It may be a technical victory but attorney John Bell says the law is clear. His client, Lynda Aguon, prevailed in her appeal to the Civil Service Commission and she may be headed back to the Department of Parks and Recreation to resume her position as Guam Historic Preservation Officer.
But if that happens, some of her former co-workers are threatening to resign.
Administrative law judge Eric Miller, in his recommendation, concluded that “management proved by clear and convincing evidence the allegations that employee Lynda Aguon … was insubordinate in refusing … to follow the Director’s orders” and “the intentional violation of these orders is severe enough to justify the personnel action of termination.”
That was Miller’s recommendation to the Civil Service Commission and on Tuesday night, three of the four commissioners agreed with the recommendation and voted to deny Aguon’s bid to get her job back.
However, a fourth commissioner was not convinced.
So even though the recommendation was to uphold Aguon’s termination and three of four commissioners were convinced that Aguon’s firing was warranted, Aguon has won her appeal on the basis of one commissioner’s opinion.
It’s the rule of 4, says Aguon’s attorney John Bell.
“This is a technicality that favors the employee. The commissioners were very aware of that. In fact, they broke that evening to confirm that yes, that’s how the rule of 4 works. If management doesn’t convince 4 of us to uphold the adverse action, then the employee prevails, on that technicality, if you want to call it that, absolutely. We don’t have a minimum of 4 commissioners to uphold management’s action,” Bell said.
There is no final decision on Aguon’s reinstatement until the commission formally adopts a final decision and judgment. Bell says the CSC asked him to write one up and he has already sent it in.
However, assistant attorney general Donna Lawrence, who defended Parks and Rec director Richard Ybanez’s decision to fire Aguon, also sent in a proposed final decision and order which Bell shared with the Pacific News Center.
Lawrence’s wrote:
“After a 3-1 vote, three of the commissioners did not decide to modify, reject or accept the administrative law judge’s finding … And, as a result, the judge’s recommendation to terminate Aguon stands.”
But Bell is not buying that.
“This is not how this works. The commissioners have spoken. They’ve ruled in the employee’s favor. It is now up to the attorney to write up a proposed order. We will review it and we will then vote on it. So this alternate final order from the attorney general will have no impact. You can’t just make stuff up,” Bell said.
He added: “Management has had their chance. They presented their case. They didn’t convince at least 4 commissioners to uphold the adverse action. They lose for that reason. So no chance? I don’t see any legal … I mean people can file appeals all day and every day. I genuinely sincerely do not see any legal merit in their analysis.”
The Guam Attorney General’s office did not respond to a request for comment
Meanwhile, according to DPR archaeologist John Mark Joseph, he and other employees in the state historic preservation office are threatening to resign.
In a letter to the governor, Joseph wrote that Aguon’s return as SHPO is not workable.
“We feel that Ms. Aguon’s actions in the past have gone against the preservation of Guam’s historic resources and caused a hostile environment in the workplace,” Joseph wrote.
He pleaded with the governor to assign Aguon to some other GovGuam agency if her reinstatement is eventually ratified by the Civil Service Commission.
When asked about the Aguon case, Gov. Lou Leon Guerrero said: “You know I can’t comment. It’s a personnel decision so I really can’t comment on that.”
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