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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brown v. City of Kenai, Personnel Board (6/20/2014) sp-6916

Brown v. City of Kenai, Personnel Board (6/20/2014) sp-6916

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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                  THE SUPREME COURT OF THE STATE OF ALASKA  



DANIEL BROWN,                                        )  

                                                     )        Supreme Court No. S-15160  

                          Appellant,                 )  

                                                     )        Superior Court No. 3KN-11-01052 CI  

         v.                                          )  

                                                     )        O P I N I O N  

PERSONNEL BOARD FOR THE                              )  

CITY OF KENAI,                                       )       No. 6916 - June 20, 2014  

                                                     )  

                          Appellee.                  )  

                                                     )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                             

                  Judicial District, Kenai, Carl Bauman, Judge.  



                  Appearances:    Kevin  T.  Fitzgerald,  Ingaldson  Fitzgerald,  

                  P.C.,  Anchorage,  for  Appellant.    Joseph  N.  Levesque  and  

                  Shane E. Levesque, Levesque Law Group, LLC, Anchorage,  

                                             

                  for Appellee.   



                  Before:  Fabe, Chief Justice, Stowers, and Bolger, Justices.  

                  [Winfree, and Maassen, Justices, not participating.]  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  Daniel Brown was a City of Kenai employee who was accused of sexual  



harassment of female employees at the Kenai Recreation Center.  But after a termination  

                                                             



hearing, the Personnel Board of the City of Kenai (the Board) stated that the basis for  



Brown's termination was not sexual harassment but rather misconduct.  Brown now  


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

                   

argues that the Board violated his right to due process by terminating him for misconduct  



                                                            

without finding that he had committed the underlying acts of sexual harassment.  He also  



            

argues that his termination violated the covenant of good faith and fair dealing.  We  



conclude  that  the  Board  had  an  adequate  basis  for  its  decision  and  that  Brown's  



                               

termination did not violate the implied covenant of good faith or his right to due process.  



II.       FACTS AND PROCEEDINGS  



                                                                                                          

                     Daniel Brown was employed as a building maintenance technician with the  



                                                                                                                 

City of Kenai Public Works Department from October 2009 until April 2011.  Among  



other duties, Brown was responsible for providing maintenance services to the Kenai  



Recreation Center.  During the time of Brown's employment with the city, the Boys &  



                                                                                                                 

Girls Club managed the recreation center.  Brown often came in contact with the Boys  



                                                                                                     

&  Girls  Club  employees  who  worked  at the  recreation  center  because  a  significant  



portion of his job responsibilities entailed maintenance at that facility.  



                                                                                                                        

                     Some of the Boys & Girls Club employees Brown regularly dealt with were  



                                                                                                              

young women.  In early 2011, the Kenai City Attorney conducted an investigation of  



Brown's alleged sexual harassment of three such Boys & Girls Club employees.  The  



                                       

city attorney concluded that Brown had engaged in conduct that "violated the City's  



                                                     1  

                                                       although she noted that the policy did not expressly  

policy against sexual harassment," 



          1          The policy is included in the City of Kenai Employee Handbook, which   



states, in part:  



                     One form of harassment is sexual harassment.  It is the policy       

                     of the City of Kenai to provide an environment free from  

                     unwelcome sexual advances, requests for sexual favors and  

                     other      verbal       or    physical        conduct         or    communication  

                     constituting sexual harassment.  The purpose of this policy  

                     statement is to establish clearly and unequivocally that the  

                                         

                     City prohibits sexual harassment by and of its employees and  

                                                                                                                 (continued...)  



                                                                 -2-                                                          6916
  


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

                        

state whether it applied to behavior toward complainants, such as the Boys & Girls Club  



workers, who were not employed by the city.  



                                                                                             

                   The city manager sent Brown a letter stating that Brown had violated the  



city's  sexual  harassment  policy,  that  his  actions  constituted  misconduct  under  the  

municipal code provision listing grounds for disciplining a city employee,2 and that  



because of his actions Brown could not perform the duties of his employment (which  



                                                3  

was also a ground for dismissal).   A pre-termination hearing was held in April 2011.  



                                                                                                  

                   The city manager considered the evidence presented at the hearing and in  



the city attorney's investigative  report and concluded in his final decision that:  (1)  



                                                                                                          

Brown's actions constituted sexual harassment under city policy as well as misconduct  



          1(...continued)  



                   to  set  forth  procedures  by  which  allegations  of  sexual  

                   harassment may be filed, investigated and adjudicated.  



