McGarry Mikel and Herold Henry vs. Sokehs Municipality

and Nett, respectively, were advised by their respective management officials to either resign from their respective municipal council positions if they wish to remain as officers or employees of the Pohnpei Government, otherwise their continuous employment under the State Public Service System would be considered in violation of Section 37 of S.L. No. 2L-221-91, which amended S.L. No. 2L-158-90, and on that account they would be required to be separated from their respective Pohnpei Government employment positions. The Executive Department set January 31, 1994, as the deadline for the officers or employees affected to make their decision known, otherwise they would be treated as in violation of the law and would be separated from their respective Pohnpei Government employments pursuant to Part 17 (Adverse Action) of the Public Service System Regulations. Letters of summary suspension to be followed by termination action were sent out to the plaintiffs and intervenors from their respective Executive Department Officials, thus triggering this suit.

Plaintiffs, joined by the Intervenors, charged that Section 37 is either unconstitutional in that it is overly inclusive, or that it is not applicable to Municipal Councilmen whose duties are intermittent. This action ensued. Because of the urgency of the matter and by agreement reached in: conference, counsel were invited to brief the issue and sub-issue stated below, forgoing the requirement to file answer by the Defendants, and an expedited hearing was scheduled and heard on February 11, 1994.

WHETHER SECTION 37 OF S.L. NO. 2L-158-90, AS AMENDED BY S.L. NO. 2L-211-91, APPLIES TO POHNPEI STATE OFFICERS OR EMPLOYEES WHO ARE ELECTED TO MUNICIPAL COUNCILS SO THAT THEY WILL HAVE TO BE SEPARATED FROM THEIR POHNPEI STATE POSITIONS UPON THEIR TAKING THE OATH OF COUNCILMEN, OR, RESIGN FROM THEIR MUNICIPAL OFFICE POSITIONS IN ORDER TO RETAIN THEIR EMPLOYMENT POSITONS WITH THE POHNPEI GOVERNMENT.

Plaintiffs in PCA 26-94 argue that the mandatory resignation from employment contained in Section 37 applies only to an officer or employee of Pohnpei Government who is elected to a Pohnpei Government elected position, i.e. the Governor, Lt. Governor and members of Pohnpei Legislature. That mandatory resignation does not apply to a Pohnpei Government officer or employee who is elected to a Municipal Council position. The plaintiffs in PCA 28-94 argue that the provision does not apply to Municipal Council positions whose duties are performed intermittently. The intervenors argue that, inasmuch as Nett District (Municipal) Government had enacted its own General Election Law, the mandatory resignation requirement of Section 37 does not apply to

officers or employees of the Pohnpei Government who are elected to Nett Disstrict Legislature positions. And inasmuch as the Executive Department had promulgated regulations authorizing officers or employees who are elected to Municipal Council positions to use annual leave or leave without pay while performing the duties of their electeded positions if they are to perform such duties during [Pohnpei Government] normal working hour, the Executive Department is bound to follow its own regulations, citing Vitarelli v. Seaton, 79 S. Ct. 968 (1959), Tolhurst v. MOC, 6 TTR 296, 298-299, and Christiansen v. MOC, 6 TTR 346 as authority. Referring to the authority in Vitarelli, the Court in Tolhurst said,

"The rule is generally recognized that when an administrative agency undertakes a personal action in accordance with its regulations, even though it is not required by law to follow regulations, it must adhere to them. The leading case on the point is a familiar one in the Trust Territory. It is Vitarelli v. Seaton, 79 S.Ct. 968 (1959), in which the court said:

This same rule applies to Congressional committees as the court in Yellin v. United States, 83 S.Ct. 1828, held that even Congressional committees are bound by their own rules. The Defendant on the other hand argues that Section 37 does apply to both the Pohnpei State and Municipal Government officers

"Section 37. Leave of absence for State officers or employees. Any Pohnpei State officer or employee who is a candidate for office shall, upon request, be granted leave of absence for a period not to exceed sixty days prior to and including the day of the election, for the purpose of seeking an elected office. Leave will be without pay unless the individual chooses to use his annual leave pursuant to applicable personnel regulations. If such person is elected, he shall resign from his employment or position upon taking the oath of office for his respective elected position." (Emphasis supplied).

