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Nenana City School District v. Arlene Coghill (7/21/95), 898 P 2d 929
Notice: This is subject to formal 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, (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
NENANA CITY SCHOOL DISTRICT, )
) Supreme Court No. S-6340
) Superior Court File No.
v. ) 4FA-93-2351 Civil
ARLENE COGHILL, ) O P I N I O N
Appellee. ) [No. 4229 - July 21, 1995]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Anne S. Brown and Shauna
F. Morris, Guess & Rudd, Fairbanks, and
Christopher J. Heaphey and John M. Sedor,
Bankston & McCollum, P.C., Anchorage, for
Appellant. A. Rene Broker and Howard Staley,
Cook Schuhmann & Groseclose, Inc., Fairbanks,
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
A tenured teacher's teaching certificate lapsed for
part of a school year, but was renewed before the year ended.
The local school board held a hearing, after which it concluded
that the lapse revoked her tenure, and that the teacher had been
overpaid during the lapse period. The teacher filed suit in
superior court, which reversed both issues on summary judgment.
The school board appeals, arguing not only the above two issues,
but also that the employment contract with the teacher for the
following year was void. We affirm.
II. FACTS AND PROCEEDINGS
Arlene Coghill, a tenured teacher, was employed by the
Nenana City School District (NCSD) for the 1992-93 school year.
She was required by AS 14.20.010 to maintain a current teaching
certificate. Her certificate expired on February 7, 1993, and
was not renewed until April 12, 1993. Neither she nor NCSD was
aware the certificate had expired.
In early March 1993 NCSD offered its teachers,
including Coghill, contracts for the next school year. Coghill
accepted the offer and signed a new contract.
On April 8 the State Department of Education
(Department) issued a "Notification of Non-Compliance" to NCSD,
informing it that Coghill's certificate had lapsed. On April 10
Cheryl L. Brady, Nenana City School Board President, sent a
letter to Pamela VanWechel, NCSD Superintendent, directing that
on April 12 Coghill be sent "a letter of termination as of 2-7-93
due to a violation of her contract." The Department reinstated
Coghill's certificate on April 12, after proper application by
At Coghill's request, NCSD held a hearing in late July
to assess her status, and entered written findings and
conclusions. NCSD found that Coghill's certificate had lapsed,
that she had been notified by NCSD's business manager to renew
her certificate,1 and that she had been eligible for renewal
during the lapse.2 NCSD also found that Coghill "accepted
$9,894.28 in salary and benefits to which she was not entitled
because her teacher's certificate had expired. It was illegal
for the school district to employ her as a full-time teacher
during that time." NCSD concluded that Coghill's maximum
permissible pay was that of a substitute teacher, $65 per day for
20 days. Therefore, Coghill owed the district $8594.28.
Additionally, NCSD concluded that "Alaska Statute 14.20.160
provides that tenure rights are lost when the teacher's
employment in the School District is interrupted or terminated."
Thus the lapse of certification resulted in a loss of tenure.3
Lastly, NCSD concluded that the 1993-94 contract should not be
rescinded, since Coghill would have a valid certificate for that
year; however, her status was that of a non-tenured teacher.
Coghill filed a complaint in the superior court. She
sought a judgment that she remained a tenured teacher and that
NCSD was not entitled to reimbursement. NCSD moved to convert
the lawsuit into an appeal from an administrative agency. This
motion was denied, although the trial court's order is unclear.
Both parties moved for summary judgment; the court granted
summary judgment to Coghill, ruling that Coghill was entitled to
tenured status for the 1993-94 school year and that reimbursement
"is not granted, on these facts as a matter of law."
NCSD raises four different arguments on appeal: (1)
the superior court's refusal to convert the case to an
administrative appeal, and application of de novo review; (2)
tenure status; (3) reimbursement; and (4) status of the 1993-94
A. Nature of the Proceeding and Standard of Review
The first issue, largely ignored by the parties, is the
determination of the appropriate standard of review. Although
the case arises from an agency proceeding, it was treated as a
civil suit by the superior court, and decided on summary
When a school board "applies policy to particular
persons in their private capacity,"it is functioning as an
administrative agency and an appeal will be treated as an
administrative appeal. Kleven v. Yukon-Koyukuk Sch. Dist., 853
P.2d 518, 523-24 (Alaska 1993) (quoting Ballard v. Stich, 628
P.2d 918, 920 (Alaska 1981)). Issues of law arising from an
agency proceeding are reviewed de novo when agency expertise is
not involved. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line
Co., 746 P.2d 896, 903 (Alaska 1987).
