Made available by Touch N' Go Systems, Inc.
e-mail: firstname.lastname@example.org, and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869
recent opinions, or the
Helmuth v. UAF (12/29/95), 908 P 2d 1017
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, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
CRAIG HELMUTH, )
) Supreme Court No. S-6320
) Superior Court No.
v. ) 4FA-93-1015 CI
UNIVERSITY OF ALASKA )
FAIRBANKS, ) O P I N I O N
Appellee. ) [No. 4304 - December 29, 1995]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Mark I. Wood, Judge pro tem.
Appearances: Kenneth L. Covell, The Law
Offices of Kenneth L. Covell, Fairbanks, for
Appellant. Paul B. Eaglin, Associate General
Counsel, Office of the General Counsel,
University of Alaska Fairbanks, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MATTHEWS, Justice, dissenting.
The University of Alaska Fairbanks (UAF) terminated
Craig Helmuth from employment for insubordination. The post-
termination hearing officer found that Helmuth was insubordinate,
warranting termination. The superior court affirmed the hearing
officer's decision. Helmuth claims insufficient evidence
supports the hearing officer's decision. We affirm.
II. FACTS AND PROCEEDINGS
Craig Helmuth began working part-time as a micro-
computer specialist at the UAF Geophysical Institute (GI) in late
1988. He was subsequently promoted to Network Manager of the
Institute's Local Area Network (LAN),1 and attained full-time
status in June 1992.
Before he became a full-time employee, difficulties
arose between Helmuth and his supervisor, Morna Mellor, regarding
Helmuth's relations with other Institute employees. The record
contains a series of memoranda beginning as early as September
1991, concerning Helmuth's critical remarks about fellow employee
Dan LaSota. Other employees also had problems with Helmuth, most
noticeably Paul Delys. Mellor reprimanded Helmuth on June 12,
1992, about his difficulty maintaining relations with his co-
workers. She told him that his interaction with co-workers was
seen as an "attitude problem" and a "communication problem." On
June 15 Mellor again reprimanded Helmuth for his ongoing dispute
with and criticism of LaSota. The reprimands informed Helmuth
that he was seen as "arrogant, non-communicative and
obstructionist." Mellor told Helmuth that "the only solution"
was to improve his daily interaction with his fellow employees.
Before Helmuth's elevation to full-time status, Mellor
asked him to provide a routine "status report" concerning his
ongoing activities. From April 23 to 28, 1992, Mellor and
Helmuth exchanged a series of electronic mail messages,
culminating in Helmuth's transmission of a five-page message
covering his activities on a single day. Mellor stated that this
was not what she needed, and explained that she wanted a
description of the types of activities he performed daily at
work. As of May 27, Mellor had not received Helmuth's status
On July 27 Helmuth circulated a copy of a memorandum to
a number of superiors, including the Institute Director, and to
other end users of the LAN. In part, the memorandum was
accusatory of Helmuth's co-worker Paul Delys and derogatory
towards Mellor. Mellor responded in a strongly worded written
reprimand. She stated that the July 27 memorandum was
"unprofessional and unacceptable" and "was full of errors both in
form and content." She told him that he "drew conclusions which
were not valid, [and] stated things in such a way as to force
conclusions from readers which were invalid." Mellor prohibited
Helmuth from issuing any work-related memoranda under any
circumstances without first clearing them through her.
Thereafter, Mellor and Helmuth communicated more
frequently by electronic mail than in person, although they
worked in "very confined quarters" and easily could have
communicated in person. Helmuth's electronic mail messages often
included refusals to comply with Mellor's requests.
