KOSRAE STATE COURT TRIAL DIVISION
Cite as Seventh Kosrae State Legislature v. Abraham
10 FSM Intrm. 299 (Kos. S. Ct. Tr. 2001)
[10 FSM Intrm. 299]
SEVENTH KOSRAE STATE LEGISLATURE,
Plaintiff,
BOLDON ABRAHAM, DIRECTOR OF
KOSRAE STATE
DEPARTMENT OF ADMINISTRATION AND
FINANCE,
Defendant.
CIVIL ACTION NO. 58-01
ORDER GRANTING PETITION; WRIT OF
MANDAMUS
Yosiwo P. George
Chief Justice
Hearing: July 5, 2001
Decided: July 5, 2001
Memorandum Entered: July 9, 2001
APPEARANCES:
For the
Plaintiff:
Gilbert W. Brewer, Esq.
Legislative Counsel
j Kosrae State
Legislature
P.O. Box 187
Lelu, Kosrae FM 96944
For the
Defendant:
April D.M. Skilling, Esq.
Acting Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Lelu, Kosrae FM 96944
[10 FSM Intrm. 300]
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HEADNOTES
Public Officers and Employees
) Kosrae
Because the Oversight Board has not adopted any policies, rules or
regulations, the Director of Administration, who is responsible for
administration of the Public Service System consistent with Title 18, and any
policies, rules and regulations adopted by the Oversight Board, must implement
all the Speaker's decisions pertaining to the Legislative Branch's public
service employees, as long as the decision is not inconsistent with Kosrae State
Code, Title 18. Seventh Kosrae State Legislature v. Abraham, 10 FSM
Intrm. 299, 302 (Kos. S. Ct. Tr. 2001).
Public Officers and Employees ) Kosrae
When two legislative branch employees, effective October 1, 1998,
had met the statutory requirements to qualify for performance increases, but the
personnel action forms to implement the increases were never submitted to the
Department of Administration for processing due to administrative oversight at
the Legislature; when in June 2001, the Speaker ordered the Director of
Administration to implement the performance increases effective October 1, 1998
and backdated personnel action forms were submitted on both employees' behalf;
when the personnel action forms contemplate an effective date that may be
different than the approval date; when backdating of personnel action forms was
a common practice in all three branches of state government and are routinely
processed and implemented by the Department of Administration; when the
Department's refusal to process the backdated personnel actions deprives both
employees of the performance increases they qualified for and are entitled to by
law; and when backdating employees' personnel action forms is consistent with
all three state government branches' accepted and continuing practice and is not
inconsistent with Kosrae State Code, Title 18; the Director of Administration is
required to implement the performance increase, retroactive to October 1, 1998,
and subsequent pay level adjustments ordered by the Speaker. Seventh Kosrae
State Legislature v. Abraham, 10 FSM
Intrm. 299, 302-03 (Kos. S. Ct. Tr. 2001).
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COURT'S OPINION
YOSIWO P. GEORGE, Chief Justice:
On
June 18, 2001, Plaintiff filed a Petition for Writ of Mandamus and a Motion for
Expedited Hearing. Defendant filed a Response on July 3, 2001. The Petition for
Writ of Mandamus was set for hearing on July 5, 2001. Gilbert Brewer,
Legislative Counsel, appeared for the Plaintiff. Defendant was represented by
April D.M. Skilling, Acting Attorney General.
After hearing from both
parties, I granted the Petition for Writ of Mandamus, and ordered that the
Defendant process the change in pay levels immediately, and issue checks for the
back pay due to Charlton Timothy and Chang William within 30 days. This
memorandum sets forth the reasoning of my decision.
I. Factual
Background.
Employees Charlton Timothy
and Chang William are employed as Legal Aides at Kosrae State Legislature.
