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Vroman v. City of Soldotna (04/29/2005) sp-5892
Vroman v. City of Soldotna (04/29/2005) sp-5892
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
GREG VROMAN, )
) Supreme Court No. S-11387
Appellant, )
) Superior Court No.
v. ) 3KN-01-822 CI
)
CITY OF SOLDOTNA, SOLDOTNA )
POLICE DEPARTMENT, ) O P I N I O N
)
Appellee. ) [No. 5892 - April 29, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles T. Huguelet, Judge.
Appearances: Arthur S. Robinson, Robinson &
Associates, Soldotna, for Appellant. Howard
S. Trickey and Matthew Singer, Jermain
Dunnagan & Owens, P.C., Anchorage, for
Appellee City of Soldotna.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Fabe,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Greg Vroman was fired from his job with the Soldotna
Police Department. He now seeks to vacate an arbitration
decision affirming his termination, arguing that the City of
Soldotna did not properly select its arbitrator. Because the de
facto officer doctrine conferred validity on the arbitration even
if the arbitrator had not been properly selected, we affirm the
decision of the superior court.
II. FACTS AND PROCEEDINGS
Greg Vroman was a police officer with the Soldotna
Police Department. In September 1999 he shot a lynx out of
season and failed to report the taking. After Vroman asked
another officer how he might tan the hide of his illegal kill,
the officer reported Vroman to his superiors. Vromans superiors
contacted Fish and Wildlife Protection, and Vroman later plead no
contest to a misdemeanor violation.
The Soldotna Police Department held a hearing in
January 2000 to determine if Vroman should be fired. The hearing
report determined that Vromans ability to work with members of
the police department, the District Attorneys Office and the
court system had been adversely impacted by Vromans behavior and
conviction. The report recommended termination. Chief of Police
Shirley Warner terminated Vroman in February 2000.
Following the procedure established by Soldotna
Municipal Code (SMC) 2.28.050, Vroman filed a grievance with the
city manager. The city manager reviewed Vromans grievance and
upheld the termination. Following the next step in the grievance
procedure, Vroman requested arbitration of his grievance with the
Employee Relations Board. According to SMC 2.28.050(D)(5),
either party may submit the matter to arbitration within seven
working days from the date of the city managers written decision.
Within stated limits, the arbitration is final and binding.1
Pursuant to SMC 2.30.040(B), the board consists of
three members:
One member shall be appointed by the mayor
and confirmed by the city council. One
member shall be appointed by the citys
employees pursuant to appropriate procedures
devised by the employees collective
bargaining agent(s). . . . The third member
shall be chosen by and mutually acceptable to
the other two board members.
Vroman was informed by letter on March 30, 2000 that the Councils
representative [was] Ms. Sharon Moock, and the employee
representative [was] Mr. Bob Byers.
The board scheduled a hearing on Vromans grievance for
June 15, 2000. Because Moock could not be in Soldotna on June
15, Soldotna Mayor Lancaster appointed Tim Cashman to serve in
place of Moock. Mayor Lancaster had talked with council members
. . . about appointing Cashman as an alternate after it became
apparent that Moock could not appear on June 15. According to
SMC 2.30.040(B), the City of Soldotnas representative on the
Employee Relations Board must be appointed by the mayor and
confirmed by the city council. The city council did not ratify
Cashman prior to the June 15 hearing. Vroman was not informed
before the hearing that Cashman would serve as the citys
representative in place of Moock.
During the hearing on June 15, 2000 the members of the
board, including Cashman, identified themselves by name. Vroman
was present at the hearing and provided testimony. Cashman
personally questioned witnesses, including Vroman, during the
proceedings. Vroman did not object to the absence of Moock or
the presence of Cashman at the hearing. On July 19, 2000, the
board unanimously upheld Vromans termination.
In an August 2000 letter, Vroman complained that the
board was not lawfully constituted in accordance with the
Soldotna Municipal Code because Cashman had not been confirmed by
the city council as the citys representative. Shortly
thereafter, the city council passed a measure purporting to
retroactively ratify Cashmans appointment.
Vroman filed suit in superior court against the City of
Soldotna on November 14, 2001, alleging that his termination
constituted a breach of his employment contract and that the
arbitration process violated the SMC and deprived him of due
process. The superior court later converted the suit into an
administrative appeal and denied Vromans appeal on the grounds
that he had waived any objections to Cashmans presence on the
board by failing to raise them at the time. Additionally, the
superior court held that because Cashman had colorable authority
and his appointment did not affect the fairness of the
arbitration, the de facto officer doctrine barred Vroman from
arguing that Cashmans presence rendered the arbitration invalid.
Vroman appeals.
