This past Wednesday, March 3, 2001 I attended as well as many other firefighters the roundtable discussion that was supposed to address numerous issues regarding firefighter compensation. This roundtable discussion was organized by Senator Palacios. In my opinion it was a farce. Well maybe farce is not the proper word as there was really nothing funny or comical about this attempted political assassination of our Fire Chief candidate John C. Salas. Here is my personal observation and opinions of what I saw and felt. I also offer some clarification and recommendations on some of the issues.
Senator Palacios’ sent a letter to the Fire Chief asking him to attend the roundtable discussion. The following items were on the agenda:
1. The compensation policy for leave time
2. The 61-hours “non productive” bonus pay to firefighters on leave status
3. Compensation policy of 106 regular hours plus 14 hours overtime, when does it apply (ref: 4GCA section 6219)
4. Firefighters’ entitlement to the special pay although assigned to administrative duties relative to (ref: 4GCA section 6219)
5. And other matters of compensation to firefighters.
There were actually two letters sent out. The major differences between the two were that the first letter mailed on February 21, 2011 requested that the Chief be present at the discussion and that he bring his staff who may be helpful in addressing any issue pertaining to firefighters compensation, relative to established policies. The second letter dated February 24th, just 3 days later, changed the Fire Chief's staff that were allowed to attend and requested for only an assistant fire chief and the department's payroll officer to attend.
This change in requests sent red flags up in all directions to me. It appeared to me to be just another form of censorship.
As the roundtable discussion progressed, Senator Palacios, somewhere along the line transformed this roundtable discussion from a discussion that was supposed to address "whether some compensation practice is authorized by law or not" as Senator Palacios stated, to an "oversite" discussion that was a continuation of Chief Salas’ confirmation hearing.
I felt this caught everyone off guard. It wasn't brought up until during the course of the hearing when it first came for Assistant Fire Chief Uncangco to give comment. That is when Sen. Palacios told him that he really did not want or need Chief Uncangco to comment because this hearing had to do with the confirmation of Chief Salas, or Mr. Salas, as Sen. Palacios referred to Chief Salas. It would not do any good for Chief Uncangco to give comment because Sen. Palacios wanted to hear the comments coming from Chief Salas. At one point Sen. Palacios stated that it was really not necessary for the Fire Department to be at the meeting because he already had all the facts and that all he really needed was for the Fire Department’s ASO, the Administrative Services Officer, to be on hand. He almost excused the fire reps from the meeting. Can you believe that? This is supposed to be a roundtalbe discussion about numerous inquiries on the pay policies of the Guam Fire Department and the Senator did not even want the fire officials to be there. He just wanted our ASO, Marilyn Aflague to be there. She is not even a part of making pay policies at the Guam Fire Department.
Luckily other senators present on his committee spoke out and recommended that the meeting be postponed until Chief Salas was available. It appeared Senator Palacios didn't want that to happen so he continued with the discussion. However it was more of questioning the fire officials then discussing. The situation was unbelievable.
Apparently the good Senator really did not need answers to the agenda items as he said he already had all the facts. If he had all the facts then why did he need to call for this roundtable discussion? Why didn't he just call for a hearing that he really intended to have rather than disguise the main purpose? And since when does any body ever call for a continuation of a confirmation hearing when there was already one that had taken place? On top of that, all confirmation hearings are public forums and open for public comment so how can Senator Palacios changes the rules and laws of Guam by not allowing for public comment? Does he think he is above the law?
There are a lot of questions that Senator Palacios should answer. Maybe there should be an oversite hearing on the way Senator Palacios conducts his business. Is this meeting really a roundtable discussion or an oversite hearing on the Fire Chief?
So as it stood, the purpose of the roundtable discussion had changed from its original notification as to discussing and clarifying firefighter compensation problems to a continuation of Chief Salas’ confirmation. And Senator Palacios appeared very crafty controlling which direction the questioning went. It looked like he guided the discussion and he cut off many answers that the fire officials tried to give. It is all on DVD.
