8 FSM Intrm. 427-436

In reviewing appeals from the Executive Service Appeals Board, the Kosrae State Court is empowered to overturn or modify the ESAB's decision if it finds a violation of law or regulation, but the court is precluded from re-weighing the ESAB's factual determinations. If there is any factual basis for the ESAB's decision, it will be upheld, assuming no other violation or law or regulation. Langu v. Kosrae, 8 FSM Intrm. 427, 432 (Kos. S. Ct. Tr. 1998).

Permanent positions are authorized to last longer than one year. Temporary positions are authorized to last up to twelve months. Permanent employment may be part-time, so long as the work time exceeds sixty hours per month. Temporary or limited-term appointments may be either full-time or part-time. Langu v. Kosrae, 8 FSM Intrm. 427, 432 (Kos. S. Ct. Tr. 1998).

When employees were classified as permanent employees on their Personnel Action Forms, their scheduled work time during the school year was full-time, and their bi-weekly salaries were full-time base salaries, the employees were full-time permanent employees of the Kosrae Executive Service System. Langu v. Kosrae, 8 FSM Intrm. 427, 433 (Kos. S. Ct. Tr. 1998).

Permanent employees have the right to hold their position during good behavior, subject to suspension, demotion, reduction-in-force or dismissal, unless an employment contract provides otherwise. Langu v. Kosrae, 8 FSM Intrm. 427, 433 (Kos. S. Ct. Tr. 1998).

A permanent employee may be dismissed for disciplinary reasons based upon good cause or the employee may be dismissed within a reduction-in-force. Langu v. Kosrae, 8 FSM Intrm. 427, 433 (Kos. S. Ct. Tr. 1998).

Kosrae's right and power to adjust its employment scheme according to the availability of funds and work is not unlimited. When the shortage of funds require dismissal of an employee, certain procedures are to be followed to ensure that seniority and qualifications are given due consideration. The government must give employees written notice that he has been reached by a reduction-in-force and that his services shall be terminated. Langu v. Kosrae, 8 FSM Intrm. 427, 433 (Kos. S. Ct. Tr. 1998).

Termination of employment means a complete severance of the relationship of employer and employee. Reductions-in-force mean dismissal or termination of employees. Langu v. Kosrae, 8 FSM Intrm. 427, 433 (Kos. S. Ct. Tr. 1998).

When an employee has been laid off for the summer, it is not a termination for disciplinary reasons or a reduction-in-force. A layoff is a termination of employment at the will of the employer, which may be temporary or permanent. Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).

A permanent Kosrae government employee's right to hold his position during good behavior is not subject to a "lay off" because neither the term "lay off," nor the concept of a "lay off" is present anywhere in Title 5. Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).

Leave without pay may be granted to an employee if the reason is sufficient and is in the best interests of the Executive. The maximum is thirty calendar days. Leave without pay is not a disciplinary tool to be imposed upon an employee who has not requested it; instead it is a benefit to be granted to the employee in appropriate circumstances. Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).

When state employees have been required to apply for annual leave, if it was available, and did receive their salary during the annual leave, the employees have not suffered any monetary damages with respect to their annual leave. Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).

The state's imposition upon its employees of leave without pay violated the Kosrae State Code, Title 5, and deprived them of their right to continued employment and salary. Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).

The Kosrae State Court cannot substitute its judgment for that of the Executive Service Appeals Board, but in reviewing the ESAB's findings it may examine all of the evidence in the record in determining whether the factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the findings as clearly erroneous. Langu v. Kosrae, 8 FSM Intrm. 427, 435 (Kos. S. Ct. Tr. 1998).

Permanent state employees are subject to the laws and regulations implementing the Executive Service System, and a finding that some were exempted from all regulations and policies applicable to Kosrae government employees is clearly erroneous. Langu v. Kosrae, 8 FSM Intrm. 427, 435 (Kos. S. Ct. Tr. 1998).

Although the statutory time periods are directory and not mandatory, a significant delay in proceedings can deprive the Executive Service Appeals Board procedure of its meaningfulness, in violation of the due process rights protected by the Constitution. Langu v. Kosrae, 8 FSM Intrm. 427, 435 (Kos. S. Ct. Tr. 1998).

State employees are entitled to recover the base salary that they would have received during the periods of time that they were placed on leave without pay because the state's imposition of a "lay off" and leave without pay violated the employees' right to continued employment under the Kosrae Constitution and the Kosrae State Code. Langu v. Kosrae, 8 FSM Intrm. 427, 436 (Kos. S. Ct. Tr. 1998).

