KOSRAE STATE COURT TRIAL DIVISION

Cite as Palsis v. Kosrae, 16 FSM Intrm. 297 (Kos. S. Ct. Tr. 2009)

[16 FSM Intrm 297]

MIRAH E. PALSIS,

Plaintiff,

vs.

STATE OF KOSRAE,

Defendant.

CIVIL ACTION NO. 26-08

MEMORANDUM OF DECISION

Aliksa B. Aliksa

Chief Justice

Trial: January 27-30, 2009

Decided: February 10, 2009

[16 FSM Intrm 298]
 

APPEARANCES:

For the Plaintiff:             Canney Palsis, Esq.

                                      Micronesian Legal Services Corporation

                                      P.O. Box 38

                                     Tofol, Kosrae FM 96944
 

For the Defendant:       J.D. Lee, Esq.

                                     Attorney General

                                     Office of the Kosrae Attorney General

                                     P.O. Box 870

                                    Tofol, Kosrae FM 96944


 

* * * *

HEADNOTES

Administrative Law ) Judicial Review

    A person adversely affected or aggrieved by a final administrative decision is entitled to judicial review of that decision in the Kosrae State Court which shall conduct a de novo trial of the matter; which 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; and which may receive in evidence any or all of the record from the administrative hearing that is stipulated by the parties. Although the court holds a new trial, the agency action is entitled to at least some deference regardless of the substantive grounds for the appeal and will not be set aside it unless it is 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) contrary to constitutional right, power, privilege, or immunity; 3) in excess of statutory jurisdiction, authority or limitations, or a denial of legal rights; 4) without substantial compliance with the procedures required by law; or 5) unwarranted by the facts. A plaintiff generally has the burden of proving their case and thus, a plaintiff challenging an administrative decision must prove it meets one of the five criteria before the decision will be held unlawful and set aside. Palsis v. Kosrae, 16 FSM Intrm. 297, 305, 313 (Kos. S. Ct. Tr. 2009).

Public Officers and Employees ) Kosrae

    The statute does not specifically require a good cause standard to be met when dismissing or demoting an employee. A management official may, for disciplinary reasons, dismiss or demote an employee when he determines that the good of the public service will be served thereby. Palsis v. Kosrae, 16 FSM Intrm. 297, 305, 311 (Kos. S. Ct. Tr. 2009).

Constitutional Law ) Due Process; Constitutional Law ) Kosrae ) Due Process

    The Constitutions of both Kosrae and the Federated States of Micronesia state, in identical wording, that a person may not be deprived of life, liberty, or property without due process of law and these two clauses are treated as identical in meaning and in scope and may be analyzed together. Palsis v. Kosrae, 16 FSM Intrm. 297, 306 (Kos. S. Ct. Tr. 2009).

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

    Although Kosrae statutes do not specifically state that a pre-dismissal hearing is required, constitutional due process in the FSM does require that a governmental, non-probationary employee be given some opportunity to respond to the charges against him before his dismissal may be implemented, which includes: oral or written notice of the charges against him, an explanation of the employer's evidence and an opportunity to present his side of the story. Palsis v. Kosrae, 16 FSM

[16 FSM Intrm 299]

Intrm. 297, 306 (Kos. S. Ct. Tr. 2009).

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

    Although Kosrae statutes do not specifically state that a pre-dismissal hearing is required, once it is determined that the statute establishes a property right subject to protection under the due process clause, constitutional principles determine what process is due as a minimum. Palsis v. Kosrae, 16 FSM Intrm. 297, 306 (Kos. S. Ct. Tr. 2009).

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

    The constitution is consistent with the Kosrae State Code and the Public Service System statutes which will not be set aside as contrary to due process since, in the absence of statutory language to the contrary, the statutory mandate may be interpreted as assuming compliance with the constitutional requirements. Thus, when the Kosrae State Code states that written notice setting forth the specific reasons for the dismissal or demotion and the employee's rights of appeal must be transmitted to the employee but is silent as to whether a dismissal may be implemented before some kind of hearing is provided, this is not read as an attempt to authorize immediate dismissal for all purposes without giving the employee a right to respond but instead as an indication of solicitude, demonstrating the intention to assure that employees' rights be observed. Palsis v. Kosrae, 16 FSM Intrm. 297, 306-07 (Kos. S. Ct. Tr. 2009).

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

    For the due process clause to apply, a life, property, or liberty interest must be implicated. In an employment case, to be property protected under the Constitution, the employment right must be supported by more than merely the employee's own personal hope. There must be a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons. Palsis v. Kosrae, 16 FSM Intrm. 297, 307 (Kos. S. Ct. Tr. 2009).

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

    When, at the time of her termination, the plaintiff was a permanent state employee and since a "regular employee" or "permanent employee" means an employee who has been appointed to a position in the public service and who has successfully completed a probation period, the plaintiff's claim to employment was supported by more than her mere personal hope of employment and the state had a legal obligation to employ the plaintiff. Thus, the plaintiff had a property right which was protected by the due process clause. Procedural due process requires notice and an opportunity to be heard, so as to protect the employee’s rights and insure that discipline is not enforced in an arbitrary manner. Palsis v. Kosrae, 16 FSM Intrm. 297, 307 (Kos. S. Ct. Tr. 2009).

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

    A state employee with a property right is entitled to a pre-termination hearing that includes notice and an opportunity to be heard. The employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. Palsis v. Kosrae, 16 FSM Intrm. 297, 307 (Kos. S. Ct. Tr. 2009).

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

    An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and an opportunity for hearing appropriate to the nature of the case. This requires some type of hearing prior to the discharge of an employee who has a constitutionally-protected interest in his or her employment. The pre-termination

[16 FSM Intrm 300]

hearing, though necessary, need not be elaborate. The formality and procedural requisites for the hearing can vary, depending upon the importance of the interest involved and the nature of the subsequent proceedings that are available. In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action. The pre-termination hearing does not definitively resolve the propriety of discharge, but is an initial check against mistaken decisions. The essential requirements are notice and an opportunity to respond. The state employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story and to require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee. Palsis v. Kosrae, 16 FSM Intrm. 297, 309 (Kos. S. Ct. Tr. 2009).

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

    Since a state employee’s pre-termination hearing need not be elaborate and since a notice of a hearing can be oral and is highly informal, given that the employee is given the opportunity for a post-deprivation hearing, where the employee was given notice on August 7, 2007 when she received a notice-of-dismissal letter and the dismissal did not become effective until August 30, 2007 and thus she was not deprived of benefits until then, an August 7, 2007 meeting constituted a pre-termination hearing as did a later August 15, 2007 meeting because, at both meetings, she was given an opportunity to respond to the charges against her and she had not yet been deprived of benefits and because the meetings served as an initial check of the charges since she was given an opportunity to explain her side of the story and the Director discussed the evidence for dismissal as stated in the termination letter and was open to questions regarding the reasons for dismissal. Also, when, at the August 15, 2007 meeting, her representative took the opportunity to be heard on her behalf, asked questions to the Director; tried to negotiate a settlement; and presented her side of the story, the requirements of notice and an opportunity to respond were met. Because she had notice and an opportunity to be heard prior to dismissal, her due process rights were not violated as a pre-termination hearing was held. Palsis v. Kosrae, 16 FSM Intrm. 297, 311 (Kos. S. Ct. Tr. 2009).

