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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brown v. City of Kenai, Personnel Board (6/20/2014) sp-6916
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL BROWN, )
) Supreme Court No. S-15160
Appellant, )
) Superior Court No. 3KN-11-01052 CI
v. )
) O P I N I O N
PERSONNEL BOARD FOR THE )
CITY OF KENAI, ) No. 6916 - June 20, 2014
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Carl Bauman, Judge.
Appearances: Kevin T. Fitzgerald, Ingaldson Fitzgerald,
P.C., Anchorage, for Appellant. Joseph N. Levesque and
Shane E. Levesque, Levesque Law Group, LLC, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Stowers, and Bolger, Justices.
[Winfree, and Maassen, Justices, not participating.]
BOLGER, Justice.
I. INTRODUCTION
Daniel Brown was a City of Kenai employee who was accused of sexual
harassment of female employees at the Kenai Recreation Center. But after a termination
hearing, the Personnel Board of the City of Kenai (the Board) stated that the basis for
Brown's termination was not sexual harassment but rather misconduct. Brown now
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argues that the Board violated his right to due process by terminating him for misconduct
without finding that he had committed the underlying acts of sexual harassment. He also
argues that his termination violated the covenant of good faith and fair dealing. We
conclude that the Board had an adequate basis for its decision and that Brown's
termination did not violate the implied covenant of good faith or his right to due process.
II. FACTS AND PROCEEDINGS
Daniel Brown was employed as a building maintenance technician with the
City of Kenai Public Works Department from October 2009 until April 2011. Among
other duties, Brown was responsible for providing maintenance services to the Kenai
Recreation Center. During the time of Brown's employment with the city, the Boys &
Girls Club managed the recreation center. Brown often came in contact with the Boys
& Girls Club employees who worked at the recreation center because a significant
portion of his job responsibilities entailed maintenance at that facility.
Some of the Boys & Girls Club employees Brown regularly dealt with were
young women. In early 2011, the Kenai City Attorney conducted an investigation of
Brown's alleged sexual harassment of three such Boys & Girls Club employees. The
city attorney concluded that Brown had engaged in conduct that "violated the City's
1
although she noted that the policy did not expressly
policy against sexual harassment,"
1 The policy is included in the City of Kenai Employee Handbook, which
states, in part:
One form of harassment is sexual harassment. It is the policy
of the City of Kenai to provide an environment free from
unwelcome sexual advances, requests for sexual favors and
other verbal or physical conduct or communication
constituting sexual harassment. The purpose of this policy
statement is to establish clearly and unequivocally that the
City prohibits sexual harassment by and of its employees and
(continued...)
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state whether it applied to behavior toward complainants, such as the Boys & Girls Club
workers, who were not employed by the city.
The city manager sent Brown a letter stating that Brown had violated the
city's sexual harassment policy, that his actions constituted misconduct under the
municipal code provision listing grounds for disciplining a city employee,2 and that
because of his actions Brown could not perform the duties of his employment (which
3
was also a ground for dismissal). A pre-termination hearing was held in April 2011.
The city manager considered the evidence presented at the hearing and in
the city attorney's investigative report and concluded in his final decision that: (1)
Brown's actions constituted sexual harassment under city policy as well as misconduct
1(...continued)
to set forth procedures by which allegations of sexual
harassment may be filed, investigated and adjudicated.
Sexual harassment is misconduct . . . .
. . . .
It shall be a violation of City policy to harass another
employee sexually or to permit the sexual harassment of an
employee.
2
See Kenai Municipal Code (KMC) 23.35.020(b) (2013). Subsection (9)
lists "[m]isconduct" as one ground for discipline and subsection (13) lists "[i]nability to
perform the assigned job" as another.
3 The city manager stated his intent
to terminate [Brown's] employment with the City for
misconduct and for inability to perform the assigned job
which is appropriate under the City's Code and employment
policies. KMC 23.35.020(b)(9), (13). Because [Brown has]
violated the City's policies against harassment, [he has]
engaged in misconduct. Because [he] cannot work at the
Recreation Center, [he] cannot perform required job duties.
