You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Revelle v. Marston (6/16/95), 898 P 2d 917
<![CDATA[
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; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
KEITH REVELLE, )
) Supreme Court Nos. S-5463/5493
Appellant and )
Cross-Appellee, ) Superior Court No.
) 3AN-88-7901 CI
v. )
) O P I N I O N
WILDA MARSTON; MAYOR TOM )
FINK; THE MUNICIPALITY OF )
ANCHORAGE; and the ANCHORAGE ) [No. 4224 - June 16, 1995]
LIBRARY ADVISORY BOARD, )
)
Appellees and )
Cross-Appellants. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Dana Fabe, Judge.
Appearances: Don Clocksin, Sonosky,
Chambers, Sachse, Miller, Munson & Clocksin,
Anchorage, for Appellant/Cross-Appellee.
Stephanie Galbraith Moore, Assistant
Municipal Attorney, and Richard L. McVeigh,
Municipal Attorney, Anchorage, for
Appellees/Cross-Appellants.
Before: Rabinowitz, Matthews, Compton,
and Eastaugh, Justices, and Bryner, Justice
pro tem.* [Moore, Chief Justice, not
participating.]
RABINOWITZ, Justice.
I. INTRODUCTION
In January 1988 the newly elected Mayor of the
Municipality of Anchorage, Tom Fink, terminated Keith Revelle's
employment as Head Librarian for the Municipality. Mayor Fink
relied on an evaluation that the Anchorage Library Advisory Board
(LAB) had formulated at a meeting held in violation of the Open
Meetings Act. In this appeal, Revelle seeks inter alia an award
of back pay and attorney's fees from the LAB's chair, Wilda
Marston, Mayor Fink, the Municipality of Anchorage, and the LAB
(collectively, "the Municipality").
II. FACTS
Keith Revelle was the Head Librarian of the Anchorage
Municipal Library from 1977 to early 1988. From 1986 to 1988 his
position has carried the status of a department head, making
Revelle a municipal executive. All executive employees of the
Municipality serve at the pleasure of the Mayor.1 Under the
Municipality's personnel rules, evaluations of Revelle's
performance were the responsibility of the Mayor and the
Municipal Manager. The Municipal Manager was Revelle's direct
supervisor. As part of his duties Revelle served as the
executive secretary and technical advisor for the LAB, and
attended all LAB meetings. Anchorage Municipal Code (AMC)
4.60.040(A).
From 1983 through 1987, the LAB periodically met to
evaluate Revelle's performance as Head Librarian. These meetings
were not part of the regular meeting schedule, were not open to
the public, took place without notice to the public or Revelle,
and occurred outside of Revelle's presence.
The parties dispute whether the LAB's authorized
functions included evaluation of the Municipal Librarian's
performance.2 However, in his affidavit, Mayor Fink acknowledged
that "it is not the duty and responsibility of the Library
Advisory Board to provide evaluations of library or
administration personnel and [that] the Library Advisory Board is
not in the personnel chain." Furthermore, the Municipality
expressly acknowledged that evaluating the Municipal Librarian
was an act outside of the LAB's regular duties.
In 1985, the chair of the LAB, Wilda Marston, forwarded
a negative evaluation of Revelle's performance to the Municipal
Manager, Bob Smith. Smith did not consider the 1985 evaluation
appropriate and told Revelle this. Smith also discussed the
matter with then Mayor Tony Knowles, who agreed with his
analysis. When Marston herself approached Mayor Knowles, the
Mayor told her that the LAB had only an advisory role and that
her view of Revelle's performance did not correspond to others'
evaluations of Revelle.
In November 1987, the LAB held a meeting at Marston's
home. The LAB gave neither the public nor Revelle notice of the
meeting; thus Revelle was not present. The LAB decided to
recommend Revelle's termination to then Mayor-elect Fink. Based
on the discussions at this meeting, Marston drafted a letter to
the Mayor-elect and had the other LAB members review and sign it.
Attached to the letter was the LAB's negative evaluation of
Revelle's library management skills.
Upon receiving the evaluation, Mayor-elect Fink
contacted Revelle and asked if he had seen the LAB evaluation.
Thinking that the Mayor-elect was referring to an earlier 1985
evaluation, Revelle answered that he knew about an evaluation but
had not seen it. The Mayor-elect asked Revelle to review the
evaluation since it was negative, and said that he would get him
a copy. A member of the Mayor-elect's transition team, Bert
Hall, subsequently contacted Revelle and offered him a copy of
the evaluation. Revelle indicated that such an evaluation was
not a proper function of the LAB, and that Hall should examine
the evaluations of Revelle's immediate supervisors.
