FOLLOWING the Superior Court’s denial of his motion to dismiss the complaint regarding illegal typhoon overtime pay, Department of Public Safety Commissioner Robert A. Guerrero has admitted owing the CNMI government $46,982.96.
“Defendant admits that a judgment should issue as to the first three causes of action for declaratory relief,” he stated through his attorney Matthew Gregory.
Guerrero also “admits that a judgment should be issued as to the Fourth through Sixth causes of action resulting in a judgment of $46,982.96.”
But Guerrero denied the “plaintiff’s entitlement to prejudgment interest and any other relief,” referring to the attorney general.
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.
The AG 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 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.”
Guerrero has asked the court to dismiss the complaint “for being untimely under the CNMI Statute of Limitations pursuant to Rule 12(b)(6) of the Commonwealth Rules of Civil Procedure.”
But the AG’s office, represented by the chief of the civil division, Alison Nelson, said the statute of limitations does not apply to the case which is instead governed by the six-year statute of limitations.
Judge Tolentino agreed. “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.
The judge also noted that the AG’s 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.”
The judge added, “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.”
