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Romulus v. Anchorage School District (2/2/96), 910 P 2d 610
Notice: This opinion 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, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD ROMULUS, )
) Supreme Court No. S-6441
) Superior Court No.
) 3AN-93-7319 Civil
) O P I N I O N
ANCHORAGE SCHOOL DISTRICT, )
) [No. 4317 - February 2, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Mark C. Rowland, Judge.
Appearances: John R. Strachan, Anchorage,
for Appellant. Howard S. Trickey and Andrena
L. Stone, Jermain, Dunnagan & Owens, P.C.,
Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
Richard Romulus (a pseudonym), formerly a Reserve
Officer Training Corps (ROTC) instructor at Chugiak High School,
appeals from a superior court decision affirming the Anchorage
School Board's decision to terminate him for sexually abusing two
students. We affirm in part, reverse in part, and remand.
II. FACTS AND PROCEEDINGS
A. The Discharge
In 1988, after a twenty-five year Marine Corps career,
Richard Romulus was hired as an ROTC instructor at Chugiak High
School. In the summer of 1991 Romulus became the subject of a
criminal investigation. The Anchorage Police Department had been
told by the parents of one of Romulus' students that Romulus had
sexually abused their daughter and another Chugiak student. In
August 1991, the Department informed the school district (ASD) of
Tom Everitt, ASD's Executive Director for Labor
Relations, summoned Romulus to an August 28 meeting. Everitt met
briefly with Romulus and Chugiak's ROTC commander, but Romulus
asked to postpone the meeting until he could obtain counsel.
Everitt informed Romulus that he was suspended without pay until
ASD gathered more information on the matter.
Romulus quickly obtained counsel, and the parties met
again on August 30. At the meeting, Romulus, who had been
interviewed by police, explained his version of the story to
Everitt. He denied the allegations, and offered the results of a
polygraph test that purported to demonstrate his veracity. Based
on the seriousness of the allegations against Romulus and the
police department's recommendation that Romulus be kept away from
students, Everitt extended the suspension pending the completion
of ASD's investigation of the matter.
ASD's attorneys interviewed the Chugiak High School
principals, the ROTC commander, and T.A. and M.F., the two
students whom Romulus had reportedly sexually abused.
Additionally, Everitt obtained items from the Police Department's
investigation: transcripts of police interviews with Romulus,
and transcripts of telephone conversations between T.A. and
Romulus and between T.A.'s father and Romulus. ASD concluded
that the allegations against Romulus were true, and issued a bill
of particulars informing him of his termination.
B. The Hearing and the Hearing Officer's
Recommendation to the School Board
Romulus requested and received an administrative
hearing to contest his termination. Although ASD took the
position that Romulus was not a "teacher," as that term was
defined by the Alaska Code, Romulus received the type of hearing
utilized in the termination of a non-tenured teacher. The school
board (the Board) delegated to a hearing officer the
responsibility of conducting the hearing and making a
The hearing officer classified the testimony into four
categories: percipient witnesses were Romulus, T.A., and M.F.;
two investigative witnesses were labor relations director Everitt
and an Anchorage detective; verification witnesses were two
polygraphers who came to opposite conclusions as to Romulus'
veracity and a counselor who testified that M.F. and T.A. were
telling the truth because they exhibited psychological signs of
sexually abused adolescents; and a number of character witnesses
M.F. testified that Romulus had made sexual advances
toward her, including "boyfriend-type" hugs and kisses, since the
beginning of the 1990-91 school year. The most serious
accusation involved an evening in March 1991, when the ROTC
students were at an overnight event at the school. M.F. needed
to be home by midnight, and Romulus volunteered to give her a
ride. Romulus began driving in the opposite direction from
M.F.'s house, allegedly informing her that they were taking "the
scenic route." According to M.F., Romulus began to fondle her,
and later turned down a little-used, snow-covered road, where the
truck became stuck. There M.F. performed oral sex on Romulus.
M.F. informed T.A. of this event shortly after it occurred. A
final incident involving M.F. occurred the following summer, when
she was working as a camp counselor and was invited by Romulus to
do laundry at his house. Romulus asked M.F. to again perform
oral sex, but she refused. When she returned to camp, M.F.
related this incident to T.A. in a letter.
