Toves v. Guam Civ. Serv. Comm'n

• Court: Superior Court of Guam
• Decided: August 28, 2025
• Docket: SP0116-24
• Status: Unknown

Opinion

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OF CUURT CLERK OF COURT

IN THE SUPERIOR COURT COURT OF OF GUAM BY: __bV_· GUAM . BYI -=---- JOHNNY C. JOHNNY c. TOVES, Special Proceedings Case No. No. SP0116-24

Employee-Petitioner, Employee-Petitioner, DECISION AND ORDER DENYING vs. VERIFIED PETITION FOR JUDICIAL REVIEW GUAM GUAM CIVIL CIVIL SERVICE SERVICE COMMISSION,

Respondent,

vs.

DEPARTMENT OF PUBLIC WORKS,

Management-Real Management-RealParty Party~In ·In Interest.

The Court here here reviews reviews the Guam Guam Civil Civil Service Service Commission's Commission'sDecision Decisionand andJudgment Judgment

regarding Petitioner Johnny regarding JohnnyC. C. Toves' termination from the Department Toves' termination Department of of Public Public Works. Works.

Having reviewed Having reviewedthe the record, record, the the parties' parties' briefs, briefs,and and the the relevant relevant laws, the the Court finds that Toves Toves

has failed to meet the requisite burden to to establish establishthe theimpossibility impossibility of of compliance with with Guam

law requiring aa government government employee employeeto to report reportan an arrest arrest and criminal charge to his employer.

Accordingly, the Court Court DENIES Toves' Petition DENIES Toves' Petition for for Judicial Judicial Review. Review.

I. 1. FACTUALANDPROCEDURALBACKGROUND ACTUAL PRO CEDURAL BACK GRO

Toves was Toves was arrested arrested on on July July 20, 20, 2017, 2017, and and confined confined at at the Department of Corrections Corrections until until

August 7, 2017. 2017. V. Pet. Jud.Rev., Rev., Ex. A at at 2 (Aug. 30, 2024). 2024). A DPW DPWemployee, employee, Toves Toves did did not

inform inform his his supervisor supervisor of ofhis his arrest arrest and and confinement confinement until July 26, 2017, and did not inform the the

Director Director ofDPW ofDPWofofthis thisinformation informationuntil untilAugust August10, 10, 2017. 2017. Admin. Admin. R. R. at at 33 33 (Mar. (Mar. 5, 5, 2025).

OR~GINAL SPOl 16-24 SP0116-24 DECISION AND ORDER DENYING VERIFIED PETITION FOR Page 2 JUDICIAL REVIEW

DPW considered Toves to considered Toves be on to be "unauthorized absent on "unauthorized status" Hom absent status" July 24 from July August 7, 24 to August

Pet. Jud. V. Pet. 2017. V. Rev., Ex. A at 2. Jud. Rev., 2. Toves Proposed ved aa Pr served was ser Toves was Notice of oposed Notice Adverse of Adver on Action on se Action

September 8, 2017, followed by aa Final Notice of September 8, Action on of Adverse Action September 19, on September 2017, for 19, 2017,

failure to comply failure to comply with with 44 GCA GCA §§ 4202.1, which required him him to to report his charge report his charge to to DPW DPW within within

72 hours. He was hours. Id. He terminated from employment was terminated 19, 2017. employment with DPW on September 19, Id. He 2017. Id.

appealed CSC, which the CSC, to the appealed to issued a Decision which issued Judgment on August 1, 2024, adopting the and Judgment Decision and

position of DPW and upholding the and upholding termination of the termination Toves. Id. of Toves. Id

review and Toves seeks judicial review argues that it was and argues him to comply with was impossible for him

section 4202.1 while confined. 4202.1 while OpeningBr. Employee-Pet. 'sOpening confined. Employee-Pet.'s at 44 (Apr. Br. at 14, 2025). (Apr. 14, states he He states 2025). He

"reported his arrest and indictment at the first opportunity after first opportunity hisrelease afterhis fromdetention." releasefrom detention." Id. Id

DPW disagrees at 3. DPW and contends disagrees and that he contends that did not he did notify DPW not notify at the DPW at first opportunity he was the first

able to, and that he failed to provide the head of DPW with written notice as required by section he failed

Mgmt.-Real Party 4202.1. Mgmt.-Real InInterest PartyIn Resp. to Interest Resp. Opening Br. to Opening at 33 (May 23, 2025). Br. at

The Court heard this matter on June 24, 2025. At the 2025. At hearing, Toves propositioned that the heading,

employer had the burden the employer to illustrate burden to proper, meanwhile, illustrate the adverse action was proper; meanwhile, DPW argued

the burden that the was on burden was Toves to on Toves illustrate impossibility to illustrate of compliance. impossibility of Court then took this compliance. The Court

matter under advisement.

