THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite asKosrae v. Langu,
9 FSM Intrm. 243 (App. 1999)

[9 FSM Intrm. 243]

KOSRAE STATE,
Appellant,

vs.

MASAO LANGU, WINDOLIN TILFAS, HOSINO
PALIK, JULIUS SIGRAH, NENA LIKIAK, NENA
NAKAMURA, DERHIUS NED, CLYDE ELLEY,
CARREL PALSIS, TAMAE LIKIAK, JOHN MIKE,
on behalf of DELLA MIKE, deceased, ANNA
TAULUNG, MINNIA LIVAIE, IRENE KEPHAS,
AARON PHILLIP and ISMAEL ALOKOA,
Appellees.

APPEAL CASE NO. K2-1998
Kosrae Civil Action No. 1-97

OPINION

Argued:  June 11, 1999
Decided:  October 12, 1999

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellant:     Debra S. Blum, Esq. (brief)
                                    Ronald P. Bickett (argued)
                                    Assistant Attorneys General
                                    Office of the Kosrae Attorney General
                                    P.O. Box 870
                                    Lelu, Kosrae FM 96944

For the Appellee:      Tino Donre, Esq. (brief)
                                    Andrew Sprenger, Esq. (argued)
                                    Micronesian Legal Services Corporation
                                    P.O. Box 38
                                    Lelu, Kosrae FM 96944

*    *    *    *

HEADNOTES
Public Officers and Employees ) Kosrae
     Under the Executive Services Regulations when they were in effect, a Kosrae state employee

[9 FSM Intrm. 244]

may present a grievance concerning a continuing practice or condition at any time.Kosrae v. Langu, 9 FSM Intrm. 243, 246 & n.1 (App. 1999).

Public Officers and Employees ) Kosrae
     Under the Executive Service Regulations, when they were in effect, an appeal from a grievance was identical to that for an appeal from a disciplinary action, and was made to the Executive Service Appeals Board.  Kosrae v. Langu, 9 FSM Intrm. 243, 246 (App. 1999).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     An appeal from the Executive Service Appeals Board's decision to the Kosrae State Court was available for state employee grievances.  The Kosrae State Court trial division's jurisdiction to reverse or modify a finding of the ESAB was limited under Kosrae State Code section 5.421(2) to violations of law or regulation.  In this regard, the state court acted as an appellate tribunal.  Kosrae v. Langu, 9 FSM Intrm. 243, 246 & n.2 (App. 1999).

Appeal and Certiorari
     Decisions of the Kosrae State Court may be appealed to the FSM Supreme Court appellate division.  Kosrae v. Langu, 9 FSM Intrm. 243, 246 (App. 1999).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     On an appeal from the Executive Service Appeals Board's decision it was not within the authority of the Kosrae State Court to make new factual determinations in light of the express stricture in section 5.421(2) that the state court could reverse or modify an ESAB finding only if it finds a violation of law or regulation.  Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     Although an inquiry whether state employees were not exempt, but were permanent employees under section 5.409, is fact driven ) the court or other administrative body must determine material facts before it can apply the statute to those facts ) the final determination whether an individual falls within a specific category defined by statute is necessarily one of law, not fact.  Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

Appeal and Certiorari ) Standard of Review; Public Officers and Employees ) Kosrae
     Issues of law, such as whether cooks were permanent state employees in the legal sense such that they were entitled to all the protections afforded to them under the statute and regulations, are reviewed de novo on appeal.  Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

Public Officers and Employees ) Kosrae
     Kosrae state employees must fall within one of three categories ) exempt, i.e., exempt from the protections afforded to state employees by the Kosrae Executive Service as it was then structured; probationary; or permanent.  Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

Public Officers and Employees ) Kosrae
     A permanent state employee has the right to hold his position during good behavior, subject to suspension, demotion, reduction-in-force, or dismissal, except when an employment contract provides otherwise.  Kosrae v. Langu, 9 FSM Intrm. 243, 249 (App. 1999).