In late July 1992, after meeting with Helmuth's
supervisors and a member of the Computer Advisory Committee,
Mellor instructed Helmuth to write a memorandum to users of the
LAN advising them of future update work on the LAN.2 She told
[t]he primary objective of the meeting was to
insure that in the future any planned
adjustments to the network no matter how
seemingly insignificant will be done at night
or over a weekend, thus impacting the fewest
number of users. In addition, it is
essential to warn the network users with as
much advanced notice as is possible through
written communications and Public Address
announcements. This is your responsibility
to accomplish, and you assured us that in the
future you will provide this kind of
On August 12, after some delay by Helmuth and some prompting,
Helmuth submitted a draft memorandum to Mellor. The draft was a
well-written, two-page single-spaced history of the network, its
changes, and its goals. The last two paragraphs contained some
of the information desired by Mellor, but did not otherwise meet
her directive that Helmuth was to inform network users of the
expected occurrence of future network problems. Mellor gave
Helmuth further direction to change the memorandum, suggesting
that he write two memoranda -- one discussing the LAN's history,
and another discussing the details of anticipated work with a
"time-line" of when network users could expect interruptions or
outages. Mellor directed Helmuth to keep the second memorandum
to a single page.
A series of communications between Helmuth and Mellor
followed. On August 14 Helmuth presented a second memorandum to
Mellor. This memorandum was very similar in form and content to
the memorandum which Mellor had rejected. The new version was
one and one-half pages in length, set in smaller type, and
reworded minimally; except for the final three paragraphs, much
of it discussed a history of the network. Mellor advised Helmuth
that the memorandum did not meet her directive and she rejected
A brief discussion followed which left Mellor believing
that Helmuth was unwilling to draft a memorandum satisfying her
instructions. The differing perceptions of Helmuth and Mellor
about this discussion are set out infra.
On August 17 Mellor circulated to LAN users a three-
quarter page memorandum she had written herself. On August 18
Mellor sent Helmuth a memorandum that reviewed the August 14
incident and accused Helmuth of insubordination.3 Helmuth
disputed her charge of insubordination and threatened to seek
relief through the University grievance process.
Both before and after the August 14 incident, there was
considerable effort by Helmuth to obtain his performance
evaluation. On August 17 he received a three-page evaluation.
The evaluation stated that Helmuth "exceeds expectations" or
"meets expectations" in areas requiring technical competence and
that his greatest strength is his technical ability. It also
stated, however, that he "needs improvement" in communicating
with network users and co-workers, and in providing "written
communication in a short, concise and frequent manner." Helmuth
responded in a six-page, single-spaced memorandum; he devoted
four and one-half pages to attacking Mellor and accusing her of
harassment, erratic judgment, improper manipulation of fiscal
information, and illegal use of Institute funds, and spent only
one and one-half pages discussing his evaluation.4
In a September 2 memorandum, Mellor reiterated her
charge of insubordination and warned Helmuth that another similar
incident would warrant "further disciplinary action including
On September 14 Helmuth attended a meeting with Mellor
and Operations Manager Bob Grove, in which Helmuth received a
termination notice for insubordination. The charge of
insubordination was based on Helmuth's failure to complete the
network outage memorandum as instructed, and his failure to
provide Mellor with minutes of the network meetings or a copy of
his notes from those meetings.5 Mellor's notice stated: "I find
your behavior of August 14, 1992, to be in absolute defiance of
my authority." Helmuth was permitted to state his disagreement
with the action taken.6 Subsequently, Helmuth telephoned Grove
to orally grieve his wrongful dismissal and to request his "due
process." At the time, the University of Alaska written policies
did not provide for a pre-termination hearing.
Helmuth filed a number of grievances, all of which were
rejected by Mellor, Grove, and the Institute Director. An
administrative hearing was conducted to address these grievances.
When the April 5, 1993 hearing commenced, the parties stipulated
that all grievances would be merged into Helmuth's termination-
for-insubordination grievance and heard as a single proceeding.7
The hearing officer found that Helmuth was insubordinate. The
hearing officer also found that the University failed to provide
Helmuth with a pre-termination hearing in accordance with his due
process rights. Thus, the hearing officer concluded Helmuth had
been unlawfully discharged on September 14, 1992. However, the
hearing officer also concluded that Helmuth was lawfully
discharged at the post-termination hearing which commenced April
Helmuth appealed the hearing officer's finding that he
was insubordinate. The superior court affirmed the hearing
officer's decision. This appeal followed.
