Mark C. Charfauros v. Civil Service Commission, and Guam Police Department, Real Party in Interest-Appellee

IN THE SUPREME COURT OF GUAM



     MARK C. CHARFAUROS,
           Petitioner-Appellant,

                    v.

  CIVIL SERVICE COMMISSION,
          Respondent-Appellee,

                   and

  GUAM POLICE DEPARTMENT
      Real Party in Interest-Appellee.


   Supreme Court Case No. CVA21-007
   Superior Court Case No. SP0126-19


               OPINION


        Cite as: 

  Appeal from the Superior Court of Guam
  Argued and submitted on March 22, 2022
        Via Zoom video conference
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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Appearing for Petitioner-Appellant:                    Appearing for Respondent-Appellee:
F. Randall Cunliffe, Esq.                              Eric D. Miller, Esq.
Cunliffe & Cook, P.C.                                  Civil Service Commission
A Professional Corporation                             Bell Tower
210 Archbishop Flores St., Ste. 200                    710 W. Marine Corps Dr., Ste. 201
Hagåtña, GU 96910                                      Hagåtña, GU 96910


                                                       Appearing for Real Party in Interest-Appellee:
                                                       Marianne Woloschuk, Esq.
                                                       Assistant Attorney General
                                                       Office of the Attorney General
                                                       Litigation Division
                                                       590 S. Marine Corps Dr.
                                                       Tamuning, GU 96913
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;
and KATHERINE A. MARAMAN, Associate Justice.


MARAMAN, J.:

        Petitioner-Appellant Mark C. Charfauros appeals from the Superior Court’s judgment

affirming a decision by the Civil Service Commission, which upheld the Guam Police

Department’s termination of Charfauros’s employment for insubordination and other

misconduct.     Charfauros argues his termination was unlawful because it violated his First

Amendment right to free speech; in the alternative, he asks the court to find the sanction of

termination unduly “harsh” and to remand to the Civil Service Commission for a lesser

employment sanction. We affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        The following recitation of facts primarily stems from the Civil Service Commission

(“CSC”) record submitted to the Superior Court, including the transcript of Charfauros’s adverse

action hearing.

A. The Agat Incident and First Administrative Investigation

        Before his termination, Charfauros was employed by the Guam Police Department

(“GPD”). At GPD, Charfauros held the titles of “Colonel” and “Police Commander,” meaning

he held the “highest classified uniform rank” in the department and was subordinate only to the

Chief of Police.

        Charfauros was involved in an incident in the village of Agat (“Agat incident”). While

GPD officers were investigating a report of an illegal fireworks display, Charfauros appeared at

the scene of the investigation and initiated a heated communication with the officers there. Some

of the communication between Charfauros and the officers was captured on an officer’s
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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bodycam. In the view of then-Chief of Police Joseph I. Cruz (“Chief Cruz”), it was “fair” to

characterize the bodycam footage as showing Charfauros “screaming and using obscenities at the

police officers,” Record on Appeal (“RA”), tab 29 (Subm. Certif. R., Oct. 8, 2020), Tr. at 24

(CSC Bd. Comm’rs Mtg. (“Adverse Action Hr’g”), Mar. 19, 2019), and acting “very

unprofessional and demeaning to the officers who were there.” 

.

        Chief Cruz met with Charfauros to discuss the Agat incident.             Chief Cruz felt

Charfauros’s conduct in Agat “was not consistent with rules in place for how a senior officer

handles a potential crime scene.” RA, tab 24 (Subm. Certif. R., July 29, 2020), CSC Dec. &

Order at 3 (May 9, 2019). Chief Cruz informed Charfauros there would be an administrative

investigation into the Agat incident, and he placed Charfauros on administrative leave.

Charfauros’s gun and badge were taken from him the morning of December 27, 2016, and the

document placing him on administrative leave was completed around 4:00 p.m. the same day.

B. Media Interviews and Second Administrative Investigation

        After the Agat incident but before Charfauros’s meeting with Chief Cruz, the bodycam

footage of Charfauros appeared in the local news and on social media. The record does not

explain how or why this occurred. The parties agree the bodycam footage was widely viewed

and discussed in the press and on social media.

        During his meeting with Chief Cruz, Charfauros expressed concern that people “were

getting only one side of the story,” and he told Chief Cruz he wanted to speak to the media to

explain his side of the story about the Agat incident. RA, tab 29 (Subm. Certif. R., Oct. 8, 2020),

Tr. at 59-60 (Adverse Action Hr’g, Mar. 19, 2019). Chief Cruz orally advised Charfauros

against this course of action. He informed Charfauros that, while he couldn’t stop Charfauros

from speaking, if Charfauros chose to do so in contravention of Chief Cruz’s advice, what came
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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next would be “on him.” 

. Chief Cruz then told Charfauros he planned to consult the

director of the Department of Administration to ensure that Cruz would not be violating any

rules or regulations in permitting Charfauros to speak to the media. In Charfauros’s words,

Chief Cruz told him that “if he does not call my [sic] by 5:00, then that means I’m okay, I can go

. . . I can speak to the media.” 

. Chief Cruz’s testimony, however, is that there was an

understanding that there was not to be any such communication until the investigation was

complete.