Public Officers and Employees ) Kosrae
     A summer layoff of school cooks that required the cooks to take annual leave first, then leave without pay when school was not in session was not a reduction-in-force because a reduction-in-force means an employee's termination.  Kosrae v. Langu, 9 FSM Intrm. 243, 250 (App. 1999).

[9 FSM Intrm. 245]

Public Officers and Employees ) Kosrae
     Once the Kosrae State Court has correctly determined that placing cooks on unpaid leave was a violation of law or regulation, the appropriate factfinder for the determination of cooks' back pay, which constitutes their damages, is the Executive Service Appeals Board or its successor, not the state court.  Kosrae v. Langu, 9 FSM Intrm. 243, 250 (App. 1999).

Administrative Law ) Judicial Review; Contracts ) Damages
     Once a claimant's entitlement to damages is established, the amount of damages is an issue of fact for the finder of fact.  Kosrae v. Langu, 9 FSM Intrm. 243, 250 (App. 1999).

Administrative Law ) Judicial Review; Public Officers and Employees ) Kosrae
     When an administrative procedure and ensuing appeal has afforded parties complete relief for their grievances pursuant to statutes and regulations and the parties' constitutional claims are not the basis for any separate or distinct relief, the constitutional issue need not be reached.  Kosrae v. Langu, 9 FSM Intrm. 243, 250-51 (App. 1999).

Constitutional Law ) Kosrae ) Interpretation
     If a matter may properly be resolved on a statutory basis without reaching potential constitutional issues, then the court should do so.  Unnecessary constitutional adjudication is to be avoided.  Kosrae v. Langu, 9 FSM Intrm. 243, 251 (App. 1999).
 
*    *    *    *

COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
     The State of Kosrae has appealed this case upon a determination by the Kosrae State Court that appellees, as permanent employees of the state, were entitled to be paid for certain periods during which they were "laid off," or required to take leave without pay.  The Kosrae State Court found that neither the applicable statute nor rules as they were then in effect provided for such mandatory unpaid leave.  In so doing, the Kosrae State Court reversed the finding of the Kosrae Executive Service Appeals Board ("ESAB") that Kosrae could require the employees to take unpaid leave.  The ESAB had affirmed the determination of the Kosrae director of education.

I.  Issues and Jurisdiction
     Kosrae raises four issues on appeal.  As framed by Kosrae, those issues are as follows:

1.  The Kosrae State trial court exceeded its jurisdiction when it failed to remand the action to the ESAB Board (or its successor) but instead awarded damages to the Employees.

2.  The Kosrae State trial court erred in overturning the ESAB's factual determination concerning the Employees' status as permanent State employees and in overturning the ESAB's finding that the cooks were exempted from all regulations and policies applicable to state government employees.

3.  The Kosrae State trial court erred in determining that the rights of the Appellants were violated.

[9 FSM Intrm. 246]

4.  The Kosrae State trial court erred in denying the State's Motion for Relief from the Judgment.

     Our jurisdiction over this matter arises in the following way.  This matter was originally a grievance proceeding brought before the Kosrae director of education pursuant to Regulation 11.2 of the Executive Services Regulations, which provides that "[a]n employee may present a grievance concerning a continuing practice or condition at any time."  Those regulations were promulgated pursuant to Title 5, Chapter 4 of the Kosrae State Code.1  Apart from the definitions contained in Chapter 1 of Title 5, it is Chapter 4 which bears on the issues before the court. Section 5.401 provides that "the Executive . . . facilitates a grievance procedure as a fair and reasonable condition of employment," while section 5.402 further provides that "[b]y regulation the Director provides reasonable procedures for the exercise of the foregoing right[s]."  Included in the "rights" under subparagraph (1) of section 5.402 is the right to continued employment subject to the conditions set out therein.

