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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jurgens v. City of North Pole (03/02/2007) sp-6107

Jurgens v. City of North Pole (03/02/2007) sp-6107, 153 P3d 321

     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,


) Supreme Court No. S- 11847
Appellant, )
v. ) Superior Court No. 4FA-03-1925 CI
Rule Municipality, and its Personnel )
Review Board, ) No. 6107 - March 2, 2007
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:  James M. Hackett, Law Office of
          James  M.  Hackett, Fairbanks, for Appellant.
          Zane  D. Wilson, Cook Schuhmann & Groseclose,
          Inc., Fairbanks, for Appellee.

          Before:    Bryner,  Chief Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

          The City of North Pole terminated Sergeant Mark Jurgens
from  the  North  Pole Police Department after a  pre-termination
review  board concluded that he had engaged in conduct  amounting
to hostile work environment sexual harassment.1  Jurgens appealed
and   the   superior  court  affirmed.   We  now  conclude   that
substantial evidence supports the boards decision.  For that  and
other related reasons, we affirm.
          This appeal arises from personnel proceedings initiated
by  the  City  of North Pole against Sergeant Mark Jurgens.   The
proceedings culminated in a hearing before a city pre-termination
review  board  and a decision by the board to terminate  Sergeant
Jurgens.   Sergeant  Jurgens worked for  the  North  Pole  Police
Department as a police officer between February 1999 and  January
2000  and  as  a patrol sergeant with supervisory authority  over
officers and dispatchers between January 2000 and July 2003.   In
June 2003 Tammy Searles-Streeter (Streeter), a dispatcher in  the
department,  complained to department Chief  Lonnie  Hatman  that
Jurgens  had acted inappropriately towards her and other dispatch
personnel.   Streeter  alleged  numerous  inappropriate  actions,
which  Chief  Hatman summarized by saying that  between  November
2002  and  June  2003, Jurgens had subjected employee(s)  of  the
department  to  sexual  harassment  by  making  unwelcome  sexual
advances  and suggestive and explicit verbalizations of a  sexual
nature  and  that Jurgenss conduct had the effect of unreasonably
interfering  with [Streeters] work performance,  and  created  an
intimidating, hostile, and offensive work environment.
          The  department  conducted  an  internal  investigation
regarding  Streeters allegations.  After interviewing  department
personnel,  including  Jurgens,  the  department  concluded  that
Jurgenss  conduct  amounted to sexual  harassment  and  that  his
conduct had created an intimidating, hostile, and offensive  work
environment.   In  addition, the department  made  the  following
written findings:
          Sgt.  Jurgens [] has made several phone calls
          to  dispatchers, both while sober  and  while
          under  the influence, while they were working
          and  at  home.  He has stopped them with  his
          patrol  unit  unofficially and without  cause
          for   non  work  related  reasons.   He   has
          verbally  compared  dispatchers  breasts  and
          body  parts during those phone calls  and  he
          told  one dispatcher that he wanted  to  have
          sex  with her and described how he wanted  to
          do  so.  He has intentionally subjected  them
          to offensive conduct while they were working.
          Despite   one   apology  to  one   dispatcher
          acknowledging    that    his    words    were
          inappropriate he continued to make suggestive
          and  explicit remarks of a sexual  nature  to
          female  employees.  He has spoken  and  taken
          actions  with  more than one dispatcher  that
          have   impaired   their   ability   to   work
          effectively with him and that has created  an
          atmosphere  of  fear  and intimidation  among
          them  so that they are afraid to say anything
          about his actions for fear of retaliation and
          the  loss of their jobs.  Although a  certain
          level of joking and innuendo are not uncommon
          among employees[,] Sgt. Jurgens[s] words  and
          actions  in this regard are a gross deviation
          from  the  standard of conduct  a  reasonable
          person  in his position would believe  to  be
          acceptable.   Sgt. Jurgens  admits  that  his
          actions in this regard were inappropriate.
Based  on these findings, on the citys zero tolerance policy  for
sexual  harassment,  and on the fact that  Jurgens  had  received
sexual  harassment training, the department decided to  terminate
Jurgens.  The department notified Jurgens of his right to  appeal
and  suspended  him  without  pay until  his  termination  became
          Jurgens  requested a pre-termination hearing.  On  July
28-29,  2003   a three-member review board and a hearing  officer
held a hearing at which the city and Jurgens, both represented by
counsel, presented evidence and were allowed to examine and cross-
examine witnesses.  In a memorandum decision issued July 30, 2003
the  board  unanimously concluded that the  department  had  just
cause  to terminate Jurgens.  The board made no findings,  except
to conclude that Jurgens had engaged in conduct clearly amounting
to   sexual  harassment  and  that  such  conduct  affected   the
complainants  work performance and also created an  intimidating,
hostile and offensive work environment.  The board also concluded
that Jurgenss conduct was a serious offense justifying dismissal.
The board affirmed Jurgenss dismissal.
          Jurgens appealed to the superior court and argued that:
the  boards conclusion was not supported by substantial evidence;
the  board  should  have  used a clear  and  convincing  evidence
standard  of proof; the board incorrectly found that  just  cause
existed  for  Jurgenss  dismissal; and the  board  erred  by  not
imposing  a  lesser  discipline  than  dismissal.   The  superior
court, in a written memorandum opinion and judgment, rejected all
of Jurgenss arguments and affirmed the boards decision.
          Jurgens  petitioned the superior court  for  rehearing.
The superior court denied that petition.
          On appeal to this court, Jurgens argues that the boards
findings  and  conclusions are insufficient to permit  meaningful
appellate review and renews the arguments he made in the superior
     A.   Standard of Review
          When  the superior court acts as an intermediate  court
of   appeals,  as  it  did  here,  we  independently  review  the
administrative decision.2  We will uphold the boards decision  if
it  is  supported by substantial evidence.3  Substantial evidence
is  such  relevant evidence as a reasonable mind might accept  as
adequate  to  support  a conclusion.4  In  reviewing  the  boards
decision we do not weigh evidence, determine witness credibility,
or  evaluate  competing  inferences from testimony.5   We  review
questions  of law, including the appropriate standard  of  proof,
using our independent judgment.6
     B.   Jurgens Failed To Preserve the Argument that the Boards
          Findings  and  Conclusions Are Insufficient  To  Permit
          Meaningful Appellate Review.
          Jurgens argues that the boards findings and conclusions
          are insufficient to permit meaningful appellate review.  He
argues  that  the  board  failed to  address  material  disputes,
including  whether his conduct was unwelcome and whether  it  was
sufficiently pervasive to be considered hostile work  environment
sexual harassment.  He  points out that the board did not discuss