Public Officers and Employees ) Kosrae

    The good of the public service is served by an employee’s dismissal if the management official determines that the employee has had 1) three consecutive performance evaluation reports with less than satisfactory ratings in any category; or 2) a total of three suspensions, whether imposed as minor discipline or disciplinary action; or 3) a conviction of any crime that the management official determines makes the employee unfit for his job; or 4) more than eight working days in two years that the employee has been taken unauthorized leave; or 5) a determination has been made that the applicant was not truthful on his employment application; or 6) the employee ceases work without explanation for more than 6 consecutive working days; or 7) any other grounds causing the management official to justifiably believe that the good of the public service will be served by dismissal. Palsis v. Kosrae, 16 FSM Intrm. 297, 311-12 (Kos. S. Ct. Tr. 2009).

Administrative Law; Public Officers and Employees ) Kosrae

    Any regular employee who is suspended for more than the three working days, demoted, or dismissed may appeal to the branch head or his designee within fifteen days after written notice of the suspension, demotion or dismissal has been transmitted to him, and upon receiving such appeal, the branch head, or his designee, shall form an ad hoc hearing committee of three members. Palsis v. Kosrae, 16 FSM Intrm. 297, 312 (Kos. S. Ct. Tr. 2009).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae

    Since the court is required to set aside agency action if unwarranted by the facts, the court must also consider the additional evidence submitted at the trial de novo. Palsis v. Kosrae, 16 FSM Intrm. 297, 313 (Kos. S. Ct. Tr. 2009).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae

    If the agency abused its discretion, or acted arbitrarily or capriciously, then the employee dismissal should be set aside. Palsis v. Kosrae, 16 FSM Intrm. 297, 313 (Kos. S. Ct. Tr. 2009).

[16 FSM Intrm 301]

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae

    The standard is that a dismissal can occur if it is done for the good of the public service and the court will set aside the agency decision if it finds that the decision was arbitrary, capricious, and abuse of discretion or that the decision was unwarranted by the facts. When, in analyzing the facts, the court finds that each complaint and factor as a reason for dismissal alone does not rise to the level that would allow a management official to terminate an employee, but when the culmination of all of the factors and complaints does rise to a level where dismissal was a viable option and at the management official’s discretion, the good of the public service was served by her dismissal since the health care industry is vital to the Kosrae community and nurses affect the well being of all citizens of Kosrae. Palsis v. Kosrae, 16 FSM Intrm. 297, 314-15 (Kos. S. Ct. Tr. 2009).

* * * *

COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

Procedural and Factual Background

    The Plaintiff, Mirah Palsis, received a Notice of Dismissal on August 7, 2007 terminating her employment from the Department of Health Services, State of Kosrae on August 30, 2007. The Plaintiff appealed the disciplinary action on August 22, 2007.

    On February 7 and 8, 2008 the ad hoc committee held administrative hearings where Mirah Palsis, the State of Kosrae and their respective Counsels were given an opportunity to be heard and present facts and evidence. On February 13, 2008, the ad hoc committee issued its written decision in a letter to Governor Robert J. Weilbacher pursuant to KSC Section 18.506. The committee recommended that the Governor uphold the dismissal of Mirah Palsis after examining the legal sufficiency and validity of the grounds for removal.

    On February 21, 2008, the Governor of Kosrae, Robert J. Weilbacher, upheld the decision made by the Ad Hoc Panel to terminate the Public Service System employment of Mirah Palsis concluding that the termination action was supported by both the facts and the law. The Plaintiff filed a complaint with this Court against the Defendant, State of Kosrae, on March 19, 2008 stating the following causes of action: (1) a Due Process violation under Article IV section 3 of the FSM Constitution, (2) a Due Process violation under Article II, section 1(b) of the Kosrae State Constitution, (3) a statutory violation of section 18.502 of the Kosrae State Code, and (4) the decision of the governor in upholding the termination is unlawful and without cause. The Defendant filed its answer on April 8, 2008. Trial was held on January 27 - January 30. Canney Palsis, Micronesian Legal Services, represents the Plaintiff and J.D. Lee, Attorney General, represents the Defendant.

    At trial, the Court heard testimony from Don Post, Mirah Palsis, Singketchy George, Sasaki George, Yosie James Palsis, Dr. Livinson Taulung, Roselyn Tiser, Lorinda Mongkeya, Dr. Carolee Masao, Dr. Alex Tara, Dr. Lilly Jonas, Eudia Asher, Aimina Likiaksa, Debrum Tulensru, Robert Joseph, Lelean Phillip, Remima Benjamin, Elternina Shrew, and Betsy Rose Mongkeya. Based on all the evidence in the record, I now find the following facts:

    The Plaintiff worked from 1977 until August 30, 2007 for the Department of Health Services, State of Kosrae. She began her employment as staff nurse I, promoted to staff nurse II, then to staff nurse III and finally from March 2002 until August 2007 served as Chief Clinical Nurse.

[16 FSM Intrm 302]

    A Chief Nurse is "an experienced professional nurse who plans, organizes, directs and coordinates the clinical nursing program for the State in terms of the FSM Standards for Nursing Practice" and the person is "required to demonstrate effective leadership and management skills." Def. Ex. 6. Some of the responsibilities of the Chief Nurse include:

•   Maintains nursing service organizational structure and lines of authority.
•   Develops, interprets and implements nursing policies and procedures to maintain high standards of nursing care.
•   Participates actively in Quality Assurance Program to maintain and improve nursing standards.
•   Counsels and disciplines nursing personnel for failure to observe the policies and procedures governing conditions of work or the defined standards of nursing care.
•   Promotes harmonious interpersonal relationships with the multi-disciplinary health team, patients, families and visitors.
•   Remains on call on a 24 hour basis to meet emergency situations.
•   Is a strong advocate for nurses and the nursing profession in the Hospital and the community.
•   Acts as a role model for other staff.

Department of Health Services, Kosrae, Job Description Chief Nurse, Def. Ex. 6.

    The Director of the Department of Health Services is Donald C. Post. Donald Post had previously served as Fleet Medical Liaison Division Head and as Command Master Chief at the Naval Medical Center, in San Diego, California, United States of America, the Navy's largest Medical Treatment Facility. Mr. Post spent four years working at the San Diego Navy Facility which served over 4,500 people and had a budget of $165 million. As Master Chief Hospital Corpsman, Mr. Post was awarded the Gold Star from the President of the United States of America for his dedication and distinctive record of accomplishment in making measurable improvements in the delivery of the highest quality of health care to the Fleet and to the retention, development and morale of 2,000 listed personnel. Mr. Post's expertise is as a clinician and health care administrator. Donald Post began his directorship of the Kosrae State Hospital in May 2007.

