FSM SUPREME COURT APPELLATE DIVISION

Cite as Allen v. Kosrae, 15 FSM Intrm. 18 (App. 2007)

[15 FSM Intrm. 18]

WILSON J. ALLEN,

Appellant,

vs.

STATE OF KOSRAE, ROBERT E. HENRY, in

his official capacity as Director of Education,

and PAUL HADIK, in his official capacity as

Chief of Secondary Education,

Appellees.

APPEAL CASE NO. K3-2005

OPINION

Argued:  April 17, 2007

Decided:  May 14, 2007

[15 FSM Intrm. 19]
 

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
 

APPEARANCES:

For the Appellant:   Canney L. Palsis, Esq.

                                Micronesian Legal Services Corporation

                                P.O. Box 38

                                Tofol, Kosrae   FM   96944
 

For the Appellees:   Cindy Haro, Esq. (brief)

                                 J.D. Lee, Esq. (argued)

                                 Kosrae Attorney General’s Office

                                 P.O. Box 870

                                Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases; Civil Procedure ) Summary Judgment

      On appeal from a summary judgment based dismissal, the standard of review is a de novo determination that there was no genuine issue of material fact and that the party who prevailed below was entitled to judgment as a matter of law. In other words, the reviewing court applies the same standard that the trial court employed when it determined whether the moving party was entitled to summary judgment. Allen v. Kosrae, 15 FSM Intrm. 18, 21 (App. 2007).

Public Officers and Employees ) Kosrae

      Kosrae State Code Title 18 creates the comprehensive Public Service System. An integral part of this system is a classification plan for all state positions subject to the plan. The position classification plan classifies all positions subject to the State Public Service System provisions according to their duties and responsibilities. Positions that are classified under the plan are filled by examination. Allen v. Kosrae, 15 FSM Intrm. 18, 21 (App. 2007).

Public Officers and Employees ) Kosrae

      The Kosrae Public Service System applies to all employees and positions in the state government with fourteen different categories, including contract employees, exempted from its provisions. There are no restrictions on the exemptions that would foreclose or prohibit the Kosrae Department of Education from hiring teachers or a Chief of Secondary Education on a PSS-exempt, contract basis. In the absence of any such limitations, the contract employee exemption applies. Allen v. Kosrae, 15 FSM Intrm. 18, 21-22 (App. 2007).

Public Officers and Employees ) Kosrae; Statutes ) Construction

      When the Legislature has altered the statutory framework only to increase, and not decrease, Kosrae’s hiring discretion for contract employees by removing the single qualification that it had placed on the contract employees exemption, the court cannot limit the hiring discretion thus conferred by the Kosrae Legislature in the absence of a statutory basis for doing so since it is the Kosrae Legislature’s role to consider and determine the public policy that supports a statute, and to enact legislation that

[15 FSM Intrm. 20]

reflects that public policy.Allen v. Kosrae, 15 FSM Intrm. 18, 22 (App. 2007).

Public Officers and Employees ) Kosrae

      When the Kosrae statute defines "public service" as all offices and positions in the state government not exempted by Section 18.107, the requirement that preference be given to FSM citizens with a view to insuring full participation by FSM citizens and state residents in its public service means that the preference will apply to the hiring of individuals for non-exempt, Public Service System positions. Thus, when the position for which another was hired was exempt from the PSS because it was filled on a contract basis, the preference had no application to the hiring. Allen v. Kosrae, 15 FSM Intrm. 18, 23 (App. 2007).

Appellate Review ) Standard of Review ) Civil Cases

      A court need not, and indeed should not, engage in rendering advisory opinions. Allen v. Kosrae, 15 FSM Intrm. 18, 23 (App. 2007).

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COURT’S OPINION

READY E. JOHNNY, Associate Justice:

      Wilson J. Allen appeals the Kosrae State Court’s July 4, 2005 order of dismissal entered after summary judgment in favor of the appellees. The trial court held that Kosrae’s State Public Service System Act (Title 18 of the Kosrae State Code) did not prohibit the Kosrae Department of Education from hiring appellee Paul Hadik as Chief of Secondary Education under a personal services contract. In reaching its decision the court found that the preference provision of the Act, Section 18.104, did not apply. We concur. For the reasons that follow, we affirm the July 4, 2005 order of dismissal.

I.   Background

     The undisputed facts are set forth in detail in the trial court’s July 4, 2005, order granting the defendants’ motion for summary judgment reported at 13 FSM Intrm. 325, 328-29 (Kos. S. Ct. Tr. 2005). A summary follows.

