search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Matthews v. University of Alaska, Fairbanks (11/8/96), 925 P 2d 1052
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, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
J. BRIAN MATTHEWS, )
) Supreme Court No. S-6855
) Superior Court No.
v. ) 4FA-94-1195 CIV
UNIVERSITY OF ALASKA, ) O P I N I O N
Appellee. ) [No. 4425 - November 8, 1996]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Arthur Lyle Robson, Robson Law
Office, Fairbanks, for Appellant. Jonathan K.
Tillinghast, Simpson, Tillinghast, Sorensen &
Lorensen, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
COMPTON, Chief Justice.
J. Brian Matthews, a former employee of the University of
Alaska, Fairbanks (UAF), filed a grievance disputing UAF's
determination of his period of service with UAF. UAF's Grievance
Council (Council) denied his request for a hearing. On appeal, the
superior court affirmed the Council. Matthews appeals. We affirm.
II. FACTS AND PROCEEDINGS
Matthews was a professor at UAF's Geophysical Institute
(GI) in the early 1980's. He took sabbatical leave in England
during the 1983-84 academic year. (EN1) In February 1984 Matthews
requested an extension of his leave. UAF denied his request. It
informed Matthews that if he did not return he would be required to
repay the salary and benefits he had received while on sabbatical.
Matthews did not return to UAF. Juan Roederer, Director
of GI, informed Matthews in August 1984 that he considered Matthews
to have abandoned and resigned from his position effective June 30,
In March 1985 Matthews received a benefits projection
from the State's Division of Retirement and Benefits (DRB), which
included Matthews's contract salary for the 1983-84 academic year
as one of the three years used in computing his average salary. In
early 1993, Matthews applied to begin receiving his retirement
benefits. On the basis of information it received from UAF-GI, DRB
determined that Matthews was not entitled to credit for the 1983-84
academic year because he had not returned to UAF following his
sabbatical. Therefore, it used an earlier, less remunerative year
in computing Matthews's three highest years' salary average. It
computed his retirement benefits correspondingly. DRB informed
Matthews of its determination in March 1993.
Over the next several months, Matthews exchanged
correspondence with DRB, the President of UAF, and Patty Kastelic,
Executive Director of the University of Alaska Statewide Office of
Human Resources, as he continued to press his case for inclusion of
the salary and service credit from 1983-84 in the computation of
his retirement benefits.
In June 1993 Kastelic informed Matthews that his 1983-84
academic year contract salary was not used in calculating the three
years' average because he had not earned the salary projected in
the contract; (EN3) thus, 1983-84 was not one of his three highest-
pay years. She further wrote, "I regret that you have so long
misunderstood the details of your three highest years of income
credit . . . . Unfortunately, all timelines for internal appeal of
this issue have long passed and any grievance would now be found
untimely." Matthews continued to pursue his claim with Kastelic.
In an August 12, 1993 letter to Matthews, Kastelic
confirmed that his earnings for the 1983-84 academic year properly
were excluded from the salary average calculation. She also
confirmed that he was not entitled to service credit for his
sabbatical leave because he never returned to UAF. However, she
acknowledged that UAF had erred in not refunding to Matthews the
retirement contributions he had made during the period for which
service credit was subsequently denied. Kastelic included with her
letter a check for the full amount of his contributions, $5797.74.
She informed him that the letter was her final disposition of the
matter and UAF's internal grievance process allowed him forty-five
days to file a grievance. (EN4) She enclosed a copy of UAF's
On September 2 Matthews sent a response to Kastelic,
which read in part: "This is formal notification that I intend to
appeal to the grievance committee as offered in your letter."
However, he did not file his request for a hearing with the Council
until February 9, 1994, approximately 120 working days from the
date of Kastelic's letter and eighty days beyond the deadline. His
request included no explanation for the delay.
On March 2 the Council informed Matthews that it had
denied his request for a hearing because it was untimely. (EN5) On
April 5 the Chancellor of UAF informed Matthews that she accepted
the Council's determination that his grievance was untimely, and
dismissed his grievance on that basis.
On appeal to the superior court, Appellate Rule
602(a)(2), the court affirmed the Council on the ground that
Matthews had waived the right to challenge the Council's decision
by failing to address on appeal its timeliness determination. The
superior court further concluded that the Council's decision not to
waive the deadline to appeal was not an abuse of discretion.
Matthews appeals on three grounds. First, he argues that
his request for a hearing was not untimely because it was unclear
that the forty-five-day time limit for requesting a grievance
hearing had begun to run with Kastelic's August 12, 1993 letter.
Second, he argues that this court's precedents require UAF to
decide Matthews's grievance on the merits. Finally, Matthews
argues that UAF should be estopped from demanding his compliance
with the timeliness provisions of the grievance policy because UAF
also failed to comply with these provisions. (EN6)
A. Standard of Review
When the superior court acts as an intermediate court of
appeal, no deference is given to the superior court's decision; we
independently review the merits of an administrative determination.
Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska
1992). We review an agency's decision not to extend a filing
deadline for abuse of discretion. See Mortvedt v. State, DNR, 858
P.2d 1140, 1142 n.4 (Alaska 1993); Forquer v. State, Commercial
Fisheries Entry Comm'n, 677 P.2d 1236, 1244 (Alaska 1984).
B. The Council Did Not Abuse Its Discretion by Denying
Matthews's Request for a Hearing.
1. The grievance policy's deadlines are clear;
Kastelic clearly informed Matthews that they had
begun to run.
Alaska Statute 14.40.170(b)(1) provides that "[t]he Board
of Regents may adopt reasonable rules, orders, and plans with
reasonable penalties for the good government of the university and
for the regulation of the Board of Regents." Consistent with this
grant of authority, the Board has adopted a grievance policy for
the resolution of disputes involving university employees. See
McGrath v. University of Alaska, 813 P.2d 1370 (Alaska 1991).
The Board of Regents' grievance policy outlines a multi-
step process for the resolution of grievances. Step 1 involves
attempts at informal resolution "at the lowest administrative level
having the authority to resolve the matter." Step 2 involves
informal presentation of the grievance to the Step 1 respondent's
"immediate supervisor." Step 3 of the policy provides that "[i]f
the grievance is not resolved in Step 2, and the grievant elects to
proceed with the grievance, the grievant shall present a written
request for a hearing to the grievance council." Step 3 further
The request to the grievance council for
a hearing shall be made within 15 working days
of receipt of the response from the supervisor
in Step 2, or within 45 working days of the
occurrence giving rise to the grievance, or
within 45 working days of the date on which
the grievant has learned, or should reasonably
have learned, of such occurrence, whichever is
In our view, this language clearly provides that the longest
Matthews reasonably could have expected to have to file his request
was forty-five working days from the date of the final Step 2
Matthews argues that his request for a hearing was not
untimely because it was unclear to him that Step 2 of the grievance
process had been closed by Kastelic's August 12, 1993 letter.
The letter was from Patty Kastelic,
executive director of the Statewide Office of
Human Resources. Nowhere in the letter, or
elsewhere, have we found any indication that
Patty Kastelic was the alter-ego for either
Neta Stilkey or the head of the Geophysical
Institute on the Fairbanks Campus. Ms.
Kastelic was, in fact, according to her
representations and stationary [sic], from a
different grievance system (Statewide
Services), and a stranger to the grievance
system as it involved this grievance. If
Professor Matthews is to follow the terms of
the Grievance Rules, Ms. Kastelic is a non-
sequitur and has no effect on the grievance
The argument is without merit. Kastelic's letters
clearly demonstrate that she was an employee of UAF, not "from a
different grievance system,"and that she was thoroughly familiar
with Matthews's case. Moreover, the argument is disingenuous in
light of Matthews's September 2 response to Kastelic's August 12
letter: "This is formal notification that I intend to appeal to the
grievance committee as offered in your letter."(EN7)
2. There is no precedent or policy mandating the
relaxation of deadlines which have been inexcusably
Matthews argues that policy and precedent "favor
resolution on the issues rather than on procedural technicalities."
While we have held that the refusal to relax a deadline for appeal
can constitute an abuse of discretion, we have done so where no
clear final order existed, or where the final order did not specify
the time period for filing an appeal. (EN8) Neither circumstance
is present here. Kastelic stated clearly that her August 12 letter
represented her final disposition of the matter and that Matthews'
next step was to seek review before the Council. Both Kastelic's
letter and the grievance policy she included with it state that the
grievant has forty-five days within which to request a hearing
before the Council.
For the grievance process to function effectively, UAF
must be free to establish reasonable procedural rules and to demand
reasonable compliance with them. Under the circumstances presented
in this case, we are not persuaded that there is any reason based
on policy or precedent for requiring UAF to relax its deadlines and
address the merits of Matthews's claim.
3. UAF's failure to meet policy deadlines does not
estop it from requiring Matthews's reasonable
compliance with the deadlines.
Matthews argues that UAF should be estopped from
requiring compliance with the timelines established in the
grievance policy because UAF did not follow them. Specifically, he
argues that he did not receive a response to his Step 2 appeal,
(EN9) notice of the Council's determination, or notice that the
Chancellor had accepted the Council's recommendation to dismiss his
request within the deadlines set out in the grievance policy.
Matthews offers no authority in support of this argument, and his
argument is without merit.
The Grievance Council did not abuse its discretion in
finding that Matthews's request for a hearing was untimely filed.
The judgment of the superior court is AFFIRMED.
1. Matthews's sabbatical was originally scheduled for the 1982-83
academic year, but was delayed.
