Here is the document.....
Here is a copy of the email message that I sent to one of the Asst. Attorney Generals asking for the Asst. AG to reconsider due to "new information" provided.....
I am writing this missive regarding the recent "guidance" written by Asst. AG Marianne Woloschuk referencing our Guam Fire Department Firefighters-Leave Compensation.
As I read the attached Information and Guidance, it starts out in the "Facts" section by saying, "According to the information that you provided". Of course this missive was directed at the Fire Chief of that time. Well, whatever information that was supplied to the AG's office apparently was not enough.
I have attached my grievance document that I am currently going through and there is enough supporting documentation to explain the true nature of this dilemma. I believe that this will actually supply enough information that hopefully, in light of new information supplied, would be enough for Asst. AG Woloschuk to go forward and reconsider her position and change that position according to the Federal and Local laws as well as the rules and regs that Gov Guam also abides by.
You see, the guidance paper starts off on the wrong foot. It states that firefighters work a 106 hour pay period. That is not correct. We work the same pay period as any other Gov Guam employee,..a 14 day pay period. Now what comes into question are the hours worked within that pay period and the hours that are compensated and at what rate.
Well every firefighter working in the field works 120 hours every pay period and has done since 2003. Prior to that we worked 122.5 hours every pay period since 1987. I would challenge Asst. AG Woloschuk to name one firefighter, at the stations, that work a 106 hour pay period. On top of this, previous Asst. AGs have acknowledged our work schedule of 122.5 hours and 120 hours worked in a pay period.
Former Fire Chief Felix Sablan stated in his memo to "All Fire Personnel" issued October 15, 2001, that we work 122.5 hours in a pay period and that we would be compensated at the regular hourly rate for the first 106 hours and for the remaining 16.5 hours we would be compensated at the overtime rate of "time and one half". He also went on to say "Should a firefighter take any type of leave, the individual will not be entitled to overtime, but will be compensated 122.5 of straight time hours."
You see the real question here is not whether we are going to be paid over time when we go on leave, but whether we are going to be paid straight time for the entire 120 hours that we normally work.
It is like if you take leave, you will still recieve your 80 hours of compensation because you will use your annual or sick leave, etc. to cover the hours that you did not work. That is what leave is for. So just because we work more hours, 120, does that mean that we are not entitled to the same treatment? That is why we have leave and that is why the law states in 4GCA 6219 that firefighters shall be charged no more than nine hours annual leave or sick leave for any given day on which such leave is taken. So that 9 hours covers our entire "day" and a day is a 24 hour period. It did not specify "work day" even though our work day is still a 24 hour period.
On to further ellaborate on this "day", when a firefighter is served an adverse action and is suspended, that "day" suspended covers a 24 hour period. So if we get a 5 day suspension, that actually equals a whole pay period because we work 5 days in a pay period, a 14 day pay period.
Anyway, I could go on, but my attached grievance document covers quite a bit. I am currently at step 4, but I filed this with DOA on May 9, 2011 and they have not stood up a grievance committee yet. The rules states the DOA Director has 10 days to appoint a review board and that that board has no more than 20 days to give me a decision on my grievance. Well, they have violated their own DOA rules and regs because to present, nothing has happened.
I plan on obtaining an attorney and going to to step 5 of the grievance procedures which would be the Civil Service Commission. I am also prepared to take this to court. One of the firefighters told me that if need be, he would hire Attorney David Lujan to handle our case. But I have not pursued that with him yet.
Bottom line is that I have all the black and white to support our position.
I hope that you can talk to the Asst. AG Moloschuk and have her review this "new information".
All we want is to be treated like any other employee within the Govt of Guam, to include all the Asst. AGs, when they go on leave. And that is to not lose pay by using our annual leave benefits. You get 80 hours pay while on leave, we should get the 120 hours pay while on leave.
I have attached a Federal Court decision, Lanehart vs Horner, and there are plenty more on this matter, that actually say that we should actually get paid overtime for customary overtime worked while on an "excused absence". But we are not asking for that.....just yet!!!
Here is my narrative of my grievance regarding this issue....
Grievance of: Rueben D. Olivas, Fire Captain
Grievance for: The wrongful reduction of wages earned and due
STATEMENT OF GRIEVANCE AND OUTCOME OF INFORMAL DISCUSSION WITH IMMEDIATE SUPERVISOR. (STEP 1):
On February 18, 2011, I received my payroll check. I normally receive pay for 120 hours, however this payment only reflected pay for 106 hours at straight time. The explanation that I received from our GFD payroll clerk, Gabriel Camacho, was that the ASO, Marilyn Aflague would only certify 106 hours because I was on annual leave.