      As of the summer of 2004, the position of principal of Kosrae High School was vacant, and was advertised as a Public Service System ("PSS") position. The list of certified applicants was completed on July 29, 2004, and the names of both the appellant, Wilson J. Allen, and appellee Paul Hadik appeared on the list. Hadik was the first choice of the hiring committee. However, the position was neither then, nor subsequently, filled through the PSS. Instead, on August 19, 2004, Hadik was hired on a personal services contract to fill a new position, that of Chief of Secondary Education, which includes the duties of the principal of Kosrae High School. Hadik’s contract states that the position for which he is hired is not part of the PSS. At the time of hiring, Hadik was already employed under a different education consultancy contract with the Department of Education. Without raising Hadik’s pay level, the new contract increased his hours from 32 to 40 per week, and incorporated new responsibilities for overseeing Kosrae High School.

       On August 31, 2004, Allen filed a complaint and motion for temporary restraining order and preliminary injunction. The complaint alleged two causes of action. The first alleged that Kosrae’s contract with Hadik violated Section 18.302 of the Kosrae State Code, because it required him to perform duties assigned to positions which fall within the PSS, and Hadik was hired on a contract outside the PSS. The second alleged that the contract violates Section 18.104 of the Kosrae State

[15 FSM Intrm. 21]

Code because, according to Allen, that provision requires that preferential hiring be given to FSM citizens who are Kosrae residents. Hadik is an American citizen and an eleven-year resident of Kosrae, while Allen is both a resident of Kosrae and an FSM citizen. On April 25, 2005, the defendants filed their motion for summary judgment. The trial court, finding that the position was exempt from the PSS and that the preference provision of Title 18 therefore did not apply, granted the motion and entered a dismissal on July 4, 2005. This appeal followed.

II.   Standard of Review

      On appeal from a summary judgment based dismissal, the standard of review is a de novo determination that there was no genuine issue of material fact and that the party who prevailed below was entitled to judgment as a matter of law. Department of Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 353, 355 (App. 2000). In other words, the reviewing court applies the same standard that the trial court employed when it determined whether the moving party was entitled to summary judgment. Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998).

III.   Issues

     Allen frames the issues as follows:

1.   The lower court erred in its July 4, 2005 order when it held that Title 18 of the Kosrae State Code or the Public Service System Hiring Procedure does not apply to the hiring of Mr. Paul Hadik as Chief Secondary Education for the Kosrae High School and [sic] not in violation of Title 18.302.

2.   The lower court erred as a matter of fact and law in its July 4, 2005 order when it held that the position of Chief Secondary Education for Kosrae High School was an exempt position and therefore not in violation of Title 18.104 of the Kosrae State Code.

IV.   Discussion

     Allen first contends that the trial court incorrectly found that the requirements of Section 18.302 of the Kosrae State Code did not apply to Hadik. Title 18 of the Kosrae State Code creates the comprehensive Public Service System. An integral part of this system is a classification plan for all state positions subject to the plan. Section 18.302 specifies that "the position classification plan shall classify all positions subject to the provisions of the State Public Service System according to their duties and responsibilities." Positions that are classified under the plan are filled by examination, Kos. S.C. § 18.303, and the Kosrae personnel office published an examination announcement for the position of principal of Kosrae High School that set an opening date of June 3, 2004, and a closing date of June 18, 2004. However, the position was never filled. Allen contends that Kosrae could not, by including the duties of the principal as part of the duties undertaken by Hadik pursuant to his contract as Chief of Secondary Education, "dissect[] such position" and make it an exempt position under Section 18.107. Appellant’s Br. at 13. Allen urges that Kosrae used the exemption provisions of Section 18.107 to violate the requirements of the classification plan under Section 18.302.

     Section 18.107 lists fourteen different categories of positions exempted from the PSS. Specifically, subsection 18.107(9) provides that the PSS "shall apply to all employees and positions in

[15 FSM Intrm. 22]

the government of the State of Kosrae . . . except . . . (9) Contract employees." The trial court found that Kosrae had hired many teachers on ungraded, PSS-exempt contracts, and that this had included teachers originally hired under the PSS who were subsequently changed to PSS-exempt contract status. Further, the trial court took judicial notice that during fiscal year 2005 there were more than one hundred exempt, contract employees within the state government, and that more than one hundred such positions were also proposed for fiscal year 2006. None of the parties points to any restriction on the exemptions listed in Section 18.107 that would foreclose these hiring practices, or prohibit the Kosrae Department of Education from taking the course it elected here, which was to hire Hadik on a PSS-exempt, contract basis. In the absence of any such limitations, the contract employee exemption under subsection 18.107(9) applies. Thus the Department of Education properly exercised the discretion conferred by subsection 18.107(9) when it hired Hadik on a contract basis. The trial court did not err when it found Hadik’s contract was not subject to the PSS.

