CNMI Attorney General Edward Manibusan has filed a complaint against Department of Public Safety Commissioner Robert A. Guerrero in Superior Court for excessive typhoon overtime pay.
Manibusan brought the lawsuit “on behalf of the people of the Commonwealth, who are harmed and have been harmed by the excessive compensation of defendant Robert A. Guerrero, a Commonwealth government employee who was not entitled to typhoon emergency premium compensation, overtime, or extra pay for work performed during the declared major disaster and state of significant emergency relating to Super Typhoon Yutu, or for work directly involved with typhoon recovery and repair work and providing assistance to those members of the Commonwealth adversely affected by Super Typhoon Yutu.”
The AG is also asking 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 likewise asked the court to declare that the director of personnel and the 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.
Guerrero was appointed by Gov. Ralph DLG Torres as DPS commissioner on Jan. 23, 2016.
According to the AG’s complaint, on October 23, 2018, just prior to landfall of Super Typhoon Yutu, Governor Torres issued Executive Order 2018-15 declaring a state of emergency for the CNMI and ordering the activation of the State Catastrophic Plan.
Although Executive Order 2018-15 did not expressly grant administrative leave to non-essential employees of the government, non-essential employees were sent home on administrative leave consistent with prior typhoon emergencies, the AG’s lawsuit stated.
On Oct. 24 and 25, 2018, Super Typhoon Yutu made landfall, bringing widespread devastation to Saipan and Tinian.
On Oct. 27, 2018, the governor issued Amended Executive Order No. 2018-16, which issued a Declaration of Major Disaster and Significant Emergency retroactive to Oct. 25, 2018 and invoked his emergency authority under the CNMI Constitution.
This declaration was subsequently renewed on Nov. 24, 2018 for thirty days by then acting Gov. Victor B. Hocog’s issuance of Executive Order 2018-23, and on December 24, 2018, by acting Governor Hocog’s issuance of Executive Order 2018-27.
On Nov. 2, 2018, Office of Personnel Management Director Isidro K. Seman issued a memorandum to all department and activity heads authorizing administrative leave and typhoon emergency premium pay.
The memorandum specified that employees kept back or called in to perform essential services would receive “administrative leave with normal pay for any regular work hours not worked plus two times the base salary rate for any regularly scheduled work hours where essential services were performed plus two and one-half times the base salary rate for any regularly scheduled work hours where essential services were performed in excess of the regularly scheduled work hours.”
On Nov. 16, 2018, the governor issued Directive No. 2018-003 “authorizing continued special compensation at the rate of 2.5 times the base hourly rate for those government employees engaged in work directly related to the Commonwealth’s recovery efforts.”
The effective date of the directive was retroactive to Oct. 25, 2018 and extended the initial period of authorization for the special rate to 30 days with a possible extension of another 30 days.
The directive noted that the premium pay would be applicable to “both civil service and excepted service” employees, “but is limited to those work hours directly involved with typhoon recovery and repair work and with providing assistance to those members of our community adversely affected by the typhoon.”
On Jan. 24, 2019, the governor issued Directive 2019-001 authorizing “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.”
According to the AG’s lawsuit, Guerrero received typhoon emergency premium pay on the following occasions:
• On Nov. 26, 2018, he received gross wages in the amount of $10,306.91 as typhoon emergency premium pay;
• On Dec. 21, 2018, he received gross wages in the amount of $9,917.49 as typhoon emergency premium pay;
• On Dec. 31, 2018, he received gross wages in the amount of $9,164.59 as typhoon emergency premium pay; and
• On Nov. 11, 2019, he received gross wages in the amount of $17,504.88 as typhoon emergency premium pay.
Guerrero’s typhoon emergency premium pay was paid at a rate of 2.5 times his base salary, the lawsuit said.
“In total, defendant 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 lawsuit stated.
“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,” the lawsuit added.
