Simina v Kimeuo [2009] FMSC 51; 16 FSM Intrm. 616 (18 November 2009)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C5-2008

WESLEY SIMINA, in his official capacity as Governor of Chuuk, AUGUSTIN TAKASHY, in his official capacity as Acting Chief Division of Personnel, WINIPLAT BISALEN, in his capacity as Acting Director of Department of Administrative Services, and STATE OF CHUUK,
Appellants,

vs.

KIMUO KIMEUO,
Appellee.

OPINION

Argued: July 10, 2009
Decided: November 18, 2009

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellants: Joses R. Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Appellee: Salomon Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review - Standard of Review - Civil Cases

Issues of law are reviewed de novo on appeal. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 619 (App. 2009).

Appellate Review - Standard of Review - Civil Cases

For an appellate court to find that a trial court's factual findings were in error is an abuse of discretion standard of review. An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. Such abuses must be unusual and exceptional; an appeals court will not merely substitute its judgment for that of the trial judge. In making this determination the appellate court must view the evidence in the light most favorable to the appellee. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 619-20 (App. 2009).

Appellate Review - Standard of Review - Civil Cases

A trial court's finding will only be set aside if there is no credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. If, upon viewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 620, 624 (App. 2009).

Appellate Review - Standard of Review - Civil Cases

A claim that a trial court's decision did not address all the issues raised is not a basis for remand as long as the trial judge made a finding of such essential facts as provide a basis for the decision. The test as to the adequacy of the findings is whether they are sufficiently comprehensive and pertinent to the issue to form a basis for the decision. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 620 (App. 2009).

Appellate Review - Standard of Review - Civil Cases

When a trial court's decision does not state that it reached any conclusion about a certain disputed fact, the appellate court may presume that it was not a basis for the trial court's decision. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 620 (App. 2009).

Public Officers and Employees – Chuuk

Since the State Public Service System applies to all state government employees unless the employee is exempt, when a state employee's position as a division chief was a lawful non-exempt position under the Executive Branch Organization Act, the proper issue for consideration regarding a wrongful termination matter is whether the plaintiff had a legal entitlement to permanent employment under the Public Service System Act. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 620-21 (App. 2009).

Public Officers and Employees – Chuuk

A position is either filled by a person identified on an eligibility list or a promotional list and the requirements for filling a position depend on the list. No requirement exists in the Chuuk Public Service System Act that an individual slated for promotion need to submit to an examination or that the position to which he or she is promoted be advertised. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 621, 623 (App. 2009).

Public Officers and Employees – Chuuk

Removal of a Public Service System employee is a disciplinary action or termination and the employee must be given at least five work days advance written notice before removal. The action taken must be for good and justifiable cause and must be appropriate to the infraction, if there was one. The employee must also be informed of his appeal rights. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 622, 623-24 (App. 2009).

Public Officers and Employees – Chuuk

Once an employee of the Public Service System reaches the age of sixty years, he must retire from the Public Service within thirty days. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 622 (App. 2009).

Public Officers and Employees – Chuuk

When the state employee was not given the required five business days' notice concerning removal/dismissal from permanent employment but was notified that effective immediately he was dismissed and replaced pursuant to an Executive Order and was not given notice of his appeal rights, this did not comply with the protections afforded a Public Service System classified employee and he was thus not afforded due process of law and was thus wrongfully terminated. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 622 (App. 2009).

Appellate Review - Standard of Review - Civil Cases

The trial court need not state why it did not consider an issue or facts, it need only make a finding of such essential facts as provide a basis for the decision. The findings must be sufficiently comprehensive and pertinent to the issue to form a basis for the decision and be pertinent to its conclusions of law. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 622 (App. 2009).

Appellate Review - Standard of Review - Civil Cases

The appellate court need not address again a duplicative argument that it addressed earlier in its opinion. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 622-23 (App. 2009).

Public Officers and Employees – Chuuk

A Public Service System classified employee has a legal entitlement to permanent employment under the Public Service System Act and should be afforded due process rights not available to an exempt political appointee. Termination of an exempt political appointee and non-exempt Public Service System employee are not handled the same way. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 623 (App. 2009).