      Although Allen acknowledges the PSS exemption for contract employees, he goes further and urges that "[t]he government could not just exempt [the position of principal of Kosrae High School] just because it wanted to as it did in this particular matter." Appellant’s Br. at 13. He contends that there must be a Kosrae Public Service System, and that by permitting Kosrae to hire Hadik on a contract basis, the system is at risk. He asserts that "all government employees will become contract employees with little or no protection." Id. at 15. These contentions express a concern for the vitality of the PSS, as well as a concern for the welfare of the state employees who are subject to it. Both are important considerations. However, the same statute that provides for the PSS gave wide latitude to the state in its hiring practices when it exempted a wide range of positions from the PSS. The Legislature has altered this statutory framework only to increase, and not decrease, Kosrae’s hiring discretion for contract employees when by the passage of State Law No. 7-184 it removed the single qualification that it had placed on the contract employees exemption. See supra note 1. This court cannot limit the hiring discretion thus conferred by the Kosrae Legislature in the absence of a statutory basis for doing so. It is the Kosrae Legislature’s role to consider and determine the public policy that supports a statute, and to enact legislation that reflects that public policy. Siba v. Sigrah, 4 FSM Intrm. 329, 336 (Kos. S. Ct. Tr. 1990). A law that the Kosrae Legislature enacts is "the highest form of setting forth the legislature’s policy decisions." Eighth Kosrae Legislature v. FSM Dev. Bank, 11 FSM Intrm. 491, 499 (Kos. 2003).  Allen’s concerns are for the Kosrae Legislature to consider.

      Allen’s second contention is that it was error for the trial court to find that the preference provision of Title 18, which is Section 18.104, did not apply to the hiring procedure for the position of Chief of Secondary Education. He asserts that he should have been preferred over Hadik in the hiring procedure. Hadik, although a long-time eleven-year resident of Kosrae, is an American citizen, while Allen is both an FSM citizen and a Kosrae resident. Section 18.104 provides as follows:

Preference to citizens. (1) Notwithstanding the provisions of Section 103 of this Title, with a view to insuring full participation by FSM citizens and residents of this State in its public service, preference shall be given to qualified FSM citizens and residents of Kosrae State in making appointments and promotions and providing opportunities for training.

Id. (emphasis added).  Allen urges that "FSM citizens and residents of this State" means people who are both FSM citizens and residents. Since both Allen and Hadik are residents, but only Allen is an FSM

[15 FSM Intrm. 23]

citizen, Allen asserts that he should have been selected to fill the position of Kosrae High School principal.

      Irrespective of this or any other interpretation of the preference provision, Allen’s argument fails. Subsection 102(18) of Title 18 defines "public service" as "all offices and positions in the Government of the State of Kosrae not exempted by Section 18.107 of this Chapter." The requirement of Section 18.104 that the preference be given "with a view to insuring full participation by FSM citizens and residents of this State in its public service" (emphasis added) means that the preference will apply to the hiring of individuals for non-exempt, PSS positions. Since the position for which Hadik was hired was exempt from the PSS by virtue of the fact it was filled on a contract basis, the preference had no application to Hadik’s hiring.  To decide whether Allen correctly interprets the preference provision when he asserts that if the provision had been applied, he would have been hired over Hadik, is unnecessary.  A court need not, and indeed should not, engage in rendering advisory opinions. Estate of Mori v. Chuuk, 12 FSM Intrm. 24, 26 (Chk. 2003). The trial court did not err when it found that the preference contained in Section 18.104 did not apply.

V.   Conclusion

     The trial court properly granted summary judgment in favor of the defendants/appellees.  No genuine issue of material fact existed.  The Kosrae Department of Education’s contract for the position of Chief of Secondary Education was exempt from the Kosrae Public Service System, and as such, Section 18.104, the preference section of the Kosrae Public Service System Act, did not apply.  Accordingly, we affirm the trial court’s dismissal of this matter.

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Footnotes:

1.  State Law No. 7-184, effective October 22, 2001, amended the prior law to read only "Contract employees." The prior law specified "Contract employees during life of the contract, except if renewed or amended." Thus the amendment did away with the only qualification placed on the exemption for contract employees.

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