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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,
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     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.