Lineup of witnesses in Charfauros case discussed

CHARFAUROS: Mark Charfauros, right, and his attorney, Randall Cunliffe, attend a proceeding Nov. 5, 2018, in the Superior Court of Guam in Hagåtña. The Supreme Court of Guam is set to determine whether the lower court erred when it dismissed a petition regarding Charfauros' case. Post file photo

Mark Charfauros

Mark Charfauros

Justices at the Supreme Court of Guam are set to determine whether the lower court erred when it dismissed a petition from the Guam Police Department seeking review of a Civil Service Commission decision regarding former Col. Mark Charfauros. 

The parties made their oral arguments before the Supreme Court on Thursday and justices have taken the matter under advisement.

Charfauros was demoted and terminated from the police force following an incident on Christmas Eve 2016.

He appealed at the CSC and won back his rank but lost the termination appeal, which his attorney said would be appealed in court. 

However, before the CSC heard the termination case, the police department filed a writ at the Superior Court over the demotion ruling to force the CSC to reconsider the demotion decision. GPD lost the case and then appealed with the Supreme Court.

First witness

GPD wanted to call Charfauros as its first witness during the demotion appeal hearing at the CSC, but the commission refused, saying its rules require that an employee can be called only to testify last.

In the end, GPD and its counsel, the Office of the Attorney General, failed to present a case against Charfauros on the demotion appeal.

"This case is about the denial of due process and denial of a full and fair hearing," Assistant Attorney General Donna Lawrence said during oral arguments Thursday.

The basis of the case is the Administrative Adjudication Law. The Superior Court of Guam relied on the law, which prohibits witnesses from being called without first having the opportunity to testify on their own behalf, according to GPD's opening brief.

But the CSC is governed by the Administrative Adjudication Law when it promulgates its own rules and not when it conducts hearings, GPD stated. Moreover, rules and laws governing the CSC allow management to call the employee as a witness in its main case, the brief added.

CSC "unjustly prohibited GPD" from calling Charfauros as the first witness because it wanted to speed up the proceedings, the brief stated. In doing all of this, the CSC denied effective legal counsel to GPD by preventing its lawyers from presenting their case in the manner they deemed strategically appropriate, the brief added.

In its own brief, the CSC again cited the Administrative Adjudication Law and stated the employee is not able to testify in management's main case under a section of the law.

In addition, Randall Cunliffe, attorney for Charfauros, noted that GPD is not appealing the CSC decision to void his client's demotion, "which is what is appealable," but a ruling on when they can call in witnesses in their main case. Since GPD did not offer evidence, the CSC decision is sound, Cunliffe argued in his brief.

The CSC did not prevent GPD from calling any witnesses nor do they cite cases to indicate setting up the line for witnesses would deprive a party of a fair hearing, Cunliffe added.

"GPD's counsel at the (CSC) hearing brought all of this upon himself" because he did not present any evidence, "had a temper tantrum and left," Cunliffe said.

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