In January 1988, Mayor Fink terminated Revelle's
employment as head of the Municipal Library Department. In
deciding to discharge Revelle, Mayor Fink relied solely upon the
LAB's 1987 evaluation. Revelle contends, and the Municipality
does not dispute, that he did not learn of the 1987 evaluation
and letter until shortly after his termination.
III. PROCEDURAL HISTORY
In August 1988, Revelle filed suit against the
Municipality. In his initial complaint, he alleged that the
Municipality had violated the Open Meetings Act, AS 44.62.310(a),3
and had deprived him of due process. He sought, amongst other
relief, a judgment voiding his termination and awarding him back
pay and benefits. Revelle subsequently filed a motion for
summary judgment.
The superior court decided Revelle's motion for summary
judgment, determining that LAB meetings were subject to the Open
Meetings Act, and that the November 1987 LAB meeting in Marston's
home violated the Act's provisions. The superior court also
concluded that invalidation of Mayor Fink's termination decision
was "necessary to foster a full and fair reconsideration"of the
termination decision. Accordingly, the superior court ordered
the reinstatement of Revelle for a "cooling-off period" of 120
days, in order to permit "adequate time for a full and fair re-
evaluation of Mr. Revelle's job qualifications and past
performance . . . ." Mayor Fink was explicitly prohibited from
relying on the LAB's 1987 evaluation, or on materials derived
from it, during reconsideration. However, Revelle was denied an
award of back pay on the grounds that such an award would not
serve the public interest.
At the end of the 120 day period, Mayor Fink again
terminated Revelle's employment as Head Librarian. He cited a
number of reasons unconnected to the LAB's evaluation for
reaching this decision. Revelle did not challenge his second
termination, and thus it is not an issue in this appeal.
Thereafter, the Municipality moved for summary judgment
on the remainder of Revelle's claims. Revelle responded with a
motion to amend his complaint, adding inter alia a claim against
Marston and the LAB for tortious interference with contract, and
a claim against all the defendants--Mayor Fink, the Municipality,
Marston, and the LAB--for breach of the implied covenant of good
faith and fair dealing, and for infliction of emotional distress.
In addition, Revelle filed a cross-motion for summary judgment.
The superior court granted Revelle's motion to amend.
The Municipality was subsequently granted summary judgment on
Revelle's claims for due process violations and breach of the
implied covenant of good faith and fair dealing. The superior
court did not address the claim for interference with contract,
because it had not yet been briefed.
Thereafter, Revelle moved to set the case for trial,4
and in May 1992 the superior court scheduled the trial for late
September of the same year. In June 1992, pursuant to a
stipulation by the parties, trial was rescheduled for late
November 1992.
In September 1992, Revelle moved to amend his
complaint, dropping the tortious interference with contract
claim. The Municipality did not oppose this motion, except with
regard to Revelle's contention that the Municipality would suffer
no prejudice from the amendment. The Municipality requested an
award of costs and attorney's fees as reimbursement for the
expense of trial preparation and as a condition for granting the
amendment. The superior court granted the motion to amend, but
declined to rule upon the costs and attorney's fees issue.
Revelle then moved for final judgment and sought a
determination of prevailing party status for the purpose of an
award of attorney's fees under Alaska Civil Rule 82. The
superior court issued its final judgment in November 1992,
holding that each party prevailed on significant issues in the
case and ordering each party to bear its own costs and attorney's
fees.
This appeal followed. Revelle appeals from the
superior court's denial of his claim for back pay and benefits as
a remedy for the Municipality's violations of the Open Meetings
Act. He also appeals from the grant of summary judgment to the
Municipality on his claims for due process violations and breach
of the implied covenant of good faith and fair dealing. Finally,
he appeals from the superior court's decision that he was not a
prevailing party and thus not entitled to an award of costs and
attorney's fees. On cross-appeal, the Municipality claims that
the superior court should have awarded the Municipality
attorney's fees and costs for trial preparation on the tortious
interference with contract claim.
IV. DISCUSSION
A. The Superior Court's Denial of Back Pay and Benefits
1. Standard of Review for the Superior
Court's Application of the ACCFT Test
Action taken contrary to the Open Meetings Act is void.
AS 44.62.310(f).5 When a void decision is remanded by a court to
the transgressing governmental body for reconsideration,
"approximation of the status quo at the time of the original
decision is desirable." Alaska Community Colleges' Fed'n of
Teachers, Local No. 2404 v. University of Alaska, 677 P.2d 886,
890 (Alaska 1984) [hereinafter ACCFT]. Nonetheless, mechanistic
application of such a rule is not always in the public interest.
See id. at 891. The void action in this case was the LAB's
recommendation that Revelle be fired. The Mayor's firing of
Revelle was not itself in conflict with the Open Meetings Act.
