THE Office of the Attorney General is opposing Department of Public Safety Commissioner Robert A. Guerrero’s motion to dismiss the lawsuit over his typhoon overtime pay.
According to the Office of the AG’s Chief of Civil Division Alison Nelson, “The two-year statute of limitations in 7 CMC § 2503 does not apply to this action because defendant [Guerrero] was not acting in connection with the performance of his official duties and the claims against him are in his personal and individual capacity.”
The lawsuit is governed by the six-year statute of limitations, Nelson added.
“In any event, Causes of Action One, Two, and Three for declaratory judgment are not barred by the statute of limitations because there is no question of fact and the resolution of the legal rights of those involved remains in dispute,” Nelson said.
“It is clearly and well pled that defendant was not acting in connection with his position as Commissioner of the Department of Public Safety because no law authorizes overtime, premium payments, or payments over and above the statutory cap for gubernatorial appointees like defendant.”
Guerrero, who is represented by attorney Matthew Holley, has asked the Superior Court to dismiss the claims “for being untimely under the CNMI Statute of Limitations pursuant to Rule 12(b)(6) of the Commonwealth Rules of Civil Procedure.”
“On the face of the complaint, the claims alleged are outside the statute of limitations. Likewise, there are no affirmative facts pled showing an exception to the statute of limitations,” Holley stated.
In his complaint for declaratory judgment and recovery relief, Attorney General Edward Manibusan said certain typhoon emergency pay to the DPS commissioner was illegal and should be returned.
The AG is referring to the “special compensation at the rate of 2.5 times the base hourly rate of pay for those government employees engaged in work directly related to the Commonwealth’s typhoon response and recovery efforts for the period of November 25, 2018 through January 23, 2019.”
The AG wants the court to issue a judgment declaring that the personnel regulations authorizing payment of typhoon emergency premium pay, overtime, and extra pay do not apply to gubernatorial appointees.
Manibusan also asked the court to declare in a judgment that the director of personnel and the CNMI governor lack the authority to authorize additional compensation except as provided by law; and that compensation in excess of the salary ceiling cannot be authorized except as provided by law.
The AG is seeking a judgment of $46,892.96 for recovery of unlawful typhoon premium payments, overtime payments, or extra payments not authorized by law, without valid appropriation, and in excess of the salary ceiling, including prejudgment and post-judgment interest, and the costs of the lawsuit.
According to the AG, Guerrero “received typhoon premium pay in the total gross amount of $46,892.96 with $29,388.08 being paid in Fiscal Year 2019 and $17,504.88 paid in Fiscal Year 2020; however, all pay was for work performed during Fiscal Year 2019 from October 23, 2018 through January 23, 2019.”
The AG added, “Other Commonwealth employees, including but not limited to other gubernatorial appointees, also received typhoon premium pay for work performed during the period from October 23, 2018 through January 23, 2019, and therefore are similarly situated to defendant.”
In a previous statement to Variety, Manibusan said the outcome of the complaint against the DPS commissioner will determine whether similar charges will be filed against other cabinet members of the Torres administration.