The only issue Helmuth raises on appeal is whether
substantial evidence supported the hearing officer's finding of
insubordination. Helmuth's grievance was adjudicated pursuant to
the Administrative Procedure Act, AS 44.62.330-.630, which
applied to UAF at the time of the grievance.8 Alaska Statute
44.62.570(c) provides the appropriate standard of review: when
agency findings are challenged, an abuse of discretion is
established if the findings are not supported by either the
weight of the evidence or substantial evidence in light of the
Supervisor Mellor instructed Helmuth to prepare a
memorandum regarding the potential problems that network users
might face in the next four months. Mellor was dissatisfied with
Helmuth's memorandum because it was too long and because it did
not address succinctly the anticipated impact on the users of
updating the network.9 The critical information she wanted
conveyed was buried in the last two paragraphs of the two-page
memorandum. Mellor requested that Helmuth separate his ideas
into two memoranda. The original memorandum was to concentrate
specifically on notifying users of the impending network outages.
A second memorandum could be prepared concerning the network
history. However, Helmuth again furnished Mellor with a single
memorandum that was only slightly shorter and in a smaller font,
and that was only minimally revised. The critical information --
regarding network outages -- was again buried in a discussion of
network history. Helmuth stated that he believed the users
needed all the information contained in a single memorandum,
effectively rejecting her directive to separate the information
into two memoranda.10 Ultimately, Mellor prepared the memorandum
herself because she felt Helmuth was refusing to follow her
directive. She ultimately terminated Helmuth as insubordinate.
An employee's willful refusal to obey the reasonable
instructions of the employer is grounds for discharge. Central
Alaska Broadcasting v. Bracale, 637 P.2d 711, 713 (Alaska 1981).
"[W]hen an order given is reasonable and consistent with the
contract, the failure to obey it is always a material breach as a
matter of law." Id. Helmuth does not argue that Mellor's order
to write the memorandum was unreasonable or inconsistent with his
employment contract. He instead complains that he was not given
the opportunity to comply with Mellor's directive. Thus, he
argues that a charge of insubordination is invalid unless the
employee is first given an opportunity to comply with a direct
order, and then refuses to comply with the order before it is
Helmuth mischaracterizes the events leading to his
discharge. Mellor requested a specific memorandum several days
prior to the incident, rejected Helmuth's initial draft prior to
the final incident, and requested a single-page revision limited
to discussing the impact of network adjustments on network users,
including a suggested "time-line." Helmuth's second draft
differed only minimally from the draft Mellor rejected. It
contained the same substantive infirmities that caused Mellor to
reject the first draft and to issue precise instructions on
preparation of a second draft. After reading the second draft,
Mellor asked Helmuth whether he was going to correct the second
draft or whether she would have to do it herself. Helmuth told
her to "take a crack at it." Mellor responded that she would not
merely attempt to write the memorandum, she would do it. Helmuth
had already had two previous opportunities to comply with
Mellor's request to write the memorandum as directed.
Mellor testified regarding the August incident:
He . . . handed me the copy. I asked him
. . . if it was the same thing and he said
that I could take a crack at it because I
told him if he was saying that he wasn't
going to do it -- if he was refusing to do
the memo, that I would write it. And he
said, well, take a crack at it. And I told
him I was not going to take a crack at it; I
would do it. And he said fine and turned
around and left.
. . . .
I told him that I wanted it separated. I
told him that it had to be separated; that I
wanted a short one; that I didn't want this.
And he said, "Well, I think the users need to
be . . . aware of what's been going on in the
network." . . . But I can tell you there was
no question in my mind, absolutely, he was
not going to separate that memo into two
memos. And he stood there defiantly in my
doorway and just looked at me and that's when
I said, "If you're telling me that you're
refusing to do this, if you're refusing to
rewrite this memo into two different memos,
then" -- it was a very difficult time because
I realized we'd come to . . . the end at that
point. So, that's why I struggle here
because it was a moment of recollection and -
- and recognition on my part that -- that he
wasn't going to do it.
. . . .
He said he really felt that it -- all the
information had to get out; that he had a
problem with putting it out that way. I
remember him stating there was a problem with
that, meaning that he didn't think it was an
appropriate thing to do, not that he was
having a problem because obviously he knows
how to write. And that I -- I said to him,
"Are you saying that you refuse to write
this? Are you refusing to do this? Because
if you are -- "I didn't give him a chance to
answer, by the way. I said, "If you are,
then I want to write it." And he said, "Take
a crack at it." And I said, "I will not take
a crack at it." That I remember distinctly.