whether he could have been rehabilitated and did not address  any
of  the  testimony presented at the hearing, including  testimony
favorable to him.  And Jurgens notes that, although some  of  the
testimony regarding sexual harassment conduct was contested,  the
board  never  specified  which episodes of  conduct  it  believed
occurred  or  which amounted to sexual harassment  conduct  under
North Pole Municipal Code (NPMC) 2.36.291.
          These arguments are unavailing here because Jurgens did
not raise them below.  Although Jurgens listed the sufficiency of
the  findings as an issue in his points on appeal to the superior
court,  he  did  not  mention this issue in  his  superior  court
briefs.   An  issue is considered abandoned in an  administrative
appeal to the superior court if the appellant inadequately briefs
the issue.7
          Jurgens  does not challenge North Poles assertion  that
he  failed to argue this issue below; instead, he argues that his
failure  in  the superior court to brief the issue is  not  fatal
because the inadequacy of the [b]oards findings is manifest.   He
correctly notes that in two cases  Manthey v. Collier8 and Hewing
v.   Alaska  Workmens  Compensation  Board9   we  considered  the
adequacy of the workers compensation boards findings even  though
the appellants had not properly raised the issue.  In Manthey, we
stated  that  we  would  consider the inadequacy  of  the  boards
findings,  even  though  the issue had not  been  argued  to  the
superior  court,  because  we can . . . consider  manifest  error
appearing  on the face of the record.10  In Hewing, we considered
whether  the  boards  findings were  adequate,  even  though  the
appellant  had not argued the issue on appeal to us, because,  as
we explained, the error [was] manifest on the face of the record.11
We  have  only  used  this  specific reason  for  considering  an
unpreserved  issue in one other case  White v. Alaska  Commercial
Fisheries  Entry Commission.12  We there considered  whether  the
superior  court  committed reversible error by  not  remanding  a
Commercial  Fisheries  Entry Commission  decision  for  entry  of
adequate  findings, even though the appellant had not argued  the
issue, because the deficiency [was] manifest on the record before
          In  Manthey  and Hewing we held that the inadequacy  of
the  workers compensation boards findings of fact was a  manifest
error  because the Alaska Administrative Procedure  Act  required
such  findings.14   In White we held that although  [a  findings]
requirement  ha[d]  not  been  imposed  categorically  in   cases
involving applications for limited entry permits, compliance with
[the  Administrative  Procedure Act]  is  practically  impossible
absent some indication of the basis of the [agencys] action.15  In
all  three cases, the agency had made an obvious mistake that the
superior court should have noticed in trying to review the agency
           The pre-termination review board did not make any such
obvious  mistake  here.  The North Pole ordinance  governing  the
board does not require the board to make specific findings.17  And
as  we  explained in Faulk v. Board of Equalization, the question
whether  an  agencys findings are sufficient to enable meaningful
judicial  review  is  a functional one: do the  agencys  findings
facilitate  this courts review, assist the parties  and  restrain
the  agency within proper bounds?18  The boards findings here met
that standard.  The limited findings made it clear that the board
was  rejecting Jurgenss version of the facts.19  And even  though
the   boards  findings  were  relatively  conclusory,  they  were
consistent  with  Chief  Hatmans  more  extensive  findings   and
affirmed his termination decision.  We can safely assume that the
board accepted Chief Hatmans factual findings.
          Because no clear mandate required the board to make any
findings, and because the absence of more elaborate findings does
not  prevent meaningful review, the superior court did not commit
reversible error by failing to remand for additional findings.
     C.    The  Boards  Findings  Are  Supported  by  Substantial
          Jurgens  argues  that  the  boards  findings  are   not
supported  by substantial evidence.  He specifically argues  that
the  totality of the circumstances do not clearly establish  that
Jurgenss conduct was unwelcome and offensive to Streeter or  that
Jurgenss conduct affected Streeters work performance.20
          Under  the North Pole Municipal Code, sexual harassment
is defined both by the actual conduct and that conducts effect:
          [U]nwelcome  sexual  advances;  requests  for
          sexual  favors;  sexual  demands;  or   other
          verbal,  physical  or  visual  conduct  of  a
          sexual    nature   will   constitute   sexual
          harassment when:
          . . . .
          The  conduct  has the purpose  or  effect  of
          unreasonably  interfering  with  an  affected
          persons  work  performance,  or  creating  an
          intimidating,   hostile  or  offensive   work
The board found that Jurgens engaged in conduct clearly amounting
to  sexual  harassment and found that such conduct  affected  the
complainants   work  performance  and  created  an  intimidating,
hostile and offensive work environment.
          The  evidence presented to the board supports a finding
that Jurgenss conduct was unwelcome and offensive to Streeter.22
          For  example, Jurgens admitted that, while at work,  he
held  a plastic pacifier shaped like a penis near Streeters  face
and  took  a  photograph.   Streeter  testified  about  how  this
incident made her feel:
          Initially, shocked.  Kind of put in my  place
          and  belittled as being a female  with  other
          men  in  the room.  I didnt want to react  so
          that,  you  know, they couldnt  make  fun  of
          that.   However, you know, it made  you  feel
          like, you know, you were like this big.
Streeter testified that Jurgens refused to give her the disk with
the  photograph on it and discussed putting the photograph on the
department website or emailing it to her husband.  She  testified
that  she  felt cornered and that she didnt find it .  .  .  very
          Streeter  testified that when Jurgens was off-duty  and
intoxicated,  he called Streeter at work and made  remarks  about
her  body.  She testified that Jurgens compared her breasts  with
those  of  another dispatcher.  Another officer at the department
overheard Jurgens make this comment to Streeter, and Jurgens  did
not deny making this remark.  Jurgens testified that he could not
remember  the  incident but admitted he might have  made  such  a
statement while intoxicated.  Streeter also testified that during
the  same telephone conversation, Jurgens asked her to come  over
to his house and told her in graphic terms that he wanted to have
sexual intercourse with her.23  Streeter explained that she tried
to get off the phone with Jurgens:
          I  was trying to be passive without upsetting
          him, because when he does come back to work I
          have to work with him, but I was telling  him
          that,  Mark,  you know, youve got  to  go  to
          sleep,  youve  got to get up in the  morning,
          you  know, Ive got to go, Ive got to get  off
          the   phone.   You  know,  Mark,  youve  been
          drinking, you really just need to sleep  this
Streeter  testified  that this telephone conversation  and  other
incidents made her feel [v]ery uncomfortable at work, not wanting
to  come  into work not wanting to make [Jurgens] mad, [and]  not
actually safe.
          Streeter   and  other  dispatchers  submitted   written
