FSM SUPREME COURT TRIAL DIVISION
Cite as Maradol v. Department of Foreign Affairs
13 FSM Intrm. 51 (Pon. 2004)

[13 FSM Intrm. 51]

MATHIAS MARADOL,
Plaintiff,
 
vs.
 
DEPARTMENT OF FOREIGN AFFAIRS OF
THE FEDERATED STATES OF MICRONESIA,
Defendant.
 
CIVIL ACTION NO. 2002-048
 
ORDER GRANTING SUMMARY JUDGMENT
IN PART AND REMANDING CASE
 
Andon L. Amaraich
Chief Justice
 
Decided: November 26, 2004

APPEARANCES:

For the Plaintiff:                    Stephen V. Finnen, Esq.
                                              Law Offices of Saimon & Associates
                                              P.O. Box 1450
                                              Kolonia, Pohnpei FM 96941
 
For the Defendant:              R. Anthony Welch, Esq.
                                             Assistant Attorney General
                                             FSM Department of Justice
                                             P.O. Box PS-105
                                             Palikir, Pohnpei FM 96941

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HEADNOTES

Public Officers and Employees
     A timely appeal by a public employee of his termination by submitting a letter brief to the Assistant Secretary for Personnel Administration entitles him to a hearing on his appeal within fifteen calendar days after the Personnel Officer receives the appeal, unless the appellant requests a delay. A postponement longer than that by the government not consented to by the appellant is not in compliance with the law. Maradol v. Department of Foreign Affairs, 13 FSM Intrm. 51, 52-53 (Pon. 2004).
 
Public Officers and Employees
     The ad hoc committee is required to prepare a full written statement of its findings of fact and its recommendations for action within seven calendar days after the close of its hearing. Maradol v. Department of Foreign Affairs, 13 FSM Intrm. 51, 54 (Pon. 2004).

[13 FSM Intrm. 52]

Administrative Law ) Judicial Review; Public Officers and Employees
     When there are non-frivolous disputes about the grounds for termination, the decision of the ad hoc committee should identify and address those grounds with specificity, and when they have not, the court will remand the case to the ad hoc committee to prepare a full written statement of its findings of fact to be forwarded to the President for his final review. If, after the President completes his final review, any party believes such action is necessary and appropriate, the party may file a motion to reinstitute the judicial proceedings. Maradol v. Department of Foreign Affairs, 13 FSM Intrm. 51, 54-55 (Pon. 2004).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

I.

     This is an employment case arising out of the termination of Plaintiff Mathias Maradol from his position as Deputy Assistant Secretary of the Department of Foreign Affairs. Plaintiff is represented by Mr. Steven Finnen. The Department of Foreign Affairs is represented Mr. Anthony Welch of the Department of Justice.

     Presently before the Court are: (1) Maradolís motion for summary judgment and (2) a cross motion for summary judgment filed by the Department of Foreign Affairs ("Department"). For the reasons set forth below, the Court will grant Maradolís motion for summary judgment in part and remand this case to the ad hoc committee for further findings.

II.

     On April 22, 2002, Maradol received a letter from the Secretary of the Department of Foreign Affairs stating that his employment with the Department would terminate on April 30, 2002. The letter cited alleged instances of neglect of duty and insubordination as cause for the termination. The letter also informed Maradol of his right to appeal the termination and the procedures to be followed in doing so.

     On May 7, 2002, Maradol timely appealed his termination by submitting a letter brief to the Assistant Secretary for Personnel Administration. Under the National Public Service System Act, this entitled Maradol to a hearing on his appeal by no later than May 22, 2002. See 52 F.S.M.C. 155 ("The hearing shall be held within fifteen calendar days after the Personnel Officer receives the appeal, unless the appellant requests a delay." (emphasis added)).

     On May 16, 2002, counsel for the Department sent a letter to Maradol requesting that Maradol consent to a postponement of the hearing in his appeal. The postponement was sought because one member of the panel appointed to hear Maradolís appeal was going to be off-island on government business and because the Secretary of the Department of Foreign Affairs was going to be in San Francisco in connection with Compact negotiations.

     On May 20, 2002, Maradol responded in writing that he would not consent to a postponement of the hearing. Maradol noted that, although he would normally try to accommodate scheduling difficulties, he needed to obtain a hearing on his appeal quickly because he had not received any pay or benefits since his termination on April 30, 2002.

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    Despite Maradolís lack of consent to the requested postponement, a hearing was not timely held by May 22, 2002 as required. This postponement was not in compliance with the law.

     On or about June 15, 2002 the Department made a lump sum payment to Maradol equal to the salary he would have earned in his former position from April 30, 2002 to June 15, 2002. The Department also continued to make biweekly salary payments to Maradol after June 15, 2002 until August 23, 2002.

     On the latter date, the ad hoc committee assigned to hear Maradolís appeal issued a decision affirming Maradolís termination. Although the ad hoc committee held a hearing for approximately eight days, its formal opinion on the matter was quite brief, stating little more than the following:

[T]he Committee considered two issues in this case and they are Neglect of duty and Insubordination. After the presentation of the evidence and facts, the Committee concluded that the above issues are the main points of terminating the employee. The facts presented shows [sic] that the appellant did not complete work assign [sic] to him by his supervisors and refused to follow the instructions of his supervisors.

