OAG: Tarkong confuses meaning of ‘to grieve’ and ‘aggrieved’
The Office of the Attorney General asserts that Police Officer 3 Jason T. Tarkong’s lawsuit against the Department of Public Safety’s hiring practices merely arises from confusion in the meaning of the verb “to grieve” and the adjective “aggrieved.”
Assistant attorney general Tom Schweiger, who represents DPS, said that Tarkong seems to imply that any employee who grieves is aggrieved.
The definition of “aggrieved” is having suffered loss or injury, said Schweiger, citing Black’s Law Dictionary.
In this case, Tarkong does not allege any injury that he has suffered, said Schweiger. “While some employees who grieve are also in fact aggrieved employees, the plaintiff (Tarkong] is not one of them,” Schweiger said.
He said Tarkong merely “grieves the process” by which the position was filled.
Tarkong, a veteran of the CNMI’s police force, is suing DPS and the Civil Service Commission for alleged discrimination after he was not promoted to sergeant. The CSC was later dismissed from the case.
Schweiger pointed out that the general rule does not apply for an employee who has not been injured, nor does it apply when there is another rule that specifically addresses the situation Tarkong complains of.
To allow Tarkong to expand his options under the general statute would allow any government employee to file a “grievance” against any government hire, even when the employee hadn’t applied for the position, Schweiger said.
“Such a reading of the law would, as a practical matter, make it virtually impossible for the government to fill an opening in an efficient or expedient manner,” he said.
Schweiger said Tarkong failed to contest his ranking on the eligibility test. Rather, he now attempts to argue that his wrongful inclusion on the list gives him standing to file a grievance against the selection of another candidate.
Schweiger said Tarkong admits that he could have made a request of his rating within 10 days of his notification of the exam results, but he waited until he learned that he wasn’t chosen to file a grievance.
The regulations clearly prohibit a grievance based upon the fact that one wasn’t chosen for the position.
However, Schweiger said, the police officer argues that because he was improperly placed on the eligibility list, he can now complain about his non-selection.
“This argument flies in the face of reason,” Schweiger pointed out.
The lawyer said Tarkong may have alleged defects in the hiring process for the position but he has failed to allege that he suffered any harm.
He noted that Tarkong alleges that two applicants on the eligibility list did meet the requirement of having experience as police officers 3, yet they didn’t complain about the process.
Schweiger said the Civil Service Regulations and the Administrative Procedures Act are designed to redress harms suffered by an employee.
He said Tarkong is not such an employee as he has suffered no harm.
Schweiger said Tarkong has failed to make allegations against DPS sufficient to base a legal claim against them.
He said the Civil Service Commission’s director for personnel instructs DPS to interview each applicant on the list, select an applicant for the position, inform the applicants in writing of their non-selection, and submit the appropriate request for personnel action.
“DPS did as instructed,” he noted.
He said Tarkong’s allegations may have been sufficient to sustain a cause of action against CSC, but that point is moot since the claims against them have been dismissed.
Schweiger asked the court to deny Tarkong’s petition for judicial review and injunction.
In earlier pleadings, Tarkong stated he wants to pursue his lawsuit against DPS, asserting that “a grievance is about righting a wrong.”
Tarkong, through counsel Robert T. Torres, said DPS, despite admitting errors in the selection process, considers the nature of his grievance to be an appeal of his non-selection for a promotion and essentially seeks to dismiss his grievance.
Torres said DPS’ position demonstrates a fundamental misunderstanding of Tarkong’s grievance.