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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Oels v. Anchorage Police Dept. Employees Association (1/20/2012) sp-6639

Oels v. Anchorage Police Dept. Employees Association (1/20/2012) sp-6639

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

TOM OELS,1                                     ) 

                                               )       Supreme Court No. S-13949 
                Appellant,                     ) 
                                               )       Superior Court No. 3AN-09-6319 CI 
        v.                                     ) 
                                               )       O P I N I O N 
ANCHORAGE POLICE                               ) 
DEPARTMENT EMPLOYEES                           )       No. 6639 - January 20, 2012 
ASSOCIATION, MUNICIPALITY                      ) 
OF ANCHORAGE,                                  ) 
                                               ) 
                Appellees.                     ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Eric A. Aarseth, Judge. 

                Appearances:   Kevin   T.   Fitzgerald,   Ingaldson,   Maassen   & 
                Fitzgerald,    P.C.,  Anchorage,     for  Appellant.    Gregory     G. 
                Silvey,   Guess   &   Rudd,   P.C.,   Kenneth   D.   Ford,   Assistant 
                Municipal     Attorney,    and   Dennis    A.  Wheeler,    Municipal 
                Attorney, Anchorage, for Appellees. 

                Before:     Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                STOWERS, Justice. 

        1       Although appellant Oels named ten "John Does" as parties, the superior 

court never was asked to approve "John Doe" party status and thus the "John Does" were 
never proper parties.     They are omitted from this appeal. 

----------------------- Page 2-----------------------

I.      INTRODUCTION 

                Anchorage       Municipal     Code    (AMC)     section    03.30.068(A)(4)      permits 

municipal employees to retire and be rehired, thereby accessing accumulated retirement 

benefits   and   resuming   employment   under   a   different   retirement   program          with  the 

Municipality of Anchorage (MOA). 

                Tom   Oels   has   been   a   sergeant   with   the   Anchorage   Police   Department 

(APD) since 2002.  In 2005, Oels stated his intent to retire and be rehired while retaining 

the rank of sergeant.  Oels was told that under AMC 03.30.068(A)(4) he could retire, but 

could only be rehired as an entry-level patrol officer, not as a sergeant. 

                Oels filed a complaint with the Employee Relations Board (the Board) 

alleging (1) that MOA and the Anchorage Police Department Employees Association 

(APDEA) had violated AMC 03.30.068(A)(4) by requiring that sergeants be rehired as 

patrol officers, and (2) that APDEA had breached its duty of fair representation.  The 

Board heard the matter and decided against Oels on both counts. 

                Oels    appealed     the  ruling   to  the  superior    court  which,    sitting  as  an 

intermediate appellate court, affirmed the Board's decision.  The superior court held that 

although the plain meaning of AMC 03.30.068(A)(4) was ambiguous, the legislative 

history underlying the ordinance demonstrated that the provision was intended to allow 

for flexibility to rehire sergeants as patrol officers.        The superior court recognized that 

the plain language of this provision does not require that sergeants be rehired at entry, 

patrol-level, positions.   Several of the terms within the provision are defined elsewhere 

in the municipal code.       The superior court also recognized this, and its order observed 

that under AMC 03.30.005, "rehire" is defined as returning to employment in the same 

class   of   positions   or   into   a   position   in   a   parallel   class   from   which   the   individual 

separated.  The superior court reasoned that AMC 03.30.068(A)(4) alters the "normal" 

rehire    process   by   requiring   that  a  person    who   is  reinstated   within   31   days   after 

                                                  -2-                                             6639
 

----------------------- Page 3-----------------------

termination must be "rehired at the entry level salary, accrual, and seniority."  But "entry 

level" is not a defined term in the municipal code, and the parties disagreed about its 

meaning.      MOA argued that "entry level" must be construed to mean entry level within 

the police department, e.g., a patrol officer position, and Oels argued that it must be 

construed to mean "entry level sergeant."  The superior court found both interpretations 

to be equally plausible, declared the ordinance ambiguous, and turned to the legislative 

history to decide its meaning. 

                We agree with the superior court's analysis that the municipal code defines 

"rehire" as returning to the same position or class of positions, but we ultimately reach 

a different result than the superior court because, as used in AMC 03.30.068(A)(4), 

"entry   level"   modifies   "salary,   leave   accrual   and   seniority."   The   ordinance   is   not 

ambiguous; by its terms, it does not require sergeants to be rehired as entry-level patrol 

officers. 

                We therefore reverse the superior court's decision on appeal because the 

unambiguous meaning of AMC 03.30.068(A)(4) provides that APD sergeants approved 

for retire/rehire must be rehired either into the same position or into a position in the 

same or parallel class. 