T.A. testified that Romulus began making sexual
advances toward her in April 1991. She recorded this incident in
a contemporaneous diary entry. Several other instances of this
behavior reportedly occurred between April and the end of the
school year. In the most serious incident, near the end of the
school year, Romulus allegedly partially undressed T.A., fondled
her, and rubbed his genitals against hers. T.A. said she then
began to cry and left the room. She told M.F. about this
incident shortly after it occurred.
Romulus agreed that he had volunteered to drive M.F.
home from the overnight ROTC activity at Chugiak and that his
truck had gotten stuck in the snow on a little-used road far from
M.F.'s home. He explained by saying that he had picked up two
male hitchhikers as they left the school grounds and that they
had asked for a ride to Peters Creek, the opposite direction from
M.F.'s home. Romulus said that after dropping off the
hitchhikers, he mistakenly turned down the snowy road and became
stuck. Romulus denied M.F.'s allegations of sexual activity
between them during the evening. Romulus also agreed that M.F.
had come over to his house to do laundry in the summer of 1991,
but he denied that he had made any advances during her several-
night stay. Romulus denied all of T.A.'s allegations regarding
sexual encounters at the high school.
M.F. and T.A. were best friends, and with one
exception, they shared this information only with each other.1
In June of 1991, however, T.A. was discussing the topic of sexual
abuse with a cousin, and confided the events involving Romulus.
The cousin told her mother, who contacted church social workers,
who informed T.A.'s mother. T.A.'s parents then contacted the
police, who initiated the investigation.
An Anchorage detective described the criminal
investigation. The police investigation began with interviews of
T.A. and M.F. M.F. initially denied any sexual contact between
herself and Romulus. In a second interview, however, M.F. told
the police of the above-described allegations "for [T.A.]'s sake
because she needed me to speak up and tell [the police] what had
The police obtained warrants to record phone
conversations between T.A. and Romulus, and between T.A.'s father
and Romulus. In these conversations, Romulus indicated that he
might have been aware of the accusations against him and
repeatedly told T.A. that he did not want to discuss the issue
over the phone.
During the conversations with T.A., Romulus denied her
accusations but more frequently responded by claiming that he
could not recall the incidents to which T.A. referred and that he
"[did]n't know what [he] did" during the alleged incidents. In
general, Romulus acknowledged only that he "got too close" to his
students and deflected attempts to discuss the alleged incidents,
claiming that because of alcohol and medication use during the
1990-91 school year, there were times when he "didn't use good
judgement," "didn't know what [he] was doing," and "didn't really
know what was goin' [on]."
Romulus put on the testimony of a polygrapher who
stated that Romulus was telling the truth when he denied sexual
contact with the students. A polygrapher from the Anchorage
police department contradicted this testimony, explaining that
Romulus' witness had employed an unreliable testing method and
had misinterpreted his results. A mental health counselor, Pam
Kirk, testified that both M.F. and T.A. exhibited behavior
consistent with girls who had suffered sexual abuse.
A number of character witnesses testified that Romulus
could not have committed the acts alleged. These were Valerie
Ekberg, a Chugiak teacher; Elizabeth Garrity, one of Romulus'
students; Denise Garrity, Elizabeth's mother, who had met Romulus
during an ROTC weekend event; and Don Houk, the ROTC commander at
Chugiak. Additionally, a guidance counselor at Chugiak testified
that Romulus had a good relationship with his students, and that
she counseled approximately twenty ROTC students who were grief-
stricken by the news that Romulus had been discharged.
The hearing officer gave virtually no weight to the
investigatory witnesses, since they had done little more than
interview the persons involved. He also disregarded the
testimony of the "verification witnesses," finding the polygraph
testimony "not sufficiently reliable." Additionally, he
disregarded Pam Kirk's testimony as "unreliable," and deemed her
not "particularly convincing" because her "credentials in the
mental health field are weak, she has no Ph.D and she is not
licensed as a psychologist."
