POHNPEI SUPREME COURT
Trial Division
[pg. 1]
KADALINO DAMARLANE
Plaintiff,
vs.
POHNPEI LEGISLATURE
by and through its Speaker Kasiano Joseph
Defendant,
PCA N0.106-87.
OPINION
The plaintiff in this case is challenging the legality of his dismissal by the defendant, his former employer. In my view the defendant's action is supportable in law therefore the plaintiff's complaint is without merit. My is reasons are given later in this opinion.
I. FACTS OF THE CASE
The plaintiff was employed by the defendant Pohnpei State Legislature on or about August 13, 1985, as a Legislative Aide, and he remained in such employment until he was terminated on February 25, 1987, following a hearing before a Committee of the Legislature of certain charges , brought against him by the Speaker of the Legislature.
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The allegations made against the plaintiff at the committee hearing were:
(1) Using foul language and making unfounded accusations against the Speaker and the Legislative Counsel in a letter, and distributing copies to the other Branches of Government, an act of disloyalty to the management of the Legislature.
(2) Personal use of office stationery
(3) Violations of the official dress code
(4) Taking away the hind quarter of a Legislature Christmas party pig before the commencement of the party, an act of disrespect.
The plaintiff admitted these four charges before the Committee and the Committee made the following findings and decision:
"The first ground involves the act of disrespect and resisting authority in reference to the foul language and unfounded accusations against Speaker Senda and Legislative Counsel Beckman. The letter was admitted as evidence under form of Employers Exhibit B-2. Under examination, the employee acknowledged that he wrote
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the letter himself under emotional frustration and in his own words to be exact "pissed off". The employee contended that the letter is protected under the constitutional right of free speech. The employees supported this contention citing holdings of various U.S. courts and the FSM Supreme Court in In re Iriarte (I), 1FSM Intrnn. 239, 247 (Pon. 1983) , in which the Supreme Court holds that "the right of citizens to express their views, including views critical of public officials, is... fundamental to the development of a healthy political system." It is the opinion of this Committee that free speech is a right to cherish and to be upheld to the extent possible. On the other hand the right is not absolute, as the Court holds in Nebraska Press Also. v. Stuart; Section 427 US 395, 97 L. Ed 2d 683, 96 S. Ct. 291. To make the right absolute would be stating that any individual is free to utter libels and slanders. The criticism of public officials or government is tolerable to the extent of public interest so long as it is within the bounds of fair comment and is not motivated by actual malice. See 50 Am Jur 2d, Libel and Slander, Section 125, 296 et seq., 353. The errployee was employed in the
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Reference Section of the Legislative Counsel's Division which always reinforces diligency and accuracy of facts and statements it gathers, formulates and conveys to members of the Assembly. In view of the strong accusations contained in his letter, the Committee was appalled at the indecisive response made under examination by the employee, to wit, "No.", then, "I take it back, yes", and , "I think they're to misusing public funds " (emphasis added). That clearly shows a reckless disregard as to whether or not his accusation was false -actual malice which does not enjoy the guarantee of freedom of free speech. See 50 Am Jur 2d,. Libel and Slander, Section 301. Considered in its totality, the employee's letter in question is an insult to the Office of the Speaker if not to the whole of the Legislative Branch and it clearly indicates an abuse of the constitutional privilege of free speech and is therefore exerted from the constitutional guarantee.
In taking care of the free speech issue, we must now turn to the intact of the letter in question as it relates to employment of the employee. The letter on
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its face exhibited the concerns raised in Item 1 of Speaker Senda' s letter of Januaiy 23, 1987 . The Committee shares the same concerns and therefore recommend that a severance [sic] of employment is necessary as called for in the Legislature Manual of Administration.
The same pattern of attitude and actions applies to the grounds of the offense in item 4 of Speaker Senda's letter in considering the evidence and testimonies submitted. The same penalty is therefore recommended. The employee contends that the core of item 4 is the personal use of office stationary, [sic] which the employee does not deny. If that be the case then the offense would be misappropriation of government property for which the Manual requires removal on first offense. Although the value of the property is definitely insignificant, the Manual provides no lesser penalty. The nature of such an offense is what counts as important, in order to maintain the good reputation and the integrity of the staff of this august body.