Following the passage of the Kosrae State Public Service System Law, State Law
6-131, Timothy and William were classified at pay level 24/3, effective October
1, 1997. Kosrae State Code,
[10 FSM Intrm. 301]
Section 18.606, which provides
for performances increases, was added to Kosrae State Code, Title 18, through
State Law 6-160, and made effective on October 1, 1998. Under Section 18.606,
Timothy and William were eligible for performance increases after 52 weeks of
acceptable performance.
Employees Timothy and
William had satisfied the requirements of Section 18.606 to be eligible for a
performance increase of one step, from pay level 24/3 to 24/4, on October 1,
1998. Performance evaluations were completed for these employees, which
indicated 52 weeks of acceptable performance. However, the documentation for
processing the performance increases for Timothy and William was never prepared
by the Legislature or sent to the Department of Administration for processing
the increase in pay level.
On October 1, 1998,
employees Timothy and William were subjects of a re-allocation action. The
purpose of the re-allocation action was to adjust the salary level commensurate
with their increased workload. These employees were assigned to the two busiest
committees of the Legislature: Ways and Means, and Judiciary and Government.
These two committees handled a substantially higher number of bills than the
remaining committees. Accordingly, employees Timothy and William were granted
re-allocation actions, and reclassified as Legal Aides II, which increased their
pay level from 24/3 to 24/5.
Employees Timothy and
William submitted a grievance to the Speaker, requesting and adjustment in their
pay level to reflect the performance increase they had qualified for on October
1, 1998, but which had never been processed by the Legislature or the Department
of Administration. The Speaker granted the employees' grievance, finding that
the two employees had qualified for the step increase on October 1, 1998. The
Speaker also concluded that the re-allocation action was granted for unrelated
reasons and should not eliminate the employees' entitlement to the performance
increase provided by law. The Speaker determined that the performance increases
for Timothy and William should be processed first, and the re-allocation action
be processed second on October 1, 1998. The Speaker ordered the Department of
Administration to retroactively adjust the employees' salary levels to 24/6, to
include the performance increase and the re-allocation actions, both effective
October 1, 1998.
The Department of
Administration refused to process the Speaker's Order and the Personnel Action
Forms submitted to implement the performance increases for employees Timothy and
William. This Petition for Writ of Mandamus was then filed by the Seventh Kosrae
State Legislature.
II. Applicable Law.
Kosrae State Code, Title
18, sets forth the State Public Service System, which applies to employees of
all three branches of Kosrae State Government. Under Section 18.202, the System
is administered by the Branch Heads, the Oversight Board and the Director of
Administration. The Speaker is the Branch Head and member of the Oversight Board
on behalf of the Legislative Branch. Kosrae State Code, Section 18.202 provides:
Section 18.202. Application of system. The State Public Service System
is applicable to all branches of the State Government. Application and
administration of the State Public Service System will be through a cooperative
effort of the Branch Heads, the Oversight Board, and the Director. The Oversight
Board shall create and control policy and promulgate rules and regulations for
the State Public Service System by unanimous consent. The Branch Heads, or the
Branch Head's designee, is responsible for all hiring decisions, disciplinary
actions, suspensions, terminations, reduction in force, promotion,
administrative directives, and other specific decisions which affect their
branch of
[10 FSM Intrm. 302]
government and are not
inconsistent with Title 18 or the policies, rules and regulations adopted by the
Oversight Board. The Director shall be responsible for administering the public
service system consistent with Title 18 and the policies, rules and regulations
adopted by the Oversight Board.
Pursuant to Section
18.202, the Speaker is responsible for all decisions pertaining to public
service employees of the Legislative Branch, so long as the Speaker's decision
is not inconsistent with Title 18, policies, rules, and regulations adopted by
the Oversight Board. The Director of Administration is responsible for
administration of the System consistent with Title 18, and policies, rules and
regulations adopted by the Oversight Board. To date, the Oversight Board has not
adopted any policies, rules or regulations. Therefore, the Director must
implement all decisions made by the Speaker, as long as the decision is not
inconsistent with Kosrae State Code, Title 18.