    In May of 2007, after Mr. Post began working as the Director of the Department of Health Services in Kosrae, he had a meeting with the staff at the hospital where Plaintiff was present. At this initial meeting he set out his goals for the hospital, ways of improvement, and the values the hospital should follow. Mr. Post began assessing the hospital to see what areas needed improvement. One method of Mr. Post's assessment of the hospital was by making observations. He observed the staff and all areas of the hospital and noticed that the ward was dirty, there was a bad odor throughout the hospital from dressings not being changed frequently enough, nurses were not happy, the breaking of sterility with IV's, and he never observed Chief Nurse Palsis on the ward. Also as part of his assessment he visited with patients and discussed how they felt about patient care at the Kosrae State Hospital. Mr. Post did talk to the Plaintiff. regarding IV sterility and the need for corrective action. For about a week IV's were properly administered but soon sterility was again an issue. Mr. Post noted and analyzed these observations and was disturbed by what he saw as he did not want patients put in danger and some of the practices and care he noticed of put patients at risk.

    During his assessment, Director Post also interviewed the staff, including the doctors and nurses. During his interviews with the employees, Director Post introduced himself and asked them to tell him what he should know about the hospital and their work and how the employee thought hospital and patient care could be improved. He let the staff talk and noted their areas of concern. Director Post found common grounds in the nurses responses when he interviewed them. From the nurses' responses, he realized that the nurses wanted to do a good job at the hospital, the treatment they received by the chief nurse was bad, and other complaints involving the chief nurse and her

[16 FSM Intrm 303]

responsibilities. The Director never interviewed the Plaintiff and had not evaluated the Plaintiff since he began as Director at the hospital.

    Employees get evaluated twice a year however many times the employees would not get evaluated. For example, Singketchy George testified that he was the former director of health services and would evaluate employees two times a year; however, the Plaintiff only got one evaluation from 1991-1994. There was no evidence that the Plaintiff discussed or grieved about the issue of not receiving annual performance evaluations to appropriate personnel. The Plaintiff submitted performance evaluation reports as evidence from August 1989, August 1994, May 1998, and June 2003. On these evaluations, the Plaintiff received a majority of satisfactory ratings with some exceptional ratings in the last two evaluations. The Plaintiff also received letters during her employment involving warnings and notices of disciplinary action. In November 1983, the Plaintiff received a written documentation regarding absences without leave. In January 1987, the Plaintiff received a letter of notification of disciplinary action due to her excessive incidences of unauthorized absences from duty. In May 1988, Plaintiff was again given a notice that she was going to be suspended from work due to her repeated absences without leave. A letter was also submitted into evidence from March 1991 stating that the Director of Health's initial intention to terminate the Plaintiff from employment was modified to a maximum of 30 calendar days. Finally, in August 1997, a letter was given to the Plaintiff from the Hospital Administrator regarding the Plaintiff's conduct and her being absent from work on several occasions. The Plaintiff had a history of not showing up for work and was disciplined on several occasions because of this.

    One common complaint that Director Post heard from the nurses when he interviewed them was scheduling. The nurses testified that employees would often be scheduled to work consecutive night shifts which hurt family obligations at home, nurses would not get time off when asked for it so they could attend community activities or other family events, not be scheduled so the nurses could car pool to work, and sometimes nurses would switch shifts or the shifts would be scheduled so there was not a supervisory nurse or one who could dispense medication on duty. Another scheduling issue was that of leave of time where the Chief Nurse would not acknowledge sick leave or other leave they had earned and instead gave the employee leave without pay as a form of leave.

    Another issue that the Director stated for a reason for terminating the Plaintiff was because the narcotics count was off. The Chief Nurse is to make sure the log is accurate and that there are not discrepancies. The Director found several inaccuracies that were wrong for some time.

    Another complaint was that the Plaintiff would scold some of the nurses in public. Some of the nurses also brought up issues of favoritism that involved the Plaintiff where she would give some access to keys and others she would not and also pass on confidential information to others. Other complaints included not being able to find the Plaintiff when she was needed at the hospital or on the ward, the Plaintiff not reacting to complaints by the nurses, the Plaintiff was demoralizing the basis, nurses were not getting along, and the Plaintiff would be too busy when asked to help out with a situation. The Director and several nurses testified that there was a lack of morale between the nursing staff. The staff nurses would react by not showing up to work and wanting to quit. None of these complaints were put in writing as the nurses stated it would be a waste of time to do so. The nurses stated they brought these issues to the attention of the Chief Nurse.

    Director Post took a few weeks to assess the hospital making sure that what he was told and observed was a trend and not simply a snapshot. Director Post, from his expertise and experience knew that something had to be done as the things he observed and was told could endanger the lives of the patients. In making his decisions on how to improve the hospital, he relied on his past experience and expertise. Based on what he observed and heard, Director Post concluded that the

[16 FSM Intrm 304]

problems had to do with the Chief Nurse and knew that he had to take immediate action. Director Post chose to terminate the Plaintiff, Chief Nurse Palsis, because of the seriousness of the situation and the length of time she had been the Chief Nurse. Director Post concluded that the inpatient nursing was a reflection of the Chief Nurse and if he simply demoted her or kept her on as the Chief Nurse, it would be distracting to the other nurses due to her longstanding previous relationship with the hospital.

    Director Post wrote up a letter of dismissal which included six specific grounds of the dismissal. In the Notice of Dismissal, six specific performance issues were considered in the decision of dismissal of Mirah Palsis including: (1) poor management of the nursing work schedule, (2) favoritism, (3) scolding of nurses in public, (4) narcotics count had been off, (5) routinely given nurses leave without pay rather than let nurses take leave time they have earned, and (6) unwillingness to perform nursing/leadership duties. Director Post testified that the Chief Nurse is responsible for inpatient care, scheduling, training, monitoring care, relationships between the staff, supervising the nurses, and noticing and correcting what was wrong when there was an issue. Director Post saw that there were problems in these areas and that it was a culmination of these problems which led to a poor standard of nursing care at the hospital. Director Post stated that in addition to the six specific performance issues, the lack of morale in the hospital was a reason for the termination of the Plaintiff as she was the Chief Nurse. Director Post found a direct correlation of Plaintiffs conduct with her care.

    On August 7, 2007, Director Post called the Plaintiff into his office and gave her the letter of dismissal. The Plaintiff read the letter and asked if the Director would consider a lesser form of punishment. Director Post stated that he had already gave consideration and the Plaintiff" responded that this was ridiculous, signed the document, and left.

    Approximately one week after this meeting and before the date of termination, the Plaintiff's attorney, Sasaki George called Mr. Post and wanted to meet with him. A meeting was held on August 15, 2007 between Director Post and the Plaintiff's attorney, Sasaki George with the Plaintiff not being present. Sasaki George was at the meeting on behalf of the Plaintiff and asked questions and posed concerns on behalf of the Plaintiff. Counselor George asked the Director what the Plaintiff did, what the Director did, and why he did it. The Director then went over what happened and Counselor George gave reasons why Mr. Post should reconsider his decision including the Plaintiff's personal situation and asked for a lesser punishment. After giving the Plaintiff's representative an opportunity to speak and be heard, the Director responded by stating that he was resolved in his decision at the end of the meeting. This meeting lasted approximately 30 minutes.

