ASSISTANT Attorney General Charles P. Reyes Jr. has responded to Felipe Q. Atalig’s opposition to the motion for reconsideration of the Superior Court’s ruling remanding the matter to the Civil Service Commission.
Reyes represents the Department of Public Works in the civil case filed by Atalig, a former DPW public information officer.
In his reply filed in Superior Court on Monday, Reyes said Atalig was “incorrect in alleging that DPW has no legal basis for a motion for reconsideration,” adding that the basis for DPW’s motion for reconsideration was clearly stated.
Under the rule, Reyes said, the “court may alter or amend a judgment if…alteration or amendment of the judgment is necessary to correct a clear error or prevent manifest injustice.” He further stated that when “reviewing motions for reconsideration, a trial court can reverse an earlier ruling to correct clear error.”
Reyes said “the clear error rests on the court’s failure to consider and apply the harmless error doctrine when the Petitioner [Atalig] already admits to the offensive and unlawful act that justifiably led to his employment termination.”
Second, he added, Atalig referred to a “statutory due process” violation without offering any controlling legal support from the Supreme Court. This ignores the most recent Supreme Court case recognizing the application of the harmless error doctrine even when faced with a constitutional due process violation, Reyes said.
In addition, “there is no absolute protected interest in process itself.” He stated that “due process jurisprudence has repeatedly recognized that process itself is not always a liberty interest protected by due process.”
“Here, Petitioner cannot plausibly state a violation of any of his substantive due process rights. He merely invokes his procedural due process rights under the Commonwealth Administrative Procedures Act, but this does not rise to the level of a constitutional procedural due process violation, which would also be subject to the harmless error doctrine,” Reyes said.
He said the Supreme Court holds that “process is not an end in itself.”
“Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement…. The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.”
With respect to a procedural due process violation, Reyes stated that “the threshold question is whether a due process interest in life, liberty, or property is implicated, after which we determine what procedures protect that interest sufficiently to satisfy due process.”
Finally, Reyes said, Atalig “fails to carry his burden to show that he suffers from any possible prejudice in the application of the harmless error doctrine.”
“It is always incumbent upon the aggrieved party to demonstrate the prejudicial effect of procedural irregularities in administrative proceedings,” Reyes said.
Atalig’s arguments about a “pretextual” termination based on a so-called “joke” “were made before and after the Civil Service Commission, and would have made no difference in the outcome of the case when presented to the CSC after the hearing officer’s recommendation: termination for cause, for grabbing a co-worker’s testicles and groin area.”
“Any other result would be an injustice and a travesty of law,” Reyes said.
In March 2018, then-DPW Secretary James Ada terminated Atalig for alleged sexual harassment.
Atalig said he and a male co-worker were “joking around” when he placed his hands into his co-worker’s pocket.
He believes that his termination was pretextual, and that the real reason for it was an unrelated workplace dispute between him and DPW Administrative Services Director Peter Camacho.
Atalig said he is willing to settle the case for $200,000. The original amount he claimed was $352,000. DPW earlier offered $80,000, which Atalig turned down.