An employee elected to a municipal post or appointed to serve as a member of a board or a quasi-government agency (where the appointment is not made by the Governor/or subject to the advice and consent of the Legislature), and where the work to be performed is done intermittently, shall have the option of annual leave or leave without pay while performing his or her assigned municipal or board duties which may (sic) required performance during the employee's normal working hours." (Emphasis supplied).

Although our Public Service System derives its basic substance from the many years of experience under the previous administrations of the Trust Territory and District Governments, the rules and regulations contained herein were developed pursuant to the Public Service Act of 1981, and in accordance with the specific laws of the constitutional Governments of Pohnpei State.

Incentive Program, Grievance Procedure, Reduction-in-Force and Benefits and Allowances; February 28, 1991, insertion of a new sub-part of Part 11 thereof, limiting the accrual of annual leave; and the amendment of June 06, 1991 for Performance Evaluations. These regulations supplement the Public Service System Act and related laws and govern the administration of personnel matters within the Executive Branch of the Pohnpei State Government. They are essentail tools of management which managers and supervisors at all levels of government should utilize.

There is no question that the highlighted portions of Section 37 of the General Election Law as construed by the Executive Department runs in conflict with the highlighted portions of Part 12.3 of the Public Service Regulations. Inasmuch as these two provisions of law affect the employment rights of the plaintiffs and intervenors herein, and possibly other officers or employees of the Pohnpei Government who are similarly situated, it is appropriate as the concept of justice of the peoples of Pohnpei dictates that a judicial determination of the proper construction to be applied to Section 37 be sought before any Executive Officer takes any adverse action to either cause the officers and employees affected herein resign from their elected posts, or be separated from the Pohnpei Public Service System.

Our Pohnpei Government is divided into three grand departments--legislative, judicial, and executive. The legislative enacts what the law shall be; the judicial interprets the meaning, validity, and effect of the enactment; and the executive administers the law as interpreted. There is no other branch of the government enabled to interpret. It would not do to leave to the legislative both the enactment and interpretation. To submit to it the application of every law to each particular case would turn the legislature into a court. The effect of submitting the question to the chief executive for decision would be granting him more power than is contemplated by our Constitution, thus creating an unnecessary imbalance between and among three co-existing Departments. The wisest and most logical method is to leave the matter to the courts, to be determined for each case as it arises, and such is the spirit of [our Pohnpei] Constitution. 13 M.A.L. Part VI, (Interpretation of Statutes), Section 1, at page 1.

1. General Rules of Interpretation. The Constitution of Pohnpei is the paramount law of Pohnpei (Art. 2, PN. Const.). Next in line is the statutes enacted by the Pohnpei Legislature, followed by the Executive Orders of the Governor issued pursuant to authority of law, the rules and regulations promulgaed by the various departments under 'legislatively delegated authority granted by the Legislature, and finally the Municipal or Town constitutions or charters, and ordinances: each within their own territorial limits. If an old and a new statute or constitutional provision conflict, the later displaces the former. The general object of all interpretation is to

arrive at a true intent of the lawnakinb body. In search for the legislative intent, the court will consider every part of the statute, the former law, the mischief, the remedy, and whether a proposed interpretation would give effect to the probable intention, render any part of the statute inoperative, produce an unreasonable effect, injustice, conflict with contemporary legislation, change a wellknown and established policy of the state, violate a provision of the Constitution, create an absurdity; and the Court will not believe the Legislature intended any of these strange things in the absence of the clearest expression of intention, nor if there is any other available construction that can be put on the law.

Other things being equal, the Legislature will be presumed to have used words in their plain, ordinary meaning, and technical terms in their technical sense, and the spirit will be taken to be expressed in the letter of the law; but when such interpretation would result in any of the absurdities above indicated, the court will endeavor to-give the statute a reasonable interpretation though not in accord with its strict letter. The legislative intent being plain, there is no room for considerations of wisdom or policy, and it is the duty of the court to give the legislative meaning effect so far as it is in accord with the Constitution. If part of the statute is unconstitutional, the rest is not destroyed thereby, unless to let it stand alone would produce an unreasonable resuslt that cannot have been intended by the Legislature. 13 M.A.L. Part VI, Sec. 3 (General Rules of Interpretation), pp 3-5. Also see DEXTER WEITAL and KADALINO DAMARLANE v. SPEAKER, POHNPEI LEGISLATURE, PCA 71-87, affirmed on Appeal, App. No. 2-89 (Jan. 19,1990).

