KOSRAE STATE COURT TRIAL DIVISION
Cite as Jackson v. Kosrae
11 FSM Intrm. 197 (Kos. S. Ct. Tr. 2002)

[11 FSM Intrm. 197]

KENYE G. JACKSON,
Plaintiff,
 
vs.
 
STATE OF KOSRAE and RENSLEY A. SIGRAH,
Defendants.
 
CIVIL ACTION NO. 59-01
 
MEMORANDUM OF DECISION
 
Aliksa B. Aliksa
Associate Justice
 
Trial: September 17, 2002
 
Decided: October 14, 2002
 
APPEARANCES:
 
For the Plaintiff:                        Canney L. Palsis, Esq.
                                                   Micronesian Legal Services Corporation
                                                   P.O. Box 38
                                                   Lelu, Kosrae FM 96944
 
For the Defendant:                  Edward Buckingham, Esq.
                                                  Assistant Attorney General
                                                  Office of the Kosrae Attorney General
                                                  P.O. Box 870
                                                  Lelu, Kosrae FM 96944

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HEADNOTES

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     The Kosrae State Courts standard of judicial review of final decisions made under the State Public Service System is that the court will decide all relevant questions of law and fact, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The court is authorized to compel, or hold unlawful and set aside agency actions. Jackson v. Kosrae, 11 FSM Intrm. 197, 199 (Kos. S. Ct. Tr. 2002).
 
Public Officers and Employees ) Kosrae
     A position in the Executive Service is a defined set of work responsibilities in the Executive, and if an employee performs duties in addition to those stated in the classification plan for his regular position and the compensation for the position which normally includes the additional duties is greater than her regular salary, she receives the greater salary during the period of performance. Jackson v. Kosrae, 11 FSM Intrm. 197, 200 (Kos. S. Ct. Tr. 2002).

[11 FSM Intrm. 198]

Public Officers and Employees ) Kosrae
     When the duties performed by the plaintiff in the Diabetic and Hypertension Program were regular duties of the Head Nurse position pursuant to the classification plan and were not in addition to those stated in the classification plan for the Head Nurse position, the plaintiff is not entitled to additional compensation or a higher salary during the time she performed those duties. Jackson v. Kosrae, 11 FSM Intrm. 197, 200 (Kos. S. Ct. Tr. 2002).
 
Public Officers and Employees ) Kosrae
     The state was not required to change the plaintiffs position to the CDC Coordinator when her duties did not substantially change after she was assigned to perform some of the CDC Coordinator duties and when it was not a "temporary promotion" to the position of CDC Coordinator because she did not assume all or nearly all of the CDC Coordinator duties, which were shared and completed by four employees including her. Jackson v. Kosrae, 11 FSM Intrm. 197, 200 (Kos. S. Ct. Tr. 2002).
 
Public Officers and Employees ) Kosrae
     A state employees government service is governed by law, first by the Kosrae State Code, Title 5, the Executive Service Law, and later by Title 18, the State Public Service System Law. A public service employee does not have any contractual entitlements, and thus a state employees contract claim against the state is without merit and will be dismissed. Jackson v. Kosrae, 11 FSM Intrm. 197, 201 (Kos. S. Ct. Tr. 2002).

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COURTS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     This matter was called for trial on September 17, 2002. Canney L. Palsis, MLSC, represented the Plaintiff. Edward Buckingham, Assistant Attorney General, appeared for the Defendants. The following persons testified at the trial: Kenye G. Jackson, Director Hiroshi Ishmael, Dr. Vita Skilling, Matchuko A. Talley, and Salpasr Tilfas. After the trial, the matter was taken under advisement. This Memorandum sets forth the Courts decision and reasoning.

I. Findings of Fact

      This matter involves claims made by the Plaintiff with respect to actions which took place from 1991 through the present time. The initial actions complained of that were taken by the State more than ten years ago took place under a previous administration. However, due to the delayed timing of administrative review, this matter now comes before this Court for disposition.

      Plaintiff is a long term permanent employee of the Kosrae State Government Plaintiff was initially hired in 1978 as a Staff Nurse I, following her graduation from the Saipan School of Nursing with an Associate of Science degree. Plaintiff worked as a Staff Nurse I until April 21, 1991, when she was reallocated to the position of Head Nurse at pay level 16/5.