He told me that she received her guidance from the Public Auditor, Doris Flores Brooks, who told her via an email and not signed by the Public Auditor, that “When on leave GFD uniform personnel receive 106 hours and not 120 hours. The 120 hours compensation is paid only when on duty and the necessary number of days have been accumulated.” A copy of this correspondence was given to me. (see attached)
This is contrary to Guam law and the Government of Guam Rules and Regulations as well as what was told to me by Assistant Fire Chief Uncangco and supported by Acting Fire Chief J.C. Salas’ memo dated January 10, 2011. (see attached). Chief Uncangco had told me that the Department pay policy was reverting back to payment for a full 120 hours when uniform personnel go on paid leave status.
With this in mind, I immediately lodged a verbal complaint against our ASO Marilyn Aflague for these violations with Fire Captain Andy Arceo, GFD Staff Inspector and Fire Captain Peter J.U. Blas, the Fire Chief’s Aide (Assistant).
I also was contemplating at that time to file a grievance on this matter.
I filed an official verbal grievance with my immediate supervisor, Battalion Fire Chief John Wusstig on the 4th day of March, 2011. I received my official answer to my grievance from Chief Wusstig on the 10th day of March, 2011.
Chief Wusstig told me that there was nothing that he could do regarding this matter. He advised me to take the next step in the grievance procedure which was to go to Chief Uncangco the next supervisor.
SPECIFIC POLICY OR REGULATION ALLEGED TO HAVE BEEN VIOLATED (CITE SOURCE):
The following conditions, policies and statutes were violated:
1. 4GCA Public Officers & Emloyees, Chapter 6 Compensation of Public Employees, Sub-Section 6219 Fireman: Compensation: Annual and Sick Leave (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.
This law was violated because I was charged a full 45 hours of annual leave and compensated for only 106 hours. I was not given paid annual leave for every given day that I was on paid annual leave. A day is a 24 hour period unless otherwise stated. The above statute states “any given day”.
DOA defines day as: “Refers to calendar day unless otherwise specified.”
This definition does not specify a partial day.
Additionally the DOA Rules and Regs, Chapter 11, Adverse Actions Procedures section 11.300, Sub-Section 11.301 B. (attached) reads:
An employee covered by the Adverse Action Procedures may be suspended for not more than 30 work days as the result of a single adverse action, nor may an employee be suspended for more than a total of 60 work days in a calendar year, as the result of multiple adverse actions taken by any one department of agency. Employees on a 24 hour on and 24 hour off employment basis, shall not be suspended for more than 10 work days, or an equivalent of 240 work hours as a result of a single adverse action, nor may suspension be more that a total of 20 work days (480 work hours) in a calendar year as a result of multiple adverse actions.
As one can see, a work day or day is a 24 hour period. A 24 hour employee suffers a full 24 hours per day on adverse action so why does the same not hold true when that same employee takes one day or multiple days of paid leave off. The time period for a day or our work day is 24 hours per DOA rules and regs. Not a partial day.
2. Numerous Sections of DOA Rules and Regs, Chapter 8, Leave of Absence, Section 8.600 Leave Without Pay, Sub-Sections 8.601 (A), 8.602, 8.603 (A), (B), 8.604 (A).
The ASO, by virtue of only certifying my time sheet for 106 hours, effectively placed me on leave without pay for the 14 hours that were not certified as my time sheet turned in and hours verified by my supervisors signature was for a total of 120 hours. These are the standard hours that uniform fire personnel work in the operations field.
Sub-Section 8.601 (A)- Leave of Absence Without Pay. States Employees may request leave without pay for good cause when their current authorized annual or sick leave with pay, will not cover the total period of requested leave. Leave without pay may be granted for a period not to exceed one year. For extenuating circumstances, the appointing authority may extend the leave without pay for an additional year. No extension may be granted thereafter.
The exact violations here are (1) I did not request for leave without pay. (2) I still have over 1200 hours of annual leave so my annual leave was ample to cover the period requested (one pay period). And (3) the appointing authority did not approve my leave without pay.
Sub-Section 8.602- Request By the Employee- 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 would be paid.