This matter has a long and colorful history. The original acts complained of by the Appellants began in approximately 1980 and continued until 1990. The matter came before the Executive Service Appeals Board (ESAB), which no longer exists. Following an appeal to this Court in 1994, the matter was again remanded to the ESAB. After some delay, the ESAB conducted hearings on the merits of the Appellants' claims and issued a decision in November 1996. This matter is an appeal from the ESAB's decision of November 1996.

Oral argument on the Appellants' claims and Appellee's defenses were held before this Court on April 22, 1998 at 9:00 a.m. Canney Palsis, MLSC, appeared and argued on behalf of the Appellants. Richard Martin, Attorney General, appeared and argued on behalf of the Appellee, State of Kosrae. Many of the Appellants were present in the courtroom during the hearing.

This matter's long procedural history is set out briefly as follows. This case was initiated in 1988, with a letter from MLSC to the Director of Education, lodging a grievance by Masao Langu and other employees of the Kosrae State Government, Executive Branch (hereinafter "Appellants"). After a substantial delay in review of the Appellants' claims by the Director of Personnel, the Director reviewed and then denied Langu's claim in August 1991. The Director's denial of Langu's claim was made on the basis that the grievance was filed too late, after the fifteen day period provided by the Executive Service Regulations, section 11.2.a. The decision of the Director of Personnel was timely appealed to the Executive Service Appeals Board. In November 1991, the ESAB decided not to certify the appeal on the ground that Langu had retired and was therefore no longer an employee of the Executive Branch. The ESAB concluded that it did not have jurisdiction to hear the Langu's claims.

The ESAB decision not to certify Langu's appeal was appealed to this Court and designated as Civil Action Number 13-92. In April 1994, this Court issued an Order reversing the decision of the ESAB and ordered the ESAB to hold an evidentiary hearing on Langu's claims. The Court determined that it was appropriate for the ESAB to hear Langu's claims since the alleged improper actions were of a continuing nature and affected Appellant Langu while he was an employee of the Department of Education. Another lengthy delay occurred before the ESAB acted to comply with the Court's order. The ESAB hearing finally took place in two sessions held in September and October 1996. After the hearing, the ESAB entered their written order affirming the decision of the Director of Personnel and denying Langu's claims (ESAB Case No. DOE-002).

Action No. 1-97. Another delay of several months occurred due to ESAB's failure to transcribe the hearings and provide the transcript to the Court and to the parties. The record was transcribed by this Court's reporters and provided to the parties in late 1997. Following submission of briefs by the parties, the matter was heard by the Court at oral argument on April 22, 1998.

Masao Langu and the other appellants in this case worked as cooks for Kosrae State Government. Langu began his executive service employment in September 1976, as a Cook II at Malem Elementary School. His employment status, as indicated on the Personnel Action Forms, was "permanent." In later years, Langu received within grade pay level increases and in 1983, his employment duty station was transferred to Kosrae High School. In 1985, Langu was promoted to the position of Cook III. Langu's employment status remained "permanent" throughout his years of employment, as reflected on his Personnel Action Forms. The Personnel Action Forms were signed by his immediate supervisor, appropriate officials from the Personnel Office and Budget Officer, and the Governor of Kosrae.

Appellants Hosino Palik, Ned Darius, Damae Likiak were also employed as cooks with Permanent Employment status for Kosrae State Government, as reflected in their personnel documentation in support of within grade salary increases. This personnel documentation also indicated that these three employees encountered delays in receiving salary increases in 1990 due to leave-without-pay periods which exceeded 10 days in the waiting period.

The positions of Appellants Langu, Palik, Darius and Likiak were located at Kosrae High School and at elementary schools in the municipalities. These employees were appointed to their positions and became permanent employees of Kosrae State Government. The funding for these positions came from the United States Federal Aid Program, specifically the Food Service Program, which was administered from the Trust Territory Headquarters in Saipan. This program was also called the "Hot Lunch Program." All or almost all of the funding to administer the Hot Lunch Program was provided by the U.S. Government. The funding for the Hot Lunch Program was provided with specific guidelines and condition, including the number of cooks hired for the Program, eligibility of students to participate in the program and that the timing of the Program during the school year. The cook positions for the Hot Lunch Program were funded for the school year while students attended school and lunches were provided to the students.

