Case annotations: The National Public Service System Act’s provisions create a mutual expectation of continued employment for National Government employees and protect that employment right by limiting the permissible grounds, and specifying necessary procedures, for termination. This, in turn, is sufficient protection of the employment right to establish a property interest. Suldan v. FSM (II), 1 FSM R. 339, 353-54 (Pon. 1983).
Where there are no directly controlling statutes, cases or other authorities within the FSM, it may be helpful to look to the law of other jurisdictions, especially the United States, in formulating general principles for use in resolving legal issues bearing upon the rights of public employees and officers, in part because the structures of public employment within the FSM are based upon the comparable governmental models existing in the United States. Sohl v. FSM, 4 FSM R. 186, 191 (Pon. 1990).
In this chapter, unless the context requires otherwise, the following definitions shall apply:
(1) “Adjusted base salary” means the total of base salary plus marketplace premium, foreign service premium, or professional premium. If an employee is not entitled to any of these premiums, his adjusted base salary means his base salary.
(2) “Base Salary” means the specific rate of pay for a given pay level and step as contained within the base salary schedule established by law. “Base salary” does not include premiums under section 163 of this chapter, professional premiums, differentials under section 164 of this chapter, or transfer, travel per diem, or other similar allowances.
(3) “Class” or “class of positions” means a group of positions sufficiently similar so that all can reasonably be identified by the same title, be filled by applying the same qualification standards, and be equitably compensated by the same salary level. A class may consist of only one position or of any greater number of positions.
(4) “Eligible list” means a list of persons who have been found qualified for appointment to a position in a particular class. Such a list may be either reemployment, promotional, or open-competitive.
(5) “Eligible person” or “eligible” means a person whose name is on an active eligible list.
(6) “Employee” means a person holding a position in the public service, whether permanently or otherwise.
(7) “Foreign service premium” means a premium as set forth under subsection 163(2) of this title.
(8) “Government of the Federated States of Micronesia” includes the Legislative, the Executive, and the Judicial Branches and the agencies of the Government of the Federated States of Micronesia.
(9) “Management official” or “management” means a person authorized to make appointments or changes in status of employees in the public services.
(10) “Market place premium” means a premium as set forth under subsection 163(1) of this chapter.
(11) “Open-competitive examination” means an examination for positions in a particular class, admission to which is not limited to persons employed in the public service.
(12) “Open-competitive list” means a list of persons who have been found qualified by open-competitive examination for appointment to a position in a particular class.
(13) “Personnel officer” means the head of the Office of Personnel of the Government of the Federated States of Micronesia.
(14) “Position” means a group of duties and responsibilities assigned by competent authority to be performed by one person, working full-time or part-time. A position may be either occupied or vacant.
(15) “Position classification plan” means the arrangement in a systematic order of the titles of all classes existing in the public service, with a description of each class.
(16) “Probation period” means a period of probationary employment status of not less than six months nor more than one year from the beginning of an employee’s service in a particular position or class in the public service.
(17) “Professional premium” means a premium as set forth under subsection 163(3) of this chapter.
(18) “Promotional examination” means an examination for positions in a particular class, admission to which is limited to regular employees in the public service.
(19) “Promotional list” means a list of persons who have been found qualified by a promotional examination for appointment to a position in a particular class.
(20) “Public service” means all offices and other positions in the Government of the Federated States of Micronesia not exempted by section 117 of this chapter.
(21) “Reemployment list” means a list of persons who have been regular employees in the public service and who are entitled to have their names certified for appointment to a position in the class in which they last held permanent status, or in a related class in the same or a lower salary range for which they meet the qualification requirements.
(22) “Regular employee” or “permanent employee” means an employee who has been appointed to a position in the public service who has successfully completed a probation period."
The National Public Service System shall be administered in accordance with the merit principles set forth below:
(1) equal opportunity for all regardless of sex, race, religion, political affiliation, ancestry, or place of origin;
(2) no discrimination against any person because of a physical handicap unconnected to his ability to perform effectively the duties of the position in which he is employed or in which he is seeking employment; provided that the employment of such physically handicapped person will not be hazardous to him nor endanger the health or safety of others, nor require major expenditures by the central Government to provide such employee or candidate for employment with an adequate place of work or access thereto;
(3) impartial selection of the ablest person for public service by means of tests which are fair, objective, and practical;
(4) just opportunity for competent employees to be promoted within the service;
(5) reasonable job security for competent employees, including the right of appeal from adverse personnel actions as provided in this chapter;
(6) systematic classification of all positions through objective job analysis;
(7) fair and reasonable grievance procedures, appropriate to conditions of employment, for all employees;
(8) proper employer-employee relations to achieve a well-trained, productive, and happy work force.