statements  recounting  how  Jurgens had  on  numerous  occasions
tried  to  throw small objects down their shirts.  Streeter  also
stated  in  her  written  statement, and Jurgens  admitted,  that
Jurgens had wiped his hand on the nozzle of a pepper spray bottle
and  then  wiped  his finger on either side  of  her  neck.   And
Streeter testified that on one occasion, Jurgens raised his  hand
at her and told her to shut the f___ up.
          Terry  Nelson,  another  police department  dispatcher,
testified that while she was working, Jurgens called her and told
her  that  he  was  lying  in  bed thinking  about  her.   Nelson
testified   that  she  was  shocked  by  that  statement.    When
specifically  asked  if he denied making this statement,  Jurgens
responded that he did not dispute making the statement.
          This  evidence is substantial and it supports a finding
that  Streeter  and  other  dispatchers  found  Jurgenss  conduct
unwelcome   and   offensive  and  that  their   perspective   was
reasonable.   Although  Jurgens argues that  we  should  consider
evidence that suggests  Streeter flirted with Jurgens and engaged
in  sexualized  behavior at the office,  our  task  on  appellate
review  does  not include weighing evidence, determining  witness
          credibility, or evaluating competing inferences from testimony
because  those  functions are reserved to the [b]oard.24   As  we
explained  in Lindhag v. State, Department of Natural  Resources,
even  when  conflicting evidence exists, we uphold  the  [b]oards
decision  if substantial evidence supports it.25  Given Streeters
testimony that she felt belittled, uncomfortable, and unsafe, and
given  the evidence of Jurgenss sexual advances and other conduct
of  a  sexual  nature, the board did not err when it  found  that
Jurgenss  conduct was unwelcome and that it amounted  to  hostile
work environment sexual harassment.
          We  also reject Jurgenss more general argument that the
board  applied  the  municipal code as a general  civility  code.
Jurgens suggests that his conduct was just [s]imple teasing, off-
hand comments, and isolated incidents.  But Jurgens admitted that
two  of  the individual incidents occurred: he admitted  that  he
shoved  the penis pacifier in Streeters face and photographed  it
and  that he wiped his finger on the pepper spray bottle and then
on  Streeters  neck.   And Jurgens did  not  deny  that  he  told
dispatcher Nelson that he was in bed thinking about her  or  that
he  compared  Streeters  breasts  to  another  dispatchers.   The
uncontroverted evidence alone therefore supports a  finding  that
Jurgenss  conduct  went beyond simple teasing;  it  was  serious,
pervasive, and unwelcome.
          The  evidence  also  supports the boards  finding  that
Jurgenss  conduct  affected  the complainants  work  performance.
Streeter  testified that Jurgenss conduct made  her  feel  [v]ery
uncomfortable at work, not wanting to come into work, not wanting
to  make  [Jurgens]  mad,  [and]  not  actually  safe.   Streeter
testified that her safety net had been taken away, that she could
not  count  on  Jurgens  as  a  team  member,  and  that  Jurgens
intimidated her.  Streeter testified that she was scared to  come
forward  with allegations against Jurgens because she was  afraid
he  would  retaliate against her and make her job more difficult.
Others   in  the  department  also  testified  that  they  feared
retaliation  from  Jurgens.  Given Streeters testimony  that  she
felt  unsafe and uncomfortable at work and that she did not  want
to  go to work, the board did not clearly err when it found  that
Jurgenss conduct affected Streeters work performance.
     D.   The Board Applied the Appropriate Standard of Proof.
          Jurgens argues that the board should have been required
to  make  its  findings  using a clear  and  convincing  evidence
standard  instead  of a preponderance of the  evidence  standard.
North Pole argues that Jurgens waived this argument, and that the
preponderance of the evidence standard is appropriate here.
          1.   Jurgens properly preserved this issue for appeal.
          Jurgens   preserved   his   argument   regarding    the
appropriate standard of proof.  During Jurgenss closing  argument
to  the  board,  he argued that in a serious case  like  this  of
termination the standard of proof should be more than just by the
greater   weight   or  majority  of  the  evidence.    The   city
interrupted, and objected that Jurgenss argument was an  improper
statement  of  the law.  Jurgens also submitted to the  board  an
excerpt  from  a  book  entitled The Rights  of  Law  Enforcement
          Officers, in which the author states that some courts and
arbitrators have applied a clear and convincing evidence standard
in  police  officer  termination cases.  And Jurgens  argued  the
point  in  his  opening  brief to the  superior  court.   Jurgens
therefore  preserved this issue for appeal by arguing it  to  the
board and the superior court.26
          2.   The preponderance of the evidence standard applies
here.           We have previously decided that the preponderance
of  the  evidence  standard of proof applies to  public  employee
termination  proceedings.27   In  Romulus  v.  Anchorage   School
District, we considered whether the Anchorage School Board  erred
when,  in  the context of a disciplinary proceeding,  it  used  a
preponderance of the evidence standard to decide whether Romulus,
an  ROTC  instructor, sexually abused two high school students.28
We  held  that the board had not erred and that the preponderance
of   evidence   standard  applies  to  disciplinary   proceedings
involving a government employee.29  In so deciding, we relied  on
case  law from other jurisdictions in which courts had held  that
the  preponderance  of  the  evidence standard  was  the  correct
standard  to use in termination proceedings for teachers,  police
officers, and hospital workers.30
          Jurgens  argues that Romulus is distinguishable because
unlike Romulus, Jurgens will lose his police certificate and  his
livelihood.  Jurgens also argues that the cases involving  police
officers relied upon by Romulus are distinguishable.
          Jurgenss  arguments are without merit.   Like  Jurgenss
case,  Romulus involved serious allegations of misconduct against
a  public  employee.31  Like Jurgens, Romulus  was  terminated.32
Moreover,  although Romulus technically may  have  been  able  to
pursue  another teaching position, it is unlikely that any school
would have hired him after he was fired for sexually abusing  two
female  students.  Thus, like Jurgens, Romulus faced loss of  his
ability to continue his chosen profession.
          Jurgens  also argues that some of the cases  we  relied
upon  in  Romulus are distinguishable from his case.  In Romulus,
we   relied  in  part  on  Clark  v.  Board  of  Fire  &   Police
Commissioners of Bradley, in which the Illinois Court of  Appeals
held  that  a  preponderance of the evidence standard  adequately
protected   a  police  officers  professional  interests   in   a
termination  proceeding, in part because  the  discharged  police
officer  was  not barred from obtaining employment  with  another
police  force.33   We also relied on Meyers v. Montgomery  County
Police Department.34  In that case, the Maryland Court of Special
Appeals  approved  the  use of a preponderance  of  the  evidence
standard,  in part because the reprimanded officer had not  shown
that  he  possessed a protected property right in  his  continued
employment.35   Jurgens  is  correct that  those  cases  are  not
factually  identical to his, but that does not mean that  Romulus
itself is distinguishable.  And Jurgens does not persuade us that
