You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Odum v. University of Alaska (1/29/93), 845 P 2d 432
<![CDATA[
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ROSE M. ODUM, )
) Supreme Court File No. S-5258
Petitioner, ) Superior Court File No.
) 3AN-92-5432 Civil
v. )
)
UNIVERSITY OF ALASKA, ) O P I N I O N
ANCHORAGE, )
)
Respondent. ) [No. 3925 - January 29 , 1993]
)
Petition for Review From the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, J. Justin Ripley, Judge.
Appearances: Allison E. Mendel, Mendel
& Huntington, Anchorage, for Petitioner.
Mark E. Ashburn, Ashburn & Mason, Anchorage,
for Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
PER CURIAM.
The University of Alaska-Anchorage (University)
terminated Rose M. Odum as an associate professor. She
filed a complaint for declaratory relief, claiming that
the University had denied her due process of law
guaranteed by the United States1 and Alaska
Constitutions,2 and also had denied her procedures
guaranteed by the Alaska Administrative Procedures Act
(APA), AS 44.62.330-630. She moved for a preliminary
injunction, which was denied. Odum seeks review. We
reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND 3
Odum was a tenured associate professor at the
University. Laura W. MacLachlan, Dean of the
University's School of Nursing and Health Sciences,
received complaints about Odum. Unable to resolve the
complaints internally, MacLachlan asked the University
Provost to appoint a Performance Review Group to
evaluate Odum's performance.
The Provost appointed a Special Peer Review Committee
(Committee) to review Odum's performance. The
chairperson circulated a set of guidelines for the
conduct of the hearing. These guidelines provided that
each party would have an opportunity to make opening
and closing statements, present testimony and
documentation, and question each other's witnesses.
The guidelines permitted the parties to be advised by
legal counsel, but prohibited counsel from questioning
witnesses or speaking on behalf of the parties. After
the hearing, and following receipt of the Committee's
recommendation, MacLachlan terminated Odum.
Odum filed suit. She moved for a preliminary
injunction to enjoin enforcement of her termination
during the pendency of the proceeding. Superior Court
Judge J. Justin Ripley denied without comment Odum's
motion for preliminary injunction. Odum filed a
Petition for Review pursuant to Alaska Appellate Rule
402. We granted her petition, and directed the parties
to address the following issues: 1) whether the APA
requires that pre-termination hearings held by the
University must comply with the procedures outlined in
the APA; and 2) whether the right to a pre-termination
hearing guaranteed by the due process clause of the
Alaska Constitution includes the right to be
represented by counsel, that is, the right to counsel
who is permitted to question witnesses and make
arguments.
We conclude that the APA governs pre-termination
hearings held by the University. Since the APA affords
the right to counsel to participate in hearings, we do
not reach the question whether due process of law also
requires the University to allow counsel to
participate.
II. STANDARD OF REVIEW
The interpretation of a statute is a question of law
which involves this court's independent judgment.
McGrath v. University of Alaska, 813 P.2d 1370, 1371
n.1 (Alaska 1991). "On questions of law, this court is
not bound by the lower court's decision. . . . Our
duty is to adopt the rule of law that is most
persuasive in light of precedent, reason, and policy."
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
III. PRE-TERMINATION HEARINGS AND THE APA
We have consistently held that due process of law
guaranteed by the United States and Alaska
Constitutions requires a pre-termination hearing.
Storrs v. Municipality of Anchorage, 721 P.2d 1146,
1149-50 (Alaska 1986), cert. denied, 479 U.S. 1032
(1987); Kenai Peninsula Borough Bd. of Educ. v. Brown,
691 P.2d 1034, 1037 (Alaska 1984); McMillan v.
Anchorage Community Hosp., 646 P.2d 857, 864 (Alaska
1982); University of Alaska v. Chauvin, 521 P.2d 1234,
1238 (Alaska 1974); Nichols v. Eckert, 504 P.2d 1359,
1366 (Alaska 1973) (Erwin, J., concurring).
While the University agrees that Odum was entitled to a
pre-termination hearing, it contends that this hearing
was not governed by the APA. The APA provides:
The procedure of the state boards . . .
listed in this subsection . . . shall be
conducted under AS 44.62.330-44.62.630. This
procedure, including, but not limited to,
accusations and statements of issues,
service, notice and time and place of hearing
. . . conduct of hearing . . . shall be
governed by this chapter . . . .