        Chief Cruz testified that he did not follow up with Charfauros in person or by phone call,

but issued Charfauros a memorandum which, among other things, advised him not to speak

about the matter while the investigation was pending. 

; see also RA, tab 24 (Subm.

Certif. R., July 29, 2020), Mgmt.’s Ex. M20 (Admin. Leave Mem., Dec. 27, 2016) (“You are

hereby further advised to refrain from making comments and remarks outside of the case

investigation, until the investigation is completed.”). Charfauros acknowledged receipt of this

memorandum but stated he only “skimmed through” it because it was “the same form that they

give every employee.” RA, tab 29 (Subm. Certif. R., Oct. 8, 2020), Tr. at 73 (Adverse Action

Hr’g, Mar. 19, 2019).

        Over the next few days, notwithstanding Chief Cruz’s memo and advice, Charfauros

spoke to at least three media outlets about the Agat incident.1 In an interview with the Buzz

Radio Talk Show on December 28, 2016, Charfauros suggested GPD had conducted illegal

searches in Agat, claiming the officers lacked probable cause and did not receive permission

        1
            At his adverse action hearing, Charfauros could not recall which days he gave interviews or how many
total interviews he gave. The Superior Court recognized Charfauros spoke to, at minimum: (1) Jesse Lujan, the
Buzz Radio Talk Show, KUAM on December 28, 2016; (2) the Patti Arroyo Radio Talk Show, K-57 on December
29, 2016; and (3) Janela Carrera, Pacific News Center on December 28, 2016. The Final Notice of Adverse Action
prepared by GPD also refers to these three interviews. The audio and video recordings of these interviews were part
of the CSC record submitted to the Superior Court. See Record on Appeal (“RA”), tab 24 (Subm. Certif. R., July
29, 2020), Mgmt.’s Ex. M136 (CD – Media Audio & Video).
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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from homeowners to search their properties. See generally RA, tab 24 (Subm. Certif. R., July

29, 2020), Mgmt.’s Ex. M136 at 11:50-19:45 (CD – Media Audio & Video). Charfauros stated

that he made no order to the officers there to cease their investigation, but only to ensure they

were respecting the constitutional rights of the local citizens. 

. Other portions

of Charfauros’s interview with the Buzz Radio Talk Show addressed more personal topics, i.e.,

his own conduct and appearance in the bodycam footage. Charfauros explained the bodycam

footage showed him yelling and slurring his words because he was suffering from a medical

ailment, not because he was intoxicated. 

. He also repudiated a rumor he had

intervened in the investigation because the party being investigated happened at one of his

relatives’ homes, asking how it could be that he was protecting family members when the

officers had no suspect. 

        After learning Charfauros had conducted media interviews contrary to the memorandum

that advised he not make comments, Chief Cruz initiated a second administrative investigation

into Charfauros.     When the second administrative investigation concluded, Charfauros was

served with a Final Notice of Adverse Action (“FNAA”). The FNAA first listed several factual

findings, including GPD’s conclusion that the other officers had probable cause to conduct their

search in the Agat incident. The FNAA then alleged Charfauros’s act of conducting media

interviews against Chief Cruz’s advisement had violated several GPD policies, e.g., “fail[ing] to

keep secret confidential information regarding an ongoing investigation after being directly

ordered by the Chief of Police to refrain from discussing any information related to the case,”

“violat[ing] department policy which states that no employee shall make public statements

without the express authorization of the Chief of Police,” and “[bringing] disrepute and discredit

to yourself and the Guam Police Department [by making] false statements to the media alleging
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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that police officers had conducted illegal residential searches.” RA, tab 24 (Subm. Certif. R.,

July 29, 2020), Mgmt.’s Ex. M29-M32 (Final Notice Adverse Action at 8-11, Feb. 16, 2017).

The FNAA found Charfauros had committed “[i]nsubordination” and several other violations of

the department’s rules and regulations, and thus terminated his employment. 

 at Ex. M28-

M37 (Final Notice Adverse Action at 7-16).

C. Post-Termination Proceedings

        Charfauros appealed the FNAA to the CSC. The CSC held a hearing and received

testimony from Chief Cruz and Charfauros.             After the hearing, the CSC voted to sustain

Charfauros’s termination. The CSC found clear and convincing evidence to support GPD’s

finding of insubordination.

        Charfauros raised a First Amendment defense before the CSC, but the CSC rejected the

argument. The CSC noted, “[N]ot once during his testimony did [Charfauros] state that it was

his goal to report wrongful acts to the public. Rather, he testified that he needed to get out his

side of the story and wished to clear the record.” RA, tab 24 (Subm. Certif. R., July 29, 2020),

CSC Dec. & Order at 6 (May 9, 2019). Thus, upon finding Charfauros “acted out of his own

self-interest and not out of any desire to advise the media of a matter of public concern,” the

Civil Service Commission held Charfauros’s speech was not protected by the First Amendment.

Id. at 6-7.