Violation was that I did not submit a request for Leave Without Pay. The ASO placed me on that status without a request from me.
Sub-Section 8.603- Authorization- the ASO violated both A & B for reasons already stated previously.
Sub-Section 8.603- Conditions for Approval of Leave Without Pay
A.- Each Request, for extended leave without pay, should be evaluated carefully to assure that, the value of the government or the serious needs of the employee, is sufficient to offset the costs and administrative inconveniences to the government which results from the retention of an employee in a leave without pay status.
Violation here is that because I did not submit a request for Leave Without Pay, no proper evaluation was conducted by anyone.
3. This is a clear violation of my Equal Employment Opportunity rights as guaranteed by Government of Guam E.O. 2006-16 (attached), the U.S. Civil Rights Act of 1964 and the U.S. EEO Act of 1981. My rights of my employment benefit of paid annual leave equal to other Gov Guam Employees, was denied me by the GFD ASO.
Other Gov Guam Employees that take paid annual leave do not lose wages when they are on leave because they get paid for all hours while on leave. That is the basis for the benefit of paid annual leave. I did not. I submitted a leave form for 120 hours. That request was granted and signed by my supervisor. The ASO only certified 106 hours of that time and the DOA payroll supervisor, Gil Galang, has gone on record at the recent roundtable discussion held on March 3, 2011, stating that he will only pay what is certified on the time sheet. Thus I was not paid for my full time while on annual leave. This disparity is a clear violation of my EEO rights.
4. 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.
In conclusion I would like to add that our ASO, Marilyn Aflague, acted contrary to the orders of the Acting Fire Chief, as written on his memo dated January 10, 2011, which addressed compensation while on leave (attached).
Our ASO acted on guidance (document attached) by the Public Auditor, Doris Flores Brooks, however there lacks any official correspondence from the Public Auditor stating this guidance. I would also like to state that the Public Auditor is not an attorney and cannot offer official guidance or an opinion of public laws. That must be supplied only by the Attorney General’s Office. This is stated in Guam Law.
Rueben D. Olivas
I am currently at Grievance Step 4 which is at the Department of Administration. I am currently waiting for the Department of Administration to appoint and convene a grievance board to hear my grievance. They have not done this yet.
Here is my grievance review narrative addressed to the Director of the Department of Administration....
May 6, 2011
TO: Ms. Benita Manglona, Director
Department of Administration, Government of Guam
FROM: Rueben D. Olivas, Fire Captain, Guam Fire Department
SUBJECT: Submission of Grievance, Step 4
Ref: Procedure from Grievance Step 3, GFD May 5, 2011
I submit this missive as an attachment to my grievance as I now proceed to Step #4, which by DOA Rules and Regulations must be submitted to the Director of the Department of Administration, Government of Guam.
On May 2, 2011, at approximately 4:00pm, I received my response to my grievance, Step #3 (attached) from my agency head, Acting Fire Chief Michael E.D. Aguon.
I am not satisfied with his response, which I will explain, and thus, as per my right and per the grievance procedures of the Government of Guam, I proceed to Step #4 of the grievance procedures.
The main purpose of my grievance is that our ASO, unjustly withheld 14 hours of my normal pay, while I was on leave, by not certifying all of the hours on my time sheet. I regularly get paid for a minimum of 120 hours every pay period while working (5ea. 24-hour shifts in a 14 day work period). But the ASO stated that because I was on leave, she would only certify 106 hours. Thus I was shorted 14 of my regular pay.
She did this without any Guam Fire Department written policy in effect at the time to this matter. As a matter of fact, she countermanded the written order of the then current Acting Fire Chief John C. Salas, that while on leave, Firefighters are to be paid their full 120 hours pay. This can also be substantiated by Assistant Fire Chief Michael F. Uncangco.
Full payment, while on leave, is also in conformance with public law and the DOA rules and regulation, as I have explained in detail within the body of my grievance steps in Steps #1-3.
As I move on, the Acting Fire Chief’s response to me was not based on any information that was eventually supplied to me as part of the grievance file. DOA Rules and Regulations section 12.702 F. states,
“The grievance file is an open record. It is open for review by the employee and his representative, and must not contain any document that is not available to employees. Information to which the committee is exposed, which cannot be made available to the employee in the form it was received, must be included in the file in a form which the employee can review or it must not be used.”