Although the superior court's order on NCSD's motion to
convert the case to an administrative appeal is unclear, the
motion was effectively denied. The superior court ruled on cross-
motions for summary judgment. In general, a court's grant of
summary judgment is reviewed de novo. Pride v. Harris, 882 P.2d
381, 384 (Alaska 1994).
Issues of law arising from a superior court
determination are reviewed de novo. See Langdon v. Champion, 745
P.2d 1371, 1372 n.2 (Alaska 1987).
Therefore, the same standard of review applies
regardless of how the action is denominated. The question
becomes irrelevant since the complaint was filed within thirty
days, as an administrative appeal must be. Alaska R. App. P.
602(a)(2). The material facts are undisputed, and the parties
are arguing about matters of law. No agency expertise is
involved, so the standard of review before this court is de novo.5
B. Coghill Did Not Lose Tenure Status
NCSD found that
Alaska Statute 14.20.160 provides that a
teacher's tenure rights are lost when the
teacher's employment in the School District
is interrupted or terminated. Due to the
fact that it was illegal for [NCSD] to employ
. . . Coghill between February 8, and April
12, 1993, her period of employment with the
School District was interrupted. As a
result, she lost her tenure rights by
operation of statute.
The superior court reversed NCSD.
The parties and the superior court devote their
energies largely to debating the implications of three cases from
other jurisdictions: Ames v. Board of Education, Regional School
District No. 7, 356 A.2d 100 (Conn. 1975), Mass v. Board of
Education, 394 P.2d 579 (Cal. 1964), and Snyder v. Jefferson
County School District R-1, 842 P.2d 624 (Colo. 1992). None of
these authorities is helpful to our decision.6
The parties dispute the meaning of AS 14.20.010, which
provides: "A person may not be employed as a teacher in the
public schools of the state unless that person possesses a valid
teacher certificate." The only other Alaska authority cited on
this issue is AS 14.20.160, which states: "Tenure rights are lost
when the teacher's employment in the district is interrupted or
terminated." No Alaska case has construed or even cited this
statute. Other law and regulation on point are AS 14.20.215(6)7
and 4 AAC 12.010.8
NCSD contends that an invalid certificate results in
interruption of employment and loss of tenure by operation of
law. It asserts that it was statutorily precluded from employing
Coghill, and therefore her employment and tenure were terminated.
Alaska Statute 14.20.010 prohibits employment unless the teacher
holds a valid teacher's certificate. However, AS 14.20.170
(a) A teacher, including a teacher who
has acquired tenure rights, may be dismissed
at any time only for the following causes:
. . . .
(3) substantial noncompliance with the
school laws of the state, the regulations or
bylaws of the department, the bylaws of the
district, or the written rules of the
Unless Coghill can be said to be in "substantial noncompliance,"
she could not be dismissed. Without a dismissal, her employment
would not be "interrupted or terminated,"and her tenure would
not be lost. AS 14.20.160.
Our analysis of the substantial noncompliance issue is
aided by examining three cases involving the substantial
compliance doctrine. This doctrine disposes of this case in
Coghill's favor, as it protects her from the loss of tenure
status, and therefore also protects her from any alleged
In Jones v. Short, 696 P.2d 665 (Alaska 1985), a
general contractor's license lapsed. After not being paid for
work, he sued the contractee. The contractee argued that the
contractor was barred statutorily from both working as a
contractor and from suing, since he was not registered. The
requirements for registration were "paying a fee, filing a surety
bond, and filing evidence of . . . insurance." Id. at 667
(footnotes omitted). The court first noted: "The proper
interpretation of the registration provisions is one which
carries out the legislative intent and gives meaning to every
part of the statute without producing harsh and unrealistic
results." Id. (footnotes omitted). We stated that the doctrine
of "substantial compliance involves conduct which falls short of
strict compliance with the statutory registration requirements,
but which affords the public the same protection that strict
compliance would offer." Id. at 667 n.10. We remanded to the
superior court for a determination whether the public had access
to the same information that a current registration would give,
and whether the contractor's bond remained in effect. Id. at
668. If these conditions were met, then the court held that
substantial compliance was satisfied, as the contractor
reasonably believed his registration was renewed and had made a
good faith effort to comply with the statute. Id.