The bottom line here is that, in my opinion, it was obvious that Sen. Palacios had his own agenda. During this meeting, as I stated earlier, he guided all the questions towards the direction that he wanted the discussion to go and that was to show that firefighters working administrative duties are not supposed to work more than 80 hours per pay period and that firefighters in headquarter were illegally being paid for hours of work that they were not performing. That was the single issue that this whole roundtable discussion was all about.
It did not address the compensation policy for firefighter leave time nor the so-called non-productive bonus pay as the Public Auditor describes some of the firefighters leave hours.
The meeting did not even discuss the general application of the compensation policy regarding the rate of compensation of the payment of the 106 hours of work and the 14 hours overtime and when it applies.
Everything was really geared towards the uniform firefighters working collateral administrative duties and the way they were being compensated.
And I noticed just about everytime Chief Uncangco tried to explain how firefighter work hours actually work, what type of working schedule firefighters actually work and how firefighter leave policies work and are applied, Sen. Palacios would basically cut off his attempt to discuss these items and redirect the focus on the firefighters working administrative duties issue.
So it was obvious, as I mentioned before, that the discussion was only going towards that one direction. In my opinion and many other firefighters that I talked to after this meeting, this was a complete sham.
And the ironic thing about this was that Senator Palacios just wanted to know what the policies were of Chief Salas, who has only been at the helm of the Department for about two months. We all know that Chief Salas is still assessing the operations of the Fire Department. He relies on his staff for guidance. Staff like Chief Uncangco and others.
Chief Salas was asked to do a job, and he accepted the challenge. He has been trying to garner a perception on the current operations of the Guam Fire Department. That is what any good and knowledgeable manager should do. Get in there, see how things are operating, make a few quick changes as you deem necessary, complete your audit and implement the major changes according to your timeline. I believe this is what he is trying to do. You cannot complete an assessment on a department this size with so many problems and issues that we have in just a couple of months. We have many issues as you well know.
On top of this everything that is happening now also happened during Chief Dave Peredo’s time, basically 2007 thru 2010.
It appears that Sen. Palacios didn’t seem to have any issues with these same policies and procedures going on then under Chief Peredo, so why just now. I can tell you why, it is my opinion that he does not want Chief Salas to be confirmed as the Fire Chief. He told me directly that he will not vote for him. And again it is my opinion, through discussions and observations, that he is doing whatever he can to make Chief Salas look bad. From the KAL crash where he questioned him about stolen items to his policies now. I mean what does anyone really want Chief Salas to say right now? He has been retired for 14 years. Give him a chance to operate.
But getting back to the meeting, I would like to touch on comments made by the public auditor. Now I must admit that I have voted for the Public Auditor every election. I have the utmost respect for her. She and her staff do an outstanding job in my opinion and I will continue to vote for her, but I do take exception to a comment that she made at the meeting.
She said that under Guam law, firefighters assigned to administrative duties and working 80-hour weeks are entitled to pay for 106 hours. She also said that even though they have been reassigned, they’re still firefighters. The nature of the law says that firefighters are to receive 106 as their normal work week. Even though they’re only working 80 hours. So in effect the government of Guam is paying them an extra 26 hours, and now we’re paying them an extra 14 on top of that.
That statement is not a correct depiction of what the law states and what is actually happening at the Fire Department. The law is very clear and here is what it states:
Title 4 Chapter 6 subsection 6219. Firemen: Compensation: Annual and Sick Leave
(a) Notwithstanding any other law, rule, or regulation, firefighters within the Guam Fire Department, except the Fire Chief, shall be compensated at the regular hourly rate of pay at one hundred six (106) hours, and shall be compensated at one and one-half (1½) times the regular hourly rate for hours worked in excess of one hundred six (106) hours per pay period. Firefighters who are working administrative duty shall work eighty (80) hours per pay period at their regular rate of pay in the same manner as other government of Guam employees and at one and one-half (1½) times their regular hourly rate only in the event that they work in excess of one hundred six (106) hours in a pay period.
(b) All hours of work performed by firefighters during a legal holiday shall be compensated at double the regular hourly rate, irrespective of work shifts, provided, however, that work performed on such a holiday in excess of nine (9) hours shall be compensated at the regular hourly rate.