The Acting Fire Chief stated in his response to me,
“After thorough review of your grievance and the provisions that cover Grievance Procedures, specifically Chapter 12 of the Personnel Rules and Regulation, it is clear that the nature of our grievance is a compensation issue in nature. Additionally, it is my understanding through discovery and research that compensation/pay issues are not covered under the Grievance Procedures, and therefore as the appointing authority/acting, I lack the jurisdiction to make a decision on your grievance at the Step 3 level. Furthermore, please take note: because the grievance is a mute issue at my level, the remedies you are seeking as resolution will not be entertained as well and therefore your grievance is being returned.”
If you review my grievance, you will see that my grievance is not solely a compensation issue. It is three-fold.
One, I am requesting for back wages for the (14) hours lost on pay as per the unauthorized actions of our ASO.
Two, I am asking that an official policy be written for firefighter’s compensation when on paid leave of absence. And I ask that this be not only consistent with the DOA Rules and Regulations, but also any and all local and federal statutes.
Three, that disciplinary action be taken on our ASO for all the violations that I have pointed out within my grievance in steps #1-3. At the very least, launch an internal investigation due to my complaint to ascertain whether or not any violations have occurred.
Each and every one of these requests is well within the jurisdiction and responsibility of not only our Acting Fire Chief, but those of any Government of Guam agency head.
Compensation issues have long been bona fide grievance issues. There have been many cases that have gone through the Department of Administration and Civil Service. Many have been won. Let me give you just one example, the Dough Sherwin case. DOA Case # HRD No. 06-0970, document dated September 7, 2006. As a matter of fact, in this case, the Director of Administration, Lourdes Perez advised then Acting Fire Chief George Aquino, to pay Firefighter Doug Sherwin and all other firefighters in a similar pay situation. This document is attached and labeled as document #
In 2010, I had a meeting with your Chief Payroll Officer, Mr. Gilbert “Gil” Galang. I questioned Mr. Galang regarding DOA pay policies as they affect GFD. He told me that pay policies for GFD are an internal issue. The Fire Chief set those policies and DOA payroll simply follows the Fire Chief’s lead. I had another phone conversation with Mr. Galang on Friday, May 6, 2011 regarding an update of that same information. Mr. Galang told me that nothing has changed. The pay policies of the Guam Fire Department are the responsibility of the Fire Chief and that DOA will pay whatever is certified. Mr. Galang had the same basic response at a recent GFD roundtable discussion regarding GFD pay issues. He said at that roundtable discussion that he will pay only that which is certified.
Madam Director, it only stands to reason that pay issues can be grieved and have many times in the past. If I was to not receive a pay check for work performed, is the Acting Fire Chief stating that there is nothing I can do about it? The bottom line is that there is something that he can do about it. He can agree to pay me and back the hours in to DOA payroll. This has happened many times in the past. And if you look at the supporting documents that his own grievance committee reviewed, those documents signed by Fire Chief Dave Peredo and other Fire Chiefs, their written memorandums and directives have to do with pay issues and how we are to be paid. How can Acting Fire Chief Aguon say that this matter is not within his “jurisdiction”? Not only is he the “Appointing Authority” as referenced with all pay issues in the DOA rules and regulations, it is the Fire Chief’s job to responsibly administer the day to day operations of the Guam Fire Department. This includes personnel management. Personnel Management includes all payroll activities and developing standard operating procedures for all aspects of the operations of the Guam Fire Department. Madam Director this would be on par you telling me that you lack the jurisdiction to run your department. So I was quite surprised to read this in the Acting Fire Chief’s response to me.
On top of all this the Fire Chief did not include any information whatsoever that substantiates and supports his position. He claims in his response that he discovered that compensation/pay issues are not covered under the Grievance Procedures, via his research and discovery. Where is that information? If there is additional information, than that is supposed to be part of the grievance file. And I later found out it was not. I asked the Chief to review that information and the grievance file but he refused to let me see the file. This is a direct violation the DOA grievance procedures, section 12.702 F., which I have already referenced in this missive and labeled as document #11. He cites “discovery” and yet he does not produce the documents that I am requesting utilizing that same “discovery” concept. As a matter of fact Chief Aguon told me that the only way that I could view the file is if he calls the committee back in and they show the file to me. I have included a document that defines the legal term “Discovery” and labeled it document #
I was not able to obtain a copy of the Grievance File until Friday, May 6, 2011, at approximately 5:05pm from the GFD Personnel Officer Ms. Vivian Perez-Quichocho. This was only after I met with her at noon on the same day at the GFD HQ, 8th floor of the DNA building in Hagatna. I was explaining about the Chief’s refusal to allow me to review the Grievance File and that the Fire Chief told me that she had advised him that I could not. She told me that is not what she told him and that it was within my rights to review the file. I asked her at that time that I would like to review the file. I also reminded her that I only had 5 days to file my step 4 grievance action and today (Friday, May 6, 2011) is my 4th day. She found out the Fire Chief had the file and that he was not in at the moment.