III. STANDARD OF REVIEW
Vroman asks us to vacate the holding of a labor
grievance arbitration proceeding. Though we normally apply the
deferential gross error standard in reviewing grievance
arbitration awards,2 we review the selection of Cashman de novo.
The only issue before this court is whether Cashmans irregular
selection deprived the board of power to review Vromans
grievance. This does not require us to review the legal or
factual conclusions of the board.
In similar circumstances, we apply de novo review to
awards in arbitration taken pursuant to the Uniform Arbitration
Act.3 When reviewing such awards for claims of arbitrator bias,
misconduct, or to determine if arbitrators have exceeded their
powers, we do not apply the gross error standard of review.4
Rather, we review superior court decisions regarding these
defects de novo.5
Additionally, the board is a creature of Soldotna
municipal law and operates as part of the citys administrative
system. Arbitration before the board is not a bargained-for term
of any contract. It is the final step in a legislatively-enacted
grievance procedure.6 Where this grievance procedure conflicts
with a collective bargaining agreement, the terms of the
agreement prevail.7 Consequently, this appeal is similar to an
appeal from an administrative review board. Ordinarily we
directly review administrative decisions on appeal, substituting
our judgment for the administrative agency when the question
presented is an issue of law not subject to special agency
expertise.8
Because this appeal involves a question of law, does
not ascribe error to the board, involves a claim similar to other
arbitration claims that we review de novo, and resembles an
administrative appeal to which we would apply the substitution of
judgment standard, we review the effect of the improper selection
de novo.
IV. DISCUSSION
Cashmans Actions Were Legitimate Under the De Facto Officer
Doctrine.9
The de facto officer doctrine confers validity upon
acts performed by a person acting under the color of official
title even though it is later discovered that the legality of
that persons appointment or election to office is deficient.10
The rationale underlying the doctrine is relatively
straightforward. As the Second Circuit explained:
The de facto officer doctrine was developed
to protect the public from the chaos and
uncertainty that would ensue if actions taken
by individuals apparently occupying
government offices could later be invalidated
by exposing defects in the officials titles.
The doctrine has generally been applied to
individuals who are in possession of an
office, are performing the duties of the
office, and who maintain an appearance of
right to the office.[11]
Moreover, actions are considered de facto valid when
the defect of authority is merely technical,12 and whether an
officer is in fact ineligible to hold the office is immaterial.13
We adopted the de facto officer doctrine in Gates v.
Tenakee Springs,14 holding that:
an acting judge . . . who has colorable
authority due to his or her appointment is a
de facto officer whose acts are legally
binding on the public and on third persons if
done within the scope and by the apparent
authority of his or her office, even though
the judges actual authority suffers from a
procedural defect.[15]
The appellant in Gates argued that a superior court decision was
invalid because the pro tem judge who issued it was not a
resident of Alaska as required by Alaska law.16 In rejecting the
appellants claim, we outlined a series of considerations
supporting the application of the de facto officer doctrine. We
noted that it makes little sense to waste valuable judicial and
private resources to relitigate matters decided by a competent,
unbiased judge.17 Furthermore, the de facto officer doctrine
protects third parties and the public by preventing relitigation
on the basis of procedural defects irrelevant to the fairness of
the substantive proceedings.18
1. The de facto officer doctrine applies here because
Cashman exercised colorable authority within the
scope of the office and there is no reason to
doubt the fairness and accuracy of the original
arbitration.
We turn to the question whether the purposes of the de
facto officer doctrine would be served by applying it in this
case. We must determine whether third parties would be protected
by preserving the validity of acts performed by persons
possessing colorable authority,19 and whether wasteful
relitigation of issues that were decided before a competent and
unbiased judge or official whose appointment or election was only
procedurally deficient would be prevented.20 Although we have not
addressed whether the de facto officer doctrine can confer
validity on the acts of an improperly selected arbitrator, other
jurisdictions have done so under similar circumstances.21
Cashman was appointed to serve as Sharon Moocks
alternate by Mayor Lancaster on May 19, 2000. Vroman has not
argued that Cashman acted without colorable authority or beyond
the scope of his apparent authority. Vroman has also not argued
that Cashman was biased or unqualified. Vromans only complaint
is that the city did not follow the mandated selection procedure.
Because Cashman exercised colorable authority within
the scope of the office and Vroman gives no reason to believe
that his original arbitration was unfair or that a second
arbitration would produce a different outcome, we apply the de
facto officer doctrine and uphold the validity of the boards
determination.
2. The de facto officer doctrine applies here because
the arbitration was based on the Soldotna
Municipal Code, not on the terms of a collective
bargaining agreement.