There were also fact [sic] presented to the Committee that the supervisors of the appellant tried on several occasions to work with the appellant to improve his work attitude & etc, but with no avail.

     On October 7, 2002, then President Leo A. Falcam issued a decision agreeing with the conclusion of the ad hoc committee. This decision stated:

WHEREAS, I have reviewed the deliberations of the ad hoc committee and have found that the reasons for the termination are justified and well borne by the evidence presented in the appeal:

NOW THEREFORE, I hereby conclude that the decision of the ad hoc committee upholding the termination of Mathias Maradol from his employment in the Department of Foreign Affairs for neglect of duty and insubordination is justified by the evidence in the case and is for the good of the public service system.

     On December 12, 2002, Maradol filed a two-count complaint against the Department with this Court. Maradol alleged in part that his termination was not supported by substantial evidence and that the procedures followed by the Department, the ad hoc committee, and the President in consummating his termination violated both the Constitution and the National Public Service System Act. For these reasons, he requested the Court to set aside his termination and reinstate him to his former position with back pay and benefits. He also requested damages for emotional distress and other harms that allegedly resulted from his termination.

III.

     Maradol presently requests this Court to issue a summary judgment order: (1) overturning the decisions of the ad hoc committee and the President; (2) reinstating him to his position as Deputy Assistant Secretary of the Department of Foreign Affairs; and (3) awarding him back pay. Maradol asserts that he is entitled to this relief on summary judgment because his termination was effectuated in violation of a number of his procedural rights ) both constitutional and statutory. Specifically, Maradol says that he was denied the following procedural rights:

[13 FSM Intrm. 54]

1. The right to an opportunity to respond to the charges against him before being terminated. See Semes v. FSM, 4 FSM Intrm. 66 (App. 1989).

2. The right to a timely hearing in front of the ad hoc committee. See 52 F.S.M.C. 155;

3. The right to a written decision from the ad hoc committee containing a full statement of the committeeís findings of fact. See 52 F.S.M.C. 156.

4. The right to a factually sufficient final decision from the highest management official responsible for the agency in which Maradol was employed (i.e., the President). See 52 F.S.M.C. 156.

Maradol argues that any of these procedural deprivations ) standing alone ) entitles him to the summary judgment order he seeks.

     The Department opposes Mardolís motion for summary judgment on a number of grounds. It also seeks summary judgment in its own right. In support of its own motion, the Department asserts that the President independently reviewed the record created during Maradolís hearing before the ad hoc committee and determined that Maradol had neglected his duties, that he had been insubordinate, and that his termination was for the good of the public service. The Department then argues that, because there is substantial evidence to support each of these findings, and because Maradolís various claims that he was deprived of certain procedural rights lack merit, summary judgment must be entered in the Departmentís favor.

IV.

     The Court will address Maradolís summary judgment motion first. Because the Court finds that one of the procedural deprivations asserted by Maradol warrants remanding this case to the ad hoc committee, the Court will refrain from addressing Maradolís other grounds for summary judgment. The Court will also refrain from ruling on the Departmentís motion for summary judgment at this time.

V.

      As noted above, Maradol contends, among other things, that he is entitled to summary judgment because the decision of the ad hoc committee recommending his termination "contained no findings of fact." Maradolís Opening Brief at 15. Maradol bases his argument on the decision of the ad hoc committee and Section 156 of Title 52 of the FSM Code, which requires the ad hoc committee "to prepare a full written statement of its findings of fact and its recommendations for action within seven calendar days after the close of the hearing." 52 F.S.M.C. 156.

     The Court agrees with Maradol to the extent he argues that the ad hoc committeeís generalized findings of fact are insufficient to constitute "a full written statement of [its] findings of fact" as is required under the law. See id. For example, the record before the Court reveals that the Department contended that it assigned a number of specific projects to Maradol and that Maradol failed to complete these projects. The record also reveals that Maradol submitted conflicting evidence with respect to most, if not all, of the projects identified by the Department. Despite these evidentiary conflicts, the ad hoc committee decision made no effort to identify any specific project that Maradol failed to complete. Similarly, the ad hoc committee decision failed to identify any specific instances where Maradol refused to follow the instructions of his supervisors.

     The Court believes that when, as here, there are non-frivolous disputes about the grounds for

[13 FSM Intrm. 55]

termination, the decision of the ad hoc committee should identify and address those grounds with greater specificity. For this reason, the Court will remand this case to ad hoc committee to prepare a "full written statement" of its findings of fact. See 52 F.S.M.C. 156.

VI.

     Because the Court has chosen to remand this case to the ad hoc committee for further findings, the Court will abstain from making any further rulings in connection with the summary judgment motions filed by Maradol and the Department.

VII.

     For the reasons set forth above, it is hereby ordered that Plaintiffís motion for summary judgment is granted in part and that this case is remanded to the ad hoc committee to prepare a full written statement of its findings of fact. The statement shall be prepared within 90 days of the date of this order and forwarded on to the President for final review as provided for in 52 F.S.M.C. 156. After the President completes his final review consistent with 52 F.S.M.C. 156, any party may file a motion to reinstitute proceedings in this case should the party believe such action is necessary and appropriate.

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