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4
in violation of Kenai Municipal Code (KMC) 23.35.020(b)(9); (2) because of his
conduct, the city could not allow him to continue working at the recreation center, so he
was unable to perform his job duties - in violation of KMC 23.35.020(b)(13); and (3)
progressive discipline was not appropriate given the severity and ongoing nature of
Brown's conduct.
Brown appealed his termination to the Personnel Board for the City of
Kenai, which held hearings in June and July 2011. The Board found the city manager's
conclusions - that Brown had engaged in misconduct and that he would be unable to
perform his job duties - were reasonable and it upheld Brown's termination on those
two grounds. The Board also stated that "[a]lthough there were allegations of sexual
harassment by Mr. Brown . . . Mr. Brown was not terminated for sexual harassment but
rather because his actions rose to the level of misconduct and he was unable to work in
a city building which comprised approximately 15% of his total workload."
Brown appealed the Board's decision to the superior court, which affirmed
the Board's decision. Brown now appeals to this court.
III. STANDARD OF REVIEW
"In administrative appeals, we directly review the agency action in
5 6
question." "We review questions of fact under the 'substantial evidence' test."
4 The city manager acknowledged the city attorney's concerns regarding
application of the sexual harassment policy to Brown, given the fact that the
complainants were not employed by the City. He concluded the policy applied because
it "appears to prohibit not only sexual harassment of [City] employees, it prohibits sexual
harassment by [City] employees." The city manager further concluded that the policy
was applicable because "during the hearing Mr. Brown noted the issue of the
complainants not being City employees, but did not object to the application of the City's
sexual harassment policy in this incident."
5 Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013) (quoting
(continued...)
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"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as
7 "We need only determine whether such evidence
adequate to support a conclusion.' "
8 "Questions of due process
exists, and do not choose between competing inferences."
present constitutional issues that we review de novo."9
We interpret ambiguous court orders "to 'render them reasonable, effective,
10 We will apply that
conclusive and in harmony with the facts and law of the case.' "
standard to the Personnel Board's decision in this case.
"Construction of employment contracts, including questions concerning the
implied covenant of good faith and fair dealing when the material facts are not disputed,
are reviewed de novo."11
5(...continued)
Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1167
(Alaska 2002)).
6 Id. (citing Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 (Alaska
1992)).
7 Id. (quoting Handley , 838 P.2d at 1233).
8 Id. (quoting Handley , 838 P.2d at 1233).
9 Id. (citing James v. State, Dep't of Corr. , 260 P.3d 1046, 1050 (Alaska
2011)).
10 See Dimeff v. Estate of Cowan, 300 P.3d 1, 13 (Alaska 2013) (quoting
Pennington v. Emp'r's Liab. Assurance Corp. , 520 P.2d 96, 97 (Alaska 1974)).
11 Grimmett, 303 P.3d at 487 (citing Luedtke v. Nabors Alaska Drilling, Inc. ,
834 P.2d 1220, 1223 (Alaska 1992)).
-5- 6916
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IV. DISCUSSION
A. Brown's Due Process Rights Were Not Violated.
Brown asserts that he was a public employee who could only be terminated
for cause and, therefore, he had a property interest in his continued employment.12 He
argues that he was deprived of that interest without cause in violation of his right to due
process.
The main issue in this appeal stems from the Board's statement that "Brown
was not terminated for sexual harassment but rather because his actions rose to the level
of misconduct." Brown argues that there was no basis for his termination because this
language indicated the Board rejected the city manager's conclusion that Brown had
engaged in sexual harassment. He also argues that the Board thus "failed to specify the
'misconduct' relied upon to affirm Brown's termination." The Board responds that its
decision merely stated the official basis for Brown's dismissal and that the Board did not
conclude that Brown was innocent of any sexual harassment.
1. The Personnel Board stated an adequate basis for Brown's
termination.
The Personnel Board was acting as an appellate tribunal under
KMC 23.35.034 and was required to "make written findings of fact and conclusions as
13 In its decision,
to the justness of the disciplinary action" proposed by the city manager.
the Board stated that the city manager's "determination that Mr. Brown's conduct rose
12 See id. at 488 ("[A] public employee who can be terminated only for cause
has a legitimate expectation of continued employment that, under both federal and
Alaska constitutional law, gives rise to a property interest in [his or] her job.").