As to the offenses of insubordination relative to repeated non-adherence to required attire, the employee
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conceded while raising the defenses that the policy is unreasonable in view of the Pohnpei climate and that others are breaking the policy also. To do what one wants to for his own good knowing that he is breaking the law is characteristic of a lawless society. To emulate the illegal activities of others is counter productive to the law and order of society. Prudent men must utilize the democratic mechanisms built into our institutions to revise or repeal laws and policies that are unreasonable to the well-being of the society in lieu of open defiance of authority. The Committee, therefore, [sic] cannot accommodate the defenses of the employee and must resort to the penalties provided in is the Manual. The Committee wants to reiterate here that is the attire policy was in effect prior to its adoption in the written form of L.R.N.119-86 on October 7, 1986. The staff of this Assembly had been observing this is policy prior to October 7, 1986. The act of insubordination occurred more than once, as the evidence indicates, and requires removal on second offense pursuant to the Manual.
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As to the party pig incident, the employee also conceded while raising the defense that his actions were in accordance with long-standing Pohnpeian tradition. Pohnpei official parties follows the acceptable norms of traditional feast. Distribution of food in Pohnpeian feasts is made in accordance with the raking of those title holders present at the feast. To precede a lower title over a higher title in the distribution of food in a feast is an "act of disrespect" and is not considered to be within the norms of "wahu" which is the basic underlying structure of our culture and tradition. Speaker Senda is a Pohnpeian, the employee is a Pohnpeian and so are all the marbers of this Committee. We need not elaborate on this further. Acceptance of the employee's defense under this item would correspond to turning the whole Pohnpeian tradition upside down. The action of the employee. constituted "disrespect" which calls for removal on second offense.
In considering its final decision, the Committee is cognizant of the impact its decision may have on the employee. s livelihood and has tried to be lenient in
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its decision. On the other hand, and as elected official, we must exercise our obligation and responsibility to constituents who bestowed upon us the honor to serve in this august Body - an institution that they hold to the highest of standards and look upon with dignity. We have the solemn duty to ensure that the respect and honor they entrusted to this Body is maintained to their expectations. It is in this to regard that we expect our staff to conduct themselves to such high standards of loyalty, competence and integrity. Therefore, we must weigh the conduct of the legislature staff not as individual and separable events but in light of their overall impact on the integrity and effectiveness of this august Assembly. In this regard we find no consolation in recommending a lesser penalty than that which has been implemented by the Speaker. The termination of effployment from the Pohnpei Legislature of employee Kadalino Damarlane is hereby affirmed."
Following these findings and decision the plaintiff's employment wits the Pohnpei State Legislature was
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terminated. It is by reason of this termination that he has brought this action in this Court. Though he also admits the four charges in this Court, he argues that they are legally insufficient grounds for his termination and contends that his termination was in retaliation for his attempts to secure a pay raise, and in response to the exercise of his rights to free expression guaranteed by the constitutions of Pohnpei and the Federated States of Micronesia.
The defendant, on the contrary, contends that the acts charged, which were admitted by the plaintiff, amounted to insubordination, misappropriation of government property and disrespect, all of which constitute sufficient grounds for removal from employment pursuant to the Legislature Manual of Administration.
Questions raised in the pleadings and in argument regarding the denial of the plaintiff's due process rights are no longer in issue and need not therefore be addressed in this opinion. Thus the issues for determination are the sufficiency of the grounds for the termination of the
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plaintiff. s employment and the scope of his constitutional right to free expression
II. DISCUSSION OF LAW
The removal of public officers is controlled almost entirely by constitutional or legislative provisions. State ex rel. Ralston v. Blain 370 P2d 415, 92 ALR 2d 1115. Consequently, absent the violation of a constitutional provision, the causes, charges, notice, investigation, and manner of determination and removal in proceedings relating to public office are matters wholly in the discretion of the legislature. 63A Am Jur 2d, Public Officers and Employees, Section 220. Therefore, the Pohnpei State Legislature may provide, as they indeed have, in the Legislature Manual of Administration for the causes, charges, and the procedure for the removal of employees of the Pohnpei State Legislature. These matters are entirely within the Legislature's discretion.
It is a principle of law that the power to hire an employee carries with it an implied power to remove such employee subject, of course, to express provisions, constitutional or statutory, limiting the power to remove,
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as for example . for cause. . Thus the causes and the limits of the power for the removal of Pohnpei State Legislature employees are defined in the Legislature Manual of Administration under its provisions relating to Procedure for formal Disciplinary Action. The Manual shows clearly that every stated offense could ultimately lead to the removal of an employee, depending upon the incidence of the offense by the offender. In pertinent part the provisions of the Manual under which the plaintiff's employment was terminated read:
"Type of Offense First Offense Second Offense Third Offense
Insubordination, Two weeks Removal
intentional dis- suspension
respect or use to removal
of insulting or
abusive language
to a superior,
resisting authority
False claims Removal
against the
government,
misappropriation
of government
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property, embezzle-
ment, theft, or
other material acts
of willful
dishonesty,
including willfully
sanctioning or
concealing such
acts by others..