We arranged for her to deliver the file to Santa Rita, the village that I live in and that I would meet her at the Mormon Church there to receive the file. That is where and when I received the grievance file. When I arrived home, I immediately inventoried the documents in the file and documented that inventory. Reference my “Memo For Record”, dated May 5, 2011 and labeled as document #00. This I refer to in order to show the extent of what I had to go to in order to obtain the Grievance File.
As I have now mentioned my first point of my grievance, back pay/compensation issue, I have touched upon my second issue, drafting a written policy for pay issues such as when firefighters go on leave. Chief Aguon did tell me that he was awaiting a legal opinion on this matter regarding pay issues. I can understand and appreciate that but that would have no bearing on this issue as that opinion/direction if and when it did come out, would not have been given at the time of this occurrence. As a matter of fact, I have attached an information and guidance letter from the Office of the Attorney General, Ref: LEG 09-0929, to the Fire Chief and Senator Frank Aguon that covers the subject matter. I have attached this and labeled it document #13. As a matter of fact, though this document states that “Neither the Department of Administration nor the Guam Fire Department can change the schedule of a firefighter, when leave is requested, from a twenty four hours schedule (a one hundred and six hour pay period) to an administrative schedule of eight hours per day (an eighty hour pay period).
The only issue here is that the AG erred in indicating that we are on a 106 hour pay period. This is not a fact. The firefighter pay period is the same as any other full time Gov Guam employee. It is a 14 day pay period. So we cannot confuse the number of hours worked with the definition of a pay period. I have attached a copy of the Fair Labor Standards Act definition of work period (pay period). I have labeled this document #14. And as stated by the Grievance Committee information, firefighters in the field work a schedule of 5ea. 24-hour shifts, minimum in a 14 day work period. That equates to 120 hours.
I brought up this discrepancy to the AG that signed the document, Attorney John M. Weisenberger. He told me that I was not the only person that had brought up the matter to him and that he would look into it. That was the last I heard on the matter.
With this supplemental information that I have attached to my original grievance, I contend that the Acting Fire Chief can pay me my 14 hours owed. He can also cause to have drafted pay policies affecting firefighters within the Guam Fire Department and that he should not allow pay issues in our payroll department to be carried out without written policies. I also ask that disciplinary action be taken against our ASO because she acted on this matter contrary to the then Acting Fire Chief John C. Salas’ orders to pay our firefighters the full 120 hours while they are on leave by only paying me for 106 hours. She did this on her own, without written authorization from the “Appointing Authority” or written payroll policies. The Fire Chief at the very least can effectuate an investigation into this matter.
In summation the Acting Fire Chief did not stand by the recommendation of the grievance committee that he appointed, who all agreed with my positions, and did not offer or include any information to support his position in the grievance file.
My remedies requested stand as previously cited in my grievance steps 1-3.
Thank you for your consideration in this matter and I look for to the Grievance Step #4 process.
Rueben D. Olivas
Guam Fire Department
As you can see, the date of that missive is May 6, 2011. The timelines for the Dept. of Admin at step 4 to appoint a grievance board is required within 10 days upon receipt of the grievance. That board then must render a decision to me within another 20 days. This has not occurred.
It is definitely a sad state of affairs when the board that is supposed to hear our grievances is violating the very rules and regulations that guide this process. These are rules and regulations of the Department of Administration. How can we ever win when everyone is breaking the rules and mistreating Government of Guam employees like this.
I guess the old adage of "Don't do what I do, do what I say" still holds true.
Well, eventually this will no doubt have to go to court because the Gov Guam system in place doesn't work.
Of course this could have all been avoided long ago if we had a Fire Chief that would have stood up for his firefighters and did the right thing. Oh well.....
Until next time....
Of course this could have all been avoided long ago if we had a Fire Chief that would have stood up for his firefighters and did the right thing. Oh well.....
Until next time....