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Toney v. Fairbanks North Star Borough School District (9/30/94), 881 P 2d 1112
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID TONEY, )
) Supreme Court No. S-5900
Appellant, )
) Superior Court No.
) 4FA-92-1027 Civil
v. )
) O P I N I O N
FAIRBANKS NORTH STAR BOROUGH )
SCHOOL DISTRICT, BOARD OF ) [No. 4126 - September 30,
1994]
EDUCATION, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Dick L. Madson, Law
Offices of Dick L. Madson, Fairbanks, for
Appellant. W. D. Bennett and Krissell
Crandall, Perkins Coie, Anchorage, for
Appellee.
Before: Moore, Chief Justice, Matthews,
Compton and Eastaugh, Justices. [Rabinowitz,
Justice, not participating].
MOORE, Chief Justice.
INTRODUCTION
In March 1992, David Toney was fired from his position
as a tenured teacher with the Fairbanks North Star Borough School
District (the "District"). The termination was based on evidence
establishing that Toney had engaged in a sexual relationship in
1980 with a 15 year old student while Toney was a teacher in
Boise, Idaho. Toney appealed his termination to the superior
court, which granted summary judgment in favor of the District.
The court concluded that Toney's failure to disclose the
relationship constituted a material misrepresentation and a
breach of the contractual covenant of good faith. The court also
found that the relationship itself supported termination under AS
14.20.170(a). We affirm the superior court's grant of summary
judgment in favor of the District on the latter ground.
FACTS AND PROCEEDINGS
In 1980, Toney was employed as a teacher at Capitol
High School in Boise, Idaho. In December of that year, he
entered into a sexual relationship with a 15 year old student,
Traci F. At that time, Toney was in his early thirties. Shortly
thereafter, Traci became pregnant with Toney's child. She then
transferred to a school for pregnant teenagers. In November
1981, Traci gave birth and, with the consent of all parties, the
child was adopted.
In October 1981, just prior to the birth of the child,
Toney and Traci's father entered into a confidential written
agreement concerning Traci's medical expenses and other costs
relating to the child's birth. In the same document, Toney also
agreed to "submit his resignation or take a leave of absence from
the faculty of Capitol High School for the second semester of the
1981-82 school year and for the next school year in order to
permit Traci to attend Capitol High School and to graduate
therefrom." Pursuant to this agreement, Toney resigned from
teaching in the Boise School District before the beginning of the
1982 spring semester.
Meanwhile, in the spring of 1981, Toney completed an
application for employment with the Fairbanks North Star Borough
School District. The application was dated February 3, 1981.
However, it was not stamped as received by the District until
April 28, 1981.1 Included in this application were Toney's
assertions that he had not been asked to resign for any reason
from a teaching position and that he had not been convicted of
any offense involving moral turpitude.2
In August 1982, Toney was contacted by Bill Rogers, a
principal with the District, regarding his application. Toney
reaffirmed his interest in a position with the District. Rogers
then contacted Don Johnson, the principal of Capitol High School
in Boise, who gave Toney a positive recommendation. Mr. Johnson
did not reveal that Toney had resigned from Capitol High School
at mid-year during the 1981-82 school year.
Toney then came to Fairbanks to interview for a
teaching position. During the interview, Toney did not disclose
his relationship with Traci, nor did he disclose that he had not
been employed as a teacher during the spring semester of the 1981-
82 school year. Following the interview, Toney was recommended
to fill a position with the District. Following this
recommendation, Toney was asked to complete an "affidavit of
teaching experience"and a "teacher's personal record" for the
District's files. Toney incorrectly indicated on both documents
that he held a full-time teaching position with the Boise School
District for the entire 1981-82 school year. A non-tenured
contract was executed on September 17, 1982.
In 1992, after learning that Toney was teaching in
Fairbanks, Traci contacted District personnel and informed them
of her prior relationship with Toney. After investigating the
allegations, the District terminated Toney by letter dated March
26, 1992. The letter stated that Toney's firing was based on his
failure to disclose to the District his relationship with Traci
and his resignation pursuant to the agreement with Traci's
father. In addition, the letter stated that Toney's conduct
supported termination under AS 14.20.170(a)(2)-(3), on the
grounds that it constituted "immorality and substantial
noncompliance with the school laws of the state, the regulations
or bylaws of the Department of Education, the bylaws of the
District and the written rules of the superintendent."3
Toney appealed his termination to the Borough's Board
of Education. The Board upheld the dismissal by a vote of six to
one. Toney then appealed to the superior court. Both parties
filed motions for summary judgment. The superior court granted
the District's motion in an Opinion and Order dated August 4,
1993. The court held that Toney's failure to reveal the
relationship and the circumstances surrounding his resignation
constituted misrepresentation and a breach of the contractual
duty of good faith. The court further held that Toney's actions
supported termination under AS 14.20.170(a)(2)-(3).4 Toney now
appeals.