Public Officers and Employees – Chuuk

Redress for a wrongfully-terminated state employee would include reinstatement and back pay, except when the former employee could not be reinstated due the Public Service System Act's mandatory retirement policy. But the former employee could be awarded back pay if he had mitigated his damages. Simina v. Kimeuo, [2009] FMSC 51; 16 FSM Intrm. 616, 624 (App. 2009).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On or about August 25, 2005, Kimeuo filed suit against the Defendants for wrongful termination of his employment. On or about June 11, 2008, the trial court held that Kimeuo was wrongfully terminated and was awarded back pay until his mandatory retirement date in the amount of $22,706.65. [Kimeuo v. Simina, [2008] FMSC 40; 15 FSM Intrm. 664 (Chk. 2008).]

Defendants are Wesley W. Simina, in his official capacity as Governor of Chuuk, Augustin Takashy, in his official capacity as Acting Director of Personnel, Winiplat Bisalen, in his official capacity as the Director of the Department of Administrative Services, and Chuuk State. The Defendants filed their notice of appeal on July 15, 2008. Oral argument was held on July 10, 2009 in Chuuk, at which time both sides participated. We affirm the trial court's decision. Our reasoning follows.

I. Issues on Appeal

1. Whether the trial court erred in declaring that Kimeuo's termination was wrongful?

2. Whether the trial court erred in not considering the evidence regarding the nonexistence of the Division of Special Programs?

3. Whether the trial court erred in not appreciating evidence presented that the Division of Special Services was not an official and lawful division of the Department of Education as provided by Chk. S.L. No. 190-07, as amended by 2-94-10 and 7-03-05 otherwise known as the Reorganization Act?

4. Whether the trial court erred in not declaring that appellee was occupying a position which was either unlawfully created or non-existent?

5. Whether the appellee has shown legal entitlement to the position of Chief of the Division of Special Programs, which was a non-existent or unlawfully created Division of the Department of Education?

6. Whether or not the appellee is entitled to compensatory damages of back pay?

7. Whether the trial court erred in arriving at the finding of facts and conclusions of law?

II. Factual Background

In 1968 Kimeuo was hired as a classroom teacher on his home island of Tolensom. In the following years he held various positions within the Chuuk Public Service System, including Teacher, Language Specialist, Curriculum Specialist, and Chief of Special Programs. He was employed by the Department of Education for approximately thirty-seven years.

In October 1997, Kimeuo was advised by the then acting Deputy Director of the Department of Education that there was a Division Chief vacancy. He was asked to submit a resume for the position. He was ultimately promoted to Chief of Special Programs for the Department of Education necessitating his move from Tol to Weno. Kimeuo's pay level was increased to $642.56 biweekly and he was provided with housing.

In October 2003, pursuant to an accounting change Kimeuo's title was changed to Chief of Special Services. His job responsibilities remained the same. On June 3, 2005, he was terminated without notice pursuant to the Governor's reorganization of the Department of Education in conformity with the Executive Branch Organization Act. Had he not been terminated, Kimeuo would have been obligated to retire on June 12, 2006, pursuant to the Chuuk Public Services System.

III. Standard of Review

Issues of law are reviewed de novo on appeal. George v. Nena, [2004] FMSC 9; 12 FSM Intrm. 310, 313 (App. 2004).

In addition, for an appellate court to find that a trial court's factual findings were in error is an abuse of discretion standard of review. An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. Such abuses must be unusual and exceptional; an appeals court will not merely substitute its judgment for that of the trial judge. Panuelo v. Amayo, [2004] FMSC 13; 12 FSM Intrm. 365, 372 (App. 2004). In making this determination the appellate court must view the evidence in the light most favorable to the appellee.

The trial court's finding will only be set aside if there is no credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. If, upon viewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Livaie v. Weilbacher, [2005] FMSC 19; 13 FSM Intrm. 139, 143 (App. 2005).

A claim that a trial court's decision did not address all the issues raised is not a basis for remand as long as the trial judge made a finding of such essential facts as provide a basis for the decision. The test as to the adequacy of the findings is whether they are sufficiently comprehensive and pertinent to the issue to form a basis for the decision. Nakamura v. Bank of Guam (II), [1994] FMSC 2; 6 FSM Intrm. 345, 349 (App. 1994). Where a trial court's decision does not state that it reached any conclusion about a certain disputed fact, the appellate court may presume that it was not a basis for the trial court's decision. Id. at 352.