The hearing officer was impressed, however, with the
character witness testimony, noting that in his experience in
dozens of child molestation cases, this evidence was "compelling
in its positive aspects." Finally, with regard to the percipient
witnesses, the hearing officer found that "[n]either [M.F. nor
T.A.] did anything to indicate that they were lying," and that
"M.F. is normally a truthful and candid person."
The hearing officer issued his recommendation to the
school board, prefacing it with the caveat that "the School Board
should carefully review this case because the weight of the
evidence is very close. A different fact finder, viewing the
same facts could reasonably reach a different conclusion than is
The hearing officer concluded that Romulus should be
reinstated, because ASD had failed to prove by a preponderance of
the evidence that Romulus had engaged in the conduct alleged.
This recommendation was based on four areas of evidence that the
hearing officer found "inconsistent with the charges": (1) the
character evidence in favor of Romulus; (2) the fact that Romulus
had not confessed to the alleged acts during the taped phone
conversations;2 (3) the fact that the students did not report the
incidents to the authorities themselves, and that M.F. initially
denied having sexual contact with Romulus when interviewed by
police; and (4) the fact that, in the hearing officer's view,
"despite the best efforts of the school district to present
corroborating evidence, none has been identified or presented."
C. The School Board's Decision to Discharge Romulus
The Board rejected the hearing officer's
recommendation. While the Board did not give "great weight" to
Pam Kirk's testimony, it did find her testimony "helpful and
worthy of reliance in some areas, particularly with regard to the
typical or expected reactions of adolescent girls to sexual abuse
situations." The Board also attached significance to the fact
that although Romulus had not admitted to improper conduct during
the taped telephone calls, he repeatedly expressed reluctance to
discuss the matter over the phone, and "[s]ome of his denials
were less than unequivocal" -- i.e., his statements that due to
alcohol and medication use, he could not remember all of his
actions during the relevant period. Finally, the Board did not
share the hearing officer's conviction that the character
testimony was of great import. It reasoned that since none of
the character witnesses had known Romulus well enough to be aware
of his alcohol and drug problems, their opinions regarding his
capacity for inappropriate sexual behavior were due little
The Board concluded that the charges contained in the
bill of particulars dismissing Romulus had been proved by a
preponderance of the evidence. It explained its conclusions by
reference to three areas of evidence.
First, the Board decided that M.F. and T.A. had no
motive to fabricate their accusations. They had no vendetta
against Romulus, but rather had admired him and had never
reported his actions to the authorities or to an adult.
Additionally, they had maintained their stories consistently over
the two years it took to complete the hearing, which the Board
found inconsistent with a hypothesis that the affair had been the
result of adolescent whimsy. Second, the Board placed importance
on documentary evidence that corroborated the students' charges:
T.A.'s diary entry and the letter from M.F. to T.A. Each of
these documents contained a contemporaneous account of one of the
alleged incidents, written before the students spoke of the
events to others. Finally, the Board disbelieved Romulus'
account of the night when he and M.F. got stuck in the snow. It
concluded that unless Romulus was looking for the "opportunity
that M.F.'s allegations say he actually pursued," he would not
have left the ROTC event of which he was in charge, where
chaperons were readily available, to give M.F. a ride, picked up
two unknown hitchhikers, and then taken them in the opposite
direction from M.F.'s house.