In Alaska Protection Services, Inc. v. Frontier
Colorcable, Inc., 680 P.2d 1119 (Alaska 1984), the contractor was
registered under one name but worked under another. The
defendant argued that suit could not be maintained by an
unregistered contractor. We held that the appropriate sanction
was misdemeanor prosecution, rather than a bar from suit, and
that "[s]ubstantial compliance requires that the contractor be
registered and have bonding and insurance coverage, since these
are the primary means by which the statute seeks to protect
parties dealing with contractors." Id. at 1122. We held that
these requirements were met, and that suit was not barred. Id.
Frontier Colorcable relied on Latipac, Inc. v. Superior
Court, 411 P.2d 564 (Cal. 1966). There a contractor was
initially licensed, but the license lapsed for the last forty
percent of the performance period. Id. at 567. The license was
not timely renewed because of a mental breakdown on the part of
the manager in charge of renewal. Id. The statute at issue
precluded the use of the courts to enforce a contract when the
contractor was not licensed at all times during performance. Id.
at 566 n.1. The court noted the importance of the fact that the
contractor possessed a license at the time of contracting, as
that is the time when the other party decides whether the
contractor is appropriate. Id. at 567-68. The court next noted
that a renewal was readily secured. Id. at 569. Finally, the
court noted that the statute required a responsible officer in
the contracting company; at all times this officer was
responsible and competent. Id. at 570. The court held the
policy of the statute realized, and the parties who the
legislature intended to be protected were protected in fact. Id.
In the instant case, renewal of a teacher's certificate
requires the following: (1) a signed and notarized application,
(2) transcripts of all college work, (3) a fee, (4) a background
check if required, and (5) six semester hours of credit in the
preceding five years. 4 AAC 12.010(b)(1)-(4), .020(b), .075(a).
The application also asks if any criminal laws have been violated
since the last certificate was issued. The parties do not
dispute that the continuing education requirement was fulfilled
before the certificate expired. They also do not dispute that no
background check was required. Further, no section of the Alaska
Statutes indicates the legislative intent behind the
Coghill's certificate lapsed for only a short period of
time. She was properly certificated at the time the contract was
formed. She easily and promptly obtained renewal. Those
requirements which would provide apparent protection of the
public, i.e., continuing education, background check, and
notification of arrest, were not in issue. The doctrine of
substantial compliance protects her from losing tenure.
C. Coghill Is Not Required to Reimburse the School
NCSD held that Coghill could not have been employed as
a teacher unless she possessed a valid certificate, under AS
14.20.010. Therefore, it reasoned that her employment was
illegal and she could only have been paid a substitute's pay.
The superior court reversed.
Since Coghill substantially complied with the
certification requirements this same doctrine leads to the
conclusion that she was entitled to full pay.
D. The 1993-94 Contract Issue Has Been Waived
NCSD argues that since Coghill's certificate had lapsed
at the time she signed the contract for the upcoming year, she
was not employable under AS 14.20.010, and the contract is void
for illegality. It also argues voidness because of mistake.
This argument has been waived by failure to raise it in
the superior court. Waiver in superior court may occur either in
a suit initiated there, or when the superior court is reviewing
agency action. In agency review, an issue may be abandoned on
appeal to the superior court, either by failing to include it in
the points on appeal or by inadequate briefing. Trustees for
Alaska v. State, Dept. of Natural Resources, 865 P.2d 745, 748
(Alaska 1993). NCSD did not cross-appeal. Furthermore, an
argument not raised in a suit before the trial court will not be
considered on appeal. Williams v. Alyeska Pipeline Serv. Co.,
650 P.2d 343, 351 (Alaska 1982); Zeman v. Lufthansa German
Airlines, 699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule,
a party may not present new issues or advance new theories to
secure a reversal of a lower court decision." (citing O'Neill
Investigations v. Illinois Employers Ins., 636 P.2d 1170, 1175
n.7 (Alaska 1981)).