Romulus  should somehow be limited or narrowed to  the  facts  in
Clark or Meyers.  Jurgenss argument regarding Clark is of limited
value  because, as mentioned, Romulus itself involved a situation
in  which  the  terminated employee would have  great  difficulty
obtaining  another  teaching  position.   And  Jurgenss  argument
          regarding Meyers is not persuasive because in a subsequent case,
the Maryland Court of Appeals expanded the Meyers holding.36   In
Coleman v. Anne Arundel County Police Department, the high  court
of  Maryland held that the preponderance of the evidence standard
was   the   correct  evidentiary  standard  for  law  enforcement
disciplinary  proceedings, even assuming the terminated  employee
had  a  protected property or liberty interest in  his  continued
          Coleman  is  instructive  here.   In  that  case,   the
Maryland  Court  of Appeals considered whether an  administrative
hearing  board  was  required to apply  a  clear  and  convincing
evidence  standard  of proof to theft-related charges  against  a
police   officer.   In  a  lengthy  analysis,  the  court   first
considered  whether  Maryland case law  required  the  heightened
standard.38  The court overruled an earlier case in which it had,
on  common  law  grounds,  required the Maryland  Public  Service
Commission  to use a clear and convincing evidence standard  when
adjudicating charges of fraud against a customer.39  The  Coleman
court  explained that the preponderance of the evidence  standard
was  the  appropriate disciplinary proceeding  standard  for  law
enforcement   officers,   even  when  allegations   of   criminal
misconduct  were  made, because [t]his standard  makes  for  more
efficient  and  understandable [police disciplinary]  proceedings
and  provides  for  uniformity  in law  enforcement  disciplinary
          The  Coleman  court  then considered Colemans  argument
that  applying  a  preponderance of  the  evidence  standard  was
unconstitutional under the due process clauses of the federal and
Maryland  constitutions.41  Applying the  three-part  Mathews  v.
Eldridge test,42 the court assumed that the terminated officer had
demonstrated  a  cognizable property or liberty interest  in  his
continued employment, but held that the government had  at  least
as  strong  an interest in the internal discipline of the  police
department.43   The court noted that the officer was  afforded  a
panoply  of  procedural rights including notice, a  hearing,  the
right  to present evidence and argument, and the right to  cross-
examine   witnesses.44   And  the  court  noted  that  a   higher
evidentiary  standard  would  not  likely  reduce  the  risk   of
erroneous  fact-finding: Candor requires that we acknowledge  the
difficulty  a  lay panel may encounter in perceiving  the  subtle
distinctions  and  nuances between these two  abstract  standards
when  called  upon to apply it.45  The court concluded  that  the
preponderance  of the evidence standard strikes  the  appropriate
balance  between protecting the private interests of  an  officer
accused  of misconduct and a law enforcement agencys interest  in
maintaining internal discipline.46            We agree  with  the
Coleman  court  and  hold  that using the  preponderance  of  the
evidence  standard  in  public employee disciplinary  proceedings
satisfies the due process clauses of the Fourteenth Amendment and
article  I,  section 7 of the Alaska Constitution.  We  too  have
adopted  the  Mathews v. Eldridge three-part  balancing  test  to
determine whether administrative proceedings satisfy due process.47
This test takes into account the following:
          [f]irst,  the private interest that  will  be
          affected by the official action; second,  the
          risk  of  an  erroneous deprivation  of  such
          interest through the procedures used, and the
          [probable]  value, if any, of  additional  or
          substitute    procedural   safeguards;    and
          finally,  the Governments interest, including
          the  function  involved and  the  fiscal  and
          administrative burdens that the additional or
          substitute   procedural   requirement   would
          Applying  the Mathews v. Eldridge test here,  we  agree
with  Jurgens that,  because he can only be terminated  for  just
cause,49 he has a protected property interest in his employment.50
But  we  do  not  agree that he has a protected liberty  interest
based  on  the  stigmatizing effect of  a  dismissal  for  sexual
harassment.   As  we explained in DeNuptiis v.  Unocal  Corp.,  a
workers reputational interest is not so fundamental that it  must
be protected by a heightened standard.51  That said, the potential
stigmatizing effect of a dismissal for sexual harassment and  the
fact  that  the  dismissal will preclude Jurgens  from  obtaining
other  law  enforcement positions in Alaska, and  probably  other
states as well, strengthens Jurgenss interest.
          The  government also has a strong interest in cases  of
police disciplinary proceedings.  As Jurgens concedes, North Pole
has  an  interest  in  eliminating  sexual  harassment  from  the
workplace  and  in  disciplining employees who engage  in  sexual
harassment.52  And as North Pole argues, it also has an  interest
in  protecting the public at large from employees who  engage  in
sexual misconduct.  Although we assume here that North Pole would
not  incur  any  greater  fiscal  or  administrative  burdens  if
required  to  apply  a heightened standard,  we  agree  with  the
Coleman  court that we must weigh heavily in [North  Poles  favor
North  Poles] interest in the internal discipline of  the  police
          In terms of the second Mathews factor, Jurgens suggests
that North Pole should have analyzed or considered the value of a
clear  and  convincing evidence standard.  But Jurgens  does  not
explain  how  he  is at risk of an erroneous deprivation  of  his
private  interests or how a clear and convincing  standard  would
limit that risk.  We assume that a higher standard of proof would
reduce  the risk of wrongful discipline.54  But due process  does
not  require  a  higher standard here.  Although  Jurgens  has  a
strong  interest  in  his  position  as  a  police  officer,  the
government  has an equally strong interest in eliminating  sexual
harassment  from the workplace and in protecting the public  from
officers  who violate the law.  The preponderance of the evidence
standard  is the appropriate standard when the possible  harm  to
each party is roughly equal.55
          We  conclude that under Romulus, the board did not  err
when  it  applied the  preponderance of the evidence standard  of
proof.  And like the Coleman court, we conclude that North  Poles
current   procedural  safeguards,  including  its  use   of   the
preponderance of the evidence standard, are adequate  to  protect
          officers from erroneous deprivation of their protected interests
in  their  employment as well as their reputational and financial
interests.56   Because due process is satisfied  by  use  of  the
preponderance of the evidence standard, Jurgens is  not  entitled
to a heightened proof standard.57
     E.   The  Board  Did  Not  Err  by  Finding  Just  Cause  To
          Terminate Jurgens.
          Jurgens argues that the board erred by failing  to  use
the  test  outlined in the Enterprise Wire Co.58  arbitration  to
determine  whether  just  cause supported  Jurgenss  termination.
Enterprise  Wire  announced  a seven-part  test  for  determining
whether  there  is just cause to support a termination.59   North
Pole  argues that Jurgens waived this argument by not  presenting
it to the board.
          1.   Jurgens did not preserve this issue for appeal.

