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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jurgens v. City of North Pole (03/02/2007) sp-6107
Notice: This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| G. MARK JURGENS, | ) |
| ) Supreme Court No. S- 11847 | |
| Appellant, | ) |
| v. | ) Superior Court No. 4FA-03-1925 CI |
| ) | |
| CITY OF NORTH POLE, a Home- | ) O P I N I O N |
| Rule Municipality, and its Personnel | ) |
| Review Board, | ) No. 6107 - March 2, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Fairbanks, for Appellant.
Zane D. Wilson, Cook Schuhmann & Groseclose,
Inc., Fairbanks, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The City of North Pole terminated Sergeant Mark Jurgens
from the North Pole Police Department after a pre-termination
review board concluded that he had engaged in conduct amounting
to hostile work environment sexual harassment.1 Jurgens appealed
and the superior court affirmed. We now conclude that
substantial evidence supports the boards decision. For that and
other related reasons, we affirm.
II. FACTS AND PROCEEDINGS
This appeal arises from personnel proceedings initiated
by the City of North Pole against Sergeant Mark Jurgens. The
proceedings culminated in a hearing before a city pre-termination
review board and a decision by the board to terminate Sergeant
Jurgens. Sergeant Jurgens worked for the North Pole Police
Department as a police officer between February 1999 and January
2000 and as a patrol sergeant with supervisory authority over
officers and dispatchers between January 2000 and July 2003. In
June 2003 Tammy Searles-Streeter (Streeter), a dispatcher in the
department, complained to department Chief Lonnie Hatman that
Jurgens had acted inappropriately towards her and other dispatch
personnel. Streeter alleged numerous inappropriate actions,
which Chief Hatman summarized by saying that between November
2002 and June 2003, Jurgens had subjected employee(s) of the
department to sexual harassment by making unwelcome sexual
advances and suggestive and explicit verbalizations of a sexual
nature and that Jurgenss conduct had the effect of unreasonably
interfering with [Streeters] work performance, and created an
intimidating, hostile, and offensive work environment.
The department conducted an internal investigation
regarding Streeters allegations. After interviewing department
personnel, including Jurgens, the department concluded that
Jurgenss conduct amounted to sexual harassment and that his
conduct had created an intimidating, hostile, and offensive work
environment. In addition, the department made the following
written findings:
Sgt. Jurgens [] has made several phone calls
to dispatchers, both while sober and while
under the influence, while they were working
and at home. He has stopped them with his
patrol unit unofficially and without cause
for non work related reasons. He has
verbally compared dispatchers breasts and
body parts during those phone calls and he
told one dispatcher that he wanted to have
sex with her and described how he wanted to
do so. He has intentionally subjected them
to offensive conduct while they were working.
Despite one apology to one dispatcher
acknowledging that his words were
inappropriate he continued to make suggestive
and explicit remarks of a sexual nature to
female employees. He has spoken and taken
actions with more than one dispatcher that
have impaired their ability to work
effectively with him and that has created an
atmosphere of fear and intimidation among
them so that they are afraid to say anything
about his actions for fear of retaliation and
the loss of their jobs. Although a certain
level of joking and innuendo are not uncommon
among employees[,] Sgt. Jurgens[s] words and
actions in this regard are a gross deviation
from the standard of conduct a reasonable
person in his position would believe to be
acceptable. Sgt. Jurgens admits that his
actions in this regard were inappropriate.
Based on these findings, on the citys zero tolerance policy for
sexual harassment, and on the fact that Jurgens had received
sexual harassment training, the department decided to terminate
Jurgens. The department notified Jurgens of his right to appeal
and suspended him without pay until his termination became
effective.
Jurgens requested a pre-termination hearing. On July
28-29, 2003 a three-member review board and a hearing officer
held a hearing at which the city and Jurgens, both represented by
counsel, presented evidence and were allowed to examine and cross-
examine witnesses. In a memorandum decision issued July 30, 2003
the board unanimously concluded that the department had just
cause to terminate Jurgens. The board made no findings, except
to conclude that Jurgens had engaged in conduct clearly amounting
to sexual harassment and that such conduct affected the
complainants work performance and also created an intimidating,
hostile and offensive work environment. The board also concluded
that Jurgenss conduct was a serious offense justifying dismissal.
The board affirmed Jurgenss dismissal.
Jurgens appealed to the superior court and argued that:
the boards conclusion was not supported by substantial evidence;
the board should have used a clear and convincing evidence
standard of proof; the board incorrectly found that just cause
existed for Jurgenss dismissal; and the board erred by not
imposing a lesser discipline than dismissal. The superior
court, in a written memorandum opinion and judgment, rejected all
of Jurgenss arguments and affirmed the boards decision.
Jurgens petitioned the superior court for rehearing.
The superior court denied that petition.
On appeal to this court, Jurgens argues that the boards
findings and conclusions are insufficient to permit meaningful
appellate review and renews the arguments he made in the superior
court.
III. DISCUSSION
A. Standard of Review
When the superior court acts as an intermediate court
of appeals, as it did here, we independently review the
administrative decision.2 We will uphold the boards decision if
it is supported by substantial evidence.3 Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.4 In reviewing the boards
decision we do not weigh evidence, determine witness credibility,
or evaluate competing inferences from testimony.5 We review
questions of law, including the appropriate standard of proof,
using our independent judgment.6
B. Jurgens Failed To Preserve the Argument that the Boards
Findings and Conclusions Are Insufficient To Permit
Meaningful Appellate Review.
