THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Klavasru v. Kosrae,
7 FSM Intrm. 86 (Kosrae 1995)

[7 FSM Intrm. 86]

MARYBEA KLAVASRU,
Plaintiff,

vs.

STATE OF KOSRAE,
Defendant.

CIVIL ACTION NO. 1993-2008

MEMORANDUM OF DECISION

Martin G. Yinug
Associate Justice

Hearing:  January 11, 1995
Decided:  March 10, 1995

APPEARANCES:
For the Plaintiff:          Charles Greenfield, Esq.
                                     Micronesian Legal Services Corporation
                                     P.O. Box 38
                                     Lelu, Kosrae FM 96944


For the Defendant:     Tim Stumpff, Esq.
                                     Assistant Attorney General
                                     Office of the Kosrae Attorney General
                                     P.O. Box AG
                                     Lelu, Kosrae FM 96944

*    *    *    *
[7 FSM Intrm. 87]
 
HEADNOTES
Civil Procedure ) Summary Judgment
     A motion for summary judgment should be granted only when the evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.  In considering a motion for summary judgment, the facts and inferences to be drawn from those facts must be viewed in the light most favorable to the party opposing the motion. Klavasru v. Kosrae, 7 FSM Intrm. 86, 89 (Kos. 1995).

Civil Procedure ) Summary Judgment
     Summary judgment may be granted in favor of the party opposing a summary judgment motion even where that party has not made a cross-motion under Rule 56.  When summary judgment is granted in favor of the non-moving party, the facts and inferences to be drawn from them must be viewed in the light most favorable to the party that originally moved for summary judgment.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 89 (Kos. 1995).

Public Officers and Employees ) Kosrae
     An employee may be terminated without notice and an opportunity to be heard if she has abandoned her job.  If not, the state must provide written notice stating the reasons for the dismissal and an opportunity to present mitigating circumstances, defenses, or other positions in opposition to the proposed disciplinary action.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 89-90 (Kos. 1995).

Administrative Law
     A regulation cannot impermissibly extend the reach of the statute that authorizes it.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Administrative Law ) Judicial Review
     The judiciary must reject administrative constructions which are contrary to clear legislative intent because, although courts should, where appropriate, defer to an agency's authorization, there are limits to that deference.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Separation of Powers
     Courts and administrative agencies alike may not encroach upon the lawmaking responsibility reserved to the legislature.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Administrative Law; Public Officers and Employees ) Kosrae
     It is an impermissible extension of the reach of the statute for the executive service regulation to define abandonment of public office as absent without authorization for two weeks.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Administrative Law
     Lack of structure in a statute can be remedied by agency regulations that support, rather than distort, the statutory language of the legislature.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Public Officers and Employees ) Kosrae
     A public employee, who supplied an explanation for her absence from work and who made clear, both before and after the absence that she did not intend to take permanent leave of her position, cannot be terminated for abandonment of office or disciplined without the statutory safeguard of notice and an opportunity to be heard.  Klavasru v. Kosrae, 7 FSM Intrm. 86, 92 (Kos. 1995).

*    *    *    *
[7 FSM Intrm. 88]

COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
     The purpose of this Memorandum of Decision is to explain the reasoning behind the Court's earlier grant of summary judgment in favor of the Plaintiff Marybea Klavasru.  On January 11, 1995, at a hearing on defendant's motion for summary judgment, the Court held, as a matter of law, that the plaintiff did not abandon her position with the Kosrae State Department of Health Services and therefore was terminated by defendant in violation of various sections of the Kosrae State Code.

Facts
     The facts of this case are simple and not in dispute.  Marybea Klavasru was employed with the Kosrae State Department of Health Services for approximately five years prior to her termination on July 26, 1993.  Sometime before July 9, 1993, plaintiff approached Singkitchy George, the Director of Health Services and her supervisor, and requested permission to take approximately one month of annual leave, commencing on July 9.  During that discussion, Director George informed plaintiff that certain conditions would have to be met before her leave would be permitted.  On July 6, 1993, three days before the start date of her requested leave, plaintiff submitted an annual leave application to Nena Nena, the acting director while Singkitchy George was off-island.  Acting Director Nena denied the leave request one day later.  On July 8, plaintiff informed Acting Director Nena that she still intended to take her leave, and on July 9, plaintiff left Kosrae to attend a one-month seminar in the United States.