IV. Discussion

The trial court held that Kimeuo was properly hired for the position of Chief of Special Programs pursuant to the Public Services System procedures. The trial court concluded that he was entitled to permanent employment under the Public Service System and thus was obligated to retire within thirty (30) days of his sixtieth birthday. The trial court found that Kimeuo's title was changed to Chief of Special Services pursuant to a personnel action on October 1, 2003. He was terminated on June 3, 2005, without notice and without cause when the Governor revamped the organization of the Education Department and abruptly supplanted the position of Chief of Special Services with that of Chief of Special Programs. The trial court held that Kimeuo was wrongfully terminated and entitled to back pay.

Issue (1) Whether the trial court erred in declaring that Kimeuo's termination was wrongful?

On appeal Defendants claim that Kimeuo was not wrongfully terminated because he did not hold a lawful position subject to Public Service System. Defendants also assert that if, arguendo, the Division Chief position was lawful then Kimeuo was not wrongfully terminated because he was not hired in accordance with the Public Service System and was not entitled to due process of the law.

This court must first determine whether Kimeuo's position was lawful. In doing so, the court looks to the organization of the Department of Education in relation to the Public Service System.

Pursuant to Section 5 of Chk. S.L. No. 190-07, the Department of Education is composed of the following four divisions: (1) Elementary School; (2) Secondary School; (3) Curriculum; and (4) Special Programs. Each of these divisions is headed by a division chief. The organization of the Department of Education was implemented pursuant to the Executive Branch Organization Act, Section 1 of Chk. S.L. No. 191-15, effective since September 17, 1990. The State Public Service System shall apply to all employees of the State Government unless the employee is exempt. Truk S.L. No. 3-43, § 8 (Public Service System Act). Division Chief of Special Programs is not identified as an exempted position pursuant to Section 8, Truk S.L. No. 3-43.

Review of the Executive Branch Organization Act, Section 1 of Chk. S.L. No. 191-15, effective since 1990, demonstrates that Special Programs is Division of the Department of Education. Division Chief positions for Elementary School, Secondary School, Curriculum, and Special Programs have existed and have been lawful since 1990.

Kimeuo had been a non-exempt employee of the Department of Education for thirty-seven years. In or about 1997, he was promoted to Chief of Special Programs for the Department of Education. In October 2003, pursuant to an accounting change Kimeuo's title was changed to Chief of Special Services but, his job responsibilities remained the same. Kimeuo's position as Division Chief was a lawful position pursuant to Executive Branch Organization Act, Section 1 of Chk. S.L. No. 191-15, which had been the law extant since 1990. Additionally, the position of Division Chief is not a position exempt from the Public Service System.

Having determined that Kimeuo's position was lawful, this court considers whether he was wrongfully terminated. The proper issue for consideration regarding wrongful termination matters is whether the plaintiff has a legal entitlement to permanent employment under the Public Service System Act. Robert v. Simina, [2006] FMSC 55; 14 FSM Intrm. 438, 442 (Chk. 2006), see also Hauk v. Terravecchia, [1998] FMSC 21; 8 FSM Intrm. 394, 396 (Chk. 1998). Defendants assert that Kimeuo did not have a legal entitlement to his permanent employment because he was not hired pursuant to the Public Service System Act.

Pursuant to Section 12 of Truk S.L. No. 3-43 (Public Service System Act), vacancies may be filled in two ways. A position is either filled by a person identified on an eligibility list or a promotional list. The requirements for filling a position depend on the list. While the creation of the eligibility list might require advertising and testing, a management official may fill a vacant position by promoting any regular employee without examination, if the employee meets the minimum class qualifications, and if the position is in the same series as the position held by the employee or is clearly an on upward progression in the same career-ladder of positions. Truk S.L. No. 3-43, § 12(2) (Public Se System Actm Act).

Pursuant to Public Service Regulations, all Public Service System positions shall be identified in the records of the State Personnel Office as either permanent or limited term, as is authorized by law. Chk. Pub. Serv. Sys. Reg. pt. III.B.1. Public Service System also maintains a promotional list, listing permanent employees of the Public Service System determined to be eligible for promotion. Id. pt. III.A.24.