2. Intrinsic aids to construction. The statute must be construed as a whole, and given such an interpretation as will give every provision and word in it effect, and such construction will avoid bringing one provision in conflict with another. Even an unconstitutional provision may be considered in arriving at the meaning of. a provision which is constitutional. If a general and a special provision conflicts, it will be presumed that the special provision was intended as an exception to the general, and thus both are given effect. It is a technical rule of last extremity that if two provisions conflict the last shall prevail, as the last expression. of the legislative will. If the former provision effectuates an obvious policy of the law, it will prevail over a later apparently inconsistent clause. Where the context renders the meaning of a term in one part of a law clear, such will be presumed to have been its meaning in another place where the sense would otherwise be doubtful. The context may make the meaning clear where an inappropriate word is used. The court may even interpret a word out of the statute, if such is the manifest meaning. Id., Sec. 5, at p. 6.

3. Extrinsic aids to construction. Subject to constitutional limitations, the court will take judicial notice of common law and statute of other jurisdictions, and matters of public general history, custom and tradition, knowledge and general perceptions of the people. And in asscertaining the intention of the Legislature the court will consider other laws existing on the subject at the time this one was enacted, the provocation that led up to the enactment, the

history of the times and the history of the particular act. The journals of the house may be resorted to; but no reliance in interpretation can be laid on debates on the bill in course of passage. It is well known that members of the Legislature do not all act from the same motives nor on the same understanding. If custom and usage since the statute was passed have put a practical construction upon it, this has great weight with the courts in construing the law. Id., Sec. 7, at pp. 8-9

Harmony and consistency are positive values in a legal system because they serve the interests of impartiality and minimize arbitrariness. Construing statutes by reference to others advances those values. In fact, courts have been said to be under a duty to construe statutes harmoniously where that can reasonably be done. SOUTHERLAND STATUTORY CONSTRUCTION, VOL. 2A, Sec. 53.01

The rules of statutory construction laid out above provide guidance in the court's task in construing the statute in question before us. We start our analysis from Secrion 36 (1) (c) of 2L-158-90 as it was originally enacted into law to trace the history and the intent of the Legislature in the application of the provision requiring officers and empolyees to resign from their employent or positions

(c) Be a candidate for elective office; PROVIDED, that any Pohnpei State or municipal officer or employee shall be accorded leave without pay, for a period not to exceed sixty days prior to and including the day of the election, for the purpose of seeking an elected office. If such person is elected, he shall resign his employment or position prior to the date upon which his term of elected office commences.

There seems to be no difficulty in construing the high lighted phrases. No Pohnpei State or municipal officer or employee and any Pohnpei State or municipal officer or employee contained in the old statute that they referred to officers and employees of both the Pohnpei and the Municipal Governments, respectively, that the phrase "be a candidate for elective office", construed within the light of the other two highlighted phrases, naturally spoke to elective office on both the State and the Municipal levels of government.

Section 37. Leave of absence for State officers or employees. Any Pohnpei State officer or employee who is a candidate for office shall, upon request be granted leave of absence for a period not to exceed sixty days prior to and including the day of the election, for the purpose of seeking an elected office. Leave will be without pay unless the individual chooses to use

In this new Section 37 the words "or municipal" as used in the old statute were deleted, and as we note in the Journal of the Legislature (re: L.B. 684-91, L.D. 1, an exerpt of which was attached as Plaintiffs Exhibit 3 containing 6 pages) the deletion of the words "or municipal" was necessary to take care of the mischief noted at the time that it was unconstitutional for a State statute to dictate to officers or employees of a municipal or town government to go on leave without pay or to use annual leave while certain select State officers would remain on pay when both categories of officers and employees would seek for an elected office in the Pohnpei Government. The Legislature felt that each Municipal or Town Government should be competent to regulate their officers or employees who decide to run for election for a Pohnpei Government position as to whether they should go on leave or leave without pay during the election process. The deletion of the words "or municipal" from the new. Section 37 effectively resolved the unequal treatment of forcing municipal government officers or employees to go on leave without pay or to use annual leave of up to sixty days for the purpose of seeking an elected office in the Pohnpei Government level while certain other State officers or employees were allowed to run for election and continue to receive their daily wages. The simple question posed for resolution here is what effect does the deleted words "or municipal" have on the last sentence of Section 37: "If

such person is elected, he shall resign from his employment or position upon taking the oath of office for his respective elected position. There is nothing in the Journal of the Legislature or Committee Report relating to L.B. No. 684-91 discussing the effect of the deleted words on the last sentence of Section 37. Thus necessitating the court's interpretation.

