OPA: Covid emergency directive led to questionable personnel expenses
GPA, GWA utilize double pay provision, 45 other agencies use differential pay policy
The administration applied conflicting rules on government compensation during the state of emergency in March 2020, resulting in questionable personnel expenses, according to the Office of Public Accountability.
“GovGuam employees were paid $10.4 million for differential, double, or other pay in response to the state of emergency due to Covid-19,” OPA stated in the newly released performance audit report on Government of Guam Covid-19 Payroll Expenses.
“This was in addition to the GovGuam employees’ regular pay received during the closure and suspension of GovGuam services,” OPA said.
OPA noted that the governor's emergency directive cleared the way for the override of existing laws that otherwise prohibit certain compensation practices in government.
Public Auditor Benjamin Cruz said OPA has asked the Office of the Attorney General to look into the circumstances surrounding the application of the double pay provision for the Guam Power Authority and Guam Waterworks Authority, and the compensation for elected and appointed officials who received Covid-related compensation.
“There was an inconsistent use of legal authority for GovGuam employees’ compensation during the state of emergency in March 2020,” Cruz said. “We also asked them to determine if reimbursement is necessary for employees that received this additional pay should they concur with our findings.”
OPA’s audit of the Covid-19 payroll expenses found that between March 14, 2020 and May 11, 2020, GPA and GWA applied the Rule 8.406 double pay provision to compensate their employees, while 45 departments and agencies used the Executive Order 2020-08 Differential Pay Policy.
· $2.5 million in double pay for GPA and GWA;
· $2.0 million in 25% differential pay for 26 departments and agencies with top three users: GFD, GMHA, and GPD;
· $933,000 in 15% differential pay for 29 departments and agencies with top three users: GMHA, MCOG, and GDOE;
· $568,000 in 10% differential pay for 42 departments and agencies with top three users PAG, GMHA, and DPHSS; and
· $4.9 million in other pay for 34 departments and agencies with top three users: GMHA, GWA, and GIAA.
In addition, OPA identified unclassified employees, including department and agency heads and certain elected officials, received Covid-19 related compensation as part of the differential pay policy.
This would have been in violation of law, which prohibits bonus payments for unclassified employees. However, federal appropriations allowed the Governor to enforce a differential pay policy.
There were 54 elected and appointed officials who received $176,000 Covid-related compensation.
Under the Coronavirus Aid, Recovery and Economic Security (CARES) Act, the federal government directed $118 million to assist Guam during the Covid-19 pandemic.
The CARES Act budget was based on the April 2020 U.S. Department of Treasury Guidance for State, Territorial, Local, and Tribunal Governments and submitted to the Guam Legislature in May 2020. Of the $118 million, $29.2 million was budgeted for Covid-19 payroll expenses for public safety, public health, health care and human services.
GPA and GWA Utilized Double Pay Provision
GPA and GWA were the only GovGuam agencies that utilized the Rule 8.406 double pay provision, while other GovGuam departments and agencies used the E.O. 2020-08 Differential Pay Policy.
With $2.5 million in double pay, GPA spent $1.5 million and GWA spent $1 million. These payroll expenses for GPA and GWA were not paid out of or reimbursed by the Covid-19 Relief Fund Grant.
GPA compensated 399 employees $1.5 million in double pay if they reported to work or teleworked.
The GPA Authority Policy on Pandemic Influenza Preparedness and Response Plan stated that personnel working from home shall be compensated at their regular pay. Essential personnel on duty were to earn regular pay and overtime based on hours worked beyond the 40-hour workweek. GPA did not follow their policy.
Therefore, OPA questioned the $1.5 million in double pay given to employees during this period.
GWA compensated 333 employees $1.0 million in double pay if they reported to work. Teleworking employees were compensated at their regular pay.
GWA sought guidance from DOA and other GovGuam agencies on the conflicting provisions. However, there were conflicts relative to the interpretation of the guidance.
GWA ceased the double pay and tracked employee hours for the 10% differential pay when Pandemic Condition of Readiness 2 was declared in May 2020. However, GWA employees were not paid the 10% differential because of numerous ongoing legal and legislative discussions.
Differential Pay Policy
E.O. 2020-08 implemented a Differential Pay Policy for employees working in support of the public health emergency, in areas necessary for the elimination or reduction of immediate threats to life, public health, or safety, and whose work could expose them to Covid -19.
Depending on the level of potential COVID-19 exposure, the E.O. outlined three categories of differential pay: Category 1 at 25%, Category 2 at 15%, and Category 3 at 10%. Differential pay was paid out of the Covid-19 Relief Fund Grant for some agencies.
In addition to the double pay provision and differential pay policy, we also identified $4.5 million for other pay was utilized for 34 departments and agencies with top three users: GMHA, GWA, and GIAA. Examples of other pay include compensatory time off, overtime, and night differential.
Unclassified Employees Received Covid-related compensation
Unclassified employees, including department and agency heads and certain elected officials, received Covid-related compensation as part of the differential pay policy.
This would have been in violation of law that prohibits bonus payments.
However, federal appropriations allowed the governor to enforce a differential pay policy.
In the 1978 case of Wong v. Camina, Congress can directly appropriate to GovGuam where the appropriation or grant does not provide for local legislative control nor the authority for the Guam Legislature to re-appropriate these funds.
The U.S. Department of Treasury guidance for the CARES Act did not specify guidance regarding classified and unclassified employees’ payroll expenses. Thus, 4 GCA §6218.2 would not be applicable to this situation.
In November 2020, the Governor of Guam’s legal counsel submitted the October Covid-19 Relief Fund report to the Guam Legislature.
Of the $25.7 million Covid-19 budget related payroll expenses, $16.4 million was spent for executive branch agencies, the Judiciary and GMH.
There is $9.3 million available as of Oct. 31, 2020. These amounts do not include the compensation for autonomous or semi-autonomous agencies, unless otherwise budgeted. The Covid-19 Relief Fund was to be spent or encumbered by Dec. 30, 2020.