Wiseman finds DPS practices in hiring, promotion discriminatory

Superior Court Associate Judge David A. Wiseman yesterday issued a judgment favorable to Police Sgt. James C. Deleon Guerrero who filed a court action to protest the Department of Public Safety’s discriminatory practices in its promotion and hiring process.

“Here, DPS turned a blind eye to Deleon Guerrero’s grievances, and Civil Service Commission was unable to hear his grievance due to lack of quorum, forcing him to hire an attorney to remedy the agency’s selection principles with reallocation and ‘outside hire promotions,’” Wiseman said.

In bringing this court action, the judge said, Deleon Guerrero alone effectuated the important legislative policies underlying the Civil Service Act and the Personnel Service System Rules and Regulations (PSSRR) as well as Gov. Benigno R. Fitial’s Directive #275 dated Oct. 20, 2010.

Fitial states in Directive #275 that DPS “should continue” to “comply with the PSSRR and Civil Service Act concerning salary/merit increases and promotions.”

Wiseman determined that there were continuing violations by DPS constituting de facto promotion by reallocation which were not proper.

Wiseman found violations of the CSA and PSSRR with the use of the reallocation process to promote then Police Officer II Alfred Celes to sergeant and Tinian then Sgt. Eloy K. Fitial to captain along with attending salaries.

The judge sustained Deleon Guerrero’s grievance and found that DPS’ agency action is deemed to be arbitrary and capricious as well as a violation of law.

Wiseman awarded Deleon Guerrero attorneys’ fees and costs on grounds of his prosecution of a private attorney general action as permitted under the CSA.

Wiseman ordered Robert T. Torres, counsel for Deleon Guerrero, to submit his statement of fees and costs within 15 days from yesterday.

The judge ordered DPS to cause the demotion and rescind the reallocation of Eloy K. Fitial to sergeant.

Wiseman ordered DPS to announce the vacated position and afford competitive selection to eligible candidates as provided for in the PSSRR and as directed by Governor’s Directive #275.

Wiseman said DPS and OPM shall take all appropriate measures to recover the illegal overpayments from Celes and Eloy K. Fitial for all salaries received as sergeant and captain, respectively, “which were illegal and prohibited by the CSA and PSSR inclusive of the austerity measures.”

“Until such time as the austerity measures are repealed, whether by force of law or administrative action, DPS is enjoined from conducting any further reallocations, promotions, or merit-increase without court approval,” Wiseman said.

With respect to Deleon Guerrero’s grievance with respect to the hiring and/or selection of Sgt. Paul Ogumoro and Sgt. Vicente Tagabuel, Wiseman denied it, saying there is no showing that DPS violated the PSSRR and such actions were within the agency’s discretion and that the positions were duly announced.

Torres said yesterday that Wiseman’s decision was both necessary and unfortunate.

“Sgt. Guerrero took on a quest which many felt pyrrhic and futile, but today is vindicated in that effort. It is his hope that the rule of law, to ensure the standard of non-discriminatory merit-based treatment for all civil service officers, carries the day,” Torres said.

Torres said the irony is that it has taken committed officers from within DPS to take on the challenging task, where allowing injustice is easy by doing nothing, doing justice is part of what they do every day, the hard part.

“It has been a long-road and we hope that this would be a shift in direction back to the basic principles of Civil Service Act and the Personnel Regulations: fairness, equal treatment, and merit-based,” Torres said.

In May 2009, Deleon Guerrero sued DPS to protest over the alleged discrimination in its promotion and hiring practices. Twenty-five other police officers joined Deleon Guerrero’s lawsuit.

Wiseman issued an order on Feb. 1, 2011. In that order he concluded that issues of material fact still remain as to (1) whether Officer Tagabuel and Officer Ogumoro were hired in violation of the PSSRRs; and (2) whether Fitial’s Directive made Deleon Guerrero’s request for an order ending discriminatory practices and disparate treatment moot.

Wiseman conducted an evidentiary hearing on March 9, April 4, and April 6, 2011 in order to elicit evidence on these remaining factual questions.

In his final judgment issued yesterday, Wiseman said since the inception of Deleon Guerrero’s grievance and during the pendency of this case, DPS had continued the illegal practice unabated resulting in DPS picking and choosing when it will apply the rules and when it will disregard the rules.

Wiseman said Sgt. Fitial’s reallocation was the approach taken instead of DPS looking from outside of DPS to hire a captain given the austerity measures as it previously justified.

“But the fact of the matter is that Sgt. Fitial was a lateral in-house hire, and there is no testimony nor evidence that he resigned nor separated from DPS,” he said.

As to the grievance and objections by Deleon Guerrero with respect to the selection of Sgt. Ogumoro and Sgt. Tagabuel, the court finds them to be meritorious with regard to their hiring and selection.