For comparative purposes, the language of the old statute reads: If such person is elected, he shall resign his employment or position prior to the date upon which his term of elected office commences. We then ask the question: If what "such person" is elected? And we get the simple response: If "any Pohnpei State or Municipal officer or employee is elected (he is subject to the resignation clause of Section 36 (1) (c)). In the new statute the clause reads: If such person is elected, he shall resign from his employment or position upon taking the oath of office for his respective elected position. We again ask the same question asked of the former statute: If what "such person" is elected? And we get the response this time: If any Pohnpei State officer or employee is elected (he is subject to the resignation clause of Section 37). A technical difference in language is noted in the old and the new versions of the statute, the old version requiring the winning candidate (officer or employee of the Pohnpei or State Government) to resign prior to the commencement of his elected office; the new version requires the winning candidate (officer or employee of the Pohnpei Government) to resign upon taking the oath of office for his respective elected position. Notwithstanding, there is no substantive change in our answers to the question asked of the old and the new

statute. They both require an officer or employee of the Pohnpei Government to resign his Public Service System empoloyment when he assumes the duties of his elected position upon taking the oath of office. We then ask another question: Are the plaintiffs and intervenors in the actions at bar officers or employees of the Pohnpei Government that are subject to the mandatory resignation requirement clause of Section 37. We answer this question in the affirmative. It seems immaterial whether the elected position is at the Pohnpei or the Municipal level of government. Our analysis could terminate at this juncture, however, because there exist other State laws, customary practices and usages which need to be considered and harmonized with the last sentence in Section 37 of the Pohnpei General Election Law, we move on.

Under the language of subsection (1), it appears likely that in order for an officer or employee of the Pohnpei Government to resign from his Government position as a result of his being elected to an elected position, the election that puts him/her in that elected position must be one conducted for and within the State of Pohnpei. An election conducted for and within a Municipality or

(3) Municipal Elections. Any Municipality of the State may, by charter, constitution or duly enacted ordinance, make this act applicable to municipal elections conducted in that Municipality; PROVIDED that all aspects of a municipal election that is conducted outside of the jurisdictional boundaries of the Municipality shall be governed by this act. Unless provided otherwise by State law, expenses for Municipal elections under this act shall be born by the Municipality for which the election is conducted. In absence of municipal law governing municipal elections or any aspect thereof, this act shall apply to all such elections or the particular aspects thereof.

This subsection (3) seems to lead us to another direction, thus the need for harmonization becomes great. This subsection (3) provides an open door to the Municipalities and Town of Pohnpei to "make the Pohnpei General Election law applicable to them" by adoption of a charter, constitution or enactment of an ordinance. At the same time; the Legislature makes the Pohnpei General Election law applicable to municipalities and town goverments where no charter or constitution was adopted or no ordinance enacted regulating elections within such municipalities or town. Notwithstanding, however, any municipal election that is conducted outside of the jurisdictional boundary of said municipality or town, whether such municipality or town has an election law of its own or not, must be conducted in accordance with the provisions of Pohnpei

On the basis of the foregoing analysis, it can fairly be concluded that the Pohnpei General Election Law, and possibly including Section 37 is intended to apply to the Municipalities and Town Governments if (1) the Municipalities or Town government make the State election law applicable to them, or (2) no law exists to regulate elections within such municipality or town government. The fact that the Pohnpei Legislature attempted to amend Section 37 through the recently enacted and vetoed L.B. No. 276-94, is a clear indication that the interpretation ascribed by the Executive Branch to Section 37 is in accord with the intent of the statute as it now reads..

