:

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FOURTH JUDICIAL DISTRICT AT FAIRBANKS

YA UNA TAYLOR,

Appellant,
v. MAY 19 2009
UNIVERSITY OF ALASKA,
UNIVERSITY OF ALASKA, and " - - - - - -__ iik~"{:
TANANA V ALLEY CAMPUS,

Appellee. Case No. 4FA-08-02579 CI

OPENING BRIEF OF APPELLANT

STATEMENT OF JURISDICTION

Jurisdiction of the Superior Court is pursuant to AR 602(a)(2).

ISSUES PRESENTED FOR REVIEW

1. Whether Taylor was a "for cause" employee.

2. Whether Taylor held a property interest in her employment.

3. Whether the University deprived Taylor of her due process ri ghts.

4. Whether the University 's non-retention regulation is unconstitutional, as

interpreted by the University.

Page 1 of 36
Opening Brief of Appellant
5. Whether the University failed to consider Taylor' s arguments when he

submitted his recommendation to uphold Taylor's argument, to the Chancellor

of the University.

6. Whether the University failed to comply with their own policies and

regulation, as they pertained to Taylor's employment.

7. Whether the University has failed to comply with the Merit System

requirement for Public Employees.

8. Whether the Superior Court should issue injunctive relief: barring the

University from using non-retention in order to deprive past, present and future

employees of their due process rights.

STANDARD OF REVIEW

When interpreting a statute, courts consider the meaning

of the statute's language, its legislative history, and its
purpose.

Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751

(Alaska 2008).

However, administrative hearings are required to comply with due process.'

The University has admitted that Taylor's hearing did NOT meet due process

standards. R. 45, no. 1.

I The requirements of the Alaska Constitution's due process clause app ly in an administrative setting. Cons!.
Art. I, § 7 . State. Dept. of Health & Social Services v. Valley Hasp. Ass'n, Inc. (2005) Alaska, 116 P.3d 580 .
Administrative proceedings must comply with due process. State, Depl. of Natural Resources v. Greenpeace,
Inc. 96 P.3d 1056 (Alaska 2004), rehearing denied.
Page 20f36
Opening Brief of Appel/ant
 When an administrative proceeding fail s to conform to
the minimum requirements of procedural due process,
the superior court may not revi ew the case on the
agency record, but must instead remand for a new
agency hearing or grant a trial de novo as needed to
cure the procedural defect.

Laidlaw Transit, Inc. v. Anchorage School Dis!., 11 8

P.3d 1018 (Alaska 2005).

STATEMENT OF THE CASE

Appellant Taylor filed a grievance with Appellee University of Alaska on

April 17, 2008. R. 267 - 272. Taylor's grievance was regarding the University's

decision to terminate her employment through non-retention and the University's

refusal to give her any reason, or afford her with due process or any meaningful

method of appealing the decision administratively. Notice of Non-retention was given

to Taylor on April 3,2008 and was effective May 1,2008. R. 244 - 245.

The University strongly argued against Taylor being able to grIeve her

constitutional claims in the administrative process, R. 47, no. 4, para. 2, and the

hearing officer agreed. R. 156, para. 3.

On September 21, 2008, the hearing officer, William Cotton, cancelled the

hearing and submitted his Recommended Decision to the Chancellor, Brian Rogers.

R. 260 - 261 (Recommended Decision). The hearing officer recommended that the

University uphold their decision to non-retain Taylor. R. 261 , para. 2, In. 8-9. He
Page 3 of 36
Opening Brief of Appel/ant
based his decision solely on the notice requirements set out in the non-retention

regulation and the fact that Taylor did not di spute that the notice given to her was

timely per this requirement.

On September 24, 2008, Taylor filed an Complaint in the Superior Court

regarding the intent of the non-retention regulation and the University's legal ability

to terminate her employment without cause or due process. On December 19, 2008,

the University filed a Motion to Convert Action to Appeal from Administrative

Action. Oral argument was held on January 31, 2009. Judge Wood granted the

University's motion but assured Taylor that all of her arguments would be preserved

and heard individually. He gave Taylor 30 days to supplement her Complaint with her

points on appeal.

This is the proceeding that follows.

ARGUMENT

Public employee's, other than those serving "at will" have

a sufficient property interest in continued employment to
warrant due process protection prior to termination.

Cleveland Board of Education v. Loudermill, 470 U.S.