Cross-reference: Equal protection of the laws is guaranteed pursuant to FSM Const., art. IV, § 4. The provisions of the Constitution are found in Part I of this code.
(1) Notwithstanding the provisions of section 113 of this chapter, with a view to ensuring full participation by citizens of this country in its public service, preference shall be given to qualified citizens of the Federated States of Micronesia in making appointments and promotions and providing opportunities for training.
(2) The provisions of this section shall be enforced by appropriate regulations.
(1) Every regular employee shall be entitled to hold his position during good behavior, subject to the provisions of subsection (2) of this section, and to suspension, demotion, layoff, dismissal, or termination of employment through the Early Retirement Program, only as provided in this chapter or in chapter 5 of this title and in the regulations adopted in pursuance thereof; provided, however, that the tenure of a contract employee is the term of his contract; and provided further that an employee who must submit his resignation pursuant to section 207 of title 2 of this code is not entitled to continued employment with the National Government if he is not renominated by the President or if he is not reconfirmed by the Congress through advice and consent proceedings.
(2) Notwithstanding any other provision of this title, no person may be an employee of the National Government after the 60th anniversary of his birth, except for those employees who are made exempt from the National Public Service System by section 117 of this title.
Cross-reference: The statutory provisions on the President and the Executive are found in title 2 of this code. Section 207 of title 2 of this code is on Appointment Authority.
Editor’s note: Congress enacted PL 14-56, which became law without the signature of President Joseph J. Urusemal, and states its purpose in section 1:
Section 1. Purpose. The Federated States of Micronesia and its National Government face significant challenges presented by the decreasing availability of Compact funds, a growing population, impediments to sustainable economic growth, and a host of other issues and circumstances. The nation requires a National Public Service that has the energy, skills and intellectual vigor necessary to meet those challenges and to pursue the FSM’s interests in an increasingly complicated and technically-demanding world. It is also critical that the nation create opportunities for each successive generation of Micronesians to become involved in public service so that its future leaders may be prepared for the day when responsibility for governing the nation passes to them. At present, there is no mandatory retirement age for employees of the National Government. Too often, National Government employees hold on to their positions for financial reasons, even though they no longer have the will, stamina and vigor necessary to fully perform their responsibilities. As a result, the effectiveness of the National Government is diminished and opportunities for younger citizens to enter and advance within the public service are significantly limited. To address these problems, this act establishes a mandatory retirement age for employees within the National Public Service System. Officials who, by law, are exempt from the Public Service System are also made exempt from the mandatory retirement requirement.
In subsection (1) of this section, “of the Code of the Federated States of Micronesia” is replaced with “of this code” for format consistency.
Case annotations: Government employment that is “property” within the meaning of the Due Process Clause cannot be taken without due process. To be property protected under the Constitution, 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 R. 339, 351-52 (Pon. 1983).
The National Public Service System Act’s provisions create a mutual expectation of continued employment for National Government employees and protect that employment right by limiting the permissible grounds, and specifying necessary procedures, for termination. This, in turn, is sufficient protection of the employment right to establish a property interest. Suldan v. FSM (II), 1 FSM R. 339, 353-54 (Pon. 1983).
The National Public Service System Act, by implication, requires final decisions by unbiased persons. Suldan v. FSM (II), 1 FSM R. 339, 362 (Pon. 1983).
When an individual begins working for a federal government agency, he is justified in believing that he will be allowed to hold that position until terminated by a supervisor and in believing that he will be compensated for his work. Falcam v. FSM (II), 3 FSM R. 194, 198 (Pon. 1987).
An expectation of being paid for work already performed is a property interest qualifying for protection under the Due Process Clause of the FSM Constitution. Falcam v. FSM (II), 3 FSM R. 194, 200 (Pon. 1987).
Any withholding of private property, such as a government employee’s paycheck, without a hearing can be justified only so long as it take the authorized payor to obtain a judicial determination as to the legality of the payment being withheld. Falcam v. FSM (II), 3 FSM R. 194, 200 (Pon. 1987).
The National Public Service System Act and the FSM Public Service System Regulations establish an expectation of continued employment for nonprobationary national government employees by limiting the permissible grounds and specifying necessary procedures for their dismissal; this is sufficient protection of the right to continued national government employment to establish a property interest for nonprobationary employees which may not be taken without fair proceedings, or “due process.” Semes v. FSM, 4 FSM R. 66, 73 (App. 1989).
