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,
   vs.

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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