Sacarello Bals v. Board of Trustees of the Employees' Retirement System of Insular Government of Puerto Rico

75 P.R. 253

• Court: Supreme Court of Puerto Rico
• Decided: July 31, 1953
• Docket: No. 10574
• Status: Published

Opinions

Mr. Justice Marrero

delivered the opinion of the Court.

The Board of Trustees of the Employees’ Retirement System of the Insular Government of Puerto Rico filed a motion to strike and to dismiss a petition for mandamus presented by Angel Sacarello Bals for insufficiency of facts to constitute a cause of action.¹ After a hearing the trial court rendered an elaborate decision sustaining the motion to dismiss. Since in its opinion the petition was not susceptible of amendment, it ordered that it be dismissed, with costs to petitioner, but without including attorney’s fees. A motion for reconsideration was filed and dismissed after another elaborate decision in which the court ratified its prior position. Based on the latter reasoning judgment was rendered dismissing the complaint. Petitioner appealed from that judgment and in support of his appeal he now assigns twelve errors. We need not discuss them in detail. It suffices to say in advance that the judgment appealed from will be affirmed, although on different grounds from those set forth by the trial court.

The petition for mandamus is most elaborate. It takes the first 19 pages of the judgment roll. Its essential allegations are, in brief, that for more than 23 years prior to the date of his separation the petitioner held several positions in the Insular Government of Puerto Rico; that in June, 1946 he was head of the Engineer’s Division of the Bureau of Docks and Harbors, under the Department of the Interior, and that the disbursements of said Division were made by the San Juan Harbor Board; that pursuant to an Act of 1946, the Legislative Assembly dissolved said Board and ordered the transfer of its property and business to the Puerto Rico Transportation Authority; that then the Commissioner of the Interior appointed him engineer in charge of the Docks Works, which position was also known as head of the Division of Dock Works, under the Bureau of Public Works of that Department with a yearly salary of $4,500, which was later reduced to $4,000; that on December 26, 1946 the Bureau of the Budget eliminated, as of April 30, 1947,-the Engineer’s Division of Dock Works, and hence, the position of head of the Division which he'was occupying; that due to the elimination of that position his employment ceased, and since he had been in service as a permanent employee more than 24 years and was over 45 years of age, he availed himself of the provisions of § 8 of Act No. 23 of July 16, 1935 (Spec. Sess. Laws, pp. 126, 134)² and requested the respondent Board to pay him the corresponding pension for involuntary separation, to which the Board agreed, granting him a pension of $2,000; that on January 22, 1948 the Personnel and Statistics Division of the' Office of Personnel announced that his name had been certified for appointment as Civil Engineer IV, to the Commissioner of the Interior, with a monthly salary of $400, that since he was the only person certified for said position that Department was obliged to appoint him, and that if he declined said appointment the Retirement Board would be notified for all legal purposes; that on February 4, 1948 the Commissioner of the Interior wrote to the Director of the Office of Personnel that the positions of Civil Engineer IV and Head Engineer of the Division of Docks and Harbors were in all respects completely different;³ that on April 7 he was notified by the Administrative Official of that Department that the Personnel Board (sic) had ratified the certification of the petitioner for the position of Civil Engineer IV and that he should qualify on April 12; that as an answer he wrote to the Department of the Interior alleging that the position of Civil Engineer IV was not equal or similar to the position which he held as head of the Division of Dock Works when he ceased in office; and that on April 15 the Retirement Board informed him that his name had been eliminated from the retirement list as of the first of that same month;4 that on May 28 he sent through his counsel a lengthy communication to the Retirement Board giving a whole report of the foregoing and requesting that his pension be renewed, that the decision eliminating him from the list be set aside and that, in any event, he be granted the opportunity of an administrative hearing before the Board to argue his ease; that on October 13 he was notified by the Board that his petition had been considered and that its decision was final with respect to the suspension of his pension and that the appearance of his counsel was not considered necessary.

