HAGÅTÑA (The Guam Daily Post) — The Civil Service Commission addressed two adverse action cases involving the Office of the Attorney General last week, rejecting a motion to dismiss one case, while the other was said to be in settlement.
Josette Guzman was a legal clerk at the Child Enforcement Division of the OAG. She was terminated on Aug. 10. She appealed the termination with the CSC. Her representative, Robert Koss, from the Guam Federation of Teachers, filed a motion to void the termination over various alleged procedural defects.
But at a hearing Thursday, the parties indicated they had reached settlement and just needed to put it in writing.
“It’s very much in the employee’s interest to just go ahead and accept the settlement, and these proceedings are no longer necessary,” Koss said.
Most of Thursday’s CSC meeting was instead spent on the OAG’s motion to dismiss the appeal filed by Vivian Nisperos, a former administrative supervisor at the attorney general’s office.
Nisperos was hoping to retire from the OAG. But before doing so, she wanted to use up accumulated annual leave and flextime leave. She planned to last step foot physically in the office on Sept. 22, but intended to utilize leave through the middle of 2024, when she expected her remaining annual leave would be paid out to her.
Attorney General Douglas Moylan, however, wrote to Nisperos on Sept. 13, stating that her “termination” would be effective two days later. That ultimately led to an appeal at the CSC.
Deputy AG Darlow Graham Botha moved to dismiss Nisperos’ case, arguing that she wasn’t actually terminated, but her resignation was made sooner per the attorney general’s authority. He argued that the CSC did not have jurisdiction on the matter.
“Quite frankly, I think this is just being mean – the course of action. But do we have jurisdiction over this thing?” CSC Vice Chair Anthony Benavente said at last week’s hearing.
“I keep asking myself. The term “termination,” it’s a separate thing. You can use it as interchangeable. The only reason why I believe it’s used specifically as “termination” is because when management takes action to separate an employee, it’s defined as termination. When an employee wants to separate from the employer, of course, you resign. I’m not really concerned about the term “termination.” It is who took action here. Who initiated the action? (It was) the employee, based on this memorandum,” Benavente said.
Jacqueline Terlaje, Nisperos’ attorney, said “the second” the AG took the usage of excess leave out of her client’s hands, it became a termination.
“I know we want to say maybe it smells kind of like resignation, but I think you need to look at the factual circumstances of this case,” Terlaje said.
CSC Chair Juan Calvo disagreed with management’s argument that the CSC did not have jurisdiction on the case, stating that he viewed the AG’s “termination” as a red flag.
“Management (has) got to be careful (with) using the word ‘termination.’ When management used that term, ‘termination,’ it changed the process because (the) employee never intended to resign (on Sept. 22). But when management says, ‘I’m changing your date, and I’m terminating you on Wednesday,’ (it) automatically (becomes) an adverse action,” Juan Calvo said.
“There’s a continuity of the employee’s right to receive that benefit that she’s entitled to as a classified employee. And that needs to be preserved and protected and give the employee that right. And, to me, we have jurisdiction,” the chair added.
Benavente said Nisperos indicated she would be leaving the OAG based on the language in her notice to Moylan. And whether regarding resignations or leave requests, the appointing authority “unfortunately” has almost absolute power, Benavente added.
“The other concern I have is the term ‘termination,’ because it’s really interchangeable for me personally, The definition of resignation in the rules is, it is a voluntary termination. Let’s say we have jurisdiction over this case, I’m afraid of what’s going to come tomorrow,” Benavente said.
Ultimately, commissioners voted 3-1 to deny the OAG’s motion to dismiss Nisperos’ case, with Benavente supporting management.
A separate request to investigate the OAG was denied.
The seal of the Office of the Attorney General is flanked by flags, as seen Monday, Nov. 6, 2023, at the ITC Building in Tamuning.