II. 11. LAW AND AND DISCUSSION DISCUSSION

Court first identifies the appropriate standard of review for As a preliminary matter, the Court

this action. Toves de novo. requests the Court to review the CSC's decision De Toves requests of the decision of novo. A decision

CSC is final but subject to judicial under a substantial evidence judicial review under for factual standard for evidence standard

determinations and aa de determinations and Denovo novostandard standardfor forlegal legaldeterminations. determinations.44GCA GCA § 4403(d)(4); 4403(d)(4),

Charfauros Charfauros v. v. Guam Guam Civil CivilServ. Serv.Comm Comm'n'n(Guam (Guam Police 't),2022 DepU, PoliceDep 191]9i[ 17, Guam19 2022Guam 17; Guam Guam

P;[~ClN "Ti SPOl 16-24 SP0116-24 DECISION AND ORDER DENYING VERIFIED PETITION FOR Page 3 JUDICIAL REVIEW

Hows. Corp. v. Hous. Corp. Guam Civil v. Guam 'n (Potter), Serv. Comm 'n Civil Serv. ,r 9; Port (Potter), 2015 Guam 22 1]9, Guam v. ofGuam Port Auth. of

Civil Serf. Serv. Comm Comm 'n'n {Arriola), Guam 13 Qlrriola), 2019 Guam ,r 14. 13 11 determine "whether to determine usedto is used novo is De novo 14. De "whether a

lower raised in lower tribunal addressed all the issues raised the proceedings." in the of Guam, proceedings." Port Auth. of Guam, 2019

13 ii,r 14. Guam 13 dates in disagreement regarding the facts and dates that there is no disagreement states that Toves states 14. TOVeS in

the issues regarding the legal implications of these facts. question, but rather the Court agrees The Court facts. The

Toves that there is no dispute with Toves over material dispute over facts and finds that the issue to review is material facts

whether The question whether the CSC adequately considered impossibility. The ofimpossibility question of purely a impossibility isis purely

question of of law, which which is is reviewed reviewed De de novo.

The Court Court starts starts with withthe the plain plainlanguage language of ofthe the statute statute at at issue. Aguon v. v. Gutierrez, 2002

14,r Guam 14116.

employee in An employee in the classified service who is charged by indictment, the classified information, or complaint with any crime in any court or who or magistrate's complaint is convicted ofof a crime in any court in any except Traffic Court shall provide the court except of the head of deptment ororagency the department employingthe agencyemploying employee with the employee written with written of the charges or the conviction within seventy-two (72) hours notice of thereof.

GCA §§ 4202.1. 44 GCA 4202.1. The The plain plain language language indicates indicates that the 72 that the 72 hours hours begin begin to to run run upon upon aa charge charge or or

conviction. There no mention There isis no ofconfinement, mentionof or exceptions confinement, or to the exceptions to timeframe in the timeframe event the in the event

employee is incarcerated incarcerated or or otherwise unable unable to to provide provide the required notice. the required Absent such notice. Absent

statute to exceptions, the Court interprets the statute be enforced to be if a person is detained. enforced even if

Next, even assuming the the doctrine doctrine of of legal impossibility can be invoked, the Court

The Guam addresses who must prove impossibility. The Supreme Court Guam Supreme has held Court has that an held that

impossibility may arise when a supervening event makes a party's performance objectively

impossible or impracticable. Palmer v. Mariana Stones Corp., 2021 43. Typically, in 2021 Guam 5 -iJ1]43.

contract and civil contempt of cases, the party raising the impossibility defense has the burden of contempt cases,

proving legal impossibility. See legal impossibility. Gauchov.v.Glob. See Gascho Glob.Fitness FitnessHoldings, LLC, 875 F.3d 795, Holdings, LLC, 802 (6th 795, 802

! I I s I I I R go' I I -_ Spoll6-24 SPOl 16-24 DECISION AND ORDER DENYING DENYING VERIFIED PETITION FOR Page4 Page JUDICIAL REVIEW REVIEW

Cir. 2017), 2017); Massachusetts Bay Transp. Massachusetts Bay Transl. Auth. v. v. United United States, States, 254 F.3d 1367, 1373 (Fed. Cir. 1373 (Fed. Cir.