AS 44.62.330(a) (emphasis added).
The University presents no persuasive reason why the
mandatory language of AS 44.62.330(a) should not apply
to pre-termination proceedings. Alaska Statutes
44.62.330-.630 govern the procedures to be employed by
the University "except to the extent that [the
University's] inclusion is inconsistent with the
provisions of AS 14.40."4 AS 44.62.330(a)(45);
McGrath, 813 P.2d at 1372. As we noted in McGrath,
"[u]ltimately, if [d]efendant seeks to be exempted from
the workings of the APA, it must seek such remedy from
the [l]egislature, not this [c]ourt." Id. at 1375
(quoting Aden).
The University argues that the plain language of the
APA should not be used to determine how it applies to
intra-agency personnel decisions. Although the
procedural protection of the APA may be applied to
personnel actions, the APA was not drafted with these
actions in mind. Accordingly, the University contends
that applying the plain language of the APA to
personnel actions is "a very suspect enterprise."
We disagree. Where the language of the statute is
clear, "[w]e see no reason to suspect that [it] does
not mean exactly what it appears to mean." Kodiak
Elec. Ass'n v. Delaval Turbine, Inc., 694 P.2d 150, 155
(Alaska 1984) (quoting Vest v. First Nat'l Bank of
Fairbanks, 659 P.2d 1233, 1234 (Alaska 1983)).
The University further argues that Odum was
sufficiently protected by existing procedures.
Although the pre-termination hearing afforded Odum "did
not incorporate all the procedural provisions of the
APA," the University notes that she was entitled to
grieve the outcome of this hearing. The grievance
process includes a hearing which complies with the APA.
Thus the University argues in the alternative that the
pre-termination hearing already provided Odum, and the
opportunity for a post-termination hearing which
complies with the APA, taken together satisfy due
process requirements and the APA.
Again, we disagree. A post-termination hearing which
complies with the requirements of the APA does not cure
the failure of a pre-termination hearing to comply with
the APA. The procedural protections the APA provides
are most important before termination.
III. CONCLUSION
The parties agree that Odum is entitled to a pre-
termination hearing under state and federal guarantees
of due process of law. Since the APA governs the
procedures to be employed by the University in the
conduct of hearings, the pre-termination hearing to
which Odum is entitled must be conducted pursuant to
the APA. The APA provides that parties may be
represented by counsel.5 Counsel's participation may
not be limited to giving advice only, rather, counsel
must be permitted to question witnesses and make
arguments on behalf of the parties. Since the statute
does not limit counsel's traditional role as an
advocate in an adversarial proceeding, Odum has the
right to be represented by counsel who is permitted to
question witnesses and make arguments.6
The case is REMANDED to the superior court for further
proceedings consistent with this opinion.
_______________________________
1. U.S. Const. amend. V, provides in part:
No person shall be . . . deprived of
life, liberty, or property, without due
process of law . . . .
2. Alaska Const. art. I, 7, provides in part:
No person shall be deprived of life,
liberty, or property, without due process of
law. . . .
3. These facts are constructed from the Petition for
Review, the Response to Petition for Review and
attached exhibits.
4. The University does not argue that AS 14.40 precludes
the APA from applying to it. Under AS 14.40.170(b)(1),
the Board of Regents may "adopt reasonable rules,
orders, and plans . . . for the good government of the
university . . . ." However, the procedures used in
Odum's hearing were not adopted by the Board of
Regents. Furthermore, this court has held that "the
APA hearing procedure which is designed to guarantee
due process to persons adversely affected by
administrative action, such as adverse employment or
personnel action"is consistent with the provisions of
AS 14.40. McGrath, 813 P.2d at 1372 (quoting Aden v.
University of Alaska, No. 3AN-85-17179 Civil (Alaska
Super., Feb. 2, 1987)).
5. Alaska Statute 44.62.420(b) provides in part:
The notice to respondent must be
substantially in the following form but may
include other information:
. . . You may be present at the
hearing, may be but need not be represented
by counsel, may present any relevant
evidence, and will be given full opportunity
to cross-examine all witnesses testifying
against you.
6. Since the APA resolves the issue in Odum's favor, we do
not address whether the due process clauses of the
United States or Alaska Constitutions require that
legal counsel be allowed to participate in the pre-
termination hearing of a tenured professor.
]]>