     Regulation 11.2(c) provides for an appeal from the original grievance proceeding, and states that "[a]n employee may seek appeal of the findings regarding his grievance pursuant to Part XV [of the Executive Service Regulations]."  Part XV sets forth the procedure by which a disciplinary action may be appealed, and thus the procedure for an appeal from a grievance is identical to that for an appeal from a disciplinary action.  Section 15.1 of Part XV of the Executive Service Regulations provides that "[a]n employee may appeal a disciplinary action . . . as provided in Kosrae Code Section 5.420."  That section, as it was then in effect, provided for an appeal to the ESAB.  An appeal to the Kosrae State Court from the ESAB's decision was available at relevant times under the then applicable section 5.421(2).2  The case then came to us on appeal from the state court under article VI, section 6 of the Kosrae Constitution, which provides that "[d]ecisions of the State Court may be appealed to the appellate division of the Supreme Court of the Federated States of Micronesia."

     We consider first Kosrae's second issue, since if the employees were properly required to take leave during the summer months, they have no entitlement to damages.  We affirm the determination of the state court that the employees had "permanent" status under the applicable law and regulations, and that the ESAB therefore erred when it found that the employees were exempt from the protections afforded them under Chapter 4 of Title 5.  We do so on a legal ground.

     As to appellant's first issue, we agree that the state court lacked the authority to determine damages.  We remand to the successor of the ESAB to make this determination. 3

[9 FSM Intrm. 247]

     Because of our disposition of the first and second issues, and for the reasons explored further below, we do not reach Kosrae's final two issues.

II.  Factual Background
     The facts of this case are set out in detail in the state court's decision reported as Langu v. Kosrae, 8 FSM Intrm. 427 (Kos. S. Ct. Tr. 1998).  Briefly, appellants, who were cooks at the Kosrae High School ("the cooks"), were employed under a United States federally funded grant program called the Hot Lunch Program.  The Kosrae Department of Education employed the cooks for the purpose of implementing this program.  At the latest, the program began in 1976.  At first the cooks worked during the summer, but later the cooks were advised that they would not be working during the summer, when school was not in session, because no money was available to pay them.  The cooks were told that they could first use accumulated annual leave, and that when their annual leave was exhausted they would then be on leave without pay, or "laid off."  The practice of laying off the cooks during the summer months was in effect from the summer of 1980 until the summer of 1990.  Appellants first lodged a grievance pursuant to the Executive Service Regulations in 1988 with the director of education, who denied the cooks' claims on a procedural basis.  After appeals to the ESAB, and to the state court, this matter came before this court.

III.  Discussion
A.  The "exempt" versus "permanent" status of the cooks
     It has been undisputed throughout the course of this matter that the cooks were state employees.  What has been at issue is whether the employees were exempt from the protections afforded "permanent" state employees under Chapter 4 of Title 5 of the Kosrae State Code.  The ESAB concluded that the cooks were exempt, and on appeal to the state court, the cooks urged that this finding was erroneous.  In its response brief before the state court, Kosrae appears to have conceded that the cooks were permanent employees, urging that Kosrae could nevertheless, in conformity with the provisions of Chapter 4 of Title 5 of the Kosrae State Code, "lay off" the cooks during the summer months when school was not in session.

     Kosrae, formerly the appellee before the state court but now the appellant before this court, emphasizes that section 5.421(2) of the Kosrae State Code provides that the state court may reverse or modify the finding of the ESAB "only if it [i.e., the state court] finds a violation of law or regulation."  Kosrae contends that "[t]he Kosrae State Trial Court, in its Findings of Fact, simply made a factual determination that was different than what the ESAB had done with the witnesses and evidence before it."  Brief of Appellant at 6.  This contention is consistent with the state court's own characterization of what it did:

This Court cannot substitute its judgment for that for the ESAB, but in reviewing the findings it may examine all of the evidence in the record in determining whether the ESAB's factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the findings as clearly erroneous.  Kapas, 6 FSM Intrm. at 59.