          Jurgens  did  not argue at the pre-termination  hearing
that  the  board should use the Enterprise Wire test to determine
whether  just cause supported his termination.  In fact,  Jurgens
argued  a  different  and  more nuanced just-cause  test  in  his
closing  statement  to the board.  Jurgens is  incorrect  in  his
assertion  that he preserved the issue by presenting  it  to  the
superior  court.   Jurgens  waived the argument  that  the  board
needed  to use the Enterprise Wire test by not presenting  it  at
the administrative level.60
          2.   North Pole had just cause to terminate Jurgens.

          The  North Pole Municipal Code states that officers may
only  be  dismissed for just cause.61  North Pole Municipal  Code
2.36.310(A) provides that [d]isciplinary action shall range  from
verbal  admonishment, letter of reprimand, suspension  from  duty
without  pay, to dismissal for just cause, all to be administered
according  to accepted principles of proper management. (Emphasis
added.)   North Pole Municipal Code 2.36.321(F)(4)  requires  the
pre-termination review board to determine whether there  is  just
cause  to  dismiss the employee.  The ordinance does  not  define
just  cause.  Jurgens argues that the ordinance must be read with
standard  statutory  analysis principles in mind,  and  that  the
ordinance  therefore requires that the department have  objective
just cause to terminate an officer.
          Absent   statutory  or  contractual  guidance  to   the
contrary, we apply a just cause test that takes into account both
the  subjective and objective belief of the employer.62  In Braun
v.  Alaska Commercial Fishing & Agriculture Bank, we adopted  the
Washington  Supreme Courts approach for determining whether  just
cause supports a termination:
          [A] discharge for just cause is one which  is
          not for any arbitrary, capricious, or illegal
          reason  and which is one based on  facts  (1)
          supported  by  substantial evidence  and  (2)
          reasonably  believed by the  employer  to  be
Jurgens argues that Braun is not applicable here; the crux of his
argument  is  that  Braun  should  not  be  applied  because   it
emphasizes  an  employers  good  faith  subjective  belief,   not
objective standards.64
          Jurgens  misreads  Braun.   As  mentioned,  the   Braun
approach is both  subjective and objective.  In Cassel v.  State,
Department  of  Administration,  we  explained  that  [the  Braun
approach]  checks the subjective good faith of the employer  with
an objective reasonable belief standard.65  We will thus uphold a
good  faith termination upon substantial evidence of an objective
failure to meet acceptable standards. 66
          We  agree  with  Jurgens that the North Pole  ordinance
requires  an  objective basis for terminating an  officer,67  but
conclude that the Braun approach satisfies that requirement.68  We
therefore  consider whether the board had just cause under  Braun
to affirm Jurgenss termination.
          Jurgens  argues that the board overlooked Chief Hatmans
bad  faith  investigation.  Jurgens argues that Chief Hatman  did
not  want to hear Jurgens side of the story.   But whether  Chief
Hatman  investigated Jurgenss side of the story has little import
here  because Jurgens participated in a hearing before the  board
during  which  he  could  have told his  side  of  the  story  by
presenting  testimony  and evidence and  cross-examining  adverse
          Jurgens  also suggests that Chief Hatmans investigation
was not conducted fairly and objectively because Chief Hatman was
simultaneously  a  prosecutor, a judge,  and  a  witness  against
Jurgens.   Jurgenss briefing regarding this issue is cursory:  he
mentions  the  issue  in  only  one  sentence  and  provides   no
supporting  citation  to  any  legal  authority,  much  less  any
authority reversing a termination following a full hearing before
an  administrative  hearing panel.  We assume  from  his  limited
briefing  that  Jurgens  is arguing that Chief  Hatmans  role  as
prosecutor, judge, and witness prohibits a finding of just  cause
termination  under Enterprise Wire,70 and was, more generally,  a
violation  of due process.  But Jurgens has not demonstrated  any
colorable  basis for suspecting that Chief Hatman  engaged  in  a
biased investigation and termination process.  Even if we were to
assume  that  the  board  gave some deference  to  Chief  Hatmans
findings  and decision to terminate Jurgens, Jurgenss opportunity
to  be  heard, to present evidence and challenge adverse evidence
at  the hearing conducted by the three-person board, and to  file
an  administrative appeal in the superior court,  eliminates  any
due   process  concerns.   Given  the  board  hearing   and   the
administrative appeal, we are unconvinced by Jurgenss cursory and
unsupported  argument  that Chief Hatmans involvement  undermined
the impartiality of the boards decision.
          In rendering its decision, the board recognized that it
needed  to make a just-cause determination and then stated:  [I]t
is  the  unanimous  opinion  of the Review  Board  based  on  the
testimony and evidence presented during the hearing, the City  of
North Pole Municipal Code, and considering also Sergeant Jurgenss
role  as  a supervisor, that the sexual harassment constituted  a
serious   offense  justifying  dismissal.   Given  the   evidence
presented at the hearing, the boards finding of just cause  meets
          the Braun test.  North Pole had legitimate reasons to dismiss
