Guam § 4406 - Adverse Action Procedures and Appeals.

§ 4406. Adverse Action Procedures and Appeals.

(a) Notice of Adverse Action. An employee in the classified service who is dismissed, demoted, or

suspended shall be given immediate notice of the action, together with a specific statement of the charges

upon which such action is based in the manner required by Article 2 of this Chapter. Copies thereof shall

be filed with the Commission and, if applicable, with the government entity charged with hearing that

person’s appeal under the personnel rules governing that person’s appointment not later than the working

day next following the effective date of the action.

(b) Ninety (90) Day Rule.

(1) Management shall give the employee in the classified service notice and statement of the

charges under this Section no later than:

(A) ninety (90) calendar days from the date in which management knew or should have

known the facts or events which form the alleged basis for the adverse action; or

(B) ninety (90) calendar days from the date of entry of a judgment of conviction in any court

of competent jurisdiction that forms the alleged basis for the adverse action.

(2) As used in this Subsection, “management” means the appointing authority of a government

department, agency, or instrumentality, or any deputy, division head, or other senior assistant of the

appointing authority, however designated, having administrative power to implement management

policy and the supervisory responsibility to directly advise the appointing authority regarding an

adverse action or other personnel decision involving an employee of the department, agency, or

instrumentality.

(3) In situations of emergencies, acts of nature, or disasters, the department, agency, or

instrumentality may petition the Commission to suspend or extend the ninety (90) day time limitation

provided in this Subsection. The Commission shall consider all such petitions expeditiously and may,

in its discretion, suspend or reasonably extend the ninety (90) day time limitation after issuing written

findings that support the suspension or extension.

(4) Any action brought by a government department, agency, or instrumentality in violation of

this Subsection is barred and any decision based upon such action is void.

(c) Suspension and Reinstatement Pending Appeal. While an employee’s appeal is pending before the

Commission, the employee may be suspended by the department, instrumentality, or agency. The

Commission or appropriate entity may order the employee reinstated to active duty during pendency of the

appeal.

(d) Twenty (20) Day Rule. The employee, within twenty (20) days of effective date of the action, may

appeal to the Commission or appropriate entity by filing that person’s written answer to the charges against

the employee, regardless of whether the employee has tendered any resignations, which shall have no effect

upon the employee’s appeal rights. In the event an employee resigns before the issuance of the final notice

of adverse action, the employee’s twenty (20) day appeal period to the Commission shall begin to run at

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the time the employee submits the resignation, which notice of Proposed Adverse Action shall be deemed

a final notice of adverse action. Management may not fill the employee’s position until:

(1) the twenty (20) day period has elapsed and no appeal has been filed; or

(2) the right to appeal has been exhausted upon judicial review.

(e) Adverse Action Hearing. The Commission or appropriate entity shall set an adverse action appeal

for hearing as expeditiously as possible and in accordance with the Time Standards provided under this

Article. The employee, or that person’s representative, shall be given the opportunity to inspect any

documents relevant to the action that would be admissible in evidence at the hearing, and to depose,

interview, or direct written interrogatories to other employees having knowledge of the acts or omissions

upon which the dismissal, demotion, or suspension is based. The Commission or appropriate entity may

sustain, modify, or revoke the action taken. The decision of the Commission or appropriate entity shall be

final but subject to judicial review.

(f) Judicial Review.

(1) The government department, agency, instrumentality, or the employee may petition the

Superior Court for judicial review of an adverse action appeal only after:

(A) the appeal has been heard by the Commission and a final written or oral decision has

been issued; or

(B) the Commission has failed to meet the Time Standards provided under this Article.

(2) The party who petitions for judicial review is responsible for providing certified transcripts of

hearings and shall bear associated costs.

(g) Reinstatement Pending Judicial Review. Where the Commission has modified or revoked an

adverse action in favor of the employee from the classified service, the employee shall be reinstated

immediately pursuant to the terms of the decision until such time as the decision is overturned by judicial

review.

(h) Enforcement. Failure to adhere to a decision by the Commission to reinstate an employee shall

result in reduction in salary by ten percent (10%) for the responsible agency head and his deputy from the

date of the decision until the date of reinstatement in full compliance with the decision. The Commission

may bring an action in the Superior Court to enforce the reinstatement of the employee and impose any

appropriate penalties or remedies available at law or equity.