"I will write it." . . . And then he said ,
"Go ahead . . . ." And he certainly didn't
jump in and say, "No, no, let me try it
again. I know that you want this. Please,
let's regroup." There was no offer, nothing.
Just go ahead. Gone. Out the door.
Helmuth testified about the same incident:
I handed her the memo. As I did, I said,
"Morna, I'm having problems with this. Can
we go over it? Why don't you give it a
read?" She took the memo, separated the two
pages, saw there were two pages, put them
down on her PC's keyboard and said that was
unacceptable. I said, "What? What can we
do?" She said it was too long and I stated
again I'm having problems getting this out.
I've had -- I alluded to the fact that I've
had other things going on that day, that I
wasn't getting a lot of time to sit and write
memos. Nevertheless, I'd sat down and
written that, and said "I'm having problems.
Can you help me?" She said, "Why? And I
said, "There's stuff in here, I don't know
how much the users do need to know. Some of
it I really think the users do need to know,
but I don't know where to draw the line. Can
you help me with this? That was -- I can't
repeat word for word what went on there.
What happened next, I think I can pretty much
repeat word for word. She said something
about, "Well, do you want me to write it?"
And my impression, given the context that we
were talking about, was that I wanted -- that
she was asking me whether she would take the
memo, mark it up, write it the way she thinks
it ought to be, give it back to me and I
would put it out. I said, "Sure, go ahead,
try it." Her response to me was, "I will not
try it. I will do it." That response to me
was, "I will not try it. I will do it."
That response took me aback. I was shocked
at the strength of her reaction and said,
"Okay. I'm not going to dispute that," and
soon thereafter left the office.
Mellor disputed Helmuth's characterization of his alleged request
He said he thought that the users needed to
hear it [the entire content of his draft
memo]. He never asked for help, I can tell
you that. He did not say he didn't know how
to do it. He said that he felt that the .
. . users of the network needed to hear the
whole story and I don't remember any other
details of what he said because he just
wasn't doing it, he wasn't going to do it.
So, I really can't help you beyond that. He
wasn't going to do it. It was clear.
The hearing officer found Mellor's testimony to be
credible. The hearing officer also rejected as not credible
Helmuth's testimony concerning vital factual matters, and found
that his "testimony contained many excuses and a certain air of
arrogance which was consistent with his attitude problem
exhibited in the Record."
Since the hearing officer had an opportunity to observe
the witnesses when they testified, we accord great weight to his
evaluation of the witnesses' credibility and demeanor. Cf.
Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988)
("it is the function of the trial court, not of this court, to
judge witnesses' credibility and to weigh conflicting evidence");
Sheridan v. Sheridan, 466 P.2d 821, 824 (Alaska 1970) ("great
weight must be accorded to the trial judge's experience and to
his evaluation of demeanor testimony").
The record supports a finding that Helmuth's
relationship with his supervisor was deteriorating and that his
conduct caused problems with other employees. When viewed in
this context, Helmuth's failure to write the memorandum as
requested and to correct it as directed amounted to
insubordination, supporting a conclusion that he did not intend
to write the memorandum his supervisor instructed him to write.
When Mellor told Helmuth that if he was refusing to write it
correctly, she was going to do it, she was extending to Helmuth a
final opportunity to comply with the instructions he had
previously rejected. She was effectively asking whether he was
continuing to reject her instruction. It was the third time she
asked him to perform the task. Helmuth's intimation that he did
not have the skills or the time to produce the requested
memorandum in one short document containing only information
regarding future outages is patently unpersuasive and
disingenuous. He was a skilled writer.