Jurgens, including allegations of sexual harassment supported  by
substantial   evidence  at  the  hearing,  much  of   which   was
uncontroverted.71   And  it  was  reasonable,  after  North  Pole
presented  uncontroverted evidence of sexual  harassment  conduct
and  the  effect of such conduct on employees in the  department,
for  the  board  to  believe  the evidence  against  Jurgens,  to
consider  the  citys allegations proved, and to  affirm  Jurgenss
     F.   The   Board   Did   Not   Err  in  Affirming   Jurgenss
          Consistent   with   NPMC  2.36.321(F)(4),   the   board
considered  whether  to  affirm the dismissal,  impose  a  lesser
disciplinary  action, or prohibit the imposition  of  discipline.
The  board  concluded that Jurgenss conduct justified  dismissal.
Jurgens argues that North Pole could legally dismiss Sgt. Jurgens
for  cause only if it also considered and concluded Sgt.  Jurgens
could  not  be  rehabilitated and only if such a conclusion  were
supported  by  substantial  evidence.   Jurgens  argues  that  by
failing to do so, the city breached the implied covenant of  good
faith  and  fair dealing.73  Jurgens argues that the  North  Pole
police  operations  manual  forms  part  of  Jurgenss  employment
contract and that read together, the municipal ordinance and  the
manual  create  a  system of discipline .  .  .  to  rehabilitate
employees that includes  an opportunity to modify behavior,  once
the  employee has been place[d] . . . on notice that  conduct  is
unacceptable.  74  North Pole does not dispute  that  the  police
operations manual formed part of Jurgenss employment contract, or
that  the  ordinance  and manual require  the  city  to  consider
rehabilitation and an opportunity to modify behavior.  But  North
Pole  argues  that  Jurgenss conduct was egregious  and  demanded
immediate  termination,  and that Jurgens  did  not  present  any
evidence   indicating   that  he  was  a   good   candidate   for
          Our   review   is   limited  to   determining   whether
substantial  evidence supports the boards decision  that  Jurgens
could  not  be  rehabilitated and that  no  lesser  sanction  was
          The  boards  conclusion that Jurgenss sexual harassment
conduct  constituted a serious offense justifying  dismissal  was
supported  by  substantial evidence.  As  we  explained  in  Part
III.C,  North  Pole presented substantial evidence to  support  a
finding  that  Jurgenss  conduct  was  serious,  pervasive,   and
offensive.  Although Jurgens presented some evidence that he  was
remorseful about his conduct, he qualified many of his remorseful
statements.  For example, in reference to the pacifier  incident,
Jurgens  stated,  if I could take that back, I  would  take  that
back,  but we were all laughing about it and having a good  time.
Jurgens  also  testified that he thought  his  dismissal  was  an
unduly   severe  punishment  because  it  was  never   offensive.
[Streeter] never told me it was offensive.  And Jurgens testified
that although he had at times acted inappropriately, some of  the
things  that  were  brought up, some of the things  are  --  some
          people do have some axes to grind with me.  Jurgens has also
suggested  that  Streeter incited or solicited Jurgenss  conduct.
And he has suggested that Streeter made the complaint against him
in retaliation for concerns he raised about her.
          Chief  Hatman  testified that dismissal  was  the  only
appropriate sanction:
          Looking at the action that was taken and  the
          environment  that was created, I  didnt  feel
          that I had any remedy other than termination.
          .  .  .   I cant transfer him, I cant  demote
          him,  I  cant do anything else with him  that
          would   remove  that  environment  that   was
          created.   There was nothing else I could  do
          to  remedy  the  environment  that  had  been
          created,  other than removing  him  from  it,
          Jurgens tries to draw a distinction between the conduct
that  the  board found he engaged in and major sexual  harassment
(i.e.,  quid pro quo sexual harassment or conduct of  a  physical
nature).   He also contrasts his behavior with criminal  behavior
for which dismissal is an automatic sanction.76  But the ordinance
itself  does  not  make these distinctions.   The  boards  chosen
sanction  was within the range of available sanctions for  sexual
harassment.   North  Pole  Municipal Code  2.36.291(C)  provides:
Sexual  harassment  is a form of misconduct which  constitutes  a
serious offense and subjects offenders to disciplinary action, up
to   and  including  discharge.  (Emphasis  added.)   Given   the
uncontradicted  evidence  of  sexual harassment  behavior,  Chief
Hatmans  testimony  that no lesser sanction  was  available,  and
Jurgenss   testimony  that  suggests  he  did   not   take   full
responsibility  for  his conduct, substantial evidence  supported
the  boards  decision  to affirm Jurgenss  dismissal  and  reject
lesser rehabilitation-oriented sanctions.
          For  these  reasons,  we  AFFIRM  the  superior  courts
decision that affirmed the boards decision.
     1      Blacks  Law  Dictionary  defines  hostile-environment
sexual  harassment   as  [s]exual  harassment  in  which  a  work
environment is created where an employee is subject to  unwelcome
verbal  or  physical  sexual behavior that is  either  severe  or
pervasive. Blacks Law Dictionary 1407 (8th ed. 2004).