        Charfauros then sought judicial review in the Superior Court, reasserting his First

Amendment claim. To analyze the claim, the Superior Court applied a three-part test deriving

from United States Supreme Court precedent articulated in Pickering v. Board of Education, 

 (1968), and its progeny. The Superior Court first held that Charfauros spoke to the

media as a private citizen, not as a representative of GPD, which allowed for possible First
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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Amendment protection. The Superior Court further held, however, that Charfauros’s speech

addressed a matter of personal concern rather than a matter of public concern, which denied First

Amendment protection. The Superior Court alternatively held that even if Charfauros’s speech

had addressed a matter of public concern, Charfauros’s personal interest in speaking to the media

did not outweigh GPD’s interest in maintaining effective operations, which also denied First

Amendment protection to his speech.

        On September 15, 2021, Charfauros and GPD executed a Stipulated Judgment which

provided the following:

               On July 6, 2021, the court issued a decision and order affirming the
        decision and judgment of the Civil Service Commission, which sustained real
        party in interest Guam Police Department’s (GPD) adverse action on the
        termination against petitioner Mark C. Charfauros in Adverse Action appeal Case
        No. 17-AA03T. The court’s decision and order was entered on the docket on July
        13, 2021.

                IT IS HEREBY ORDERED, ADJUDGED AND DECREED by this court
        that the decision and judgment of the Civil Service Commission is affirmed.
        Judgment shall be entered in favor of real party in interest GPD and against
        petitioner Charfauros.

RA, tab 42 (Stipulated Judgment, Sept. 15, 2021). Charfauros timely appealed.

                                         II. JURISDICTION

        Decisions of the Civil Service Commission are subject to judicial review. Guam Police

Dep’t v. Guam Civ. Serv. Comm’n (Charfauros), 

 ¶ 6 (citing 4 GCA § 4406(d) (as

amended by 

-112:3 (Mar. 12, 2010))); Carlson v. Perez, 

 ¶ 65.

“The vehicle for obtaining this review is a petition for judicial review filed in the Superior Court

of Guam.” Charfauros, 

 ¶ 6 (citing Carlson, 

 ¶ 65; 7 GCA § 7117

(2005)). We have jurisdiction over appeals from final orders of the Superior Court. 48 U.S.C.A.
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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§ 1424-1(a)(2) (Westlaw through 

(2022)); 7 GCA §§ 3107, 3108(a), 25102(a)

(2005).2

                                      III. STANDARD OF REVIEW

         “We examine whether the trial court properly determined that the CSC’s decision was in

accordance with the law and supported by substantial evidence.” Guam Waterworks Auth. v.

Civ. Serv. Comm’n (Mesngon), 

 ¶ 5. “In so doing, we will review all conclusions

of law de novo, and will hold unlawful and set aside any agency action, findings and conclusions

found to be irrational, or otherwise not in accordance with law or unsupported by substantial

evidence in a case.” Fagan v. Dell’Isola, 

 ¶ 13; see also Port Transp., Stevedore

& Terminal Emps. v. Guam Civ. Serv. Comm’n (Port Auth. of Guam), 

 ¶ 5; Santos

v. Guam Civ. Serv. Comm’n (Dep’t of Corr.), 

 ¶ 8.

         We review the CSC’s findings of fact under the “substantial evidence” standard. See

Santos, 

 ¶ 8. “Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Port Transp., 

 ¶ 6

(quoting Fagan, 

 ¶ 12). “Substantial evidence is more than a mere scintilla, but

less than a preponderance.” Guam Mem’l Hosp. Auth. v. Civ. Serv. Comm’n (Chaco), 

 ¶ 15 (quoting NLRB v. Int’l Bhd. of Elec. Workers, Local 48, 

, 1053-54

         2
           This court generally does not have jurisdiction over a stipulated judgment in a civil case. See B.M. Co. v.
Avery, 

 ¶ 45 (“[U]nlike judgments after trial, consent or stipulated judgments are generally not
appealable.”); accord Flannery v. Prentice, 

 (Cal. 2001) (“A judgment rendered with consent of the
appellant is not appealable.” (citation omitted)). However, the California Supreme Court has recognized:
         [T]he rule has expressly been “limited to cases wherein it does not appear from the record that the
         consent was given only pro forma to facilitate an appeal, and with the understanding on both sides
         that the party did not thereby intend to abandon his right to be heard on the appeal in opposition to
         the judgment or order.”
Norgart v. Upjohn Co., 

 (Cal. 1999) (quoting Mecham v. McKay, 

 (1869)). This is
precisely the circumstance here. The stipulated judgment here is merely an agreement by the parties that the July 6,
2021 Decision and Order was the Superior Court’s final adjudication of the matter, not a substantive stipulation to
the tenets of the decision itself. The stipulation is thus merely an effort by the parties to expedite the process of
receiving an appealable final order, and we do not lack jurisdiction over a stipulated judgment of this nature.
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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(9th Cir. 2003)). “The substantial evidence standard is ‘extremely deferential’—accordingly, the

court should not do its own weighing of the evidence, nor should it substitute its factual

determinations for the agency.” Port Auth. of Guam v. Civ. Serv. Comm’n (Castro), 

 (quoting Chaco, 

 ¶ 16).

