Special committee goes through OT pay

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THE House Special Committee on Federal Assistance and Disaster Related Funding made inquiries regarding overtime compensation as it pertains to the Covid-19 emergency and response during multiple hearings conducted on Monday and Tuesday.

Chaired by Rep. Ralph Yumul, the special committee consists of House Floor Leader John Paul Sablan, Reps. Luis John Castro, Joseph Leepan Guerrero, and Tina Sablan.

On Monday, Homeland Security and Emergency Management Special Assistant Gerald Deleon Guerrero and the governor’s authorized representative for the Covid-19 disaster, Patrick Guerrero of the Public Assistance Office, appeared before the special committee to testify.

The following day, Special Assistant for Management and Budget Virginia Villagomez, Office of Personnel Management acting Director Frances Salas, and Secretary of Finance David DLG Atalig appeared before the special committee.

Rep. Tina Sablan asked Special Assistant Deleon Guerrero on Monday: “Mr. Special Assistant, in April and June, you wrote to OPM requesting waivers for certain exempt employees, citing authority under the governor’s executive order 2020-04. There was a request on April 17 for 27 employees, a second request on June 9 for 20 employees, and a third request on June 10 for six employees from Tinian and Rota. Were there any other requests after that?”

The special assistant said that there were no requests after June 10, and explained that the justification for these three requests was to “get the exempt employees paid at a rate of 1.0,” or “straight pay.”

He said in his six years at HSEM, he has made such requests for waivers before during previous disasters, such as during Super Typhoon Soudelor and Super Typhoon Yutu.

He said he had not consulted with a legal counsel before requesting these waivers because he did not believe that a legal review was needed.

He added that he was not directed to make these requests, and reiterated that such waivers for exempt employees were made during previous disasters.

Despite the governor’s executive order stating that transfers of personnel are to be made in consultation with the governor, the special assistant said he did not consult with the governor to identify the individuals listed in these three requests to OPM for waivers.

Special Assistant Deleon Guerrero explained that these individuals were selected based on their respective Notice of Personnel Action, which states whether an employee is covered or exempt from overtime compensation.

He said employees were reassigned from their regular duties and may have received an additional check for hours worked in the Covid-19 response, but added that reassigned employees were not receiving dual compensation for the same hours worked.

“They were reassigned doing different duties, so on top of… at the time when everyone was on [administrative] leave, they were getting those [administrative] hours plus hours that they performed,” he said.

House Minority Leader Edwin Propst, for his part, referenced Title 1, Division 8, Section 8245 of the Commonwealth Law, which lists compensation of certain appointed officials for each department, and states that each of these  appointed officials are not to exceed their respective annual salary.

He also cited Title X of the Civil Service Commission rules and regulations which states, “No employee shall receive compensation for two positions or two appointments in the personnel service when an employee is engaged in government work other than in the employee’s regular position.”

CSC rules and regulations also state that such employees shall be either placed on leave without pay from the regular position, or continue the government salary and reject the salary for the second position, “whichever is to the employee’s personal advantage.”

The special assistant stated that he and other cabinet members did not take leave without pay, and explained his experience in the Covid-19 response.

“This is a very, very different response. I myself was afraid of Covid-19, and this will include a lot of staff in the office. When we got hit with this [pandemic], some of the staff were not coming to work because they were afraid. I myself have a family…. I was denied walking into the house because of this [pandemic]. Whether I got paid for additional hours, like I said, I got a request down to OPM; it got approved,” he said.

Propst stated that some concerns have been brought to him regarding front liners who have yet to receive any such compensation, to which the special assistant said, in response, “What I’m aware of is there are people down at both quarantine sites that are getting their Covid-19 pay.”

Rep. Tina Sablan asked the governor’s authorized representative, or GAR, for the Covid-19 disaster Patrick Guerrero, the following question:

“Would you agree that [the Federal Emergency Management Agency] does not reimburse for overtime [compensation] that violates Commonwealth and federal policies?”

In response, the GAR said, “If it’s found to be non-compliant, then it will not be reimbursed,” adding that if dual compensation is prohibited by law in the CNMI, then dual compensation is not reimbursable by FEMA.

He said if funds are not going to be paid out by FEMA or another federal funding source, or if it is going to be damaging to the CNMI government operations during this running deficit, “then it would be covered under another funding source identified by the administration….”

Propst referenced a press briefing aired on KKMP radio in early June in which the governor had stated that no cabinet member had received any overtime, and no cabinet member would be receiving overtime before frontline workers.

He then referenced documents that, he said, indicate otherwise. He said in past disasters, “massive overtime” had been “collected by cabinet members.”