The Board concluded that Romulus' due process rights
had been safeguarded through the hearing, and affirmed his
Romulus appealed the decision to the superior court,
which found that (1) Romulus was barred from contesting his
unpaid suspension because he had failed to exhaust the
contractual remedies in his employment contract; (2) Romulus had
suffered no due process violation; (3) Romulus had no cause to
complain that the Board failed to follow the hearing officer's
recommendation; and (4) the Board's decision was supported by
substantial evidence, and therefore must be affirmed. Romulus
A. The Court Erred in Determining that Romulus is
Precluded from Challenging His Suspension
The trial court found that Romulus had waived his right
to a judicial hearing because he failed to exhaust his
administrative remedies. "[W]hen grievance procedures are
available, an employee must exhaust contractual or administrative
remedies before pursuing a direct judicial action against the
employer." Pederson-Szafran v. Baily, 837 P.2d 124, 128 (Alaska
1992); see also Municipality of Anchorage v. Higgins, 754 P.2d
745, 747 (Alaska 1988); Eidelson v. Archer, 645 P.2d 171, 175-79
(Alaska 1982). The court was correct in finding that Romulus was
subject to ASD's "Exempt Employees' Administrative Procedures
Manual" (Exempt Manual), and that he failed to use its grievance
The requirement that an aggrieved employee exhaust
administrative remedies is inapplicable, however, "where the
administrative remedy is inadequate or where the pursuit of the
administrative remedy would be futile due to the certainty of an
adverse decision." Eidelson, 645 P.2d at 181. The ASD Exempt
Manual provided that the "appeal of last resort" was to the
school district's labor relations director; this was Tom Everitt,
the very person who made the decision to suspend Romulus without
pay. A grievance process appears futile when the person who
ordered the adverse employment decision presides over its appeal.
See Public Safety Employees Ass'n v. State, 799 P.2d 315, 323
n.17 (Alaska 1990) (concluding that resort to remedies is futile
when grievance process requires appeal to individual who has
already voiced an adverse opinion on the issue in question). The
futility of his administrative remedy excuses Romulus' failure to
Additionally, ASD never informed Romulus that under the
Exempt Manual, he had ten days to grieve his unpaid suspension.
ASD's failure to notify Romulus of the deadline gives rise to
concerns that the court discussed in Manning v. Alaska R.R.
Corp., 853 P.2d 1120, 1123-24 (Alaska 1993).
In Manning, an administrative agency terminated Manning
without informing him directly or telling him that the decision
would be unappealable if not challenged within Rule 602's thirty-
day limit. We noted that "surprise and injustice" would result
if Appellate Rule 602(a)(2)'s deadline for appealing an
administrative decision were applied to bar Manning's suit. We
followed the Manning principle in Skudrzyk v. Reynolds, 856 P.2d
462, 463 (Alaska 1993), where a university professor was directly
informed that he had been denied tenure, but was not told that
Rule 602 would bar an appeal of this decision unless it was filed
within thirty days.
Romulus was told he was suspended, but not informed
that after ten days, he would be barred from contesting the
adverse action. The "surprise and injustice" are no less in this
case than in Manning and Skudrzyk, especially in view of the
Exempt Manual's short ten-day grievance period. It is true that
the holdings of Manning and Skudrzyk are based on Appellate Rule
521's directive that procedural rules should be relaxed when
"surprise and injustice" would otherwise result, and that Rule
521 does not apply to the deadlines found in ASD's Exempt Manual.
But Rule 521's directive finds its source in basic due process
considerations.5 We hold here that, based on Manning and
Skudrzyk, due process requires prior notice where an agency
invokes a relatively brief time bar to block the administrative
appeal of an employment termination decision.
In sum, the record indicates that Romulus was subject
to the Exempt Manual and its grievance procedure. Romulus'
failure to utilize it is excused, however, because use of the
grievance procedure appeared futile, and because ASD failed to
notify him of the ten-day grievance deadline, as required by due
B. Romulus' Unpaid Suspension Violated His Due
Romulus claims that the pre-hearing unpaid suspension
violated his due process rights. He cites Nichols v. Eckert, 504
P.2d 1359 (Alaska 1973), as support for the proposition that he
had a right to "continued employment and related benefits pending
Nichols held that the due process rights of three
teachers were violated when they were terminated without a
hearing. 504 P.2d at 1363-64. In a concurring opinion, three
justices concluded that the due process clause of the Alaska
Constitution required that a hearing precede termination or
suspension. Id. at 1366. The concurrence noted that there were
some instances where the "immediate removal of the teacher from
the classroom would be justified" before a hearing was held, and
that in those instances, due process "would be satisfied by a
procedure which provided for the suspension of the teacher with
pay pending the prompt convening of a full hearing." Id.
The three justices explained their holding as follows:
The suspension or discharge of a non-tenured
teacher prior to the expiration of the term
of his or her contract is a very serious
matter and may cause substantial injury.