Plaintiffs and Intervenors both indicated, and the Court judicially noticed that with the exceptions of Municipalities of Kapingamarangi and Nukuoro, all Municipalities have ratified their own constitutions and enacted ordinances regulating elections within their respective jurisdictions. Except for the aspect of municipal elections that are conducted outside of the municipal jurisdictions, the act on the part of those Municipalities and Town Governments which enacted their, own General Election Ordinances affirmatively removed the coverage and application of the Pohnpei General Election Law of 1990 from them.

Thus compounding the confusion as to whether any State Government officer or employee who ran for elective office on the municipal level (Council) and is successful is affected by the resignation requirement of Section 37 of the act in question, particularly in those municipalities that had enacted ordinances regulating their own elections. In any event, let's assume that none of the Municipalities or Town Government provides mandatory resignation provision similar to the one contained in the last sentence of Section 37 of the Pohnpei General Election Law. What effect would that have on the application of Section 37 to officers or employees of the Public Service Service System that are elected to municipal or town elected positions. It would appear that in a situation of this nature, the mandatory resignation requirement from the State Public Servicve System contained in Section 37 would apply to them. But let's move further in our search to see if we can find any other support or any contrary view to the above construction from other laws.

The Legislature ascribed no technical meaning of the highlighted phrase "political affiliation" as used in the Public Service System Act, thus we can assume that the Legislature intended that the plain meaning of the words be applied. The word "political" is defined as "of or relating to government, a government, or the conduct of governmental affairs; of, or relating to matters of government as distinguished from matters of law; of, relating to, or involved in party politics." The Meriam-Webster's Third New International Dictionary. The word "affiliation" is defined as "affiliating, the state or relation of being affiliated. Id.

On the basis of the definition given, we can fairly assume that "political affiliation" of an officer or employee of our Public Service System where no political parties exist, and where custom and tradition dictates one's affiliation to his/her municipality of residence or domiciliary, the phrase "political affiliation" as used in the Public Service System Act includes an officer's or employee's affiliation to a municipal council to, which he is elected. If this assumption is fair and appropriate, as I hold it is, and given the extenuating circumstances of Pohnpei and the general perceptions of the people, could it be fair under the due process and equal protection provisions of our Pohnpei Constitution, and the concept of justice of

the people of Pohnpei to require the officers and employees affected to leave their public service system employment solely on the basis of Section 37 of the General Election Law? It is difficult to assume that our Constitution and the concept of justice of Pohnpei would favor such untimely exodus of those affected officers or employees. The people who made up the eleven Municipalities and Kolonia Town governments of Pohnpei are the same people that the Pohnpei Government is established to serve, they are the masters of our two level Constitutional Governments.

The Court judicially noticed that during the period of the Trust Territory Administration of the Micronesian islands, no municipal councilman was required to resign his council position because he was also employed by the Trust Territory District Government. In fact, a good number of the then Ponape District Legislature members were officers or employees of the Trust Territory, Ponape District Government in the executive branch. Thus, it can fairly be inferred that given that experience, the Executive Department, in consideration of the circumstances of Pohnpei as a whole, particularly its human resousrces, felt it appropriate as late as in 1992 to maintain Part 12.3 in the Public Service System Regulations allowing the option to "employees elected to a municipal post, and where the work to be performed is done intermittently to use annual leave or leave without pay while performing his or her assigned municipal duties which may require performance during the employee's normal working hours." Part 12 of the Public Service

An employee elected to a municipal post or appointed to serve as a member of a board or a quaff-government agency (where the appointment is not made by the Governor and/or subject to the advice and consent of the Legislature), and where the work to be performed is done intermittently, shall have the option of annual leave or leave without pay while performing his or her assigned municipal or board duties which may reqire performance during the employee's normal working hours.

The Court appreciates the ingenuous argument advanced by the Defendants' counsel, contending that this portion of the Public Service System Regulation is void and gives no legal rights to the plaintiffs and intervenors. The weight of -this -argument can be deduced from the Governor's Message of December 8, 1992, promulgating the current version of the Public Service Regulations, particularly the statement: "I urge all employees to familiarize themselves with the contents of the Personnel Rules and Regulations as they contain information governing your rights, conduct, benefits, and actions as an employee of the Pohnpei State Government."

employees to resign at this time. The defendants in response argue that the doctrine of estoppe is an equitable as opposed to a legal doctrine, and that the interpretation of a statute is a standard legal function of the courts, and as a result, the doctrine of equity, such as estoppe are simply misplaced in such a matter. The defense argument is sound, however, the courts in Pohnpei, including many other jurisdictions make no distinction between court of law or court of equity these days. Our court system is court of law and court of justice; what is just under the law prevails, hence the concept of justice of the peoples of Pohnpei, Art. 10, sec. 11, PN. Constitution.