    After the Plaintiff was terminated, the hospital and nurses saw some changes including better cleanliness in the ward, patients were happy with the way they were treated, nurses were paying more attention to detail, the morale had increased among the nursing staff with them being more relaxed and smiling more, and many nurses saw hope now as before the system was in a situation of despair.

[16 FSM Intrm 305]

Legal Analysis

Standard of Review

    Kosrae State Code Section 18.507 sets out the standard of review of final decisions under Chapter 18 to be used by this Court. The judicial review of contested cases section states that:

(1) A person adversely affected or aggrieved by a final decision made pursuant to this Chapter is entitled to judicial review of that decision in the Kosrae State Court. The Court shall conduct a de novo trial of the matter and may receive in evidence any or all of the record from the administrative hearing that is stipulated by the parties.
(2) The reviewing 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. The reviewing court shall:
         (a) compel agency action unlawfully withheld or unreasonably delayed; and
         (b) hold unlawful and set aside agency actions and decisions found to be:
                   (i) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
                   (ii) contrary to constitutional right, power, privilege, or immunity;
                   (iii) in excess of statutory jurisdiction, authority or limitations, or a denial of legal rights;
                   (iv) without substantial compliance with the procedures required by law; or
                   (v) unwarranted by the facts.

Kos. S.C. § 18.507. There has not yet been a published case interpreting and applying the appeals provisions and for this reason we briefly set out the deference given to the agency's action, the burden of a plaintiff under this statute, and what constitutes cause for dismissal.

    The statute provides for a de novo trial, even after a full trial has been conducted as part of the administrative proceedings. The statute sets out specific requirements governing the treatment of an agency action under review in subsection (b). Kos. S.C. § 18.507(2)(b). By way of example, the specific requirements address fact issues as in (b)(v); legal issues, such as in (b)(iii); procedural errors, as in subsection (b)(iv); constitutional violations, as in subsection (b)(ii); and agency discretion, such as in subsection (b)(i). Thus, although the court holds a new trial, the agency action is entitled to at least some deference regardless of the substantive grounds for the appeal and will not be set aside unless it meets at least one of the criteria listed in Section 18.507(2)(b).

    A plaintiff generally has the burden of proving their case. When appealing a decision made under Chapter 18 of the Kosrae State Code, a plaintiff challenging the decision must prove it meets one of the criteria listed in subsection (b) before the decision will be held unlawful and set aside. In the present case, the Plaintiff is specifically challenging the procedure used as contrary to the requirements of both the National and State Constitutions arguing that the right to due process requires a pre-termination hearing prior to dismissal.

    The Complaint also claims that the decision to terminate the Plaintiff was not based on good cause. However, the statute does not specifically require a good cause standard to be met when dismissing or demoting an employee. Kos. S.C. § 18.502. Kosrae State Code Section 18.502 states that a "management official may, for disciplinary reasons, dismiss or demote an employee when he determines that the good of the public service will be served thereby." Id.

[16 FSM Intrm 306]

    Part X, Section 10.3 of the State Unified Public Service System Regulations sets out "some, but not all, grounds for dismissal;" in other words, what constitutes cause for dismissal from Kosrae public employment. When evaluating whether the good of the public service will be served by the dismissal the regulations provide guidance for what constitutes cause for dismissal on Kosrae.

Due Process Violations

    The Constitutions of both Kosrae and the Federated States of Micronesia state that "a person may not be deprived of life, liberty, or property without due process of law . . ." Kos. Const. art II, § 1 (b); FSM Const. art. IV, § 3. This Court has stated that "[t]he wording of the Due Process Clause of the Kosrae State Constitution is identical to the wording of the Due Process Clause of the FSM Constitution. Therefore the court will treat the clauses as identical in meaning and in scope." Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 297 (Kos. 1992). Therefore, the Plaintiff's separate causes of action under the Kosrae and FSM Constitution will be analyzed together.

    The Plaintiff argues that her right to due process was violated as she was not afforded a pre-termination hearing in the matter. The Plaintiff contends that under the Due Process Clauses of both the FSM and Kosrae Constitution, notice and an opportunity to be heard prior to dismissal of a non-probationary government employee is required. The Plaintiff argues that she was never given this opportunity prior to her dismissal. The Plaintiff further argues that Kosrae State Code § 18.502 requires notice and an opportunity to be heard. The Plaintiff states that if the statutory grounds do not require an opportunity to a hearing prior to dismissal than it is inconsistent with the constitutional provisions requiring due process of an opportunity to be heard and therefore must be stricken as unconstitutional. The Defendant contends that there was no deprivation of due process in the termination procedure of the Plaintiff. The Defendant contends that although notice and an opportunity to be heard are required, there is no requirement for more than one hearing and the requirement of due process requires only a following of the statute and regulations as set out by the Kosrae State Code. The Defendant contends that the Plaintiff was given notice in the August 7, 2007 letter of dismissal and was given an opportunity to be heard by virtue of the administrative procedures set forth by statute and regulations. The Defendant argues that even if a pre-termination hearing is required that Plaintiff received such a hearing and that the Plaintiff actually was given three opportunities to be heard: (1) the date she was given notice, (2) when her counsel met with Director Post on August 15, 2007 and (3) when she had her full administrative hearing before the ad hoc panel.

    The Kosrae State Code and the Public Service System statutes do not specifically state that a pre-dismissal hearing is required as claimed by the Plaintiff. However, constitutional due process in the Federated States of Micronesia does require that a governmental, non-probationary employee "be given some opportunity to respond to the charges against him before his dismissal may be implemented; including oral or written notice of the charges against him, an explanation of the employer's evidence and an opportunity to present his side of the story." Semes v. FSM, 4 FSM lntrm. 66, 76 (App. 1989).

    While the Kosrae State Code and the Public Service System Statutes do not specifically state that a hearing must be held prior to dismissal, "once it is determined that the statute establishes a property right subject to protection under the due process clause, constitutional principles determine what process is due as a minimum." Semes, 4 FSM lntrm. at 74 (citing Suldan v. FSM (II), 1 FSM Intrm. 339, 354 (Pon. 1983). The FSM Supreme Court stated that "absence of statutory language to the contrary, the statutory mandate may be interpreted as assuming compliance with the constitutional requirements" and the statute must be set aside if it does "not purport to preclude constitutionally required procedures." Id. The Kosrae State Code states that "written notice setting forth the specific reasons for the dismissal or demotion and the employee's rights of appeal" must be transmitted to the employee but is silent as to whether a dismissal may be implemented before some kind of hearing is

[16 FSM Intrm 307]

provided. Kos. S.C. § 18.502. This is very similar to Semes v. FSM, where the National Public Service System Act was silent to whether a dismissal may be implemented before some kind of hearing and the only pertinent statutory provision states that no dismissal shall be effective "for any purpose" until the employer receives notice of the reasons for dismissal and of the right to appeal. Semes, 4 FSM Intrm. at 77. The Supreme Court of the Federated States of Micronesia stated that they "do not read this as an attempt to authorize immediate dismissal for all purposes without giving the employee a right to respond but instead as an indication of solicitude, demonstrating congressional intention to assure that employees' rights be observed." Id. The Court thus found that the constitutional requirement that the employee be given an opportunity to be respond as consistent with the statutory scheme and the Act was not set aside as contrary to due process. Id. This Court also finds that the constitution is consistent with the Kosrae State Code and the Public Service System statutes and that they will not be set aside as contrary to due process.