Defendants stated that Kimeuo was not entitled to his position because the vacancy for Division Chief of Special Programs was not filled from a list of eligible persons who were recruited through advertisement and subjected to examination. The Defendants claimed that this was in violation of Section 12 of Truk S.L. No. 3-43 and as such, he was not entitled to employment protections afforded to State employees.

While subsection 1 of section 12 of Truk S.L. 3-43, requires appointment of an employee pursuant to an eligibility list, subsection 2 states that a management official may fill a vacant position by promotion without examination. By definition a promotional list is a listing of permanent employees of the Public Service System eligible for promotion and not an open list requiring examination. To fill a vacancy within the meaning of the law, there need only be a list and there is no requirement to advertise. The evidence shows that Kimeuo was sought out as eligible for promotion and his personnel action was a promotional reassignment. Therefore, examination was not required and he was entitled to employment protections afforded to State employees.

There was an accounting change that modified Kimeuo's title from Division Chief of Special Programs to Division Chief of Special Services. A Defendants' witness testified that the Division Chief of Special Services was not a classified position on the classification list kept by the Office of Personnel but, the witness also stated that the position could be verified pursuant to a personnel action. Based on Kimeuo's personnel action his position of Division Chief of Special Services was covered under the Public Service System according to the same witness. Additionally, the evidence demonstrates that the terms Programs and Services were used interchangeably.

Finally, Kimeuo was required to retire within thirty days of his sixtieth birthday pursuant to the Public Service System Act. All of the evidence supports the trial court's conclusion that Plaintiff Kimeuo held a position within the meaning of the Public Service System and he had entitlement of his position. To terminate Kimeuo the Defendants were required to do so pursuant to the Public Service System Act.

Removal of a Public Service System employee is a disciplinary action or termination. Chk. Pub. Serv. Sys. Reg. pt. III.E.1. An employee must be given at least five work days advance written notice prior to removal. Id. pt. III.E.10.a. The action taken shall be for good and justifiable cause; and shall be appropriate to the infraction, if there is one. Id. pt. III.E.10.d. The employee must also be informed of his appeal rights. Id. pt. III.E.10.e. Once an employee of the Public Service System reaches the age of sixty (60) years, he shall retire from the Public Service within thirty (30) days. Truk S.L. No. 3-43, as amended by of Chk. S.L. No. 3-95-27, § 3.

The Public Servicervice System Regulations require five business days' notice concerning removal/dismissal from permanent employment but, Kimeuo was notified that effective immediately he was dismissed and replaced pursuant to Executive Order. Additionally, he was not given notice of his appeal rights. This did not comply with the protections afforded a classified employee within the meaning of the Public Service System. He was not afforded due process of law. We conclude that the Kimeuo was wrongfully terminated and affirm the trial court's conclusion.

Issue (2) Whether the trial court erred in not considering the evidence regarding the nonexistence of the Division of Special Programs?

The Defendants argue that Chk. S.L. No. 190-07, as amended by Chk. S.L. Nos. 2-94-10 and 7-03-05 demonstrated clearly that there was no Division Chief of Special Services position for which Kimeuo could occupy. Defendants make an unconvincing argument that an office created by unconstitutional law has no existence, citing U.S. case law. This argument overlooks the fact that Kimeuo held the position of Chief of Special Programs which has been a lawful position since 1990. Additionally, the accounting change that modified Kimeuo's title from Division Chief of Special Programs to Division Chief of Special Services on his personnel actions did not change his duties. The terms Programs and Services were used interchangeably. Kimeuo was still a permanent employee as classified by his personnel actions.

The trial court need not state why it did not consider an issue or facts, it need only make a finding of such essential facts as provide a basis for the decision. The findings must be sufficiently comprehensive and pertinent to the issue to form a basis for the decision. We conclude that the trial court's findings of fact were sufficiently comprehensive and pertinent to its conclusions of law.

Issue (3) Whether the trial court erred in not appreciating evidence presented that the Division of Special Services was not an official and lawful division of the Department of Education as provided by Chk. S.L. No. 190-07, as amended by 2-94-10 and 7-03-05 otherwise known as the Reorganization Act?

The Defendants argue again that Chk. S.L. No. 190-07, as amended by Chk. S.L. Nos. 2-94-10 and 7-03-05 demonstrated clearly that there was no Division Chief of Special Services position for which Kimeuo could occupy. This argument is duplicative and need not be addressed again in light of this court's conclusion above.