2001), 2001); Coleman v. Newsom, Newsom, 131 948 (9th 131 F.4th 948 (9th Cir. Cir. 2025). 2025). Courts Courts have have found that to illustrate

impossibility, impossibility, the the party party involdng invoking this this defense defense has has the the burden burden to to demonstrate demonstrate that it was unable to

comply; its inability comply, inability to to comply comply was was not not self-induced, self-induced; and and itit took "all "all reasonable steps" to

comply. Gascho, asch 875 F.3d at 802; IBEWv. 802, IBE Gary's x . G ary ' s E lElec. Serv. Co., 340 F.3d e m. Se F.3d 373, 381-83 (6th

Cir. 2003). 2003). Additionally, Additionally, the the party party invoking invoking the the defense defense must must prove that it "explored and

exhausted alternatives" before concluding that there was a legal impossibility. impossibility, Massachusetts

Transl. Auth., Bay Transp. Auth., 254 F.3d at at 1373. 1373. "The "The party party asserting asserting the impossibility impossibility defense defense must show

categorically and in detail detail why he is unable unable to to comply." comply." Coleman, Coleman, 131 F.4th at 959-60. 959-60. These These

authorities persuade Mis because Toves this Court that because Toves is is the the party party invoking the doctrine of legal

impossibility, the burden of establishing impossibility impossibility falls falls on on him, him, not not DPW. DPW. Toves, not DPW,

would be in the best position to provide evidence of the circumstances that allegedly made his

compliance impossible. As Asthe the proponent proponent of ofthis this doctrine doctrine and and the party seeking seeking to to avoid a legal

responsibility, the burden to establish the basis for that avoidance falls squarely upon him.

Second, in assessing whether whether impossibility impossibility was was established, established, the the Court Court considers whether

Toves illustrated his inability to comply, whether his inability inability was was self-induced, self-induced, whether whether he took

all reasonable steps to comply, and whether whether he explored and exhausted alternative remedies.

Notably, difficulty with compliance compliance is is insufficient insufficient to to meet meet the burden of establishing

impossibility. Id. Id. atat 960 960 (finding (finding aa lack lack of of impossibility impossibility when when the the party "failed "failed to to adduce

evidence of impossibility or rebut clearly meaningful pathways that could potentially bring it

into compliance)."

In examining examining Toves' Toves' filings, filings, the the Court Court does does not not find find that that Toves has shown shown facts facts that show

head ofDPW that providing written communication to the head ofDPW within within 72 72 hours hours of of his arrest was SPOl SP0116-24 DENYING VERIFIED PETITION DECISION AND ORDER DENYING PETITION FOR Page 5 JUDICIAL REVIEW JUDICIAL

impossible. In impossible. gives no In fact, Toves gives explanation. The no explanation. Court acknowledges The Court theobvious-that acknowledgesthe obvious-that

confinement comes confinement restrictions. Perhaps comes with resh'ictions. DOC did Perhaps DOC not allow did not him to allow him send written notes? to send

Perhaps Toves could not reach a family member could give member who could the written notice, to the extent give the

such delegation delegation is is possible? possible? But itit is is not not the the Court's to fill jobto Court's job thegaps fillininthe andmake gapsand assumptions make assumptions

about what is and is impossible. That burden not impossible. is not fell on burden fell Toves. As in Coleman, on Toves. Coleman, just because

compliance may have was impossible. have been challenging does not mean compliance was impossible. The Court

simply simply has has no no facts facts other of his confinement other than the fact of which to determine the confinement upon which

impossibility of of Toves' Toves' circumstances, circumstances, and and that that fact, fact, on its own, is not enough.

III. 111. CONCLUSION AND ORDER

Section 4202.1 does not exempt the period of time one is incarcerated from the Section

calculation employee must of the 72 hours with which a government employee calculation of their employer must notify their of a employer of

criminal charge. Even Even ififthe the impossibility impossibilityof ofcompliance with this compliance with law could this law be considered, could be

but he failed to meet that burden. Toves maintained the burden to prove impossibility, but

Therefore, the Court DENIES the Petition for Judicial Review. Q q * T* s. SO ORDERED, ORDERED,28 28 August August 2025. 2025. `\

+

~ . ll

HON M ARTE Judge, SupleriQr Courtiif Guam

Appearing Parties: Joshua Walsh, Esq., Razzano Walsh & Torres, P.C., P.C., for Employee-Petitioner, Johnny C. Toves for Employee-Petitioner, Thomas Keeler, Assistant Attorney Attorney General, Office of the Attorney General, for Management- Real Party in in Interest, Department Interest, Department of of Public Works Respondent Guam Civil Service Commission Commission (unrepresented) (unrepresented)

5 ORiGtNAL \.

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