It is significant to note that the offenses charged against the plaintiff fall into the two categories of offenses set out above, and that each category of offense may attract the sanction of removal even if the offense charged is committed for the first time. The Court, in my view, may not pass judgment on the question whether the sanctions fit the offense since this is a matter for the discretion of the Legislature. However,the Court may
to properly determine upon the evidence whether an act in respect of which an employee of the Legislature alleges to have been wrongfully terminated from his employment falls within the category of acts that warrant the specified sanctions.
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As noted earlier, the plaintiff admitted all the acts charged. I would therefore, first consider the letter he wrote to Speaker Ambros Senda dated November 13, 1986, which for purposes of convenience and clarity I set out below:
. This is to let you know how frustrated and pissed off I. m with your administration.
At the outset, you have introduced certain resolutions which will hurt the Legislature employees so bad that they will end up starving to dead [sic] or going to jail. I don not understand your motives so far but don. t dwell on them because we are two completely different people, you are rich, and I. m poor.
Because of your poor management there is a law suit in process against the Legislature. You and Tom's refusal to comply with the intention of the law to me is unethical and unfounded. To think that you and Tom can break the law is beyond my imagination. You guys complaint [sic] about not having enough money but boy imagine how much tax payers money your administration has expended just in traveling, let us not mention people that your administration had questionably
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contracted their unwanted, expensive and unprofessional services.
When your administration came into power you adopted a platform to conserve public funds. But what a laugh! As soon as you became speaker, you completely return [sic] to your businessman image. Such attitude can not work in the government sector. Also, there is nothing which is listed in the rules of order that specifically says you can travel to perform duties inherently assigned to the jurisdictions of the Committee. But since you are a businessman you have jumped for each opportunity to travel on [sic] the expense of the people for your own interests. Let me tell you that you are taking advantage of public funds.
Lastly let me ask you if you have any personal problem against me. You've been sitting on my step increase for almost three months now. Second, you signed every T.A. going to Orlando, Florida except mine. Lastly you cancel [sic] my trip as a staff to Guam for no known reasons. Personally speaking I think as a Pohnpeian you
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and I should resolve this matter as grown-ups before it gets out of control.
Hope to hear from you soon.
Kadalino Damarlane
xc: Governor, Pohnpei
Chief Justice, Pohnpei Supreme Court..
There is no doubt that at the time of writing this letter the plaintiff was aggrieved. However, he failed to set in motion for redress the grievance procedures available to him under the Legislature Manual of Administration. Having chosen the course he did, he communicated his grievance in language that cannot be said to be proper. I find the letter in itself unbusinesslike, in poor taste, full of unfounded allegations against superior Legislature officials (particularly the Speaker) and full of insinuations by innuendo of unproven and unsubstantiated wrongdoing. I have no doubt in my mind that the contents of the letter manifest intentional disrespect and use of abusive language to a superior officer of the Legislature and are punishable by removal at the discretion of the Legislature.
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The plaintiff urges the Court that the letter was not the real, reason for the termination of his employment because though his letter was dated of November 13, 1986, a memo was sent by the Speaker on December 1, 1986, to the plaintiff's superiors at the Legislative Counsel's Division giving them one week to take appropriate action in response to the letter pursuant to the Manual of Administration, no disciplinary action was taken by his superior against him either before or after the one week deadline, but that it was more than seven weeks later after an incident between Speaker Senda and the plaintiff at the Oceanview Bar that the Speaker took action to terminate his employment. One may therefore ask whether the delay or failure to act on the Speaker's memo negatived any disciplinary proceedings contemplated against the plaintiff. My answer is that to end such proceedings there should be a manifest intent of the Speaker as the ultimate authority and the person requesting such proceedings to discontinue them. There was no such intent. I hold therefore that the delay is immaterial and does not vitiate the act of the Speaker. The fact of the contents and tone of the letter remains and is in evidence as one of the reasons for the termination of the plaintiffs employment irrespective of the other reasons.