The Mayor had the authority to fire Revelle for virtually any
reason or no reason. Revelle's firing was thus invalidated by
the superior court not because the Mayor lacked authority to fire
him, but because the Mayor had relied on the LAB's void
evaluation in firing him. Therefore what was needed was a remedy
which would purge the void evaluation of the LAB from the
decision-making process concerning whether to fire or retain
Revelle.
This court has established a three-step analysis for
determining the appropriate remedy for a decision made in
violation of the Open Meetings Act. First, the transgressing
governmental body must show that a subsequent ratification of the
original decision involved a substantial reconsideration of that
decision. See id. at 891, 893. If full and fair reconsideration
did not occur, then it must be determined whether reconsideration
is possible without invalidating the earlier flawed decision.
See id. at 891-92. If reconsideration is not possible without
invalidating the decision, then the court must conduct a
balancing test to determine whether invalidation is in the public
interest. Id. at 892. "In deciding the public interest issue,
the court should weigh the _remedial benefits to be gained in
light of the goals of the [Open Meetings Act] against the
prejudice likely to accrue to the public._" Brookwood Area
Homeowners Ass'n v. Municipality of Anchorage, 702 P.2d 1317,
1325 (Alaska 1985) (quoting ACCFT, 677 P.2d at 893).
In the present case, the superior court held that the
LAB drafted its 1987 evaluation in violation of the Open Meetings
Act. The superior court also determined that "invalidation of
the decision to terminate Mr. Revelle is necessary to foster a
full and fair reconsideration of that decision." These rulings
of the superior court are not at issue in this appeal. Rather,
at issue in this appeal is whether the superior court properly
balanced the remedial aspects of the Open Meetings Act against
the prejudice that the public would be likely to suffer in
determining whether to award Revelle back pay and benefits.
Implicit in the superior court's findings is a
determination that the remedial benefits of Revelle's
reinstatement, in terms of ensuring proper compliance with the
Open Meetings Act, outweighed the prejudice to the public
interest. Neither party challenged this finding in the superior
court. Rather, on appeal Revelle challenges the superior court's
apparent assumption that reinstatement should encompass merely a
return of Revelle to his position as head librarian for the
Municipality and that an award of back pay and benefits was not
required. The superior court essentially separated Revelle's
termination into two components: the removal of Revelle from his
post, and the cessation of any remuneration to Revelle during the
period between his original termination and his reinstatement.
The superior court applied the ACCFT balancing test separately to
each component.6
The parties disagree on the proper standard of review
for the superior court's application of the ACCFT test. Revelle
argues that the superior court's denial of back pay and benefits
raises a question of law, which this court reviews de novo. The
Municipality argues that this court should review the superior
court's application of the ACCFT balancing test under the abuse
of discretion standard. ACCFT, 677 P.2d at 893. We conclude
that whether Revelle was entitled to back pay and benefits
depends upon the application of the ACCFT balancing test and thus
review Revelle's claim for back pay and benefits under the abuse
of discretion standard. Id. at 893.
2. Application of ACCFT Balancing
Test
In rejecting Revelle's claim for back pay and benefits,
the superior court interpreted the Open Meetings Act as having
been enacted for the public good rather than providing an avenue
for obtaining private relief:
In this case, the facts militating
against invalidation of Mayor Fink's decision
involve the costs to the Municipality of
awarding in excess of $86,000 in back pay to
Mr. Revelle. This award could have a
profound impact on the library's budget,
possibly resulting in an inability to open a
new branch library in the Northway Mall or to
purchase books or provide services in other
branches. In the alternative, an upward
adjustment of the tax rate for the
Municipality would result.
. . . .
An award of back pay to Mr. Revelle
is not necessary to promote the Mayor's full
and fair reconsideration of the decision
whether to terminate or retain Mr. Revelle as
Municipal Librarian. Furthermore, remedial
actions are to be assessed in light of the
goals of the Open Meetings Act, in this case
goals of allowing public participation and
input in the operation of government. These
public goals are not addressed by personally
compensating Mr. Revelle for his lost wages.
Mr. Revelle may pursue these claims within
the context of his other causes of action,
including his action for wrongful
termination.
Revelle argues that because a person may request a public
discussion of subjects that might harm his or her reputation or
character, see AS 44.62.310(c),7 the Open Meetings Act protects
individuals as well as the public.8
The Open Meetings Act protects and advances the
public's right to remain informed. ACCFT, 677 P.2d at 891. "It
is believed that public exposure deters official misconduct,
makes government more responsive to its constituency, allows for
greater public provision of information to the decision-maker,
creates greater public acceptance of government action, and
promotes accurate reporting of governmental processes." Id.
(citations omitted). Thus, in assessing the remedial benefits to
be gained in light of the Act's goals, the superior court was
correct in considering the Act's broad purpose of encouraging
"public participation and input in the operation of government."