                    Sexual harassment is misconduct . . . .  



                     . . . .  



                   It  shall  be  a  violation  of  City  policy  to  harass  another  

                                                                     

                    employee sexually or to permit the sexual harassment of an  

                    employee.  



          2  

                                                    

                   See Kenai Municipal Code (KMC) 23.35.020(b) (2013).  Subsection (9)  

                                                                                                            

lists "[m]isconduct" as one ground for discipline and subsection (13) lists "[i]nability to  

perform the assigned job" as another.  



          3        The city manager stated his intent  



                                                                              

                   to   terminate   [Brown's]   employment   with   the   City   for  

                   misconduct  and  for  inability  to  perform  the  assigned  job  

                   which is appropriate under the City's Code and employment  

                   policies.  KMC 23.35.020(b)(9), (13).  Because [Brown has]  

                                           

                   violated  the  City's  policies  against  harassment,  [he  has]  

                    engaged  in  misconduct.    Because  [he]  cannot  work  at  the  

                                                                                          

                   Recreation Center, [he] cannot perform required job duties.  



                                                             -3-                                                       6916
  


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

                                                                                               4  

                                                                       

in  violation  of  Kenai  Municipal  Code  (KMC)  23.35.020(b)(9);   (2)  because  of  his  



                                                 

conduct, the city could not allow him to continue working at the recreation center, so he  



was unable to perform his job duties - in violation of KMC 23.35.020(b)(13); and (3)  



                                                                                                                

progressive discipline was not appropriate given the severity and ongoing nature of  



Brown's conduct.  



                   Brown appealed his termination to the Personnel Board for the City of  



Kenai, which held hearings in June and July 2011.  The Board found the city manager's  



                                                                                        

conclusions - that Brown had engaged in misconduct and that he would be unable to  



                                                                                                                  

perform his job duties - were reasonable and it upheld Brown's termination on those  



two grounds.  The Board also stated that "[a]lthough there were allegations of sexual  



                                                   

harassment by Mr. Brown . . . Mr. Brown was not terminated for sexual harassment but  



                                                                                              

rather because his actions rose to the level of misconduct and he was unable to work in  



a city building which comprised approximately 15% of his total workload."  



                                                                                                        

                   Brown appealed the Board's decision to the superior court, which affirmed  



the Board's decision.  Brown now appeals to this court.  



III.      STANDARD OF REVIEW  



                   "In  administrative  appeals,  we  directly  review  the  agency  action  in  



               5                                                                                                            6  

question."     "We  review  questions  of  fact  under  the  'substantial  evidence'  test."  



          4        The city manager acknowledged the city attorney's concerns regarding  



application  of  the  sexual  harassment  policy  to  Brown,  given  the  fact  that  the  

complainants were not employed by the City.  He concluded the policy applied because  

                                                                                                       

it "appears to prohibit not only sexual harassment of [City] employees, it prohibits sexual  

                                      

harassment by [City] employees."  The city manager further concluded that the policy  

was  applicable  because  "during  the  hearing  Mr.  Brown  noted  the  issue  of  the  

complainants not being City employees, but did not object to the application of the City's  

                                   

sexual harassment policy in this incident."  



          5        Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013) (quoting  



                                                                                                          (continued...)  



                                                             -4-                                                      6916
  


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

"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as  

                                                 7  "We need only determine whether such evidence  

adequate to support a conclusion.' "    

                                                                               8  "Questions of due process  

exists, and do not choose between competing inferences."  

                                                                                                       

present constitutional issues that we review de novo."9  

                                                                              



                  We interpret ambiguous court orders "to 'render them reasonable, effective,  

                                                                                         10  We will apply that  

conclusive and in harmony with the facts and law of the case.' "     



standard to the Personnel Board's decision in this case.  



                  "Construction of employment contracts, including questions concerning the  



implied covenant of good faith and fair dealing when the material facts are not disputed,  

are reviewed de novo."11  

                                    



         5(...continued)  



Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1167  

                       

(Alaska 2002)).  



         6        Id. (citing Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 (Alaska  

                                                                                 

1992)).  