                                            IV. ANALYSIS

A. Charfauros’s Termination Did Not Violate the First Amendment

        The First Amendment to the United States Constitution provides: “Congress shall make

no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. These principles apply

in Guam through the Organic Act of Guam. See 48 U.S.C.A. § 1421b(a) (“No law shall be

enacted in Guam . . . abridging the freedom of speech . . . .”); Guam v. Guerrero, 

 (9th Cir. 2002) (noting that § 1421b(a) is “virtually identical to its federal counterpart”).

Where the Organic Act uses “substantively identical language,” this court “lacks the authority to

interpret a federal statute or federal constitutional provision contrary to the interpretation the

U.S. Supreme Court has given it.” People v. Moses, 

 ¶¶ 20-21 (quoting Guerrero,

). Axiomatically, however, neither the First Amendment nor § 1421b(a)

protect all speech activities in all circumstances. Our task is to determine whether Charfauros’s

speech was protected, and thus whether his termination was unlawful.

        The Guam Police Department is an agency within the executive branch of the

Government of Guam, see 10 GCA § 77102(a) (2005), which means Charfauros was a

government employee when he spoke to the media. Government employees have some First

Amendment rights; they do not “relinquish all First Amendment rights otherwise enjoyed by

citizens just by reason of his or her employment.” City of San Diego v. Roe, 

(2004) (per curiam). But “[w]hen a citizen enters government service, the citizen by necessity
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 

(2006). Thus, “a governmental employer may impose certain restraints on the speech of its

employees, restraints that would be unconstitutional if applied to the general public.” Roe, 

. Employees of law enforcement agencies, in particular, “are subject to greater First

Amendment restraints than most other citizens.” McMullen v. Carson, 

 (11th

Cir. 1985) (citing Kelley v. Johnson, 

 (1978)).

        The extent of First Amendment protection afforded to a government employee ultimately

depends on balancing the interests of the government employee as a speaker and of the

government itself as an employer. See Pickering v. Bd. of Educ., 

 (1968).

“Government employers, like private employers, need a significant degree of control over their

employees’ words and actions; without it, there would be little chance for the efficient provision

of public services.” Garcetti, 

. Government employees “occupy trusted

positions in society. When they speak out, they can express views that contravene governmental

policies or impair the proper performance of governmental functions.” 

. As the U.S.

Supreme Court has explained:

        [T]he extra power the government has in this area comes from the nature of the
        government’s mission as employer. Government agencies are charged by law
        with doing particular tasks. Agencies hire employees to help do those tasks as
        effectively and efficiently as possible. When someone who is paid a salary so that
        she will contribute to an agency’s effective operation begins to do or say things
        that detract from the agency’s effective operation, the government employer must
        have some power to restrain her. . . .

                The key to First Amendment analysis of government employment
        decisions, then, is this: The government’s interest in achieving its goals as
        effectively and efficiently as possible is elevated from a relatively subordinate
        interest when it acts as sovereign to a significant one when it acts as employer.
        The government cannot restrict the speech of the public at large just in the name
        of efficiency. But where the government is employing someone for the very
        purpose of effectively achieving its goals, such restrictions may well be
        appropriate.
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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Waters v. Churchill, 

 (1994).

         The Superior Court analyzed Charfauros’s First Amendment claim under the Pickering

framework. See RA, tab 36 at 4 (Dec. & Order, July 6, 2021). What standard applies in a First

Amendment case is a question of law. We adopt the Pickering framework in weighing a

government employee’s speech interest against the interests of his employer. The three relevant

considerations in this case are: (1) whether the employee spoke in his capacity as a “private

citizen” or as a “public employee”; (2) whether the employee spoke on a matter of “public

concern” or a matter of “private concern”; and (3) whether the government’s interest in

“promoting the efficiency of the public services it performs through its employees” outweighs

the employee’s interest in “commenting upon matters of public concern.” See Pickering, 

.3 We analyze each.

         1. Charfauros spoke in his capacity as a “private citizen”

         A government employee first bears the burden of showing he spoke “in the capacity of a

private citizen and not a public employee.” Eng v. Cooley, 

 (9th Cir. 2009).

The First Amendment does not protect speech made by a government employee as part of the

performance of their official duties. See id.; Garcetti, 

. A government employee

speaks as a private citizen “if the speaker ‘had no official duty’ to make the questioned

statements, or if the speech was not the product of ‘performing the tasks the employee was paid

         3
            In federal courts of appeal, the Pickering test is generally refined into a five-step inquiry as to whether the
government was justified in treating an employee differently from other members of the general public. 16B C.J.S.
Constitutional Law § 1062. GPD’s brief argues under such a five-part test, with reference to Eng v. Cooley, 

 (9th Cir. 2009). Appellee’s Br. at 20 (Dec. 27, 2021). That test, in effect, measures the same three
factors that Charfauros’s brief acknowledges along with two other prongs: “whether the plaintiff’s protected speech
was a substantial or motivating factor in the adverse employment action” and “whether the state would have taken
the adverse employment action even absent the protected speech.” Eng, 

. But these factors are not
at issue in this appeal. Neither party claims Charfauros’s termination was based on anything but his speech
activities. Thus, Charfauros’s speech was clearly a “substantial or motivating factor” in his termination, and nothing
suggests GPD would have terminated his employment absent his speech activities. We therefore limit our analysis
to the three factors common to both Eng and the Superior Court’s approach.
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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to perform.’” Eng, 

 (quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 

, 1127 n.2 (9th Cir. 2008)).

