OAG: 11 appeals pending before CSC

At least 11 administrative cases on appeals are pending before the Civil Service Commission and CSC’s docket is likely to expand through the fiscal year, according to the Office of the Attorney General.

Deputy attorney general Lillian A. Tenorio informed CSC chair Raymond M. Muña last Nov. 8 that because the commission has more than a quorum to meet and conduct business, including administrative hearings on matters on appeal, abdicating that responsibility is not advisable.

Tenorio’s advice was in response to Muña’s Oct. 27, 2023, letter requesting guidance from the OAG on the lack of funding to hire an administrative officer.

Tenorio said that abdicating such a responsibility would be tantamount to a judge declining to hear any cases because he has no law clerk, or the AG refusing to file criminal cases because of the lack of funding to hire an adequate number of prosecutors.

She pointed out that there is both a policy and legal reason for assigning appeals to the commission before cases are brought to the Superior Court.

The deputy AG said the appeal process in the Commonwealth Code gives the commission the right to review the decisions of the Office of Personnel Management and affected department or agency and interpret its own regulations.

The commission should not relinquish this important responsibility by relying on the formalized process of the court to adjudicate disputes involving the civil service system, Tenorio said.

She said the commission would be violating the statute.

The deputy AG said she is aware of only one circumstance in which is a member of the commission issued a similar order that allowed the aggrieved employee to petition for judicial review.

That occurred, Tenorio said, because the commission did not have enough members to constitute a quorum to conduct business and hold hearings. “That is not the case with the present commission,” she said.

The Commonwealth Code expressly vests the CSC with the duty “to hear and decide appeals of any person aggrieved by any action of the Office of Personnel Management or other management or any employee for disciplinary action, suspension, demotion or dismissal from the civil service.”

To carry out that responsibility, Tenorio said, the commission has the discretion to hire a qualified hearing officer if deemed essential, but the responsibility for hearing and deciding appeals rests with the commission.

That responsibility is one of five enumerated duties that have been described by the Legislature with enough details and assigned to the commission pursuant to the CNMI Constitution, Tenorio said.

She said the constitution mandates the Legislature to “provide for a nonpartisan and independent civil service with the duty to establish and administer personnel policies for the Commonwealth government.”

For fiscal year 2024, the Legislature appropriated $98,174 to the commission for its operations (including personnel).

To perform its responsibilities provided by law and regulations, including to hear and decide on appeals, it is incumbent on the commission to address the funding issue either by re-prioritizing its budget or by appealing to Gov. Arnold I. Palacios to exercise his reprogramming authority so that the commission may hire a hearing officer, she added.

Lillian A. Tenorio