DISCUSSION
The facts material to this appeal are undisputed. This
appeal involves only pure questions of law, subject to de novo
review by this court. In such cases, the court adopts the rule
of law that is most persuasive in light of precedent, reason and
policy. Loeb v. Rasmussen, 822 P.2d 914, 917 (Alaska 1991). In
the present case, the superior court concluded that "Toney's
actions and conduct establish immorality under AS 14.20.170(a)(2)
and are sufficient grounds for his dismissal." We affirm the
judgment of the superior court on the same basis.
Under AS 14.20.170(a)(2), a teacher, including a
tenured teacher, may be dismissed for "immorality, which is
defined as the commission of an act that, under the laws of the
state, constitutes a crime involving moral turpitude." A
criminal conviction is not necessary to support a teacher's
dismissal under this provision. Kenai Peninsula Borough Bd. of
Educ. v. Brown, 691 P.2d 1034, 1040 (Alaska 1984). In addition,
it is well-established that there need not be a separate showing
of a nexus between the act or acts of moral turpitude and the
teacher's fitness or capacity to perform his duties. Id. at 1040-
41. As the court in Brown stated, "[i]f a teacher cannot abide
by these standards his or her fitness as a teacher is necessarily
called into question." Id. at 1041. Thus, in the present case,
so long as the District had sufficient evidence to conclude that
Toney committed an act or acts which constituted a crime of moral
turpitude, the dismissal is valid, even in the absence of a
conviction. See id.
Toney acknowledges that he engaged in a sexual
relationship with Traci when she was 15 years old and a student
of his. This conduct satisfies the elements of the crimes of
sexual abuse of a minor in the second and third degree under
Alaska law as presently enacted. AS 11.41.436(a)(1) and
(a)(5)(B); 11.41.438(a).5 Toney's conduct also constitutes a
crime under Alaska law as it existed in 1981,6 under present
Idaho law,7 and under Idaho law as it existed in 1981.8
Toney does not dispute that his conduct with Traci was
criminal, nor does he deny that his actions constituted crimes of
moral turpitude. Instead, he argues that the statute authorizing
dismissal for such acts does not reach conduct engaged in before
a teacher is hired by a school district.
In addressing this argument, the superior court noted
that the language of AS 14.20.170(a)(2) "does not explicitly or
implicitly limit the statute's application to . . . acts that
occur only while a teacher is under contract with an Alaska
school district." The court further found that the legislative
history of the statute offered no support for Toney's argument.
Finally, the court recognized that Toney's contention is contrary
to sound public policy:
As the Borough points out, the effect of
such an interpretation would be contrary to
public policy as it would allow an individual
who commits an act of moral turpitude, and
who successfully conceals his/her behavior
from a school board, to be immune from
dismissal upon subsequent discovery of the
conduct.
Thus, the court concluded that Toney's pre-hiring conduct
"establish[ed] immorality under AS 14.20.170(a)(2) and [was]
sufficient grounds for his dismissal."
Toney responds by arguing that, under the analysis of
the superior court, a teacher could work for thirty years without
incident, yet be summarily dismissed for conduct occurring long
before his contract of employment. Under such an interpretation,
Toney argues, "remoteness of the act is totally irrelevant. Such
a construction would be a violation of due process and clearly
against public policy."
With respect to this argument, the reasoning of the
court in Fisher v. Independent School District No. 622, 357
N.W.2d 152 (Minn. App. 1984), is persuasive.
The fortuitous fact that the school
board did not have immediate knowledge of the
alleged sexual relationship with the sixteen-
year old minor student is not the Board's
fault. There is no showing that the Board
unduly delayed in bringing this termination
action after it had received knowledge of the
alleged occurrence. By virtue of the nature
of the offense--sexual intercourse with a
minor student of the district--it may be
considered doubtful whether such conduct
could ever be too remote in time.
Id. at 156 (quoting Johnson v. Independent School Dist. No. 294,
No. 12305 (Minn. Dist. Feb. 12, 1980)) (emphasis in original).
Toney offers no argument that he has been unfairly
prejudiced by the delay between the conduct in question and his
dismissal. Indeed, in light of his admission that the conduct
occurred, such an argument would be untenable. In addition,
there is no suggestion that the District failed to act promptly
upon its receipt of incriminating information regarding Toney.
Finally, as the Fisher court noted, it is questionable whether
conduct such as that engaged in by Toney could ever be too remote
to support a teacher's dismissal.
