KOSRAE STATE COURT TRIAL DIVISION

Cite as Palsis v. Tafunsak Mun. Gov’t, 14 FSM Intrm. 517 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 517]

AMBROSE A. PALSIS,

Plaintiff,

vs.

TAFUNSAK MUNICIPAL GOVERNMENT,

and MAYOR OF TAFUNSAK,

Defendants.

CIVIL ACTION NO. 14-06

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa

Chief Justice

Trial: November 9, 2006

Decided: December 27, 2006

APPEARANCES:

For the Plaintiff:              Sasaki L. George, Esq.

                                       Micronesian Legal Services Corporation

                                       P.O. Box 38

                                       Tofol, Kosrae   FM   96944

[14 FSM Intrm. 518]

For the Defendants:        Robinson Timothy

                                        P.O. Box 261

                                        Tofol, Kosrae   FM   96944

* * * *

HEADNOTES

Constitutional Law ) Kosrae ) Due Process; Public Officers and Employees ) Kosrae

      Employment is a property right protected by the Kosrae Constitution when there is an assurance of continued employment or when dismissal is allowed for specified reasons. An employee’s personal hope of continued employment or the expiration of a contract with no provisions for renewal does not give rise to a property interest. Thus, when the Tafunsak Constitution states that the position of Treasurer is a four-year term and the plaintiff’s employment was terminated before the term’s end, this is sufficient to show an assurance of continued employment and gives rise to a property right protected by due process under the Kosrae Constitution. Palsis v. Tafunsak Mun. Gov’t, 14 FSM Intrm. 517, 520 (Kos. S. Ct. Tr. 2006).

Constitutional Law ) Kosrae ) Due Process; Public Officers and Employees ) Kosrae

      Once a property interest is found to exist, the next step is to determine if due process rights were violated. The court looks at whether the procedures used to apply the disciplinary action were fair based on the circumstances of the case; procedures must assure a rational decision making process. Municipal defendants are not required to follow the State of Kosrae’s Public Service System laws and regulations and are not required to adopt their own written procedures, but they must be fair considering all the circumstances and use a rational decision making process. Palsis v. Tafunsak Mun. Gov’t, 14 FSM Intrm. 517, 520 (Kos. S. Ct. Tr. 2006).

Constitutional Law ) Kosrae ) Due Process; Public Officers and Employees ) Kosrae

       Where the plaintiff claims that he was not given an administrative remedy and did not have an opportunity to meet or rebut the allegations against him and when the defendants began by giving the plaintiff written notice listing specific issues and specifying their concerns about the plaintiff’s failure to perform his duties and gave the plaintiff several months until late February 2004 to correct his behavior; when the plaintiff did not change his behavior to perform his job responsibilities and he spoke with the defendants about resigning from employment during this time period, thus demonstrating that he met with the defendants and had an opportunity to rebut the first letter’s allegations; the Council gave him a copy of its March 2004 letter to the Mayor recommending termination of his employment; when the Mayor’s letter to the plaintiff based on this recommendation again gave him an opportunity to bring forth any grievances, this procedure consistently gave the plaintiff notice of the defendants’ specific reasons for concern and gave him several opportunities to meet and rebut allegations and bring forth grievances and was thus fair based on the circumstances and was based on a rational decision-making process. Palsis v. Tafunsak Mun. Gov’t, 14 FSM Intrm. 517, 520 (Kos. S. Ct. Tr. 2006).

Public Officers and Employees ) Kosrae

      The Tafunsak Constitution provisions about the Treasurer’s employment do not conflict with the provision that the Council can terminate a municipal employee with a b vote. Palsis v. Tafunsak Mun. Gov’t, 14 FSM Intrm. 517, 520-21 (Kos. S. Ct. Tr. 2006).

* * * *

[14 FSM Intrm. 519]

COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

     This matter was called for trial on November 9, 2006. Sasaki George, MLSC, represented the Plaintiff. Robinson Timothy represented Defendant. The following witnesses testified at the trial: Rev. Alik R. Palsis, Ambrose A. Palsis, Johnson Taulung, Marris Jackson, and Barnabas Palsis.

     After completing the trial, I took the matter under advisement. This Memorandum of Decision sets forth my ruling and reasoning.

I.   Findings of Facts.

     Based upon the evidence presented at trial, I find the following facts. Plaintiff began his employment as Treasurer for the Tafunsak Municipal Government, Defendant, in about January 2003. He was appointed by the Mayor with the approval of the Council for a four-year term, consistent with Article VIII, Section 2, Tafunsak Constitution. The duties of that position include maintaining accounts and records of expenditures, preparing reports on expenditures, collecting municipal taxes, disbursing public funds and administering the Tafunsak Treasury.

     The Tafunsak Council informed Plaintiff by letter dated November 20, 2003 that he may be dismissed from his position due to a failure to perform the duties required of the position, and his misconduct and mishandling of funds. The purpose of this letter was to give Plaintiff a chance to perform his duties in a proper manner. Between November 20, 2003 and February 23, 2004, Plaintiff talked with Defendants about resigning as Treasurer. He continued to neglect his duties. In a letter to the Mayor dated February 23, 2004, the Council recommended that Plaintiff resign. The letter identified five examples of misconduct by Plaintiff including not showing up for work, being drunk at work, and destroying property. Plaintiff received a copy of this letter. Plaintiff’s Exhibits No.1 and 2. After receiving the letter from the Council, the Mayor served Plaintiff with a written notice to end his employment dated March 3, 2004. Plaintiff received this notice on or about March 10, 2004. This notice stated the reasons for ending the employment, effective March 30, 2004, and gave Plaintiff an opportunity to bring forth any grievances to the Defendants. Plaintiff filed his Complaint on March 3, 2006. The Complaint acknowledges service of the letter dated March 3, 2004. The Plaintiff also denied, under oath, in his responses to discovery, that he received this letter. The Court questions Plaintiff’s credibility based on these inconsistent statements.