Vroman argues that the de facto officer doctrine does
not apply . . . because [this] case arises from a breach of a
collective bargaining agreement.22 It is Vromans position that
the procedure for selecting an arbitrator must be followed
because it is part of the contract. He argues that because
Cashman was not selected by employing the selection process that
was agreed upon by the parties, the board did not have power to
arbitrate the dispute. In sum, contract law requires strict
compliance with the terms of an arbitration provision in an
employment contract; this precludes any application of a doctrine
that would countenance deviation from the procedure prescribed by
the agreement.
Vroman cannot prevail on this claim, however, for
nothing in the record supports his contention that the
arbitration arose from a provision of any contract, much less a
collective bargaining agreement.23 In the superior court, Vroman
argued only that the city violated the procedure for selecting
its representative established in SMC 2.30.040. Soldotna
Municipal Code 2.30.040 is a municipal ordinance enacted by the
Soldotna City Council, not a provision of a collective bargaining
agreement. Indeed, SMC 2.30.110, a provision within the same
chapter as SMC 2.30.040,24 provides that grievance procedures
developed through collective bargaining will be applied in place
of procedures enacted by the city.25 But there is nothing in the
present case to suggest that the selection provisions at issue
originate in a collective bargaining agreement.
Vroman has not shown that the procedure for selecting
arbitrators was part of any contract. Accordingly, and without
deciding whether the de facto officer doctrine applies to an
arbitrator selected in violation of contractual terms, we reject
his argument that the doctrine does not apply in this case.
V. CONCLUSION
Because Tim Cashman had colorable authority due to his
appointment by Mayor Lancaster and acted within the scope and by
the apparent authority of his office, we AFFIRM the decision of
the superior court.
_______________________________
1 SMC 2.28.050(D)(5).
2 Alaska State Employees Assn/AFSCME Local 52 v. State,
74 P.3d 881, 882 (Alaska 2003). Gross error means that only
those mistakes which are both obvious and significant warrant
reversing the arbitrators award. Fairbanks Fire Fighters Assn,
Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1170 n.30 (Alaska
2002) (quoting Pub. Safety Employees Assn, Local 92, Intl Union
of Police Assns, AFL-CIO v. State, 895 P.2d 980, 984 (Alaska
1995)). We have also articulated a less deferential arbitrary
and capricious standard for reviewing compulsory interest
arbitration. Pub. Safety Employees Assn, Local 92, Intl Union of
Police Assns, AFL-CIO v. State, 902 P.2d 1334, 1335 (Alaska
1995). (Compulsory arbitration is arbitration compelled by
statute, and interest arbitration involves determining the terms
of a contract.) This court has not addressed whether this less
deferential standard should be applied to compulsory grievance
arbitration. Alaska State Employees Assn, 74 P.3d at 882.
3 AS 09.43.010-180. The Uniform Arbitration Act does not
apply to this case because the arbitration was not taken pursuant
to contract. AS 09.43.010. Additionally, the act does not apply
to labor-management contracts absent specific language in the
contract incorporating it. Id. SMC 2.28.050(D)(5)(a) specifies
that the arbitration shall be conducted pursuant to the Voluntary
Labor Arbitration Rules of the American Arbitration Association
but does not mention the Uniform Arbitration Act.
4 Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595,
600 (Alaska 1999).
5 Id.
6 SMC 2.28.050.
7 SMC 2.30.110.
8
In an appeal from an agency decision, we
directly review the agency action in question
rather than the decision of the superior
court. In considering administrative
appeals, we have recognized four principal
standards of review: The substantial
evidence test is used for questions of fact.
The reasonable basis test is used for
questions of law involving agency expertise.
The substitution of judgment test is used for
questions of law where no expertise is
involved. The reasonable and not arbitrary
test is used for review of administrative
regulations.
State v. Pub. Safety Employees Assn, 93 P.3d 409, 413 (Alaska
2004).
9 The city urges us not to reach the merits of this
appeal, arguing that Vroman waived any challenge by failing to
object to Cashmans presence on the arbitration board. But waiver
requires a knowing intent to relinquish a right or privilege.
Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1253
(Alaska 1988). In this case, only a strained reading of the
facts could support the conclusion that Vromans conduct showed
such intent. Vroman had no reason to know, or even suspect, that
Cashman had not been confirmed by the city council. On the other
hand, there is no allegation in the record that Cashman failed
properly to perform his duties or that he prejudiced Vromans
interests in any way. We think that application of the de facto
officer doctrine strikes the proper balance under these
circumstances.
10 Nguyen v. United States, 539 U.S. 69, 78 (2003)
(quoting Ryder v. United States, 515 U.S. 177, 180 (1995)).