     2     Circle  De Lumber Co. v. Humphrey, 130 P.3d  941,  946
(Alaska  2006); Faulk v. Bd. of Equalization, 934 P.2d  750,  751
n.2 (Alaska 1997).

     3     Lindhag v. State, Dept of Natural Res., 123 P.3d  948,
952  (Alaska 2005); Fields v. Kodiak City Council, 628 P.2d  927,
932  (Alaska  1981)  (The duty of this court,  and  that  of  the
superior  court  below,  is  to determine  whether  [substantial]
evidence supports the boards conclusions.).

     4    Municipality of Anchorage v. Devon, 124 P.3d 424, 42829
(Alaska  2005)  (quoting  Cowen v. Wal-Mart,  93  P.3d  420,  424
(Alaska 2004)).

     5    Id. at 429; Lindhag, 123 P.3d at 952.

     6     See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 615
n.3, 61819 (Alaska 1996).

     7     Nenana  City Sch. Dist. v. Coghill, 898 P.2d 929,  934
(Alaska 1995).

     8    Manthey v. Collier, 367 P.2d 884 (Alaska 1962).

     9     Hewing  v.  Alaska Workmens Comp. Bd.,  512  P.2d  896
(Alaska 1973).

     10    Manthey, 367 P.2d at 889.

     11    Hewing, 512 P.2d at 898 n.4.

     12     White v. Alaska Commercial Fisheries Entry Commn, 678
P.2d 1319 (Alaska 1984).

     13    Id. at 1322.

     14    Hewing, 512 P.2d at 898; Manthey, 367 P.2d at 889.

     15    White, 678 P.2d at 1322 n.9.

     16    The manifest error standard is therefore similar to our
plain  error standard under which we will only review claims  not
raised below where an obvious mistake has been made which creates
a  high likelihood that injustice has resulted.  See Alden H.  v.
State,  Office  of Childrens Servs., 108 P.3d 224, 22728  (Alaska
2005)  (quoting D.J. v. P.C., 36 P.3d 663, 667-68  (Alaska  2001)
(quoting  Broeckel  v. State, Dept of Corr., 941  P.2d  893,  897
(Alaska  1997)));  Miller v. Sears, 636 P.2d 1183,  1189  (Alaska

     17    See North Pole Municipal Code (NPMC) 2.36.321.

     18    Faulk v. Bd. of Equalization, 934 P.2d 750, 751 (Alaska
1997)  (quoting South Anchorage Concerned Coal., Inc. v.  Coffey,
862  P.2d  168, 175 (Alaska 1993)); see also Alvarez v. Ketchikan
Gateway  Borough,  28  P.3d 935, 94041 &  nn.1819  (Alaska  2001)
(reviewing  sufficiency of findings cases).   By  comparison,  we
observed  in  White that the CFEC itself noted . . .  one  cannot
tell  whether  the Commission ruled adversely  to  White  on  the
factual  issue,  or  whether its ruling  was  on  legal  grounds.
White,  678 P.2d at 1322.  It is impossible to ascertain  whether
the  CFEC rejected Whites claim that he was not involved  in  the
day-to-day  operation  of the plumbing  business  or  whether  it
concluded   as  a  matter  of  law  that  income  from   a   sole
proprietorship   should   necessarily   be   deemed    nonfishing
occupational  income  within the meaning of the regulation.   Id.
(footnote omitted).

     19     The  board  stated in its decision that  Jurgens  had
engaged  in  conduct clearly amounting to sexual  harassment  and
that such conduct affected the complainants work performance  and
also   created  an  intimidating,  hostile  and  offensive   work
environment.  The board also stated that Jurgenss conduct  was  a
serious offense justifying dismissal.

     20      Jurgens  more  generally  argues  that   the   board
erroneously applied the code as a general civility code, which we
interpret  as an argument that Jurgenss conduct was  not  severe,
unwelcome,  or  offensive enough to be hostile  work  environment
sexual  harassment.  But Jurgens does not argue that the evidence
does not support the boards findings about his specific conduct.

     21    NPMC 2.36.291(A).

     22     North  Pole does not contest Jurgenss assertion  that
conduct constitutes sexual harassment only if it is unwelcome. We
therefore  do  not need to decide whether Jurgenss  assertion  is
correct; we assume for the purposes of this appeal that the  code
requires  a finding of unwelcomeness, regardless of the  type  of
conduct in which Jurgens engaged.

     23     Jurgens  denied making such a statement, although  he
admitted  that because of his drinking that night  he  could  not
remember exactly what he had said to Streeter.

     24      Lindhag,  123  P.3d  at  952  (quoting  Robinson  v.
Municipality of Anchorage, 69 P.3d 489, 493 (Alaska 2003)).

     25     Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
952  (Alaska  2005) (quoting Bradbury v. Chugach Elec.  Assn,  71
P.3d 901, 905 (Alaska 2003)).

     26     Cf.  Wagner v. Stuckagain Heights, 926 P.2d 456,  459
(Alaska  1996) (holding that appellant waived argument by failing
to  raise argument before workers compensation board and  failing
to  list  or  brief  issue in administrative appeal  to  superior

     27    See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 619
(Alaska 1996).

     28     Romulus  v. Anchorage Sch. Dist., 910 P.2d  610,  618
(Alaska 1996).

     29    Id. at 619.

     30    Id. at 61819.

     31    See id. at 61213.

     32    See id. at 614.

     33     See  Clark v. Bd. of Fire & Police Commrs of Bradley,
613  N.E.2d 826, 830 (Ill. App. 1993), cited in Romulus, 910 P.2d
at 618.

     34    Meyers v. Montgomery County Police Dept, 626 A.2d 1010,
1026 (Md. App. 1993), cited in Romulus, 910 P.2d at 618.

     35    Id. at 1026.

     36     See  Coleman v. Anne Arundel County Police Dept,  797
A.2d 770, 78487 (Md. 2002).

     37     Coleman v. Anne Arundel County Police Dept, 797  A.2d
770, 789 (Md. 2002).

     38    Id. at 77990.

     39     Id.  at 790 (overruling Everett v. Balt. Gas &  Elec.
Co., 513 A.2d 882, 889-91 (Md. 1986)).

     40    Id. at 789.

     41    Id. at 790.

     42    Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

     43    Coleman, 797 A.2d at 795.

     44    Id. at 79394.

     45    Id. at 794.

     46    Id. at 795.

     47    Brandal v. State, Commercial Fisheries Entry Commn, 128
P.3d 732, 738 (Alaska 2006).

     48     Mathews,  424 U.S. at 335; Brandal, 128 P.3d  at  738
(quoting  State,  Dept of Health & Soc. Servs.  v.  Valley  Hosp.
Assn, Inc., 116 P.3d 580, 583 (Alaska 2005)).  Brandal and Valley
Hospital   Assn  inadvertently  misquote  Mathews  v.   Eldridge,
substituting  the word probative for probable.  See Brandal,  128
P.3d at 738; Valley Hosp. Assn, 116 P.3d at 583.

     49    See NPMC 2.36.310(A), .321(F)(4).

     50     See Cassel v. State, Dept of Admin., 14 P.3d 278, 286
(Alaska  2000) (noting that public employees terminable only  for
cause  under  collective bargaining agreement have  a  sufficient
property interest in continued employment to warrant due  process
protection  prior to termination (quoting Storrs v.  Municipality
of  Anchorage,  721  P.2d 1146, 1148 (Alaska  1986)));  see  also
Gilbert  v.  Homar,  520  U.S.  924,  92829  (1997)  ([W]e   have
previously held that public employees who can be discharged  only
for cause have a constitutionally protected property interest  in
their  tenure and cannot be fired without due process.).  Jurgens
also  asserts that he was only a few months away from vesting  in
the public employees retirement system.