         7        Id. (quoting Handley , 838 P.2d at 1233).  



         8        Id. (quoting Handley , 838 P.2d at 1233).  



         9        Id. (citing James v. State, Dep't of Corr. , 260 P.3d 1046, 1050 (Alaska  



2011)).  



         10       See Dimeff v. Estate of Cowan, 300 P.3d 1, 13 (Alaska 2013) (quoting  

                                                                                                  

Pennington v. Emp'r's Liab. Assurance Corp. , 520 P.2d 96, 97 (Alaska 1974)).  



         11       Grimmett, 303 P.3d at 487 (citing Luedtke v. Nabors Alaska Drilling, Inc. ,  

                                                                                           

834 P.2d 1220, 1223 (Alaska 1992)).  



                                                         -5-                                                   6916
  


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

IV.	       DISCUSSION  



           A.	       Brown's Due Process Rights Were Not Violated.  



                     Brown asserts that he was a public employee who could only be terminated  

for cause and, therefore, he had a property interest in his continued employment.12                                                 He  



                                                                     

argues that he was deprived of that interest without cause in violation of his right to due  



process.  



                                                  

                     The main issue in this appeal stems from the Board's statement that "Brown  



                                                                                                

was not terminated for sexual harassment but rather because his actions rose to the level  



                                                                   

of misconduct."  Brown argues that there was no basis for his termination because this  



                                                                                                                

language indicated the Board rejected the city manager's conclusion that Brown had  



                                                                                                         

engaged in sexual harassment.  He also argues that the Board thus "failed to specify the  



                                                         

'misconduct' relied upon to affirm Brown's termination."  The Board responds that its  



decision merely stated the official basis for Brown's dismissal and that the Board did not  



conclude that Brown was innocent of any sexual harassment.  



                     1.	        The  Personnel  Board  stated  an  adequate  basis  for  Brown's  

                                termination.  



                     The Personnel Board was acting as an appellate tribunal under  



                                                                                                     

KMC 23.35.034 and was required to "make written findings of fact and conclusions as  

                                                                                                               13  In its decision,  

to the justness of the disciplinary action" proposed by the city manager. 



the Board stated that the city manager's "determination that Mr. Brown's conduct rose  



           12        See  id. at 488 ("[A] public employee who can be terminated only for cause       



has  a  legitimate  expectation  of  continued  employment  that,  under  both  federal  and  

Alaska constitutional law, gives rise to a property interest in [his or] her job.").  



           13	       KMC 23.35.034(g) (2013).  



                                                                  -6-	                                                               6916  


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

to the level of misconduct . . .              was reasonable based on the evidence in the record."14  



The Board also concluded that the city manager's "determination that Mr. Brown would  

                                                                                               



be unable to perform his assigned job duties . . . was reasonable based on the evidence  

                                                                  



                      15  

in the record."           The Board similarly used the past tense two sentences later when it  



                                                                    

clarified that "Mr. Brown was not terminated for sexual harassment but rather because  

                                                                16  Thus, the language that Brown relies on  

his actions rose to the level of misconduct."                                                           



appears to be a description of the manager's decision, just like the preceding statements  

                                                 



expressing the Board's approval of the manager's determinations.  We do not read the  

                                                                                                         



Board's  statement  as  an  independent  finding  that  Brown  did  not  commit  sexual  



harassment.   



                   Likewise, it would be unreasonable for us to conclude that the Board did  



not know that the manager had concluded that Brown had committed acts of sexual  



                                     

harassment.  The Board stated that the manager had "issued a Memorandum Decision  



                                                                                                         

finding that Mr. Brown had committed serious acts of sexual harassment that constituted  



                                                                      

misconduct under the Kenai Municipal Code."  We conclude that the disputed language  



                                                                  

in  the  Board's  decision  must  be  read  in  the  context  of  its  conclusion  that  this  



determination by the city manager was reasonable.  



                                 

                   Read in this light, the Board's comment was simply an acknowledgment  



                                                                                                         

that the official basis for Brown's termination was the city manager's conclusion that  



Brown  had  committed  misconduct.    This  acknowledgment  did  not  constitute  an  



independent factual finding that Brown was innocent of sexual harassment.  