II.     FACTS AND PROCEEDINGS 

                This case concerns the rehiring of APD employees shortly after retirement, 

and specifically requires that we determine whether, under AMC 03.30.068(A)(4), a 

police sergeant who takes advantage of a municipal retire/rehire program must be rehired 

in his former position as a sergeant or in a position of a same or parallel class, or must 

instead be rehired as an entry-level patrol officer.          AMC 03.30.068(A)(4) provides in 

full: 

                Reinstatement to a position after terminating within a 31-day 
                period.    An   employee   who   terminates   and   requests   to   be 

                                                  -3-                                             6639
 

----------------------- Page 4-----------------------

                rehired with less than a 31-day break in service and without 
                a   competitive     recruitment    must   submit    a  written   request 
                through   normal   agency   channels   to   the   agency   head.   The 
                request to rehire must be approved in advance by the agency 
                head and the director. If the request to terminate and rehire is 
                denied, the employee cannot grieve this action. Employees 
                who terminate and rehire under this section shall be rehired 
                at   the   entry   level   salary,   leave   accrual,   and    seniority. 
                Preemployment         requirements      may    be   waived     with   the 
                exception of the drug screen, when applicable. 

        A.      Development Of AMC 03.30.068(A)(4)'s Retire/Rehire Provision 

                "Retire/rehire" is a process by which employees may retire from a position, 

claim accrued retirement benefits, and return to work - in some cases accruing new 
benefits under a new retirement system.2          Retire/rehire appears particularly appealing to 

APD employees because police officers can retire after 20 years of service3  and officers 

may become eligible for retirement before reaching age 50.4              Prior to 2003, certain non- 

          5 
APDEA  MOA employees had been permitted to retire and be rehired in place on an ad 

        2       Certain APD employees, for instance, can "retire under the former Police 

and Fire Retirement System, return to work and then begin accruing benefits under the 
State of Alaska Public Employees Retirement System," instituted in 1993. 

        3       See AMC 03.85.065 (2011) ("A member may retire after completion of 20 

years credited service with the municipality regardless of age.").  This provision has not 
changed since 2003. 

        4       Minutes, Anchorage Assembly Regular Meeting (July 15, 2003) (testimony 

of   Gary   Gilliam,   Acting   Captain   for   the   Anchorage   Police   Department,   that   many 
employees seeking to retire and be rehired "are not near a normal retirement age."). 

        5       APDEA is the exclusive bargaining representative for certain classes of 

APD      officers,   from  patrol   officers   to  detective   sergeants.    Higher     ranks,   such   as 
lieutenants and captains, are not represented by APDEA. 

                                                   -4-                                             6639
 

----------------------- Page 5-----------------------

hoc   basis.  For   instance,   MOA   permitted   certain   high-ranking,   non-APDEA   police 

officers to retire and be rehired in place in late 2002. 

                Anchorage      Municipal     Code    section   03.30   sets  forth  personnel    rules 

governing certification and selection of candidates for employment.  Until July 2003, no 

AMC provision specifically addressed retire/rehire.             In July 2003 Assembly member 

Dick Traini sponsored a bill, AO 2003-105, to codify the informal retire/rehire program. 

 This ordinance as proposed would have amended AMC 03.30.068(A) to add subsection 

(4), which read: 

                Reinstatement to current position after terminating within a 
                31-day period. An employee who terminates and requests to 
                be rehired into their current position with less than a 31-day 
                break in service and without a competitive recruitment must 
                submit a written request through normal agency channels to 
                the agency head.     The request to rehire must be approved in 
                advance by the agency head and the director.           If the request 
                to terminate and rehire is denied, the employee cannot grieve 
                this action.  Employees who terminate and rehire under this 
                section shall be rehired at the entry level salary, leave accrual, 
                and seniority.   Preemployment requirements may be waived 
                with the exception of the drug screen, when applicable.[6] 

Assembly   member   Traini's   supporting   memorandum   specifically   stated   that   rehired 
employees   would   be   "selected   again   to  remain   in   their   current   position."7   In   his 

memorandum,         Assembly     member      Traini   described    the  purpose    of  the  proposed 

ordinance as follows: 

        6       Anchorage Ordinance No. 2003-105 (emphasis added).                 The emphasized 

portions are those that subsequently were altered by the Assembly through amendments, 
as discussed below. 

        7       Assembly      Chair   Dick   Traini,   Assembly     Memorandum        No.   555-2003 

(June 24, 2003) (emphasis added). 

                                                 -5-                                            6639
 

----------------------- Page 6-----------------------

                 The   purpose   is   to   facilitate   an   employee's   desire   to   retire 
                under     one   retirement     system    and   return   to  work    under 
                 another retirement system. 
                                                  . . . 