The petition further alleges that in the communication sent by petitioner to the respondent Board on May 28 it was stated that he had never received any appointment for a position equal or similar to the one he was discharging at the time he was retired from service; that no appointment was ever made for any position whatsoever and that even if the appointment as Civil Engineer IV would have been made, the same was null, void and had no legal effect on petitioner’s pension “since the position of Civil Engineer IV is not equal or similar to the one he was holding as head of the Engineer’s Division of Dock Works, when he ceased in office.” The petition further describes the duties and responsibilities of the position of Civil Engineer IV and those of Head Engineer of Dock Works,⁵ stating also that during his 24 years of service to the Government of Puerto Rico he always contributed to the Retirement Fund. The petition concludes alleging that the Board erred in suspending his pension: (1) because he has not received any appointment equal or similar to the one he was holding when he ceased office as head of the Division of Dock Works of the Department of the Interior; (2) because he has received no appointment as Civil Engineer IV; (3) that even assuming that he has received an appointment for this last position the same is null and void “since that position is not equal or similar to the one he had been holding . •. . when he ceased office”; (4) because no evidence at all was introduced before the Board which justified the elimination of his name from the Government’s retirement list of involuntary separations; (5) because the Board refused to consider his offer to substantiate the facts set forth in the preceding paragraphs, and (6) because in withdrawing his name from the list the Board ■did not comply with the provisions of § 8 of Act No. 23, since he “has not received an appointment for an equal or similar ■position nor has he declined the offer of a position equal or •.similar to the one he was holding at the time he ceased in ■office as head of the Division of Docks and Harbors.”

It is not necessary to go into the details of the reasoning adduced by the trial court in its lengthy decisions in order to reach the conclusion that the petition as drafted does not state facts which constitute a cause of action. The crux of the reasoning was that without question the Civil Service Commission was the agency to decide whether the petitioner should continue receiving his pension or should be reinstated to the government which he previously served; that by virtue of Act No. 345 of May 12, 1947 (Sess. Laws, p. 594), establishing the Office of Personnel, the Commission was abolished and all its records, contractual rights or obligations were transferred to the Office of Personnel;⁶ that it was incumbent on the Office of Personnel to determine whether the position to which petitioner would be reinstated was one of an equal or similar nature to the one he had been holding at the time of his retirement; that the fact that the Commissioner of the Interior differed from the opinion of the Office of Personnel over the likeness or similarity of the position for which petitioner was certified with the abolished position was not controlling; that the law granted to petitioner a remedy, that is, to ask the Office of Personnel for a reconsideration and if denied, to appeal and obtain a hearing before the Personnel Board; that nothing would have been gained by having a hearing before the Retirement Board; and that the petitioner had not exhausted his administrative remedy.

A motion to dismiss such as the one presented in this case by the defendant has the scope and effect of the demurrer provided by § 105 of the Code of Civil Procedure, that- is, it admits the truth of the essential averments of the complaint. Rivera v. People, 73 P.R.R. 841; Boulon v. Pérez, 70 P.R.R. 941; cf. Serra v. Transportation Authority, 68 P.R.R. 581; Acuña v. Pension Board, 58 P.R.R. 96, 102.

Accepting as true the essential averments of the petition, does it state facts sufficient to constitute a cause of action? Certainly not. We now pass to consider why we answer in the negative.

Pursuant to § 6 of Act No. 345 of 1947, supra:

“In addition to the duties imposed upon the Board by other provisions of this Act,' it shall be the duty of the Board:

“(6) On appeal, and at the request of interested party, to investigate and decide controversies arising in connection with-the following matters: dismissals, suspensions, terminations, separation of working test employees, demotions, and allocation and reallocation of positions. . . .

“The decisions of the Board shall be final, except in cases of removals, in which cases review proceedings may be brought in the district court of the district where the employee removed had been serving.” 7 {Italics ours.)

