Finance chief sued over COVID-19 premium pay

The law firm of Banes Horey Berman & Miller, LLC has filed a complaint against Finance Secretary David Atalig in his official capacity over COVID-19 premium pay.

Last Tuesday, the plaintiffs, represented by Joseph Horey, filed a complaint at the CNMI Superior Court for a writ of mandamus against the Finance chief.

A writ of mandamus is essentially a court order compelling a government official to fulfill their duties.

The law firm filed the complaint on behalf of certain clients who had worked at least 40 hours, as government employees, in directly mitigating the COVID-19 pandemic, but who received premium pay of just $1,000 each, rather than $5,000 they claim they deserve.

As relief, the law firm wants the court to grant a writ of mandamus compelling Atalig to make available to them records relating to the policy and/or practice of differentiating between active and former employees for purposes of premium pay.

“As of the date of this complaint, defendant has not produced the documents requested, nor has he provided any notice that they are available for inspection and copying. The Open Government Act provides that, within 10 days of a request, all public records shall be available for inspection by any person during established office hours, unless public inspection of such records is in violation of law. The Open Government Act further provides that recourse many be had to this court by any person unlawfully denied access to public records. Plaintiff had been unlawfully denied access to public records by defendant’s failure to make the requested documents available within ten days of plaintiff’s request for them. Plaintiff is therefore entitled to a writ of mandamus compelling defendant to make the requested documents available,” the complaint said.

The plaintiffs also want the court to grant them costs of suit and reasonable attorney fees and further relief as the court deems just and proper.

According to the complaint, on Dec. 29, 2021, Gov. Ralph DLG Torres announced that CNMI government employees who had worked at least 40 hours in directly mitigating the COVID-19 pandemic would each receive $5,000 in premium pay.

The plaintiff’s clients had heard rumors that they were paid less because they were no longer employed by the Commonwealth, but they were unsure if that information was correct, and, if it was, they were unsure of the basis for such a distinction.

In a letter dated July 1, 2022, plaintiff requested Atalig, pursuant to the Open Government Act, to produce any records setting out the method of calculation used in determining the amount of premium pay awarded to former government employees.

Then, in a letter dated July 19, 2022, defendant replied that no “method of calculation” was used; the only “criteria” was that “active employees as of pay period #26” would receive $5,000, while “former employees” who had done the same work during the same time period in mitigating COVID-19 would receive $1,000.

By e-mail of July 25, 2022, plaintiff requested the Finance chief to make available any records setting out these “criteria”; however, the defendant did not respond.

On Aug. 23, 2022, the complainant sent the defendant another request pursuant to the Open Government Act requesting records relating to the policy and/or practice of differentiating between active and former employees for purposes of premium pay. Then, on Aug. 30, 2022, defendant’s agents replied by e-mail that they had received the plaintiff’s second OGA request and that they were working on it.

On Sept. 22, 2022, plaintiff replied with an e-mail noting that a response to the second OGA request was overdue. Defendant has not replied to this as well.