JACQUELINE Nicolas, Commonwealth Civil Service Commission administrative hearing officer, heard testimonies from witnesses regarding the appeal filed by nine former firefighters who were terminated for refusing to take the Covid-19 vaccine.
The hearing started on Tuesday and will continue today, Thursday, April 21, in the Civil Service Commission training room in Gualo Rai.
The former firefighters are Paul Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Algernon A. Flores, Derek B. Gersonde, Shawn DLR Kaipat, Philip Kalen and Adam J. Safer. They are represented by attorney Joseph Horey.
At the hearing on Tuesday, Horey said the removal of the firefighters required a just cause.
“We want the commission to look and find if the termination was a just and appropriate sanction,” he said.
Justice requires proportionality, he added. “The sanctions for the violation should not exceed the violation itself…. We need to consider the mental state [of the person when the violation] was committed — if it was committed maliciously, willfully, recklessly, negligently, accidentally. In this case there is no dispute that…these firefighters declined to take the vaccine. They were ordered to take it and they didn’t do it. But the reason why they did not do it needs to be considered.”
Horey said the firefighters refused to take the vaccine out of concern for their health. They were also concerned about the legality of the mandate itself, he added.
“Right or wrong they acted in good faith and good conscience based on their own understanding of the situation,” Horey said. While the appellants refused to obey their superior’s order it was not a willful refusal to obey, it was not insubordination.”
Horey at the same time objected to the commission’s decision not to address the constitutionality of the vaccine mandate under the CNMI Constitution or its lawfulness under CNMI and/or federal law.
The lawyer likewise objected to the government’s failure to produce witnesses who will provide testimony on plans for exempted workers and the efficacy of vaccines.
At the administrative hearing, the government was represented by Chief Solicitor J. Robert Glass Jr. while Assistant Attorney General Alison Nelson represented former Department of Fire and Emergency Medical Services Commissioner Dennis Mendiola.
According to Glass, the executive order issued by the governor required firefighters to “get vaccinated or seek a medical or religious exemption.”
Glass said, “The appellants specifically said that they would not seek any exemptions.”
“There was no personal choice exemption listed in the executive order,” he added, “and so they unlawfully disobeyed the order of their superiors [who] gave them [the firefighters] opportunities, [but] they specifically did not do that — that is insubordination, and it leads to a just removal, as there is no lesser sanction…available….”
Office of Personnel Management Director Frances Salas also testified at the administrative hearing.
She said there were three requests for vaccine exemption from other executive branch employees. They were not granted, she added
Salas said besides the nine firefighters there was another executive branch employee who was terminated. She did not elaborate.
In September 2021, Superior Court Associate Judge Joseph N. Camacho dismissed without prejudice the lawsuit of the nine former firefighters against DFEMS and Mendiola.
The court said it had no jurisdiction over the plaintiffs’ complaint, and that the parties had agreed to dismiss the case without prejudice.
The court found that the firefighters had not exhausted all administrative remedies available to them when they filed their lawsuit.
The former firefighters were terminated for insubordination following their refusal to take the Covid-19 vaccine as required by the CNMI Governor’s Directive 2021-002.