        “While ‘the question of the scope and content of a plaintiff's job responsibilities is a

question of fact,’ the ‘ultimate constitutional significance of the facts as found’ is a question of

law.” 

 (quoting Posey, 

). The Superior Court held that Charfauros spoke

in his capacity as a private citizen, recognizing Charfauros had surrendered his gun and badge

and had been placed on administrative leave at the time of his interviews. We agree: these

factors support finding Charfauros was not speaking in his official capacity. Since Charfauros

was on administrative leave at the time of his media interviews and did not have Chief Cruz’s

permission to speak to the media, he was not speaking at the behest of GPD. And while GPD

suggests Charfauros’s normal job duties as a colonel and police commander sometimes include

acting as a departmental spokesperson, Appellee’s Br. at 21 (Dec. 27, 2021), Charfauros was not

detailed to a spokesperson role for this speech. Cf. Kennedy v. Bremerton Sch. Dist., 

 (2022) (finding plaintiff spoke in his capacity as a private citizen because he “did not

speak pursuant to government policy” and “was not seeking to convey a government-created

message”). Since Charfauros was explicitly prohibited from giving these media interviews, he

cannot have been acting pursuant to his official duty when he gave them. We thus agree

Charfauros spoke in his capacity as a private citizen, not as a public employee.

        2. Charfauros spoke on a matter of “public concern”

        A government employee also bears the burden of showing his speech activities addressed

issues of “public concern” rather than personal concern. Eng, 

 (citing Connick

v. Myers, 

 (1983)). The First Amendment does not protect an employee from

discipline if their speech addresses only issues of personal concern. See Connick, 461 U.S. at
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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146 (“[I]f [employee’s speech] cannot be fairly characterized as constituting speech on a matter

of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.”). Whether

an employee’s speech addressed issues of public concern is “purely a question of law, which we

review de novo.” Eng, 

.

        The meaning and extent of “public concern” is not susceptible to precise definition,

leading courts to apply a holistic, “generalized analysis of the nature of the speech” in question.

Desrochers v. City of San Bernardino, 

 (9th Cir. 2009). Courts examine the

“content, form, and context of a given statement, as revealed by the whole record” to determine

whether a government employee’s speech addresses a public concern. Connick, 

-

48. But “content is the greatest single factor in the Connick inquiry.” Berg v. Hunter, 

 (7th Cir. 1988); accord Mitchell v. Hillsborough County, 

 (11th

Cir. 2006). And “[w]here speech relates to a matter of inherent public concern, such as official

malfeasance or the neglect of duties,” the public concern inquiry is “confined to the subject

matter of the speech.” Decotiis v. Whittemore, 

 (1st Cir. 2011).

        Charfauros characterizes his media interviews as an effort to discuss misconduct,

including possible violations of the constitutional rights of citizens, by GPD officers during the

Agat incident. See Appellant’s Br. at 12-14 (Nov. 10, 2021). We agree with Charfauros that

some portions of his interviews addressed this subject, and we join with several other courts in

recognizing police misconduct as a quintessential matter of public concern. See, e.g., Gorman v.

Rensselaer County, 

 (2d Cir. 2018); Branton v. City of Dallas, 

(5th Cir. 2001); Martinez v. Hooper, 

 (7th Cir. 1998); Dahlia v. Rodriguez, 

 (9th Cir. 2013).
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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        In response, GPD asserts that Charfauros testified before the CSC that “his main

motivation for going on air was to clear his name and tell his side of the story.” Appellee’s Br. at

22. Perhaps—but an employee’s motivation for speaking is not dispositive as to whether the

speech itself implicates a public concern. See, e.g., Kristofek v. Village of Orland Hills, 

 (7th Cir. 2013) (“[M]otive alone does not conclusively determine whether a public

employee’s speech involves a matter of public concern.”); Belk v. City of Eldon, 

 (8th Cir. 2000) (holding that the presence of “unsavory personal motives” does not

“eviscerate” constitutional protection, “so long as the speech itself addresses matters of public

concern”); Clairmont v. Sound Mental Health, 

 (9th Cir. 2011) (concluding

that if speech meets the public concern test, it is protected “irrespective of the motivation behind

the speech in question”). Thus, an employee’s speech may still receive constitutional protection

even if the speaker were “motivated exclusively by his own self-interest.” Kristofek, 

.   Even assuming Charfauros spoke primarily to benefit his personal reputation in the

community, this “unsavory” motivation would not deny First Amendment protection to speech

on a matter of genuine public concern.

        But other portions of Charfauros’s interviews—those addressing community rumors

about his conduct in Agat—do not implicate a public concern.                 Broadly speaking, speech

addresses a public concern when it discusses “‘issues about which information is needed or

appropriate to enable the members of society’ to make informed decisions about the operation of

their government.” McKinley v. City of Eloy, 

 (9th Cir. 1983) (quoting

Thornhill v. Alabama, 

 (1940)). Speech does not address a public concern if it

has “no relevance to the public’s evaluation of the performance of governmental agencies.” 

