Port won’t appeal Susuico case, will wind down litigation

Port Authority of Guam administration building. (PNC file photo)

The Port Authority of Guam board of directors recently rose from executive session to discuss with Port Counsel Attorney Joe McDonald ongoing port litigation.

The port board, in a statement, said they have been advised by Attorney McDonald that it is in the best interest of the port that no further appeal be taken in the Kevin Susuico case and that management takes the necessary steps to wind down the litigation.

According to port board chairman Francisco G. Santos, the board concurs with the port counsel’s advice.

On July 30, 2019, the Supreme Court issued its opinion on Susuico’s adverse action appeal. The justices affirmed the Superior Court’s judgement dated October 12, 2017, which adjudged and ordered the following:

* The July 30, 2013 decision and judgement of the Civil Service Commission awarding Mr. Susuico back pay and credit for sick and annual leave, minus deductions for retirement contributions and mitigation;

* Mr. Susuico is entitled to interest on all outstanding back pay and benefits until paid in full; and

* Awarding Mr. Susuico attorney fees and cost incurred.

The CSC decision favoring Susuico found that the Port violated the 60-day rule of 4 GCA § 4406. The commission ruled that Susuico be reinstated and awarded back pay, along with interest and attorney’s fees.

Last month, in an opinion authored by Chief Justice Katherine A. Maraman and joined by Justice F. Philip Carbullido and Justice Pro Tempore Maria G. Fitzpatrick, the Supreme Court affirmed the judgment of the Superior Court affirming the CSC’s decision.

The court noted that the Legislature had recently amended 4 GCA § 4406 from a 60-day period of time to a 90-day period of time in which management must provide notice of a proposed or final adverse action.

However, the court found that the 60-day rule remained applicable to the Susuico case because the Legislature did not amend the rule until after the facts of the case occurred.

The court ruled that the CSC had substantial evidence in the record to support the conclusion that the Port violated the 60-day rule.

The court also noted that Port management knew or should have known that Susuico lacked the requisite educational qualifications for the Accountant II position no later than October 16, 2012, when a post-audit hearing was held and the Port did not contest the CSC’s factual findings that Susuico’s resume and employment application did not meet the requisite experience and qualifications for the Accountant II position.

Furthermore, the court noted that the Port did not issue a Notification of Personnel Action to Susuico terminating his employment until January 17, 2013, well after the 60-day window for such notification closed.