Taulung v Kosrae [1998] FMSC 9; 8 FSM Intrm. 270 (App. 1998) (12 March 1998)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Taulung v Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270 (App. 1998)

HASHIME TAULUNG,
Appellant,

vs.

STATE OF KOSRAE,
Appellee.

APPEAL CASE NO. K1-1988

OPINION

Argued: December 14, 1988
Appeal Dismissed: December 14, 1988
Opinion Issued: March 12, 1998

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Jose S. Dela Cruz, Temporary Justice, FSM Supreme Court*

*Associate Judge, Commonwealth Trial Court, Saipan, CNMI

APPEARANCES:

For the Appellant:
Canney Palsis, trial counselor
Delson Ehmes, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Appellee:
Richard M. Kaminski, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box AG
Lelu, Kosrae FM 96944

* * * *

HEADNOTES

Appeal and Certiorari - Standard of Review; Civil Procedure - Summary Judgment
An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). Thus, the review is de novo. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 272 (App. 1998).

Civil Procedure - Summary Judgment
A court must deny a summary judgment motion unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the party against whom judgment was entered. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 272 (App. 1998).

Public Officers and Employees - Kosrae
The public service system applies to all state employees except for listed exemptions, which include positions of a temporary nature. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 273 (App. 1998).

Public Officers and Employees - Kosrae
A regular or permanent state employee is an employee who has been appointed to a position in the public service in accordance with the statute and who has successfully completed an initial probation period of not less than six months nor more than one year. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 273 (App. 1998).

Public Officers and Employees - Kosrae
A state employee appointed to successive, discrete six-month temporary positions with terminations at the end of some of them, is not a permanent state employee or a member of the public service system. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 273-74 (App. 1998).

Public Officers and Employees - Kosrae
A management official may not suspend any employee without pay for a period of three working days or more, unless the management official gives the employee a written notice setting forth the specific reasons upon which the suspension is based and files a copy of the statement with the director. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 274 (App. 1998).

Constitutional Law - Due Process; Public Officers and Employees - Kosrae
Government employment that is property with the meaning of the Due Process Clause cannot be taken without due process. Only if an employment arrangement has an entitlement based upon governmental assurances of continual employment or dismissal for only specified reasons does the FSM Constitution require procedural due process as a condition to its termination. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 274 (App. 1998).

Constitutional Law - Due Process
The Kosrae State Charter's due process clause, in effect in 1982, did not extend any greater protection than the FSM Constitution's. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 275 (App. 1998).

Public Officers and Employees - Kosrae
A limited-term employee does not have an assurance of continual employment in the sense of continuing indefinitely in time without interruption, but he is assured of employment until the end of his limited term, and of dismissal for only specified reasons, namely, when the good of the service will be served thereby. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 275 (App. 1998).

Constitutional Law - Due Process
The essential features of procedural due process, or fairness, require notice and an opportunity to be heard. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 275 (App. 1998).

Constitutional Law - Due Process; Public Officers and Employees - Kosrae
The procedural due process requirements of notice and an opportunity to be heard are met when Kosrae provides a limited-term employee being suspended for two weeks the notice mandated by 61 TTC 10(15)(a) and an opportunity to be heard by the official suspending him. Taulung v. Kosrae, [1998] FMSC 9; 8 FSM Intrm. 270, 275 (App. 1998).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The appellant-plaintiff (hereinafter Taulung) brought his complaint to contest a two-week suspension from his employment with the appellee-defendant (hereinafter Kosrae). Taulung requested damages and reinstatement. Kosrae was granted summary judgment in the Kosrae State Court, Taulung v. Kosrae, [1988] FMKSC 5; 3 FSM Intrm. 277 (Kos. S. Ct. Tr. 1988). Taulung appealed that judgment to this Court. At the conclusion of oral argument on December 14, 1988, we affirmed the decision of the trial court and ordered that the appeal be dismissed. This opinion explains our reasoning.

The entire three-member panel signed the order affirming the trial court and dismissing the appeal. Because of the long delay before this opinion's preparation, only two of the panel are still eligible to serve, and this opinion is signed by them.

