Representatives for a terminated school bus driver would like to see the Civil Service Commission throw out two recommendations against their client and have a redo of the merit hearing on their case.
It has been more than two years since Karen Madlutk was terminated from the Department of Public Works for reportedly forcing two young siblings off her school bus at the wrong stop. Madlutk appealed the termination, and the merit hearing for her case actually concluded in May 2021.
But the CSC board has yet to render a final decision, with the matter having been pushed back several times for various reasons.
Administrative Law Judge Eric Miller was slated to read his recommendation on the case to the commission in July, but was instead instructed to reassess using the stricter "clear and convincing" burden of proof, rather than "substantial evidence," which is a lesser burden of proof that applies to adverse action cases involving alleged felonies or misdemeanors.
There are now two recommendations for the case, an initial recommendation in May 2021 and an amended recommendation submitted in August 2021. However, both concluded that the CSC should find that DPW met its burden of proof in justifying Madlutk's termination. The amended recommendation also continues to utilize the "substantial evidence" burden.
Madlutk is represented by the Guam Federation of Teachers. GFT motioned, after Miller was asked to reassess his recommendation, to have Miller recused or disqualified from acting as an ALJ in this case.
Among their arguments, GFT representatives stated the Miller's dual role as the ALJ and the CSC's legal counsel was "contrary to the admonitions of the ALJ Ethics Code." They also felt that Miller was not able to impartially reassess the case.
Miller said the motion is a late filing and he will bring the issue to the CSC chairman for his consideration.
"No, you don't understand. The principle in the filing is that your role in and of itself, prohibits you from being a merit ALJ," GFT lay representative Dan Del Priore said during a status call Wednesday. "If that's the case, there's no question of late filing or not ... The other part, that the employee feels that you are prejudiced against her, that arises out of the merit hearing."
Assistant Attorney General Donna Lawrence, representing DPW, agreed that the recusal motion was filed late, but she also objected to the amended recommendation because the meeting in which it was requested did not comply with the Open Government Law.
There appeared to be some initial confusion on what the positions of the parties were, but Del Priore essentially said it is their position that they need a new ALJ and "the recommendations need to be thrown out and we redo the merit hearing."
Miller set a recommendation hearing for Jan. 20.