532, 105 S.Ct. 1487, 1491,84 L.Ed.2d 494, 501 (1985).

Page 4 of 36
Opening Brief of Appellant
 TAYLOR WAS A "FOR CAUSE" ,E MPLOYEE

ON E MAIN ISSU E

Empl oyees hired on at-will basis can be fired for any

reason that does not violate implied covenant of good faith
and fair dealing; however, employees hired for specific
term may not be discharged before expiration of term
except for good cause.

Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123.

Both Taylor and the University agree that Taylor's employment status is the

One Main Issue in this case.

Taylor contends that she was a "for cause" employee. The University has made

numerous conflicting statements regarding their opinion of Taylor' s employment

status and have never actually stated what they assert her employment status to be.

Taylor's "for cause" status comes from multipl e sources, each of which would

give her the same status individually.

T AYLOR'S "FO R CA USE" EMPLOYM ENT STATUS

ACCORDlNG TO THE CONSTITUTION OF THE STATE OF ALASKA

The legislature shall establish a system under which the

merit principle will govern the employment of persons by
the State.

AK Const. Art. 12, § 6. Merit System.

Page 5 of 36
Opening Brief of Appel/ant
 The State enacted AS 39.25. State Personnel Act, in order to comply with this

requirement.

AS 39.25.010. Purpose of chapter.

(a) It is the purpose of this chapter to establish a system of

personnel administration based upon the merit principle
and adapted to the requirements of the state to the end that
persons best qualified to perform the functions of the state
will be employed, and that an effective career service will
be encouraged, developed and maintained.

Although, all University of Alaska employees are exempt from the provisions

of and the rules promulgated under the State Personnel Act, AS 39.25.110(5), the

University is not exempt from the requirement of AK Const. Art. 12, § 6. A merit

system is defined in AS 35.2S.010(b):

(b) The merit principle of employment includes the

following:

(I) recruiting, selecting, and advancing employees on the

basis of their relative ability, knowledge, and skills,
including open consideration of qualified applicants for
initial appointment;

(2) regular integrated salary programs based on the nature

of the work performed;

(3) retention of employees with permanent status on the

basis of the adequacy of their performance, reasonable
efforts of temporary duration for correction in inadequate
performance, and separation for cause;
Page 6 of 36
Opening Brief of Appel/ant
 (4) equal treatment of applicants and employees with
regard onl y to consideration wiu1in the merit principles of
employment; and

(5) selection and retention of an employee's position

secure from political influences.

The Board of Regents, as the governing authority of the University under AK

Const. Art. 7, § 3, and as the appointing authority for employment into state service

for the University under AS 39.25.020(a)(4), must adopt policy that is similar to and

provides the at least substantially equivalent rights as those provided by the State

Personnel Act.

It "seems" as though this has been done.

P04.01.020. Nondiscrimination Statement.

In accordance with federal and state law, illegal

discrimination in employment against any individual
because of race, color, religion, national origin, age, sex,
veteran status, physical or mental disability, marital status
or changes in marital status, pregnancy or parenthood is
prohibited. Decisions affecting an individual's
employment will be based on the individual's
qualifications, abilities and performance, as appropriate.

(11-19-99)

Page 7 of 36
Opening Brief of Appellant
 Taylor was a "regular" employee of the University of Alaska. Taylor was

employed in a budgeted (or state appropriated) position, and had held this position for

three years, until the University terminated her employment.

CONCLUSION: Taylor was a permanent state employee \vhose employment was

required to be governed by a merit system. Taylor was a "for cause" employee.

TAYLOR ' S "FOR CAUSE" EMPLOYMENT STATUS ACCORDING TO BOARD or REGENTS '
POLICY AND U NIVERSITY REG ULATIONS

R04.01.050. Types of Employment

A. At-Will Employment

At-will employment is employment that is designated as

at-will in Regents ' Policy, University Regulation, or in a
written employment contract.

Taylor's employment did not fall under any of those designated in policy or

regulation, nor was she at-will according to her contract. The University agrees. R.

277, para. 2.

R04.0] .050. Types of Employment

B. For Cause Employment

The University designates employment not established as

at-will to be for cause.

In other words, if your employment is designated as "at-will", then you are "at-

will". Otherwise, all other employees are "for cause". Taylor was not designated as
Page 8 of36
Opening Brief of Appellant
"at-will" accordin g to any policy, regulation or contract. Therefore, she was " for

cause".

