Billimon v Refit [2008] FMSC 68; 16 FSM Intrm. 209 (Chk. 2008) (8 December 2008)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2006-1009

WILLIAM BILLIMON
Plaintiff,

vs.

HERMES REFIT, as Director of Agriculture Department, and STATE OF CHUUK,
Defendants.

__________________________________________

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dennis K. Yamase
Associate Justice

Trial: June 4-5, 2007
Decided: December 8, 2008

APPEARANCES:

For the Plaintiff: Frank Casiano
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

Tino Donre, Esq. (supervising attorney)
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant: Julius J. Sapelalut, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Public Officers and Employees  Chuuk
When a plaintiff sues the State of Chuuk (and its officers) for wrongful termination, the proper issue is whether the plaintiff has shown a legal entitlement to permanent employment under the Truk State Public Service System Act. But when the proper statutory procedures were not followed to hire the plaintiff as a "permanent" employee, the plaintiff has not shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Billimon v. Refit, [2008] FMSC 68; 16 FSM Intrm. 209, 211 (Chk. 2008).

Public Officers and Employees  Chuuk
The purpose of a personnel action form is to implement government policies and regulations as well as contractual arrangements. The personnel action form reflects and implements rights derived from other sources. It does not independently establish rights. Billimon v. Refit, [2008] FMSC 68; 16 FSM Intrm. 209, 212 (Chk. 2008).

Public Officers and Employees  Chuuk
Government employment contracts contain the terms of employment, regardless of what is contained in the corresponding personnel action form. In other words, the contract speaks for itself, and the personnel action form cannot be used to modify the terms of the contract. Billimon v. Refit, [2008] FMSC 68; 16 FSM Intrm. 209, 212 (Chk. 2008).

Public Officers and Employees  Chuuk
A personnel action form cannot modify the terms of a person's employment to make him a permanent employee if his position was an exempt or contract employee and he had not gone through the proper statutory procedures to become a permanent employee under the Truk State Public Service System Act. Billimon v. Refit, [2008] FMSC 68; 16 FSM Intrm. 209, 212 (Chk. 2008).

Public Officers and Employees  Chuuk
A state employee who has been hired to fill a "permanent" position, must first successfully serve a probationary period. Billimon v. Refit, [2008] FMSC 68; 16 FSM Intrm. 209, 212 (Chk. 2008).

Public Officers and Employees  Chuuk
Any "permanent" designation in a new hire's first personnel action form is suspect because it, if the person were hired for a position covered by the Truk Public Service System, should designate his status as probationary, with a later personnel action form changing his status from probationary to permanent. Billimon v. Refit, [2008] FMSC 68; 16 FSM Intrm. 209, 212 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This case was tried on June 4 and 5, 2007. Plaintiff William Billimon, Augustin Tadashy, Mark Mwareluk, Fiten Hain, and Hermes Refit were called as witnesses. Based upon their testimony and the evidence admitted, the court makes the following

FINDINGS OF FACT.

Effective August 30, 2004, Billimon was hired as the Coordinator of the Urban and Community Forestry (U&CF) Program, a U.S. federal program, administered through the Chuuk Department of Agriculture. Billimon's first personnel action form ("PAF") (effective date August 30, 2004) appointed him as U&CF Coordinator. Ex.1. No pay schedule, step, or grade was listed on the PAF; only his salary amount. This amount does not conform to any pay scale, step, or grade in the Public Service System. The PAF's entries were generally typewritten, but in the box marked "status" the word "permanent" was heavily hand printed. On Billimon's second PAF (effective date October 1, 2004), which only changed the account from which he was paid, Billimon's status is typewritten as "exempt." Ex. 2. Billimon's last PAF (effective date November 14, 2005), which was the termination action, had a typewritten entry of his status as "contract" with a line drawn through it and the word "permanent" handwritten in. Ex. 3. The first two PAF's were, as was general for all Agriculture Department PAF's, prepared by the Director of Agriculture's secretary for the Director's signature. The Director's secretary at that time was Billimon's wife.

Billimon was paid $816.29 biweekly ($21,240 per annum). The U&CF program was funded by the United States government. Coordinator Billimon was responsible for submitting a proposal to the U.S. forestry office in Hawaii, which, if approved, would fund the program (including Billimon's salary) for two years. He knew that if no proposal were submitted, or if the submitted proposal was rejected, there would be no funding and thus no Coordinator's job.

