Cite as Palik v. Executive Services Appeals Board ,
4 FSM Intrm. 287 (Kosrae S. Ct. 199)

[4 FSM Intrm. 287]





Harry H. Skilling
Chief Justice
Kosrae State Court
May 11, 1990

For the Appellant:     Delson Ehmes
                                    Directing Attorney
                                    Micronesian Legal Services Corp.
                                    Tofol, Kosrae  96944

For the Appellee:      Richard Kaminsky
                                    Office of the Attorney General
                                    Tofol, Kosrae  96944
*    *    *    *
Appeal and Certiorari; Administrative Law - Judicial Review
     The Kosrae State Court in reviewing appeals from the Executive Service Appeals Board is empowered to overturn or modify the Board's decision if it finds a violation of law or regulation, but the Court is precluded from re-weighing factual determinations made by the Board.  Palik v. Executive Serv. Appeals Bd., 4 FSM Intrm. 287, 289 (Kos. S. Ct. 1990).

Constitution - Kosrae - Due Process
     The Kosrae Executive Appeals Board is authorized to subpoena witnesses, and may do so on its own motion, over the protest of a party.  For the Board to question such a witness in absence of a party to the hearing, when the party had notice but elected to walk out of the proceeding to seek a writ of prohibition, is not violative of due process.  Palik v. Executive Serv. Appeals Bd., 4 FSM Intrm. 287, 290 (Kos. S. Ct. 1990).

[4 FSM Intrm. 288]

Appeal and Certiorari
     When testimony goes unrecorded it may be preserved for consideration on appeal by affidavit of those in attendance and a party who knows that the recording had not been made but fails to take this step may not complain of the defect.  Palik v. Executive Serv. Appeals Bd., 4 FSM Intrm. 287, 291 (Kos. S. Ct. 1990).

*    *    *    *

HARRY H. SKILLING, Chief Justice:
     This matter came on regularly for hearing May 24, 1990.  Present were Delson Ehmes of MLSC for appellant and Richard Kaminski of the Office of Attorney General for appellee. Based on the following discussion, this Court upholds the decision of the Executive Service Appeals Board (the "Board") in affirming the dismissal of appellant.

     Appellant was terminated by his employer, the State of Kosrae, on June 16, 1986 on charges of three occasions of AWOL and insubordination in failing to turn over checks received by appellant in his official capacity.  Appellant requested review of the termination decision in a timely fashion.  The Executive Service Appeals Board initially held two days of hearings March 19, and March 23, at which time both parties introduced testimonial and documentary evidence, and were represented by counsel.
     At some point, a member of the Board consulted with the Attorney General. The Office of Attorney General stated that the consultation involved only a procedural point, and the appellant stipulated in Court to this fact.1
     On March 31, the Board held a third day of hearings, summoning on its own Nelson Kilafwakun.  At the hearing, appellant and his counsel appeared and made an objection to the conduct of the third day of hearings, and requested that the Board stay the hearing until counsel could apply to this Court for a writ of prohibition.  The Board denied the request, based upon the fact that Mr. Kilafwakun was to remain on Kosrae for a limited time, and proceeded to take the testimony of Mr. Kilafwakun without the presence of appellant or his counsel. At some point, the parties were made aware that the Board had failed to properly record the first day of hearings, by affidavit of Sepe Kinere, dated June 3, 1987. However, neither party to this action made any attempt to summarize or to prepare an affidavit of those in attendance at the hearing.

[4 FSM Intrm. 289]

The Board eventually upheld the dismissal of appellant, based upon their finding of good cause for termination.  The record which was certified to this Court contained a letter from Gerson Jackson, appellant's supervisor, dated after the notice of termination.

     Appellant raises several reasons for overturning the Board's decision:

     1.     The Board's decision was clearly erroneous.

     2.     Conducting a third day of hearing deprived appellant of due process.

     3.       The advice which the Attorney General gave to the Board violated law.

     4.     The failure by the Board to record the first day of hearings violated appellant's due process rights.

     5.     The inclusion of the letter from Gerson Jackson in the record on appeal violated appellant's due process rights.

     Standard of Review
       Kosrae Code Section 5.421(2) provides the standard of review in this Court for appeals from Executive Service Appeals Board decisions.  The Court can overturn or modify the Board's decision only if it finds a violation of law or regulation.  This standard precludes this Court from re-weighing factual determinations made by the Board.  If there is any factual basis for the Board's decision, it will be upheld, assuming no other violation of law or regulation.

ESAB Decision Based on Substantial Evidence
     At the hearing, appellant sought to show that certain ambiguities in the record were a sufficient basis for overturning the Board's decision.  Appellant pointed to a confusion over how many times Mr. Kilafwakun visited appellant to obtain certain checks.  Indeed, much of appellant's argument focuses on issues which are properly the subject of cross-examination.  As noted above, appellant chose not to stay and cross-examine Mr. Kilafwakun.  At any rate, the ambiguities pointed to by appellant merely go to the weight of the evidence, which was properly weighed by the Board, and will not be disturbed upon appeal.