In the absence of statutory language to the contrary, the National Public Service System Act’s mandate may be interpreted as assuming compliance with the constitutional requirements, because if it purported to preclude constitutionally required procedures, it must be set aside as unconstitutional. Semes v. FSM, 4 FSM R. 66, 74 (App. 1989).
No employee in the public service shall be suspended, demoted, dismissed, laid off, or otherwise discriminated against because of sex, marital status, race, religious or political preference, place of origin, or ancestry.
The National Public Service System shall apply to all employees of and positions in the Government of the Federated States of Micronesia now existing or hereafter established and to all personnel services performed for that Government except the following, unless this chapter or provisions thereof are specifically made applicable to them:
(1) Members of the Congress of the Federated States of Micronesia;
(2) the President and Vice President of the Federated States of Micronesia;
(3) Justices and other Judges of the National Courts;
(4) the legislative counsel, deputy legislative counsel, director of administration and budget, budget officer, administrator and the clerk of the Congress;
(5) the Public Auditor;
(6) the administrative officer of the National Courts;
(7) the special assistants and secretaries to the President and Vice President and the secretaries to the Speaker and Vice-Speaker of the Congress of the Federated States of Micronesia;
(8) persons appointed by the President to fill the following positions:
(a) Secretary of the Department of Foreign Affairs,
(b) Secretary of the Department of Finance and Administration,
(c) Secretary of the Department of Economic Affairs,
(d) Secretary of the Department of Transportation, Communication and Infrastructure,
(e) Secretary of the Department of Health, Education and Social Affairs,
(f) Secretary of the Department of Justice, and
(g) the Chief Public Defender, and
(h) their deputies, if any;
(9) persons appointed to any other positions by the President with the advice and consent of the Congress;
(10) the Representative in Washington and all ambassadors;
(11) persons or organizations retained by contract when the Personnel Officer has certified that the service to be performed is special or unique and nonpermanent and is essential to the public interest, and that, because of the degree of expertise or special knowledge required and the nature of the services to be performed, it would not be practical to obtain personnel to perform such services through normal public service recruitment procedures;
(12) persons presently under contract of employment not included in subsection (11) of this section, during the life of such contract. No contract of employment shall be entered into, renewed, or amended after the effective date of this chapter, except in accordance with the provisions of this chapter;
(13) temporary positions, required in the public interest, for which the need does not exceed six months;
(14) positions requiring part-time or intermittent work which does not exceed 60 hours in any calendar month;
(15) positions filled by inmates, patients, and students of institutions of the Federated States of Micronesia;
(16) members of any board, public corporation, commission, or similar body, in their capacity as such;
(17) officers, faculty, and employees of the Board of Regents and the College of Micronesia;
(18) positions specifically exempted by any other law of the Federated States of Micronesia;
(19) all personnel of the National Weather Service, provided that the National Weather Service shall be administered by the Office of the President.
Cross-reference: The statutory provisions on the President and the Executive are found in title 2 of this code. The statutory provisions on the FSM Congress are found in title 3 of this code. The statutory provisions on the FSM Supreme Court and the Judiciary are found in title 4 of this code.
The website of the FSM National Government contains announcements, press releases, news, forms, and other information on the National Government at http://fsmgov.org.
The FSM Supreme Court website contains court decisions, rules, calendar, and other information of the court, the Constitution, the code of the Federated States of Micronesia, and other legal resource information at http://www.fsmsupremecourt.org/.
The official website of the Congress of the Federated States of Micronesia contains the public laws enacted by the Congress, sessions, committee hearings, rules, and other Congressional information at http://www.fsmcongress.fm/.
The statutory provisions on the Public Auditor are found in chapter 5 of title 55 (Government Finance and Contracts). The statutory provisions on the College of Micronesia—FSM are found in chapter 7 of title 40 (Education) of this code.
Nothing in section 117 of this chapter shall be deemed to affect the public service status of any incumbent as it existed on the effective date of this chapter.
A regular employee holding a valid appointment in the Trust Territory public service may be admitted without examination, or after the effective date of this chapter, to a position of the same class or an equivalent class in the National Public Service System of the Federated States of Micronesia. In subsequently computing the seniority of such an employee for retention and similar purposes, his time of service in the Trust Territory public service shall be credited in the same way as if it had been in the National Public Service System.