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Fairbanks School District v. NEA-Alaska (9/27/91), 817 P 2d 923
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
THE SUPREME COURT OF THE STATE OF ALASKA
FAIRBANKS NORTH STAR BOROUGH )
SCHOOL DISTRICT, ) Supreme Court File No. S-4027
) Superior Court File No.
Appellant, ) 4FA-89-1191 CI
NEA-ALASKA, INC., ) O P I N I O N
Appellee. ) [No. 3751 - September 27, 1991]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Niesje J. Steinkruger, Judge.
Appearances: David T. Jones, Perkins
Coie, Anchorage, for Appellant. Robert B.
Groseclose, Staley, DeLisio, Cook & Sherry,
Inc., Fairbanks, for Appellee.
Before: Burke, Matthews, Compton and
Moore, Justices. [Rabinowitz, Chief Justice,
The issue in this case is whether Department of
Education (DOE) regulation 4 Alaska Administrative Code
(AAC) 18.900(b)(2) (1991) is consistent with AS
14.20.150, which provides that a teacher must work
"continuously for two full school years" in order to
acquire tenure rights. The regulation protects those
teachers who have taught in a particular school
district for various fractions of the school year. It
entitles teachers who have taught for periods totaling
more than the equivalent of two regular school terms to
I. FACTUAL AND PROCEDURAL BACKGROUND
The Fairbanks North Star Borough School District
(district) operates public schools throughout the
borough. During most school years, the district
employs some of its teachers for less than full school
terms. A variety of reasons exist for these
abbreviated terms of service. In some cases, teachers
leave before the end of the term because of illness,
maternity, or other personal reasons. In other cases,
some teachers are not hired until after the school year
begins. This occurs because the district is unsure of
the size of the new student population, because the
district does not know whether it will receive certain
grants, or because other teachers leave before the term
ends. In some instances, the district has employed
teachers for portions of consecutive school years.
Alaska Statute 14.20.150 provides:
(a) A teacher acquires tenure rights in
a district when the teacher
(1) possesses a standard teaching
(2) has been employed as a teacher
in the same district continuously for two
full school years and is reemployed for the
school year immediately following the two
full school years.
(b) The tenure rights acquired under
(a) of this section become effective on the
first day the teacher performs teaching
services in the district during the school
year immediately following the two full
DOE regulations define "two full years"as follows:
(1) two consecutive school years of
service, regardless of the number of hours
per day, or days per week or per month
actually taught, for a person employed for
full school terms . . . under a contract
required by this chapter; or
(2) a combination of sequential
fractions of consecutive school years which
equal two full school terms, regardless of
the number of hours per day, or days per week
or per month actually taught, for a person
employed for less than full school terms . .
. under a contract required by this chapter.
4 AAC 18.900(b).
Despite the regulation, the district has refused to
grant tenure to teachers having an employment history
constituting two full school terms computed by "a
combination of sequential fractions of consecutive
school years," and who otherwise qualify for tenure
under AS 14.20.150 (i.e. they possess valid teaching
certificates and are reemployed for the school year
immediately following "two full school years").
NEA-Alaska, Inc. (NEA)1 sued the district, seeking an
order directing the district to grant tenure and the
benefits associated therewith under law and contract to
all teachers acquiring tenure under 4 AAC 18.900(b)(2).
The district filed a motion to dismiss the complaint,
and NEA filed a cross-motion for summary judgment.
After hearing oral argument on the parties' motions and
considering the parties' supplemental briefing,
Superior Court Judge Niesje J. Steinkruger granted
summary judgment in favor of NEA. Judge Steinkruger
concluded that 4 AAC 18.900(b)(2) is a valid regulation
interpreting AS 14.20.150. The superior court awarded
attorney's fees and costs to NEA.2 The district
appeals. We reverse.
II. STANDARD OF REVIEW
In reviewing the grant of summary judgment, we "must
determine whether there was a genuine issue of material
fact and whether the moving party was entitled to
judgment on the law applicable to the established
facts." Brock v. Alaska Int'l Indus., 645 P.2d 188,
190 n.6 (Alaska 1982).
The principal question posed by this appeal involves a
determination of whether an administrative regulation,
4 AAC 18.900(b)(2), is "consistent with and reasonably
necessary to carry out the purpose of the authorizing
statute," namely Alaska's tenure law, AS 14.20.150.
Vail v. Coffman Engineers, 778 P.2d 211, 214 (Alaska
1989). See also AS 44.62.030. Since this
determination involves statutory interpretation, we
substitute our independent judgment for that of the
agency. Union Oil Co. v. State, Dep't of Revenue, 560
P.2d 21, 23 (Alaska 1977) ("Statutory interpretation is
within the scope of the court's special competency, and
it is our duty to consider the statute
independently."). Even under the independent judgment
standard, however, the court gives some weight to what
the agency has done, especially where the agency
interpretation is longstanding. National Bank of
Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815
The district argues that the statute's language
requiring that a person must serve as a teacher
"continuously for two full school years" clearly
precludes a teacher who has worked only fractions of a
school year from acquiring tenure. We agree.