                 This allows for the MOA to keep highly qualified employees 
                 instead   of,   in   many   cases,   [these   employees]   leaving   the 
                 MOA   for   employment   elsewhere.           Currently,   if   a   person 
                terminates, particularly in [the] Police and Fire System, and 
                 is competitively rehired, they must first go through a battery 
                 of required tests.    This provision allows for a required drug 
                 screening, when applicable, as long as the separation from 
                 MOA employment is less than 31 days.[8] 

                At a July 15, 2003 Assembly meeting, APD Acting Captain Gary Gilliam 

testified in support of AO 2003-105, stating that the proposal would allow APD to retain 

many      of  its  most    qualified    employees      by   allowing     "more    qualified    detectives, 

supervisors, and commanders to   retire from one [retirement] plan, and participate in 
another."9 

                Assembly member Allan Tesche moved to amend AO 2003-105 to delete 
the phrase "into their current position."10           Assembly member Tesche   stated   that this 

amendment would make the ordinance more flexible by expanding the types of positions 

into which the officers could be rehired.              Captain Gilliam disagreed with Assembly 

member Tesche's amendment, because Gilliam did not want APD "to lose a 20-year 

homicide detective" to patrol duty, adding,"I need those people in a position that they're 

        8       Id. 

        9        Testimony   of   Gary   Gilliam,   APD   Acting   Captain,   at   1:12,   Anchorage 

Assembly Regular Meeting (July 15, 2003). 

        10       Statement of Allan Tesche, Assemblyman, at 1:13, Anchorage Assembly 

Regular Meeting (July 15, 2003). 

                                                    -6-                                              6639
 

----------------------- Page 7-----------------------

trained for."11  Police Chief Walt Monegan, however, supported the amendment because 

it would provide more flexibility without prohibiting  rehiring the employees into their 

current positions. 

                Assembly       member     Tesche's     substantive    amendment       passed   despite 

opposition   (including   a   "nay"   vote   by   Assembly   member   Traini,   the   bill's   original 

sponsor).     A   second, "technical" amendment then passed, which changed the title to 

reflect the newly-revised ordinance by replacing "reinstatement to current position" with 

"reinstatement to a position."       (Emphasis added.)      Amended ordinance 2003-105 then 

passed with all in favor, including sponsor Traini. Consequently, AMC 03.30.068(A)(4) 

as adopted omits all language dictating reinstatement to a "current position," and instead 

provides in relevant part: 

                Reinstatement to a position after terminating within a 31-day 
                period.   An    employee   who   terminates   and     requests   to   be 
                rehired with less than a 31-day break in service and without 
                a   competitive    recruitment   must   submit   a    written   request 
                through normal agency channels to the agency head. 

(Emphasis added.) 

        B.      Oels's Complaint 

                Appellant Tom Oels is an APD shift supervisor and has held the rank of 
sergeant since 2002.  Like all APD sergeants, Oels is represented by APDEA.12 

                On September 22, 2005, Oels emailed Chief Monegan and indicated his 

desire to retire and be rehired in place.  His request was denied because APDEA blocked 

        11      Statement   of   Gary   Gilliam,   APD   Acting   Captain,   at   1:15,   Anchorage 

Assembly Regular Meeting (July 15, 2003). 

        12      See supra note 5. 

                                                  -7-                                              6639 

----------------------- Page 8-----------------------

its members from rehiring in place.         An APDEA retire/rehire information packet given 
to Oels stated that he would be rehired as a patrol officer.13 

                Oels submitted a grievance to APDEA because he would not be allowed 

to retire and be rehired in place, and Oels discussed his grievance with the APDEA 

Executive Board on several occasions. APDEA put the issue to a vote of its membership 

on December 8, 2005.  The APDEA membership voted to deny its members the ability 
to rehire in place.14   Shortly thereafter, in January 2006, the APDEA Executive Board 

denied Oels's request to pursue his grievance against MOA, and in February 2006 Chief 
Monegan officially denied Oels's request.15 

                On June 22, 2006, Oels filed suit in the superior court, alleging that MOA 

and   APDEA   violated   AMC   03.30.068,   and   that   APDEA   breached   its   duty   of   fair 

representation   to   its   sergeant   members.   On   February   12,   2007,   the   superior   court 

ordered that Oels file his complaint with the Employee Relations Board and stayed the 

case pending agency review. 

        13      The packet stated that rehired employees "[would] be rehired as a Patrol 

Officer," and that their "job assignment [would] be Patrol." 

        14      The ballot question read "Should the APDEA support the view that an 

individual parti[c]ipating in the retire/rehire process be allowed to be rehired in his/her 
former position?"  The question was accompanied by an explanatory chart of proposed 
changes, as well as an explanation that, absent a change in policy, "a sergeant who wants 
to participate in the retire/rehire program is rehired as a police officer, not a sergeant." 
The membership voted 156-94 against the proposition that officers should be rehired in 
their current positions. 

        15      The Chief wrote to Oels, "I must advise you that though you are certainly 

eligible to retire and rehire, I will not approve your ability to rehire in your current 
position." 