2. In his letter to Matthews, Roederer stated: "As far as I know,
your accrued retirement benefits are fully vested . . . . [I]f you
. . . complete and return the enclosed personnel forms, I will do
my best to insure that you promptly receive any amounts which may
be due you for accrued leave, retirement fund refunds, etc."
Matthews apparently completed the retirement forms in September
1984; he did not then receive any retirement fund refund.
Citing his service to UAF, UAF did not seek reimbursement for
the salary it had paid Matthews during his sabbatical leave.
3. While on sabbatical Matthews received full pay, but only for
the half-year ending December 31, 1983.
4. Kastelic's letter reads in part:
In view of the fact that you did not know the
accurate details of your retirement credit, I
now believe that it is appropriate for you to
pursue a review through the University of
Alaska's internal grievance process if you
should choose to do so. I am including a copy
of the policy. Given the prolonged and
disjointed nature of the relevant
correspondence this year, I will support your
request for an extension of timelines beyond
the forty-five days indicated in this policy.
Please note that it is the responsibility of
the grievance council to grant or deny an
extension and also to determine "whether there
is a reasonable likelihood that the matter
complained of was a violation,
misinterpretation, or improper application"of
a Board of Regents policy or a university
. . .
This letter represents my final comments on
this matter. If you choose to grieve I
encourage you to do so immediately as I
believe the necessary documentation to review
your claim is complete.
5. The Council reported that it would have considered Matthews's
request, even though untimely filed, had he submitted it close to
the 45-day deadline.
Although untimeliness was the principal basis for the
Council's decision, the decision did not address the merits of
Matthews's case. The decision states:
You should also be aware that the council
discussed your request before deciding that it
was not timely. Several aspects of this case
were discussed, but the one that kept
surfacing was the fact that University
Regulations required that your salary should
have been refunded to the University when you
chose not to return from sabbitical [sic]
leave. Had this regulation been enforced,
there would have been no question that FY84
was not to be counted toward your retirement,
and presumably there would be no basis for
6. UAF argues that Matthews has waived his right to challenge the
superior court's finding of waiver because he did not contest the
issue in his points on appeal or his opening brief to this court.
Further, it argues that the superior court correctly concluded that
Matthews had waived the right to challenge the Council's decision
by failing to address the Council's timeliness determination in his
appeal to the superior court. Because our review of the propriety
of the Council's decision leads us to conclude that this appeal can
be decided on that basis, we do not address UAF's waiver arguments.
7. In his reply brief to the superior court, Matthews argued that
his request for hearing was timely filed because his September 2,
1993 letter to Kastelic was a notice of appeal and request for
hearing. He apparently has abandoned this argument. Matthews's
September 2 letter does not satisfy the minimum requirements for a
request for a hearing established by the Regents' policy, and it
was delivered to Kastelic, rather than to the Council as stipulated
in the policy.
8. See Owischek v. State, Guide Licensing and Control Board, 627
P.2d 616, 622 (Alaska 1981), in which the court stated:
Where an agency's determination of a case is
expressed otherwise than in a formal order,
the "finality"of such informal expressions,
for purposes of judicial review, depends, it
seems, upon what characterization best serves
the equities of the case. A letter or other
informal expression, if it is apparently
intended to stand as a determination of a
pending matter, may sometimes be considered a
final order if the party seeking the appeal
treats it as such. But if the party receiving
such informal advice from an agency does not
realize that it is intended as a definitive
order, and delays filing an appeal until
(after the expiration of the normal period for
seeking review) he is later apprised of its
intended significance, it is held that the
appeal should not be dismissed as being filed
Id. (quoting 2 Frank E. Cooper, State Administrative Law 592-93
(1965)); see also Manning v. Alaska Railroad Corp., 853 P.2d 1120,
1123-24 (Alaska 1993).
For an example of a case in which the court upheld the
superior court's refusal to relax a deadline for appeal, see Powers
v. State, Public Employees Retirement Board, 757 P.2d 65, 67-68
(Alaska 1988) (dismissal of an appeal filed four days past deadline
9. The Regents' policy provides that the supervisor responding to
the grievant at Step 2 "shall investigate the grievance . . . and
respond to the grievant in writing within ten (10) working days
from the date the grievance was presented." Consistent with his
argument that Step 2 of the grievance process never closed, see
III.B.1., supra, Matthews argues that the Step 2 "designated
supervisor has failed to respond to grievant at all, let alone
within the ten day working period set forth by [the Regents'
From what can be gleaned from the record, it appears that
Matthews's last communication with Kastelic prior to her August 12
letter was on July 3, an interval of approximately 25 working days.
Thus, it appears Kastelic's response was approximately 15 days late
according to the timeline established in the Regents' policy. In
her August 12 letter, Kastelic did not refer to the deadline for
her response. However, she wrote:
Once again I apologize for the delay of my
response. Your inquiry has involved many
people and it has taken me more time than
anticipated to address all of the questions
you and others have asked and to document the