11 EEOC v. Sears Roebuck & Co., 650 F.2d 14, 17 (2d Cir.
1981) (internal citations omitted).
12 Nguyen, 539 U.S. at 78 (quoting Ryder, 515 U.S. at
180).
13 Levine v. United States, 221 F.3d 941, 943 (7th Cir.
2000) (quoting United States v. Mitchell, 136 F. 896, 906 (D. Or.
1905)).
14 954 P.2d 1035 (Alaska 1998). We have touched on the de
facto officer doctrine in the corporate law context. Afognak
Native Corp. v. Olson, 648 P.2d 991, 992 (Alaska 1982) (corporate
acts since disputed election remain valid because challenged
directors are de facto officers). See also Wolf v. Arctic Bowl,
Inc., 560 P.2d 758, 764 n.7 (Alaska 1977) (discussing de facto
officer doctrine; case ultimately decided on other grounds);
Pavlik v. State of Alaska, Dept of Cmty. and Regl Affairs, 637
P.2d 1045, 1051 (Alaska 1982) (Dimond, J., dissenting) (de facto
doctrine validates acts of challenged officials election
challenge thus would not prejudice those affected by officials
decisions).
15 954 P.2d at 1038. Prior to Gates, the Alaska Court of
Appeals employed the de facto officer doctrine to preserve the
validity of work accomplished by a special prosecutor improperly
appointed by a court, State v. Breeze, 873 P.2d 627 (Alaska App.
1994), and to uphold a grand jury indictment when individual
jurors had failed to take the oath. State v. Roark, 705 P.2d
1274 (Alaska App. 1985).
16 Gates, 954 P.2d. at 1038 (citing AS 22.10.090).
17 Id.
18 Id. at 1038-39.
19 Id. at 1038.
20 Id.
21 In Swanson v. Bd. of Police Commrs, 555 N.E.2d 35, 38-
39 (Ill. App. 1990), a police officer appealed the decision of
an administrative arbitration panel upholding his termination.
He contested the panels validity because one of its members had
not been properly confirmed by the municipality. Id. at 39-40.
The court did not reach any of Swansons allegations of technical
deficiencies because the members actions were at least valid as a
de facto officer. Id. Similarly, in Town of Stratford v. Local
407, AFSCME, 490 A.2d 1021, 1022 (Conn. App. 1985), a police
officer appealed a decision of a state arbitration and mediation
board upholding his termination. The officer claimed that the
board lacked the power to review his grievance because three of
its members had not taken their oaths of office. Id. After
determining that state law did not require the board members to
swear the particular oath cited by the officer, the court held
the failure of two of the board members to swear a different oath
did not undermine the boards legitimacy because of the de facto
officer doctrine. Id. Lastly, in Huff v. Sauer, 68 N.W.2d 252,
254-55 (Minn. 1955), the decision of a police civil service
commission to terminate a probationary patrolman was upheld based
on the de facto officer doctrine. Three commissioners were
ineligible to serve because, contrary to Minnesota law, one
commissioner was a state employee and two others did not swear
oaths of office. Id.
22 This argument was not framed clearly until the reply
brief. Because Vroman does not mention the words collective
bargaining in his opening brief, we could decline to reach this
contention on the ground that it has been waived. See Crittel v.
Bingo, 83 P.3d 532, 536 n.19 (Alaska 2004) (holding that argument
not raised below and developed primarily in reply brief on appeal
is waived). See also Alaska R. App. P. 212(c)(3) (reply brief
may raise no contentions not previously raised in appellants or
appellees briefs). However, because Vroman generally argued in
his opening brief that Cashman was not selected by the method
agreed upon by the parties, and in the interests of completeness,
we exercise our discretion and consider the claim.
23 SMC 2.28.050 is explicitly designed to accommodate
employment disputes involving union members and the
interpretation of collective bargaining agreements. SMC 2.28.050
defines a grievance as any disagreement between the city council
or its management personnel and an employee of the city or the
employees collective bargaining agent, involving the conditions
of employment or application of this code or a collective
bargaining agreement. The ordinance envisions a role for shop
stewards in the grievance process, SMC 2.28.050(D)(2)-(4), and
specifies that the arbitration shall be conducted according to
the Voluntary Labor Arbitration Rules of the American Arbitration
Association except where those rules conflict with a collective
bargaining agreement.
24 SMC 2.30 governs the citys relations with its
collective bargaining units.
25 SMC 2.30.110 provides: Except as these provisions may
be modified for covered employees by the terms of a collective
bargaining agreement, employee grievances shall be handled
according to Section 2.28.260 [sic: 2.28.050] of the city
municipal code.