                                                 -8-                                           6639
 

----------------------- Page 9-----------------------

                On March 14, 2007, Oels filed his complaint with the Board.               A probable 
cause investigator found sufficient cause for a hearing.16 

        C.      The Board Hearing 
                An evidentiary hearing was held before the Board on August 29-30, 2007.17 

All parties were represented by counsel. 

                More than a year later, on November 11, 2008, the Board hearing officer 

issued his Recommended Findings of Fact, Conclusions of Law, and Order. The hearing 

officer found that because language that provided that employees would be rehired "into 

their current position" had been deleted from the final version of AMC 03.30.068(A)(4) 

prior to its passage, the ordinance as passed did not mandate that Oels be rehired in 

place. The hearing officer also concluded that because retirement is a mandatory subject 

of bargaining, it would be an unfair labor practice for the Assembly to make unilateral 

changes     to  retire/rehire   policy,  and   even   if  the  ordinance    had   included   language 

mandating   rehiring   in   place,   "the   ordinance   would   not   have   applied   to   members   of 

APDEA."        Finally, the hearing officer found that APDEA had not breached its duty of 

fair representation to Oels because APDEA's actions were not arbitrary, discriminatory, 

or   in  bad  faith,   because   "Oels   was   permitted    to  present   his  views,"   and   because 

ultimately the APDEA membership voted on the issue. 

                The    parties   were   given   until  November      24,   2008   to  submit    written 

objections to these findings; none did. On April 14, 2009, the Board issued its ruling and 

        16      Oels's complaint before the Board was time-barred per AMC 03.70.140(C), 

but APDEA and MOA agreed to waive any untimeliness objection. 

        17      The hearing was recorded but transcripts were not produced due to "an 

equipment malfunction." As such, no reliable independent record exists of the testimony 
offered at the hearing, however all parties summarized hearing testimony in their post- 
hearing briefs and the witness lists and exhibits are available in the record. 

                                                  -9-                                            6639
 

----------------------- Page 10-----------------------

adopted the hearing officer's recommended findings in favor of MOA and APDEA, 

                                                                                                    18 
specifically that (1) neither MOA nor APDEA had violated AMC 03.70.140 (2011)                          or 

any    other   AMC      provision,    and   (2)  APDEA       had   not   breached     its  duty   of  fair 

representation. 

        D.      Appeal To The Superior Court 

                Oels   appealed   the   Board's   decision   to   the   superior   court   sitting   as   an 

intermediate appellate court.  On appeal, Oels argued (1) that the Board erred in finding 

that AMC 03.30.068(A)(4) permitted MOA to rehire sergeants as patrol officers, and 

cited to the legislative history of the ordinance in support; and (2) that the Board erred 

in   finding   that   APDEA   did   not   breach   its   duty   of   fair   representation   to   its   sergeant 
members.19      APDEA   and   MOA   argued   in   response   (1)   that   the   plain   language   of 

AMC 03.30.068(A)(4) controlled; (2) that if ambiguity did exist the legislative history 

supported   the   Board's decision; and (3) that APDEA did not breach its duty of fair 
representation.20    Oral argument was held before Superior Court Judge Eric Aarseth on 

June 25, 2010. 

        18      AMC       03.70.140     sets  forth   municipal     rules   concerning     unfair   labor 

practices, including, inter alia, prohibited actions by MOA, employees, and employee 
representatives.     This provision has not been changed since 1989. 

        19      Although it was not included in the issues presented for appellate review 

before the superior court, Oels devoted a portion of his brief on appeal to the superior 
court to arguing that the Board erred in finding that the collective bargaining agreement 
(CBA) controlled over contrary Municipal ordinance. Oels presented a similar argument 
before the Board. 

        20      APDEA and MOA also argued before the superior court that the CBA 

controlled over contrary municipal ordinance because retire/rehire was a mandatory 
subject of bargaining for the 2004 CBA, and that any unilateral change by MOA would 
constitute an unfair labor practice. 

                                                  -10-                                             6639
 

----------------------- Page 11-----------------------

                On July 20, 2010, the superior court issued its decision on appeal affirming 

the    Board's    decision.      The    superior   court    held   that  the   plain   meaning     of 

AMC      03.30.068(A)(4)      was   ambiguous,     but  that  the  legislative   history  supported 

APDEA's and MOA's interpretation.  It also held that APDEA "did not breach its duty 

of fair representation to its sergeant members by declining to pursue Oels' grievance." 

The     superior    court   did    not   address    the   Board's     conclusion     that,  even    if 

AMC 03.30.068(A)(4) had included language mandating rehire in place, "the ordinance 

would not have applied to members of APDEA" because retire/rehire was a mandatory 

subject of bargaining. 

                This appeal followed. 