    For the due process clause to apply, a life, property, or liberty interest must be implicated. Taulung v. Kosrae, 3 FSM Intrm. 277, 280 (Kos. S. Ct. Tr. 1988). In an employment case, the FSM Supreme Court held that "[t]o be property protected under the Constitution, the employment right must be supported by more than merely the employee's own personal hope. There must be a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons. Suldan v. FSM (II), 1 FSM Intrm. 339, 352 (Pon. 1983); see also Taulung, 3 FSM Intrm. at 280, Edwin v. Kosrae, 4 FSM Intrm. 292, 302 (Kos. S. Ct. Tr. 1990). This Court has held that "this definition of property in employment cases is consistent with the definition of property intended by the writers of our constitution" for the Plaintiff in the present case to have a property interest, she must have had a claim to employment that was supported by more than her own hope that she would be employed. Taulung, 3 FSM Intrm. at 280. The facts in this case show that the Plaintiff had a contract with the state at the time she was given her notice of dismissal and ultimately dismissed. At the time of her termination, the Plaintiff was a permanent employee of the State of Kosrae and a "'regular employee' or 'permanent employee' means an employee who has been appointed to a position in the public service and who has successfully completed a probation period." Kos. S.C. § 18.102(22). The Plaintiff's claim to employment was supported by more than her mere personal hope of employment and the state had a legal obligation to employ the Plaintiff. Thus, the Plaintiff had a property right which is protected by the due process clause. Procedural due process requires notice and an opportunity to be heard, so as to protect the rights of the employee and that discipline is not enforced in an arbitrary manner. Suldan (II), 1 FSM Intrm. at 354-55 (stating that the "fundamental concept of procedural due process is that the government may not be permitted to strip citizens of 'life, liberty or property' in an unfair, arbitrary manner. Before such important individual interests are exposed to possible governmental taking or deprivation, the Constitution requires that the government follow procedures calculated to assure a fair and rational decision making process.").

    In Semes v. FSM, the Supreme Court adopted the reasoning and holding from the United States Supreme Court decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) stating that "[w]e adopt the conclusion of the Loudermill court: 'The opportunity to present reasons, either in person or in writing, why propose action should not be taken is a fundamental due process requirement.'" Semes, 4 FSM Intrm. at 76 (citing Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506). Due process entitles the employee ''the opportunity to present reasons, either in person or in writing, why proposed action should not be taken." Id. Consistent with Semes and Loudermill, this Court holds that an employee with a property right is entitled to a pre-termination hearing that includes notice and an opportunity to be heard. The employee is entitled to "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id. While the FSM Supreme Court in Semes held that a pre-termination hearing is required in adopting Loudermill, the Court did not set out the specific requirements that constitute a pre-termination hearing. The U.S. Supreme Court in

[16 FSM Intrm 308]

Loudermill did not set out specific requirements of a pre-termination hearing either. The Loudermill decision stated that a "pretermination 'hearing,' though necessary, need not be elaborate." Loudermill, 470 U.S. at 545, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. The Court held that "[i]n general, 'something less' than a full evidentiary hearing is sufficient prior to adverse administrative action" and that the "hearing need not definitively resolve the propriety of the discharge." Id. The pre-termination hearing "should be an initial check against mistaken decisions" and the indispensable requirements of the hearing are notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to present his or her side of the story. Id. The Loudermill Court emphasized that as long as there are adequate post-termination hearings available, the pre termination hearing need not be extensive. Id. at 545-48, 105 S. Ct. at 1495-96, 84 L. Ed. 2d at 506-07.

    The pre-termination hearing need not be a full, formal evidentiary hearing; "informal meetings with supervisors" are sufficient. Riggins v. Board of Regents, 790 F.2d 707, 711 (8th Cir.1986); see also Loudermill, 470 U.S. at 545-46, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. The purpose is to determine whether there are reasonable grounds to believe the charges against the employee are true and support termination. The pre-termination hearing requirements will depend upon the interests involved and the nature of subsequent proceedings. The Supreme Court of the United States expanded on its decision in Loudermill in Gilbert v. Homar and stated that a pre-termination hearing may be ''very limited" and that in some circumstances a post-deprivation hearing may satisfy the due process requirements. 520 U.S. 924, 932-33, 117 S. Ct. 1807, 1813, 138 L. Ed. 2d 120, 128 (1997) (the Court applied a balancing test and determined that a state's interest in immediately suspending an employee charged with a felony without pre-termination hearing outweighed the employee's interest in receiving pay when a post-suspension hearing was available). Other United States cases can serve as a guide to what type of notice and opportunity requirements are required in a pre-termination hearing.

    A pre-termination opportunity to respond is all the process that is due, when coupled with post-termination procedures and the pre-termination and post-termination hearings must be analyzed in conjunction when determining whether due process requirements are satisfied. Adams v. Sewell, 946 F.2d 757, 766 (11th Cir. 1991). The Third Circuit of the United States held that no advance notice of a pre-termination hearing is required and that notice given at a pre-termination hearing may even be given orally. Gniotek v. City of Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986); see Goss v. Lopez, 419 U.S. 565, 582, 95 S. Ct. 729, 740, 42 L. Ed. 2d 725, 739 (1975) (stating that "there need be no delay between the time "notice" is given and the time of hearing"). Also, the particular content of the notice need not be specific and need only to advise the employee of the grounds for his termination with sufficient detail to fairly enable the employee to show any error that may exist. Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 682 (5th Cir. 1986). Such notice may be oral or written. Loudermill, 470 U.S. at 542, 105 S. Ct. at 1493, 84 L. Ed. 2d at 504. No delay need occur between the time of notice and of the hearing. Goss v. Lopez, 419 U.S. 565, 582, 95 S. Ct. 729, 740, 42 L. Ed. 2d 725, 739 (1975).

    Furthermore, a "pretermination hearing [is] never intended to be an adjudicative detailed proceeding and can be highly informal." Derstein v. Kansas, 915 F.2d 1410, 1413 (10th Cir. 1990); see also Kuhlman v. Seattle Hous. Auth., No. 93-35714, No. 93-35766, 1994 U.S. App. LEXIS 23538, at *2-*3 (9th Cir. Aug. 26, 1994) ("What due process contemplates is an essentially informal proceeding that can often be as simple as a discussion between the employee and his supervisor, with a reasonable time to respond."); William v. Texas Tech Univ. Health Sciences Ctr., 6 F.3d 290, 293 (5th Cir. 1993); Browning v. City of Odessa, 990 F.2d 842, 844 (5th Cir. 1993); Schaper v. City of Huntsville, 813 F.2d 709, 714 (5th Cir. 1987). The employer need only provide the employee with an informal explanation of the substance of the evidence supporting his termination and a meaningful opportunity to respond. Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506; Helton

