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Linstad v. Sitka School District (7/31/98), 963 P 2d 246

     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.


             THE SUPREME COURT OF THE STATE OF ALASKA

EVIE LINSTAD,                 )
                              )    Supreme Court No. S-7493
               Appellant,     )
                              )    Superior Court No.
          v.                  )    1SI-90-224 CI
                              )
SITKA SCHOOL DISTRICT,        )    O P I N I O N
                              )
               Appellee.      )    [No. 5012 - July 31, 1998]
                              )


          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Sitka,
                     Larry C. Zervos, Judge.

          Appearances:  Evie Linstad, pro se, Sitka. 
Robert Blasco, Robertson, Monagle & Eastaugh, Juneau, for Appellee.

          Before: Matthews, Chief Justice, Compton,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]

          COMPTON, Justice.


I.   INTRODUCTION
          Evie Linstad was a tenured special education teacher
employed by the Sitka School District.  She appeals a decision of
the superior court affirming, on de novo review, the District's
decision to not retain her for incompetency.  We affirm.
II.  FACTS AND PROCEEDINGS
          Terry Coon was the principal of the school at which
Linstad taught.  He believed that her teaching was deficient.  In
September 1989 he formulated an "Individual Assistance Plan"for
Linstad.  This plan identified specific areas in which Linstad's
teaching was deficient and set forth specific objectives for
improvement.  Among the areas in which Linstad was required to
improve were Student Discipline, Working Relationships, and Lesson
Plan.
          In December 1989 Coon believed that Linstad's teaching
had not sufficiently improved.  Art Woodhouse, the District
superintendent, agreed.  That month Coon and Woodhouse sent Linstad
a Notification of Deficient Performance, thereby notifying Linstad
that her performance was so deficient it could affect her continued
employment.  By the terms of her employment agreement, she was
given until March 1990 to "take remedial action to correct this
deficiency."
          In March 1990 Woodhouse sent Linstad a letter notifying
her that she would not be retained for the next school year.  This
letter set forth a bill of particulars, specifying the reasons why
Linstad would not be retained.  These included deficiencies in
Behavior Management and Delivery of Lessons.  In response to a
request from Linstad's attorney, the attorney for the school board
provided a letter with additional particulars.
          Linstad requested and received a hearing before the Sitka
School Board on her non-retention.  The Board upheld the decision
not to retain Linstad.  Linstad then requested de novo review in
the superior court.  The superior court forced Linstad to choose
between proceeding with the matter as an appeal (in which case
review would be limited to issues raised in the bill of
particulars) or a de novo trial (in which case review would not be
limited to the issues raised in the bill of particulars).  Linstad
chose the appeal format but objected to the necessity of making
that choice.  The superior court upheld the Board's decision on
appeal.
          Linstad appealed to this court, arguing that she should
have received de novo review limited to the charges contained in
the bill of particulars.  See Linstad v. Sitka School District, 863
P.2d 838, 840 (Alaska 1993) (Linstad I).  This court reversed and
remanded, explaining that Linstad was indeed entitled to a de novo
review in the superior court, limited to the charges contained in
the bill of particulars.  See id. at 842.
          On remand, the superior court again upheld the Board's
decision on two grounds: incompetence in behavioral management, and
incompetence in coordinating her activities with the administration
and other teachers (under the heading "Delivery of Lessons").
Linstad again appeals. 
III. DISCUSSION
          The issues Linstad raises on appeal may be consolidated
into the following: 
          (1)  Did the superior court err by considering
evidence outside the bill of particulars?

          (2)  Did the superior court err in determining that
Linstad was properly non-retained for incompetence?  
          (3)  Was the superior court biased, such that a
remand to a new judge is necessary?

          (4)  Arguments not raised below.

          Because we conclude that the Board's decision to not
retain Linstad may be upheld based solely on Linstad's deficiency
in behavior management, we address only issues concerning that
deficiency.
     A.   With Respect to the Behavior Management Issue, Did the
Superior Court Err by Considering Evidence outside the Bill of
Particulars?

