Toves v. Guam Civ. Serv. Comm'n

Opinion

FILED

Lg D

SU?'f.;RKJR SUPER}OR COURT

OFF GUAM

Gum

2025 AUG 2B PHls= znz55ur.;28 Pll ~: 05

05

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 \.

.ii