          14       Emphasis added.  



          15       Emphasis added.  



          16       Emphasis added.  



                                                             -7-                                                          6916  


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

                       Even if we did read the Board's decision as concluding Brown did not  



                                                                         

violate the sexual harassment policy, this would not mean that Brown is innocent of any  



misconduct.  Brown's interactions with the Boys & Girls Club employees could have  



                                          

constituted misconduct warranting termination even if those actions did not violate the  



                                                                                     

sexual harassment policy, especially considering the questions about whether that policy  



                                                                                               17  

applied to complainants who were not city employees.                                                    



                       Moreover, the Board's conclusion that Brown engaged in misconduct is  



                                                                                                                                

supported  by  the  record.    We  will  uphold  an  administrative  decision  affirming  an  

employment termination as long as it is supported by substantial evidence.18  In this case,  



                                                                             

the city manager's decision outlines several instances of Brown's inappropriate conduct  



                                                                                                                          

at the recreation center.  The decision recounts Brown's comments to one of the female  



Boys & Girls Club employees "that she could 'use him' if she was lonely when her  



                                                                                          

husband was gone"; "that she was 'a pretty chesty girl' "; that she "should go upstairs  



[with Brown] . . . and take a nap together"; and, regarding an incident in which the  



employee narrowly avoided a view of Brown's exposed genitals in a bathroom, that if  



                                                                         

she "would have come in 10 seconds later [she] would have seen something [she] liked."  



                                                                                                                               

The foregoing examples all involved only one of several complainants.  This evidence  



            17         Brown also argues that the superior court erred by concluding that                                                        the  



Personnel   Board   simply   "downgraded"   Brown's   alleged    sexual   harassment   to  

misconduct, which is still an offense that may warrant termination.  In an administrative   

appeal, however, we are not bound by the superior court's decision; we independently   

review the Personnel Board's decision to determine whether an error has been made.                                                               See  

Grimmett, 303 P.3d at 487 (citing                          Fairbanks Fire Fighters Ass'n, Local 1324 v. City of               

Fairbanks , 48 P.3d 1165, 1167 (Alaska 2002)).  



            18  

                               

                       See  Jurgens  v.  City  of  North  Pole,  153  P.3d  321,  325  (Alaska  2007)  

(citations omitted).  



                                                                         -8-                                                                  6916
  


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

adequately  supported  the  Personnel  Board's  determination  that   Brown  engaged  in  

misconduct warranting his dismissal.19  



                    2.	      The Board's findings were sufficiently definite to support its  

                             decision.  



                    Brown also argues that the Personnel Board erred by "fail[ing] to specify  

                                                 



the 'misconduct' relied upon to affirm Brown's termination."  He argues that this failure  

                                           



amounts to unconstitutional vagueness.  



                                                                                                         

                    Brown's argument implicates the adequacy of the Board's findings:  "The  



                                                          

threshold question in an administrative appeal is whether the record sufficiently reflects  



                                                                                                                     20  

the basis for the board's decision so as to enable meaningful judicial review."                                          "In  



answering that question, the test of sufficiency is a functional one:  do the [tribunal]'s  



                                                                                                       

findings facilitate this court's review, assist the parties and restrain the [tribunal] within  



                         21  

proper bounds?"              "[I]n certain cases, the issues are such that, based on the record,  



                                                         

detailed findings are not necessary for this court to understand the [tribunal]'s reasoning  

process."22  



          19        We  note  that  Brown  does  not  make  any  argument  as  to  the  Board's  



alternative ground for termination:   Brown's inability to perform his assigned job duties.  

The Board affirmed the city manager's finding that, "[b]ecause of the ongoing nature and  

                                                                                                    

severity of [Brown's] conduct," the city manager could not "allow [him] to return to  

work in the Rec[reation] Center."  On this record, the Board could reasonably conclude  

                                                                          

that Brown's work at that facility comprised such a significant portion of his overall  

                                                    

duties that he could no longer perform the duties of his employment.  



          20	      Fields v. Kodiak City Council , 628 P.2d 927, 932 (Alaska 1981).  



          21       Faulk v. Bd. of Equalization , 934 P.2d 750, 751 (Alaska 1997) (quoting S.  



Anchorage  Concerned  Coal.,  Inc.  v.  Coffey ,  862  P.2d  168,  175  (Alaska  1993))  

                                                                                               

(alterations and internal quotation marks omitted).  



          22  

                                                                                                    

                   Alvarez v. Ketchikan Gateway Borough , 28 P.3d 935, 940 (Alaska 2001)  

                                                                                                           (continued...)  