(c) Firefighters shall be charged no more than nine (9) hours annual leave or sick leave for any given day on which such leave is taken.
(d) All other laws, rules, regulations applicable to firefighters not consistent with this Section shall remain in full force and effect.
This statute does not say anything about how many hours a firefighter is supposed to work in any assignment. It does not even identify the length of the firefighter's work period, be it 80 hours, 106 hour or 120 hours. This law only refers to the rate of compensation for firefighters. Nothing more or nothing less.
The public auditor implied in her statement that the firefighters working administrative duties are working only 80 hours and getting paid for 106 hours and sometimes 14 extra hours without working them. She also stated that these firefighters are only supposed to be working 80 hours per pay period according to the law. I think that is pretty obvious. And it is also the farthest from the truth.
Let me explain the hours and work schedule of a firefighter on the Guam Fire Department for those of you who are not firefighters. We work 120 hours every pay period which is a 14 day period. This work period has been identified by the Fire Chief as well as past Fire Chiefs. We do this by working five (5) 24-hour shifts in that period. So we work 24 hours on and 24 hours off. Our shift starts at 8am one day and we get off the following day at 8am. We are relieved by another shift. The department works with a two (2) shift rotation, an A shift and a B shift. Because each shift works 7 days in a 14 day pay period, we also get two (2) shifts off. If we didn't take those two shifts off, then each firefighter would work seven (7) 24-hours shifts in a pay period and that equals a total of 168 work hours. That would mean that each firefighter would have to receive 62 hours of overtime because the Fair Labor Standards Act, a federal law that applies to Guam, states that firefighters must be paid overtime for all hours worked over 106 hours in a 14-day work period. So in order to alleviate most of the overtime paid to firefighters, we only work the five (5) shifts.
At one point back in the mid 80's, we did try working only 4 days on with 3 days off, but with the extra day off we were short of manpower and had to pay personnel overtime to maintain the proper staffing on the emergency response vehicles. Also a study was done on this staffing issue to determine which staffing scheme was the most cost effective and it was determined that our current work schedule was the most cost effective. So in 1987, we changed over to the 24.5 hour work shift (7:45am to 8:15am) for five (5) work shifts each 14-day work period which also included 2 days off. In 2001, our work shift was shortened to a flat 24-hour shift with the same number of work days and days off in the 14-day work period (120 hours). It has remained the same ever since. We have never worked a 106-hour work period so I don't know why some non-fire personnel refer to our work period and work week as 106 hours.
The big issue that was the main topic of concern in this hearing was the compensation of the uniform headquarters staff. Senator Palacios went on record to say that he felt there were illegal activities occurring and that some of the staff were not working the hours that they said they were. He also said that he felt the uniform headquarters staff were only supposed to work 80 hours per pay period by law.
The Public Auditor, Doris Flores Brooks, was even clearer as I wrote earlier. She said that she felt the firefighters are only supposed to work 80 hours, but that the law said that firefighters are to be paid 106 hours every pay period and were also getting an extra 26 hours of pay and another 14 hours of pay on top of that even though they are not working those extra hours.
The other issue is that our ASO would not certify any hours over 106 unless there was no log or proof of the hours worked and an overtime pay request with the justification for that overtime worked and claimed.
Well with the concerns of Senator Palacios and the Public Auditor, their points regarding the law are mute. We have already covered those points. The law they reference, that I posted earlier in this blog post, only pertains to the rate of pay of firefighters and does not mandate who is supposed to work what hours.
With regards to questioning the work hours and the overtime claimed by the uniformed headquarters staff, this is what I have to say on the matter.
The law, (4 GCA Chapter 6, Sub-Section 6219 (a)), does not limit any firefighter to work any hours that are necessary. If they work any hours over 106 hours in a pay period, then they must be paid overtime. Federal statute also states the same basic principle. The local law does not differentiate from a firefighter working in the field or working collateral duties in the field and administratively. GFD does not have any written policies depicting the same nor does Gov Guam Department of Administration.
With this in mind, two points were made by our ASO and supported by various members of the roundtable. One is that if a headquarters uniform personnel is to work any hours in excess of 80 hours they must be able to prove that they worked those hours. And if they were to claim the 14 hours overtime, they must submit an overtime claim form with justification.