The University says that the nonretention regulation does not state a

requirement other than 4-weeks notice. R04.01.050 clearly establishes those positions

who are at-will and those who are for cause; yet the University demands that it be

interpreted to mean anything other than that Taylor was a for cause employee, even if

it means that the policies or regulations do not make sense 2

While it is somewhat confusing to include the

nonretention alternative under the title "For Cause
Employment," it is nonetheless clear that both the for
cause and nonretention alternatives are available to end
the employment of any employee who is not an "at will"
employee. R. 279, para. 1.

The University attempts to blur any differences between a "for cause"

employee and a "for cause" termination. Anyone may be terminated under a "for

cause" termination, if the University chooses to do so. The University's "for cause"

termination regulations is not what provides Taylor her protection, it is her status as a

"for cause" employee, as expressly stated in University Regulation 04.01.050. A "for

cause" employee can only be terminated "for cause".

2Policy and Regulation must be strictly construed against the employer because of the unequal bargaining
power against the employee who must accept the personnel rul es as offered. Zuelsdor/ v. University of Aloska,
Fairbanks, 794 P.2d 932, 934 (A laska, 1990).
Page 9 of 36
Opening Brief of Appellant
CONCLUSION: All employees not defined as "at-will" are considered to be "for

cause". Taylor' s employment was not designated as "at-will " ever anywhere in Board

of Regent Policy, University Regulation, her employment contract, or anywhere else.

Taylor was a "for cause" employee.

Further showing of Taylor's "for cause" employment status is the grievance

policy she was required to use. R04.08.070. This method expressly excludes the

tennination of at-will employment from being applicable to this grievance policy,

R04.08.060. Either Taylor was a "for cause" employee, despite the University's

denial, or the University considered Taylor to be some unexplained or unknown type

of employee that the University could just pick and choose what rules they wanted to

apply in her situation at their whim. Either one does not work out in their favor.

The University also requires that all employees receive a perfonnance

evaluation at least two-weeks prior to their leave accrual date. P04.07.030 and

R04.07.030. 3 The University failed to ever give Taylor a performance evaluation;

they did however, apply her perfonnance raise each year.

You CAN'T ALWAYS BE ON THE WINNING TEAM

The University avoided any opportunity to provide a definite statement

regarding their position on whether Taylor was a "for cause" or an "at-will"

Page 10 of 36
Opening Brief of Appel/ant
employee. The University does not know what their position IS on Taylor's

employment status, but they do know that Taylor's employment status is such that it

does not support Taylor's arguments.

From the start, Taylor wanted to establi sh the University' s position on this

questions because she knew that this had a huge impact on her case.

On or around July 14, 2008, Taylor had stopped by the Mr. Schendel's office

to drop off some documents. At that time, she had asked him if the University's

position was that she was an "at-will" employee. Mr. Schendel asked her to speak

about the case only through email, as he was more comfortable with that. Taylor did

just that. R. 62. She received no response.

On July 16, 2008, Taylor requested that the University answer this question

prior to moving forward. R. 69. The response given to Taylor was not regarding the

University's position on Taylor's employment status, but rather their position on the

due process issue. R. 72. They referred her to the previous email from regarding their

answers to her questions on the hearing officer selection process. R. 47 - 49:

As Brunner has noted, Ms. Taylor lacks a "property

interest" in her University employment (except as to the
sufficiency of the 4-week notice, which she has not
contested). R. 49, n. l.

3 When an employee is required to be evaluated on an objective basis, they cannot be terminated because of the
general dissatisfaction of their employer. Cassel v. State, Dept. ojAdmin,. 14 P.3d 278 (Alaska 2000), University
oj Alaska v. Tovsen, 835 P.2d 445 (Alaska 1992).
Page 11 of 36
Opening Brief of Appellant
 Taylor argued her "for cause" status in every pleading throughout the

grievance process. Even though this was a major issue in Taylor' s grievance and it

was never actually denied by the University,4 the hearing officer never addressed this

issue and did not even state it as a fact in his recommended decision, R. 250.

Chancellor Brian Rogers claimed to have reviewed everything in the pleadings

and chose to adopt the hearing officers recommendation as his own decision to uphold

Taylor'S nonretention. R. 249.