Langu v. Kosrae, 8 FSM Intrm. 427, 435 (Kos. S. Ct. Tr. 1998).  The state court held that it would not disturb any of the ESAB's factual findings, with one exception. The state court concluded that the ESAB's finding that the cooks were exempt from the regulations applicable to Kosrae state employees ) a finding which the state court characterized as one of fact ) was "clearly erroneous," and further concluded that "[t]he cooks, as permanent employees of the Executive Service System, were subject

[9 FSM Intrm. 248]

to the laws and regulations implementing the Executive Service System."  Id. (emphasis added).

     We agree with the appellant that it was not within the authority of the state court to make new factual determinations in light of the express stricture contained in section 5.421(2) that the state court could reverse or modify a finding of the ESAB "only if it finds a violation of law or regulation."  At the same time we are in entire agreement with the state court that the ESAB erroneously concluded that the cooks were exempt from applicable statutory law and regulations, and conclude that the state court was correct when it reversed the ESAB on this issue.  Our point of departure lies with the way that both the appellant and the state court characterized the exemption issue.  We conclude that the ESAB's determination that the cooks were exempt from applicable regulations, and the state court's subsequent determination that the cooks were permanent employees within the meaning of the statute who were therefore not exempt, were not fact determinations, but conclusions of law.

     Whether the employees were "exempt," and whether they were "permanent" employees under the statute involved the determination of a specific legal status comprehending specific and significant legal consequences.  Compare Bingham's Trust v. Commissioner, 325 U.S. 365, 378-81, 65 S. Ct. 1232, 1239-40, 89 L. Ed. 1670, 1679-81 (1944) (Frankfurter, J., concurring).  If the cooks were "exempt" as defined under section 5.101(18), and as discussed further below, they were not entitled to the protections afforded their employment with the state under statute and regulation.  If they were not "exempt," but were "permanent" employees under section 5.409, then they were entitled to those protections.  Although this inquiry is fact driven ) the court or other administrative body must determine material facts before it can apply the statute to those facts ) the final determination whether an individual falls within a specific category defined by statute is by our lights necessarily one of law, not fact.  The state court was vested with the power under section 5.421(2) to correct "only . . . a violation of law or regulation."  When the state court found that the cooks were not exempt under applicable statute, and that the cooks were permanent employees entitled to the protections afforded by Chapter 4 of Title 5, it reached a legal conclusion different from the ESAB's.  It did not make a new factual finding.

     All of this brings us to our own standard of review.  Issues of law are reviewed de novo on appeal.  Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).  We therefore consider anew whether the cooks were permanent employees in the legal sense such that they were entitled to all the protections afforded to them under the statute and regulations.

     Under Title 5 of the Kosrae State Code as it was in effect at relevant times, the cooks, as employees of the state of Kosrae, must fall within one of three categories.  They must be exempt, i.e., exempt from the protections afforded to state employees by the Kosrae Executive Service as it was then structured; probationary, or permanent.  We consider the statutory basis for each classification, and conclude that the cooks were permanent employees entitled to all the protections provided under Chapter 4, Title 5 of the Kosrae State Code as it was then applicable.

     Title 5, and specifically Chapter 4, of the Kosrae State Code covers every "position" in the executive branch of state government, except for those expressly excluded under 5.101(18), which provides in its entirety as follows:

      (18) "Position", whether occupied or vacant, is a defined set of work responsibilities in the Executive, assigned by competent authority for performance by one person working in a full or part-time capacity except:

(a)  a position filled by appointment by the Governor following consent by the Legislature:

[9 FSM Intrm. 249]

(b)  a special assistant or personal secretary to the Governor or Lieutenant Governor;

(c)  a position filled by contract when the Director has certified that the service to be performed is special or unique, non-permanent, and essential to the public interest, and that, because of the degree or expertise or special knowledge required and the nature of the services to be performed, it would not be practical to obtain personnel to perform such services through normal public service recruitment procedures;

(d)  a temporary position, certified by the Director as by public interest for a period not to exceed six months;

(e)  a position requiring part-time or intermittent work which does not require more than sixty hours of work in a month; and

(f)  a position filled by a prisoner, patient, or student of an institution.