III.    DISCUSSION 

        A.      Standard Of Review 

                "When the superior court acts as an intermediate court of appeal in an 

administrative matter, we independently review and directly scrutinize the merits of the 
[administrative] decision."21 

                In reviewing the merits of an administrative ruling, we apply a four-part 

standard,    using   "(1)  the   'substantial  evidence    test'  for  questions   of  fact,  (2)  the 

'reasonable     basis   test'  for  questions   of  law   involving    agency    expertise,  (3)  the 

'substitution of judgment test' for questions of law involving no agency expertise, and 
(4) the 'reasonable and not arbitrary test' for review of administrative regulations."22 

        21     Kingik v. State, Dep't. of Admin., Div. of Ret. & Benefits, 239 P.3d 1243, 

1247-48 (Alaska 2010) (quotingMcMullen v. Bell, 128 P.3d 186, 189-90 (Alaska 2006)). 

        22      Conoco Phillips Alaska, Inc. v. State, Dep't. of Natural Res., 109 P.3d 914, 

919 (Alaska 2005) (citing Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska 1975)). 

                                                -11-                                             6639 

----------------------- Page 12-----------------------

The "substitution of judgment" test is equivalent to de novo review23 and requires that 

we   "adopt the rule of law that is most persuasive in light of precedent, reason,   and 
policy."24 

                "We review the interpretation of a statute de novo."25            When construing 

statutes, we consider three factors:       "the language of the statute, the legislative history, 
and the legislative purpose behind the statute."26           We have held that "the plainer the 

language of the statute, the more convincing any contrary legislative history must be . . . 
to overcome the statute's plain meaning."27 

        B.      Oels's Appeal Is Not Barred For Lack Of Standing. 

                APDEA   and   MOA   argue   for   the   first   time   on   appeal   that   Oels   lacks 

standing to assert his claims.   Specifically, APDEA and MOA contend that Oels has not 

shown an actual or imminent injury because he did not actually request to retire/rehire 

and has not shown that his request would be approved even if he did so.                  In response 

Oels asserts without elaboration that he has "ample standing" under "the interest-injury 

approach." 

                APDEA and MOA concede that the question of standing was not raised 

before either the Board or the superior court.         "Questions of standing should be raised 

        23      Griswold v. City of Homer, 252 P.3d 1020, 1025 n.6 (Alaska 2011). 

        24      Kingik, 239 P.3d at 1248 (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 

(Alaska 1979)). 

        25      L.D.G., Inc. v. Brown, 211 P.3d 1110, 1118 (Alaska 2009) (citingAlaskans 

For Efficient Gov't, Inc. v. Knowles, 91 P.3d 273, 275 (Alaska 2004)). 

        26      Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010) (citing W. 

Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1050 (Alaska 2004)). 

        27      Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 922 n.6 (Alaska 1991) (citing 

State v. Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982)). 

                                                 -12-                                           6639
 

----------------------- Page 13-----------------------

and decided during the initial stages of litigation,"28 and failure to raise the issue below 

results in waiver of that defense.29      We note that, even if standing were properly before 

us, Oels's appeal would not be barred:          Oels took concrete steps toward retire/rehire,30 

and   "we   have   long   interpreted   Alaska's   standing   requirement   leniently   in   order   to 

facilitate access to the courts. 'The basic idea . . . is that an identifiable trifle is enough 
for standing to fight out a question of principle.' "31        Consequently, we consider Oels's 

appeal. 

        C.	     It   Was    Error    To   Conclude      That    AMC     03.30.068(A)(4)       Requires 
                Retiring Sergeants To Be Rehired As Patrol Officers. 

                Oels argues that AMC 03.30.068(A)(4) requires that retiring sergeants be 

rehired as entry level sergeants, not as patrol officers.  APDEA and MOA argue that the 

ordinance provides that MOA need not rehire Oels as a sergeant. 

                In construing AMC 03.30.068(A)(4), we consider "the language of the 
statute, the legislative history, and the legislative purpose behind the statute."32 

        28	      Osterkamp v. Stiles, 235 P.3d 178, 185 n.19 (Alaska 2010). 

        29      Id. at 185-86; see also Moore v. State, Dep't of Natural Res., 992 P.2d 576, 

577 n.5 (Alaska 1999) (citingJackson v. Nangle, 677 P.2d 242, 250 n.10 (Alaska 1984)). 

        30      Oels emailed the chief of police to request retire/rehire in place, and his 

request was denied due to APDEA policy as set forth in the APDEA information packet. 
Oels then met with MOA and APDEA officials to complain, presented his case as a 
grievance to APDEA, and discussed his case with the APDEA Executive Board on 
several occasions, only to learn that his request to rehire in place had again been denied. 

        31      State   v.   Planned   Parenthood   of   Alaska,   35   P.3d   30,   34   (Alaska   2001) 

(quoting    Wagstaff   v.   Superior   Court,   Family   Court   Div.,   535   P.2d   1220,   1225   n.7 
(Alaska 1975)). 

