Cite as Palsis v. Mayor of Tafunsak,

10 FSM Intrm. 141 (Kos. S. Ct. Tr. 2001)

[10 FSM Intrm. 141]

TOLENNA PALSIS

Plaintiff,

vs.

MAYOR OF TAFUNSAK JULIAN JONAH and the

TAFUNSAK MUNICIPAL GOVERNMENT,

Defendants.

CIVIL ACTION NO. 80-00

MEMORANDUM OF DECISION;

JUDGMENT

Yosiwo P. George

Chief Justice

Trial: January 18, 2001

Decided: February 28, 2001

APPEARANCES:

For the Plaintiff:

Sasaki George, Esq.

Micronesian Legal Services Corporation

P.O. Box 38

Lelu, Kosrae FM 96944

For the Defendant:

Akiyusi Palsis, trial counselor

P.O. Box 224

Lelu, Kosrae FM 96944

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HEADNOTES

A public officer's right to a given salary is based primarily upon constitutional, statutory, and regulatory provisions. The amount of compensation a public employee receives is set by law. Palsis v. Mayor of Tafunsak, 10 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2001).

Because the Tafunsak Municipal Constitution requires that salaries for elected Council members be established by ordinance and because a public officer's right to compensation depends entirely upon him being able to show clear authority of law entitling him to remuneration for performance of public duties, Tafunsak public officials' salaries must be appropriated by municipal ordinance. Palsis v. Mayor of Tafunsak, 10 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2001).

Compensation for a public officer's official services depends entirely upon the law. A public officer may only collect and retain such compensation as is specifically provided by law. Palsis v.

[10 FSM Intrm. 142]

Mayor of Tafunsak, 10 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2001).

When no Tafunsak municipal ordinance has been enacted to establish and pay salary for council members, other municipal officers and employees, there is no authority, as required by the municipal constitution, to pay salaries to Tafunsak municipal public officers and employees. A municipal council member is thus not entitled to receive unpaid salary, particularly when no evidence has been presented of a Tafunsak municipal ordinance enacted for appropriation of funds for payment of salaries for the 4th quarter of 1998 and when the municipal constitution requires that all payments from the municipal treasury be made according to appropriation by ordinance. Palsis v. Mayor of Tafunsak, 10 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2001).

Any payments for salaries of elected officials and staff made from the Tafunsak municipal treasury without the authority of a municipal ordinance establishing such salary and appropriating funds for the payment of such salary have been made in violation of the municipal constitution. Palsis v. Mayor of Tafunsak, 10 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2001).

While it appears that elected officials and staff of Tafunsak municipal government have been paid and continue to be paid salaries without authority of law, the Kosrae State Court cannot approve or order any salary to be paid to a Tafunsak Municipal Council member in violation of the municipal constitution. Palsis v. Mayor of Tafunsak, 10 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2001).

* * * *

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

This matter was called for trial on January 18, 2001. Plaintiff was represented by Sasaki George. Defendant was represented by Akiyusi Palsis. Several witnesses testified at trial: Tolenna Palsis, Mayor Julian Jonah, former Council Chairman Kun Joe, former Council Member Alister Tolenoa, Shrue R. Welley and former Council Member Harry Jackson.

Following the trial, by Order entered on January 22, 2001, the Court ordered the filing of the additional documents by both parties. Parties were ordered to file copies of the Tafunsak Municipal Ordinance which establishes the salary for Tafunsak Municipal Council members, and which appropriated funds for the payment of salaries to Tafunsak Municipal council members, applicable to the last quarter of calendar year 1998. Parties were also ordered to file a copy of the Rules or Regulations of the Tafunsak Municipal Council, applicable during the last quarter of calendar year 1998. Both parties filed their responses to the Court's Order for Documents on February 8, 2001.

The Plaintiff's claims in this case were based upon his service as a council member of the Tafunsak Municipal Council. Plaintiff claimed salary due him in the amount of $ 400 for the 4^th quarter of 1998, for the months of October, November and December 1998. This salary had not been paid to the Plaintiff by the Defendants. Plaintiff claimed that he performed his duties as Council member and was therefore entitled to salary for the last quarter of calendar year 1998. Plaintiff's claim was based upon the Tafunsak Municipal Constitution, Article VIII, Section 4.

At trial, Defendants argued that the Plaintiff was not entitled to salary for the 4^th quarter of

[10 FSM Intrm. 143]

calendar year 1998 because the Council did not meet in session, as required by the Tafunsak Municipal Constitution. Defendant also relied upon this Court's Memorandum of Decision and Judgment in the case of Harry Jackson v. Mayor of Tafunsak et al., Civil Action No. 66-99 (Oct. 19, 2000).

Based upon the evidence presented in this case and the applicable law, the Court concludes that the Defendant is not liable to the Plaintiff for payment of salary for the last quarter of calendar year 1998. Therefore, judgment shall be entered in favor of the Defendant. The Court reaches the same conclusion as in the case of Harry Jackson v. Mayor of Tafunsak, but on different grounds. The Court's reasoning is set forth below.I. Finding of Facts.

The Court has carefully considered all the evidence presented in this matter and makes the following findings of fact. Plaintiff was elected a member of the Tafunsak Municipal Council for the term of 1995 through 1998. As a member of the Council, Plaintiff performed duties on behalf of his constituents throughout his term. Plaintiff attended various types of meetings, performed work on the water pipe system, and participated in the Council's committee work, sports and other work events. Plaintiff also attended the Tafunsak Municipal Council sessions as a member of the Council. However, during the last quarter of calendar year 1998, the Council did not meet in session because of two reasons. First, it was unable to obtain a quorum of the necessary six members to hold session and conduct Council business. Second, supplies necessary to conduct session were not available.