This case is distinguishable from State v. Redman, 491
P.2d 157 (Alaska 1971), in which we held that a teacher
who worked part-time could qualify for tenure under AS
14.20.150. We stated that teachers who work only part
of each day or only a few days a week are "continuously
employed" under AS 14.20.150. Id. at 158-59. Unlike
teachers who work only a fraction of the school year,
Ms. Redman was employed for the entire school year at
issue. Id. at 158. The argument that a teacher who
works only a fraction of the year is employed for a
full year ignores the plain meaning of the word "full."
Several decisions from other jurisdictions support our
conclusion that a partial year does not count towards
the number of "school years" required for tenure.
E.g., Haag v. Board of Education, 84 N.E.2d 833, 835
(Ill. App. 1949) (teacher employed for twelve months of
one school term and nine months of the next did not
qualify for tenure under Illinois Teacher Tenure Law
requiring a probationary period of two consecutive
years of teaching service); Fortunato v. King Philip
Regional School Dist. Comm., 406 N.E.2d 426, 427-29
(Mass. App. 1980); Breuhan v. Plymouth-Canton Community
Schools, 389 N.W.2d 85, 86-87 (Mich. 1986) (rejects
"substantial compliance"approach for awarding tenure
under statute providing that "[a]ll teachers during the
first 2 school years of employment shall be deemed to
be in a period of probation . . . ."); Valter v.
Orchard Farm School Dist., 541 S.W.2d 550, 554-55 (Mo.
The use of the word "full"in the Alaska statute
indicates the Alaska legislature's intent to preclude a
teacher from counting a portion of a year toward the
two-year probationary period required for tenure. In
light of the fact that a teacher who begins work in
October after the school year has commenced must work
two additional school years before acquiring tenure, it
makes little sense to argue that the statute allows
teachers to aggregate several fractions of a year to
meet the tenure requirement of two full years.
We agree with NEA that the DOE regulation furthers the
objective of the tenure system articulated in Redman,
491 P.2d at 159. Allowing those teachers who have
worked fractions of several consecutive school years to
acquire tenure arguably might attract more talented
personnel to the teaching profession. In addition, for
purposes of evaluation it is arguably difficult to
distinguish the teacher who has worked sequential
fractions totaling two school terms from the teacher
who has been employed for two entire school years.
Such policy decisions, however, are for the legislature
rather than for the DOE or this court. While the DOE
has broad responsibility for the policy governing
Alaska's public schools, its regulations must be
consistent with the Alaska statutes.4 See AS
44.62.020, 030. As discussed above, 4 AAC 18.900(b)(2)
conflicts with the unambiguous language of AS
REVERSED and REMANDED for further proceedings
consistent with this opinion.
1. NEA is a labor organization, incorporated in Alaska,
and is the recognized collective bargaining
representative of teachers employed by the district.
NEA filed the complaint on behalf of its membership and
asserted that it was authorized in all ways to do so.
2. The superior court did not issue an injunction ordering
the district to grant tenure on those teachers who
qualified under 4 AAC 18.900(b)(2). NEA was content to
have its complaint resolved on the basis of the court's
declaratory judgment upholding the validity of the
3. The district's reliance on Tyler v. School Dist. No. 1,
493 P.2d 22 (Colo. 1972) is misplaced. In Tyler, the
Supreme Court of Colorado held that substitute teachers
were not entitled to tenure under the Colorado statute
requiring a teacher to serve "continuously and without
interruption for three full years." Interpreting
similar language, this court reached the opposite
result in Redman, 491 P.2d 157.
4. Since the "sequential fractions"regulation was adopted
in 1975, one can reasonably characterize the Department
of Education's interpretation of the statutory term
"two full years"as longstanding. While the court
gives some weight to the longstanding construction
placed upon a statute by the agency legislatively
chosen to enforce it, National Bank of Alaska, 642 P.2d
at 815, we will not defer to an agency interpretation
that conflicts with the plain meaning of the statute.
A lengthy existence of a regulation does not bestow
validity on it. The regulation prohibiting part-time
teachers from acquiring tenure remained in the
administrative code until 1984, over ten years after
the Redman decision held that half-time work counts
toward attainment of tenure rights under AS 14.20.150.
Former 4 AAC 18.030(b)(1) (am 8/30/84, Register 91).
5. Contrary to NEA's contention, clarification of what the
statute means by "temporary absence"or "interruption"
is unnecessary. Clearly, the legislature did not
intend that minor infractions such as those suggested
by NEA (i.e. failing to call in sick on time or failing
to report to work on time because of a missed airplane
connection) would prevent a teacher from counting a
given year toward tenure. The statutory definition of
"continuous employment"prevents a teacher who does not
work consecutive school years or takes an unauthorized
period of leave from acquiring tenure.
Besides, the problem with NEA's argument is with the
definition of "full" rather than of "continuous."
While working fractions of consecutive years is
arguably "continuous employment"under the statute, it
is impossible to equate a fraction of a year with a