          Alaska Statute 14.20.180(a) provides that "[i]f . . . an
employer [of a teacher] determines that dismissal is appropriate,
the employer shall provide written notice, including a . . .
complete bill of particulars, of the decision."  In Linstad I, this
court determined that the superior court's review of the Board's
decision should be limited to the charges contained in the bill of
particulars.  See Linstad, 863 P.2d at 842.
          The bill of particulars stated that Linstad had not
"implemented an effective behavior management plan for [her]
classroom."  Upon a request for a more definite statement, the
District referred Linstad to two things.  One was Coon's
dissatisfaction with the way she disciplined students, which he
found disruptive of her class and of his office.  The other was
certain of Coon's evaluation memos and classroom-observation notes. 
          Linstad suggests that the District was required to place
all specific allegations of improper behavior management, with the
dates of their occurrences, in the bill of particulars.  The
District argues that notice of the general category of incompetence
in behavior management is sufficient, as Linstad had actual notice
of "specific examples of the problem well ahead of trial."  
          We find the District's position to be the more
persuasive.  On point is Grissom v. Board of Education, 388 N.E.2d
398 (Ill. 1979).  A tenured teacher had been dismissed and
requested a hearing and a bill of particulars.  See id. at 399. 
The board sent him a bill which supplied the reasons for his
dismissal but did not supply dates, names, or specific examples. 
See id. at 400-01.  He claimed that the bill was thus
insufficiently specific.  See id. at 400.  The Illinois Supreme
Court disagreed, finding that "[t]he essence of sufficient
specifications . . . is that '[they] must fairly apprise the
teacher of the alleged deficiency . . . to enable the teacher to
refute the charge.'"  Id. at 401 (second omission in original)
(quoting Wade v. Granite City Community Unity Sch. Dist., No. 9,
218 N.E.2d 19, 20 (Ill. 1966)).  The court concluded that "the
notice and bill of particulars fairly apprised the plaintiff of the
basis of his dismissal."  Id.  Similarly, in the instant case we
conclude that the bill of particulars, coupled with the clarifying
letter from the school board's attorney, fairly apprised Linstad of
the basis for her dismissal.  No more was required.
     B.   Did the Superior Court Err in Determining that Linstad
Was Properly Non-Retained for Incompetence in Behavior Management?
          1. Standard of Review
          We review the superior court's findings of fact to
determine whether they were clearly erroneous.  See Kilmer v.
Dillingham City Sch. Dist., 932 P.2d 757, 763-64 (Alaska 1997).  We
will reverse only if we have a "definite and firm conviction that
a mistake has been made."  Id. at 764.  If the findings of fact
were not clearly erroneous, we then determine whether, on those
facts, the trial court properly found Linstad to be incompetent as
a matter of law.  See id. at 764.  "On questions of law, this court
is not bound by the lower court's decision . . . . [This court's]
duty is to adopt the rule of law that is most persuasive in light
of precedent, reason, and policy."  Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979) (citation omitted).
          2.   The trial court's factual findings (regarding 
               Linstad's alleged incompetence in Behavior
               Management) are not clearly erroneous.

          The trial court's relevant findings of fact can be
summarized as follows:
          (1)  Upon observing that Linstad's behavior-management
techniques were rather haphazard and inconsistent, Principal Coon
directed her to prepare a written behavior-management plan.  Coon
never thought that the plan that Linstad prepared was acceptable. 
More importantly, however, Linstad only grudgingly changed her
method of behavior management and never was able to deal
effectively and appropriately with behavior-management problems
even after substantial assistance.
          (2)  Linstad did not have clear guidelines for use of the
"time out corner."  Coon required her to provide written guidelines
and instructed her to use a chair in the corner instead of
requiring students to sit on a step on the floor.  While Linstad
clarified in writing her use of the time out corner, she did not
put a chair in the corner, as directed by Coon.  Linstad did not
believe that a chair was necessary, and Coon was forced to make
repeated requests that Linstad use the chair before Linstad
grudgingly complied about a month later.  While we recognize that
Coon's request was minor, this example was indicative of Linstad's
resistance to change even after substantial guidance.
          (3)  Linstad inappropriately used the administrative
office as a disciplinary tool.  On one occasion, when Linstad had
a discipline problem with one of her students, she had another
special education student escort the child to the administrative
office.  The disruptive child was left in the office for
approximately forty minutes because Linstad did not want him in
class.  On another occasion, Linstad brought her entire class to
the administrative office in order to telephone a disruptive
child's mother.  Coon objected to this because it was not an
agreed-upon technique in the behavior-management plan, and it
allowed one unruly child to disrupt all of the other students. 
Despite Coon's objections, Linstad persisted in her use of this
technique on at least two other occasions.
          3.   As a matter of law, the trial court's findings 
               support its conclusion that Linstad was properly 
               non-retained for incompetence.

          The statutory definition of incompetence is "the
inability or the unintentional or intentional failure to perform
the teacher's customary teaching duties in a satisfactory manner."
Former AS 14.20.175(b)(1) (in force at the times relevant to the
instant case).  We conclude that the trial court's finding that
Linstad "never was able to deal effectively or appropriately with
behavior management problems even after substantial assistance"is
sufficient, as a matter of law, to support its conclusion that
Linstad could be discharged for incompetence.
     C.   Was the Superior Court Biased, Such that a Remand to a
New Judge Is Necessary?

          The essence of Linstad's argument is as follows: In 1991
the trial court considered matters outside the bill of particulars,
this court told it not to, therefore it was biased against her in
later proceedings.  Linstad provides no legal authority for the
proposition that when a trial court is overruled, it is presumed to
be biased against the appealing party.  Nor does Linstad provide
any factual basis, other than her loss below, on remand, to support
her allegation of bias.  This argument is not well taken.
     D.   Arguments Not Raised Below

          Arguments related to the collective bargaining agreement
and arguments regarding the Board's meeting in executive session
were not raised below.  No argument is made that failure to
consider these arguments would result in plain error.  We will not
consider these arguments for the first time on appeal.  See Tenala,
Ltd. v. Fowler, 921 P.2d 1114, 1124 (Alaska 1996) (noting that,
absent plain error, this court will decline to review issues not
raised before the trial court).
IV.  CONCLUSION
          We AFFIRM.