Issues Presented

Taulung's complaint, filed October 6, 1986, alleged that the two-week suspension of his employment with Kosrae imposed May 14, 1982 was unlawful. Two issues were presented: 1) whether Taulung was a permanent employee since he was employed for more than one year, which is the maximum probationary period, or was a limited-term employee as reflected in his Personnel Action Forms, and 2) whether Taulung's due process rights were violated since his suspension notification gave him no hearing or opportunity to appeal. We hold that Taulung was a limited-term employee and that his suspension was imposed in a manner consistent with procedural due process. We affirm on grounds similar to those reached by the trial court.

Standard of Review

We apply "the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). . . . Thus, [the] reis de node novo." Tafunsak v. Kosrae, [1995] FMSC 51; 7 FSM Intrm. 344, 347 (App. 1995). "A court must deny a motion for summary judgment unless it finds there isenuinue as to any material fact and the moving party irty is ents entitled to judgment as a matter of law." Adams v. Etscheit, [1994] FMSC 52; 6 FSM Intrm. 580, 582 (App. 1994). The facts must be viewed in the light most favorable to the party against whom judgment was entered. Id. This standard was most recently repeated in Iriarte v. Etscheit, [1998] FMSC 3; 8 FSM Intrm. 231, 236 (App. 1998).

Facts

Taulung was initially hired on September 15, 1980 as a limited-term, six-month employee. On March 15, 1981 this appointment was extended for six months. The limited-term appointment was terminated, effective September 15, 1981. Taulung was reappointed as a limited-term, six-month employee effective September 16, 1981. This appointment was extended, effective March 16, 1982, for an additional six months.

On May 14, 1982 Taulung's management official gave him a notice of suspension for May 17-31. A copy of the letter was given to the Director of Personnel. Taulung was to resume his work June 1, 1982. As ground for the suspension, the official stated, "there is evidence that you have been doing things inconsistent with our leave policy not for once but more." [Translated from Kosraean by the State Justice Ombudsman.] In the letter the official stated that Taulung could see him if he had any questions. (The record does not reflect whether Taulung discussed the suspension with this official.)

These facts appear from the affidavits filed in support of the Motion for Summary Judgment. The Defendant's [Kosrae's] Answers to Interrogatories list numerous absences from work without leave. Taulung filed one affidavit in opposition. In it his counsel merely affirmed that there were genuine issues of material fact for trial.

The trial court granted the Motion for Summary Judgment, concluding that that although Taulung's employment was property requiring due process protection, there had been no violation since the notice given satisfied such considerations.

Reasoning

Taulung's main contention is that he was a permanent employee. Such a position would, by statute, give Taulung the right to appeal the suspension, 61 TTC 10(15)(c), and further procedural safeguards pursuant to the Public Service System Regulation 12.

Taulung refers to the Public Service System Act, Title 61 of the Trust Territory Code, in support his contention. Section 9(1) of Title 61 states that "[t]he . . lic se system stem shall apll apply to all employees" and then lists a number of exemptions. Subsection (1)(c) exempts "[p]ositions of a temporary nature neededhe puinterest" not to exceed 90 days except for a majo major disr disaster when 180 days is permitted. Subsection (1)(o) exempts "[p]ositions of temporary nature which involve special projects having specific completion dates which shall not exceed one year." Taulung says that since he was employed for more than one year, he is not within either exemption and thus the public service system applies to him.

Taulung, relying again on his employment for more than a year, cites of Title 61, section 3, subsections (12) and (13) to support his claim to be a permanent employee:

(12) "Regular or permanent employee" means an employee who has been appointed to a position in the public service in accordance with this chapter and who has successfully completed his initial probation period.

(13) "Initial probation period" means a period of not less than six months nor more than one year from the beginning of an employee's service in the public service.

Taulung next refers to subsection 10(6)(a): "Every member of the public service shall be entitled to hold his position during good behavior, subject to suspension, demotion, or dismissal only as provided in this act and in the regulations of the department of personnel."

There are two weaknesses in Taulung's argument. First, his contention that since he worked more than a year, which is more than the maximum probationary period, he became a permanent employee is defective since it conflicts with the personnel actions which governed his employment. These personnel actions made his term of employment specific.