In the first few years of the Hot Lunch Program, the cooks worked during the summers. Their summer duties consisted of construction and maintenance of the cook houses and other equipment for the Program. The cooks worked during the summers through 1979. Beginning in 1979 or 1980, the Food Service Program Headquarters in Saipan advised the Coordinator of the Kosrae Hot Lunch Program to lay off the cooks during the summer, if their attendance was not required for any other reason.

Beginning in approximately 1980, a supervisor from the Department of Education informed the Appellants that there would be no work during the summer when school was not in session. This decision was based upon the lack of funds to pay the cooks, as no funding was available through the Food Service Program during the time that school was not in session. This policy was distributed by written memorandum in English to the principals of the respective schools. An informal meeting was held with the cooks to announce the policy. The cooks were informed that they could use their accumulated annual leave first, then leave without pay would be imposed until the beginning of the next school year. No hearing was given to the cooks to respond to this decision. This practice of "laying off" the cooks began approximately in the summer of 1980 and continued until the summer of 1990.

An appellate court may set aside a trial court's factual findings as clearly erroneous when the factual finding was not supported by substantial evidence in the record, or when the finding was the result of an erroneous conception of the applicable law, or when after a consideration of the entire record the appellate court is left with a definite and firm conviction that a mistake has been made. Cheni v. Ngusun, 6 FSM Intrm. 544, 547 (Chk. St. Ct. App. 1994). The appeals court cannot substitute its judgment for that of the trial judge but in reviewing the findings it many examine all of the evidence in the record in determining whether the trial court's factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the findings as clearly erroneous. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1993).

The Kosrae State Court in reviewing appeals from the ESAB is empowered to overturn or modify the ESAB's decision if it finds a violation of law or regulation, but the Court is precluded from re-weighing factual determinations made by the ESAB. If there is any factual basis for the ESAB's decision, it will be upheld, assuming no other violation or law or regulation. Palik v. Executive Serv. Appeals Bd., 4 FSM Intrm. 287, 289 (Kos. S. Ct. 1990).

The statutory authority for the Executive Service System, which was in force during the particular time addressed in this appeal, 1980 to 1990, was Kosrae State Code, Title 5, Chapter 4. Judicial notice is taken of the fact that Kosrae State Code, Title 5, Chapter 4, was repealed in 1997 by State Law 6-131. However, Kosrae State Code (KSC), Title 5, Chapter 4, was in effect during the time of Appellants' grievances and appeal, therefore it shall be applied in the decision of this matter. Likewise, the Executive Service Regulations (ESR) were adopted in 1987 and are applicable to Appellants' claims in this matter for the years 1987 through 1990.

Upon successfully completing probation, an employee becomes a permanent employee. Kos. C. §§ 5.101(17), 5.409(1). Appellants were classified as Permanent Employees on their Personnel Action Forms. The State did not contest Appellants' status as Permanent Employees of the Kosrae Executive Service System.

Positions in the Executive Service are either permanent or temporary. Permanent positions are authorized to last longer than one year. Temporary positions are authorized to last up to twelve months. ESR § 4.3. Permanent employment may be part-time, so long as the work time exceeds sixty hours per month. Temporary positions are also called limited-term appointments. Temporary appointment may be either full-time or part-time. ESR § 4.4.

The Appellants were classified as Permanent Employees on their Personnel Action Forms. These Personnel Action Forms were reviewed and approved by various government officials. The Appellants' scheduled work time during the school year was full-time. The bi-weekly salaries of Appellants, as indicated on their personnel documentation, are full-time base salaries. See Kos. C. § 5.502 (1985 version). Therefore, I conclude that the Appellants were full-time permanent employees of the Kosrae Executive Service System, as defined in KSC, Title 5.

Permanent employees have the right to hold their position during good behavior, subject to suspension, demotion, reduction-in-force or dismissal, as provided in Title 5, Chapter 4, unless an employment contract provides otherwise. Kos. C. § 5.402(1); Edwin v. Kosrae, 4 FSM Intrm. 292, 302 (Kos. S. Ct. Tr. 1990). Appellants did not have employment contracts with the State, therefore they had a right to hold their positions as Cooks subject to suspension, demotion, reduction-in-force or dismissal. The procedures for implementation of these actions are set forth in the KSC, Title 5, Chapter 4 and the ESR.

Suspension and demotion of a permanent employee are actions that may be taken only for disciplinary reasons based on good cause. Kos. C. §§ 5.417, 5.418. The Appellants here were not suspended or demoted for disciplinary reasons in this case.