Jurgens argues that the boards findings and conclusions
are insufficient to permit meaningful appellate review. He
argues that the board failed to address material disputes,
including whether his conduct was unwelcome and whether it was
sufficiently pervasive to be considered hostile work environment
sexual harassment. He points out that the board did not discuss
whether he could have been rehabilitated and did not address any
of the testimony presented at the hearing, including testimony
favorable to him. And Jurgens notes that, although some of the
testimony regarding sexual harassment conduct was contested, the
board never specified which episodes of conduct it believed
occurred or which amounted to sexual harassment conduct under
North Pole Municipal Code (NPMC) 2.36.291.
These arguments are unavailing here because Jurgens did
not raise them below. Although Jurgens listed the sufficiency of
the findings as an issue in his points on appeal to the superior
court, he did not mention this issue in his superior court
briefs. An issue is considered abandoned in an administrative
appeal to the superior court if the appellant inadequately briefs
the issue.7
Jurgens does not challenge North Poles assertion that
he failed to argue this issue below; instead, he argues that his
failure in the superior court to brief the issue is not fatal
because the inadequacy of the [b]oards findings is manifest. He
correctly notes that in two cases Manthey v. Collier8 and Hewing
v. Alaska Workmens Compensation Board9 we considered the
adequacy of the workers compensation boards findings even though
the appellants had not properly raised the issue. In Manthey, we
stated that we would consider the inadequacy of the boards
findings, even though the issue had not been argued to the
superior court, because we can . . . consider manifest error
appearing on the face of the record.10 In Hewing, we considered
whether the boards findings were adequate, even though the
appellant had not argued the issue on appeal to us, because, as
we explained, the error [was] manifest on the face of the record.11
We have only used this specific reason for considering an
unpreserved issue in one other case White v. Alaska Commercial
Fisheries Entry Commission.12 We there considered whether the
superior court committed reversible error by not remanding a
Commercial Fisheries Entry Commission decision for entry of
adequate findings, even though the appellant had not argued the
issue, because the deficiency [was] manifest on the record before
us.13
In Manthey and Hewing we held that the inadequacy of
the workers compensation boards findings of fact was a manifest
error because the Alaska Administrative Procedure Act required
such findings.14 In White we held that although [a findings]
requirement ha[d] not been imposed categorically in cases
involving applications for limited entry permits, compliance with
[the Administrative Procedure Act] is practically impossible
absent some indication of the basis of the [agencys] action.15 In
all three cases, the agency had made an obvious mistake that the
superior court should have noticed in trying to review the agency
decision.16
The pre-termination review board did not make any such
obvious mistake here. The North Pole ordinance governing the
board does not require the board to make specific findings.17 And
as we explained in Faulk v. Board of Equalization, the question
whether an agencys findings are sufficient to enable meaningful
judicial review is a functional one: do the agencys findings
facilitate this courts review, assist the parties and restrain
the agency within proper bounds?18 The boards findings here met
that standard. The limited findings made it clear that the board
was rejecting Jurgenss version of the facts.19 And even though
the boards findings were relatively conclusory, they were
consistent with Chief Hatmans more extensive findings and
affirmed his termination decision. We can safely assume that the
board accepted Chief Hatmans factual findings.
Because no clear mandate required the board to make any
findings, and because the absence of more elaborate findings does
not prevent meaningful review, the superior court did not commit
reversible error by failing to remand for additional findings.
C. The Boards Findings Are Supported by Substantial
Evidence.
Jurgens argues that the boards findings are not
supported by substantial evidence. He specifically argues that
the totality of the circumstances do not clearly establish that
Jurgenss conduct was unwelcome and offensive to Streeter or that
Jurgenss conduct affected Streeters work performance.20
Under the North Pole Municipal Code, sexual harassment
is defined both by the actual conduct and that conducts effect:
[U]nwelcome sexual advances; requests for
sexual favors; sexual demands; or other
verbal, physical or visual conduct of a
sexual nature will constitute sexual
harassment when:
. . . .
The conduct has the purpose or effect of
unreasonably interfering with an affected
persons work performance, or creating an
intimidating, hostile or offensive work
environment.[21]
The board found that Jurgens engaged in conduct clearly amounting
to sexual harassment and found that such conduct affected the
complainants work performance and created an intimidating,
hostile and offensive work environment.
The evidence presented to the board supports a finding
that Jurgenss conduct was unwelcome and offensive to Streeter.22
For example, Jurgens admitted that, while at work, he
held a plastic pacifier shaped like a penis near Streeters face
and took a photograph. Streeter testified about how this
incident made her feel:
Initially, shocked. Kind of put in my place
and belittled as being a female with other
men in the room. I didnt want to react so
that, you know, they couldnt make fun of
that. However, you know, it made you feel
like, you know, you were like this big.
Streeter testified that Jurgens refused to give her the disk with
the photograph on it and discussed putting the photograph on the
department website or emailing it to her husband. She testified
that she felt cornered and that she didnt find it . . . very
funny.
Streeter testified that when Jurgens was off-duty and
intoxicated, he called Streeter at work and made remarks about
her body. She testified that Jurgens compared her breasts with
those of another dispatcher. Another officer at the department
overheard Jurgens make this comment to Streeter, and Jurgens did
not deny making this remark. Jurgens testified that he could not
remember the incident but admitted he might have made such a
statement while intoxicated. Streeter also testified that during
the same telephone conversation, Jurgens asked her to come over
to his house and told her in graphic terms that he wanted to have
sexual intercourse with her.23 Streeter explained that she tried
to get off the phone with Jurgens:
I was trying to be passive without upsetting
him, because when he does come back to work I
have to work with him, but I was telling him
that, Mark, you know, youve got to go to
sleep, youve got to get up in the morning,
you know, Ive got to go, Ive got to get off
the phone. You know, Mark, youve been
drinking, you really just need to sleep this
off.