It is clear from the record that the cooks did not fall under any of the six exceptions set out in 5.101(18).  It follows that Chapter 4 of Title 5 applies to the cooks.

     Section 5.409(1) provides that "[u]pon successfully completing probation a person becomes a permanent employee."  Section 5.101(25) defines "probation" as "a period of probationary employment status of not fewer than six months or exceeding one year from the beginning of employment in a position."  Since all of the cooks were employed for substantially more than one year, and since the probationary period of any one cook was limited to a maximum of one year, it follows that the cooks were permanent employees.  This conclusion is rendered all the more inescapable by the testimony of Fred Skilling, the first Hot Lunch Program coordinator, who testified before the ESAB that "[t]hey [the cooks] were hired under the Hiring Procedures of Kosrae State.  First, they were placed on the probationary status and then they became as permanent government employees." Appellant's Appendix at 128.  As permanent employees, the cooks were entitled to the protections afforded by Chapter 4 of Title 5.

     Section 5.402, entitled "Employee rights," provides that "[a] permanent employee has the right to:  (1) hold his position during good behavior, subject to suspension, demotion, reduction-in-force, or dismissal as provided in this chapter, except when an employment contract provides otherwise."  The first criterion for continued employment with the state is "good behavior," which is left undefined in the definitions section of Title 5 ( 5.101) and is not at issue here.  Of the remaining three predicates to continued employment, suspension, demotion, and the existence of an employment contract do not enter into the discussion based on the facts of this case.  Hence, whether Kosrae could "lay off" the cooks during the summer months centers on whether the layoffs constituted a reduction-in-force under the statute.

     Title 5 does not by its terms provide for a lay-off procedure.  Section 5.402 does, however, provide for the promulgation of regulations:  "[b]y regulation the Director provides for exercise of the foregoing right [sic]."  Those regulations, though they make no mention of a lay-off procedure, do provide for reduction-in-force.  Regulation 12.3 of the Executive Service Regulations provides as follows:

12.3  Reduction-in-force.  Department and agency heads may terminate the services of an employee because of the abolition of his position, for lack of work or funds, or for other reasons outside the employee's control which reflect no discredit on the services

[9 FSM Intrm. 250]

     of such employee.  When there is an impending reduction-in-force the
     Department or agency head concerned shall inform the Director of this fact.

A reduction-in-force under this section means an employee's termination, not a "lay-off" in the sense as it applies here.  Although the state might have used the provision to reduce its work force each summer, it did not do so.4  It also could have used the contract employee provision of 5.101(18)(c), but did not.  We therefore conclude that there was no basis in the applicable statute or regulations which permitted the Kosrae director of education to require the appellants to take first annual leave, then leave without pay, during the summer months when school was not in session.  Thus the cooks were entitled to receive their usual pay during these periods.

     Having decided this point as a question of law, and on a de novo basis, we affirm the state court.

B.  The state court's determination of damages
     Kosrae contends, and we agree, that the state court was without authority to determine damages, and that the matter should have been remanded to the ESAB's successor for this determination.  Section 5.421(2) limited the state court's jurisdiction to "violation[s] of law or regulation."  The state court properly and correctly determined that the director of education's decision to place the cooks on unpaid leave, affirmed on appeal to the ESAB, was violative of law, and that the cooks were entitled to be paid for those periods.  This back pay constituted the cooks' damages.  Once a claimant's entitlement to damages is established, the amount of damages is an issue of fact for the finder of fact.  22 Am. Jur. 2d Damages 980 (1988).  In this case the appropriate fact finder was the ESAB's successor.  Section 5.421(2) provides that the ESAB will make "a complete written statement of its finding of facts."  Accordingly, we vacate the award of damages and remand this matter to the state court with instructions to remand it to the ESAB's successor for a determination of damages.