The U&CF program was a U.S. Compact program, which Director of Agriculture Hermes Refit sought to, and eventually succeeded in implementing, in Chuuk. Since it was a program that could be terminated by the U.S. government at any time, the Director intended that the Coordinator's position be a contract position, not a public service system position. The Coordinator's position was not classified under the Truk State Public Service System. Nor did the Coordinator's salary correspond to any schedule, grade, or step level in the Public Service System pay scales. (It was higher than a permanent employee's.)

Billimon was terminated on the grounds that the program had not been carried out properly; that certain plans had not been done; and that program funds, supplies, and employees were misused, as set out in a November 8, 2005 letter to Billimon. Ex.4. Evidence at trial proved that Billimon had diverted supplies purchased with U&CF program funds to his own personal benefit and that he used some Agriculture employees to work on improving his own home. The termination was effective November 14, 2008. Ex. 3; Ex. 5. A second November 8, 2005 letter, Ex. 5, stated that Billimon could appeal his termination. Billimon asserts that he never received this second letter, and that, if he had, he would have appealed the termination. Instead, on advice of counsel, Billimon went to his worksite, but found that he was locked out of his office. Billimon applied for, and was paid, the annual leave he had accrued up until November 14, 2005. Billimon took no further administrative action and this suit eventually followed.

Billimon contends that he was a permanent employee in the State Public Service System and was terminated without the due process of law to which a permanent employee was entitled. Billimon does not contend that his termination would have been improper if he were not a permanent employee, and the defendants assert, without objection by Billimon, that if Billimon were a contract employee, he was not entitled to a pre-termination hearing that a permanent employee would be. Billimon bases his entire claim to damages on his assertion that he was a permanent employee, and did not contend or introduce evidence that he would be entitled to damages if he were a contract employee, and not a permanent employee.

Based on these findings the court makes the following

CONCLUSIONS OF LAW.

When a plaintiff sues the State of Chuuk (and its officers) for wrongful termination, the proper issue is whether the plaintiff has shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Robert v. Simina, [2006] FMSC 55; 14 FSM Intrm. 438, 442 (Chk. 2006); Hauk v. Terravecchia, [1998] FMSC 21; 8 FSM Intrm. 394, 396 (Chk. 1998). But when the proper statutory procedures were not followed to hire the plaintiff as a "permanent" employee, the plaintiff has not shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Robert, 14 FSM Intrm. at 442.

The only evidence that Billimon was hired as a permanent employee under the Truk State Public Service System Act was the Personnel Action Form admitted as Exhibit 1, which states that his employment status is "permanent." But the purpose of a personnel action form "is to implement government policies and regulations as well as contractual arrangements. The PAF reflects and implements rights derived from other sources. It does not independently establish rights." Towai v. Palau, 1 Pal. Intrm. 658, 662-63 (App. 1989) (government employee's contract prevails over differing terms in the personnel action form and is not to be read as additional terms added to employee's contract). "[G]overnment employment contracts contain the terms of employment, regardless of what is contained in the corresponding PAF. In other words, the contract speaks for itself, and the PAF cannot be used to modify the terms of the contract." Kingon v. Palau, 2 Pal. Intrm. 72, 74-75 (App. 1990).[1]

Thus, the Personnel Action Form admitted as Exhibit 1 cannot modify the terms of Billimon's employment to make him a permanent employee if his position was an exempt or contract employee and he had not gone through the proper statutory procedures to become a permanent employee under the Truk State Public Service System Act. See Robert, 14 FSM Intrm. at 442. Furthermore, a state employee who has been hired to fill a "permanent" position, must first successfully serve a probationary period. Truk S.L. No. 3-43, § 14(1). Thus the anent" desi designation in Billimon's first PAF is further suspect because it, if Billimon were hired for a position covered by ruk Public Service System, should have designated his status as probationary, with a later ater PAF changing his status from probationary to permanent.

The court therefore concludes that the Agriculture Department intended to, and did hire, Billimon as a contract employee and not as a permanent state public service system employee.

CONCLUSION

Accordingly, plaintiff William Billimon was not a permanent State Public Service System employee, and shall recover nothing based upon his claim that he was a permanent public service system employee let go without the pre-termination hearing due a permanent employee. No evidence to support any other theory of recovery was introduced. The clerk shall enter herewith judgment in the defendants' favor.

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^[1]These two Palau Supreme Court appellate division cases are instructive and persuasive because the Republic of Palau inherited from the Trust Territory the same personnel action forms that Chuuk did, and because the first FSM Supreme Court Chief Justice was a member of the appellate panel that decided Towai, the first case.