro prevailed for the purpose of awarding

4 attorney's fees.

5 6. On April 28, 2016, the Port filed the instant Petition for Judicial Review. Castro filed an

6 Answer for Petition for Judicial Review on May 4, 2016.

7 CONCLUSIONS OF LAW

8 A. Jurisdiction and Standard of Review

9 1. "The decision of the Commission or appropriate entity shall be final, but subject to

10 judicial review." 4 Guam Code Ann.§ 4406.

11 2. The Guam Supreme Court has held that a trial court is obligated to follow the

12 standard of review set forth under Section 9240 of the Administrative Adjudication

13 Law ("AAL"). Guam Waterworks Auth. v. Civil Service Comm 'n (Mesngnon), 2014

14 Guam 35 <[ 8. Section 9240 provides as follows "Judicial review may be had of any

15 agency decision by any party affected adversely by it. If the agency decision is not in

16 accordance with law or not supported by substantial evidence, the Court shall order

17 the agency to take action according to law or the evidence." !d. (quoting 5 Guam 18 Code Ann.§ 9240).

19 3. Further, the Guam Supreme Court found that a trial court must conduct a de novo

20 review of the Commission's conclusion of law and must affirm the Commission's

21 findings of fact, and any conclusions resulting therefrom, if supported by substantial

22 evidence. !d.<[ 9. "This is because the reviewing body may not substitute its views for

23 those of the [agency], but instead must accept the [agency's] findings unless they are

24 contrary to law, irrational, or unsupported by substantial evidence. !d. <[ 9 (citing

25 Fagan v. Dell'Isola, 2016 Guam 11 <[13 (alterations in original)).

26 4. "Substantial evidence is more than a mere scintilla, but less than a preponderance."

27 Guam Mem'l Hasp. Auth. v. Civil Serv. Comm'n (hereinafter "Chaco"), 2015 Guam 28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 4 of8 1 18, <][ 15 (citing NLRB v. lnt'l Bhd. of Elec. Workers, Local48, 345 F.3d 1049, 1053-

2 54 (9th Cir. 2003) (internal quotation marks omitted)). It means such relevant

3 evidence as "a reasonable mind might accept as adequate to support a conclusion." !d.

4 B. Standard of Proof under 4 Guam Code Ann., Article 4 (Civil Service Commission)

5 1. Section 4407(a) provides, "Upon the hearing of any adverse action appeal, the burden 6 of proof shall be upon the government to show clearly and convincingly that the 7 action of the Branch, department, agency or instrumentality was correct." (emphasis 8 added). 9 2. Section 4407(c) provides, "In cases involving charges which could be a crime if the 10 person was charged in a criminal action, the Commission shall determine the matter 11 based upon substantial evidence that the employee committed the acts charged. " 12 (emphasis added). 13 3. Unlike in Port Authority v. Civil Service Commission (Javelosa) SP0151-14, the 14 Commission in this case found that the Port met its .burden of proof in establishing 15 that Castro committed the acts charged. 16 4. Because the Commission found that the Port "proved by clear and convincing 17 evidence that Castro committed" incidents 1 and 2, any argument that they should 18 have utilized the lower standard of substantial evidence is moot. The Court agrees 19 with the Commission that the use of a higher burden of proof was not outcome 20 determinative since the Commission found the Port succeeded in proving the 21 employee committed the acts alleged. 22 5. Further, Rule 11.7.3 of the Commission's Rule of Procedure and Section 4406 23 provides, the Commission is not bound to accept the Port's punishment even upon 24 finding that the Management met its burden proving the charges/claims against the 25 Employee. 26 6. Therefore, the Court will not reverse the Commission's findings on this basis. 27

28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 5 of 8 1 C. Commission's authority to modify adverse actions under 4 Guam Code Ann.§ 4406 and Rule 11.7.3 2 1. The Supreme Court of Guam has recognized the Commission's authority to modify 3 the adverse action taken by an agency pursuant to Section 4406. Potter, 2015 Guam 4 22,

20 3 In its entirety, the rule provides: 21 If Management proves the charges, but the CSC finds, that because of the Employee's past record 22 or the gravity of the offense, or the facts and circumstances of the case, that the adverse action should be modified, it may modify the adverse action accordingly. The reasons for such 23 modification shall be stated in the decision of the CSC. Any compensation or the benefits due as a result of the modification shall be restored to the Employee. The CSC may not modify an adverse 24 action to the Employee's detriment.