The task of separating the warning message about the
outages from the longer general memorandum about the network was
not complicated. The essential message could be readily and
concisely put in memorandum form. Thus, his statement that she
should "try" to write it was, in context, a refusal to do what
she had previously told him to do. The hearing officer did not
err in finding that Helmuth's response to Mellor's inquiry
Although the memorandum incident directly led to
Helmuth's discharge, there had been several other incidents of
insubordination and problems with Helmuth's general attitude for
many months. The hearing officer made the following findings:
Helmuth exhibited an intolerance for perceived incompetence in
other employees which resulted in a number of overt acts of
disobedience and inappropriate conduct by Helmuth, such as the
LaSota memorandum. This conduct increased in the summer of 1992
when Helmuth developed an attitude of possessiveness towards the
network. He also neglected to train co-workers, and failed to
perform certain assigned duties such as preparing detailed
minutes of meetings. The numerous electronic mail messages
between May and August 1992 evidence instances of impertinence,
guile, and unwillingness to conform to Mellor's directives.
Helmuth created his own set of rules, such as determining that he
did not need to return certain equipment to the Institute despite
specific requests by Mellor that he do so. Throughout this
period, Helmuth's conduct warranted chastisement by Mellor via
electronic mail. Finally, she wrote several memoranda containing
reprimands and admonitions, including the threat of termination.
The record amply supports a finding of insubordination.
Helmuth rejected Mellor's instruction to separate the narrative
history of the network from the critical information -- which was
to serve essentially as a warning -- about times the network
would be unavailable to users. The record supports a conclusion
that in rejecting that instruction, Helmuth intentionally
decided, contrary to his superior's instruction, that this
memorandum should prominently feature a history of the network.
His August 14 comments, as described by Mellor, support a
conclusion that he felt the historical information "had to get
out" and that he "had a problem" with transmitting the requested
memorandum without it. Mellor testified that he "didn't think it
was an appropriate thing to do." Helmuth was thus also rejecting
her underlying reasons for insisting on a concise memorandum
focused on the anticipated outages.
We conclude that substantial evidence supports the
finding that Helmuth's failure to write the requested memorandum
regarding the network outages constituted insubordination, and
that the hearing officer did not abuse his discretion in finding
that Helmuth was insubordinate. It is therefore unnecessary to
address the issue of whether Helmuth was also insubordinate in
not providing Mellor with his notes from the network meetings.
We AFFIRM the hearing officer's decision that Helmuth
was insubordinate and that his termination was justified.
MATTHEWS, Justice, dissenting.
Helmuth's supervisor, Morna Mellor, was not initially
going to fire Helmuth because of the August 14th incident. In a
memo to Helmuth dated August 18, 1992, Mellor recounted the
incident and warned him about it:
This is another clear example of your
not doing as requested/instructed by your
supervisor. This is certainly not the first
time, but I am stating clearly that it needs
to be the last. It is not acceptable
behavior. I consider it insubordination.
Again, on September 2, 1992, Mellor reiterated her memo of August
18th concerning the August 14th incident and issued an explicit
Should another incident occur in which
you refuse to comply, or otherwise exhibit
behavior which is in any way interpreted by
me as in defiance of established authority,
it will be necessary for me to take further
disciplinary action including dismissal.
On September 15, 1992, Mellor terminated Helmuth. In a
written notification of termination she gave three reasons. The
first was Helmuth's inability and unwillingness to perform with a
minimum of supervision. In connection with this reason Mellor
mentioned Helmuth's memo of September 10, 1992, in which he asked
for help "deciding the priority of the tasks you have assigned
me." The second reason was the incident of August 14, 1992. In
connection with this reason, Mellor alluded to previous incidents
of conduct by Helmuth which she regarded as other examples of
insubordination. As the third reason for firing Helmuth she
cited his failure to furnish her with notes of weekly network
In addition, on August 6, 1992 I asked
you for at least a photocopy of your notes
taken during the weekly network meetings
after you informed me you did not have time
to prepare weekly minutes. I received only
the one meeting's notes, which were
inadequate, and nothing since. In my memo of
September 2, 1992 I specifically asked that
notes pertaining to the three weeks' network
meetings be provided during the week,
therefore due by September 4, 1992. Again I
received nothing. These actions are clearly
Although Mellor did not initially intend to fire
Helmuth because of the August 14th incident, and when she did
fire Helmuth she did so for three reasons, one of which was the
August 14th incident, the hearing officer sustained Helmuth's
dismissal on the basis of the August 14th incident and did not
discuss the other two grounds relied on by Mellor.