13 KMC 23.35.034(g) (2013).
-6- 6916
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to the level of misconduct . . . was reasonable based on the evidence in the record."14
The Board also concluded that the city manager's "determination that Mr. Brown would
be unable to perform his assigned job duties . . . was reasonable based on the evidence
15
in the record." The Board similarly used the past tense two sentences later when it
clarified that "Mr. Brown was not terminated for sexual harassment but rather because
16 Thus, the language that Brown relies on
his actions rose to the level of misconduct."
appears to be a description of the manager's decision, just like the preceding statements
expressing the Board's approval of the manager's determinations. We do not read the
Board's statement as an independent finding that Brown did not commit sexual
harassment.
Likewise, it would be unreasonable for us to conclude that the Board did
not know that the manager had concluded that Brown had committed acts of sexual
harassment. The Board stated that the manager had "issued a Memorandum Decision
finding that Mr. Brown had committed serious acts of sexual harassment that constituted
misconduct under the Kenai Municipal Code." We conclude that the disputed language
in the Board's decision must be read in the context of its conclusion that this
determination by the city manager was reasonable.
Read in this light, the Board's comment was simply an acknowledgment
that the official basis for Brown's termination was the city manager's conclusion that
Brown had committed misconduct. This acknowledgment did not constitute an
independent factual finding that Brown was innocent of sexual harassment.
14 Emphasis added.
15 Emphasis added.
16 Emphasis added.
-7- 6916
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Even if we did read the Board's decision as concluding Brown did not
violate the sexual harassment policy, this would not mean that Brown is innocent of any
misconduct. Brown's interactions with the Boys & Girls Club employees could have
constituted misconduct warranting termination even if those actions did not violate the
sexual harassment policy, especially considering the questions about whether that policy
17
applied to complainants who were not city employees.
Moreover, the Board's conclusion that Brown engaged in misconduct is
supported by the record. We will uphold an administrative decision affirming an
employment termination as long as it is supported by substantial evidence.18 In this case,
the city manager's decision outlines several instances of Brown's inappropriate conduct
at the recreation center. The decision recounts Brown's comments to one of the female
Boys & Girls Club employees "that she could 'use him' if she was lonely when her
husband was gone"; "that she was 'a pretty chesty girl' "; that she "should go upstairs
[with Brown] . . . and take a nap together"; and, regarding an incident in which the
employee narrowly avoided a view of Brown's exposed genitals in a bathroom, that if
she "would have come in 10 seconds later [she] would have seen something [she] liked."
The foregoing examples all involved only one of several complainants. This evidence
17 Brown also argues that the superior court erred by concluding that the
Personnel Board simply "downgraded" Brown's alleged sexual harassment to
misconduct, which is still an offense that may warrant termination. In an administrative
appeal, however, we are not bound by the superior court's decision; we independently
review the Personnel Board's decision to determine whether an error has been made. See
Grimmett, 303 P.3d at 487 (citing Fairbanks Fire Fighters Ass'n, Local 1324 v. City of
Fairbanks , 48 P.3d 1165, 1167 (Alaska 2002)).
18
See Jurgens v. City of North Pole, 153 P.3d 321, 325 (Alaska 2007)
(citations omitted).
-8- 6916
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adequately supported the Personnel Board's determination that Brown engaged in
misconduct warranting his dismissal.19
2. The Board's findings were sufficiently definite to support its
decision.
Brown also argues that the Personnel Board erred by "fail[ing] to specify
the 'misconduct' relied upon to affirm Brown's termination." He argues that this failure
amounts to unconstitutional vagueness.
Brown's argument implicates the adequacy of the Board's findings: "The
threshold question in an administrative appeal is whether the record sufficiently reflects
20
the basis for the board's decision so as to enable meaningful judicial review." "In
answering that question, the test of sufficiency is a functional one: do the [tribunal]'s
findings facilitate this court's review, assist the parties and restrain the [tribunal] within
21
proper bounds?" "[I]n certain cases, the issues are such that, based on the record,
detailed findings are not necessary for this court to understand the [tribunal]'s reasoning
process."22
19 We note that Brown does not make any argument as to the Board's
alternative ground for termination: Brown's inability to perform his assigned job duties.