Speech does not address a public concern just because it interests the public—the speech must
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

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also meaningfully contribute to public discourse regarding government operations. See Morgan

v. Ford, 

 (11th Cir. 1993) (per curiam).

        The portions of Charfauros’s speech intended to rebut community rumors about himself

offered “no relevance to the public’s evaluation” of GPD as an agency. Cf. McKinley, 

. These topics may have had personal salience to Charfauros, but they are not useful to

the public in assessing police performance. And while Charfauros suggests these topics were

inherently a matter of public concern because they were discussed “all over social media,”

Appellant’s Br. at 9, the public concern requirement is not satisfied merely by assessing the

public’s level of interest in a topic. See Morgan, 

. Instead, communication that is

“essentially self-interested, with no public import,” like Charfauros’s rebuttal of community

rumors, does not implicate a public concern. Roe v. City & County of San Francisco, 

 (9th Cir. 1997).

        Because Charfauros’s interviews address both a matter of public concern (police

misconduct) and a matter of private concern (community rumors), his media interviews can be

described as “mixed speech.” See, e.g., Farhat v. Jopke, 

 (6th Cir. 2004);

Stotter v. Univ. of Tex. at San Antonio, 

, 826 (5th Cir. 2007) (“[E]ven a mere

scintilla of speech regarding a matter of public concern is sufficient to treat the entire

communication as mixed speech.”). Mixed speech satisfies the public concern requirement

where the government employee “was not speaking exclusively or predominantly in pursuit of

her own interests.” Schilcher v. Univ. of Ark., 

, 965 (8th Cir. 2004); see also Banks

v. Wolfe Cnty. Bd. of Educ., 

 (6th Cir. 2003) (“[T]he entirety of the employee’s

speech does not have to address matters of public concern, so long as some portion of the speech

touches on a matter of public concern.”). This standard is met here. Charfauros’s media
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion             Page 17 of 24


interviews devoted significant time and effort to police misconduct, which is indisputably a

legitimate issue of public concern. While the interviews also addressed private concerns, we

cannot say these private concerns were “exclusively or predominantly” the subject of his speech.

Charfauros’s speech, though “mixed” in nature, sufficiently discussed a “public concern” to

allow the analysis to continue.

        3. GPD’s interests outweigh Charfauros’s interests in speaking

        Because Charfauros spoke in his private capacity on a matter of public concern, we must

balance the interests of Charfauros, as a citizen, with those of GPD, as Charfauros’s employer.

See Pickering, 

 (explaining need for balancing of these respective interests).

“Resolution of the Pickering balance is a question of law dependent on underlying factual

findings.” Germann v. City of Kansas City, 

 (8th Cir. 1985); see also Breuer v.

Hart, 

 (7th Cir. 1990). The government bears the burden of demonstrating

that this weighing is in its favor. See Hernandez v. City of Phoenix, 

 (9th Cir.

2022); Moser v. Las Vegas Metro. Police Dep’t, 

, 906 (9th Cir. 2021). Courts have

“applied a sliding scale in which the ‘state’s burden in justifying a particular discharge [or

adverse employment action] varies depending upon the nature of the employee’s expression.’”

Moser, 984 F.3d at 906 (alteration in original) (quoting Connick, 

). For this

balancing, Charfauros’s interests include his “interests in communicating, and the interests of the

community in receiving, information ‘on matters of public importance,’” while GPD’s interests

include “preventing unnecessary disruptions and inefficiencies in carrying out its public service

mission.” O’Connor v. Steeves, 

 (1st Cir. 1993) (quoting Pickering, 

).
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion                        Page 18 of 24


        In Connick v. Myers, the U.S. Supreme Court expanded on the government employer’s

interest in “effective and efficient fulfillment of its responsibilities to the public.” 

. The Connick court suggested deference to the government’s employment decisions may be

warranted, reasoning:

        “[T]he Government, as an employer, must have wide discretion and control over
        the management of its personnel and internal affairs. This includes the
        prerogative to remove employees whose conduct hinders efficient operation and
        to do so with dispatch. Prolonged retention of a disruptive or otherwise
        unsatisfactory employee can adversely affect discipline and morale in the work
        place, foster disharmony, and ultimately impair the efficiency of an office or
        agency.”

 (quoting Arnett v. Kennedy, 

 (1974) (Powell, J., concurring)).

Thus, “[w]hen close working relationships are essential to fulfilling public responsibilities, a

wide degree of deference to the employer’s judgment [in imposing employment sanctions] is

appropriate.” 

; see also Garcetti, 

 (noting “the emphasis of our

precedents on affording government employers sufficient discretion to manage their

operations”).