An employee may be dismissed for two reasons. First, a permanent employee may be dismissed for disciplinary reasons based upon good cause. Kos. C. § 5.418. Second, a permanent employee may be dismissed within a reduction-in-force, pursuant to KSC, section 5.416.

Kosrae State has the right and power to adjust its employment scheme according to the availability of funds and work. However, this right to adjust the employment scheme is not unlimited. When the shortage of funds require dismissal of an employee, certain procedures are to be followed to ensure that seniority and qualifications are given due consideration. Edwin, 4 FSM Intrm at 303. Pursuant to the reduction-in-force statutory provisions, the Executive may dismiss an employee from his position when an absence of funds or work requires. In determining the order of termination, several factors are considered, including seniority, merit and qualifications. Kos. C. § 5.416. The term "dismissal" means a release or discharge from employment. Black's Law Dictionary 469 (6th ed. 1990). Therefore, an employee's termination under the reduction-in-force provisions means a permanent dismissal from employment.

Reductions in force are further addressed by the Executive Service Regulations § 12.3. The government is permitted to terminate the services of an employee due to a lack of work or funds. The regulations specify the order of termination under a reduction-in-force. The government must give employees written notice that he has been reached by a reduction-in-force and that his services shall be terminated. ESR § 12.3.b. Termination of employment means a complete severance of the relationship of employer and employee. Black's Law Dictionary 1471 (6th ed. 1990). This Court in Edwin v. Kosrae, 4 FSM Intrm. 292 held that reductions-in-force mean dismissal or termination of employees.

Here, the Appellants were not dismissed or terminated. They were not dismissed for disciplinary reasons, nor were they subject to dismissal pursuant to a reduction-in-force. The cooks returned to work during every fall season when the school term began. If the Appellants would have been terminated under a reduction-in-force, the terminations would have been subject to certain conditions specified in KSC, section 5.416.

Appellants were "laid off" by the State for the summer seasons. A layoff is a termination of employment at the will of the employer. Layoffs may be temporary or permanent. Black's Law Dictionary 888 (6th ed. 1990). The Appellee argued that the Appellants were properly laid off, due to funding limitations.

A State employee's right to a given salary is based primarily upon constitutional, statutory and regulatory provisions. Edwin v. Kosrae, 4 FSM Intrm. 292 (Kos. S .Ct. Tr. 1990). Lay-offs are not contemplated by either Kosrae State Code, Title 5, Chapter 4, nor its implementing regulations, the ESR. The words "lay off" do not appear anywhere in the KSC, Title 5. More importantly, "lay off" is not available as a reduction-in-force measure under KSC, section 5.416. A permanent employee's right to hold his position during good behavior is not subject to a "lay off." Kos. C. § 5.402. Neither the term "lay off," nor the concept of a "lay off" is present anywhere in KSC, Title 5. Therefore, the State may not "lay off" a permanent Executive Service System employee.

The Kosrae Executive Service system protected Appellants' right to continued employment subject to enumerated conditions and procedural requirements. The State could have followed reduction-in-force procedures as specified in the KSC to terminate the cooks at the end of every school year. The State also could have placed the cooks on employment contracts which limited their term of employment to the school year. The State did not take any of these actions. Instead, the Appellants were laid off by the State for the summer season. These lay offs violated the Kosrae State Code, Title 5, and deprived Appellants of their right to continued employment.

Leave with pay may be granted to an employee pursuant to regulation. Annual leave must be requested by the employee in advance on a written form. Executive Service Regulations § 8.1.a. Leave with pay must be requested by the employee. Phillip v. Kosrae ESAB, Civ. Action No. 62-88, slip op. at 7 (Nov. 28, 1989).

Leave without pay may be granted to an employee if the reason is sufficient and in the best interests of the Executive. Kos. C. § 5.412. Leave without pay may be requested by a permanent employee for the purpose of extending vacation or for sick leave purposes. However, the maximum extension is thirty calendar days. ESR § 8.2.b. "Leave without pay is not a disciplinary tool for either management or the ESAB to impose upon an employee who has not requested it, instead it is a benefit to be granted to the employee in appropriate circumstances." Phillip v. Kosrae ESAB, Civ. Action No. 62-88, slip op. at 6 (Nov. 28, 1989).

There is no authority present in the KSC, Title 5, that permits the government to impose annual leave or leave without pay upon permanent employees. Leave with or without pay cannot be imposed on an employee by the State. Phillip v. Kosrae ESAB.