However, a legitimate but more specific purpose not
considered by the superior court is that of maximizing informed
and principled decision-making in individual cases. Those who
will be affected by a public body's decision have the right to
appear and be heard in a public forum. We have previously
considered the remedial purposes of the Act from the individual's
perspective:
Ideally the plaintiff is entitled to be
placed in the position he would have been in
had the violation never occurred. That
position is not one where the adverse
decision is never made. Instead it is one
where the decision, adverse or not, is taken
in conformity with the sunshine laws.
Id. at n.10. Moreover, this court has acknowledged that the Open
Meetings Act facilitates informed decision-making. For example,
we have stated that the Act, "by ensuring that issues are decided
publicly, does attempt to ensure that better substantive
decisions are made through public scrutiny and adequate
information." Id. And we have noted that the Act "allows for
greater public provision of information to the decision-maker."
Id. Thus, we conclude that the superior court should have
considered the purpose of maximizing informed and principled
decision-making in individual cases in fashioning its remedial
decision in response to the LAB's violation of the Act.
The superior court also did not, at least explicitly,
consider the Act's remedial goal of deterrence. Placing
governmental bodies on notice that courts will strongly enforce
the Open Meetings Act serves the Act's remedial goal of
deterrence. See Brookwood Area Homeowners Ass'n, 702 P.2d at
1326; cf. Puglisi v. School Comm. of Whitman, 414 N.E.2d 613, 613-
15 & n.6 (Mass. App. 1981) (upholding an award of back pay in
favor of school principal discharged in violation of state open
meetings act for the period from the date of the illegal meeting
to the date of the lower court's judgment on the grounds that the
award "fulfill[ed] the legislative purpose of exacting a penalty
for violations of the open meeting law").9
Thus, in assessing the remedial benefits to be gained
in light of the Act's goals, the superior court should have
considered the goals of maximizing informed and principled
decision-making in individual cases and deterring future
violations, as well as the goal of encouraging "public
participation and input in the operation of government."10 The
superior court should have weighed these benefits against the
prejudice likely to accrue to the public if Revelle is awarded
back pay and benefits.11
Ideally, the goal of the Open Meetings Act is to place
Revelle in the position he would have been in had the violation
never occurred. ACCFT, 677 P.2d at 891 n.10. It is relevant to
inquire whether there is a nexus between the LAB's violation and
Revelle's termination. For instance, if the LAB's meeting had
been public and Revelle had been allowed to present his side of
the story in a public forum, he might have altered the LAB's
negative evaluation and thereby avoided being fired. On remand
the superior court could find there is a reasonable probability
that Revelle's presence would have resulted in a different
recommendation from the LAB, and that there is a nexus between
the violation and the termination. In the event such a finding
is made, the superior court could then further determine that an
award of back pay and benefits is appropriate. If, on the other
hand, Revelle would have been dismissed even if the Open Meetings
Act had been observed, the superior court could conclude that
there is an absence of a nexus between the LAB's violation and
Revelle's termination, and that back pay and benefits are
therefore not warranted. Even if the superior court were to
reach the latter conclusion, it could still determine that
consideration of the remedial goal of deterrence warrants
awarding Revelle at least his costs and the full reasonable
attorney's fees he incurred as a result of his attempts to remedy
the LAB's violation of the Act. Because it does not appear that
the superior court in making its discretionary decision
concerning the remedy of back pay considered the Open Meetings
Act's goals of informed and principled decision-making and the
question of the need to deter Open Meetings Act violations, this
aspect of the case must be remanded for such consideration.
B. Revelle's Due Process Claims
Revelle contends that he had a protected interest in
his employment and thus a constitutional right to procedural due
process.12 In particular, Revelle contends that the LAB's
negative evaluation damaged his reputation in the community,
depriving him of a constitutionally protected liberty interest,13
and that the Municipality should have allowed him the opportunity
to address the LAB's charges at a pre-termination hearing.14
In Board of Regents v. Roth, 408 U.S. 564 (1972), the
United States Supreme Court addressed whether termination of at-
will employment affects a constitutionally protected liberty
interest. In Roth, a university had hired a nontenured professor
for a fixed term. Id. at 566. At the end of the term, the
university decided not to rehire him. Id. The Court held that
the Fourteenth Amendment's Due Process Clause did not give him
the right to a hearing, because he did not show that the
university had deprived him of a liberty interest protected under
the Constitution:
The State, in declining to rehire
the respondent, did not make any charge
against him that might seriously damage his
standing and associations in his community.
It did not base the nonrenewal of his
contract on a charge, for example, that he
had been guilty of dishonesty, or immorality.