     On July 26, 1993, after plaintiff had failed to appear for work for a period of two consecutive weeks, Director George terminated plaintiff for abandonment pursuant to K.C. 5.415.1  The termination was effective immediately.  Upon returning for work on August 10, 1993, plaintiff learned for the first time that she had been terminated for abandonment.  Plaintiff contested the Director's conclusion that she had abandoned her position and requested either backpay and immediate reinstatement or, in the alternative, an opportunity to challenge her termination.  After defendant refused to reinstate plaintiff and denied her request for an immediate hearing, plaintiff commenced this action by filing a complaint on September 15, 1993.  It was not until October 15, 1994, that Director George provided plaintiff with her requested hearing.  According to a letter written by Director George, however, that hearing was arranged for the limited purpose of allowing plaintiff to "present whatever evidence or information you choose to present concerning the circumstances surrounding your abandonment of position from July 9, 1993 through July 26, 1993."  At the October 15 hearing, plaintiff gave an opening statement and presented the testimony of three witnesses.  On October 21, 1993, Director George informed plaintiff that her termination for abandonment remained in effect and that she therefore was not entitled to reinstatement or backpay.  That letter stated as follows:

     Your termination, which was effective July 26, 1993, remains in effect.  There is no dispute that you were absent from your position, without appropriate authorization, for more that [sic] two weeks.  According to Kosrae Code Section 5.415, you are therefore deemed to have abandoned your position.  Accordingly, your termination-by-abandonment stands.

*    *    *    *
[7 FSM Intrm. 89]

     Plaintiff now challenges the actions of the Department of Health Services in this case.  According to the plaintiff, she did not abandon her position and the Department's failure to provide her with pretermination notice and a sufficient hearing therefore violated various sections of the Kosrae State Code as well as plaintiff's rights to due process under FSM and Kosrae State constitutions. Although plaintiff did not file a motion for summary judgment, she does request, among other things, a declaration from this Court that she was not absent from her job without explanation and that she therefore did not abandon her position under K.C. 5.415. Plaintiff also seeks monetary damages as well as backpay and immediate reinstatement.

     Defendant did file a motion for summary judgment, requesting this Court to rule as a matter of law that plaintiff's actions amount to abandonment as set forth in K.C. 5.415.

Standard of Review
     A motion for summary judgment should be granted only where the evidence demonstrates "that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."  FSM Civ. R. 56(c).  Moreover, "in considering a motion for summary judgment, the facts and inferences to be drawn from those facts must be viewed by the court in the light most favorable to the party opposing the motion."  Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 295 (Kos. 1992).  Finally, this Court has held that summary judgment may be granted in favor of the party opposing the motion even where that party has not made a cross-motion under Rule 56.  Truk Continental Hotel, Inc. v. Chuuk, 6 FSM Intrm. 310, 311 (Chk. 1994) (citing 10A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2720, at 29-30 (1983)).  Of course, where summary judgment is granted in favor of the nonmoving party, the facts and inferences to be drawn from them must be viewed in the light most favorable to the party that originally moved for summary judgment.

Discussion
     Although the parties have raised a variety of issues, this case essentially turns on whether or not the plaintiff "abandoned" her position according to Kosrae Code Section 5.415.  If plaintiff did abandon her job, then the Department of Health Services was acting within its statutorily defined right to terminate plaintiff without notice or an opportunity to be heard.  If, on the other hand, plaintiff did not abandon her position, then sections 5.4182 and 5.4193 of the Kosrae State Code apply and the

[7 FSM Intrm. 90]

Department of Health Services is required to provide "written notice stating the reasons for the dismissal," and the opportunity to "present mitigating circumstances, defense[s] or other position[s]" in opposition to the proposed disciplinary action. Accordingly, the Court first must interpret the abandonment statute of the Kosrae State Code.

     Section 5.415 of the Kosrae State Code states that an employee will be deemed to have abandoned his position if that "employee is absent from work without explanation for two weeks."  Plaintiff points to two sources as evidence that the explanation that she offered was sufficient under K.C. 5.415.  First, Plaintiff cites the legal definition of "abandonment" contained in Black's Law Dictionary.  That definition, which was cited and adopted by the Appellate Division of the Yap State Court when interpreting a provision of the Yap State Code that is virtually identical to K.C. 5.415, states as follows:

     Abandonment of a public office is a species of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through nonuser.

     It is not wholly a matter of intention, but may result from the complete abandonment of duties of such continuance that the law will infer a relinquishment.  It must be total, and under such circumstances as clearly to indicate an absolute relinquishment; and whether an officer has abandoned an office depends on his overt acts rather than his declared intention. . . .  The failure to perform the duties pertaining to the office must be with actual or implied intention on the part of the officer to abandon or relinquish the office.