Plaintiff, serving as member of the Council, had been paid a salary of $ 400 per quarter during his term, except for the last quarter of calendar year 1998. The last quarter of 1998, October through December, was the last quarter of Plaintiff's term as Council member. Plaintiff did not receive any salary from the Defendants for the quarter of October through December 1998. Likewise, the none of the other Council members received their salaries for that quarter.

There was conflicting testimony on whether a Tafunsak Municipal Ordinance was ever enacted which established the salaries of the elected officials and staff. Neither party was able to produce a copy of a Tafunsak Municipal Ordinance which established the salaries for elected and appointed Tafunsak Municipal Government officials and staff at trial or pursuant to this Court's Order. Based upon all the evidence presented in this matter, the Court concludes that a Tafunsak Municipal Ordinance which established the salaries of elected officials and staff, including Council members, has never been enacted. Consequently, there was no Tafunsak Municipal Ordinance which established the salaries of the Plaintiff and the other Council members, applicable to the last quarter of 1998, October through December 1998.

There was testimonial evidence presented at trial that some staff salaries were paid during the last quarter of calendar year 1998. However, neither party was able to produce a copy of a Tafunsak Municipal Ordinance which had appropriated funds for payment of salaries during the last quarter of 1998, October through December 1998.

A copy of a proposed ordinance, council bill C.B. No. 97-006, was introduced into evidence at trial and later filed pursuant to this Court's Order. This council bill, dated September 15, 1997, proposed a budget for the Tafunsak Municipal Government for Fiscal Year 1998. Pursuant to State Law, Fiscal Year 1998 began on October 1, 1997 and ended on September 30, 1998. Therefore, this council bill did not apply to the last quarter of 1998, October through December 1998. Furthermore, there was no evidence presented showing that the subject council bill was ever enacted as a Tafunsak Municipal Ordinance.

[10 FSM Intrm. 144]

II. Legal Analysis.

A public officer's right to a given salary is based primarily upon constitutional, statutory, and regulatory provisions. Edwin v. Kosrae, 4 FSM Intrm. 292, 298 (Kos. S. Ct. Tr. 1990). The amount of compensation a public employee receives is set by law. Sohl v. FSM, 4 FSM Intrm. 186, 192 (Pon. 1990). Accordingly, a Tafunsak Municipal Council member's right to salary must be established by provisions of the Tafunsak Municipal Constitution and by Tafunsak Municipal Ordinance.

The Tafunsak Municipal Constitution, Article VIII contains provisions relating to elected officials. Section 4 of Article VIII states: "All salaries for elected officials and staff shall be established by ordinance; and may be reduced or increased only by a general reduction or increase which shall not take effect until after the next election."

Article VIII, Section 4 of the Tafunsak Municipal Constitution requires that salary for elected Council members be established by ordinance. A public officer's right to compensation depends entirely upon him being able to show clear authority of law entitling him to remuneration for performance of public duties. Furthermore, public officials' salaries must be appropriated by municipal ordinance. 63C Am. Jur. 2d Public Officers and Employees § 271 (rev. ed. 1997).

Compensation for official services by a public officer depends entirely upon the law. A public officer may only collect and retain such compensation as is specifically provided by law. Id. § 281. Accordingly, Plaintiff is entitled to receive his salary only upon showing authorization to such salary by Tafunsak Municipal Ordinance. In this case, the Plaintiff failed to prove the council's salary entitlement by ordinance. The Court concluded therefore that there has been no Tafunsak Municipal Ordinance enacted to establish and pay salary for council members, other municipal officers and employees. Therefore, there is no authority provided by Tafunsak Municipal Ordinance, as required by the Tafunsak Municipal Constitution, to pay salaries to public officers and employees of Tafunsak Municipal Government. Accordingly, Plaintiff is not entitled to receive salary for the 4^th quarter of calendar year 1998.

Furthermore, there has been no evidence presented of a Tafunsak Municipal Ordinance enacted for appropriation of funds for payment of salaries for the 4th quarter of 1998, October through December 1998. Tafunsak Municipal Constitution, Article VII, Section 6 requires that all payments from the municipal treasury be made according to appropriation by ordinance.

Any payments for salaries of elected officials and staff that have been made from the Tafunsak Municipal Treasury without authority of a Tafunsak Municipal Ordinance establishing such salary and appropriating funds for the payment of such salary have been made in violation of the Tafunsak Municipal Constitution, Article VII, Section 6 and Article VIII, Section 4. Based upon the evidence presented, it appears that elected officials and staff of Tafunsak Municipal Government have been paid salaries without authority of Tafunsak Municipal Ordinance and in violation of the Tafunsak Municipal Constitution.

While it appears that in the past, and possibly even at this time, elected officials and staff of Tafunsak Municipal Government have been paid and continue to be paid salaries without authority of law, this Court cannot approve or order any salary to be paid to a Tafunsak Municipal Council member in violation of the Tafunsak Municipal Constitution. Based upon the reasons set forth above, Plaintiff cannot recover on his salary claim against the Defendants.

The Defendants are strongly urged to take immediate action to comply with requirements of the Tafunsak Municipal Constitution with respect to establishment and payment of salaries for elected officials and staff.III. Judgment.

Judgment is entered in favor of the Defendants. The Complaint is dismissed with prejudice.