Had it done so, this would be a different
case. For "[w]here a person's good name,
reputation, honor, or integrity is at stake
because of what the government is doing to
him, notice and an opportunity to be heard
are essential.". . .
Similarly, there is no suggestion
that the State, in declining to re-employ the
respondent, imposed on him a stigma or other
disability that foreclosed his freedom to
take advantage of other employment
opportunities.
Id. at 573 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971)); see also Shatting v. Dillingham City School Dist., 617
P.2d 9, 12 (Alaska 1980).15
The Ninth Circuit has stated that in order to infringe
upon an employee's liberty interest, an employer's negative
remarks must belittle the employee's "worth and dignity as an
individual," so as to have "severe repercussions outside of
professional life." Stretten v. Wadsworth Veterans Hosp., 537
F.2d 361, 366 (9th Cir. 1976). For example, remarks that impose
a stigma of moral turpitude, such as charges of immorality or
dishonesty, intrude upon the liberty interest. See Roth, 408
U.S. at 573; Raposa v. Meade School Dist. 46-1, 790 F.2d 1349,
1354 (8th Cir. 1986); Burk v. Unified School Dist. No. 329, 646
F. Supp. 1557, 1567 (D. Kan. 1986). Negative remarks about an
employee's job performance primarily affect the employee's
professional life alone, and generally are not considered so
stigmatizing as to harm reputation or foreclose future
employment.16 See Raposa, 790 F.2d at 1354; Stretten, 537 F.2d at
366; Burk, 646 F. Supp. at 157.
In Revelle's case, the superior court determined that
the LAB evaluation was simply a negative job evaluation, which
did not infringe upon a liberty interest because it did not
impugn Revelle's honesty, integrity, or morality. The superior
court was concerned that a contrary finding would put a liberty
interest at stake whenever the Municipality based its dismissal
of an at-will employee upon a negative job evaluation.17 We
agree. Because the LAB's negative job evaluation did not
infringe upon a constitutionally protected liberty interest,
Revelle had no right to a pre-termination hearing.
C. Breach of the Implied Covenant of Good Faith and
Fair Dealing
Revelle further contends that the superior court erred
in granting the Municipality summary judgment on his claim for
breach of the implied covenant of good faith and fair dealing.18
An implied covenant of good faith and fair dealing exists in all
at-will employment contracts. Luedtke v. Nabors Alaska Drilling,
Inc., 834 P.2d 1220, 1223 (Alaska 1992) (Luedtke II); Mitford v.
de Lasala, 666 P.2d 1000, 1006-07 (Alaska 1983).
Although Revelle's amended pleadings refer to all the
defendants as parties to his claim for breach of the implied
covenant, his arguments before the superior court discussed only
Marston and the LAB's bad faith in making the evaluation, and did
not discuss whether Mayor Fink or the Municipality violated the
covenant by going outside normal procedures for evaluating
personnel. Essentially, he tried to attribute the LAB's alleged
bad faith to the Municipality.
The superior court rejected this contention. Granting
summary judgment in the Municipality's favor, the court concluded
that Revelle "claim[ed] no independent breach of the implied
covenant of good faith and fair dealing by the Municipality or
Mayor Fink," and that Marston and the LAB had no contractual
relationship with Revelle. The superior court also concluded
that Revelle's claim was "based exclusively on the violations of
the Open Meetings Act by the LAB."
The superior court stated in full:
Revelle has alleged that the defendants
violated the implied covenant of good faith
and fair dealing. This claim is based
exclusively on the violations of the Open
Meetings Act by the LAB. The LAB, however,
had no contractual relationship with Revelle;
Revelle's contract was with the Municipality
of Anchorage and it is Mayor Fink who
terminated that contract of employment. The
LAB had neither the authority to hire nor
fire the municipal librarian, and, in fact,
it is unclear that the LAB even had the
authority to make a recommendation to Mayor
Fink regarding Mr. Revelle's retention in the
new administration. Because the LAB and
Wilda Marston had no contract with Mr.
Revelle, they cannot be found to have
violated the implied covenant of good faith
and fair dealing. See, e.g., O.K. Lumber v.
Providence Washington Ins., 759 P.2d 523
(Alaska 1988).
Since Revelle claims no independent
breach of the implied covenant of good faith
and fair dealing by the Municipality or Mayor
Fink, there is no factual issue raised in
this regard and the Municipality's request
for summary judgment on this issue is
GRANTED.
On appeal, Revelle advances two new arguments. First,
Revelle asserts that his case is one in which the Municipality
deviated from standard procedures for termination. A failure to
follow established procedures for termination may indicate a
breach of the implied covenant of good faith and fair dealing.
See ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1155 (Alaska
1988). Second, Revelle argues that Mayor Fink's decision was
objectively unreasonable because it relied on the recommendation
of the LAB, a body not authorized to evaluate the Municipal
Librarian. An employer may not only breach the covenant of good
faith and fair dealing through improper motive or intent but may
also commit an objective breach of the covenant, by failing to
act "in a manner which a reasonable person would regard as fair."
Luedtke II, 834 P.2d at 1224.
We decline to address these new theories raised for the
first time in this appeal since they were not advanced before the
superior court. Gates v. City of Tenakee Springs, 822 P.2d 455,
460 (Alaska 1991); Tolstrup v. Miller, 726 P.2d 1304, 1307 n.7
(Alaska 1986). As noted above the superior court disposed of the
entire good faith and fair dealing issue on the ground that the
only argument Revelle made was that the LAB's Open Meetings Act
violation itself constituted a breach of the implied covenant of
good faith and fair dealing. We have concluded that the superior
court correctly rejected this theory on the grounds that Revelle
did not claim any independent breach of the implied covenant of
good faith and fair dealing by the Municipality or Mayor Fink,
and that neither Marston nor the LAB had a contractual
relationship with Revelle.
D. Attorney's Fees
Because we reverse the superior court's application of
the ACCFT balancing test, we remand Revelle's claim for
attorney's fees to the superior court for redetermination in
light of this opinion.
Because Revelle amended his complaint to delete claims
after the Municipality had incurred significant costs preparing
to try them, the Municipality argues on cross-appeal that it
suffered prejudice from the amendment. The Municipality contends
that consequently it should receive an award of costs and
attorney's fees. The superior court made no express findings on
the Municipality's claim of prejudice.19
When a party requests the leave of the court to amend a
pleading, the court is not required to make findings as to
asserted claims of prejudice from the opposing side. See Alaska
Civil Rule 15.20 The sole authority on which the Municipality
relies, Adkins v. International Union of Electrical, Radio &
Machine Workers, 769 F.2d 330 (6th Cir. 1985), upheld an order to
rectify the prejudice the other side suffered due to unnecessary
litigation. Id. at 334. Adkins does not require a court to make
express findings on any issues of prejudice that a party may
raise.
Referring to the originally scheduled trial date of
September 28, the Municipality also contends that Revelle filed
his September 1992 motion to amend his complaint "[j]ust prior to
trial." However, soon after setting the original trial date, the
superior court postponed the start of trial to late November,
pursuant to a stipulation by the parties. Thus, as Revelle
correctly notes, he filed his motion to amend his complaint
roughly 2 1/2 months before the start of trial. Contrary to the
Municipality's contention, Revelle did not amend his complaint on
the eve of trial.
Civil Rule 15(a) gives the superior court broad
discretion to allow amendment of pleadings. Betz v. Chena Hot
Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). Given the
substantial amount of time remaining before trial, we hold that
the superior court did not abuse its discretion either by
granting Revelle leave to amend his complaint or by implicitly
rejecting the Municipality's claim of prejudice and request for
attorney's fees and costs.
V. CONCLUSION
We conclude that the superior court failed to consider
all of the Act's goals in applying the ACCFT balancing test to
determine whether Revelle should be awarded back pay and
benefits. We therefore REVERSE the superior court's denial of
back pay and benefits to Revelle. On remand, the appropriate
remedy is committed to the sound discretion of the superior
court. In assessing the remedial benefits to be gained in light
of the Act's goals, the superior court should consider the goals
of maximizing informed and principled decision-making in
individual cases and deterring future violations, as well as the
goal of encouraging "public participation and input in the
operation of government." The superior court should weigh these
benefits against the prejudice likely to accrue to the public if
Revelle is awarded back pay and benefits. Ordinarily, there must
be a nexus between the violation and the termination. However,
the superior court could conclude that the LAB's conduct was
particularly egregious and that the goal of deterring such
conduct in the future is paramount. In such a case, the superior
court could conclude that, even in the absence of a nexus,
Revelle is entitled to at least his costs and full reasonable
attorney's fees.
We further hold that the superior court correctly
determined that Revelle's initial termination did not infringe
upon his constitutional right to due process. In addition, we
affirm the superior court's grant of summary judgment in the
Municipality's favor on Revelle's claim for breach of the implied
covenant of good faith and fair dealing. We also affirm the
superior court's order allowing Revelle to amend his complaint a
second time, and thus conclude that the Municipality's cross-
appeal lacks merit. We remand Revelle's claim for attorney's
fees for redetermination in light of our holding regarding the
back pay issue.
AFFIRMED in part, REVERSED in part, and REMANDED for
proceedings consistent with this opinion.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Article V, 5.02(a) of the Home Rule Charter for the
Municipality of Anchorage states:
The Mayor shall appoint all heads
of municipal departments, subject to
confirmation by the Assembly, on the basis of
professional qualifications. Persons
appointed by the Mayor serve at the pleasure
of the Mayor.