Black's Law Dictionary 13 (4th ed. 1951) (cited with approval in Dabchur v. Yap, 3 FSM Intrm. 203, 207 (Yap S. Ct. App. 1987)).  Plaintiff also points to the holding in Dabchur, wherein the court determined that "the employee's intention to relinquish his position must be clear" and that "any explanation from the employee, written or verbal, would suffice as long as it is communicated to the employer that the employee does not intend to relinquish his position."  Id.  Based on these two sources, plaintiff argues that the explanation that she provided to the Director and Acting Director precludes her from being found to have abandoned her position with the Department of Health Services.

     Defendant, however, argues that it is unnecessary to consider the opinion of the Yap Court, or the definition supplied by Black's, because the K.C. 5.415 has an accompanying regulation that purports to clarify the meaning of the Kosrae abandonment statute.  Executive Service Regulation 8.3, promulgated by the Department of Personnel and Employments Services ("DPES"), the government entity charged with administering the executive service, states as follows:

     Unauthorized leave (Absence Without Leave (AWOL)[)] is absence from duty without appropriate authorization.  Employees are absent from duty without prior approval, except in bona fide emergencies, shall be charged absent without leave (AWOL).  AWOL employees on absent without leave (AWOL) are subject to disciplinary action and loss of pay.  If an employee is AWOL for two (2) weeks he will be deemed to have abandoned
 
[7 FSM Intrm. 91]

his position as provided in Kosrae Code Section 5.415.

Defendant further notes that, unlike the Yap court opinion and the Black's legal definition, the regulation promulgated by the executive agency is directly binding upon the Court in this matter.  See K.C. 2.401 ("A regulation adopted pursuant to this chapter has the force and effect of law.").

     Clearly, plaintiff, before embarking upon her leave of absence, did not obtain the "appropriate authorization" or "prior approval" required under Kos. Exec. Serv. Reg. 8.3.  Therefore, if Kos. Exec. Serv. Reg. 8.3 constitutes a valid interpretation of K.C. 5.415, plaintiff abandoned her position and defendant is entitled to summary judgment.

     Defendant cites a number of FSM and United States cases addressing the reach and application of agency regulations.  Although defendant's authorities direct the courts to respect the interpretation of an agency which congress has instructed to oversee the relevant statutory provision, INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S. Ct. 1207, 1221, 94 L. Ed. 2d 434, 458 (1987), it is equally true that "a regulation cannot [impermissibly] extend the reach of the statute that authorizes it." Sigrah v. Kosrae, 6 FSM Intrm. 168, 170 n.1 (App. 1993), and that "[t]he judiciary . . . must reject administrative constructions which are contrary to clear congressional intent."  Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9, 104 S. Ct. 2778, 2782 n.9, 81 L. Ed. 2d 694, 703 n.9 (1984).  Thus, although the courts should, where appropriate, defer to an agency's authorization, see K.C. 2.401 (noting that valid regulations have the "force and effect of law"), there are limits to that deference, and courts and administrative agencies alike may not encroach upon the lawmaking responsibility reserved to the legislature.

     In the instant case, the Court concludes that the challenged agency regulation impermissibly extends the reach of the statute that it is intended to define.  The "without explanation" language contained in K.C. 5.415 speaks only in terms of the employee's responsibility.  That is, it directs the employee, to take certain action in order to avoid being terminated for abandonment.  According to K.C. 5.415, an employee will not be terminated for abandonment provided that the employee offers a sufficient "explanation" for his absence.  K.C. 5.415 makes no reference to any action on the part of an employer or supervisor.  Kos. Exec. Serv. Reg. 8.3, on the other hand, speaks to the actions of the employer only.  According to Kos. Exec. Serv. Reg. 8.3, an employee will be terminated for abandonment regardless of his explanation if he takes a leave of absence without obtaining "prior approval" or "authorization."  Thus, Kos. Exec. Serv. Reg. 8.3 attempts to completely alter the plain meaning of the statutory enactment, by delineating requirements not found in the statute itself.  It would contort the meaning of K.C. 5.415 to an impermissible degree to interpret "explanation" as requiring approval.  While the legislature may indeed have intended to apply K.C. 5.415 in the manner adopted by the executive agency, that definition does not comport with the plain meaning of the statute as enacted.  Accordingly, if the legislature wishes to define abandonment as absence without approval, then it is the legislature, and not the courts or the DPES, who must amend the language of the statute.