Specifically, such suspension or discharge
may cause economic hardship, create a stigma
of incompetence and blemish the teacher's
professional reputation, decrease the
possibility of other educational employment
opportunities, deny the teacher the chance to
pursue a chosen professional activity, and
disrupt an existing educational relationship
between teacher and students.
Although Romulus was not a "teacher" as defined by
statute, because of the nature of his job responsibilities, the
reasoning of the three-justice concurrence applies to the facts
of this case. As Romulus notes, his job was to instruct
students, and the economic hardship, stigma, and professional
disruption caused by his suspension and termination for sexual
abuse were identical to or greater than that which motivated the
Nichols concurrence. See 504 P.2d at 1366. Because of the
nature of the charges against Romulus, his immediate removal from
the classroom was justified. However, under Nichols' view of the
requirements of Alaska's due process clause, Romulus' suspension
should have been with pay. Id.
ASD resists this conclusion. It first argues that the
above-quoted passage is not the holding of the case. It next
claims that the concurring justices' conclusion depended on an
applicable statute that granted teachers the right to paid
suspension, a statute which is inapplicable here.
These arguments are unpersuasive. The Nichols
concurrence is an authoritative statement of Alaskan
constitutional law. A majority of the court joined the
concurrence, and it has subsequently been cited as authority.
See Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1150
(Alaska 1986) (citing Nichols for the proposition that under
Alaska's due process clause, police officer had right to hearing
before termination), cert. denied, 479 U.S. 1032 (1987). ASD
also incorrectly characterizes the Nichols concurrence as a
product of a statute that is inapplicable here. The concurrence
did not locate its reasoning in any statutory right; rather, the
justices made clear that they were construing the demands of due
process as required by the state constitution. 504 P.2d at 1366.
ASD also argues that the interests of a school board
justify its ability to suspend employees expeditiously and
without pay, and that the informal pre-suspension meeting between
Everitt and Romulus satisfied Romulus' due process rights. To
support its contentions, ASD cites federal and out-of-state
authority. Such authority is inapposite, because Nichols
interpreted the requirements of the Alaska constitution.
ASD is correct to argue that its interest in protecting
students justified its immediate suspension of Romulus, but it
fails to demonstrate that the suspension was legitimately without
pay. In fact, both of the pre-hearing suspension cases ASD cites
required that a discharged employee be paid for the period
between summary suspension and post-hearing discharge. See Kenai
Peninsula Borough Bd. of Educ. v. Brown, 691 P.2d 1034, 1039
(Alaska 1984); McMillan v. Anchorage Community Hosp., 646 P.2d
857, 864 (Alaska 1982).
Nichols foresaw situations such as the present one,
where a teacher's immediate removal from a classroom required a
suspension without a hearing; but it held that in such an
instance, Alaska's Due Process Clause requires a paid suspension.
504 P.2d at 1366. We conclude that ASD should have paid Romulus
during his suspension, which began on August 30, 1991.
ASD's claim that the informal pre-suspension meeting
satisfied due process mischaracterizes the August 30 meeting.
That meeting, during which Tom Everitt apprised Romulus and his
lawyer of the charges against him, did not evaluate the merits of
the charges or result in findings of fact. Rather, the meeting's
purpose was primarily procedural; it served to ensure that
Romulus knew of the charges he faced and to ascertain his initial
The duration of the period for which Romulus should be
paid is unclear, however. In Brown and McMillan, the employee
was to be paid for a relatively short period until he received a
hearing where the legitimacy of his suspension and discharge was
affirmed. Brown, 691 P.2d at 1039; McMillan, 646 P.2d at 867.
Cf. North Slope Borough v. Barraza, ___ P.2d ___, Op. No. 4285 at
7-8 (Alaska, Nov. 24, 1995). By contrast, Romulus' hearing was
not held until nearly two years after his discharge. The reasons
for this delay are "not fully discussed in the record," but
correspondence between counsel indicates that the delay was "with
[Romulus'] agreement." Accordingly, ASD should be obligated to
pay Romulus' salary not until the date of the actual hearing, as
was the case in Brown and McMillan, but only until Romulus could
have reasonably received a hearing, had he not consented to
delay. We therefore remand this issue to the superior court for
a determination of an appropriate date on which to terminate
Romulus' paid suspension.