In this matter, annual leave was taken by some of the Appellants during the summer season. The ESAB found that the Appellants were required to apply for annual leave, if annual leave time was available. The Court does not disturb this finding. The Appellants did receive their salary during their annual leave. While Appellants may have been pressured to take their annual leave at an inconvenient time, the Appellants were paid during their annual leave. Therefore, there has not been any monetary damages suffered by the Appellants with respect to their annual leave.

The ESAB also found that the Appellants were forced to take leave without pay by the State during their "lay off" period, if they did not have any annual leave time available. The State may not impose leave without pay upon an employee. The imposition of leave without pay by the State upon the Appellants violated the Kosrae State Code, Title 5, and deprived Appellants of their right to continued employment and salary.

This Court cannot substitute its judgment for that of the ESAB, but in reviewing the findings it may examine all of the evidence in the record in determining whether the ESAB's factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the findings as clearly erroneous. Kapas, 6 FSM Intrm. at 59.

The ESAB's Decision in this matter did not contain separate Findings of Fact. Therefore the Court reviews the facts as stated throughout the ESAB Decision. This Court finds that the ESAB's findings with respect to the facts of this matter are not clearly erroneous, were based upon substantial evidence and are not disturbed by this Court, except with respect to the following finding of the ESAB:

The ESAB found that cooks were exempted from all regulations and policies applicable to Kosrae State Government employees. ESAB Decision at 2. These regulations and policies are found in the KSC, Title 5 and the ESR. This finding of the ESAB is rejected by this Court as being clearly erroneous. The cooks, as permanent employees of the Executive Service System, were subject to the laws and regulations implementing the Executive Service System, as discussed above in Part V, Sections A and B of this decision.

The ESAB was ordered to hear Appellants' claims by this Court's Order of April 1994. A delay of more than two years followed where the ESAB failed to hold a hearing. Finally, the ESAB held hearings on Appellants' claims in September and October 1996. The ESAB written decision, complete with all required signatures of the ESAB members, was finalized in June 1997. The KSC, section 5.421(2) requires the ESAB to issue its written findings of facts and its determination within ten days of the end of proceedings. Therefore, the ESAB written decision should have been issued by October 28, 1996, ten days following the last day of hearing.

This Court has previously determined in Phillip v. Kosrae ESAB, Civil Action No. 62-88, that time periods stated in KSC, Title 5 are directory and not mandatory. However, this Court recognizes that a significant delay in proceedings can deprive the ESAB procedure of its meaningfulness, in violation of the due process rights protected by the Constitution. Phillip v. Kosrae ESAB, Civil Action No. 62-88, slip op. at 9-10 (Nov. 28, 1989).

In certain cases, the ESAB's delay in taking action or issuing a written determination could violate the employee's due process rights. For example, if an employee is terminated and there is a delay in the ESAB in hearing the appeal, the employee's due process rights may be violated and back pay may be awarded. See Kiupu Palik v. Department of Health and State of Kosrae, Civ. Action No. 12-92. In this case however, the acts complained of took place from approximately 1980 through 1990. Here, however, the Appellants were not subject to disciplinary action which was dependent upon action of the ESAB. The Appellants' claims are for back pay for the summer seasons when they were laid off.

There is no question, however, that in this matter there were significant delays by the ESAB in holding the evidentiary hearing ordered by this Court in 1994, issuing its decision and completing the transcript. The delays resulted in significant violations of the directory time periods specified in KSC, Title 5, Chapter 4. During the course of these delays, the Chairman of ESAB was brought before this Court to explain the delays and was ultimately sanctioned for failure to comply with time limits established by this Court. Nonetheless, the statute creating the ESAB has been repealed by State Law

The Court finds that the imposition of annual leave upon Appellants by the State violated the procedure required by KSC, Title 5. However, the Appellants did receive payment for their annual leave as they were entitled to. Therefore, no monetary damages are granted for the improper imposition of annual leave.

The Court finds that the imposition of a "lay off" and leave without pay upon Appellants by the State violated KSC, Title 5 and violated the Appellants' right to continued employment under the Kosrae State Constitution and the Kosrae State Code, section 5.402.

Appellants are entitled to recover the base salary that they would have received during the periods of time that they were placed on leave without pay. Appellants are ordered to file and serve their proof of damages by June 25, 1998 for each Appellant individually. Such proof of damages shall include copies of personnel action forms, leave forms and any other appropriate documents which verify the permanent full-time employment status of each Appellant and the length of time that leave without pay was imposed during each summer season. Appellee shall file and serve any objections or other response to Appellant's proof of damages by July 9, 1998.