“THEIR insubordination led to their termination,” Chief Solicitor J. Robert Glass Jr. said in his closing remarks at the Commonwealth Civil Service Commission administrative hearing on the appeal filed by nine former firefighters who were terminated for refusing to take the Covid-19 vaccine last year.
According to Glass, the hearing was about two issues: 1) whether the terminations were for just cause; and 2) whether procedures were followed.
“There was no testimony, not a single thing about the procedures not being followed…. All of them got their notices, all of them got their 30 days, all of them got their admin leave, all of them got the chance to talk to the [former] Department of Fire and Emergency Medical Services Commissioner Dennis Mendiola. The commissioner heard their responses, the commissioner considered, and they got their final adverse action notices, then they were terminated,” Glass said.
“I think we’ve done more to prove that we followed the Civil Service Commission’s procedures,” Glass said. “There was just cause. They were terminated on two grounds: first, employee conduct; second, insubordination.”
He said when the governor signed his executive order requiring Covid-19 vaccination, it also “made allowances for an individual’s constitutional rights — it made allowances for religious and medical accommodations requests.”
“But the nine firefighters, they did not want to exercise that,” Glass added. “What they wanted was to create their own exemption of ‘I don’t feel like it.’ ”
“We heard from the testimony of the former DFEMS commissioner, how he tried to help the nine firefighters, that he cared for his employees, and he sought accommodations even without those religious and medical exemptions…because he was trying to help them,” Glass said.
He said he asked the former firefighters who gets to determine what is lawful.
“They said it’s them in their own judgment, and I asked them, ‘What if you are wrong? If you’re wrong there are consequences.’ That is what I submit — they are wrong and there are consequences. They have every right to refuse the vaccine, they all have the right to say no. No one got held down, no one got forced, but that does not mean they are free of the consequences…of that action…[and] that is what they are experiencing now, the consequences of their decision. And that led to their termination…their insubordination led to their termination,” Glass reiterated.
Glass and Assistant Attorney General Alison Nelson represented former DFEMS Commissioner Dennis Mendiola.
Attorney Joseph Horey represented the former firefighters: Paul Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Algernon A. Flores, Derek B. Gersonde, Shawn DLR. Kaipat, Philip Kalen, and Adam J. Safer.
According to Horey, “Their removal requires just cause. The commission needs to look at what is the appropriate sanction, and the commission has substantial discretion in that area.”
He said the firefighters were concerned for their health, and they acted in good faith based on their understanding of their situation.
“If they did not want the vaccine, other reasonable means could have been offered to them to protect the public safety…. One reasonable mean is to wear a mask and test frequently, that has been adopted in many locations as an alternative to vaccination,” he added.
“These firefighters were wrongfully terminated and were terminated in violation of the rules of this commission,” Horey said.
He asked the commission to reinstate the firefighters and to award them back pay for the time they had lost since their termination.
Administrative Hearing Officer Jacqueline Nicolas told the parties that she will make a decision based on the law and evidence presented.
“That decision will be a recommendation to the members of the commission and they will review that recommendation and vote and approve or not that recommendation,” Nicolas added.
The members of the CNMI Civil Service Commission are Jake Maratita, Bernadita C. Palacios, Valerie Q. Apatang, Raymond M. Muna, and Felicitas “Tee” P. Abraham.
The former firefighters filed a complaint in Superior Court but it was dismissed without prejudice in September 2021,
According to Associate Judge Joseph N. Camacho, the court had no jurisdiction over the plaintiffs’ complaint.
The former firefighters “did not engage fully with the administrative process and exhaust all administrative remedies available to them” when they filed their lawsuit, the judge added.
Despite a power outage, Commonwealth Civil Service Commission administrative hearing officer Jacqueline Nicolas continued the hearing on the appeal of the nine terminated firefighters on April 21, 2022. Also in the photo are former fire commissioner Dennis Mendiola, Chief Solicitor J. Robert Glass Jr., Assistant Attorney General Alison Nelson, attorney Joseph Horey, and the fire department’s acting internal affairs unit head Ray Borja.