      Following Plaintiffs reallocation to Head Nurse, Plaintiff was assigned additional duties by Matchuko Talley, Plaintiffs supervisor, who is also Plaintiffs sister-in-law. Plaintiff was assigned responsibility for the Diabetic and Hypertension Program in the Public Health Division, from approximately April 1991 through approximately March 1992. Plaintiff then began performing some of the duties of the of the Communicable Disease Control Coordinator position in approximately March 1992. The communicable Disease Coordinator position was vacant, due to lack of funding. The duties

[11 FSM Intrm. 199]

of the Communicable Disease Control Coordinator position were shared among four employees, including the Plaintiff. In March 1992, Plaintiffs supervisor, Matchuko Talley, requested a promotion for the Plaintiff to the position of Communicable Disease Control Coordinator. However, the request for the promotion was reviewed and denied by the Director of Health Services. Furthermore, the Chief of Public Health did not concur with the assignment of additional duties to the Plaintiff. Although Plaintiff has held the position of Head Nurse, from 1992 through the present time, the Plaintiff has been addressed, both verbally and in writing, by various staff members of the Department of Health, Kosrae State and the FSM National Government, as Communicable Disease Control Coordinator and CDC Coordinator.

     In March 1993, Plaintiff filed a written grievance with then Director of Health Services, Singkitchy George. Plaintiff requested a higher salary based upon her additional duties and responsibilities. Plaintiff claimed she was entitled to higher pay as a Nurse Specialist from April 1991 through January 1992 and then as a Nurse Coordinator from January 1992 forward. Plaintiffs grievance was denied and Plaintiff timely appealed to the Director of Personnel and Employment Services. The Director of Personnel and Employment Services denied Plaintiffs claims, on the basis that the additional duties claimed by the Plaintiff were actually required duties of a Head Nurse. The Directors decision was timely appealed to the former Executive Service Appeals Board. The Executive Service Appeals Board did not hold a hearing as required. In 1997, the State Public Service System was created, along with the Ad Hoe Committee, whose duty it was to hear grievances.

     The Ad Hoc Committee held its hearing in October 2000 and issued its findings and recommendation on November 14, 2000. The Ad Hoc Committee found in favor of the Plaintiff and recommended that the Plaintiff was entitled to compensation at the level of the Communicable Disease Control Coordinator, at level PL-25, retroactive to March 1992. Governor Rensley A. Sigrahs rejected the recommendation of the Ad Hoc Committee on May 25, 2001 and denied Plaintiffs claim. This lawsuit followed.

     At the trial, both Director Hiroshi Ishmael and Salpasr Tilfas both testified that the duties performed by the Plaintiff were regular duties of the Head Nurse position, as stated in the classification plan. The duties completed by the Plaintiff with the Diabetic and Hypertension Program during 1991-1992 were regular duties of the Head Nurse Position. The duties completed by the Plaintiff with the CDC Program from 1992 to the present time were regular duties of the Head Nurse Position.

II. Standard of Review.

      Kosrae State Code, Section 18.507(2) sets forth the standard of review by this Court in its judicial review of final decisions made under the State Public Service System. Kosrae State Code, Section 18.507 provides that the Court shall decide all relevant questions of law and fact, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Pursuant to Section 18.507(2), the Court is authorized to compel, or hold unlawful and set aside agency actions.

III. Legal Analysis.

      Plaintiff claims that she is entitled to higher compensation since January 1991. Plaintiff claims that she is entitled to higher compensation due to her additional duties of conducting the Diabetic and Hypertension Program from early 1991 through approximately March 1992. Plaintiff also claims higher compensation due to her additional duties performed for the Commnunicable Disease Control Program. Plaintiff claims that she is entitled to the higher salary from March 1992 through the present time, based upon her performance of some of the duties of the position of Communicable Disease Control

[11 FSM Intrm. 200]

Coordinator.

     The relevant facts in this case occurred from 1991 to the present time. Former Kosrae State Code, Tide 5 (repealed) is applicable to this matter, and specifically to Plaintiffs position within the Executive Service System, from 1991 through 1997. All references to Kosrae State Code, Tide 5 are made as they existed during relevant time periods in this matter. Kosrae State Code, Tide 18 is applicable to Plaintiffs position from 1997 through the present time.