It is crystal clear that petitioner’s case is not one of removal, or of suspension, termination, separation of work as a test employee or of demotion. It is possibly a case of allocation or reallocation of a position. In connection with the allocation or reallocation of positions, § 10 of Act 345, supra, orders the Director of Personnel after consultation with appointing authorities and other supervisory officials, to ascertain the duties and responsibilities of all positions in the competitive and non-competitive service and to group such positions into classes to form a classification plan. And § 11 of the same Act provides that “as promptly as possible after the adoption of the classification plan, the Director shall allocate each position in the competitive service and in the non-competitive service to the appropriate class therein,” and that “any employee affected by any allocation or reallocation of a position shall have the right to file with the Director a formal request for reconsideration thereof, and, upon dismissal thereof, he may appeal to and obtain a hearing in the Personnel Board.” ⁸ . Thus, the latter Act provides in a clear and conclusive manner who shall prepare the Classification Plan, who shall examine each position in the competitive, and non-competitive service and the rights of every employee aggrieved by any allocation or reallocation. Consequently, if the question is one of allocation or reallocation of petitioner’s position, the Director of Personnel was the one called to determine the classification of the position for which he was certified. He decided that the position offered to petitioner and his former position were equal or similar. Against that determination petitioner’s only remedy, pursuant to the clear language of paragraph 2 of 11 (c), was to file with the Director of Personnel a formal request for reconsideration and if denied, to appeal and obtain a hearing in the Personnel Board. Petitioner did nothing of the sort.

On the other hand, § 19 of Act No. 345, supra, provides that “the Director shall establish and maintain re-employment lists, which shall contain the names of persons who have been regular employees and who were separated from their positions for reasons other than fault or delinquency on their part,” and § 26 provides that “at the request of the Board of Trustees of the Employees’ Retirement System of the Insular Government and its Instrumentalities, the Director (of Personnel) may approve, in the case of an employee who is eligible for or is receiving an annuity or benefit for occupational or non-occupational disability, the reassignment or re-employment of such employee to a position in a class the compensation for which is equal to or higher than the amount of the disability annuity or benefit to which such employee would otherwise be eligible. ...” ⁹ (Italics ours.) However, in the case of re-employment the Act does not even grant the employee or official aggrieved the right- to appeal to the Personnel Board from the act of the Director in placing his name in the Re-employment List.

We therefore conclude that if the act of the Director of Personnel in offering petitioner the position of Civil Engineer IV was equivalent to the allocation or reallocation of a position, the petitioner did not exhaust his administrative remedy. Medina v. Hato Rey Realty Co., 72 P.R.R. 595, 600. And if it was a case of re-employment the act of the Director of Personnel was final.¹⁰ In either case since it was not a removal, petitioner is not entitled by law to appeal to the courts to decide the question. It is only in case of a removal that an appeal may be taken from the decisions of the Personnel Board. The fact that in all other cases the employee or official aggrieved by the act of the Personnel Board may not appeal- to the courts in search of a remedy is not contrary to due process of law, since no one has a vested right to hold a public office. The latter constitutes a privilege. Ramspeck v. Federal Trial Examiners, 344 U. S. 128; Goldway v. Board of Higher Education, 37 N. Y. Supp. 2d 34; Reese v. Dempsey, 152 F. 2d 157, 163; Butterworth v. Boyd, 82 P. 2d 434, 126 A.L.R. 838; McAuliffe v. New Bedford, 155 Mass. 216, 220, cf. Estep v. United States, 327 U. S. 114, 120; Fitzgerald v. Douds, F. 2d 714, 717.

Petitioner contends most emphatically that no appointment was given to him for the position of Civil Engineer IV. Undoubtedly, pursuant to § 8 of Act No. 23, supra, a retired employee under the conditions of his retirement is entitled to rqceive an annuity until he is re-employed by the Civil Service Commission (new Office of Personnel) in an equal or similar position to the one that he held when he retired. There is also no doubt that the duty of that Office is to communicate the name of the employee thus retired to the head of the department where the vacancy occurs, that the latter shall appoint the employee to.the vacant position, that, “if the employee so appointed should decline said appointment, the annuity he is receiving shall cease ipso facto, etc.” (Italics ours.) However, from the averments of the complaint it appears that the Personnel and Statistics Division of the Office of the Personnel notified petitioner by letter of January 22, 1948, that his name had been certified to the Commissioner of the Interior for the position of Civil Engineer IV, and that in the letter he was told that pursuant to the aforesaid act “petitioner was the only person certified for the aforesaid position and the Department of the Interior was bound to appoint him in that position.” It also appears from the complaint that on April 7 of the aforesaid year petitioner was notified by the Administrative Official of the Department of the Interior that the Personnel Board (sic) had ratified the afore-mentioned certification, that “the petitioner should qualify on April 12” and that “petitioner wrote to the Department of the Interior in answer to the letter. .. that the aforesaid position of Civil Engineer IV was not equal or similar to that which he was holding... at the time he ceased in office, and that there was no similarity whatsoever in those positions.”