2 One of the LAB's functions was to "[m]ake
recommendations to the administration and Assembly for the
adoption, change, repeal or alteration of rules, regulations,
restrictions on library services, and all other matters directly
or indirectly affecting the municipal library program." AMC
4.60.040(B). The Municipality cursorily argues that this
provision permitted the LAB to evaluate Revelle's performance.
3 Alaska Statute 44.62.310(a) states in part:
All meetings of a legislative body,
of a board of regents, or of an
administrative body, board, commission,
committee, subcommittee, authority, council,
agency, or other organization, including
subordinate units of the above groups, of the
state or any of its political subdivisions,
including but not limited to municipalities,
boroughs, school boards, and all other
boards, agencies, assemblies, councils,
departments, divisions, bureaus, commissions,
or organizations, advisory or otherwise, of
the state or local government supported in
whole or in part by public money or
authorized to spend public money, are open to
the public except as otherwise provided by
this section.
4 In December 1990, the Municipality sought summary
judgment on the interference with contract claims, as well as on
the emotional distress claims made in the amended complaint. In
September 1991, the Municipality obtained summary judgment on the
emotional distress claims, but not on the tortious interference
claim.
5 The Alaska Legislature recently repealed and reenacted
this section changing the term "void"to "voidable." Ch. 69,
7, SLA 1994. However, only the previous version of the Act is
relevant to this appeal.
6 Revelle characterizes the superior court's action as
applying the same step twice: first in determining whether to
invalidate Mayor Fink's termination, and second in deciding what
type of relief to grant.
7 Alaska Statute 44.62.310(c) states in part:
The following excepted subjects may
be discussed in an executive session:
. . . .
(2) subjects that tend to
prejudice the reputation and character of any
person, provided the person may request a
public discussion . . . .
8 The Municipality argues in part that Revelle's
situation is similar to University of Alaska v. Geistauts, 666
P.2d 424 (Alaska 1983), in which we ordered the reinstatement of
a professor, to whom a university committee had denied tenure at
a meeting held in violation of the Open Meetings Act. In that
case, we upheld the superior court's denial of employee benefits
and retirement service credits pending reconsideration. See id.
at 430-31 & n.12.
Revelle replies that the superior court additionally
upheld an award of monetary damages to the professor, and that
this award was not at issue in Geistauts. The superior court's
final judgment in Geistauts indicates that as to one of the
counts of the professor's action, the parties stipulated to a
damage award of $10,000 and costs and attorney's fees of $5,000.
The judgment does not state whether this award represented back
pay, represented a remedy for Open Meetings Act violations as
opposed to another claim, or affected the superior court's
analysis on the issue of the other benefits. Given its lack of
analysis of the benefits and back pay issue, we conclude that
Geistauts is not dispositive of this back pay issue.
9 We note a recent decision involving similar issues in
which a Texas appellate court upheld an award of back pay and
benefits to an employee who was initially terminated in violation
of the state's open meetings law. Ferris v. Texas Bd. of
Chiropractic Examiners, 808 S.W.2d 514 (Tex. App. 1991). The
employee argued that the Board's termination attempts at
unlawfully held meetings were void as a matter of law, and that
she was therefore entitled to an injunction voiding the
termination, reinstating her to her former position, and awarding
her back pay for the same time period. Id. at 516. The court
rejected the Board's arguments that Ferris' only remedy under the
act was the right to attend a properly convened meeting and held
that Ferris was entitled to an award of back pay and benefits.
Id. at 516, 517, 519. The fact that Ferris was employed on an at-
will basis did not affect the court's reasoning. Id. at 518-19.
10 This in no way changes our prior statement that "open
meetings statutes were not primarily intended as vehicles for
individuals displeased with governmental action to obtain
reversals of substantive decisions." ACCFT, 677 P.2d at 891.
11 The case on which the superior court relied to deny
Revelle back pay, Jarussi v. Board of Trustees of School District
No. 28, 664 P.2d 316 (Mont. 1983), is inapposite. Jarussi does
not address whether an employee may obtain a remedy of back pay
or benefits when a public employer's termination decision
violates an open meetings statute. The employee in Jarussi
sought damages for his wrongful termination claim, not for his
claim as to the violations of the Open Meetings Act. See id. at
318.
Citing Sanna v. Lindenhurst Board of Education, 447
N.Y.S.2d 733 (N.Y. 1982), the Municipality argues that the LAB's
violation of the Open Meetings Act should not be "a wagon to
which Revelle is allowed to hitch his wrongful termination
claims." Sanna is also not on point. In Sanna, a school board
violated New York's open meetings statute when terminating a
probationary teacher's employment. Id. at 734. The court held
that reinstatement constituted an improper judgment on the
merits, and that reinstatement was not a remedy for procedural
defects contemplated under New York's open meetings statute. See
id. at 735-36. In other words, the Sanna court decided whether
to void the termination decision itself, not whether a void
termination decision called for an award of back pay.
