KOSRAE STATE COURT
TRIAL DIVISION
Cite as Taulung v. Kosrae,
3 FSM Intrm. 277 (Kos. S. Ct. Tr. 1987)

[3 FSM Intrm. 277]

HASHIME TAULUNG,
Plaintiff,

vs.

KOSRAE STATE,
Defendant.

CIVIL ACTION NO. 39-86

OPINION

Before Harry H. Skilling
Chief Justice
February 11, 1988

[3 FSM Intrm. 278]

APPEARANCES:
     For the Plaintiff:          Canny Palsis
                                          Micronesian Legal Services Corporation
                                          Lelu, Kosrae 96944
 
     For the Defendant:     Richard Kaminski
                                          Office of the Attorney General
                                          Lelu, Kosrae 96944

*        *        *        *

HEADNOTES

Public Service Employees;
Constitutional Law - Due Process
     Written notice in a letter giving a limited-term employee three days notice of the reasons for his two week suspension from work is sufficient compliance with the requirement of 61 TTC 10(15)(a), which provides that a suspended employee must receive notice of the reasons for suspension, and is also sufficient compliance with the notice requirements of due process under the Kosrae Constitution.  Taulung v. Kosrae, 3 FSM Intrm. 277, 279 (Kos. S. Ct. Tr. 1988).

Public Service Employees; Constitutional Law - Due Process
     To be properly protected under the Constitution, the employment right must be supported by more than merely the employee's own personal hope.  There must be a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons.  Taulung v. Kosrae, 3 FSM Intrm. 277, 280 (Kos. S. Ct. Tr. 1988).

*        *        *        *

COURT'S OPINION
HARRY H. SKILLING, Chief Justice:
     This opinion is written to explain the court's oral decision in this case.  The matter came before this court on February 1, 1988 on a summary judgment motion brought by the Kosrae Attorney General's office.  Richard Kaminski represented the government and Canny Palsis of Micronesian Legal Services Corporation (MLSC) represented the plaintiff, Hashime Taulung.  The summary judgment motion claims that the plaintiff's complaint was inadequate on the basis that a limited term employee has only restricted rights or guarantees.  This case thus presents the court's first opportunity to consider the meaning of the procedural due process guarantees provided in the KosraeConstitution Article II, 1(b) as they relate to limited term employees.

[3 FSM Intrm. 279]
FACTS

     The plaintiff, Hashime Taulung, was hired by the Kosrae Marine Resources Division on a series of six Month contracts.  The first contract began in September Of 1980 and the last one was signed in March of 1982.  On May 14, 1982, midway through the last contract, Jack Sigrah (Fisheries Specialist) wrote Hashime a letter informing him that he was going to be suspended for two weeks beginning May 17, 1982.  A copy of this letter was given to Fred Sigrah, the Director of Personnel.

     In October of 1986, MLSC, on behalf of Hashime, filed a lawsuit against the State of Kosrae arguing that the 1982 suspension was violative of 61    TTC 10(15)(a), that the state breached its employment contract with    Hashime, and that Hashime's due process rights were violated.  The government subsequently filed the summary judgment motion.

LEGAL ANALYSIS
A.     Breach of Contract and 61 TTC 10(15)(a)
     Both of these claims concern the same factual issue whether the State violated 61 TTC 10(15)(a) when it suspended Hashime for the two week period in May of 1982.  This statute provides in relevant part that:  "No single suspension for a period of three working days or more, whether consecutively or not, shall take effect unless the management official gives the employee a written notice setting forth the specific reasons upon which the suspension is based and files a copy of the statement with the director."

     This was a suspension for more than three working days (it lasted for two weeks) and the questions are whether Hashime received adequate written notice and whether the Director of Personnel was given a copy of that notice.  The Kosrae State Court finds that the appropriate letters were delivered and therefore we grant summary judgment on these claims.1

B.     Due Process Clause
     This is the first time that this court has considered the meaning of the

[3 FSM Intrm. 280]

due process clause of the Kosrae Constitution, Article II, 1(b) in the context of an employee case.  While the wording of the due process clause is easy to read, ("a person may not be deprived of life, liberty or property without due process of law...") the exact meaning of this term is not so clear.  The writers of the Kosrae constitution used the two words "due process" to indicate that Kosraeans are protected from being treated unfairly or unjustly by their state government.  The extent of this protection is only understandable when the legislative history of the clause is considered and when it is tested by the cases which come before this court.

     Due process analysis begins with a two prong test.  The first prong is whether a life, property or liberty interest is implicated; without one of these interests, the due process clause does not apply.

     The Constitution does not tell us what a property interest is.  However, the legislative history indicates that it is appropriate to consider how the Federated States of Micronesia (FSM) defines "property."  SCREP No. 1-83-23 Kos. Con. Con. page 4 of 7.  In an employment case, the FSM Supreme Court determined that a property interest exists if the following facts are  present:  "To be property protected under the Constitution, the employment right must be supported by more than merely the employee's own personal hope.  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 Intrm. 339, 352 (Pon. 1983).

     The Kosrae court believes that this definition of property in employment cases is consistent with the definition of property intended by the writers of our constitution and we, therefore, hold that in order for Hashime to have had a property interest, he must have had a claim to employment that was supported by more than his own hope that he would be employed.

     The facts in this case indicate that Hashime had a short term contract with the state at the time that he was suspended.  The court finds that this contract was a legal obligation by the state to employ Hashime and that he had a claim that was supported by more than his mere personal hope of employment.  The court finds, therefore, that Hashime had the requisite property interest.

     The second prong of the analysis is whether any due process rights were violated.  As explained in the FSM constitutional committee notes, the issue here is whether the procedures that were used in applying the disciplinary action were fair.  What is fair will depend on the circumstances of each case.

     "However, the concept of fairness and justice is relative.  It varies with the subject matter and the necessities of the situation.  For example, what is fair in one set of circumstances and thus conforms with the requirements of due process may be an act of tyranny in others."  SCREP No. 23, II J. of Micro. Con. Con. 795.

     Stated another way, the FSM Supreme Court has found that the procedures which are used must be calculated to assure a fair and rational decision making process.  Suldan II.

[3 FSM Intrm. 281]

     The Kosrae court finds that the processes that were used in suspending Hashime were fair.  He was given notice three days before the suspension took effect and he was told the specific reasons for the disciplinary action.  Further, and most important, he was told in the proposed suspension letter that if he had any questions he could raise them with his supervisor.  On the basis of these facts, the court finds that the procedures used in suspending Hashime were fair.

     It is important to remember that this case involves only a suspension and not some other form of disciplinary action.  In other cases where there are greater infringements on the person's property interests, the court may decide that more extensive procedural protections are necessary.

ACTION TAKEN
     The summary judgment motion is hereby granted.
 
     SO ORDERED, ADJUDGED, DECREED.

*        *        *        *
 

Footnote:

1. At the hearing, MLSC argued that summary judgment should not be entered because the state did not give Hashime 30 days notice as required by 12.5 of the public service regulations, which implemented title 61 of the Trust Territory Code.  MLSC acknowledges that the procedural protections in these regulations are for permanent employees, but they argue that Hashime should be considered a permanent employee because his contract was renewed three times.  The government disagreed, pointing out that a rule providing that limited term employees automatically become permanent employees when their contracts are renewed would disrupt the public service system by making it difficult for the state to fulfill its temporary staffing needs.  In this case, the court agrees with the government and therefore finds that these regulations are inapplicable to Hashime because he was not a permanent employee.
                                                                                                                                                                                                                                                                                                           
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