The University also tries to avoid the issue by claiming that Taylor assumes

that "at-will" and "for cause" are the only two types of employment. However, they

do not even attempt to provide any other "types" of employment that there may be, or

which one of these defined Taylor' s employment. In reality, when referring to

employment under these two tenns, they are the only types of employment. No matter

how you label it, whether it is employment that serves at the pleasure of an authority,

employment under a collective bargaining agreement, or any other employment, it can

be placed under either "at-will" or ."for cause".

In the University' s Response to Taylor's Notice of Nonmootness, they state,

"The University distinguished Taylor'S employment from "for cause" employment

and held that 'the University was entitled to terminate Ms. Taylor'S employment by

4 Me. Brunner's prior statement regarding Taylor's lack of propeny interest in her employment, was not an
assenion that the University held Taylor' s employment to be "at-will", as they have made statements showing
Page 12 of 36
Opening Brief of Appellant
providing her with a written four-week notice of nonretention ... '" This is absolutely

not true. The University has never distinguished Taylor's employment from being

"for cause". They have not provided a single regulation, policy, statute, case, law, or

any other authority that shows that Taylor was anything but a "for cause" employee.

Taylor has repeatedly distinguished her employment from "at-will" and referred to

authority every time.

Even when making this statement, the University does not even refer to where

this alleged distinguishing had been made. Their reference to the hearing officer's

decision regarding the 4-week notice, has nothing to do with Taylor's "for cause"

status, as this statement is based solely on the hearing officer's opinion that the

University did not violate any of the requirements notice requirements stated in the

nonretention regulation. In addition, Taylor never disputed that the nonretention

regulation only required 4-weeks notice. The oral statements of the University made

after the fact does not provide them with an opportunity to supplement or amend their

own policy and regulations with disclaimers, explanations or better definitions.

The University's refusal to admit that they are wrong by continuously making

arguments in which they state their opposition to Taylor' s claims and use completely

unrelated references or cite to unrelated situations to support or divert from them, is

the sole reason that this matter has had to come as far as it has. The Court should

that they interpret the nonretention regulation on its own, to be proof of Taylor' s lack of property interest in her
Page 13 of 36
Opening Brief of Appellant
recognize that University is making "fruitless" and arbitrarily expensive attempt to

defend their egregious employment practices which they have foisted on countl ess

unsuspecting employees.

As Taylor has shown, th ere are no assumptions or implied rules that create her

"for cause" status. Taylor has shown three sources that create her "for cause" status,

including one directly from the University that explicitly states her "for cause" status

using the exact words, "for cause".

The University can continue to deny Taylor's "for cause" employment status

as much as they want. The fact is, with or without the University own policies and

regulations, there is absolutely nothing that can show otherwise. The University could

not convert a "for cause" employment into one that can be tenninated "at-will"

depending on their chosen method oftenninating them.

TAYLOR HAD A PROPERTY INTEREST IN HER EMPLOYMENT

The University has stated numerous times during the course of the grievance

process and thereafter, that Taylor did not have a property interest in her employment.

Their statements made in response to Taylor's claim do not suddenly make this true.

employment, and has no bearing on her employment status.

Page 14 of 36
Opening Brief of Appellanl
 All of Taylor's arguments in the preceding section, can be incorporated into

this section by replacing all references to Taylor's for cause status with a reference

property interest in her employment.

Public employee's, other than those serving "at will" have

a sufficient property interest in continued employment to
warrant due process protection prior to termination.

Cleveland Board of Education v. Loudermill, 470 U.S.

532, 105 S.Ct. 1487, 1491 , 84 L.Ed.2d 494, 501 (1985).

This is also recognized in Alaska.

Persons who are employed other than "at will" have a

sufficient property interest in continuing their
employment, absent just cause for removal, to require that
they be given notice and opportunity to be heard under
due process clause of State Constitution before their
employment is terminated.

See Breeden v. City of Nome, 628 P.2d 924 , 926 (Alaska

1981), Diedrich v. Ketchikan, 805 P.2d 362, 367 (Alaska,
1991). Also see, Gorham v. City of Kansas City, 590 P .2d
1051 (Kan.l979); State ex reI. Sweikert v. Briare, 588
P.2d 542 (Nev. 1978), University of Alaska v. Chauvin,
521 P.2d 1234 (Alaska 1974), Simpson v. Western
Graphics Co/p., 643 P.2d 1276 (Or.l982), Casey v. City
of Fairbanks, 1983,670 P.2d 1133.