C.  Whether the constitutional rights of the cooks were violated
     Kosrae further urges that the state court erred when it found that the rights of the cooks under the Kosrae constitution had been violated when the cooks were required to take annual leave first and then leave without pay.  The state court found that Kosrae "deprived Appellants of their right to continued employment and salary" under Title 5 of the Kosrae State Code.  Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).

     The administrative process as set out in Chapter 4 of Title 5 was designed for the resolution of "grievances."  A grievance is defined by section 5.101(12) as an "employee action to present and resolve a difficulty or dispute arising in the performance of his duties and not from a disciplinary action."  Hence, the administrative proceedings under Chapter 4 of Title 5 of the Kosrae State Code, and the regulations promulgated pursuant thereto, existed for the purpose of addressing the cooks' contention that they were improperly deprived of their usual and customary remuneration when they were required to take leave without pay.

     The cooks' constitutional claim reiterates this contention, and is not the basis for any separate or distinct relief ) however cast, either as a statutory or constitutional violation, the cooks' claim

[9 FSM Intrm. 251]

sought compensation for the time they were required to take unpaid leave.  The administrative procedure and the ensuing appeal process provided for by statute afforded the cooks complete relief when the state court, which this court now affirms on appeal, found that Kosrae violated the applicable statute by requiring the cooks to take unpaid leave.  If a matter may properly be resolved on a statutory basis without reaching potential constitutional issues, then the court should do so.FSM v. George, 6 FSM Intrm. 626, 628 (Kos. 1994); FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987).  Edward also teaches that "[u]nnecessary constitutional adjudication is to be avoided."  3 FSM Intrm. at 230.

     We have affirmed the state court's reversal of the ESAB's finding that the cooks were exempt from Chapter 4 protections, and could be required, as exempt employees, to take unpaid leave during the summer months.  Where, as here, the constitutional claim does not serve as the basis for any distinct or additional relief and the matter may therefore be resolved on a statutory basis alone, thus avoiding an unnecessary constitutional adjudication, we need not reach the constitutional issue, and decline to do so.

D.  Kosrae's motion for relief from judgment
     Kosrae contends that the state court erred when it denied its motion for relief from judgment.  That motion went to the state court's award of damages.  Since we have vacated the damages award and have remanded the case for a new damages determination, we do not reach this issue.

IV.  Conclusion
     For the reasons we have explored, we affirm the state court's determination that Kosrae violated the applicable provisions of Title 5 of the Kosrae Code and the regulations promulgated thereto when Kosrae required the cooks to take unpaid leave during the periods at issue.  We vacate the award of damages.  We remand this matter to the state court with directions to remand it to the ESAB's successor for a new damages determination.
 
Footnotes:
 
1.  As the trial court noted, Chapter 4 of Title 5 was repealed in 1997 by Kosrae State Law 6-131, but was in effect when appellants made their initial grievance. Likewise, the Executive Service Regulations, adopted in 1987, are applicable to the appellants' claims.  Langu v. Kosrae, 8 FSM Intrm. 427, 432 (Kos. S. Ct. Tr. 1998).

2.  In its statement of the issues, Kosrae refers to the Kosrae "trial" court. As discussed further below, the Kosrae State Court trial division's jurisdiction to "reverse or modify" a finding of the ESAB was limited under section 5.421(2) of the Kosrae State Code to "violations of law or regulation."  The appeal to the trial division from the ESAB was taken by the filing of briefs, and the trial division acted in this regard as an appellate tribunal ) no trial or other evidentiary proceeding was held before the trial division.  To avoid any confusion on this point, we refer to the trial division of the Kosrae State Court hereafter as "the state court."

3.  Since Chapter 4 of Title 5 has been repealed, the ESAB no longer has statutory existence.

4.  The state court concluded that "[t]he State could have followed reduction-in-force procedures as specified in the KSC to terminate the cooks at the end of every school year."  Langu v. Kosrae, 8 FSM Intrm. 427, 434 (Kos. S. Ct. Tr. 1998).
                                                                                                                                                                                                                                                                                                           
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