Second, his reading of Title 61 does not lead to the conclusion he asserts.

1. Under 61 TTC 9(1)(o) his position consisted of four discrete terms of six months with a termination after the first two (not a position for a term exceeding one year as Taulung suggests). Subsection 9(1)(o) is thus the applicable exemption, that is, it was a position of a temporary nature not exceeding one year.

2. Taulung, citing 61 TTC 3(l2) and (13), also contends that he became a permanent employee because he worked for more than one year and this exceeds the maximum probationary period. These subsections, however, concern only those "appointed to a position in the public service." Taulung was not so appointed.

In any event, probation is not the only prerequisite to permanent employment. 61 TTC 10(8)(a) provides in part that "prior to entering into regular employment, all employees shall be appointed in accordance with law and shall have satisfied all the requirements for employment prescribed by this act or by the regulations promulgated thereunder."

Manifestly, Taulung was never so appointed.

3. Taulung's reliance on 61 TTC 10(6)(a) is misplaced, since it applies only to "[e]very member of the public service."

We next consider Taulung's due process argument.

The suspension of Taulung was effected pursuant to 61 TTC 10(15)(a), which reads:

A management official may, for disciplinary purposes, suspend any employee without pay for such length of time as he considers appropriate but not exceeding thirty days at any one time . . . single suspension for a pera period of three working days or more, whether consecutively or not, shall take effect unless the management official gives the empla wrinoticting the specific reasons upon whon which tich the suhe suspensspension is based and files a copy of the statement with the director.

The parties both rely on the language of Suldan v. FSM, [1983] FMSC 14; 1 FSM Intrm. 339 (Pon. 1983). That case involved a permanent government employee's termination proceeding. Chief Justice King's decision contains the following:

Government employment that is "property" with the meaning of the Due Process Clause cannot be taken without due process. To be property protected under the Constitution, the employment right must be supported by more than merely the employee's own personal hope. There must be a claim of entitlement based upon governmental assurances of continual employment or dismissal for only specified reasons. These assurances may come from various sources, such as statute, formal contract, or actions of a supervisory person with authority to establish terms of employment. Only if an employment arrangement meets this property test does the Federated States of Micronesia Constitution require procedural due process as a condition to its termination.

Id. at 351-52.

Taulung represents that "governmental assurances of continual employment" existed since he was a permanent employee protected by 61 TTC 10(15)(c) and Regulation 12 of the Public Service System. We have not accepted Taulung's contention that he is a permanent employee.

Kosrae, on the other hand, contends that since Taulung was not a permanent public service employee, the notice he received pursuant to the statute adequately protected his interest.

The Kosrae State Charter, in effect in 1982, contained a due process clause in Article I, section 1 identical to that found in the FSM Constitution, Article IV, section 3. We have no reason to believe that the Kosrae State Charter extended any greater protection than the FSM Constitution.

Instead of termination of a permanent employee as in Suldan, this case involves a two-week suspension of a limited-term employee. Although Taulung did not have an assurance of continual employment in the sense of "continuing indefinitely in time without interruption," Webster's Ninth New Collegiate Dictionary 284 (1986), he was assured of employment until September 15, 1982. And he was assured of "dismissal for only specified reasons," namely, "when . . . the good of theicervill bill be served thereby." 61 TTC 10(15)(b)(i).

We therefore conclude that Taulung's two-week suspension duriat tequired a fair procedure to protect the interest he had: fair in the relation to t to the inhe interest involved. The essential features of procedural due process, or fairness, require notice and an opportunity to be heard. Taulung received both. Kosrae provided the notice mandated by 61 TTC 10(15)(a). His opportunity to be heard was contained in the notice of suspension in which the official said, "As always, if you have any questions, please come and see me." The suspension was thus a product of a fair procedure - a procedure appropriate to the minor sanction of a limited-term employee.

Taulung also claimed damages for his suspension alleging a breach of his contract of employment. He rightly states that the terms of the contract are Title 61 and the Regulations of the Public Service System. We have determined that he is not a permanent employee within the Act, and so this cause of action was also properly dismissed.