Here is what I have to say on that matter. First of all there are no policies in place at GFD requesting for different policies to be in effect for the field personnel and those assigned these collateral duties. The field personnel are not obligated to submit a log book or any other "proof" that accounts for their work details for the work hours in excess of 80 to include the 14 hours overtime. And the field personnel do not fill out a request for overtime nor the justification for same of the 14 hours of overtime worked every pay period. This overtime is what is termed customary overtime by FLSA and Federal Courts. What that means is that it is overtime that is worked every pay period. So why are different demands being made to the uniform admin staff and the field staff? The answer is obvious. There is a need to account for the uniform admin staff's hours due to their irregular working assignments. Well then if that is the case, how about writing and adopting some official pay policies at the department level. Without policies written down, they simply do not exist.
The other issue here is that our ASO herself, Marilyn Aflague, is reducing the pay of both uniform admin staff and field staff, without written policies and without consulting the supervisor if she has any questions regarding a particular time sheet. If a time sheet is turned in with a typical 120 hours of compensation, and if that person is on leave, she reduces them down to 106 hours. Well, no one can legally alter a time sheet without the consent of the supervisor who signed it as he is the one who verified the work times indicated. Plus the time sheet is a legal document and altering a legal document can be considered fraud and/forgery as per California law. We work in a semi military organization. We have a chain of command and that chain works up and down in the same manner. If our ASO has a problem with a particular time sheet, then she needs to send it back down to the supervisor for remedy. And hopefully her request is backed up by some type of written policy. As the situation currently stands, this is not happening and the ASO is not even using her payroll clerk to handle these matters. She appears to be micro managing these events.
The other matter here is that when the ASO decides to only certify funds on a time sheet for a lessor amount, in other words 120 hours worked but only certifies 106 hours, she then has literally place that employee on a leave without pay status or an absence without leave status. Either way she has deprived that employee pay because she decided she did not want to certify certain hours and all this without any written policies. By doing this she has broken many local DOA rules and regs, local and federal statutes. Let me explain.
DOA rules and regs state with regards to leave without pay must meet certain requirements. Leave without pay is a temporary non-pay status and an absence granted in response to an employee's request. Leave without pay covers only those hours which an employee would otherwise work or for which he/she would be paid. The employee must have exhausted all his or her annual and sick leave. So basically, the employee must request for this status and when their current annual or sick leave is not sufficient to cover the period of absence involved (DOA rules and regs chapter 8, section 8.600 and subsequent sub sections).
Classified employees within the Government of Guam have paid leave benefits. If an employee goes on leave, they do not lose any pay. That leave allows for the full payment of that particular day on leave. So if an 80-hour employee takes one day leave, then that employee stills receives a full 80 hours of compensation and not 72 hours worth. When a GFD firefighter, who is a 120 hour employee, takes leave they only get 106 hours of pay. This is done by our ASO and again without any current DOA or GFD policies. She only certifies 106 hours of pay and DOA Payroll will only pay what is certified. As a matter of fact the current GFD policy, per Assistant Chief Mike Uncangco, is that all firefighters are to be paid for 120 hours even when they are on an approved excused absence. There is a current memo from the Fire Chief on this matter.
This is consistent with federal law, Fair Labor Standards Act. The act identifies hours of work as all time spent by an employee performing an activity for the benefit of the agency and under the control or direction of the agency. Also included in hours of work are hours in a paid nonwork status such as paid leave, holidays, compensatory time off, or excused absences. FLSA further states that time that is considered hours of work shall only be used to determine an employee's entitlement to minimum or overtime pay.
Basically firefighters who work 120 hours with all hours over 106 to be paid at an overtime rate, must also be paid their full pay even when on the above identified authorized excused absences, again to include overtime incurred. This issue has been upheld by many court cases. Two of the more prominent are Lanehart v. Horner, 818 F.2d 1574 (Fed.Cir. 1987) and Lanehart, 818 F.2d at 1582.
