GovGuam Plans To Repay Illegal Retroactive Wage Increases

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Pacific Islands Development Program, East-West Center With Support From Center for Pacific Islands Studies, University of Hawai‘i

AG disagrees with plan but legislature could approve it

By Shawn Raymund

HAGÅTÑA, Guam (Pacific Daily News, Dec. 15, 2015) – The Calvo administration plans to comply with Attorney General Elizabeth Barrett-Anderson’s recent opinion that states Adelup staffers who received retroactive pay raises last December must repay the money.

In her opinion sent to Gov. Eddie Calvo last Thursday, Barrett-Anderson confirmed the raises given to governor’s office employees violated the law, as they were paid retroactively — not as part of merit bonuses, as the administration had stated in recent weeks.

She wrote that the employees who were political hires outside of the merit system must return the money, or the Legislature could intervene, providing a way for the staffers to keep their retroactive payments.

"This matter can only be resolved through repayment of the retroactive pay adjustments by each individual employee, or through legislative action," she wrote.

"It is not unprecedented for the Legislature to take action where employees relied in good faith."

Personnel documents from Adelup that the Pacific Daily News obtained through a Freedom of Information Act request show that a number of the governor and lieutenant governor’s staffers were given pay raises authorized in December 2014, but were retroactive to January 2014.

According to a press release from Adelup, the pay raises appeared to be retroactive because "limitations" with the Department of Administration’s software caused the agency to input earlier dates "in order to calculate the pay adjustments."

"After multiple discussions it was decided that for data entry purposes, the January 2014 date would be used," the release stated. "A memo was sent by the Governor to DOA in December 2014 to make clear the non-retroactive intent."

"The governor is following the (attorney general’s) advice and will have last year’s pay adjustments returned," the release also stated. "And in order to properly implement the governor’s original intent, pay adjustments have been reissued this year as a single pay period salary adjustment to compensate these same employees."

AG disagrees with plan

To repay the money, Barrett-Anderson explained Monday, the governor plans to spike payroll for a short period of time, providing employees the equivalent of their retroactive payment and then sign the checks back to the government of Guam.

Barrett-Anderson stressed she doesn’t agree with the governor’s remedy, which Chief Legal Counsel Arthur Clark explained on local radio Monday morning. She said she supports the legislative route as she suggested in her opinion, but acknowledges it’s the senators’ prerogative whether to accept her advice.

"If the Legislature does not believe that the suggestion is viable, that’s fine. They don’t have to," she said. "But the 107 individuals will have to pay it back and I do not agree with the remedy that Mr. Arthur Clark stated on the radio."

Vice Speaker Benjamin Cruz, D-Piti, said he’s disappointed with the attorney general for not addressing whether she will take any action against the administration for authorizing the illegal retroactive raises.

Cruz said that as the chief legal counsel to the island, Barrett-Anderson represents both the people of Guam and the governor. She provided Calvo a way to resolve the issue, he added, "but she has failed to address her other responsibility."

"She’s taken care of her client, the governor, but when is she going to take care of her client, the people of Guam?" Cruz asked. "She mentions nothing in the letter that she’s taking any action against anybody."

Guam’s anti-retroactive payment law states a person who authorizes a retroactive pay raise is guilty of a misdemeanor.

Barrett-Anderson said Monday she’s currently not ready to disclose how she will move forward with an investigation into the matter.

"I am not ready to state what legal action I may or may not take. And there are still other considerations to review," she said, adding: "I’m not prepared at this minute to answer what I will or will not be doing."

Special prosecutor?

Since the attorney general serves as the governor’s legal counsel, Vice Speaker Benjamin Cruz floated the possibility of appointing a special prosecutor for the investigation.

Generally speaking, Barrett-Anderson said, she would be on board with recruiting a special prosecutor.

However, she wouldn’t say that would happen for this investigation.

"Because of my role of representing the government and the governor and the agencies, yes, ... If is it prudent for the attorney general to recruit a special prosecutor, a special review, yes, I agree with that," she said.

Cruz had brought the pay raise issue to light in early November, sending a letter to Calvo inquiring why Adelup’s payroll costs spiked by about $800,000 in a single pay period last December.

In the letter, Cruz pointed out that payroll expenses averaged about $210,000 a pay period prior to December. Since then, average payroll costs have been about $260,000, prompting the vice speaker to believe staffers got retroactive raises.

"What I find most alarming is the mere possibility that retroactive pay may have been issued to gubernatorial staff in December 2014, which is a breach of (Guam law)," Cruz wrote to Calvo last month.

Calvo’s administration contended Cruz’s suspicion, repeatedly calling the payments merit bonuses that were awarded to the hard working staff at Adelup.

After weeks of going back and forth with the governor over the raises, Cruz said he no longer wanted to politicize the issue and forwarded Adelup’s personnel documents to Barrett-Anderson so she could review and investigate the matter.

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