[16 FSM Intrm 309]

v. Clements, 832 F.2d 332, 337 (5th Cir. 1987); Schaper, 813 F.2d at 714. A meaningful opportunity to respond means nothing more than an opportunity for the employee to present his version of the facts. Loudermill, 470 U.S. at 543 n.8, 105 S. Ct. at 1494 n.8, 84 L. Ed. 2d at 505 n.8; Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991). Thus, Loudermill's requirement of a meaningful opportunity to respond in a predeprivation context entails merely the right to be informed of the "substance of the relevant supporting evidence." Brock v. Roadway Express. Inc., 481 U.S. 252, 264-65, 107 S. Ct. 1740, 1748, 95 L. Ed. 2d 239, 252 (1987) (plurality opinion). As such, the employer need not produce tangible evidence to support its position. Riccio v. County of Fairfax, 907 F.2d 1459, 1465 (4th Cir. 1990). Nor must the employer allow the employee to present his side to impartial arbiter. Schaper, 813 F.2d at 715-16. One court even held that the employee need not even be afforded the opportunity to respond prior to the adverse employment decision, so long as the hearing occurs prior to the termination of benefits. Texas Faculty Ass'n v. University of Tex. at Dallas, 946 F.2d 379, 387 (5th Cir. 1991); see also Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir.); Vance v. Chester County Bd. of Sch. Trustees, 504 F.2d 820, 824-26 (4th Cir. 1974). In Jackson v. St. Joseph, the plaintiff argued that his employer failed to give him a proper pre-termination notice since the termination letter issued to him by his employer evidenced that the employer's decision had already been made. Jackson, 840 F.2d at 1388-89. The Eighth Circuit disagreed, stating that "due process . . . does not require pre-decision hearings. It only requires an opportunity to be heard prior to the termination of benefits." Id. at 1391. Since the plaintiffs salary was not terminated until some time after she received the termination letter, the court held the letter sufficient to constitute pre-termination notice. Id. Moreover, the prediscipline hearing "need not definitely resolve the propriety of the [discipline]." Loudermill, 470 U.S. 532, 545, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506 (1985).

    To summarize, an essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and an opportunity for hearing appropriate to the nature of the case. Id. at 542, 105 S. Ct. at 1493, 84 L. Ed. 2d at 503. This principle requires some type of hearing prior to the discharge of an employee who has a constitutionally protected interest in his or her employment. The pre-termination hearing, though necessary, need not be elaborate. Id. at 545, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. The formality and procedural requisites for the hearing can vary, depending upon the importance of the interest involved and the nature of the subsequent proceedings that are available. Id. In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action. The pre-termination hearing does not definitively resolve the propriety of discharge, but is an initial check against mistaken decisions. Id. The essential requirements are notice and an opportunity to respond. Id. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. The employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story and to require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee. Id.

    In the present case, the Plaintiff was provided with a Notice of Dismissal on August 7, 2007. In the Notice of Dismissal, six specific performance issues were listed as being considered in the dismissal of Mirah Palsis including 1) poor management of the nursing work schedule 2) favoritism, 3) scolding of nurses in-public 4) narcotics count had been off, 5) routinely given nurses leave without pay rather than let nurses take leave time they have earned 6) unwillingness to perform nursing/leadership duties. The letter further stated that leadership issues were also an issue as this is an integral part of the Chief Nurse's job and that the Plaintiff's relationship with the other nurses was beyond repair. The letter also stated that the date of termination will be August 30, 2007 which provided the Plaintiff with 15 working days notice. The Director of Health Services, Don Post personally provided the notice to the Plaintiff and the Plaintiff signed the notice. During this meeting between Director Post and the Plaintiff, the Director gave the Plaintiff an opportunity to respond to the letter. The Plaintiff neither disputed nor denied what was contained in the notice but asked Mr. Post to impose a less action than

[16 FSM Intrm 310]

dismissal at the August 7, 2007 meeting which lasted approximately ten minutes.

    On August 15, 2007 a meeting took place between Director Post and Plaintiff's Attorney Sasaki George regarding the dismissal. The Plaintiff's attorney had called the office of the Attorney General and spoke with J.D. Lee to set up a meeting. The Plaintiff, for some reason, was not present at this meeting but her attorney provided representation and spoke on her behalf at the meeting. At this meeting, the Plaintiff's attorney asked questions regarding the dismissal and circumstances surrounding the dismissal. The Director went over what took place regarding the Plaintiff's employment. Plaintiff's attorney provided reasons why the Director should reconsider his decision and also advocated for the director to consider a lesser punishment than termination. Plaintiff's attorney discussed her personal situation as well and tried to settle the matter without the costs involved with the lengthy appeals process. The meeting lasted approximately 30 minutes and at the end of the meeting the Director stated that he was resolved in his decision to terminate the Plaintiff.

    As provided for in Kosrae State Code Section 18.504 and Part XI of the State Unified Public Service Systems Regulations, the Plaintiff was provided for with an appeal. The Plaintiff was provided with this post-termination hearing on February 7 and 8 in front of an ad hoc committee as provided for by Kosrae State Code Section 18.505 and Part XI of the State Unified Public Service Systems Regulations. During this appeal, the Plaintiff had the opportunity to cross examine several witnesses who were under oath and present evidence in support of her appeal.

    Therefore, the Plaintiff was entitled to a full scale post-termination review; and in light of this fact, the purpose of the pre-termination review in this case is to merely show that there were reasonable grounds to believe that the charges against the employee were true. The question thus becomes, whether the August 7, 2007 meeting between Director Don Post and the Plaintiff or the August 15, 2007 meeting between Plaintiff's attorney and Director Don Post constituted a pre-termination hearing. From the discussion supra, this Court finds that there was a pre termination hearing.

    In Taulung v. Kosrae, the plaintiff brought an action claiming that his due process rights were violated after he was suspended from his employment. Taulung, 3 FSM Intrm. at 279. The plaintiff was given a letter informing him he was going to be suspended three days before it took effect and was told reasons for the disciplinary action and that if he had any questions he could raise them with his supervisor. Id. at 281. The Court found that the procedures used in suspending the plaintiff were fair, noting however that it was only suspension and in other cases more extensive procedural protections may be necessary. Id. As in Taulung, the Plaintiff in the present case was given a letter informing her that she was going to be terminated, the reasons for her termination and was given an opportunity to raise any questions she had with the Director.

    In Semes v. Federated States of Micronesia, the plaintiff brought an action stating his due process rights were violated after he was terminated without receiving any opportunity to respond to the charges. Semes, 4 FSM Intrm. at 69. The plaintiff was an employee with the FSM national government when he and a colleague were involved in an accident in a governmental vehicle. Id. The

[16 FSM Intrm 311]

plaintiff and driver had been drinking and using the vehicle in an unauthorized manner was prohibited by the government policies. Id. The Court found that there was a requirement of some form of hearing prior to termination of government employment. Id. at 76. The plaintiff was given a letter notifying him that his employment was terminated at the end of the business day and told of his right to appeal. Id.at 70. The termination was "stated to be effective immediately and no opportunity was provided [for the plaintiff] to respond to the charges before the termination took effect." Id. This case can be contrasted to the present action. In the present action, the Plaintiff was not terminated effective immediately. Instead, she was given a notice of termination on August 7, 2007 and the termination was not to take place until August 30, 2007. The Plaintiff was given ample time for an opportunity to respond to the charges before the termination took effect.