Streeter testified that this telephone conversation and other
incidents made her feel [v]ery uncomfortable at work, not wanting
to come into work not wanting to make [Jurgens] mad, [and] not
actually safe.
Streeter and other dispatchers submitted written
statements recounting how Jurgens had on numerous occasions
tried to throw small objects down their shirts. Streeter also
stated in her written statement, and Jurgens admitted, that
Jurgens had wiped his hand on the nozzle of a pepper spray bottle
and then wiped his finger on either side of her neck. And
Streeter testified that on one occasion, Jurgens raised his hand
at her and told her to shut the f___ up.
Terry Nelson, another police department dispatcher,
testified that while she was working, Jurgens called her and told
her that he was lying in bed thinking about her. Nelson
testified that she was shocked by that statement. When
specifically asked if he denied making this statement, Jurgens
responded that he did not dispute making the statement.
This evidence is substantial and it supports a finding
that Streeter and other dispatchers found Jurgenss conduct
unwelcome and offensive and that their perspective was
reasonable. Although Jurgens argues that we should consider
evidence that suggests Streeter flirted with Jurgens and engaged
in sexualized behavior at the office, our task on appellate
review does not include weighing evidence, determining witness
credibility, or evaluating competing inferences from testimony
because those functions are reserved to the [b]oard.24 As we
explained in Lindhag v. State, Department of Natural Resources,
even when conflicting evidence exists, we uphold the [b]oards
decision if substantial evidence supports it.25 Given Streeters
testimony that she felt belittled, uncomfortable, and unsafe, and
given the evidence of Jurgenss sexual advances and other conduct
of a sexual nature, the board did not err when it found that
Jurgenss conduct was unwelcome and that it amounted to hostile
work environment sexual harassment.
We also reject Jurgenss more general argument that the
board applied the municipal code as a general civility code.
Jurgens suggests that his conduct was just [s]imple teasing, off-
hand comments, and isolated incidents. But Jurgens admitted that
two of the individual incidents occurred: he admitted that he
shoved the penis pacifier in Streeters face and photographed it
and that he wiped his finger on the pepper spray bottle and then
on Streeters neck. And Jurgens did not deny that he told
dispatcher Nelson that he was in bed thinking about her or that
he compared Streeters breasts to another dispatchers. The
uncontroverted evidence alone therefore supports a finding that
Jurgenss conduct went beyond simple teasing; it was serious,
pervasive, and unwelcome.
The evidence also supports the boards finding that
Jurgenss conduct affected the complainants work performance.
Streeter testified that Jurgenss conduct made her feel [v]ery
uncomfortable at work, not wanting to come into work, not wanting
to make [Jurgens] mad, [and] not actually safe. Streeter
testified that her safety net had been taken away, that she could
not count on Jurgens as a team member, and that Jurgens
intimidated her. Streeter testified that she was scared to come
forward with allegations against Jurgens because she was afraid
he would retaliate against her and make her job more difficult.
Others in the department also testified that they feared
retaliation from Jurgens. Given Streeters testimony that she
felt unsafe and uncomfortable at work and that she did not want
to go to work, the board did not clearly err when it found that
Jurgenss conduct affected Streeters work performance.
D. The Board Applied the Appropriate Standard of Proof.
Jurgens argues that the board should have been required
to make its findings using a clear and convincing evidence
standard instead of a preponderance of the evidence standard.
North Pole argues that Jurgens waived this argument, and that the
preponderance of the evidence standard is appropriate here.
1. Jurgens properly preserved this issue for appeal.
Jurgens preserved his argument regarding the
appropriate standard of proof. During Jurgenss closing argument
to the board, he argued that in a serious case like this of
termination the standard of proof should be more than just by the
greater weight or majority of the evidence. The city
interrupted, and objected that Jurgenss argument was an improper
statement of the law. Jurgens also submitted to the board an
excerpt from a book entitled The Rights of Law Enforcement
Officers, in which the author states that some courts and
arbitrators have applied a clear and convincing evidence standard
in police officer termination cases. And Jurgens argued the
point in his opening brief to the superior court. Jurgens
therefore preserved this issue for appeal by arguing it to the
board and the superior court.26
2. The preponderance of the evidence standard applies
here. We have previously decided that the preponderance
of the evidence standard of proof applies to public employee
termination proceedings.27 In Romulus v. Anchorage School
District, we considered whether the Anchorage School Board erred
when, in the context of a disciplinary proceeding, it used a
preponderance of the evidence standard to decide whether Romulus,
an ROTC instructor, sexually abused two high school students.28
We held that the board had not erred and that the preponderance
of evidence standard applies to disciplinary proceedings
involving a government employee.29 In so deciding, we relied on
case law from other jurisdictions in which courts had held that
the preponderance of the evidence standard was the correct
standard to use in termination proceedings for teachers, police
officers, and hospital workers.30
Jurgens argues that Romulus is distinguishable because
unlike Romulus, Jurgens will lose his police certificate and his
livelihood. Jurgens also argues that the cases involving police
officers relied upon by Romulus are distinguishable.
Jurgenss arguments are without merit. Like Jurgenss
case, Romulus involved serious allegations of misconduct against
a public employee.31 Like Jurgens, Romulus was terminated.32
Moreover, although Romulus technically may have been able to
pursue another teaching position, it is unlikely that any school
would have hired him after he was fired for sexually abusing two
female students. Thus, like Jurgens, Romulus faced loss of his
ability to continue his chosen profession.