So, as I have shown, the statutes, mandates and provisions on leave of absence and overtime pay (DOA Rules and Regs Chapter 7) have been violated many times over, all without written policies, by our ASO. And those who suffer from this administrative confusion are the firefighters and their families. We also must remember that the paid leave benefit is a condition of our employment contract. And I do not remember reading anywhere that when you are on paid leave that only a portion of that day will be covered by paid leave and the rest unpaid absence.
Just a point of information, there are complaints against our ASO, Marilyn Aflague pending, for these alledged violations.
It was also brought out in the Media recently, but not at this roundtable "oversite", about firefighters receiving "bonus pay" for 61 hours of non-productive time. I had no idea what this bonus pay or non-productive time was as we don't receive this pay or work any non-productive time. Due to my inquiries this is what I found out.
Firefighters are charged only 9 hours of leave per day as per 4 GCA Chapter 6, Sub Section 6219 (c). That is because of our 24 hour shift schedule. The problem with this lies with the computer system at DOA. The computer recognizes a day as a 24 hour period. So when a firefighter takes leave for one day, the input into the computer is for 9 hours. Now that leaves 15 hours excess on the computer after it subtracts the 9 hours from the 24. They multiply this 15 hours times 5 shifts and minus our 14 hours overtime and only consider the 106 hours and they come up with 61 hours. It is a quite confusing. This is called non productive time by DOA payroll personnel. And I am told there is no written policy on this matter. But that would need to be verified as I did not check with DOA Payroll. Anyway this time has nothing to do with our actual work hours or compensation. The Public Auditor also added her own moniker to this 15 hours and she calls it "bonus" time. It is just extra computer time. I would challenge anyone to show that one firefighter has received any bonus pay. It doesn't happen. We get paid for what we work and sometime we don't get our mandated pay for hours due.
Again I bring to your attention that while lawmakers and administrators are still trying to figure these things out, firefighter's pay is being reduced, in certain circumstances, according to our ASO's personal perception of the issue and without proper written procedures. Again, the firefighters and their families suffer because of the reduction in their wages due to this administrative confusion. Something needs to be done. I have tried.
I met with Sen Palacios and gave him the Federal Laws and local mandates on these pay procedures as well as the personnel at the Office of Public Accountability and Gil Gilang, payroll administrator. I don’t know why these documents have not been taken into account or acknowledged. Nothing was brought up on these issues at the roundtable "oversite".
At the end of the day, with regards to the roundtable "oversite", Senator Palacios stated he felt good that they were able to address about 75%. of the issues. I had a hard time trying to understand this when only one out of the 5 agenda items were actually discussed in detail with no finite results or resolutions. Quite frankly, not a whole lot was actually accomplished.
One of the firefighters told me the reason why they call this a roundtable discussion is because things just keep going around and around. I have to agree with him.
What is the solution? Well I have a solution to this debacle. All we need to do is acknowledge and obey the current mandates and statutes in effect. But that is not on the agenda. So barring that let me say this, other than the personnel at DOA payroll Gil Gilang and his staff and Human Resources, Rose Cruz and her staff, who do a great job and I want to commend them for that, I issue a challenge to Senator Palacios and all the other major players, who can finally set these issues straight. Let us sit down and iron these issues out. I mean let us get into a room and not come out until everything is settled. I would even like the whole thing to be televised from the Legislature so that the whole island can watch the process. I challenge them all. Now someone may say I don’t have the authority to do these things, but who needs authority when you have the ideas and methods on how to straighten out this mess. Let those with the authority make the necessary changes in the proper way. And I will do this all on my own time at no charge to anyone. If the Government truly wants the people to get involved, I am here and I am ready. I have always been one to be involved trying to be part of the solution and I am ready again to take on the challenge. I will even take annual leave to do this. I just hope they don’t reduce my pay when I do.
Here is the link to my somewhat passionate interview on this roundtable "oversite" with Ray Gibson on the morning K57 Radio show:http://www.pacificnewscenter.com/index.php?option=com_content&view=article&id=12073:ruben-olivas-and-sen-chris-duenas-with-ray-gibson&catid=52:k57-interviews&Itemid=151
If it doesn't play on your current browser like mine, then use a different browser. I was able to get this to play using the Firefox Internet browser.
Until next time....