The aforesaid letter of the Administrative Official was in no way equivalent to a delegation of the power of appointment which the Commissioner of the Interior had¹¹ in connection with the subordinate employees and officers of his department. The letter did not appoint petitioner to the position of Civil Engineer. IV. He was merely told to qualify for said position on April 12 of that same year. ■ The latter official could, of course, draft and send a letter conceived in such terms. Its content was mere office routine that could be performed by any subordinate employee or official as long as he was authorized to do so by the Department Head. There is no contention here that the Administrative Official was not authorized to write the letter he did.

In weighing the validity of a motion to dismiss for insufficiency, the duty of the court is not to test the final merit of the claim in order to determine which party is to prevail — whether plaintiff or defendant — but rather to consider whether in the light most favorable to the plaintiff and with every doubt resolved in his favor, the complaint is sufficient to constitute a valid claim—González v. Hawayek, 71 P.R.R. 493; Boulon v. Pérez, 70 P.R.R. 941. However, that does not mean that in every case where a motion to dismiss of that nature is presented the plaintiff must necessarily prevail. The former rule has as an exception those cases in which notwithstanding laxity in interpreting the allegations of a complaint, the court after studying them is fully convinced that ultimately the plaintiff will not prevail. That is precisely our criterion in this case. From the very averments of the complaint, admitted as true for present purposes, it appears that petitioner’s name was certified by the Office of Personnel for a position equal or similar to the one he was holding at the time he retired, that he was notified in writing that he should present himself to the Department of the Interior to qualify, that as we interpret it, if petitioner had gone to the Department of the Interior on the date indicated in the written notice, the corresponding appointment would have been made by the Commissioner of the Interior, and that in answering as he did, petitioner declined the appointment offered. We mention the foregoing because it is unquestionable that his name was certified by the Office of Personnel to the Commissioner of the Interior for a position equal or similar to that which he had at the time of his involuntary separation; because by an express provision of the statute when the Commissioner received the certification of petitioner’s name for the position of Civil Engineer IV, the former had no other alternative than to extend him an appointment therefor — “that official duty has been regularly performed,” and “that the law has been obeyed” § 102, paragraphs 15 and 32 of the Law of Evidence,- — -are presumptions of law; because it should be presumed that if the petitioner had gone to the Department of the Interior on April 12, 1948, as required by the letter sent to him by the Administrative Official, the Commissioner of the Interior, complying with the express provision of § 8 of Act 23, supra, would have extended an appointment in his favor for the position offered him; and because it was petitioner himself who in thus answering the Department as he did, declined the appointment for the reason adduced. This being the case, the petitioner can never prevail. The truth is that if the appointment required by law was not made for the position of Civil Engineer IV, it was solely and exclusively due to petitioner’s act in declining it. He is now, therefore, estopped from alleging that he was not appointed for the position for which he was certified, that he did not decline, and that he is entitled to the remedy requested.