Issue (4) Whether the trial court erred in not declaring that appellee was occupying a position which was either unlawfully created or non-existent?

The Defendants argue that that since the Office of the Division of Special Services was an unlawful and non-existent office, the trial court was required to declare Kimeuo as a usurper with no right to due process. The Defendants failed to cite any case law in support of such an argument. At best, it the Defendants' assertion is just another way of saying that the position held by Kimeuo was unlawful or non-existent. Having already addressed this argument, this court finds it unnecessary to rehash the issue again.

Issue (5) Whether the appellee has shown legal entitlement to the position of Chief of the Division of Special Programs, which was a non-existent or unlawfully created Division of the Department of Education?

The Defendants argue, without admitting that the Division Chief of Special Services was a lawful portion, that if Kimeuo held a lawful position he was improperly hired pursuant to the Public Service System Act. The Defendants assert that advertisement and examination were required. However, this court concluded earlier on that not all positions require advertisement and examination.

A position is either filled by a person identified on an eligibility list or a promotional list and the requirements for filling a position depend on the list. No requirement exists in the Chuuk Public Service System Act that an individual slated for promotion need to submit to an examination or that the position to which he or she is promoted be advertised. The evidence shows that Kimeuo was sought out as eligible for promotion and his personnel action was a promotional reassignment.

We conclude that examination was not required and he was entitled to employment protections afforded to State employees. Therefore, we affirm the trial court's conclusion.

Issue (6) Whether or not the appellee is entitled to compensatory damages of back pay?

The Defendants argue that Kimeuo's termination is substantially the same as that of Robert v. Simina, [2006] FMSC 55; 14 FSM Intrm. 438 (Chk. 2006). In Robert, the executive branch had been reorganized pursuant to Chuuk State Law No. 7-03-05. The plaintiffs in Robert were all political appointees whose exempt advice-and-consent positions were abolished by the Legislature. None of the plaintiffs in Robert showed a legal entitlement to permanent employment under the Public Service System Act. Additionally, regardless of proper procedure the Robert plaintiffs would have been terminated from their exempt advice-and-consent positions.

Robert, is distinguishable from Kimeuo's case. Kimeuo's position was not an exempt political appointee position like the Robert plaintiffs. Kimeuo was a classified employee pursuant to the Public Service System. He had a legal entitlement to permanent employment under the Public Service System Act. As such, Kimeuo should have been afforded due process rights not available to the Robert plaintiffs. Termination of an exempt political appointee and non-exempt Public Service System employee are not handled the same way, and Robert, is not applicable to Kimeuo's situation.

Termination or removal of a Public Service System employee is a disciplinary action. Chk. Pub. Serv. Sys. Reg. pt. III.E.1. To terminate Kimeuo, the Defendants were required to give him at least five work days advance written notice prior to removal, pursuant to Regulation III.E.10.a. The termination had to be for good and justifiable cause; and had to be appropriate to an infraction committed by Kimeuo, if there was one, pursuant to Regulation III.E.10.d. Kimeuo was supposed to be advised of his appeal rights pursuant to Regulation III.E.10.e.

Kimeuo was not given written notice, he was not informed of good cause, and was not advised of his appeal rights. As previously stated, Kimeuo was wrongfully terminated and redress would include reinstatement and back pay. Kimeuo could not be reinstated due the mandatory retirement policy of the Public Service System Act. Kimeuo could be awarded back pay though if he had mitigated his damages. The trial court held that Kimeuo did mitigate his damages by seeking employment after he was terminated and was awarded reduced damages. We conclude that the award of damages was proper and affirm the trial court's decision.

Issue (7) Whether the trial court erred in arriving at the finding of facts and conclusions of law?

The trial court's findings will only be set aside if there is no credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. If, upon viewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court.

After reviewing the record on appeal there appears to be credible evidence to support the courts findings. In fact, the parties' witnesses and exhibits at trial were the same. Appellant's contention has been that the position did not exist or was unlawful and was not properly filled, so Public Service System protections did not apply. However, there is substantial, credible and confirmed evidence provided by both parties' witnesses to suggest otherwise, as previously stated.

V. Conclusion

Based on the foregoing, we affirm the trial court.

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