Jurgens also argues that some of the cases we relied
upon in Romulus are distinguishable from his case. In Romulus,
we relied in part on Clark v. Board of Fire & Police
Commissioners of Bradley, in which the Illinois Court of Appeals
held that a preponderance of the evidence standard adequately
protected a police officers professional interests in a
termination proceeding, in part because the discharged police
officer was not barred from obtaining employment with another
police force.33 We also relied on Meyers v. Montgomery County
Police Department.34 In that case, the Maryland Court of Special
Appeals approved the use of a preponderance of the evidence
standard, in part because the reprimanded officer had not shown
that he possessed a protected property right in his continued
employment.35 Jurgens is correct that those cases are not
factually identical to his, but that does not mean that Romulus
itself is distinguishable. And Jurgens does not persuade us that
Romulus should somehow be limited or narrowed to the facts in
Clark or Meyers. Jurgenss argument regarding Clark is of limited
value because, as mentioned, Romulus itself involved a situation
in which the terminated employee would have great difficulty
obtaining another teaching position. And Jurgenss argument
regarding Meyers is not persuasive because in a subsequent case,
the Maryland Court of Appeals expanded the Meyers holding.36 In
Coleman v. Anne Arundel County Police Department, the high court
of Maryland held that the preponderance of the evidence standard
was the correct evidentiary standard for law enforcement
disciplinary proceedings, even assuming the terminated employee
had a protected property or liberty interest in his continued
employment.37
Coleman is instructive here. In that case, the
Maryland Court of Appeals considered whether an administrative
hearing board was required to apply a clear and convincing
evidence standard of proof to theft-related charges against a
police officer. In a lengthy analysis, the court first
considered whether Maryland case law required the heightened
standard.38 The court overruled an earlier case in which it had,
on common law grounds, required the Maryland Public Service
Commission to use a clear and convincing evidence standard when
adjudicating charges of fraud against a customer.39 The Coleman
court explained that the preponderance of the evidence standard
was the appropriate disciplinary proceeding standard for law
enforcement officers, even when allegations of criminal
misconduct were made, because [t]his standard makes for more
efficient and understandable [police disciplinary] proceedings
and provides for uniformity in law enforcement disciplinary
matters.40
The Coleman court then considered Colemans argument
that applying a preponderance of the evidence standard was
unconstitutional under the due process clauses of the federal and
Maryland constitutions.41 Applying the three-part Mathews v.
Eldridge test,42 the court assumed that the terminated officer had
demonstrated a cognizable property or liberty interest in his
continued employment, but held that the government had at least
as strong an interest in the internal discipline of the police
department.43 The court noted that the officer was afforded a
panoply of procedural rights including notice, a hearing, the
right to present evidence and argument, and the right to cross-
examine witnesses.44 And the court noted that a higher
evidentiary standard would not likely reduce the risk of
erroneous fact-finding: Candor requires that we acknowledge the
difficulty a lay panel may encounter in perceiving the subtle
distinctions and nuances between these two abstract standards
when called upon to apply it.45 The court concluded that the
preponderance of the evidence standard strikes the appropriate
balance between protecting the private interests of an officer
accused of misconduct and a law enforcement agencys interest in
maintaining internal discipline.46 We agree with the
Coleman court and hold that using the preponderance of the
evidence standard in public employee disciplinary proceedings
satisfies the due process clauses of the Fourteenth Amendment and
article I, section 7 of the Alaska Constitution. We too have
adopted the Mathews v. Eldridge three-part balancing test to
determine whether administrative proceedings satisfy due process.47
This test takes into account the following:
[f]irst, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
[probable] value, if any, of additional or
substitute procedural safeguards; and
finally, the Governments interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.[48]
Applying the Mathews v. Eldridge test here, we agree
with Jurgens that, because he can only be terminated for just
cause,49 he has a protected property interest in his employment.50
But we do not agree that he has a protected liberty interest
based on the stigmatizing effect of a dismissal for sexual
harassment. As we explained in DeNuptiis v. Unocal Corp., a
workers reputational interest is not so fundamental that it must
be protected by a heightened standard.51 That said, the potential
stigmatizing effect of a dismissal for sexual harassment and the
fact that the dismissal will preclude Jurgens from obtaining
other law enforcement positions in Alaska, and probably other
states as well, strengthens Jurgenss interest.
The government also has a strong interest in cases of
police disciplinary proceedings. As Jurgens concedes, North Pole
has an interest in eliminating sexual harassment from the
workplace and in disciplining employees who engage in sexual
harassment.52 And as North Pole argues, it also has an interest
in protecting the public at large from employees who engage in
sexual misconduct. Although we assume here that North Pole would
not incur any greater fiscal or administrative burdens if
required to apply a heightened standard, we agree with the
Coleman court that we must weigh heavily in [North Poles favor
North Poles] interest in the internal discipline of the police
department.53
In terms of the second Mathews factor, Jurgens suggests
that North Pole should have analyzed or considered the value of a
clear and convincing evidence standard. But Jurgens does not
explain how he is at risk of an erroneous deprivation of his
private interests or how a clear and convincing standard would
limit that risk. We assume that a higher standard of proof would
reduce the risk of wrongful discipline.54 But due process does
not require a higher standard here. Although Jurgens has a
strong interest in his position as a police officer, the
government has an equally strong interest in eliminating sexual
harassment from the workplace and in protecting the public from
officers who violate the law. The preponderance of the evidence
standard is the appropriate standard when the possible harm to
each party is roughly equal.55
We conclude that under Romulus, the board did not err
when it applied the preponderance of the evidence standard of
proof. And like the Coleman court, we conclude that North Poles
current procedural safeguards, including its use of the
preponderance of the evidence standard, are adequate to protect
officers from erroneous deprivation of their protected interests
in their employment as well as their reputational and financial
interests.56 Because due process is satisfied by use of the
preponderance of the evidence standard, Jurgens is not entitled
to a heightened proof standard.57
E. The Board Did Not Err by Finding Just Cause To
Terminate Jurgens.