     Moreover, although defendant complains that the failure to apply Kos. Exec. Serv. Reg. 8.3 will render K.C. 5.415 meaningless, the Court does not agree.  Certainly, the statute standing alone does not require much action on the part of an employee who seeks to take a leave of absence without abandoning his position.  This lack of structure, however, can be remedied by agency regulations that support, rather than distort, the statutory language of the legislature.  In that regard, nothing in the Court's opinion today should be interpreted to mean that agencies are prohibited from promulgating regulations regarding statutory language.  Those regulations simply must comport with the meaning of the statute they seek to define.  Thus, the DPES is free to create regulations that define and limit the form, the type, or the timing of the required "explanation," provided that they do not contrast with the "explanation" language supplied by the legislature.

[7 FSM Intrm. 92]

     Upon concluding that Kos. Exec. Serv. Reg. 8.3 constitutes an invalid extension of K.C. 5.415, the question now becomes whether plaintiff's actions meet the "explanation" requirement set forth in K.C. 5.415.  Although there is no legal definition for the term "explanation," and although the applicable Kosrae Code Section does not provide any guidance on what the legislature intended to require by the term "explanation," it is apparent to the Court that the plaintiff in this case offered an explanation that meets the requirements of K.C. 5.415.  Moreover, the Court makes this determination without deciding whether to adopt the holding in Dabchur, and without adopting any formal interpretation of what constitutes an "explanation" under K.C. 5.415.  It is undisputed that the plaintiff in this case, prior to embarking on her leave of absence, approached her supervisor and requested permission for a month-long leave.  It is also undisputed that the plaintiff and the Director addressed a number of conditions that would have to be met prior to plaintiff being permitted to take her requested leave.  Finally, both sides agree that after plaintiff was informed that her requested leave was denied, plaintiff reiterated to the Acting Director that she nonetheless intended to take a temporary leave of absence.  Thus, regardless of whether plaintiff satisfied the conditions established by the Director, or whether plaintiff disregarded the Acting Director's denial of her request for leave, plaintiff supplied an explanation that prevents her from being terminated for abandonment.  At all times, according to the submissions of both parties, plaintiff made clear that she did not intend to take permanent leave of her position.  As such, the Court finds that Defendant subjected plaintiff to disciplinary action in the form of termination, without providing the statutory safeguards of notice and an opportunity to be heard.

Conclusion
     The Court holds that plaintiff did not abandon her position and therefore was disciplined in violation of the procedural guarantees afforded her under the Kosrae State Code, including a fair and adequate disciplinary hearing.4  Accordingly, before any disciplinary action may be taken against plaintiff, she must be afforded her procedural rights as provided under the appropriate provisions of the Kosrae State Code.5  Plaintiff is not entitled to any of her other requested relief at this time.

*    *    *    *
 
Footnotes:
 
1.  Kosrae Code Section 5.415, entitled "Abandonment," states in pertinent part that "[i]f an employee is absent from work without explanation for two weeks, his immediate management official files with the Director a statement showing his termination of employment by abandonment of position."
 
2.  Kosrae Code Section 5.418, entitled "Dismissal; demotion" states as follows:

For disciplinary reasons based on good cause a management official may dismiss or demote an employee.  A dismissal or demotion of an employee is not effective for any purpose until the management official gives the employee written notice stating the reasons for the dismissal or demotion and the employee's right of appeal.  The management official promptly gives the Director a copy of the notice.
 
3.  Section 5.419, entitled "Notice; presentation" requires that:

(1)  Before taking disciplinary action a management official notifies the employee of his intention and gives him the opportunity to present mitigating circumstances, defense[s] or other position[s] in his favor.

(2)  The management official gives the employee notice two weeks before the intended effective date of the action.  In the notice the management official states a date for the employee to make his presentation which is no sooner than five days from receipt of notice.

(3)  Following the employee's presentation the management official makes a finding concerning the intended action.
 
4.  While it is true that plaintiff already has been afforded a hearing in this matter, that hearing was predicated upon the assumption that the plaintiff had abandoned her position.  Because the Court has determined, as a matter of law, that plaintiff did not abandon her position, plaintiff is entitled to another hearing before any disciplinary action may be taken against her.
 
5.  Plaintiff does not challenge the constitutionality of the procedural rights provided her under the appropriate portions of the Kosrae State Code.  Because plaintiff makes no constitutional claim, it is unnecessary to determine whether the procedural safeguards provided by the Kosrae State Code meet the constitutional requirements for procedural due process.
                                                                                                                                                                                                                                                                                                           
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