     51     DeNuptiis  v.  Unocal Corp., 63 P.3d  272,  280  n.26
(Alaska 2003); see also Paul v. Davis, 424 U.S. 693, 70102 (1976)
(holding that reputation alone does not implicate any liberty  or
property  interests sufficient to trigger procedural  protections
of Fourteenth Amendment).

     52     We therefore reject Jurgenss argument that North Pole
does  not have a governmental interest in dismissing every  full-
time  employee  accused  of,  and engaging  in,  arguable  sexual
harassment involving neither physical touching nor quid  pro  quo
sexual  harassment.   (Emphasis  in  original.)  We  also  reject
Jurgenss  argument that North Poles interest is somehow  lessened
by  the  fact  that  it  has a progressive  disciplinary  policy.
See NPMC 2.36.310(B).  And we reject Jurgenss argument that North
Pole  has  a  countervailing interest  in  retaining  a  valuable
employee like Jurgens.

     53    Coleman, 797 A.2d at 795 (quoting Meyers v. Montgomery
County Police Dept, 626 A.2d 1010, 1028 (Md. App. 1993)).

     54     See  In re Walton, 676 P.2d 1078, 1090 (Alaska  1983)
(Rabinowitz, J., dissenting) (If [the accused] is indeed innocent
of  the  allegations  made  against him,  the  risk  of  wrongful
discipline would be significantly reduced by using the clear  and
convincing evidence standard.).

     55    Walton, 676 P.2d at 1085 (holding that [b]ecause there
are  substantial  interest[s] on both sides, the  risk  of  error
should  be  borne equally.  That is accomplished by  use  of  the
preponderance of the evidence standard.).

     56     Coleman,  797 A.2d at 795.  The risk of error  should
already  be  low because the pre-termination hearing incorporated
many  procedural  safeguards including notice, representation  by
counsel,  the  right to present evidence and testimony,  and  the
right  to cross-examine witnesses. See NPMC 2.36.321 (F)(3);  see
also  In  re  Walton, 676 P.2d at 1085 n.9 (noting that  risk  of
error  in  bar  disciplinary proceedings should  be  low  because
extensive  procedural protections . . . surround bar disciplinary

     57     Although it does not apply in this case,  the  Alaska
Executive Branch Ethics Act, AS 39.52, is instructive.   The  act
requires  public officials in the executive branch to  adhere  to
its  ethical  standards, AS 39.52.110, and allows  the  personnel
board  to  recommend a variety of penalties, including dismissal,
if it finds after conducting a hearing that a public official has
violated  the  act.  AS  39.52.370, .410.   Under  the  act,  the
preponderance of the evidence standard applies at the hearing. AS

     58     Enter.  Wire Co., 46 Lab. Arb. Rep. (BNA) 356,  35962
(1966) (Daugherty, Arb.).

     59     See  Alaska  State  Employees Assn/AFSCME  Local  52,
AFL-CIO  v.  State, 74 P.3d 881, 886 n.19 (Alaska 2003)  (quoting
test from Enterprise Wire).

     60    See Bd. of Trade, Inc. v. State, Dept of Labor, Wage &
Hour  Admin.,  968  P.2d 86, 93 (Alaska 1998)  (holding  that  we
consider  issues not raised at administrative level waived);  see
also  Alaska  State Employees Assn, 74 P.3d at 886  (refusing  to
apply Enterprise Wire test on appeal because appellant failed  to
raise issue below).

     61    NPMC 2.36.310(A), .321(F)(4).

     62     Cassel  v.  State, Dept of Admin., 14 P.3d  278,  284
(Alaska 2000).

     63     Braun v. Alaska Commercial Fishing & Agric. Bank, 816
P.2d  140,  142  (Alaska  1991) (quoting Baldwin  v.  Sisters  of
Providence  in Wash., Inc., 769 P.2d 298, 304 (Wash. 1989));  see
also  Cassel,  14 P.3d at 284 (applying Braun test);  Manning  v.
Alaska  R.R.  Corp., 853 P.2d 1120, 1125 (Alaska 1993)  (applying
Braun test).

     64     Jurgens  also argues that Braun does not  apply  here
because  Braun  followed  a  Washington  case  involving  private
employment,  and  Washington [courts] would  probably  not  apply
[that]  just cause test to undefined just cause terms  under  [a]
municipal  ordinance.  We do not need to consider  here  how  the
Washington  Supreme  Court  would  apply  its  own  jurisprudence
because  Braun prescribes an objective just cause  standard   the
standard Jurgens requests.

     65     Cassel,  14 P.3d at 284 (quoting Univ. of  Alaska  v.
Tovsen, 835 P.2d 445, 447 (Alaska 1992)).

     66    Id. at 284 (quoting Baldwin, 769 P.2d at 304).

     67    See NPMC  2.36.010(A) (stating that purpose of chapter
is  to establish and operate a system of personnel administration
based  upon  equitable merit principles and professional  methods
governing  .  . . removal, [and] discipline . . . of  employees),
.310(A) (requiring system of uniform and equitable administration
of   discipline),  .310(B)  (requiring  that  discipline  []   be
administered  in  increasingly  progressive  severity),   .321(F)
(allowing  board  to impose lesser disciplinary action);  Tovsen,
835  P.2d  at  447   (holding that words  found,  evaluated,  and
unsatisfactory in personnel regulation required an objective just
cause termination).

     68    See Braun, 816 P.2d at 142.

     69    See NPMC 2.36.321(F)(3).

     70     See  Enter. Wire, 46 Lab. Arb. Rep. at 362  (Was  the
employers investigation conducted fairly and objectively?).

     71    See Braun, 816 P.2d at 142.

     72    See id.

     73     See Rutledge v. Alyeska Pipeline Serv. Co., 727  P.2d
1050, 1056 (Alaska 1986).

     74     See  NPMC 2.36.310(B) (For all but major breaches  of
work  rules,  discipline should be administered  in  increasingly
progressive  severity;  and be appropriate  for  the  offense  or
incident.    The  city  subscribes  to  the  accepted  management
principle  that  the  purpose of a system  of  discipline  is  to
rehabilitate  employees.); North Pole  Police  Operations  Manual
(The  purpose of progressive discipline is to place a  person  on
notice  that  conduct is unacceptable and to give the  person  an
opportunity to modify behavior.).

     75     Although  the  board  did  not  explicitly  reject  a
rehabilitation-oriented sanction, that decision  is  implicit  in
its conclusion.

     76    See NPMC 2.36.270(D), .300(B).

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