Furthermore, the Sanna court recognized the concern
that merely "directing the board to make a redetermination of the
matter at its next meeting . . . would . . . be virtually cost
free and therefore essentially no deterrence at all against
future violations of the open meeting or open vote statutes."
Id. The New York court in fact imposed a cost on the school
board, allowing the dismissed teacher an award of attorney's
fees. Id.
12 Under the United States Constitution, "No state shall
. . . deprive any person of life, liberty, or property, without
due process of law . . . ." U.S. Const. amend. XIV, 1.
The Alaska Constitution provides: "No person shall be
deprived of life, liberty, or property, without due process of
law." Alaska Const. art. I, 7.
13 Whether Revelle has a liberty interest in his
employment for purposes of due process presents an issue of
constitutional interpretation. Issues of constitutional
interpretation are questions of law, which this court reviews de
novo. Carvalho v. Carvalho, 838 P.2d 259, 261 n.4 (Alaska 1992).
14 Revelle contends that he also possessed a
constitutionally protected property interest in his employment,
even though he was employed in an at-will position. At-will
employment does not create a constitutionally protected property
interest. See Board of Regents v. Roth, 408 U.S. 564, 577
(1972); Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska 1981);
see also Bishop v. Wood, 426 U.S. 341, 345-46 & n.8 (1976).
Nonetheless, we have held that a provision in an at-
will employment contract that required 30 days notice of
termination created a property interest in 30 days of employment,
which the employer improperly denied without a pre-termination
hearing. Breeden, 628 P.2d at 926-27. Relying on Breeden,
Revelle argues that the Open Meetings Act gives an at-will
employee a property interest in his or her job, by giving the
employee a right to be present at any meeting where his or her
reputation is at issue, and a right to request that the meeting
be public. See AS 44.62.310(c)(2). This contention is without
merit. Nothing in the Open Meetings Act indicates a legislative
intent to create either an implied contract of employment or an
expectation of continued employment for at-will positions.
15 The superior court held Roth was inapposite to
Revelle's case. In part the superior court reasoned that the
LAB's evaluation "is essentially a negative job evaluation which
does not impugn Revelle's honesty, integrity, or morality," and
that,
[h]ere, the termination, although based
on a negative job evaluation, was
communicated in a letter to Revelle which did
not discuss the reasons and raised no public
stigmatic charges to which Revelle had the
right to respond in order to clear his name.
The public release of the evaluation, after
the termination of Revelle and over the
Municipality's objection, does not create a
liberty interest.
16 Revelle relies in part on Nichols v. Eckert, 504 P.2d
1359 (Alaska 1973), for his claim that his termination infringed
upon a constitutional liberty interest. In Nichols, we held that
"[t]he stigma which attaches to a discharge for incompetence is
sufficiently injurious"to demand the protection of due process.
Id. at 1364 & n.9. However, Nichols involved school teachers
that could only be fired for incompetence under state law; thus
Nichols did not involve parties in an at-will employment
relationship. Id. at 1360-61. This case is, therefore, not
helpful to Revelle's claim.
17 Citing Breeden, 628 P.2d at 926, the superior court
stated:
If this evaluation were held to be the
type of stigmatic charge discussed in Roth,
then the due process liberty interest would
be at stake every time the Municipality
terminated an at-will employee based on job
performance resulting in a negative
employment evaluation. Clearly, this result
would conflict with the law regarding
discharge of an at-will employee.
18 This court reviews grants of summary judgment to
ascertain "whether there are any genuine issues of material fact
and, if not, whether the moving party is entitled to judgment"as
a matter of law. Zeilinger v. Sohio Alaska Petroleum Co., 823
P.2d 653, 656 n.6 (Alaska 1992). This court makes all reasonable
inferences of fact in favor of the non-movant. Id.
19 The superior court stated that it would address "[t]he
issue of who is the prevailing party and attorneys fees"through
a separate motion and determination. Whether the superior court
intended to address the Municipality's prejudice claims at a
future time is unclear. In its arguments before the superior
court on Revelle's motion to amend, the Municipality briefly
argued that the court should grant the Municipality prevailing
party status on the tortious interference claim, and Revelle
responded to that contention. The superior court may well have
been referring to these arguments.
20 Civil Rule 15(a) states in part:
A party may amend his pleading once
as a matter of course at any time before a
responsive pleading is served . . . .
Otherwise a party may amend his pleading only
by leave of court or by written consent of
the adverse party; and leave shall be freely
given when justice so requires.
]]>
