ATTORNEY Matthew Gregory reiterated that the complaint against Department of Public Safety Commissioner Robert A. Guerrero for “illegal” typhoon overtime pay is time barred.
The complaint must be dismissed for being untimely under the CNMI Statute of Limitations pursuant to Rule 12(b)(6) of the Commonwealth Rules of Civil Procedure, Gregory added.
“On the face of the complaint, the claims alleged therein are outside the statute of limitations. Likewise, there are no affirmative facts pled showing an exception to the statute of limitations,” he said.
He added that the Statute of Limitations provides for the application of a two-year Statute of Limitations which had passed prior to the filing of the complaint, Gregory said in his memorandum supporting Guerrero’s motion to dismiss the complaint.
But the chief of the Office of the Attorney General’s Civil Division, Alison Nelson, said the statute of limitations does not apply.
The lawsuit against Guerrero was filed by Edward Manibusan, in his official capacity as the attorney general of the CNMI, and it alleged excessive typhoon overtime pay.
“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,” Nelson said.
The lawsuit is governed by the six-year statute of limitations, she 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,” Nelson added.
But according to Gregory, “Receiving overtime for work as Commissioner is ‘connected’ to his ‘official duties.’ A traffic accident by the Commissioner while off duty is not, no matter if he is going to the bank to cash a check. Plaintiff’s example is absurd. No court would read the Statute that broadly.”
AG Manibusan, in his complaint for declaratory judgment and recovery relief, is asking the Superior Court to rule that certain typhoon emergency pay to the DPS commissioner is illegal and should be returned.
Specifically, 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’s lawsuit said the court should declare that the personnel regulations authorizing payment of typhoon emergency premium pay, overtime, and extra pay do not apply to gubernatorial appointees.
Manibusan has 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 asking the court for 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.
The AG earlier said that the complaint against the DPS commissioner will determine whether similar charges will be filed against other cabinet members of the Torres administration.