Toney's sole argument is that AS 14.20.170(a)(2) does
not provide for the dismissal of a tenured teacher on the grounds
of conduct occurring prior to the teacher's hiring. This
argument is nonsensical. Nothing in the language of the statute
or its legislative history suggests that such a limited
interpretation is appropriate. In addition, as the superior
court noted, such a construction would conflict with public
policy, since it would immunize from dismissal a teacher who had
engaged in illegal and immoral conduct prior to hiring, but who
had successfully concealed such conduct. We therefore affirm the
superior court's conclusion that Toney's actions were sufficient
to support his dismissal under AS 14.20.170(a)(2).9
CONCLUSION
Toney's criminal sexual relationship with a minor
student is adequate grounds for his dismissal under AS
14.20.170(a)(2). The superior court's opinion and order
upholding Toney's dismissal is therefore AFFIRMED.10
_______________________________
1 In its brief, the District suggests that Toney backdated
the application to a date on which he could reasonably claim to
have been unaware of Traci's pregnancy. In any event, it is
clear that the application was completed after the relationship
had begun but before Toney and Traci's father entered into their
agreement in October 1981.
2 In the spring of 1982, Toney was arrested for his
conduct with Traci and charged with engaging in lewd conduct with
a minor under sixteen, a felony under Idaho law. However, the
complaint was later dismissed based upon the agreement between
Toney and Traci's father.
3 AS 14.20.170 provides in relevant part:
(a) A teacher, including a teacher who
has acquired tenure rights, may be dismissed
at any time only for the following causes:
. . . .
(2) immorality, which is defined
as the commission of an act that, under the
laws of this state, constitutes a crime
involving moral turpitude; or
(3) substantial noncompliance with
the school laws of the state, the regulations
or bylaws of the department, the bylaws of
the district, or the written rules of the
superintendent.
4 Based on these conclusions, the court declined to
address the scope of the resignation clause in the application
for employment and the effect of Toney's misstatements in his
personnel records regarding the length of his employment in
Boise.
5 Under AS 11.41.436(a), a person is guilty of the class B
felony of sexual abuse of a minor in the second degree if
(1) being 16 years of age or
older, the offender engages in sexual
penetration with a person who is 13, 14, or
15 years of age and at least three years
younger than the offender . . .; [or]
. . . .
(5) being 18 years of age or
older, the offender engages in sexual contact
with a person who is under 16 years of age,
and
. . . .
(B) the offender occupies a
position of authority in relation to the
victim.
Under AS 11.41.438(a), a person is guilty of the class
C felony of sexual abuse of a minor in the third degree if
(1) being 16 years of age or
older, the offender engages in sexual contact
with a person who is 13, 14, or 15 years of
age and at least three years younger than the
offender; or
(2) being 18 years of age or
older, the offender engages in sexual
penetration with a person who is 16 or 17
years of age and at least three years younger
than the offender, and the offender occupies
a position of authority in relation to the
victim.
6 See AS 11.41.410(a)(4)(A) (sexual assault in the first
degree); AS 11.41.440(a)(1) (sexual abuse of a minor).
7 See Idaho Code 18-1508 (lewd conduct with minor or
child under 16); Idaho Code 18-6101 (statutory rape, age of
consent: eighteen).
8 See Idaho Code 18-6607 (lewd conduct with minor or
child under sixteen).
9 Toney also argues that other statutes relating to
teacher certification suggest that AS 14.20.170(a)(2) cannot be
interpreted to apply to conduct occurring prior to his employment
with the District. In particular, Toney analogizes to AS
14.20.030, which sets forth the grounds under which the
Professional Teaching Commission may revoke or suspend a teaching
certificate. The language of the statute exactly tracks the
language used in AS 14.20.170(a)(2) and provides for the
suspension or revocation of a certificate for "immorality, which
is defined as the commission of an act which, under the laws of
the state, constitutes a crime involving moral turpitude." Toney
offers no support whatsoever for his assertion that "[i]t is
abundantly clear that once a certificate is validly issued it can
be suspended for reasons only that occur after its issuance and
not before." For the same reasons discussed above, Toney's
argument must fail.
10 Based on this conclusion, we need not address the
District's alternative argument that Toney's dismissal is
supported under AS 14.20.170(a)(3), which provides for dismissal
for "substantial noncompliance with the school laws of the state,
the regulations or bylaws of the department, the bylaws of the
district, or the written rules of the superintendent." Nor need
we address the contention that Toney's failure to inform the
District of his relationship with Traci during the application
process constituted a material misrepresentation and a breach of
the duty of good faith and fair dealing.
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