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Another question for determination relating to plaintiff's letter dated November 13, 1986, is whether the termination of his employment was a violation of his rights to free expression guaranteed bythe constitutions of Pohnpei and the Federated States of Micronesia. The plaintiff's case is that the letter was one of the causes of his termination, and that his termination being a government action the Court is required to examine the letter to determine whether it is exempt from the constitutional guarantee of freedom of speech under the Pohnpei Constitution. The Pohnpei Constitution provides:
. Freedom of Speech. No government action may deny or impair the right of every person to speak, write, and publish freely on any subject and the right to receive information on all subjects. A person may be held responsible for untruthfull statements injuring other persons without privilege, and for statements creating a clear and immediate danger of unlawful conduct or substantial injury to the public."(Article 4,Section1)
The plaintiff argues as follows:
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. The Pohnpei
Constitution. s language is clear that the only exceptions to the protections contained in Article 4, Section 1, are for . untruthful statements injuring other persons without privilege. and for . statements creating a clear and immediate danger of unlawful conduct or substantial injury to public.. In this statements were untruthful or that they injured anyone, and it is obvious that his statements were not of the sort which would create a clear and immediate danger of unlawful conduct or substantial injury to the public. On the contrary, by his statements plaintiff was attempting to persuade Speaker
Senda to follow the law and grant him the pay raise which this Court has now determined he was entitled to receive.. (emphasis added)
It has been held that the fundamental freedom of speech contributes greatly to the development and well-being of a free society and is indispensable to its continued growth. Accordingly, the freedom of speech should be vigilantly guarded to prevent its erosion by lawmakers or by the State. This freedom however, is not without its limits. The plaintiff cited among others Pickering v. Board of Education
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319 US 563, 88 S. Ct. 1731, 20 L Ed. 2d. 811 to support his claim that the freedom of speech provision of the United States Constitution First Amendment . has been held to protect the right of public employees action as a result of expressing views critical of government.. But in my opinion Pickering also recognizes that there is a limit to the exercise of the freedom, because it holds that the protection is not available to a dismissed public officer where there is proof of false statements knowingly or recklessly made by him. In this connection it is not disputed that the protection in the Pohnpei Constitution has its limits. According tot he plaintiff the limits are . untruthful statements injuring other persons without privilege. and . statements creating a clear and immediate danger of unlawful conduct or substantial injury to the public.
My own finding from the totality of the evidence (including the letter and exhibits) convinces me that the statements and insinuations by innuendo of wrongdoing by Speaker Senda in the plaintiff's letter at issue were false and recklessly made with intent not to persuade Speaker Senda to follow the law and grant him the pay raise as he
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claims, but to abuse, insult and provoke him into some other conduct, otherwise than lawful. The incident at the Ocean View Bar bears testimony to this. The evidence shows that there was a scuffle between Speaker Senda and the Plaintiff in public. Without the intervention of a third party the consequence might embarrass, not only the actors in this drama, but also the Legislature and tarnish its image, reputation and credibility in the eyes of the electorate. I therefore hold that the letter at issue is not protected by the constitutional guarantee of freedom of speech under the Pohnpei Constitution. The letter clearly for itself.
Second, the. use by the plaintiff of office stationery for his private purposes for which the plaintiff is charged with misappropriation of government property warranting his removal. The evidence shows that there was just one instance of this offense. Indeed misappropriation of government property attracts the sanction of removal under the Manual of Administration. Technically, a person who turns or puts government property to a wrong purpose is guilty of misappropriation. Therefore, a chafe of misappropriation of government property is legally sustainable against the plaintiff for using government stationery for his private
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purposes. It
is rather unfortunate that there was just one instance in which the plaintiff used government property in the manner proscribed. Yet however trivial this may seem this Court may not question the causes for disciplinary action, their categorization and the morality of the sanctions therefor as these are matters for the Legislature. s discretion. At the Legislature. s misappropriation of government property attracts the sanction of removal. Accordingly, removal is appropriate on the second charge.