Page 15 of 36
Opening Brief of Appellant
 The State of Alaska has also recogni zes that:

"Public employees who may be terminated only for

just cause have a property interest in continued
employment."

City of North Pole v. Zabek, 934 P.2d 1292 (Alaska

1997).

Even if it could not be so plainly seen that Taylor was specifically labeled a

"for cause" employee, the court must see and the University must clearly admit that

Taylor was not at-will.

THE UNIVERSITY DEPRIVED TAYLOR

OF HER CONSTITUTIONAL RIGHTS

42 U.S.c. § 1983 provides, in part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State ...
subjects, or causes to be subjected, any citizen of the
United States or other person within the jUrisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in
equity, or other proceeding for redress.

When principles of due process attach, there is a

certain level of procedural fairness that must be
accorded to an affected party.

Nichols v. Eckert, 1973, 504 P.2d 1359.

Page 16 of 36
Opening Brief of Appellant
 The University has admitted their reason for terminating Taylor as being Jor

"lack of professionalism," "lack of responsiveness to clear expectations," and

"resistance to correction action." R. 124, para. 2. The University had to give her the

reason and afford her an opportunity to defend herself against any alleged "colTection

action.,,5 No fonnal cOlTection action ever took place during Taylor's employment.

Taylor was a "for cause" employee from the day that she completed her

probationary period. 6 R. 260, para. 3. No converting needed to be done for her

employment to become "for cause". The fact that the University had a reason and has

provided it only shows a violation of the covenant of good faith and fair dealing7 by

tenninating her in a way that tbey deprived her of her contractual and constitutional

right to notice of the allegations and "for cause" termination procedures when being

, Due process requires that a PaJty receive adequate notice and an opportunity to be heard before being deprived
oflife, liberty, or property by adjudication. In re £Stale ofBlodgelt, 147 P.3d 702 (Alaska 2006).

Due process requires notice and an opportunity to be heard prior to deprivation of a property interest protected
by the Fourteenth Amendment. Const. art. J, § 7. Johnson v. Johnson, 1975, 544 P.2d 65.
6 P04.01.055(B) Temporary, extended temporary, adjunct, student, casual labar, regular new hire probationary
employees and those positions designated by the president as officers and senior administrators of the university
are employed at-will. A new employee in a regular position, including an individual with a break in university
service greater than 10 business days, is also considered at-will for the duration of the probationary status.
7 Like all contracts, an employment contract includes an implied covenant of good fai th and fair dealing. This
covenant has both subjective aJld objective elements. The sUbjective aspect prohibits an employer from
terminating an employee for the purpose of depriving the employee of a contract benefit, and the objective
aspect requires an employer to act in a manner that a reasonable person would regard as fair. See Zabek.

The covenant of good faith and fair dealing also requires the parties to act in a manner which a reasonable
person would regard as fair. Luedtke. Thus, an employer's discretion must be "exercised reasonably and in good
faith" and his decisions must be made "fairly and in good faith." Areo Alaska Inc. v. Akers, 735 P.2d 1150, 1156
(A laska 1988).
Page 17 of 36
Opening Brief of Appellant
 8
terminated for cause It also deprived her of the right to defend herself against

allegations made in order to terminate her employment and required that, in order for

her to pursue any complaint regarding her termination, she was required to bear the

burden of proof.

The supporting documents that the University used to support their request to

tenninate Taylor has never been supplied to Taylor. However, the only incidents in

which she received any type of corrective action, she also was not allowed an

opportunity to dispute them, even though the University requires this. Regents' Policy

Chapter 04.07.

Had Taylor been afforded an opportunity to dispute these allegations before a

decision was ever even made to tenninate her employment, it would have been found

that the allegations could not be substantiated and would not have been sufficient to

support a request for her tennination. 9 Because no due process hearing was afforded,

the University never had to bear any burden of proving that these allegations were in

fact true.