Section 208 of the Political Code plays no important role in this ease. Insofar as pertinent it provides that “an office becomes vacant on the happening of any of the following events before the expiration of the term: (1) The death of the incumbent... (9) His refusal or neglect to file his official oath or bond within fifteen days after his term óf office has commenced in accordance with law.” It should be remembered that in the afore-mentioned letter of the Administrative Official dated April 7, 1948, petitioner was told to appear ■on the 12th of that same month to qualify for the position of Civil Engineer IV. It .is undeniable that from the date of the letter until the day Sacarello Bals had to qualify the term of 15 days had not elapsed, but the appointing power may always tell the person appointed the date when he should appear to qualify for the position offered, as long as, of ■course, between the date of the appointment and the date to be sworn in, a period not greater than 15 days has elapsed. If that term should expire, a new appointment must be made. However, if as in this case, the person appointed is given a shorter term than 15 days to appear and qualify, it is his duty to state the reason why he can not accept and to request, if he so desires, that the complete period of 15 days be granted. In this case, however, the petitioner did not request in any manner the extension of the term; on the contrary, he immediately answered the letter of the Administrative Official indicating why he would not qualify for the position offered. His act in so doing was undoubtedly tantamount to declining the position offered.¹²

In any event, the remedy sought against the Retirement Board does not lie, since its act in the instant case was limited to complying with the ministerial duty imposed by § 8 of Act 23 of 1935, supra, when it was notified by the Office of Personnel that the petitioner had declined to accept an equal or similar position to the one he was holding when he retired.

For the foregoing reasons the complaint does not state sufficient facts to constitute a cause of action and the judgment appealed from shall be affirmed.

1 The motion to strike was not decided by the trial court, but the parties do not raise any question to that effect.

2 Section 8 of Act No. 23, supra, insofar as pertinent provides:

“If an official or employee of forty-five (45) years of age, to whom this Act is applicable, after he has served for a period of not less than twenty (20) years and before he is entitled to retire, is involuntary separated from the classified or unclassified Civil Service for any reason except removal, such official or employee shall be entitled to receive, from the date he ceases in office, fifty per cent of the salary he was drawing at the time he ceased in office until his reinstatement by the Civil Service Commission in a position equal or similar to that which he was holding. For this purpose, it shall be the duty of the said Commission to send, without any excuse or pretext whatsoever, the name of said employee to the head of the department where a vacancy occurs, and the latter shall appoint the said employee to fill the vacancy. If the employee so appointed should decline said appointment, the annuity he is receiving- shall cease ipso facto, and the Retirement Board shall proceed to drop his name from the pensioners’ pay roll; . . .”

3 In the petition the letter in question is literally copied.

4 The letter sent by the respondent Board to petitioner is also copied verbatim in the complaint.

5 In holding that said positions are not equal or similar, the petitioner copies besides in his petition the letter sent by the Commissioner of the Interior to the Director of the Bureau of the Budge; on September 30, 1946. The letter details the chief duties assigned to the Engineer’s Division of Dock Works.

6 See § 41 of Act No. 345, supra.

7 Paragraph 6 of § 6, supra, was amended by Act No. 406 of May 11, 1951 (Sess. Laws, p. 1074), and at present reads thus:

“On appeal, and at the request of interested party, to investigate and decide controversies arising in connection with the following matters: dismissals, suspensions, terminations, separation of working test employees for political, religious or racial reasons, and demotions.” (Italics ours.)

The amendment consists, as we have seen, of the addition of the words “for political, religious or racial reasons,” and in the elimination of the words “allocation and reallocation of positions” which appeared in the original Act.

8 Section 11, supra, amended by Act No. 406 of 1951, eliminated the right of any employee affected by any allocation or reallocation of a position to request a reconsideration, and upon dismissal, to appeal to the Personnel Board.

9 Section 2, paragraph 13, of Act 345 of 1947 provides that:

“ ‘Re-employment List’ shall mean a list of persons who have been regular employees in a particular class and who are entitled to have their names certified for appointment to positions in that class.”

10 It is the same when a mere reinstatement is involved.

11 We say had because at present the position is known as “Secretary of Public Works.” See § 6 of Article IV of the Constitution of the Commonwealth of Puerto Rico.

12 Section 186 oí the Political Code, as amended by Act 98 of May 13, 1936, (p. 490) and by Act 14 of July 24, 1952 (Spec. Sess. Laws, p. 74) provides that “...ail executive, administrative and judicial officers, and all employees of the Insular Government of Puerto Rico.. . before they enter upon the duties of their respective offices or employments” shall take and sign an oath or affirmation appearing therein.