III. Issue
Presented.
Whether the action ordered by the Speaker, to give
employees Timothy and William a performance increase, retroactive to October 1,
1998, is consistent with Title 18? If yes, then the Director of Administration
must process the Personnel Action Form and implement the Speaker's
Order.
IV. Analysis.
On October 1, 1997, when
the new unified State Public Service Act took effect, the provision granting
step increases was eliminated. The provision providing performance increases,
Section 18.606, was added by State Law 6-160 in April 1998. Section 18.606
became effective on October 1, 1998. On October 1, 1998, employees Timothy and
William had met the statutory requirements to qualify for their performance
increases from pay level 24/3 to 24/4. The personnel action forms to implement
the performance increases were never submitted to the Department of
Administration for processing, due to administrative oversight at the
Legislature. On October 1, 1998, employees Timothy and William were re-allocated
from 24/3 to 24/5 based upon their higher workload. This re-allocation was
effective on October 1, 1998.
In June 2001, the Speaker
ordered the Director of Administration to implement his Decision and Order
granting the Timothy and William their performance increases effective October
1, 1998. Personnel action forms were submitted on behalf of both employees to
implement this action. The personnel action forms were "backdated" to allow an
effective date of October 1, 1998. The personnel action form utilized by Kosrae
State Government contains a Section 6, entitled "Requested Effective Date." This
section contains two lines for dates to be entered by the department and by
personnel. It is clear that the personnel action form contemplates an "effective
date" that may be different than the "approval dates" entered in Section
11.
Both parties admitted that
backdating of personnel action forms to allow for retroactive personnel actions
and retroactive pay increases was a common practice in all three branches of
Kosrae State Government. Backdated personnel action forms are routinely
processed and implemented by the Department of Administration. The practice of
permitting backdating of personnel actions ensures that public service employees
who are entitled to pay level increases on a certain date can be compensated
from that date, even if the personnel action form is not processed until a later
time. The purpose of backdating of personnel action forms is to allow employee
compensation to be paid from the date that the employee is entitled to that
compensation, whether by law, regulation, or other action by the branch head.
The backdating of personnel action forms may be completed for a variety of
reasons, such as the persons necessary for certification may be ill, off-island,
or otherwise absent from the office. Backdating of personnel action forms is
also completed to correct the mistakes and oversight
[10 FSM Intrm. 303]
by the Branch management. In this case, the
backdating of the employees' personnel actions was to correct an administrative
oversight and to provide for the statutory performance increase. The Department
of Administration's refusal to process the backdated personnel actions for
Timothy and William deprives these employees of the performance increases they
have qualified for and are entitled to by law, due to an oversight by their
employer. The Department's refusal to implement the Speaker's Order would
violate the merit principles applicable to the Public Service System, provided
in Section 18.103. This Court will not permit this injustice.
The Speaker's actions in
backdating of the employees' personnel action forms, and in ordering the
retroactive pay level adjustments are consistent with accepted and continuing
practice by all three branches of Kosrae State Government. The backdating of the
performance increases, as specified in the personnel action forms and the
Speaker's Order, for employees Timothy and William, effective October 1, 1998,
is not inconsistent with Kosrae State Code, Title 18. Therefore, pursuant to
Kosrae State Code, Section 18.202, the Director of Administration is required to
implement the performance increase, retroactive to October 1, 1998 and
subsequent pay level adjustments ordered by the Speaker.
WRIT OF MANDAMUS
The Director of
Administration is ordered to process the performance increases for employees
Timothy and William, from pay level 24/3 to 24/4, effective October 1, 1998, and
to process all subsequent pay level adjustments as set forth in the Speaker's
Grievance Decision and Order dated June 7, 2001. All pay level adjustments shall
be made immediately. Payment of all retroactive pay due to the pay level
adjustments shall be made to the employees Timothy and William no later than
August 6, 2001.
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