The Board affirmed the city manager's finding that, "[b]ecause of the ongoing nature and
severity of [Brown's] conduct," the city manager could not "allow [him] to return to
work in the Rec[reation] Center." On this record, the Board could reasonably conclude
that Brown's work at that facility comprised such a significant portion of his overall
duties that he could no longer perform the duties of his employment.
20 Fields v. Kodiak City Council , 628 P.2d 927, 932 (Alaska 1981).
21 Faulk v. Bd. of Equalization , 934 P.2d 750, 751 (Alaska 1997) (quoting S.
Anchorage Concerned Coal., Inc. v. Coffey , 862 P.2d 168, 175 (Alaska 1993))
(alterations and internal quotation marks omitted).
22
Alvarez v. Ketchikan Gateway Borough , 28 P.3d 935, 940 (Alaska 2001)
(continued...)
-9- 6916
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We have affirmed a personnel board's "relatively conclusory" findings if
they are consistent with "more extensive findings" included in the termination decision
the board affirmed, explaining that we may "safely assume that the board accepted" those
findings.23 Here, as explained above, the Personnel Board specifically approved the city
manager's determination that Brown engaged in misconduct warranting termination.
And the manager's decision provided a lengthy recitation of the facts underlying his
conclusion that Brown had committed misconduct.
For example, the manager found "that [Brown] recklessly or purposely
exposed [him]self to [one of the complainants] and that [he] purposely attempted to
expose [him]self to" another, and that these "actions violate the City's sexual harassment
policy and also constitute misconduct under KMC 23.35.020(b)(9)." We conclude that
the Board's decision approving these findings sufficiently stated the basis for Brown's
termination.
B. Brown's Termination Does Not Violate The Implied Covenant Of
Good Faith And Fair Dealing.
Brown also argues that his termination violated the covenant of good faith
24
This covenant "generally
and fair dealing implied in every employment contract.
requires employers to treat like employees alike and act in a manner that a reasonable
25
person would regard as fair." The objective prong of this covenant "prohibits the
22(...continued)
(quoting Faulk , 934 P.2d at 751) (internal quotation marks omitted).
23 Jurgens , 153 P.3d at 327.
24 See Crowley v. State, Dep't of Health & Soc. Servs., 253 P.3d 1226, 1230
(Alaska 2011).
25
Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 760-61 (Alaska 2008)
(continued...)
-10- 6916
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employer from dealing with the employee in a manner that a reasonable person would
26
regard as unfair." Brown argues that the Board violated this covenant because his
termination was objectively unfair.
Brown mainly repeats the argument we have outlined above (that the
Personnel Board failed to adequately identify the basis for his termination). He also
argues that a lesser sanction should have been "tried and failed" before his termination.
As to the first argument, a reasonable person would not regard the Personnel Board's
decision as unfair because the city manager made extensive findings supporting his
conclusion that Brown had engaged in misconduct, and the Board gave a reasonable
explanation of its decision to affirm the city manager.27
Brown's second argument also fails. As the Board pointed out, the
municipal code "in no way obligates the City to choose any one form of discipline over
another; instead, it grants the City broad authority to determine which form of discipline
28
is appropriate based upon the totality of the circumstances." The code requires
29
graduated discipline only "where appropriate." We have previously recognized that
the decision to terminate a public employee where a lesser sanction would "[a]rguably
. . . have been sufficient" does not necessarily violate the implied covenant of good faith
25(...continued)
(citation omitted).
26 Id. at 761.
27 Cf. Grimmett v. Univ. of Alaska, 303 P.3d 482, 492 (Alaska 2013).
28 KMC 25.35.030(a) (2013) states: "Disciplinary action ranges from oral or
written reprimands to suspension, demotion, and finally dismissal from the City service,
and depends on the severity of the offense as well as the number and frequency of
previous acts of misconduct."
29 KMC 25.35.030(c).
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30
and fair dealing. In this case, the Board acted reasonably when it concluded that
Brown's misconduct warranted termination.
V. CONCLUSION
We therefore AFFIRM the Personnel Board's decision to terminate
Brown's employment.
30 Grimmett, 303 P.3d at 492.
-12- 6916
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