C. The Board Did Not Violate its Procedures by
Refusing to Follow the Hearing Officer's Recommendation
Romulus argues that ASD violated its own hearing
procedures by rejecting the recommendation of the hearing officer
and coming to its own conclusion regarding the facts in dispute.
In support of this argument, he cites a District manual that
(F) The School Board (or hearing examiner
pursuant to a delegation of authority from
the School Board) shall have the authority
. . . .
(4) Make findings as to the credibility and
demeanor of witnesses.
Romulus contends that when, as here, the school board
appoints a hearing officer to administer a discharge hearing, the
determination of witness credibility is the sole task of the
hearing officer. He concludes that the Board was "procedurally
compelled to adopt [the hearing officer's] character assessments
finding ASD's three witnesses unbelievable, [and that] the Board
cannot lawfully reverse" the hearing officer's conclusion that
the charges against him had not been proved by a preponderance of
As ASD notes, the problem with Romulus' argument is
that "[t]he Board's decision is not in the form of an appellate
review of the hearing officer's recommendation," wherein the
Board must accept the hearing officer's findings of fact unless
clearly erroneous. Rather, ASD policy provides that
"[r]egardless of the School Board's decision regarding [whether
to employ] a hearing examiner, only the School Board shall make
the final decision regarding ultimate findings of fact and
conclusions of law relating to the dismissal or non-retention."
The passage Romulus relies on is one among several
provisions generally setting forth the responsibilities of a
hearing examiner.6 These responsibilities translate into actions
which ensure that the hearing examiner facilitates the creation
of a record which is of maximum use to the Board. The manual
designates the Board as the ultimate fact-finder and
administrative decision-maker. In light of the clear language of
the Board's policy manual, we cannot agree that the passage cited
by Romulus circumscribes the fact-finding powers of the School
Consequently, we reject Romulus' argument that the
Board's refusal to follow the hearing examiner's recommendation
violated District policy. Based on the foregoing discussion of
the evidence presented at the hearing and the Board's reasons for
discharging Romulus, we also hold that substantial evidence in
the record supported the Board's decision.
D. The School District Applied the Proper Standard of
Romulus argues on appeal that the charges against him
were not proved by clear and convincing evidence. He cites In re
Hanson, 532 P.2d 303, 308 (Alaska 1975), which held that the
clear and convincing standard applies to disciplinary hearings
involving a judge. He argues that there is no principled reason
to hold a school district to a less stringent standard than that
which applies to a committee dispensing judicial discipline.
Romulus also cites cases dealing with deportation and notes that
in these "quasi-criminal" administrative proceedings, the burden
of proof is clear and convincing evidence. He argues that the
instant case should be classified in the same category.
Case law from other jurisdictions, which we find
persuasive, rejects Romulus' argument. When a school district
initiates termination procedures against a teacher, courts widely
apply the preponderance of the evidence standard, and rarely if
ever impose a clear and convincing standard. See, e.g., Forbes
v. Poudre Sch. Dist. R-1, 791 P.2d 675, 678-79 (Colo. 1990) ("the
party asserting charges against a teacher has the burden of
establishing those charges by a preponderance of the evidence");
Madrill v. School Dist. No. 11, 710 P.2d 1, 2-3 (Colo. App.
1985); Board of Educ. of Chicago v. State Bd. of Educ., 497
N.E.2d 984, 990 (Ill. 1986); Board of Educ. of Melrose Mun. Sch.
v. State Bd. of Educ., 740 P.2d 123, 125 (N.M. App. 1987).
The preponderance standard is also applied in out-of-
state cases involving the firing of other types of public
employees. See Clark v. Board of Fire & Police Comm'rs, 613 N.E.
2d 826, 830 (Ill. App. 1993) (termination of police officer
accused of obstruction of justice, bribery, and conspiracy);
Myers v. Montgomery County Police Dept., 626 A.2d 1010, 1029 (Md.