    The pre-termination hearing need not be elaborate and notice of a hearing can be orally and is highly informal, given that the Plaintiff was given the opportunity for a post-deprivation hearing. The Plaintiff was given notice on August 7, 2007 when she received the Notice of Dismissal letter from Director Post. The dismissal did not become effective until August 30, 2007 and thus the Plaintiff was not deprived of benefits until this date. This Court finds that the August 7, 2007 meeting constituted a pre-termination hearing as well as the August 15, 2007 meeting. At both meetings, the Plaintiff was given an opportunity to respond to the charges against her. She had not yet been deprived of benefits and the meetings served as an initial check of the charges against the Plaintiff. The Plaintiff was given an opportunity to explain her side of the story on August 7, 2007, and the Director discussed the evidence for dismissal as it was stated in the termination letter and was open to questions regarding the reasons for dismissal. At the August 15, 2007 meeting, Plaintiff's representative took the opportunity to be heard on behalf of the Plaintiff. Counsel George argued on behalf of the Plaintiff, asked questions to Director Post, tried to negotiate a settlement, and presented the Plaintiff's side of the story. The requirements of notice and an opportunity to respond were met. Because the Plaintiff had notice and an opportunity to be heard prior to dismissal, her due process rights were not violated as a pre-termination hearing was held in this matter.

Was the good of the public service served by the dismissal?

    The final cause of action brought by the Plaintiff alleges the Governor erred in upholding the dismissal because it was not based on good cause. However, the statute does not specifically require a good cause standard to be met when dismissing or demoting an employee. Kosrae State Code Section 18.502 only requires that an employee may be dismissed or demoted when "the good of the public service will be served thereby." In full, the section states that:

Section 18.502. Dismissal: demotion. A management official may, for disciplinary reasons, dismiss or demote an employee when he determines that the good of the public service will be served thereby. Demotions may also be made for reasons other than disciplinary ones; regulations, rules or directives shall specify the circumstances in which such demotions may be authorized. No dismissal or demotion of a permanent employee shall be effective for any purpose until the management official transmits to the employee, by the most practical means, a written notice setting forth the specific reasons for the dismissal or demotion and the employee's rights of appeal. A copy of the notice shall be filed with the Branch Head and with the Director without delay.

Kos. S.C. § 18.502. The good of the public service is served by a dismissal if the management official determines that an employee fits in one of the categories listed in Part X., Section 10.3, of the PSS Regulations, or else determines that similar grounds exist for dismissal. The listed grounds for the disciplinary dismissal of an employee in the PSS Regulations include:

[16 FSM Intrm 312]

a. Three consecutive Performance Evaluation Reports with Less Than Satisfactory ratings in any category;
b. A total of three suspensions, whether imposed as minor discipline or disciplinary action;
c. Conviction of any crime that the management official determines makes the employee unfit for his job
d. More than eight (8) working days in two (2) years that the employee has been taken unauthorized leave (AWOL) as specified in paragraph 4.3(b) above;
e. A determination has been made that the applicant was not truthful on his application for employment; or
f. An employee ceases work without explanation for more than 6 consecutive working days
g. Any other grounds causing the management official to justifiably believe that the good of the public service will be served by dismissal. By way of example only, an employee who has responsibility for children may be terminated for conduct that threatens the safety or the physical or moral well being of children, whether such conduct occurs during hours of employment or otherwise.

State Unified Pub. Serv. Sys. Reg. Pt. X, § 10.3.

    The Director of Health Services of Kosrae, who is a management official, terminated the employment of the Plaintiff, Mirah Palsis based on Kosrae State Code Section 18.502 and State Unified Public Service System Regulation Part X Section 10.3(g). The Director believed that the good of the public service will be served by the dismissal and when he terminated the Plaintiff, he gave her a notice of dismissal with six specific performance issues as reasons for the dismissal including: (1) poor management of the nursing work schedule, (2) favoritism, (3) scolding of nurses in public, (4) narcotics count had been off, (5) routinely given nurses leave without pay rather than let nurses take leave time they have earned, and (6) unwillingness to perform nursing/leadership duties. Director Post testified that it was a culmination of these areas that lead to the dismissal as well as the overall lack of morale among the nursing staff caused by the Plaintiff

    After her termination, the Plaintiff followed the appeals process as set out by Kosrae State Code Section 18.504 which states that:

Any regular employee who is suspended for more than the 3 working days, demoted, or dismissed may appeal to the Branch Head or his designee within 15 calendar days after written notice of the suspension, demotion or dismissal has been transmitted to him. Upon receiving such appeal, the Branch Head, or his designee, shall form an ad hoc hearing committee of three members, drawn from the panel established under Section 18.503 of this Chapter.
      (1) The ad hoc committee shall comprise one member chosen by the Branch Head, one chosen by the appellant, and a third chosen jointly by the first two members. If the first two members are unable to agree on the choice of a third member, the third member shall be selected by lot from among the remaining members of the panel.
      (2) No member of an ad hoc committee shall be an officer or employee of the division the appellant was or is assigned, or a close relative of either appellant or the responsible management official.
     (3) Members of the ad hoc committee shall not be entitled to additional compensation for such service, but shall be reimbursed for necessary expenses connected with any hearings to which they are assigned.

Kos. S.C. § 18.504. The ad hoc committee held administrative hearings on February 7 and 8, 2008 pursuant to Section 18.505 of the Kosrae State Code and following the hearing the committee prepared

[16 FSM Intrm 313]

a written statement of its findings of fact and its recommendations for action as required by section 18.506 of the Kosrae State Code on February 13, 2008. The committee, after a lengthy review of the case reached a consensus and recommended that the decision of Director Post to dismiss the Plaintiff from Public Service be upheld. The committee found that the Plaintiff's dismissal from Kosrae Public Service System was executed legally and in accordance with the Kosrae State Public Service Regulation and statutory law and her due process rights were not violated. The committee found that four of the six performance issues alleged against the plaintiff to be valid and had a negative impact on the delivery of health.

    On February 21, 2008, the Governor of Kosrae, Robert J. Weilbacher, upheld the decision made by the Ad Hoc Panel, pursuant to Kosrae State Code 18.506, to terminate the Public Service System employment of Mirah Palsis concluding that the termination action was supported by both the facts and the law. The Plaintiff then filed the present action with this Court against the Defendant, State of Kosrae, on March 19, 2008 pursuant to Section 18.507 of the Kosrae State Code allowing the judicial review of contested cases. As discussed supra, the section states that:

(1) A person adversely affected or aggrieved by a final decision made pursuant to this Chapter is entitled to judicial review of that decision in the Kosrae State Court. The Court shall conduct a de novo trial of the matter and may receive in evidence any or all of the record from the administrative hearing that is stipulated by the parties.
(2) The reviewing 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. The reviewing court shall:
      (a) compel agency action unlawfully withheld or unreasonably delayed;
      (b) hold unlawful and set aside agency actions and decisions found to be:
                   (i) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
                   (ii) contrary to constitutional right, power, privilege, or immunity;
                   (iii) in excess of statutory jurisdiction, authority, or limitations, or a denial of legal rights;
                   (iv) without substantial compliance with the procedures required by law; or
                   (v) unwarranted by the facts.