        32      Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010) (citing 

Western Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1050 (Alaska 
                                                                                        (continued...) 

                                                  -13-	                                           6639
 

----------------------- Page 14-----------------------

                 1.	     When read in concert with the definitions in AMC 03.30.005, the 
                         plain meaning of AMC 03.30.068(A)(4) requires that employees 
                         retiring   under   this   provision   shall be   rehired   either   into   the 
                         same position or into a position in the same or a parallel class. 

                 AMC 03.30.068(A)(4) provides in full: 

                 Reinstatement to a position after terminating within a 31-day 
                 period.   An   employee   who       terminates   and    requests   to   be 
                 rehired with less than a 31-day break in service and without 
                 a   competitive     recruitment     must   submit    a  written   request 
                 through   normal   agency   channels   to   the   agency   head.   The 
                 request to rehire must be approved in advance by the agency 
                 head and the director. If the request to terminate and rehire is 
                 denied, the employee cannot grieve this action. Employees 
                 who terminate and rehire under this section shall be rehired 
                 at   the   entry   level  salary,   leave    accrual,    and   seniority. 
                 Preemployment         requirements      may     be   waived     with   the 
                 exception of the drug screen, when applicable. 

(Emphases added.) 
                 We read this section in concert with definitions elsewhere in the Code.33 

Anchorage   Municipal   Code   03.30.005   defines   "rehire"   as           "an  appointment   into   a 

position in the same class of positions  from which separated in good standing, or into a 
position in a parallel class ."34        "Reinstatement" is similarly defined: "Reinstatement 

         32(...continued) 

2004)). 

         33      AMC   03.30.005   provides   that   the   "words,   terms   and   phrases"   defined 

therein   "shall   have   the   meanings   ascribed   to   them   in   this   section,   except   where   the 
context   clearly   indicates   a   different   meaning."     These   definitions   were   presented   as 
exhibits at the Board hearing. 

         34      Emphasis added.        The definition of "rehire" has not changed between the 

time of this case and the most recently updated Anchorage Municipal Code in 2011. 

                                                   -14-	                                             6639
 

----------------------- Page 15-----------------------

means replacement of an employee into a position in the same class occupied previously 
or a parallel class when there has been no break in service . . . ."35 

                Under AMC 03.30.068(A)(4) and the AMC definition of "rehire," MOA 

would have to rehire Oels into a position "in the same class of positions," or "into a 
position   in   a   parallel  class."36 The   AMC   defines   "class"   as   "a   group   of   positions 

sufficiently   similar   as   to   duties   performed,   scope   of   discretion   and   responsibility, 

minimum requirements of training, experience or skill, and such other characteristics that 

the same title, the same test of fitness and the same range of compensation apply to each 
position in the group."37 

                The Collective Bargaining Agreement (CBA) reflects that APD sergeants 

occupy a different "classification" than patrol officers.   Although "title" is undefined in 

AMC 03.30.005, "sergeant" appears to be a position "title" and therefore is relevant to 
defining a "class."38     It is unclear whether the same test of fitness39 applies to sergeants 

and patrol officers, but the compensation for these positions certainly differs: sergeants 

are a "Grade 27 classification" whereas patrol officers are "Grade 24," and promotion 

to sergeant is accompanied by "at least a ten percent (10%) increase in base pay." 

        35      AMC 03.30.005. 

        36      Id. (emphasis added). 

        37      Id. 

        38      Although it does not make reference to the "class" set forth in the AMC, 

the   CBA   does   provide   that   sergeants   occupy   a   different   "classification"   than   patrol 
officers. 

        39      The     APD     fitness  test   is  described    online.    See   Selection     Process, 

http://www.muni.org/Departments/police/JoinAPD/Pages/SelectionProcess.aspx                           (last 
visited Jan. 3, 2012). 

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                In light of these definitions, we conclude that patrol officers do not occupy 

the   same   "class"   as   sergeants,   and   therefore   under   AMC   03.30.068(A)(4)   a   retiring 

sergeant must be "rehired" in a position of the same or parallel class from which he 

retired. 

                We note that the ordinance provides for "reinstatement to a position" with 

the caveat that the employee "shall be rehired at the entry level salary, leave accrual, and 
seniority."40    "Entry level," though undefined, is used here to modify "salary, leave 

accrual, and seniority," not to dictate rehire into an entry levelposition .   In other words, 

upon rehire the employee is reset to entry level salary, leave accrual, and seniority within 

the same position (or a position within the same or a parallel class). 

                We therefore conclude that the plain language of AMC 03.30.068(A)(4) 

requires   that   employees   retiring   under   this   provision   must   be   rehired   into   the   same 

position or into a position among the same or a parallel "class" of positions, but at entry 

level salary, leave accrual, and seniority within that class or a parallel class of positions. 