In my view the incident of August 14th is insufficient
as a cause for termination. Mellor first asked Helmuth to write
a memo to network users advising them that work was going to be
done on the network which would entail closing it down. Helmuth
wrote such a memo but it was longer than Mellor wanted and she
told him to make it shorter. On August 14th he presented her
with a second draft which was only slightly shorter than the
first and explained that he was having a problem making it
shorter and that he felt that all that he had included was
important. At that point Mellor said that she would write the
memo herself and she did so. Helmuth's only failing was that,
having been told once to make the memo shorter (not twice or
three times), he decided to try to persuade his boss that the
memo would be better in longer form. This seems like a normal
initiative on the part of an employee and I do not believe it
should be condemned as insubordination.11
The other two grounds given by Mellor for discharging
Helmuth are facially adequate to justify his discharge. However,
for reasons not explained in this record, these grounds were not
relied on by the hearing officer. Assuming that these grounds
were not waived by the University, I would remand this case to
the superior court with instructions to remand the case to the
hearing officer for a determination of the adequacy of these
1 Helmuth's primary job responsibilities involved
operation of the GI computer networks. These networks consist of
more than a dozen LANs, the GI ethernet, and facilities like the
rocket range or satellite receiving systems, the UAF campus
network, and wide area networks such as SPAN and BITNET.
2 In mid-July the system had "crashed," leaving the
integrity of the LAN in question.
3 The memorandum stated in part: "This is another clear
example of your not doing as requested/instructed by your
supervisor. This is certainly not the first time, but I am
stating clearly that it needs to be the last. It is not
acceptable behavior. I consider it insubordination."
4 Operations Manager Bob Grove informed Helmuth that the
first four and one-half pages of his response were "inappropriate
and unacceptable" because they did not address Helmuth's
evaluation. Grove stated that he would not accept that portion
of the response as a valid response and would only place the last
one and one-half pages in Helmuth's file. Helmuth filed a
grievance concerning Grove's action. In response to this
grievance, the Institute Director placed Helmuth's full response
into his personnel file. However, the Director also placed a
copy of his letter in response to Helmuth's grievance in the file
in order to "point out to [Helmuth] errors in a number of [his]
statements." The Director's letter reviewed Helmuth's complaints
regarding Mellor and defended Mellor's responsibilities and
authority to oversee the department's budget, to allocate the
work and resources within the department, and to request from
department employees certain standards of performance. An
investigation regarding Helmuth's allegations of Mellor's
impropriety concluded that the allegations were "unfounded."
5 The termination notice also included a general
allegation of Helmuth's inability and unwillingness to perform at
the level required of his position.
6 On two occasions Grove recommended mediation to
Helmuth and provided him with the names and phone numbers of UAF
mediators. Helmuth did not choose to mediate.
7 The insubordination charge was based on Helmuth's non-
performance and refusal to comply with both written and oral
directives issued to him by Mellor. This charge encompassed the
August 14 incident as well as Helmuth's failure to furnish Mellor
with notes from weekly network meetings and his overall inability
and unwillingness to perform with a minimum of supervision.
8 The provisions of the Administrative Procedure Act
(APA) applied to UAF pursuant to former AS 44.62.330(a)(45). The
legislature subsequently exempted the University of Alaska from
the administrative adjudication provisions of the APA. Ch. 30, '
1, SLA 1993.
9 In a self-prepared job description, Helmuth stated
that the internetwork is "mission critical to many GI programs,"
and that it "must be maintained in an operational state."
10 In an electronic mail message, Helmuth stated in
I looked at your comments and the draft and I
hope this revision meets or exceedes [sic]
your expectations. I found it very difficult
to seperate [sic] the two memos are [sic] you
suggested, as the memo is tied very strongly
to the concept of network upgrades that must
happen. I also found that in the interests
of communication, that a memo summarizing the
changes that is to all GI faculty and staff
was really a good idea, particularly since it
had been a very long time since the last
11 I can say as one who has supervised numerous law clerks
over the years that the substance, but not the emotional tone, of
the conversation is familiar.