Coghill did not lose her tenured status due to the
temporary lapse in her teacher certification. She is protected
from repayment by the doctrine of substantial compliance. The
contract validity issue has been waived. Therefore, we AFFIRM
the judgment of the superior court.
1. William Spear, business manager for NCSD, testified
that NCSD was not required to inform teachers that their
certification was about to expire. However, he produced a hard
copy of teacher records sometime between July and September each
year. As a courtesy to teachers, he informed "the office" and
requested that notices be sent to teachers who needed to renew
their teaching certificates or their physical exam results during
the next year. He assumes such a notice was sent to Coghill,
because she did renew her physical results, which had to be done
before commencement of the school year.
2. Specifically, NCSD found that
[Coghill] was eligible for a renewal of
her teaching certificate, but simply never
applied to the Department of Education for a
renewal of the certificate and never produced
the fees and documents showing that she was
eligible for recertification prior to the
lapse of her teaching certificate on February
3. Coghill argued that she should be forgiven the lapse
because of personal difficulties. She alleged, and NCSD did not
dispute, the following events: the death of her brother in May
1992; major surgery for her mother in the summer of 1992; major
surgery for her husband that fall, with poor recovery on his
part; protracted home care for her husband cumulating in his
eventual suicide in December 1992; and the death of her father
shortly thereafter. The Board held first that it had no
authority to excuse expiration of a certificate, and second that
any stress was over at the end of December 1992.
We also note that although NCSD asserted that the
certification process was solely between the teacher and the
State, NCSD apparently made no effort to secure the Department's
interpretation of the effect of a certification lapse on tenure.
4. Alaska Statutes require de novo judicial review of
school board action affecting a tenured teacher. AS 14.20.205.
NCSD argues that Coghill was a non-tenured teacher and had no
right to de novo review by the superior court. However, NCSD
does not assert that Coghill received de novo review. Coghill
responds that she cannot understand why NCSD raises the issue, as
the superior court decided the case on summary judgment on the
basis of the record before the Board. She notes that any
supporting affidavits were merely summaries of positions taken
before the Board.
The issue is irrelevant, as Coghill's assertions are
correct. Summary judgment is proper when no material facts are
in dispute. Alaska R. Civ. P. 56(c). Neither side argues that
the superior court improperly made factual findings, or that
factual issues were in dispute. Since no new evidence was
adduced, the case was decided on the agency record in favor of
the party to be protected by de novo review. Therefore, de novo
issues are irrelevant.
5. NCSD asserts that the superior court erred in denying
its motion to convert the suit to an administrative appeal. It
claims that the suit should have been converted, and the
appellate rules followed. The exact nature of the proceeding
below is not relevant, as this court reviews the superior court's
decision under the same standard in either event.
6. Ames involved a teacher who argued that his three-year
employment, although without certification, led to tenure. The
court disagreed since the employment was contrary to law. Ames
is irrelevant to this case. Holding that employment without
certification without prior tenure does not lead to tenure is
different than holding that a lapse in a certificate divests a
teacher of tenure.
Mass involved back pay for a tenured teacher whose
certificate had lapsed during an improper suspension. The school
board argued that the teacher could be automatically terminated
once his certificate lapsed since his tenure also must have
lapsed. The board cited statutory sections restricting
employment to teachers with certificates and restricting payment
to such teachers. 394 P.2d at 583. The court noted that these
statutes did not affect tenure rights, as those rights were
defined in other statutes. Id. The court held that the
certificate lapse did not prevent reinstatement and back pay.
Id. at 584-86.
Snyder involved the issue of whether dismissal was
appropriate when Snyder failed to report to work and held no
certificate, not whether his tenure lapsed.
7. "[T]eacher" means an individual who, for
compensation, has primary responsibility to
plan, instruct, and evaluate learning of
elementary or secondary school students in
the classroom or an equivalent setting and
also includes individuals holding other
positions as determined by the department by
8. "A teacher in a public school . . . must hold a valid
Alaska teacher certificate . . . ." 4 AAC 12.010(a).