                                                             -9-	                                                      6916
  


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

                                                                             

                   We have affirmed a personnel board's "relatively conclusory" findings if  



                                                                                                 

they are consistent with  "more extensive findings" included in  the termination decision  



                                                                         

the board affirmed, explaining that we may "safely assume that the board accepted" those  

findings.23  Here, as explained above, the Personnel Board specifically approved the city  



manager's determination that Brown engaged in misconduct warranting termination.  



                                                            

And the manager's decision provided a lengthy recitation of the facts underlying his  



conclusion that Brown had committed misconduct.  



                   For example, the manager found "that [Brown] recklessly or purposely  



                                                                                                           

exposed [him]self to [one of the complainants] and that [he] purposely attempted to  



                                                       

expose [him]self to" another, and that these "actions violate the City's sexual harassment  



policy and also constitute misconduct under KMC 23.35.020(b)(9)."  We conclude that  



the Board's decision approving these findings sufficiently stated the basis for Brown's  



termination.  



                                   

          B.	      Brown's  Termination  Does  Not  Violate  The  Implied  Covenant  Of  

                   Good Faith And Fair Dealing.  



                   Brown also argues that his termination violated the covenant of good faith  



                                                                                   24  

                                                                                         This  covenant  "generally  

and  fair  dealing  implied  in  every  employment  contract. 



requires employers to treat like employees alike and act in a manner that a reasonable  

                                                                                                            



                                            25  

person would regard as fair."                   The objective prong of this covenant "prohibits the  



          22(...continued)  



(quoting Faulk , 934 P.2d at 751) (internal quotation marks omitted).  



          23       Jurgens , 153 P.3d at 327.   



          24       See Crowley v. State, Dep't of Health & Soc. Servs., 253 P.3d 1226, 1230  



(Alaska 2011).  



          25  

                                                                                               

                   Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 760-61 (Alaska 2008)  

                                                                                                          (continued...)  



                                                            -10-	                                                     6916
  


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

                                                                     

employer from dealing with the employee in a manner that a reasonable person would  



                            26  

                                                                                                       

regard as unfair."               Brown argues that the Board violated this covenant because his  



termination was objectively unfair.  



                     Brown  mainly  repeats  the  argument  we  have  outlined  above  (that  the  



                                                                           

Personnel Board failed to adequately identify the basis for his termination).  He also  



                      

argues that a lesser sanction should have been "tried and failed" before his termination.  



As to the first argument, a reasonable person would not regard the Personnel Board's  



                                                          

decision  as unfair because the city  manager made extensive findings supporting  his  



                                              

conclusion that Brown had engaged in misconduct, and the Board gave a reasonable  

explanation of its decision to affirm the city manager.27  



                     Brown's  second  argument  also  fails.    As  the  Board  pointed  out,  the  



                                                            

municipal code "in no way obligates the City to choose any one form of discipline over  



another; instead, it grants the City broad authority to determine which form of discipline  



                                                                                                     28  

is  appropriate  based  upon  the  totality  of  the  circumstances."                                      The  code  requires  



                                                                           29  

                                                                                                                 

graduated discipline only "where appropriate."                                 We have previously recognized that  



                                         

the decision to terminate a public employee where a lesser sanction would "[a]rguably  



                                                                                                       

. . . have been sufficient" does not necessarily violate the implied covenant of good faith  



           25(...continued)  



(citation omitted).  



           26        Id. at 761.  



           27        Cf. Grimmett v. Univ. of Alaska, 303 P.3d 482, 492 (Alaska 2013).  



           28        KMC 25.35.030(a) (2013) states: "Disciplinary action ranges from oral or        



written reprimands to suspension, demotion, and finally dismissal from the City service,                

and depends on the severity of the offense as well as the number  and   frequency of  

previous acts of misconduct."  



           29        KMC 25.35.030(c).  



                                                                 -11-                                                            6916
  


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

                    30  

and  fair  dealing.       In  this  case,  the  Board  acted   reasonably  when  it  concluded  that  



Brown's misconduct warranted termination.  



V.      CONCLUSION  



                We  therefore  AFFIRM  the  Personnel  Board's  decision  to  terminate  



Brown's employment.  



        30      Grimmett, 303 P.3d at 492.  



                                                  -12-                                              6916  

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