Jurgens argues that the board erred by failing to use
the test outlined in the Enterprise Wire Co.58 arbitration to
determine whether just cause supported Jurgenss termination.
Enterprise Wire announced a seven-part test for determining
whether there is just cause to support a termination.59 North
Pole argues that Jurgens waived this argument by not presenting
it to the board.
1. Jurgens did not preserve this issue for appeal.
Jurgens did not argue at the pre-termination hearing
that the board should use the Enterprise Wire test to determine
whether just cause supported his termination. In fact, Jurgens
argued a different and more nuanced just-cause test in his
closing statement to the board. Jurgens is incorrect in his
assertion that he preserved the issue by presenting it to the
superior court. Jurgens waived the argument that the board
needed to use the Enterprise Wire test by not presenting it at
the administrative level.60
2. North Pole had just cause to terminate Jurgens.
The North Pole Municipal Code states that officers may
only be dismissed for just cause.61 North Pole Municipal Code
2.36.310(A) provides that [d]isciplinary action shall range from
verbal admonishment, letter of reprimand, suspension from duty
without pay, to dismissal for just cause, all to be administered
according to accepted principles of proper management. (Emphasis
added.) North Pole Municipal Code 2.36.321(F)(4) requires the
pre-termination review board to determine whether there is just
cause to dismiss the employee. The ordinance does not define
just cause. Jurgens argues that the ordinance must be read with
standard statutory analysis principles in mind, and that the
ordinance therefore requires that the department have objective
just cause to terminate an officer.
Absent statutory or contractual guidance to the
contrary, we apply a just cause test that takes into account both
the subjective and objective belief of the employer.62 In Braun
v. Alaska Commercial Fishing & Agriculture Bank, we adopted the
Washington Supreme Courts approach for determining whether just
cause supports a termination:
[A] discharge for just cause is one which is
not for any arbitrary, capricious, or illegal
reason and which is one based on facts (1)
supported by substantial evidence and (2)
reasonably believed by the employer to be
true.[63]
Jurgens argues that Braun is not applicable here; the crux of his
argument is that Braun should not be applied because it
emphasizes an employers good faith subjective belief, not
objective standards.64
Jurgens misreads Braun. As mentioned, the Braun
approach is both subjective and objective. In Cassel v. State,
Department of Administration, we explained that [the Braun
approach] checks the subjective good faith of the employer with
an objective reasonable belief standard.65 We will thus uphold a
good faith termination upon substantial evidence of an objective
failure to meet acceptable standards. 66
We agree with Jurgens that the North Pole ordinance
requires an objective basis for terminating an officer,67 but
conclude that the Braun approach satisfies that requirement.68 We
therefore consider whether the board had just cause under Braun
to affirm Jurgenss termination.
Jurgens argues that the board overlooked Chief Hatmans
bad faith investigation. Jurgens argues that Chief Hatman did
not want to hear Jurgens side of the story. But whether Chief
Hatman investigated Jurgenss side of the story has little import
here because Jurgens participated in a hearing before the board
during which he could have told his side of the story by
presenting testimony and evidence and cross-examining adverse
witnesses.69
Jurgens also suggests that Chief Hatmans investigation
was not conducted fairly and objectively because Chief Hatman was
simultaneously a prosecutor, a judge, and a witness against
Jurgens. Jurgenss briefing regarding this issue is cursory: he
mentions the issue in only one sentence and provides no
supporting citation to any legal authority, much less any
authority reversing a termination following a full hearing before
an administrative hearing panel. We assume from his limited
briefing that Jurgens is arguing that Chief Hatmans role as
prosecutor, judge, and witness prohibits a finding of just cause
termination under Enterprise Wire,70 and was, more generally, a
violation of due process. But Jurgens has not demonstrated any
colorable basis for suspecting that Chief Hatman engaged in a
biased investigation and termination process. Even if we were to
assume that the board gave some deference to Chief Hatmans
findings and decision to terminate Jurgens, Jurgenss opportunity
to be heard, to present evidence and challenge adverse evidence
at the hearing conducted by the three-person board, and to file
an administrative appeal in the superior court, eliminates any
due process concerns. Given the board hearing and the
administrative appeal, we are unconvinced by Jurgenss cursory and
unsupported argument that Chief Hatmans involvement undermined
the impartiality of the boards decision.
In rendering its decision, the board recognized that it
needed to make a just-cause determination and then stated: [I]t
is the unanimous opinion of the Review Board based on the
testimony and evidence presented during the hearing, the City of
North Pole Municipal Code, and considering also Sergeant Jurgenss
role as a supervisor, that the sexual harassment constituted a
serious offense justifying dismissal. Given the evidence
presented at the hearing, the boards finding of just cause meets
the Braun test. North Pole had legitimate reasons to dismiss
Jurgens, including allegations of sexual harassment supported by
substantial evidence at the hearing, much of which was
uncontroverted.71 And it was reasonable, after North Pole
presented uncontroverted evidence of sexual harassment conduct
and the effect of such conduct on employees in the department,
for the board to believe the evidence against Jurgens, to
consider the citys allegations proved, and to affirm Jurgenss
dismissal.72
F. The Board Did Not Err in Affirming Jurgenss
Termination.