Kos. S.C. § 18.507. This section requires this Court to set aside agency action if unwarranted by the facts. The committee found facts to support four performance issues; favoritism, scolding nurses in public, issuance of leave, and unwillingness to perform leadership duties that had a negative impact the delivery of health care and were sufficient grounds for dismissal of Plaintiff.

    We must also consider the additional evidence submitted at the trial de novo. This Court finds that there was evidence and testimony to support the following facts: the Plaintiff scolded nurses in public, at times was unwilling to perform her leadership duties, favoritism occurred. there was poor management of the nursing work schedule, improperly issued leave occurred and the narcotics count was off during the time the Plaintiff was employed at the hospital.

    The grounds listed in the PSS Regulations do not offer specific examples of conduct by an employee in a supervisory job that would be sufficient to support a dismissal. Therefore, agency discretion was used in deciding whether Plaintiff's conduct in her supervisory role met the standard set by the Regulations. Under Kosrae Code Section 18.502, if the agency abused its discretion, or acted arbitrarily or capriciously, then the dismissal should be set aside.

[16 FSM Intrm 314]

    Here, according to the notice of dismissal, the agency determined that Plaintiff's behavior, particularly the accountability for narcotics and handling of leave, was serious and the leadership issues were the most important. Plaintiff submitted evaluations from several years showing she had received satisfactory ratings. However, none of these evaluations were for recent periods and the agency did not rely on the evaluations to make its decision to dismiss Plaintiff. The Court notes that the..agency's grounds for dismissal would have been clearer if recent evaluations were available and consistent with their decision.

    Health Care is one of the most important public priorities in Kosrae and nurses plays central part in delivering health care. Nursing is the "protection, promotion, and optimization of health and abilities, prevention of illness and injury, alleviation of suffering through the diagnosis and treatment of human response, and advocacy in the care of individuals, families, communities, and populations." American Nurses Association, Nursing's Social Policy Statement 6 (2d ed. ANA, 2003). Nurses do more than just care for individuals. They provide a vital role of the health care industry and therefore the quality of nurses is imperative in maintaining strong health care in a state such as Kosrae.

    Not only do nurses provide care and assist in cure, they participate in rehabilitation, provide support, advocate for health promotion, and educate patients and the public on the prevention of illness and injury. Nurses have a wide and expansive role in the health care profession making their job essential for the health and well being of all individuals in a community. One of the roles of a nurse is to help individuals and families become healthy through helping them understand everything they will encounter during an illness such as emotional, physical, mental and cultural experiences. Nurses help patients and their families cope with illnesses and the struggles that can accompany their illness and how they can live with these challenges if necessary. Nurses provide an ongoing assessment of a person's health. They are present at the hospital at all times and their observation skills and vigilance help allow doctors to make better diagnoses and propose better treatments. Nurses help save lives and therefore the quality of a nurse is very important to the health care industry.

    The standard as set out by the Kosrae State Code and the PSS Regulations are that a dismissal can occur if it is done for the good of the public service. This Court will set aside the agency decision if it finds that the decision was arbitrary, capricious, and abuse of discretion or that the decision was unwarranted by the facts. In analyzing the facts as set out in the factual background section, this Court finds that each complaint and factor as a reason for dismissal alone does not rise to the level that would allow a management official to terminate an employee. However, as discussed, the health care industry is vital to the community of Kosrae and nurses affect the well being of all citizens of Kosrae. Looking at each performance issue, complaints, and reason for dismissal of the Plaintiff together, the good of the public service is advanced by the termination of the Plaintiff. Director Post's decision was based on his expertise and experience. It is the Director who is to see to it that the conduct of employees is up to a level of care that is required in the health care industry. The Director is at the hospital to make sure there is good care and good health and is obligated to see that better health is being done at the Kosrae State Hospital. The agency did not abuse its discretion when it decided to terminate the Plaintiff's employment and did not act in an arbitrary and capricious way. The Ad Hoc Committee's decision creates a slight presumption that the agency acted reasonably. The termination of the Plaintiff's employment was warranted by the facts. The hospital, especially the nursing staff, was experiencing a lack of morale and as the Chief Nurse, the Plaintiff was one of the main reasons for this. The Plaintiff often was not performing her duties and frequently could not even be found when she was needed. There was poor management of the nursing schedule. Often, nurses were working without a supervisor and at times certain nurses could not dispense drugs as there was not a nurse who was able to on duty. The Chief Nurse is responsible to ensure the narcotics log was correct and while the Plaintiff was in charge, the count was off. The Plaintiff would also show favoritism to certain nurses. Further, the Plaintiff also was not handling leave properly causing nurses to be upset. Finally, the Chief

[16 FSM Intrm 315]

Nurse would scold nurses in public which also undermines nurses morale and is not proper in a health care setting. The Plaintiff was the Chief Nurse and was not showing effective leadership skills. The culmination of all of these factors did rise to a level where dismissal was a viable option and at the discretion of the management official. In this case, Director Post did decide to terminate the Plaintiff. The Plaintiff's actions had a negative impact on the delivery of health and the good of the public service was served by her dismissal.

Conclusion

    This Court finds that the Plaintiff's due process rights were not violated. When an employee is terminated, there does need to be a pre-termination hearing which includes notice and an opportunity to be heard. In the present case, the Plaintiff was given notice in her letter of dismissal and had ample time to be heard. Since there was an extensive post-termination process in place including a formal hearing where evidence was introduced and witnesses cross examined, the pre-termination hearing did not need to be elaborate. The Plaintiff, in her conversation with Director Post on August 7, 2007 and when her attorney met with the Director on August 15, 2007, had her pre-termination hearing. Furthermore, the Plaintiff's dismissal was warranted by the facts and the agency did not abuse its discretion or act arbitrary or capricious. Therefore, the decision of this Court is for the Defendant on all counts of the complaint.

___________________________

Footnotes:

1. During the trial, Sasaki George stated that he was not the original representation for the Plaintiff in this matter. It "should be noted that, in fact, he did represent the Plaintiff. Sasaki filed the notice of appeal and memorandum of authorities for the Ad Hoc Committee. Sasaki George also represented to Director Post that he was representing the Plaintiff in the employment matter and at the August 15, 2007 meeting was acting as the representative on behalf of the Plaintiff.

2. Sasaki George testified that he had no recollections of the August 15, 2007 meeting during some questions and others he testified to certain facts at the meeting. Mr. George's testimony was found not credible due to the fact of his conflicting statements and also the fact he insisted he never represented the Plaintiff in this matter.

3. The Plaintiff had sought representation on this matter from MLSC and Counsel Sasaki George was her attorney at this point in the case. Sasaki George filed the notice of appeal from the termination on August 22, 2007 signing the notice as counselor for Employee. Sasaki George also wrote a letter on behalf of the Plaintiff to the Governor requesting him to overturn her employer's decision. Sasaki George testified that he was not the original representation of Mirah Palsis and this is, in fact, untrue. He further testified at one point that he had no recollection of the discussions at the meeting with Director Post.

* * * *