SUPERIOR Court Judge Pro Tem Alberto Tolentino has denied the request of Department of Public Safety Commissioner Robert A. Guerrero to dismiss the complaint filed by the attorney general against him.
In his complaint for declaratory judgment and recovery relief, AG Edward Manibusan said certain typhoon emergency pay to the DPS commissioner was illegal and should be returned.
But Guerrero, through his attorney, Matthew Gregory, said the complaint is time-barred and 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.
But the Office of the AG, represented by the chief of its civil division, Alison Nelson, said the “two-year statute of limitations in 7 CMC § 2503 does not apply to this action because [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, she added.
Judge Tolentino agreed, saying “7 CMC § 2503(b) is inapplicable to this action.”
“Assuming arguendo that plaintiff’s cause of action accrued on the date of the first alleged overpayment made to defendant, plaintiff would have six years from November 26, 2018, to bring this action, or until November 26, 2024,” the judge said.
He said the complaint was timely filed as he denied the defendant’s motion to dismiss.
The judge noted that the complaint does not allege any wrongdoing on the commissioner’s part other than being a passive recipient of compensation beyond what he was allegedly entitled to.
“There are no allegations that he committed any tort, such as fraud, to unlawfully pay himself more money than he was entitled to. The action is merely one for declaratory relief and to recoup payments that had been made in excess of the Commissioner’s salary. The language in the complaint is strikingly passive and alleges no wrongful action on the Commissioner’s part,” the judge said.
He ordered Guerrero to file his answer to the AG’s complaint no later than June 22.
The AG has 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, “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.”
Manibusan also said that 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.
Robert Guerrero
