HAGÅTÑA (The Guam Daily Post) — The Office of the Attorney General is asking the Civil Service Commission to dismiss the adverse action appeal filed by a former administrative supervisor, arguing that the employee wasn’t actually terminated as defined in personnel rules, and the commission, therefore, has no jurisdiction to hear the case.
Vivian Nisperos was hoping to retire from the OAG after several years of employment in the classified service. But before doing so, she wanted to use up accumulated annual leave and flextime leave.
Although she planned to last step foot in the AG’s office on Sept. 22, Nisperos said she intended to utilize annual leave and flextime leave through the middle of 2024, when she expected that her remaining annual leave would be paid out to her.
But Attorney General Douglas Moylan cut those plans short, stating in a letter on Sept. 13 that Nisperos’ “termination” would be effective Sept. 15.
The former administrative supervisor ultimately took the case to the CSC, appealing her reported termination and asking the commission to investigate the AG’s alleged retaliation and discrimination against her for wanting to use leave hours.
Those documents were filed in late September.
On Oct. 30, Deputy AG Darlow Graham Botha filed a motion to dismiss the case for lack of subject matter jurisdiction. Although Moylan used the word “termination” in his Sept. 13 letter to Nisperos, Botha stated it was not a termination, “as defined in (Department of Administration) Personnel Rules and Regulations, … as there was no adverse action taken against the employee.”
He added that Moylan’s letter highlighted the section of the personnel rules that allows appointing authorities, upon receiving a resignation letter, to make the resignation effective immediately or sooner than the resignation date indicated in the letter.
“In this case, the attorney general exercised his discretion and made (Nisperos’) resignation effective Sept. 15 instead of the resignation dates requested by the employee in her letter of intent dated Sept. 11, 2023. There was clearly no intent to terminate the employee,” Botha stated.
“There is no basis to appeal this matter to the Civil Service Commission to hear this matter as an adverse action appeal under (Title) 4 (Guam Code Annotated) Section 4406,” he added.
Botha also addressed the leave matter, stating that Nisperos is not entitled to such payments pursuant to 4 GCA Section 4109(c)(2).
This section of law, which also was cited by Nisperos, allows government employees who have accumulated annual leave exceeding 320 hours as of Feb. 28, 2003, to carry over that excess. Employees “shall” use the excess “prior to retirement or termination from service,” the law stated.
But Botha highlighted that this law also states that at the time of retirement or termination from service, the portion of leave permitted to be credited as sick leave “shall be so credited” and the remainder of the excess leave, if any, “shall be lost.”
While Section 4109(c)(2) allows certain employees to carry over excess leave, it also states that nothing within its language shall allow lump-sum compensation or retirement credit for annual leave above 320 hours, which Botha also highlighted.
“There is nothing submitted by (the) employee that shows that she is unable to retire from government service. Upon her retirement, she would be paid out for 320 hours of service, as provided in 4 GCA Section 4109, and would have received this in addition to her retirement annuity,” Botha stated in his motion to dismiss the appeal.
Nisperos and her lawyer interpret Section 4109(c)(2) differently, stating in documents filed at the CSC that these provisions expressly authorize the use of excess annual leave of over 320 hours prior to retirement. This section forms the basis of what’s known as “terminal leave” in the government of Guam, according Nisperos’ filings.
Nisperos reportedly accrued more than 830 hours of annual leave before Sept. 9.
She was also reported to have accrued more than 360 hours of flextime leave before Jan. 1, which stemmed from participation in a previously implemented flextime program. Under this program, OAG workers agreed to work additional hours in exchange for flextime on an hour-for-hour rate without payment of overtime.
Documents submitted to the CSC show that Nisperos’ lawyer had asked Moylan to clarify whether he intended to terminate her without allowing her use of approved flextime or excess annual leave, in addition to other clarification requests. It was stated in documents filed at the CSC that no response was provided before Sept. 15.
Hearing on investigation request
On top of appealing the reported termination, Nisperos and her lawyer, Jacqueline Terlaje, asked the CSC to investigate the attorney general’s office.
In addition to accusing the office of retaliating against Nisperos for wanting to take leave, the request states that “upon information and belief,” the attorney general’s office permitted other employees to use “terminal leave” and flextime leave prior to retiring.
The investigation request noted that the personnel rules Moylan cited in his Sept. 13 letter also contain a policy statement indicating that the government wants to provide “orderly, uniformed and fair procedures” for non disciplinary employee separations from GovGuam.
“Upon information and belief, the OAG engaged in conduct that is discriminatory, retaliatory and is not orderly, uniformed or fair to (the) employee,” the investigation request stated.
An assessment hearing for the investigation request was scheduled for Monday, but that was canceled because the CSC failed to field a quorum. It was rescheduled to Nov. 14.
The seal of the Civil Service Commission is seen recently at the CSC office in Hagåtña.