Consistent with NPMC 2.36.321(F)(4), the board
considered whether to affirm the dismissal, impose a lesser
disciplinary action, or prohibit the imposition of discipline.
The board concluded that Jurgenss conduct justified dismissal.
Jurgens argues that North Pole could legally dismiss Sgt. Jurgens
for cause only if it also considered and concluded Sgt. Jurgens
could not be rehabilitated and only if such a conclusion were
supported by substantial evidence. Jurgens argues that by
failing to do so, the city breached the implied covenant of good
faith and fair dealing.73 Jurgens argues that the North Pole
police operations manual forms part of Jurgenss employment
contract and that read together, the municipal ordinance and the
manual create a system of discipline . . . to rehabilitate
employees that includes an opportunity to modify behavior, once
the employee has been place[d] . . . on notice that conduct is
unacceptable. 74 North Pole does not dispute that the police
operations manual formed part of Jurgenss employment contract, or
that the ordinance and manual require the city to consider
rehabilitation and an opportunity to modify behavior. But North
Pole argues that Jurgenss conduct was egregious and demanded
immediate termination, and that Jurgens did not present any
evidence indicating that he was a good candidate for
rehabilitation.
Our review is limited to determining whether
substantial evidence supports the boards decision that Jurgens
could not be rehabilitated and that no lesser sanction was
appropriate.75
The boards conclusion that Jurgenss sexual harassment
conduct constituted a serious offense justifying dismissal was
supported by substantial evidence. As we explained in Part
III.C, North Pole presented substantial evidence to support a
finding that Jurgenss conduct was serious, pervasive, and
offensive. Although Jurgens presented some evidence that he was
remorseful about his conduct, he qualified many of his remorseful
statements. For example, in reference to the pacifier incident,
Jurgens stated, if I could take that back, I would take that
back, but we were all laughing about it and having a good time.
Jurgens also testified that he thought his dismissal was an
unduly severe punishment because it was never offensive.
[Streeter] never told me it was offensive. And Jurgens testified
that although he had at times acted inappropriately, some of the
things that were brought up, some of the things are -- some
people do have some axes to grind with me. Jurgens has also
suggested that Streeter incited or solicited Jurgenss conduct.
And he has suggested that Streeter made the complaint against him
in retaliation for concerns he raised about her.
Chief Hatman testified that dismissal was the only
appropriate sanction:
Looking at the action that was taken and the
environment that was created, I didnt feel
that I had any remedy other than termination.
. . . I cant transfer him, I cant demote
him, I cant do anything else with him that
would remove that environment that was
created. There was nothing else I could do
to remedy the environment that had been
created, other than removing him from it,
period.
Jurgens tries to draw a distinction between the conduct
that the board found he engaged in and major sexual harassment
(i.e., quid pro quo sexual harassment or conduct of a physical
nature). He also contrasts his behavior with criminal behavior
for which dismissal is an automatic sanction.76 But the ordinance
itself does not make these distinctions. The boards chosen
sanction was within the range of available sanctions for sexual
harassment. North Pole Municipal Code 2.36.291(C) provides:
Sexual harassment is a form of misconduct which constitutes a
serious offense and subjects offenders to disciplinary action, up
to and including discharge. (Emphasis added.) Given the
uncontradicted evidence of sexual harassment behavior, Chief
Hatmans testimony that no lesser sanction was available, and
Jurgenss testimony that suggests he did not take full
responsibility for his conduct, substantial evidence supported
the boards decision to affirm Jurgenss dismissal and reject
lesser rehabilitation-oriented sanctions.
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts
decision that affirmed the boards decision.
_______________________________
1 Blacks Law Dictionary defines hostile-environment
sexual harassment as [s]exual harassment in which a work
environment is created where an employee is subject to unwelcome
verbal or physical sexual behavior that is either severe or
pervasive. Blacks Law Dictionary 1407 (8th ed. 2004).
2 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946
(Alaska 2006); Faulk v. Bd. of Equalization, 934 P.2d 750, 751
n.2 (Alaska 1997).
3 Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
952 (Alaska 2005); Fields v. Kodiak City Council, 628 P.2d 927,
932 (Alaska 1981) (The duty of this court, and that of the
superior court below, is to determine whether [substantial]
evidence supports the boards conclusions.).
4 Municipality of Anchorage v. Devon, 124 P.3d 424, 42829
(Alaska 2005) (quoting Cowen v. Wal-Mart, 93 P.3d 420, 424
(Alaska 2004)).
5 Id. at 429; Lindhag, 123 P.3d at 952.
6 See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 615
n.3, 61819 (Alaska 1996).
7 Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934
(Alaska 1995).
8 Manthey v. Collier, 367 P.2d 884 (Alaska 1962).
9 Hewing v. Alaska Workmens Comp. Bd., 512 P.2d 896
(Alaska 1973).
10 Manthey, 367 P.2d at 889.
11 Hewing, 512 P.2d at 898 n.4.
12 White v. Alaska Commercial Fisheries Entry Commn, 678
P.2d 1319 (Alaska 1984).
13 Id. at 1322.
14 Hewing, 512 P.2d at 898; Manthey, 367 P.2d at 889.
15 White, 678 P.2d at 1322 n.9.
16 The manifest error standard is therefore similar to our
plain error standard under which we will only review claims not
raised below where an obvious mistake has been made which creates
a high likelihood that injustice has resulted. See Alden H. v.
