ASSISTANT Attorney General Charles P. Reyes Jr., on behalf of the Department of Public Works, is asking the Superior Court to reconsider its earlier ruling and reaffirm the Civil Service Commission’s decision on the case of the department’s former public information officer, Felipe Q. Atalig.
Last month, Judge Pro Tempore Dana A. Gutierrez ruled that the order of dismissal issued by the CSC was “without observance of procedure required by law” and must be “set aside.” She reversed the order of dismissal, and remanded the matter to the CSC for a new hearing.
On Thursday, Reyes filed a motion for reconsideration.
He stated that “the court correctly, judiciously, and diligently cited the Civil Service Commission’s procedural errors regarding the Commonwealth’s Administrative Procedure Act” or CAPA.
First, Reyes said, the court correctly highlighted the “persons presiding” problem presented by 1 CMC § 9110(a), when the person initially presiding over the hearing later becomes unavailable, necessitating a change in hearing officers.
Second, he said the court correctly highlighted the adjudicating agency’s procedural failure to comply with 1 CMC § 9110(b), by failing to allow the petitioner to lodge exceptions to the hearing officer’s recommendation to CSC.
Reyes said DPW “takes no issue with the court’s application of the CAPA’s procedural requirements to the specific facts of this case. The court, however, erred in failing to apply the ‘harmless error’ standard to the specific facts of this case.”
He said, “Despite any failure on the part of the Civil Service Commission to strictly adhere to CAPA requirements, the court should not remand this case back to the Civil Service Commission for another trial. Instead, the court should affirm the Civil Service Commission’s decision under the ‘harmless error’ doctrine.”
He said the court must “take due account … of the rule of prejudicial error.”
This is especially true when a hearing officer need not consider disputed factual matters, he added. In this case, he said, “there is only one, central, overriding fact leading to the decision to terminate Petitioner’s employment. This crucial fact is absolutely undisputed by the parties. The Petitioner admitted to it and conceded it: he placed his hand in a co-worker’s pants pocket, reaching around him from behind, and grasped his co-worker’s testicles and genital area. This is not disputed, and there is no other relevant dispute of fact that needs to be determined by the court. The court need only consider whether that admitted and undisputed fact justified the termination based on the legal standards.”
Reyes said precisely because this vital fact is undisputed, the petitioner cannot possibly show prejudice. “The doctrine of harmless error is applicable to a review of administrative decisions,” Reyes said.
He said, “The harmless error doctrine applies because Petitioner was not prejudiced by the change of hearing officer or the lack of opportunity to present exceptions to the hearing officer’s order. No credibility determinations are needed to be made by the same person presiding over a hearing when the central overriding fact of unwanted and intrusive touching is firmly established and conceded. No stated exception to a recommended decision is necessary or prejudicial when Petitioner already admits to the unwanted and offensive physical contact of a co-worker in the workplace.”
Reyes added, “Applying the doctrine of `harmless error’ over procedural defects, the Department of Public Works asks the court to reconsider its decision and affirm the decision of the Civil Service Commission as to the Petitioner’s employment termination for legitimate legal cause within the scope of 1 CMC § 9112(f).”
In March 2018, then-DPW Secretary James Ada terminated Atalig for alleged sexual harassment.
According to Atalig, he and a male co-worker were “joking around” when he placed his hands into his co-worker’s pocket.
