The Double Dippers Club: GovGuam has a growing list of positions exempted from pension suspension
Double dipping, in the context of the government of Guam, refers to the practice of an active employee receiving a pension from the Retirement Fund while simultaneously receiving a salary from GovGuam employment.
On Jan. 10, 1975, the legislature enacted the antidote to double dipping — a statute suspending, for the duration of their renewed employment, the pensions of retired employees who have been rehired by GovGuam.
Suspension makes sense. It prevents a drain on the Fund otherwise caused by double dipping. This policy contributes to the solvency of the Fund.
However, double dipping has grown like Topsy over the years due to numerous amendments to 4GCA 8121—the statute mandating the pension freeze for rehired retirees. Subsequent amendments have created a bloated list of job classes exempt from this policy.
List of GovGuam jobs allowed to double dip
Chamorro culture and language teachers (exempted Jan.22, 1980);
classroom teachers, guidance counselors, and health counselors (exempted Jan. 7, 1983);
substitute teachers and licensed health professionals employed by DOE (exempted Jan. 1, 1999);
certified, registered and licensed health care professionals and ancillary service personnel employed by GMH, DMHSA and DPHSS (exempted Jan. 4, 1999);
physical therapists, occupational therapists, speech therapists, audiologists, speech clinicians, physicians, physician assistants, nurses or psychologists employed by DOE (exempted June 4, 2001);
judges and justices (exempted Nov.10, 2003);
certified administrators and allied health professionals employed by DOE (exempted Jan. 29, 2007);
DOE retirees incorporated in the Certified Augmentation Teachers Service, (exempted Jan. 29, 2007); academic faculty members employed by the University of Guam and certain limited term police officers employed by the Guam Police Department (exempted Sept. 30, 2008);
employees of the offices of the governor and lieutenant governor, unclassified employees appointed by the governor, and the heads of autonomous agencies (exempted Dec. 30, 2010);
certain unclassified employees of the Judiciary of Guam (exempted Sept. 7, 2012);
limited-term school bus drivers and automotive mechanics employed by the Department of Public Works (exempted Feb. 10, 2014); certified, registered, or licensed health professionals, and ancillary health service personnel employed by the Judiciary of Guam (exempted June 10, 2015)
The only restriction on filling the above positions with unretirees is that no other applicants are available for the position.
And finally, legislation exempting the attorney general and public auditor was enacted on Dec. 30, 2014 at the request of Elizabeth Barrett-Anderson— a legislative act wholly gratuitous since enactment occurred after Barrett-Anderson had been elected attorney general.
The legislature has also authorized the rehiring of retired employees to fill positions left vacant by the incumbents who are either called to military duty or develop a long-term disability. This type of hiring has not been authorized by amendments to 4 GCA 8121, but instead, it was inserted into the “Miscellaneous Provisions” of annual budget acts—beginning with police officers Oct. 4, 2005, correction officers beginning Oct. 3, 2006, and Customs and Quarantine officers, certain Revenue and Taxation employees and firefighters, beginning Sept. 30, 2008.
This also applies to the Guam Department of Education. Commencing Sept. 4, 2019, unretiring GDOE teachers who are not eligible for Medicare Part A and Part B can continue receiving their retirement benefits while standing in for GDOE teachers who are absent due to military service or long-term disability.
What?! What has eligibility for Medicare to do with hiring unretiring teachers?
This appears to be a bone thrown to teachers who can't move back to the states after their retirement because former governor Carl T.C. Gutierrez did not enroll them in Medicare when he had the chance. The non-enrolment renders them ineligible for Medicare in the states.
Last year, the legislature added more classes of employees to the list of pension-freeze exemptions— social workers and certain attorneys— while it ditched the requirement that the unretiring employees occupy a position vacated by the military service or long-term disability of the incumbent.
In the FY2019 budget act enacted Aug. 24, 2018, the legislature authorized the hiring of unretiring social workers for Child Protective Services, and unretiring attorneys for the Office of Attorney General to perform tax collection work and criminal prosecution.
On June 29 this year, the AGO hired retired GovGuam attorney Philip J. Tydingco as assistant attorney general. In the 2020 budget act, the legislature authorized the hiring of unretiring GovGuam attorneys by the AGO. This authority is extended to the Guam Judiciary, Public Defender and Alternate Public Defender. The only requirement is the existence of a “critical need” to fill the vacancies.
Moreover, the positions to be filled are not restricted to tax collection and criminal prosecution. This provision appears to be a response to a controversy engendered by earlier illegal double dipping at the Office of Attorney General purportedly under the guise of an independent contract, a practice subsequently explicitly banned by the legislature even when the double dipping is otherwise legal.
Tydingco was assigned to the Department of Labor to serve as the hearing officer for its federal Pandemic Unemployment Assistance and Pandemic Unemployment Compensation programs, although Tydingco is not known for expertise in U.S. unemployment assistance law. In fact, according to press reports, the idea to hire Tydingco originated in the Governor’s Office, not at the AGO contrary to the MOU between the labor department and the AGO.
Under the 2020 budget act provision, Tydingco is able to continue receiving his annual pension of $75,381.84 in addition to his annual salary of $89,057 as assistant attorney general.
The upshot is that the legislature has shifted part of the cost of numerous classes of active, albeit unretired, employees from the general fund to the Retirement Fund. The legislature has no business tapping the Retirement Fund to cover part of the salaries of unretired employees filling otherwise underpaid positions. 4GCA 8101.2(b)(1) prohibits use of the income and corpus of the Fund for purposes other than for the exclusive benefit of members and their beneficiaries.
Benefiting the solvency of the general fund is not a purpose to which the income and corpus of the Retirement Fund can be devoted. Nor is the political aggrandizement of politicians, who support such favoritism. Remuneration received by unretired employees filling otherwise underpaid positions, or the positions of absent employees, should come out of the general fund.
The Board of Trustees of the Retirement Fund is not helpless in the face of these legislative raids on the Retirement Fund in the guise of "exceptions" to the otherwise mandated suspension of benefits. This is because the amendments to 4GCA 8131 and provisions in the annual budget acts constitute a legislative impairment of the statutory contract between the members of the DB Plan and the Fund, contrary to the Contracts Clause of the Organic Act.
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In a Feb. 18, 2003 decision in Bautista et. al v. Gerald S.A. Perez et. al., CV 1848-01, Presiding Judge Lamorena held that statutes governing the Defined Benefit Plan constitute a statutory contract between the members of the Defined Benefit Plan and the Fund. The court further held that legislation which increased the unfunded liability of the Fund constituted an impairment of this statutory contract, within the meaning of the Contract Clause of the Organic Act. Judge Lamorena ordered the board to challenge, in court, the organicity of various types of legislation which would impair the Fund’s ability to provide benefits to DB Plan members.
Among the legislation specified was legislation which “expand[s] minimum eligibility requirements.” Termination of GovGuam employment is a minimum eligibility requirement for GovGuam retirement benefits. Hence legislation allowing former employees returning to GovGuam employment to continue to receive retirement benefits is legislation which “expand[s] minimum eligibility requirements.”
The Board of Trustees should comply with Judge Lamorena’s order and file suit challenging the organicity of the above described exceptions to the requirement that the pensions of unretired employees be suspended.
Joseph Guthrie served as deputy attorney general on Guam from 2003 to 2006. Send feedback to email@example.com.