DEPARTMENT of Public Safety Commissioner Robert A. Guerrero, through his attorney Matthew Gregory (not Holley), says the lawsuit of Attorney General Edward Manibusan alleging excessive 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 said.
“On the face of the complaint, the claims alleged are outside the statute of limitations. Likewise, there are no affirmative facts pled showing an exception to the statute of limitations,” the lawyer added.
Manibusan, in his complaint for declaratory judgment and recovery relief, seeks an order from the Superior Court declaring that certain typhoon emergency pay to the DPS commissioner is illegal and should be returned.
More specifically, that “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 stated.
The complaint mentioned a series of payments to the commissioner beginning on November 26, 2018 and through November 11, 2019.
Gregory said “the cause of action for declaring these payments illegal and seeking reimbursement for these payments accrued at the latest on November 11, 2019. That is more than two years since the filing of the complaint in this action. Therefore, the complaint on its face violates the statute of limitations and no facts are placed in the complaint showing an exception to the statute of limitations.”
Gregory said for this reason, all causes of action must be dismissed since they are based on actions that took place more than two years from the date of the complaint.
The AG’s lawsuit wanted 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 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 asked 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, as well as the costs of the lawsuit.
A former Commonwealth Election Commission executive director and Corrections commissioner, Guerrero was appointed DPS commissioner on Jan. 23, 2016 and continues to hold the position to the present.
His typhoon emergency premium pay was paid at a rate of 2.5 times defendant’s base salary, the AG’s lawsuit stated.
“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.”
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.”
Robert A. Guerrero