        The CSC found several facts weighing in favor of GPD for Pickering balancing,

including GPD’s interest in maintaining a “fair and unbiased investigation” into the Agat

incident without external distractions; the inherent time limitation on the advisement against

speaking to the media;4 the “paramilitary” nature of GPD’s hierarchy of command and respect

for orders given by superior officers; and possible erosion of departmental cohesion if high

ranking officers could violate internal rules without consequence. RA, tab 24 (Subm. Certif. R.,


        4
           Charfauros was initially advised to refrain from communicating with the media until the end of the
investigation. And as GPD notes, under the then-operative version of 4 GCA § 4406, GPD was limited to 60 days to
complete its investigation and take action, if warranted. See Appellee’s Br. at 23-24. Because the investigation
could last no more than 60 days, the advisement against speaking to the media was also limited by law to no more
than 60 days.
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion            Page 19 of 24


July 29, 2020), CSC Dec. & Order at 7 (May 9, 2019). We find no indication that these findings

are “irrational,” “otherwise not in accordance with law, or unsupported by substantial evidence.”

Fagan, 

 ¶ 13. The CSC determined that these findings each weigh in GPD’s

favor, and that GPD has a significant, and reasonable, interest in restricting public comments on

pending investigations. The Superior Court found that Charfauros’s interest in speaking did not

outweigh GPD’s interest to conduct an administrative investigation. RA, tab 36 at 8 (Dec. &

Order, July 6, 2021). This is a question of law we review de novo. Mesngon, 

 ¶ 5.

        Charfauros argues there was no testimony before the CSC showing his media interviews

affected GPD’s operations. Appellant’s Br. at 14-15. But for purposes of Pickering balancing,

the government employer “need show only a ‘likely interference’ with its operations, and ‘not an

actual disruption.’” Lewis v. Cowen, 

 (2d Cir. 1999) (quoting Jeffries v.

Harleston, 

 (2d Cir. 1995)). Thus, a government employer is not required “to allow

events to unfold to the extent that the disruption of the office and the destruction of working

relationships is manifest before taking action.” Connick, 

.

        Charfauros’s media interviews were likely to disrupt GPD operations given the context in

which he gave those interviews. It is significant, for Pickering balancing, that Charfauros not

only spoke publicly about a confidential matter, but also violated a direct advisement from the

Chief of Police. This can be fairly characterized as insubordination, a valid consideration in

assessing the interests of the government employer. See Barnard v. Jackson County, 

 (8th Cir. 1995) (“Employee acts of insubordination may tip the balancing process in

favor of the employer’s interests in the efficient promotion of its services.”); see also Elrod v.

Burns, 

 (1976) (“[E]mployees may always be discharged for good cause, such

as insubordination or poor job performance, when those bases in fact exist.”).
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion               Page 20 of 24


        It is also significant that Charfauros was not merely a “rank and file” police officer, but

the highest ranked classified uniformed officer in GPD.                 “[E]mployees who hold high-

level positions are ‘unlikely’ to prevail under the Pickering balancing test when they have

engaged in speech that is critical of their employer. In ‘most cases’ of this type, the likelihood of

disruption will outweigh the employees’ right to speak.” McCullough v. Wyandanch Union Free

Sch. Dist., 

, 279 (2d Cir. 1999) (quoting McEvoy v. Spencer, 

 (2d

Cir. 1997)).

        Charfauros’s testimony indicates his duties as a colonel include being “involved in highly

technical police administrative duties and investigations. . . . Stuff that’s confidential and is also

upper management.” RA, tab 29 (Subm. Certif. R., Oct. 8, 2020), Tr. at 57 (Adverse Action

Hr’g, Mar. 19, 2019). Given Charfauros’s management-level position within GPD and direct

subordinate relationship to Chief Cruz, it is reasonable to infer Charfauros’s act of

insubordination would have interfered with his future work relationship with Chief Cruz. Cf.

Simard v. Bd. of Educ., 

 (2d Cir. 1973) (concluding that “no evidence on the

record is needed to prove th[e] truism” that insubordination can affect working relationships

(internal quotation marks omitted)). It is also reasonable to infer Charfauros’s explicit violation

of a direct advisement from the Chief of Police could set a problematic precedent for other,

lower-ranked officers confronted with an advisement or order they may not agree with. See

Domiano v. Village of River Grove, 

 (7th Cir. 1990) (noting discharged fire

chief failed to rebut “the reasonable inference that a fire chief’s refusal to follow an ordinance

regulating the fire department would arouse an insurrectionary and divisive spirit among

department members”).
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion              Page 21 of 24


        Charfauros does have legitimate interest in calling the public’s attention to possible

police misconduct. In the interviews, he claimed that the officers conducting the search in Agat

lacked probable cause and had not received permission from the homeowners to search their

property. RA, tab 24 (Subm. Certif. R., July 29, 2020), Mgmt.’s Ex. M136 at 13:30-19:45 (CD –

Media Audio & Video). He also defended his behavior at the scene, saying that his actions were

intended to protect the constitutional rights of the local citizens. 

. These are

matters of inherent public concern.

        Nevertheless, in weighing the parties’ interests, the context in which the dispute arose is

significant. Connick, 

. Charfauros himself explained that he primarily intended

to clear his name and tell his side of the story. Appellee’s Br. at 22. The nature of this speech,

therefore, being motivated by self-interest and personal grievance, somewhat lessens GPD’s

burden in justifying its ultimate discharge of Charfauros. See Hicks v. City of Watonga, 

 (10th Cir. 1991).