State, Office of Childrens Servs., 108 P.3d 224, 22728 (Alaska
2005) (quoting D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001)
(quoting Broeckel v. State, Dept of Corr., 941 P.2d 893, 897
(Alaska 1997))); Miller v. Sears, 636 P.2d 1183, 1189 (Alaska
1981).
17 See North Pole Municipal Code (NPMC) 2.36.321.
18 Faulk v. Bd. of Equalization, 934 P.2d 750, 751 (Alaska
1997) (quoting South Anchorage Concerned Coal., Inc. v. Coffey,
862 P.2d 168, 175 (Alaska 1993)); see also Alvarez v. Ketchikan
Gateway Borough, 28 P.3d 935, 94041 & nn.1819 (Alaska 2001)
(reviewing sufficiency of findings cases). By comparison, we
observed in White that the CFEC itself noted . . . one cannot
tell whether the Commission ruled adversely to White on the
factual issue, or whether its ruling was on legal grounds.
White, 678 P.2d at 1322. It is impossible to ascertain whether
the CFEC rejected Whites claim that he was not involved in the
day-to-day operation of the plumbing business or whether it
concluded as a matter of law that income from a sole
proprietorship should necessarily be deemed nonfishing
occupational income within the meaning of the regulation. Id.
(footnote omitted).
19 The board stated in its decision that Jurgens had
engaged in conduct clearly amounting to sexual harassment and
that such conduct affected the complainants work performance and
also created an intimidating, hostile and offensive work
environment. The board also stated that Jurgenss conduct was a
serious offense justifying dismissal.
20 Jurgens more generally argues that the board
erroneously applied the code as a general civility code, which we
interpret as an argument that Jurgenss conduct was not severe,
unwelcome, or offensive enough to be hostile work environment
sexual harassment. But Jurgens does not argue that the evidence
does not support the boards findings about his specific conduct.
21 NPMC 2.36.291(A).
22 North Pole does not contest Jurgenss assertion that
conduct constitutes sexual harassment only if it is unwelcome. We
therefore do not need to decide whether Jurgenss assertion is
correct; we assume for the purposes of this appeal that the code
requires a finding of unwelcomeness, regardless of the type of
conduct in which Jurgens engaged.
23 Jurgens denied making such a statement, although he
admitted that because of his drinking that night he could not
remember exactly what he had said to Streeter.
24 Lindhag, 123 P.3d at 952 (quoting Robinson v.
Municipality of Anchorage, 69 P.3d 489, 493 (Alaska 2003)).
25 Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
952 (Alaska 2005) (quoting Bradbury v. Chugach Elec. Assn, 71
P.3d 901, 905 (Alaska 2003)).
26 Cf. Wagner v. Stuckagain Heights, 926 P.2d 456, 459
(Alaska 1996) (holding that appellant waived argument by failing
to raise argument before workers compensation board and failing
to list or brief issue in administrative appeal to superior
court).
27 See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 619
(Alaska 1996).
28 Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 618
(Alaska 1996).
29 Id. at 619.
30 Id. at 61819.
31 See id. at 61213.
32 See id. at 614.
33 See Clark v. Bd. of Fire & Police Commrs of Bradley,
613 N.E.2d 826, 830 (Ill. App. 1993), cited in Romulus, 910 P.2d
at 618.
34 Meyers v. Montgomery County Police Dept, 626 A.2d 1010,
1026 (Md. App. 1993), cited in Romulus, 910 P.2d at 618.
35 Id. at 1026.
36 See Coleman v. Anne Arundel County Police Dept, 797
A.2d 770, 78487 (Md. 2002).
37 Coleman v. Anne Arundel County Police Dept, 797 A.2d
770, 789 (Md. 2002).
38 Id. at 77990.
39 Id. at 790 (overruling Everett v. Balt. Gas & Elec.
Co., 513 A.2d 882, 889-91 (Md. 1986)).
40 Id. at 789.
41 Id. at 790.
42 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
43 Coleman, 797 A.2d at 795.
44 Id. at 79394.
45 Id. at 794.
46 Id. at 795.
47 Brandal v. State, Commercial Fisheries Entry Commn, 128
P.3d 732, 738 (Alaska 2006).
48 Mathews, 424 U.S. at 335; Brandal, 128 P.3d at 738
(quoting State, Dept of Health & Soc. Servs. v. Valley Hosp.
Assn, Inc., 116 P.3d 580, 583 (Alaska 2005)). Brandal and Valley
Hospital Assn inadvertently misquote Mathews v. Eldridge,
substituting the word probative for probable. See Brandal, 128
P.3d at 738; Valley Hosp. Assn, 116 P.3d at 583.
49 See NPMC 2.36.310(A), .321(F)(4).
50 See Cassel v. State, Dept of Admin., 14 P.3d 278, 286
(Alaska 2000) (noting that public employees terminable only for
cause under collective bargaining agreement have a sufficient
property interest in continued employment to warrant due process
protection prior to termination (quoting Storrs v. Municipality
of Anchorage, 721 P.2d 1146, 1148 (Alaska 1986))); see also
Gilbert v. Homar, 520 U.S. 924, 92829 (1997) ([W]e have
previously held that public employees who can be discharged only
for cause have a constitutionally protected property interest in
their tenure and cannot be fired without due process.). Jurgens
also asserts that he was only a few months away from vesting in
the public employees retirement system.
51 DeNuptiis v. Unocal Corp., 63 P.3d 272, 280 n.26
(Alaska 2003); see also Paul v. Davis, 424 U.S. 693, 70102 (1976)
(holding that reputation alone does not implicate any liberty or
property interests sufficient to trigger procedural protections
of Fourteenth Amendment).