                2.	     The legislative history underlying AMC 03.30.068(A)(4) does 
                        not override the plain meaning of the ordinance. 

                At the July 15, 2003, MOA Assembly meeting, Assembly member Traini 

proposed AO 2003-105 - which would become AMC 03.30.068(A)(4) - and included 

language specifically mandating that rehired employees be reinstated "into their current 

position." Assembly member Tesche moved to delete this language. Assembly member 
Tesche stated that this "core amendment"41 would make the ordinance more flexible by 

        40      AMC 03.30.068(A)(4) (emphasis added).               As the superior court noted in 

its decision, the term "entry level" is not defined or used elsewhere in the AMC, nor is 
it defined in Black's Law Dictionary or in applicable case law. 

        41      Assembly member Tesche said, "I'm going to vote in favor of this - I do 

have a core amendment that I would like to offer." 

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expanding the types of positions that retiring officers could be rehired into.             Assembly 
member Tesche's amendment passed.   A second, "technical amendment"42 also passed, 

changing "reinstatement to current position" in the first sentence to "reinstatement to a 

position."   (Emphasis added.)       Amended ordinance AO 2003-105 was then approved. 

                Although these revisions can be read to suggest that the Assembly sought 

to remove the specific requirement that employees be rehired into the same position from 

which   they   retired,   the   assembly   did   not   amend   AMC   03.30.005,   the   definition   of 

"rehire."   Thus, the changes made to the ordinance prior to its passage still yielded a 

provision that unambiguously allows sergeants to retire and be rehired into the same or 

parallel class of positions.     And the ability to rehire a police officer not only into the 

same position but also into a parallel class is consistent with Assembly member Tesche's 

concern to "make [the] ordinance more flexible by expanding the types of positions that 

[retiring]   officers   could   be   rehired   into." We   therefore   conclude   that   although   the 

legislative history is somewhat contrary to the plain meaning of the ordinance, it does not 
overcome the plain meaning.43 

                3.	     The     express    purpose      underlying     AMC       03.30.068(A)(4)      is 
                        consistent with the plain meaning of the ordinance. 

                Oels argues on appeal that AMC 03.30.068(A)(4) arose from APD's desire 

to stem losses of experienced officers.           Oels also contends that "the experience and 

training of highly qualified employees like sergeants is best served by having them return 

        42      The purpose of this "technical amendment" was to make the first sentence 

of the ordinance consistent with the change already provided by Assembly member 
Tesche's amendment. 

        43      See Coughlin v. Gov't Emp. Ins. Co. (GEICO), 69 P.3d 986, 988 (Alaska 

2003) (quoting Curran v. Progressive Nw. Ins. Co., 29 P.3d 829, 831-32 (Alaska 2001)). 

                                                 -17-	                                           6639
 

----------------------- Page 18-----------------------

as sergeants, rather than as patrol officers."   APDEA does not address the purpose of the 

ordinance, except to argue that we should not consider it. 

                In construing AMC 03.30.068(A)(4), the "legislative purpose behind the 
statute" is one of three factors we may consider.44 

                In his memorandum proposing AO 2003-105, Assembly member Traini 

described the purpose of the proposed ordinance as follows: 

                The   purpose   is   to   facilitate   an   employee's   desire   to   retire 
                under     one  retirement     system   and   return   to  work    under 
                another retirement system. . . . This allows for the MOA to 
                keep highly qualified employees instead of, in many cases, 
                [these     employees]      leaving    the  MOA      for   employment 
                elsewhere.     Currently, if a person terminates, particularly in 
                [the] Police and Fire System, and is competitively rehired, 
                they must first go through a battery of required tests.            This 
                provision     allows    for   a  required    drug   screening,    when 
                applicable, as long as the separation from MOA employment 
                is less than 31 days. 

Assembly member Traini himself apparently intended that affected employees rehire into 
their current position,45 although his stated purpose for the proposed ordinance was "to 

facilitate an employee's desire to retire under one retirement system and return to work 

under another retirement system" - in other words, to obtain retirement benefits under 

one plan, and return to work and accrue new retirement benefits under another plan. 

This   purpose   is   equally   well-served   no   matter   the   position   to   which   the   employee 

        44      Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010). 

        45      Assembly member Traini's proposed ordinance AO 2003-105 contained 

such language, and his memorandum in support also noted employees being "selected 
again to remain in their current position." 

                                                  -18-                                              6639 

----------------------- Page 19-----------------------

returns.46  The express purpose of AMC 03.30.068(A)(4) therefore is served by allowing 

APD employees to retire and be rehired without regard to their specific positions upon 

rehiring, and this purpose is consistent with the plain meaning of the ordinance.                 Our 

interpretation of the ordinance is also consistent with Assembly member Tesche's stated 

purpose in offering his amendment to the proposed ordinance:                 to make the ordinance 

more flexible by expanding the types of positions into which officers could be rehired. 