25 In the event that the CSC modifies the adverse action taken by Management, the CSC shall make a separate determination as to whether the Employee has prevailed for purposes of awarding 26 attorney fees.

27 (emphasis added).

28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 6 of8 1 that substantial evidence supports the Commission's decision to exercise its statutory 2 discretion in order for the Commission to prevail. Chaco, 2015 Guam 18,

6 No. 13-AA13T, pp. 1111-1175 (May 17, 2018). During deliberations, the 7 Commissioners were deadlocked, 3-3 for dismissal and modification. !d. p. 1167. It

8 was then suggested by the Chairman, "If you're going to go demotion, then we're 9 going to demote -put it down to guard." !d. pp. 1168-1169. Other Commissioners

10 questioned whether such a position existed at the Port and whether there was a 11 difference between a guard, armed guard, and security guard positions. One 12 Commissioner inquired if the Port staffing pattern included a position of "guard,"

13 which was erroneously confirmed by yet another Commissioner. /d. p. 1171. 14 6. Although the Port submitted the proposed judgment and could have raised the

15 argument that the "guard" position did not exist at that time, the Port before this Court

16 now confirms that this position does not exist and that the lowest position is that of an 17 "armed guard." Decl. of Felixberto A. Duenas (Nov. 22, 2017).

18 7. The Court cannot uphold the Commission's decision and place Castro in the most

19 severe demotion of "guard" when (1) the position does not exist at all at the Port and

20 (2) the "most severe" demotion would be to that of a security guard (armed). The

21 Commissioners specifically expressed that they intended Castro be demoted to a

22 "guard" and not a security guard position. Cert. of Tr., supra, pp. 1173-1174. 23 D. Attorney's fees

24 1. An employee who ultimately prevails in an adverse action appeal "is entitled to [the]

25 attorney's fees and costs that [he or] she incurred while prosecuting this appeal under

26 section 4406.1 both at the Superior Court and Supreme Court." Guam House. Corp v. 27

28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 7 of8 1 Guam Civil Serv. Comm 'n (hereinafter "Potter"), 2015 Guam 22, !]{ 26 (citing Chaco, 2 2015 Guam 18

3 2. Making the determination of whether a party prevailed "requires the trial court to

4 look at the lawsuit as a whole to determine which party, if any, prevailed." !d. !]{ 45

5 (citing Rahmani v. Park, 2011 Guam 7 !]{ 64).

6 3. In compliance with Rule 11.7.3 4 , the Commission is instructed to determine whether

7 Castro has prevailed for the purpose of awarding attorney fees.

8 9 CONCLUSION 10 For the reasons set forth above, the Court finds the Commission's modification of the

11 adverse action was not supported by substantial evidence. Therefore, the case is REMANDED to

12 the Commission for further proceedings to determine: 1) whether the Commission shall uphold

13 its modification of the Port's adverse action despite that the position of "guard" does not exist;

14 and 2) based on its decision on REMAND whether to proceed with the modification, the

15 Commission shall further determine whether Castro has prevailed for the purposes of awarding

16 attorney fees.

18 SO ORDERED this _ _ _APR __1_3_2_0_18_ __ 19

20 .;.c11VII,;t. VII-\ t;OURT 80X 1acknowledge that a copy111 the 21 original hefeto was placed In the court boxot 22 ffltL-LifS ~U.O d~~ c;e,:z:&k JUDGE, SUPERIOR COURT OF GUAM

o..tz~~ 23

24 DeputY Clerk;'"S"upe or Of Guam 25

27 4 See supra. 28 Port Authority of Guam v. Civil Service Commission (Eddie N. Castro); SP0072-16 FFCL Re: Petition for Judicial Review Page 8 of8