52 We therefore reject Jurgenss argument that North Pole
does not have a governmental interest in dismissing every full-
time employee accused of, and engaging in, arguable sexual
harassment involving neither physical touching nor quid pro quo
sexual harassment. (Emphasis in original.) We also reject
Jurgenss argument that North Poles interest is somehow lessened
by the fact that it has a progressive disciplinary policy.
See NPMC 2.36.310(B). And we reject Jurgenss argument that North
Pole has a countervailing interest in retaining a valuable
employee like Jurgens.
53 Coleman, 797 A.2d at 795 (quoting Meyers v. Montgomery
County Police Dept, 626 A.2d 1010, 1028 (Md. App. 1993)).
54 See In re Walton, 676 P.2d 1078, 1090 (Alaska 1983)
(Rabinowitz, J., dissenting) (If [the accused] is indeed innocent
of the allegations made against him, the risk of wrongful
discipline would be significantly reduced by using the clear and
convincing evidence standard.).
55 Walton, 676 P.2d at 1085 (holding that [b]ecause there
are substantial interest[s] on both sides, the risk of error
should be borne equally. That is accomplished by use of the
preponderance of the evidence standard.).
56 Coleman, 797 A.2d at 795. The risk of error should
already be low because the pre-termination hearing incorporated
many procedural safeguards including notice, representation by
counsel, the right to present evidence and testimony, and the
right to cross-examine witnesses. See NPMC 2.36.321 (F)(3); see
also In re Walton, 676 P.2d at 1085 n.9 (noting that risk of
error in bar disciplinary proceedings should be low because
extensive procedural protections . . . surround bar disciplinary
proceedings).
57 Although it does not apply in this case, the Alaska
Executive Branch Ethics Act, AS 39.52, is instructive. The act
requires public officials in the executive branch to adhere to
its ethical standards, AS 39.52.110, and allows the personnel
board to recommend a variety of penalties, including dismissal,
if it finds after conducting a hearing that a public official has
violated the act. AS 39.52.370, .410. Under the act, the
preponderance of the evidence standard applies at the hearing. AS
39.52.360(c).
58 Enter. Wire Co., 46 Lab. Arb. Rep. (BNA) 356, 35962
(1966) (Daugherty, Arb.).
59 See Alaska State Employees Assn/AFSCME Local 52,
AFL-CIO v. State, 74 P.3d 881, 886 n.19 (Alaska 2003) (quoting
test from Enterprise Wire).
60 See Bd. of Trade, Inc. v. State, Dept of Labor, Wage &
Hour Admin., 968 P.2d 86, 93 (Alaska 1998) (holding that we
consider issues not raised at administrative level waived); see
also Alaska State Employees Assn, 74 P.3d at 886 (refusing to
apply Enterprise Wire test on appeal because appellant failed to
raise issue below).
61 NPMC 2.36.310(A), .321(F)(4).
62 Cassel v. State, Dept of Admin., 14 P.3d 278, 284
(Alaska 2000).
63 Braun v. Alaska Commercial Fishing & Agric. Bank, 816
P.2d 140, 142 (Alaska 1991) (quoting Baldwin v. Sisters of
Providence in Wash., Inc., 769 P.2d 298, 304 (Wash. 1989)); see
also Cassel, 14 P.3d at 284 (applying Braun test); Manning v.
Alaska R.R. Corp., 853 P.2d 1120, 1125 (Alaska 1993) (applying
Braun test).
64 Jurgens also argues that Braun does not apply here
because Braun followed a Washington case involving private
employment, and Washington [courts] would probably not apply
[that] just cause test to undefined just cause terms under [a]
municipal ordinance. We do not need to consider here how the
Washington Supreme Court would apply its own jurisprudence
because Braun prescribes an objective just cause standard the
standard Jurgens requests.
65 Cassel, 14 P.3d at 284 (quoting Univ. of Alaska v.
Tovsen, 835 P.2d 445, 447 (Alaska 1992)).
66 Id. at 284 (quoting Baldwin, 769 P.2d at 304).
67 See NPMC 2.36.010(A) (stating that purpose of chapter
is to establish and operate a system of personnel administration
based upon equitable merit principles and professional methods
governing . . . removal, [and] discipline . . . of employees),
.310(A) (requiring system of uniform and equitable administration
of discipline), .310(B) (requiring that discipline [] be
administered in increasingly progressive severity), .321(F)
(allowing board to impose lesser disciplinary action); Tovsen,
835 P.2d at 447 (holding that words found, evaluated, and
unsatisfactory in personnel regulation required an objective just
cause termination).
68 See Braun, 816 P.2d at 142.
69 See NPMC 2.36.321(F)(3).
70 See Enter. Wire, 46 Lab. Arb. Rep. at 362 (Was the
employers investigation conducted fairly and objectively?).
71 See Braun, 816 P.2d at 142.
72 See id.
73 See Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d
1050, 1056 (Alaska 1986).
74 See NPMC 2.36.310(B) (For all but major breaches of
work rules, discipline should be administered in increasingly
progressive severity; and be appropriate for the offense or
incident. The city subscribes to the accepted management
principle that the purpose of a system of discipline is to
rehabilitate employees.); North Pole Police Operations Manual
(The purpose of progressive discipline is to place a person on
notice that conduct is unacceptable and to give the person an
opportunity to modify behavior.).
75 Although the board did not explicitly reject a
rehabilitation-oriented sanction, that decision is implicit in
its conclusion.
76 See NPMC 2.36.270(D), .300(B).
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