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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
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
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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
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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.
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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).
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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).
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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.
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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."
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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.
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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.
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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)).
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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)).
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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...)
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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.
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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)).
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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."
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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.
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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)).
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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.
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