YAP STATE COURT
APPELLATE DIVISION (Yap)
Cite as Dachur v. The State of Yap,
3 FSM Intrm.203 (Yap S. Ct. App. 1987)

[3 FSM Intrm. 203]

MICHAEL S. DABCHUR,
Appellant,

v.

GOVERNMENT OF THE STATE OF YAPet al.,
Appellee.

APPELLATE CASE NO. 1987-001

OPINION
 
Decided:  August 24, 1987

Before:
     Hon. John Tharngan, Chief Justice, State Court of Yap
     Hon. Arthur Ngiraklsong, Temporary Justice, State Court of Yap*
     Hon. Martin Yinug, Temporary Justice, State Court of Yap**

*Associate Justice, Palau Supreme Court
**Legislative Counsel, Yap State Legislature

APPEARANCES:
     For the Plaintiff:          John M. Holmes
                                          Micronesian Legal Services Corporation
                                          P.O. Box 206
                                          Colonia, Yap 96943

[3 FSM Intrm. 204]

For the Defendant:          Clement Mulalap
                                          P.O. Box 435
                                          Colonia, Yap 96943

*       *       *       *

HEADNOTES
Public Service Employment - state
     Section 23 of Yap State Law 1-35, affecting resignation and abandonment of employment positions, does not provide for administrative remedies or administrative appeal of any kind. Dabchur v. Yap, 3 FSM Intrm. 203, 205 (Yap S. Ct. App. 1987).

Public Service Employment - state
     Abandonment of a public office is a voluntary form of resignation wherein the employee's intention to relinquish his position must be clear, either through declaration or overt acts. Dabchur v. Yap, 3 FSM Intrm. 203, 207 (Yap S. Ct. App. 1987).

Public Service Employment - state
     Where the statute in question classifies "constructive abandonment" as  a employee ceasing work "without explanation" for not less than six consecutive working days, any explanation from the employee, written or verbal, would suffice to indicate the employer that the employee does not intend to relinquish his position absolutely.  Dabchur v. Yap, 3 FSM Intrm. 203, 207 (Yap S. Ct. App. 1987).

Public Service Employee - state
     An employee who contests the factual allegation of voluntary  abandonment is not entitled to any administrative remedies or administrative appeal, and has recourse only in the court. Dabchur v. Yap, 3 FSM Intrm. 203, 208 (Yap S. Ct. App. 1987).

*        *       *        *

COURT'S OPINION
PER CURIAM:
     The issues before this court came from FSM Supreme Court Case No. 1986-3010.  In that case, the plaintiff, a teacher, was terminated from his position without notice and opportunity to be heard.

     The case places in issue the interpretation of Yap State Law 1-35, the Yap State Public Services Systems Act, and relevant rules and regulations.

     The Trial Division of the FSM Supreme Court, in deference to the Yap State Court and in the interest of "promoting appropriate federal and state

[3 FSM Intrm. 205]

relations," ordered that certain issues involving the construction of Yap State Law 1-35 be submitted to the Appellate Division of the Yap State Court.  The issues properly before this court by the FSM Supreme Court certification order and the petitions by both parties are:
 
     1.  In cases arising under Section 23 of Yap State Law 1-35, must the employee be given notice and opportunity to be heard before termination?

     2.  If the answer to number 1 is "NO," is there a right to any administrative appeal after termination?

     The plaintiff argues that abandonment is a form of misconduct, much  like theft, assault on a student, drunkenness, dishonesty or excessive AWOLs.  For misconduct, an employee is entitled to all procedural rights under Section 25 of Yap State Law 1-35 before he can be suspended, demoted or dismissed.

     The government's position is that the plaintiff abandoned his position and that in abandonment cases no right to notice and opportunity to be heard is available before termination nor is administrative appeal available after termination.

     We hold that any employee who abandons his position under Section 23 of the Yap Law 1-35 has no right to notice and opportunity to be heard before termination, except as provided by Section 23.  We also hold that when an employee abandons his position, he has no right to any administrative appeal after termination.  In abandonment cases, an employee's only recourse is the court.

LEGAL ANALYSIS
Section 23 of Yap State Law 1-35 states:

Resignation and Abandonment.  Resignations shall be in writing.  If an employee ceases working without   explanation for not less than six consecutive working days he shall be deemed to have abandoned his position, and the management official shall file with the chief a statement showing termination of employment because of abandonment   of position.  The management official shall promptly transmit a copy of the statement to the employee by the most practical means.

Section 23 does not provide for administrative remedies oradministrative appeal of any kind.  Had the Yap State Legislature intended to provide administrative remedies including rights to administrative appeal in abandonment cases, it could have easily and clearly said so under that section. 73 Am. Jur. 2d Statutes 228 (1974).

     Without setting forth the entire Section 25 of Yap State Law 1-35, that section deals with disciplinary action for misconduct.  Specifically, Section

[3 FSM Intrm.206]

25 deals with suspension, demotion, and dismissal of an employee, appeals therefrom to an ad hoc panel, and right to notice and opportunity to be  heard. Paragraph (f) of Section 25 mandates that all these administrative remedies must be exhausted before an employee takes his case to court.