App. 1993) (police officer fired for use of excessive force);
Jackson v. Bible, 611 S.W.2d 588 (Tenn. App. 1980) (hospital
worker fired for theft). These cases belie Romulus' claim that
accusations of illegal conduct which prompt an employment
termination proceeding must be proved by clear and convincing
evidence. We follow them and hold that the preponderance of
evidence standard applies to disciplinary proceedings involving a
E. The Lower Court Must Reconsider Its Award of
The court's award of attorney's fees to ASD was
appropriate, for the result the court reached. Because we
reverse with regard to Romulus' unpaid suspension, however, we
vacate the attorney's fees award. On remand, the trial court
should determine who is the prevailing party, and award
attorney's fees accordingly.
Romulus' failure to exhaust his contractual remedies is
excused by their futility and by the fact that Romulus did not
receive notice of the deadline for their exercise, so he is not
precluded from challenging his suspension. Under the Due Process
Clause of the Alaska Constitution, ASD should have continued to
pay Romulus during the period of his suspension until he could
have reasonably received a hearing. Romulus' other arguments
lack merit. The Board's refusal to follow the recommendation of
the hearing examiner was a proper exercise of its fact-finding
powers as set forth in ASD's policy manual. The Board's decision
to dismiss Romulus was supported by substantial evidence in the
administrative record, and the substantial evidence test was the
AFFIRMED in part, REVERSED in part, and REMANDED for
determination of the length of the period for which Romulus was
entitled to a paid suspension and for reconsideration of
1 M.F. reportedly told a boyfriend later in the year about
the oral sex incident, but this person did not testify at the
2 The hearing officer stated that in his experience, "such
surreptitious phone calls are often successful at obtaining
admissions from guilty suspects." He also concluded that
"[t]here was no credible evidence that at the time of these
conversations that [Romulus] was aware that he was being
3 A school board acts as an administrative agency with
regard to personnel decisions. Ballard v. Stich, 628 P.2d 918,
920 (Alaska 1981). An agency's factual findings are reviewed
under the substantial evidence test. Our review must determine
whether or not the findings "are supported by substantial
evidence, i.e., such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Galt v. Stanton,
591 P.2d 960, 963 (Alaska 1979) (quoting Keiner v. City of
Anchorage, 378 P.2d 406, 411 (Alaska 1963)). On questions of
law, however, we exercise our independent judgment. Handley v.
State, Dept. of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
4 The Exempt Manual states that "any employee who feels
that he/she has received inequitable or unjust treatment because
of some condition of employment may personally, or through a
representative, appeal for relief from that condition." The
Exempt Manual sets forth a procedure by which such "appeals for
relief," travel up the chain of command and end with the school
district's executive director of labor relations.
5 Due process requires an agency's adjudicative
deprivation of life, liberty or property to be preceded by
appropriate notice. Wickersham v. State Commercial Fisheries
Entry Comm'n, 680 P.2d 1135, 1144 (Alaska 1984).
6 These responsibilities include scheduling, resolving
discovery disputes and other motions, swearing in witnesses,
ruling on evidentiary issues, and limiting repetitious testimony.
7 Moreover, as the Board noted in its findings, its
disagreement with the examiner was "not based upon the demeanor
of witnesses or other factors which the hearing officer might
perceive through the receipt of live testimony." Rather, the
Board's conclusions departed from those of the hearing officer in
that (1) unlike the hearing officer, the Board found that T.A.'s
diary and M.F.'s letter to T.A. constituted corroborative
evidence; (2) the Board deemed Romulus' denials of the
allegations during the recorded phone conversations to be less
than complete and indicative of a guilty conscience; (3) the
Board rejected the value of the character witness testimony,
since all of those witnesses were ignorant of a significant
private fact of Romulus' life -- his alcohol and drug problems;
(4) the Board found Pam Kirk's testimony "helpful," despite the
fact that she was not a licensed clinical psychologist; and (5)
the Board found inherently implausible Romulus' account of how he
got his truck stuck in a snowbank while giving M.F. a ride home.