     The Court finds that the Complaint acknowledges service of the letter dated March 3, 2004 and finds that Plaintiff later denied, under oath, in his responses to discovery that he received the letter. The Court questions Plaintiff’s credibility based on these inconsistent statements.

II.   Analysis.

      In his Complaint, Plaintiff alleges that his employment as Treasurer was terminated in violation of the Tafunsak Constitution, in violation of due process, and through the negligence of the Mayor. The Defendants’ Answer asserts that Plaintiff was terminated because of his misconduct and mishandling of funds. It denies that Plaintiff’s rights were violated, denies the Mayor was negligent, and claims that Plaintiff breached his duties and responsibilities to the Tafunsak Municipality.

      Our decision is summarized as follows: Plaintiff had a property interest in continued employment based on the four-year term for Treasurer provided in the Tafunsak Constitution. Therefore, the Tafunsak Municipality must provide due process and can terminate his employment only for good cause

[14 FSM Intrm. 520]

and using a fair and rational decision-making process. The Tafunsak Municipality had good cause to terminate employment based on Plaintiff’s misconduct. The Tafunsak Municipality used a fair and rational decision-making process by taking the following steps:

1.   Giving Plaintiff a written notice specifying what he was doing wrong and asking him to perform his duties properly or he may be dismissed,

2.   Giving Plaintiff about three months to perform his duties in a proper manner; and,

3.   Giving Plaintiff a second written notice that included the specific reasons for terminating his employment and offered an opportunity to present any grievances.

     Therefore, Plaintiff’s request for relief is denied.

     Employment is a property right protected by the Kosrae State Constitution when there is an assurance of continued employment or when dismissal is allowed for specified reasons. An employee’s personal hope of continued employment or the expiration of a contract with no provisions for renewal does not give rise to a property interest. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 237 (Kos. S. Ct. Tr. 2001) (citing Suldan v. FSM (II), 1 FSM Intrm. 339, 352 (Pon. 1983); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). Here, the Tafunsak Constitution states that the position of Treasurer is a four-year term. Tafunsak Const. art. VIII, § 2. Plaintiff’s employment was terminated before the end of the term. This is sufficient to show an assurance of continued employment and gives rise to a property right protected by due process under Article II, § 1(b) of the Kosrae State Constitution.

     Once a property interest is found to exist, the next step is to determine if due process rights were violated. We look at whether the procedures used to apply the disciplinary action were fair based on the circumstances of the case; procedures must assure a rational decision making process. Taulung v. Kosrae, 3 FSM Intrm. 277, 280 (Kos. S. Ct. Tr. 1988) (citing SCREP No. 23, II J. of Micro. Con. Con. 795; Suldan (II) (supra)). Defendants are not required to follow the State of Kosrae’s Public Service System laws and regulations and are not required to adopt their own written procedures. But, Defendants must be fair considering all the circumstances and use a rational decision making process.

      In his Complaint, Plaintiff does not question the grounds for termination of employment. His claims relate to the procedures used; that he was not given an administrative remedy and did not have an opportunity to meet or rebut the allegations against him. Defendants began by giving Plaintiff written notice specifying their concerns about Plaintiff’s failure to perform his duties. They listed specific issues and gave Plaintiff several months, from late November 2003 to late February 2004, to correct his behavior. Plaintiff did not change his behavior to perform his job responsibilities and he spoke with the Defendants about resigning from employment during this time period. This demonstrates he met with Defendants and had an opportunity to rebut allegations after the first letter. In March 2004, the Council gave him a copy of their letter to the Mayor recommending termination of his employment. The letter from the Mayor to Plaintiff based on this recommendation again gave him an opportunity to bring forth any grievances. This procedure consistently gave Plaintiff notice of Defendants’ specific reasons for concern and gave him several opportunities to meet and rebut allegations and bring forth grievances. We find that the procedure used by Defendants was fair based on the circumstances and was based on a rational decision-making process.

       The parties referred to several provisions about employment of the Treasurer in the Tafunsak Constitution. Article VIII, § 2 states that the Treasurer serves a four-year term and is appointed by the Mayor with the approval of b of the Council. Article IV, § 3, states that the Treasurer is responsible

[14 FSM Intrm. 521]

to, or works for, the Mayor. Article V, § 1(l) states that the Council can terminate an employee of the municipality with a b vote. And, Article VIII, § 5, states that the people of Tafunsak may remove the Mayor, Secretary, and Treasurer through recall.

      The Court finds no conflict in these provisions. The Treasurer is an employee appointed by the Mayor and approved by the Council for a four-year term. If he is not re-appointed at that time, his term ends. No notice or opportunity to be heard is required when the term expires. Also, just as the Mayor cannot hire the Treasurer without approval of the Council, the Mayor cannot terminate the Treasurer’s employment acting alone; the Council must take that action upon a b vote. This is true for all employees hired or appointed by vote of the Council. In addition, the Tafunsak Constitution allows the people of Tafunsak to remove the Treasurer, as well as the Mayor, the Secretary, and members of the Council, directly through a recall procedure. Other employees are not subject to recall by the people of Tafunsak.

     Plaintiff’s request for relief is denied.

III.   Judgment.

     Judgment shall be entered in favor of the Defendants.

* * * *