TESTIMONY ON BILLS 357-, 358-, 359- AND 361-35
Honorable Joe S. San Agustin and members of the Committee General Government Operations, Appropriations and Housing I oppose all four the bills before your committee. All of the bills appear to address perceived inadequacies in Department of Administration Personnel Rule 8.406. That rule containing two categories of benefits is not an exemplar of clear draftmanship.
Governor Leon Guerrero apparently determined on March 19 that she would not implement the provisions of DOA Rule 8.406 when she issued XO 2020-05:
¶4 of Executive Order 2020-05 reads in pertinent part:
…all government of Guam employees remain in regular work status and are expected to report for duty within two hours for duty within two hours from receiving notice from his/her supervisor.
Since ALL GovGuam employees were in regular work status Director of Administration, Ed Birn, stated, inter alia, that the double pay feature of 8.406 was not triggered. That interpretation was not made known until very recently by an off-the-cuff announcement by the governor’s acting chief of staff.
The March 19 Rule 8.406 intrepretation was bolstered by two subsequent acts of the governor, her ultra vires promulgation of XO 2020-8 COVID-19 Response Differential Pay on April 5 and here veto message of Bill 336 which would have mooted the Birn interpretation that all employees remain on work status. The governor suggested that the cost of Bill 336, were it to become law, would be $36 million, probably necessitating the layoff of GovGuam employees.
An analysis of DOA Rule 8.406 is appropriate. Per 8.406 when the Governor declares a state of emergency two categories of benefits are created.
Category I is composed of employees who do not have to report to their regular jobsite but still draw their regular pay without being charged leave. DOA Rule 8.406 C. 1.
Category II is composed of employees who must go to work at the jobs for which they were hired.
DOA Rule 8.406 C. 2.
The author of Rule 8.406, apparently governed by some misbegotten sense of barnyard equity, perceived an unfairness when some employees were allowed to stay at home with pay while others must report to work. The four bills attempt to correct the perceived unfairness by paying those who were required to work twice—once for working and once because others were paid and didn’t have to work. Thus, adding for working pay to didn’t have to work pay equals double pay, one for working and one because others didn’t work
Rule 8.406 is set out in the margin. A review of what that rule doesn’t say is entlightening. Terms like “frontline workers,” “danger” and “sacrifice” being solely the products of the demagogic pandering advanced in support of double pay for “heroic frontline workers.” A good example of the demagogic pandering occurred on May 20 when Speaker Barnes called the legislature into emergency session and waived the public hearing requirement for these bills finding a danger to the public health or safety! Those who were required to work reported to their regular jobs. Nurses work at the hospital. Because hospitals are inhabited by sick people and harbor bacteria, viruses and fungi there is an inherent risk in just being in a hospital.
Employees required to work did their regular jobs: firement put out fires, cops caught crooks and nurses went to the hospital. All are entitled to their regular compensation nothwithstanding that other employees were paid for not working. Basing salary policy on the anomalie that some workers get paid for not working can never, even in the best of times, lead to a proper result. These are far from the best of times when thousands of workers are receiving no pay at all. The vast majority of unemployed and under employed workers likely can’t help but being repulsed by the spectacle of GovGuam employees, who didn’t miss a paycheck, carping about double pay.
 XO 2020 asserts the governor’s authoriy to promulgate the COVID-19 Response Differential Pay sans a citation to her authority to do so. Cf. the final sentence of the Attorney General’s opinion of May 14 which reads, “The Organic Act, in fact, expressly authorizes the Legislature ot set the compensation of all government of Guam employees.”
 8.406 Natural Disasters and Other Emergency Conditions
A. Excused absence with pay and without charge to leave shall be granted to employees when natural disasters or other emergency conditions create unsafe working conditions.
B. Excused absence, for natural disaster or other emergency conditions, may be granted only when there has been an official proclamation of the hazardous conditions by Executive Order, or an equivalent announcement by the Governor.
C. When the Governor declares a State of Emergency, the appointing authority shall determine whether affected facilities or portions thereof, which are located in the area covered by the Executive Order or proclamation, are to be closed.
1. Except for those employees determined by the appointing authority to be necessary for providing essential services, employees shall be released from duty with pay, without charge to leave, for the period the facility is closed.
2. Those employees, required to remain on duty to provide essential services, shall be paid at double the regular rate, or granted compensatory leave credits for the hours worked during the period the facility is closed and the other employees are on excused leave