                4.	     Summary:       AMC 03.30.068(A)(4) requires that APD sergeants 
                        who   are   approved   for   retire/rehire   must   be   rehired   into   the 
                        same position, or in a position of the same or parallel class. 

                We conclude that the meaning of AMC 03.30.068(A)(4) is plain and not 

ambiguous,   and   that   the   AMC   definitions   of   "rehire,"   "reinstatement,"   and   "class" 

together require that employees retiring under AMC 03.30.068(A)(4) must be rehired 

either into the same position, or into a position in the same or a parallel class of positions. 

We also conclude that the legislative history, although evidencing some contrary intent, 

does   not   override   this   plain   meaning,   and   that   evidence   of   legislative   purpose   also 

supports this interpretation. We therefore interpret AMC 03.30.068(A)(4) to require that, 

if retire/rehire is approved in a particular case, a retiring APD sergeant must be rehired 

as a sergeant or in a position in the same or parallel class. 

        D.	     We     Do   Not   Decide    Whether     APDEA       Breached      Its   Duty  Of   Fair 
                Representation Or Whether The Ordinance Is Moot In Light Of The 
                CBA. 

                Oels argued that APDEA breached its duty of fair   representation to its 

sergeant members before both the Board and the superior court.   Both the Board and the 

        46      Furthermore,   Assembly   member   Traini   went   on   to   emphasize   that   the 

proposed ordinance "allows for the MOA to keep highly qualified employees instead of, 
in many cases, [these employees] leaving the MOA for employment elsewhere."  The 
problem Assembly member Traini sought to avoid apparently was employees leaving 
MOA, not their returning to different positions. 

                                                 -19-	                                           6639
 

----------------------- Page 20-----------------------

superior court ruled on this issue.          Oels did not raise this issue on appeal to us: it is 

absent   from   his   points   on   appeal   and   is   not   raised   elsewhere   in   his   opening   brief. 

APDEA and MOA contend that Oels has waived this issue on appeal.  In his reply brief, 

Oels asserts that the issue has not been abandoned, arguing essentially that the superior 

court's attention to the issue preserved it. 

                 On appeal to this court, the "[f]ailure to argue a point of law constitutes 
abandonment."47       This comports with our "well-established rule that issues not argued 

in   opening     appellate    briefs  are   waived."48     Moreover,      an   issue   omitted    from   an 

appellant's points on appeal, even if that issue is cursorily presented in the opening brief, 
is deemed abandoned,49 and "[a]ttention to the issue in a reply brief does not resuscitate 

it."50 

                 Oels omitted the breach of duty of fair representation issue from his points 

on appeal and did not mention it in his opening brief.               His attention to the issue in his 

reply brief does not resuscitate it.        We determine that the issue is abandoned on appeal 

and decline to consider it here. 

        47       Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 P.3d 457, 460 (Alaska 

2010) (citing State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980)). 

        48      Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) (citing Shearer v. 

Mundt, 36 P.3d 1196, 1199 (Alaska 2001)). 

        49       Braun v. Alaska Commercial Fishing and Agric. Bank, 816 P.2d 140, 145 

(Alaska 1991) (citing State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 
1980)). 

        50      Id. (citing Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982)). 

                                                   -20-                                              6639
 

----------------------- Page 21-----------------------

                For similar reasons, we also decline to consider whether MOA's enactment 

of AMC 03.30.068(A)(4) constitutes an unfair labor practice or is moot in light of the 
CBA.51 

IV.     CONCLUSION 

                We   REVERSE   the   superior   court's   decision   affirming   the   Board   and 

conclude that the plain meaning of AMC 03.30.068(A)(4) requires that retiring APD 

sergeants approved for retire/rehire must be rehired into the same position or a position 

in the same or parallel class. 

        51      The Board found that "even if the final version of AMC 3.30.068(A)(4) 

passed by the Assembly had included language mandating that employees be 'rehired 
into   their   current   position',   the   ordinance   would   not   have   applied   to   members  of 
APDEA" because it would have constituted a unilateral change to the CBA between 
APDEA and MOA. 
                Both   sides   argued   this   issue   before   the   Board. Although   Oels   did   not 
formally identify this issue in his points on appeal to the superior court and the superior 
court did not rule on it, Oels, APDEA and MOA all addressed the issue in some form 
before the superior court as well. 
                We decline to consider this issue on appeal for two reasons. First, this issue 
was not raised by any party on appeal, and is therefore deemed abandoned.  Smallwood, 
227 P.3d at 460 (citing O'Neill Investigations, 609 P.2d at 528). Second, to construe the 
CBA so as to properly address this question would demand substantial factual inquiry, 
none of which has been developed in the record before us. 

                                                 -21-                                             6639 
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