We come here to a situation where Section 6 (2) of the Public Service System Act of 1981, provides that "No employee in the Public 13 Service shall be suspended, demoted, dismissed, laid off, or otherwise 1 4 discriminated against because of . . . political affiliation . . . .", and Section 37 of the General Election law of 1990, as amended, providing "If such employee is elected, he shall resign from his employment or position upon taking the oath of office for his respective elected position", thus creating an unnecessary confusion to the citizens of Pohnpei. The Executive Department's compromise contained in Part 12.3 of the Public Service Regulations, namely, "An employee elected to a municipal post . . , where the work to be performed is done intermittently, shall have the option of annual leave or leave without pay while performing his or her assigned municipal or board duties which may require performance during the employee's normal working hours" appears to be an appropriate compromise harmonizing the two conflicting statutes. Being as it is, it will be inappropriate for the court at this late date to order a

Those officers or employees of the State Goverment who ran for election for the positions of Municipal Council, in the case of all other Municipalities, and District Legislature, in the case of Nett District Government, may have relied upon the option prescribed in Part 12.3 before they took upon themselves to place their candidacy in the respective council elections, and the electors in such Municipalities may have elected those Pohnpei Government officers or employees to represent them in their respective Municipal Councils and Nett District Legislature because of the experience, faith and confidence which the electors have on such officers or employees. To require them to resign from their many years of service in the State Public Service System after the Executive Department had realized that Part 12.3 is presumptively ultra vices would offend the Pohnpeian concept of justice. It would be an unfair exercise of Executive power to require the officers or employees affected and who may have relied upon the option provided in the Regulations in formulating their decision to run for municipal council positions to resign from their respective elected positions in the Municipalities or be separated from their State Public Service employment after the fact.

In addition, if the Executive Department by the force of Section 37 requires officers or employees of the State Government, under the circumstances discussed above, to resign from their municipal elected offices in order to retain their Pohnpei Government positions, we will in effect be disenfranchising the electors who had made their choice from many candidates and voted for the respective Pohnpei Government officers or employees into municipal council positions. Article 6, PN Constitution.

Accordingly, I conclude that the provision of the last sentence in Section 37 of Pohnpei General Election Law of 1990, as amended, to wit, "If such person is elected, he shall resign from his employment or position upon taking the oath of office for his respective elected position" applies to officers or employees of the State Public Service System who are elected to Council positions on the Municipal level of Government. I further conclude that Section 6 (2) of the Public Service System Regulation Act of 1981 conflicts with section 37 of the General Election Law, above. Finally Part 12.3 of the Public Service Regulations provides an approriate compromise for the administration of the statutes.

Further it is the conclusion and recommendation of this Court that the conflicting provisions of Section 37 of the General Election Law of 1990, as amended, and Section 6 (2)of the Public ServiceSystem Act of 1981 be referred to the Pohnpei Legislature remedial amendment in accordance with Section 12, Article 8 of the Constitution of Pohnpei.

Finally and in view of the other overriding considerations, as above discussed, the Executive Department needy not force the plaintiffs and the intervenors to resign from their respective elected municipal positions in order to retain their Public Service System employments without first, amending its own regulations upon which the plaintiffs and intervenors, and the electors had relied in making the choice of running and being voted to their respective municipal council positions. In the mean time, Section 22 (Outside Employment) of the Public Service System Act prescribes as dischargeable offence if an employee accepts fee, compensation, gift, payment of expenses, or any other thing of monetary value in circumstances such that acceptance may result in the use of such office for private gain, preferential treatment to any person, impeding government efficiency or economy, loss of complete independence or impartiality; making government decision outside official channels, or causing any adverse effect on the confidence of the public in the integrity of the government. If it is found that any of the named plaintiffs or intervenors had been guilty of the above statute, the Executive Branch is by law empowered to separate the affected officer or employee from the Public Service System.