Conduct of the third day of hearings did not violate due process
     Appellant contends that the Board had no power to call a third day of hearings, and in the alternative, that proceeding with the hearing while appellant sought a writ of prohibition from this Court violated due process of

[4 FSM Intrm. 290]

law.  Both contentions are without merit.

     First, there is no regulation, nor does due process in this context require the Board to hold hearings on consecutive days, nor is there a specific time limit within which the hearing may take place.  This Court has held in similar circumstances that due process in this context requires only that the hearing be held soon enough to be meaningful.  Here the hearings were held promptly. Therefore, the delay in the hearings is no violation of law or regulation.

     Similarly, the fact that the Board called a witness in its own motion does not violate law or regulation.  Indeed, the Kosrae Code specifically authorizes the Board to subpoena witnesses on its own motion.  See KC 5.421(1).

     The more interesting of appellant's arguments is that by failing to stay the third day of hearings while appellant sought a writ of prohibition from this Court, the Board violated appellant's due process rights.  Appellant contends that the Board made the writ of prohibition useless by proceeding with the third day of hearings. This Court is empowered to issue writs and other processes.  In the appropriate situation, the Court will issue a writ of mandamus or prohibition to the ESAB.  KC 6.1010(1) (a).

     In order for a writ of prohibition to issue, the petitioner must show that: 1) somebody is about to exercise judicial or quasi-judicial power; 2) the exercise of that power is contrary to law; and 3) such exercise will result in injury to the petitioner for which there is no adequate legal remedy.  The Kosrae Code provides for judicial review of ESAB determinations.  The present case is just such review.  The sections cited above clearly authorized the action of the Board in conducting a third day of hearings.

     Therefore, this Court holds that the failure of the Board did not infringe upon appellant's right to a right of prohibition in this case because appellant cannot show a violation of law, and has his interest sufficiently protected through judicial review.

The Advice Given by the Attorney General
to the Board was not in violation of law
     At the hearing the parties stipulated to the facts contained in the affidavit of counsel for appellee regarding the content of consultations by members of the Board with the Attorney General.  The content of the advice was centered on the power of the Board to call its own witness.  Absent any evidence that there was any other communication between the Attorney General and the Board, this Court cannot find that such consultation deprived the appellant of a fair hearing.  This is a point of procedure, and appellant furnishes no evidence to support his contention that the advice touched the merits of the case.  Therefore, this Court holds that such communication is not a basis for reversing the Board's decision.     
[4 FSM Intrm. 291]

Failure to Record First Day of Hearings
     The Board is charged with recording all ESAB hearings, and preserving such records for appeal.  Here, the Board failed to adequately record the first day's hearings.  The parties were made aware of this fact when the record was certified for appeal at the latest.  Nevertheless, neither party attempted to preserve the content of those hearings by affidavit or stipulation.

     Rule 10(c) of the Rules of Appellate Procedure which are used by the Court,2 provides a means by which unrecorded testimony, such as we have in this case, may be considered on appeal.  That Rule provides that the appellant may preserve the evidence by affidavit of those in attendance.  It is surprising that appellant chose not to take that step here, in light of the fact that appellant put on his case during the first day of hearings.  Therefore, because appellant failed to take any steps to preserve the testimony of his witnesses after he was aware that the recording had failed, he cannot now be heard to complain of the defect. Neither does appellant cite to any evidence which was not considered by the Board, nor any evidence of an exculpatory nature that was contained in the first day of hearings.  Indeed, the record is clear on the existence of good cause for termination, even absent the transcript of the first day of hearings.  Appellant admitted his use of AWOL on two separate occasions and the charges of insubordination were likewise supported by Mr. Kilafwakun.  This is a sufficient and rational basis for the Board's decision.3

     Based upon the foregoing, this Court has failed to find a violation of law, either in the Constitution or the Kosrae Code, or any regulation.  The Board had sufficient evidence to rule as it did, and none of the actions of the Board or the appellee deprived appellant of a fair hearing.  The decision of the ESAB is hereby affirmed.

*    *    *    *
1.  KC 5.421(1) allows the Board to call witnesses on its own motion.  The chapter contains no requirement that the hearing be held on consecutive days.  Due process is the safeguard of appellant's rights.  See Phillip v. ESAB, KSC Civil Action No. 62-88 (unpublished opinion).  We hold that the time period between hearings here did not violate appellant's due process rights.
2.  General Court Order 1988-2 supersedes Rule 10 of the Rules of Appellate Procedure, however, that Order did not issue until after the commencement of this appeal.  Therefore, we proceed on the basis of Rule 10 as stated in the FSM Rules of Appellate Procedure in this case.
3.  Appellant's argument regarding the inclusion of a letter from Gerson Jackson to appellant in the record on appeal as violative of due process was not urged by appellant at the hearing, and this Court summarily dismisses the argument based upon the Court's finding that the Board did not use the letter in coming to its decision.