FSM SUPREME COURT TRIAL DIVISION
Cite as Sam v. Chief of Police
12 FSM Intrm. 587 (Kos. 2004)

[12 FSM Intrm. 587]

SWAITCHER SAM,
Plaintiff,
 
vs.
 
CHIEF OF POLICE, DIRECTOR OF KOSRAE
STATE DEPARTMENT OF ADMINISTRATION,
and KOSRAE STATE GOVERNMENT,
Defendants.
 
CIVIL ACTION NO. 2002-2007
 
ORDER AND MEMORANDUM
 
Martin G. Yinug
Associate Justice
 
Decided: August 5, 2004
 
[12 FSM Intrm. 588] 

APPEARANCES:

For the Plaintiff:                    Sasaki L. George, Esq.
                                              Micronesian Legal Services Corporation
                                              P.O. Box 38
                                              Lelu, Kosrae, FM 96944
 
For the Defendant:              Maureen McGuire, Esq.
                                             Assistant Attorney General
                                             Danny Clearman, Esq. (reply)
                                             Attorney General
                                             Office of the Kosrae Attorney General
                                             P.O. Box 870
                                             Lelu, Kosrae, FM 96944

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HEADNOTES

Civil Procedure ) Summary Judgment
     A movant is entitled to summary judgment in the movant’s favor if there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Sam v. Chief of Police, 12 FSM Intrm. 588, 589 (Kos. 2004).
 
Public Officers and Employees ) Kosrae
     When a state employee would not have been entitled to payment at his usual hourly rate for unused sick leave since he was never injured or ill and denied sick leave, he cannot claim that he has suffered a loss when he lost his accumulated hours of sick leave. Sam v. Chief of Police, 12 FSM Intrm. 588, 589 (Kos. 2004).
 
Constitutional Law ) Due Process; Public Officers and Employees ) Kosrae
     A new law that results in a state employee’s loss of his accumulated sick leave hours is not unconstitutional and a deprivation of property without due process because the right to take payment for sick leave to be taken in the future is a mere expectancy, and does not constitute a vested right entitling the employee to compensation. "Vested" means having the character or given the rights of absolute ownership. Sam v. Chief of Police, 12 FSM Intrm. 588, 590 (Kos. 2004).

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COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

     Good cause appearing, Maureen McGuire’s March 24, 2004, motion to appear for a particular cause is granted.

     Count I of Sam’s complaint seeks compensation for his loss of sick leave hours as a result of the Kosrae’s passage of State Law No. 7-184, now codified as Title 18 of the Kosrae State Code, and which was signed into law on October 22, 2001. Sam challenges the constitutionality under both the national and Kosrae constitutions of § 18.608(2)(e) of Title 18, which provides that "[s]ick leave shall not accrue from year to year," and § 18.608(6), which provides that "[n]o employee shall be paid for

[12 FSM Intrm. 589]

any type of leave that accumulates after this Bill becomes law." The non-accrual provision became effective as of fiscal year 2003, at which time Sam lost 989 hours of accrued sick leave. He alleges that this loss constitutes a deprivation of property without due process of law, and seeks compensation for the lost hours at his usual and customary hourly rate of pay. Sam also makes negligence claims, in counts II and III respectively of the complaint, against both the Kosrae chief of police and the Kosrae director of the department of administration for their failure to respond to his grievances over the loss of his accumulated leave.

     The defendants (collectively "Kosrae") have moved for summary judgment on the basis that Sam is not entitled to any compensation for sick leave because Sam could use his sick leave only if he became ill or injured. Since at relevant times Sam was never ill, never injured, and never denied leave, Kosrae asserts that it is entitled to judgment as a matter of law. In response, Sam has filed a counter-motion for summary judgment in which he contends that the language of § 18.608(2)(e) operates prospectively only, and asserts that he is entitled to compensation for the lost hours.

      A movant is entitled to summary judgment in the movant’s favor if there is no genuine issue of material fact, and plaintiff is entitled to judgment as a matter of law. FSM Civ. R. 56. Even if § 18.608(2)(e) operates prospectively only, there is still nothing in the record to show that prior to the passage of State Law No. 7-184, Sam would have been entitled to payment at his usual hourly rate for unused sick leave. Before State Law No. 7-184 became effective, Executive Service Regulation 8.1(c) required that sick leave be approved by an employee’s immediate supervisor based on a certificate from qualified medical personnel indicating the type of illness and the treatment being administered. Although ESR 8.1(c) provides for no limit on the amount of accumulated sick leave, an employee still had to be ill to use it. Under the new law, § 18.608(2) requires that "[t]o be eligible for sick leave, a permanent employee (I) must be injured or ill and (ii) must have accumulated earned sick leave." Sam does not contend that he was ever injured or ill and denied sick leave. Thus, looking only to the language of the applicable regulation and law, Sam cannot claim that he has suffered a loss when he lost his accumulated hours of sick leave.

     However, Sam urges that any interpretation of the new law by the executive branch that results in his loss of his accumulated sick leave hours is unconstitutional and constitutes deprivation of property without due process. Kosrae cites to Halek v. City of St. Paul, 35 N.W.2d 705 (Minn. 1949). The court in that case considered the same question presented here, and held that the right to take payment for sick leave to be taken in the future was a mere expectancy, and did not constitute a vested right entitling the employee to compensation. 35 N.W.2d at 707. "Vested" means "[h]aving the character or given the rights of absolute ownership." Black’s Law Dictionary 1563 (6th ed. 1990). Halek applies here, since Sam’s entitlement to sick leave was always contingent upon his being ill or injured. Thus, the loss of his unused accrued sick leave does not deprive him of property without due process of law.

     Accordingly, Kosrae’s motion for summary judgment is granted on count I of the complaint. Sam’s counter-motion for summary judgment is denied. Count I of the complaint is dismissed with prejudice.

     Kosrae asserts that counts II and III, for negligence in failing to respond to Sam’s grievance, are contingent upon the first claim, and that these claims should also be dismissed. However, as pled these claims stand independently of the merits of the claim for compensation for the lost hours. Those counts remain.

     With respect to the remaining counts, the parties shall file pretrial statements on or before September 3, 2004, that shall contain the following:

[12 FSM Intrm. 590]

1. The uncontested facts deemed material.

2. Contested issues of fact and law deemed material.

3. A list of witnesses and exhibits intended to be used at trial. No witness or exhibit other than those listed shall be used at trial, except for good cause shown.

This matter will be set for trial at the court’s first available sitting in Kosrae after September 3, 2004.

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