“No one doubted their hard work,” Propst said. “A lot of us were volunteering and doing work. We were never doubting that. But the sums, the amount that they were given compared to the front line workers — we always talked about front line workers, some of them who were clearing the roads and doing hard, physical, backbreaking labor — were paid a pittance, a tithing, compared to some of what cabinet members were paid.”

The GAR said he is not a cabinet member, and added that to his knowledge, there are no cabinet members who are currently receiving overtime or double pay.

He said based on his understanding, double pay was received for the first 90 days of this disaster, but not beyond.

“My office would be more than happy to provide a breakdown, going back also to prior disasters. We did do a recent analysis of Yutu because we’re requesting for a final stretch of funding from Yutu, and that includes, at the end of the day, a reality check on what we’re not able to get reimbursed on,” the GAR said.

Special Assistant for Management and Budget — and the GAR for previous disasters —  Virginia Villagomez said,  “For the Covid-19 pandemic, I looked at the report in regards to who got paid [among] cabinet members, and all of them were paid 1.0. I don’t recall seeing anyone [getting] paid 1.5 based on the report that was produced.”

She said she is not aware of any cabinet member who took leave without pay to receive second pay or dual compensation for the Covid-19 disaster.

“There was an administrative leave that was applied across [the board] for the government shutdown. However, there are some of us that have been required to report to work,” she said.

Villagomez said the FEMA guidance she received is in line with the FEMA guidance that the legislative body received regarding overtime payments: the CNMI could get reimbursed for overtime paid out to employees who are eligible for overtime in the first place.

OPM acting Director Frances Salas, for her part, said, “Exempt employees are not qualified for overtime, and by the definition of overtime, I mean the 1.5 or above. So, again, exempt employees are paid straight time, one-to-one. Nothing above that.”

She said the role of OPM is to review Requests for Personnel Action, or RPAs, and to review the Fair Labor Standards Act, or FLSA, status of employees to determine whether they are covered or exempt.

“Covered employees, of course, are qualified for overtime. Exempt employees are not qualified for overtime,” she said.

She mentioned OPM Regulation 120-10-115(g), which states: “The director of personnel may approve compensation time or extra payment to an overtime exempt employee at the recommendation of the employer in exceptional situations. Such situations will be considered the exemption, and not the rule, and will be limited to declared emergencies and extraordinary work requirements.”

Regarding the request for waivers submitted to OPM by HSEM, Salas said these were to allow exempt employees additional compensation, and noted that she was among the persons included for these waivers.

She said she was only working 64 hours at the time, but had to report for work on Fridays and Saturdays “to produce these payment authorizations.”

She said that if the waivers were prior to June 1, then they would have been signed by former OPM Director Isidro Seman. Otherwise, they would have been signed by herself.

She said such waivers were approved by OPM before during the Super Typhoon Yutu disaster, and also during election season “when some of the attorneys at the [Office of the Attorney General] had to work the extra hours to do whatever they need to do and also get paid additional hours.”


The governor’s authorized representative for the Covid-19 disaster, Patrick Guerrero, right, is sworn in prior to providing testimony on Monday during a House Special Committee on Federal Assistance and Disaster Related Funding hearing. Photo by K-Andrea Evarose S. Limol

Secretary of Finance David DLG Atalig said, “The processing of these overtime payments goes through [HSEM] to make the requests in order to get any time above the 64 hours. [HSEM] makes the request to OPM, and OPM processes the [Notification of Personnel Action or] NOPA. And then when all those are signed and approved, then our payroll department or payroll section… that gives them the authorization to pay any time, overtime, or additional pay,” said

He added that he does not see every payroll and every time sheet of the CNMI government, but added that he instructed his staff that “nothing gets paid without a NOPA and a proper [Category B] form.”

He said, “That gives the authorization and gives us the documentation to seek reimbursement for any overtime pay or additional pay.”

But Atalig said he did not consult with a legal counsel prior to the overtime pay, nor had he read Attorney General Manibusan’s nine-page opinion on overtime or emergency pay.

Regarding dual compensation for the same periods of work, he said: “I believe, in the beginning, I was controlling that and only paid above the [administrative] leave of 64 hours. Anything above that, I was allowing for…in the early stages of Covid-19.”

He added, “After a few weeks [had] passed and [there were] other compensation requests or requests for payments in terms of overtime or additional pay…I started to see the numbers of how much we paid, and those were double pay for all Covid-19 front liners and everyone that worked.”

He said, “If they came back from [administrative] leave…it was considered hours worked. And then, in addition to that, they were getting Covid-19 pay.”

Secretary Atalig said if FEMA will not reimburse disallowable costs, such as illegal overtime or dual compensation, then the cost would have to be absorbed by the Commonwealth.

He said front line workers at the two quarantine sites — and these do not include cabinet members —   are getting dual compensation.

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