Third, the alleged violations of the officials dress code for which the plaintiff was charged with insubordination. The plaintiff did not deny the violations but contends that the violations were on certain isolated occasions therefore termination of his unemployment was grossly disproportionate tot he offense and amounted to an arbitrary abuse of discretion. Here too I wish to repeat that this Court cannot question the causes
for
disciplinary proceedings and the relative sanctions as provided for in the Legislature. s Manual of Administration because these are matters for the Legislature discretion. The evidence is clear that the official dress policy had been in effect
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prior to its adoption in the written for of L.R. No. 119-86 on October 7, 1986. Insubordination under the Legislature. s Manual of Administration is punished by removal even if the offense is committed for the first time. The evidence, however, shows that the plaintiff was guilty of insubordination on more than one occasion. Insubordination is refusal to obey some order which a superior officer is entitled to give and have obeyed. It is important a willful disrespect of express or implied directions of the superior officer and refusal to obey reasonable orders. Garvin v. Chambers 232 .P 696, 701, Macintosh v. Abbot 120 NE 383. This has always been held sufficient ground for the discharge of a servant Mair v. Southern Minn. Broadcasting Co. 4 ALR 2d 273. A single deliberate act of disobedience amounting to insubordination of a particular order given in a particular matter in such manner as to indicate the intention to defy the authority of the employer, warrants the instant dismissal of the employee. Here, however, the plaintiff was given a hearing before his termination. I find that there was therefore sufficient legal ground for his removal on this charge.
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Lastly, the Legislature Christmas party pig incident for which the plaintiff was charged with disrespect and which constituted one of the causes for his dismissal. In this case too the plaintiff does not deny that he took away the hind quarter of the pig. In fact he states that he and other persons (not appearing as witnesses) ate some of the hot meat before the party which he was not going to attend. He merely wanted to share in the refreshment for the party by taking some of the meat, but had not intended any disrespect to anyone. The plaintiff seeks justification of his conduct by saying that others, including a member of the Legislature, preceded him in taking some of the meat. There is no showing whether they took samples or portions of the meat. But it must be stated at once that a wrong by another is no excuse by a person to commit a wrong.
The Pohnpei State Legislature Leadership Committee which heard the charges against the plaintiff states in its decision that "Pohnpei official parties follow acceptable norms of a traditional feast. Distribution of food in Pohnpeian feasts is made in accordance with the ranking of those title holders present at the feast. To precede a lower title over a higher title in the distribution of food
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in a feast is an act of disrespect and is not considered to be within the norms of . wahu. which is the basic underlying structure of our society and tradition.. But arguments by the plaintiff n his defense were that the occasion was a Christmas party and that public funds were used in purchasing the food would be contributed by private individuals. Thus his conduct was to be judged according to Pohnpeian custom, i.e. by accepting his apology and statements that he intended no disrespect by his actions.
It is not unknown to native Pohnpeians that in every social setting, traditional or otherwise, where Pohnpeians come together respect is accorded to people compatible with the ranking system of society. Accordingly, any act that is a manifestation of disrespect of rank is not in keeping with custom and tradition in any event. The core of the act at issue here is one of going against Pohnpeian customary and traditional norms not in the traditional setting but in the official setting. But the plaintiff as a Pohnpeian should have known how his conduct would be viewed in Pohnpeian society. To say that the occasion was a Christmas Party and that public funds were used in purchasing the food including
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the pig does not avail the plaintiff. Chaos would result if people disrespect accepted norms of behavior and try to draw fine distinctions to find justification for conduct which does not conform to accepted norms. It is a healthy society that cherishes the virtues of its heritage and lives by them and makes them permeate the entire fabric of the lives of its people. To abandon such virtues is to invite the destruction of the people. s heritage.
In my opinion, therefore, it is immaterial where a feast is held, whether official or traditional due respect must be given to rank and the proper mode of behavior. Any conduct that departs from the accepted Pohnpeian norms constitutes disrespect. In my opinion, too, a person who commits any such act in an official setting though being judged by traditional standards need not necessarily be punished by traditional methods. If the disrespect impacts on his relations with his superiors in the workplace he may be punished according to the rules of the workplace. By the Manual of Administration of the Pohnpei State Legislature disrespect of superiors attracts the sanction of removal, therefore there is sufficient legal basis for invoking this sanction for the pig incident.
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III. JUDGMENT
Where a statute provides that a public officer may be removed for certain specified causes, the order for removal must be based on some one or all of such causes, and may not be made for other causes. 63A Am Jur 2d, Public Officers and Employees, Section 230. I find that the plaintiff. s claim that his removal was for causes other that those specified in the charges against him is not made out, and that there are sufficient legal grounds for his termination. I accordingly dismiss his complaint and deny his claim for damages against the defendant.
So Ordered this 12th day of June, 1991.
/s/
Yoster Carl
Associate Justice
Dated & Entered the 12th day of June, 1991.
/s/
Clerk of Courts,
Pohnpei Supreme Court.