     We begin our analysis with two presumptions.  (1) We must presume that Section 23 of Yap State Law 1-35 as set forth above is constitutionally  valid.  (2) We also presume that we deal with an employee who abandons his employment position.  We necessarily begin with these presumptions because the FSM Supreme Court's certification order does not require us to rule on the constitutionality of Section 23 of Yap State Law 1-35 or the factual allegation of whether the plaintiff abandoned his teaching position.

     As far as we know, Section 23 of the Yap State Law 1-35 has not been construed by any courts within the FSM.  There is also no legislative history that could aid this court in construing Section 23.  Chapter XVI of the Yap Public Service System Regulations, promulgated pursuant to Section 23 of Yap State Law 1-35, repeats the language of the statute and offers no help as to the intent of the legislature.  We further notice that although Yap State Law 1-35 is patterned after 61 TTC (Public Employment), Section 23 of Yap State Law 1-35 is new.

     Given the above legislative background for Section 23 and being perhaps a case of first impression, we necessarily have to look elsewhere for persuasive authorities in the development of our legal principles.1

     Since Section 23 is on abandonment of employment, we start by defining what abandonment means.  We do this because where a word has a judicially settled meaning, it would be presumed that the Yap State Legislature, in using that word in Section 23, used it in that sense [see United States v. Merriam, 263 U.S. 179, 44 S. Ct. 69, 68 L. Ed. 240 (1923)].

     Abandonment of office is defined as follows:

[3 FSM Intrm. 207]

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.  It implies nonuser,  but nonuser does not, of itself constitute abandonment.   The failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of   the officer to abandon and relinquish the office.

Black's Law Dictionary 13 (4th ed. 1951). (All case citations omitted.)  We adopt the above meaning of the word abandonment.  Abandonment is a form of resignation.  We emphasize, however, that the employee's intention to relinquish his position must be clear, either through declaration or overt acts.

     A clear case of abandonment is assumed under the statute.  Section 23, however, expressly deals with "constructive" abandonment.  In case an employee "ceases work without explanation for not less than six consecutive working days he shall be deemed to have abandoned his position, . . . ."  Neither the statute, nor the rules and regulations define what kind of "explanation" is required.  It is our decision that any explanation from the employee, written or verbal, would suffice as long as it communicates to the employer that the employee does not intend to relinquish his position absolutely.

     In applying the above meaning of the word "abandonment," we necessarily reject the plaintiff's argument that abandonment is a form of misconduct. Abandonment is a form of resignation.  As such, it is our decision that when an employee abandons his position under Section 23, he is, unlike an employee cited for misconduct, not entitled to the procedural rights under Section 25 of Yap State Law 1-35.

     We see an important distinction between abandonment and misconduct.  In a misconduct case, for example a teacher who assaults a student, the teacher may still want his teaching position.  And Section 25 provides that the teacher has procedural rights that the government must comply with before determining appropriate disciplinary action, e.g., suspensions, demotion or dismissal.

     In an abandonment case, like resignation, the employee does not want  his position anymore.  His intention to give up his position is clear,

[3 FSM Intrm. 208]

as in the case of an employee who resigns from his position.  And an employee who resigns or abandons his position does not need or want a hearing.  It does not make much sense to say that an employee who abandons his teaching position is still subject to disciplinary action which is the purpose of Section 25.

     To read Section 23 to mean that in an abandonment case, an employee has all the procedural rights set out under disciplinary action, Section 25, leads to a less than reasonable result.  73 Am. Jur. 2d Statutes 65 (1974).

     The plaintiff has also failed to convince us how Section 23 can be read to include procedural rights provided under Section 25.  The plaintiff's counsel argues that Section 23 and 25 can be read together through a "literal meaning" of the statute.  We are not persuaded.
 
     We are well aware that the result of our decision is that an employee who contests factual allegations of abandonment is not entitled to any administrative remedies or an administrative appeal.  His only recourse is the court.  This may sound unfair in that in an abandonment case, an employee does not have the administrative remedies available to an employee in a misconduct case under Section 25.  Further, an employee in an abandonment case will have to bear the burden of paying attorney's fees and other expenses in order to have his case heard in court.

     It is, however, our decision that the distinction between abandonment and misconduct outlined herein justifies the different statutory treatment.

CONCLUSION
     For the foregoing reasons, it is our decisions that there is no administrative remedy nor administrative appeal in cases arising under Section 23 of Yap State Law 1-35.  There is no recourse for an employee who has been terminated due to alleged abandonment except the court.

*        *        *        *
 
Footnote:
 
1. We find that Johnson v. Director, Downstate Medical Center, State Univ. of New York, 364 N.E.2d 837 (N.Y. 1977), Harris v. State Personnel Bd., 170 Cal. App. 3d 639 (1985); Zike v. State Personnel Bd., 145 Cal. App. 3d 817 (1983) and Goggin v. California State Personnel Bd., 202 Cal. Rptr. 587 (Cal. Dist. Ct. App. 1984) cited by both Counsel are not quite applicable.  In the Johnson case, the problem was that a rule that was supposed to implement a statute instead contravened said statute.  In the Harris case, the statute involved is different from our Section 23 and so were the facts.  There an involuntary absence from work for 5 days constitutes automatic resignation.  The employee involved was ill, a fact known to the employer. In the Zike case, the facts do not constitute abandonment.  There the teacher's intention to return to his teaching position was never in doubt.  His excessive AWOLs constitute "misconduct" in our view.  In the Goggin case, there the court was only reviewing an agency's decision within The confines of judicial review of agency's decision.