     Plaintiff was classified as a Head Nurse, pay level 16/5 when she was assigned duties in the Diabetic and Hypertension Program. Plaintiff conducted surveys in the community, gave out medicines, gave educational programs and gave injections. Plaintiff continued to be classified and paid as Head Nurse at PL-16 when she was assigned duties in the area of Communicable Disease Control ("CDC"). Plaintiff was assigned and completed some, but not all of the duties of the Communicable Disease Control Coordinator position. Here also, Plaintiff conducted surveys in the community, distributed medicines, and provided education on leprosy, tuberculosis and other communicable diseases. The duties of the CDC Coordinator was performed by a total of four employees, including the Plaintiff.

     Kosrae State Code, Title 5, set forth the Executive Service System law. A position in the Executive Service is a "defined set of work responsibilities in the Executive." Kos. S.C.  5.101(18).

     Kosrae State Code, Section 5.427 provides that: "If an employee performs duties in addition to those stated in the classification plan for his regular position and the compensation for the position which normally includes the additional duties is greater than his regular salary, he receives the greater salary during the period of performance."

     I conclude, based upon the evidence presented at the trial, that the duties performed by the Plaintiff in the Diabetic and Hypertension Program were duties of the Head Nurse position. These duties performed by the Plaintiff were regular duties of the Head Nurse position pursuant to the classification plan. The duties performed by the Plaintiff were not in addition to those stated in the classification plan for the position of Head Nurse. Therefore, Kosrae State Code, Section 5.427 does not apply here. Plaintiff is not entitled to additional compensation or a higher salary during the time she performed duties in the Diabetic and Hypertension Program in 1991-1992.

      I also conclude, based upon the evidence presented at the trial, that the duties performed by the Plaintiff in the CDC Program were duties of the Head Nurse position. These duties performed by the Plaintiff were regular duties of the Head Nurse position pursuant to the classification plan. The duties performed by the Plaintiff were not in addition to those stated in the classification plan for the position of Head Nurse. Therefore, Kosrae State Code, Section 5.427 does not apply here. Plaintiff is not entitled to additional compensation or a higher salary during the time she performed duties in the CDC Program from 1992 to the present time.

      Finally, I conclude that the Defendant was not required to change Plaintiffs position to the CDC Coordinator in 1992 or anytime thereafter. Plaintiffs duties did not substantially change when she was assigned to perform some of the duties of the CDC Coordinator. These duties were regular duties of the Head Nurse position and Plaintiff continued to be properly assigned to the position of Head Nurse.

     Plaintiff relies upon the case of Akira Timothy v. Director of Personnel, Civil Action No. 41-01, Opinion (Kos. S. Ct. Tr. Dec. 19, 1991). In the case of Akira Timothy, Mr. Timothy was granted a "temporary promotion" the position of Acting Chief of Dental Division, which was vacant. Mr. Timothys temporary promotion was documented by a Personnel Action Form. As Acting Chief, Mr. Timothy performed nearly all of the duties of the Chief s position. The facts in the case of Akira

[11 FSM Intrm. 201]

Timothy can be distinguished from the facts in this case and Plaintiffs reliance upon the case of Akira Timothy is misplaced.

     In this case, unlike Akira Timothys assignment, Plaintiff was not assigned a "temporary promotion" to the position of CDC Coordinator. More importantly, unlike Akira Timothy, Plaintiff did not assume all or nearly all of the duties of the CDC Coordinator Position. The duties of the CDC Coordinator position were shared and completed by four employees, including the Plaintiff. Therefore, the facts forming the basis for the decision in Akira Timothy are not present here. The facts in the case of Akira Timothy are different from the facts of this case, and therefore it is not applicable to this case.

     Finally, Plaintiff raised a breach of contract claim in her complaint. Plaintiffs government service is governed by law, first by the Executive Service Law, Kosrae State Code, Title 5, and later by the State Public Service System Law, Kosrae State Code, Title 18. A public service employee does not have any contractual entitlements. Sohl v. FSM, 4 FSM Intrm. 186 (Pon. 1990); Edwin v. Kosrae, 4 FSM Intrm. 292 (Kos. S. Ct. Tr. 1990). Accordingly, Plaintiffs contract claim is without merit and will be dismissed.

IV. Conclusion.

     Plaintiff has failed to prove, by a preponderance of the evidence, that she is entitled to relief on any of the causes of action stated in her complaint. The Defendants are not liable to the Plaintiff on any of the four causes of action stated in the complaint. Accordingly, judgment shall be entered in favor of the Defendants and against the Plaintiff.

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