        Given Charfauros’s high-level role in GPD and his subordination only to Chief Cruz, we

conclude Chief Cruz and Charfauros had the “kind of close working relationship[] for which it

can be persuasively claimed that personal loyalty and confidence are necessary to their proper

functioning.” Pickering, 

. “High-level officials must be permitted to accomplish

their organizational objectives through key deputies who are loyal, cooperative, willing to carry

out their superiors’ policies, and perceived by the public as sharing their superiors’ aims . . . .”

Hall v. Ford, 

 (D.C. Cir. 1988). Furthermore, Charfauros was not permanently

prohibited from speaking but limited only for the duration of GPD’s internal investigation. As

such, even considering the legitimate interests Charfauros had in speaking, we find that GPD has
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion            Page 22 of 24


demonstrated that the Pickering balancing test ultimately weighs in its favor. Thus, the First

Amendment did not prohibit GPD from terminating Charfauros’s employment.

B. We Will Not Direct the Civil Service Commission to Impose a Lesser Sanction

        Charfauros also asks this court to find the sanction of termination was “much more harsh

than the violation” for which it was imposed; he thus asks the court to remand the matter to the

CSC with the direction to impose an “alternative sanction.” Appellant’s Br. at 20-21. We need

not decide whether the sanction was “harsh” because even if it were so, that is no basis for us to

impose upon the CSC’s decision-making process.

        The judiciary’s role in reviewing the CSC is limited to determining whether “the agency

decision is not in accordance with law or not supported by substantial evidence.” Port Transp.,

 ¶ 5 (quoting 5 GCA § 9240 (2005)). Neither circumstance is present here. First,

under the Department of Administration’s Personnel Rules and Regulations, an agency may

impose the sanction of termination upon a finding of insubordination, even if it is the employee’s

first offense. See DOA Pers. R. & Regs. 11.402 (Conduct B). Thus, GPD was within its power

to impose the sanction, and the CSC did not make an error of law in upholding GPD’s decision.

Whether or not termination was a subjectively “harsh” sanction under the circumstances, GPD

was not precluded by law from imposing it.

        Likewise, the factual findings of the CSC were supported by substantial evidence.

Despite the fact that when the CSC hears an adverse action appeal, it must make its findings by

“clear and convincing” evidence, 4 GCA § 4407(a) (2005), our review is merely for “substantial

evidence,” see, e.g., Chaco, 

 ¶ 15. Under this comparatively deferential standard,

the CSC’s decision must stand if the evidence is such that “a reasonable mind might accept [it]

as adequate to support a conclusion.” 

 (quoting Int’l Bhd. of Elec. Workers, 

).
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion               Page 23 of 24


        Charfauros appears to directly contest only one factual finding: that he “knew that the

directive he received was an order from Chief Cruz.” RA, tab 24 (Subm. Certif. R., July 29,

2020), CSC Dec. & Order at 5 (May 9, 2019). Charfauros argues the “language of the form is

advice, not an order.” Appellant’s Br. at 20. But this argument merely reargues a question of

fact already found by the CSC. The substantial evidence standard does not permit us to reweigh

the evidence or to substitute our judgment on a question of fact. Castro, 

. Our

role is instead limited to confirming there was substantial evidence to support the finding the

CSC made. Here, such evidence was presented. Chief Cruz’s testimony established that within

GPD, advisements of this nature are considered orders, and that Charfauros would have

understood this given the structure of the GPD chain of command. See RA, tab 29 (Subm.

Certif. R., Oct. 8, 2020), Tr. at 42-43 (Adverse Action Hr’g, Mar. 19, 2019). Charfauros himself

testified he knew administrative investigations were confidential, 

, and admitted he

could not do an interview without clearance from Chief Cruz, 

. This testimony, while

not overwhelming, is at least substantial evidence showing Chief Cruz’s advisement was an

order and Charfauros knew this, rendering his decision to conduct media interviews an act of

insubordination. The CSC did not err in so finding.

        Because the CSC made no legal error upholding the sanction of termination and did not

lack substantial evidence for the findings supporting its decision, we have no basis to require the

CSC to impose a different sanction. Courts are not empowered to “sit as super personnel

departments, assessing the merits—or even the rationality—of employers’ nondiscriminatory

business decisions.” Mesnick v. Gen. Elec. Co., 

 (1st Cir. 1991). Thus,

“ordinary dismissals from government service which violate no fixed tenure or applicable statute

or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to
Charfauros v. Civ. Serv. Comm’n (Guam Police Dep’t), 

, Opinion        Page 24 of 24


be mistaken or unreasonable.” Connick, 

. We will not remand for an alternative

sanction.

                                          V. CONCLUSION

        Charfauros’s termination did not violate his First Amendment rights.        Although

Charfauros spoke on a matter of public concern and in his private capacity, his interests in

speaking did not outweigh GPD’s interests under Pickering balancing. We also find no basis to

remand to the Civil Service Commission to impose a different disciplinary sanction.        We

therefore AFFIRM the Superior Court.




                    /s/                                                     /s/
            ROBERT J. TORRES                                     KATHERINE A. MARAMAN
             Associate Justice                                       Associate Justice



                                                 /s/
                                      F. PHILIP CARBULLIDO
                                            Chief Justice