If the courts worked the same way, this countly would be a mess. Imagine that

any random person could allege that a person committed a crime; and that, without

'One of the chief purposes of the due process clause is to ensure that individuals who have property rights are
not subjected to arbitrary governmental deprivation of those rights. Palm er v. Municipality of Anchorage,
Police and Fire Retirement Bd., 65 P.3d 832 (Alaska 2003).
Page 18 of 36
Opening Brief of Appellant
any proof, they could be indicted for that crime. Then, they are found to be guilty of

the crime without a trial. Imagine that this person does not even know that any of this

has happened until the police call him one day and ask him to come in because they

want to have a discussion with him. They don't give him any details, just ask him to

show up. When he does, they tell him he is going to jail, but that they will not arrest

him for another 4-weeks. They refuse to tell him why any of this is happening. Then,

they tell him that the only way that he can make a complaint about it is ifhe can show

that they didn't follow their rules in how they arrested him and that he could not base

anything on the law. Then, upon him filing a complaint, he is told that, regardless of

what the law says, their rules said they could arrest someone without telling them why

or having to prove that reason was even true. Their only requirement is that they give

him 4-weeks notice before they actually make the arrest and because they followed

that requirement, that was all they had to do. So he appeals to the next person up. That

person says the same thing. He says that they applied the 4-week notice requirement

so there was no wrongdoing.

This analogy is absolutely no different from those actions applied in Taylor's

case. The University, acting under the color of the state, accepted an unfounded

allegation, then indicted, prosecuted and with 4-weeks notice, incarcerated Taylor, a

9 When agency decision is purportedly based upon record, agency reliance on evidence not on the record is a
fundamental defect amountin g to a failure of due process. Olson v. State, Dept. ~f Natural Resources, 1990, 799
P.2d 289, rehearing denied.
Page 19 of 36
Opening Brief of Appel/ant
permanent public employee,10 without telling her the reason or allowing her to dispute

the allegations.

THE UNIVERSITY'S NON-RETENTION REGULATION IS

UNCONSTITUTIONAL

LEGITIMATE PURPOSE

Under the Alaska Constitution, substantive due process

is denied when a legislative enactment has no
reasonable relationship to a legitimate governmental
purpose.

State v. Rice, 626 P .2d 104 (Alaska 1981).

Substantive due process is denied when legislative

enactment has no reasonable relationship to legitimate
governmental purpose.

Concerned Citizens of South Kenai Peninsula v. Kenai

Peninsula Borough, 1974, 527 P.2d.

On a challenge to an administrative regulation, the

Supreme considers first whether the agency exceeded
its statutory mandate in promulgating the regulation,
either by pursuing impermissible objectives or by
employing means outside its powers, second whether
the regulation is reasonable and not arbitrary, and third
whether the regulation conflicts with any other state
statutes or constitutional provisions.

Grunert v. State (2005) Alaska, 109 P 3d 924,

rehearing denied.

JO Due process of law guaranteed by United States and Alaska Constitu tions req uires pretermination hearing
prior to termination of public employee. Odum v. University q( Alaska, Anchorage, 845 P.2d 432 (Alaska 1993).
Page 20 of 36
Opening Brief of Appellant
 History shows that the University' s nonretention regulation was never meant to

be used in the manner that it is being used today. It was originally adopted for the

reorganizing of the University.

It was originally meant to be used as a form of layoff when the University

declared financial exigency. I I During a state of declared financial exigency, the

University may adopt emergency regulations which override the normal practices of

the University. This was not a violation of employees' rights because during financial

exigency, the University has more of an interest in establishing financial stability

outweighs the individual rights of their employees.

Cause was not required in a nometention situation; however, in order to

implement these regulations, the University had to declare and prove and state of

financial exigency, just as it still shows today for layoff. P04.09.

These regulations have never changed. In 2000, the University made major

adjustments to their Policies and Regulations in order to remove details from the

policies and place them into the regulations. The University re-adopted it, but there

was never any changes made to it other than placing a p0I1ion of it into the

II C. Tennination or nonretention of a member ... by the University shall be based on just cause.
The arbitrator decided that "the University has the right to nonretain employees because of terrnination of the
underlying grant, without providing layoff rights. Such nonretentions are clearly distingui shable from layoffs or
reductions in force, which alone invo lve layoff rights." He indicated that decisions fTom other jurisdictions are
"uniformly clear that layoffs are intended to be temporary only .... (A) termination ofa particular grant does not
imply such a temporary slJspension of employment lIDless otherwise stated." The arbitrator therefore ruled in
favor of the Un ivers ity and against Masden. Masden v. University of Alaska, 633 P.2d 1374, Alaska, 198 1
(Brief of Appellee).
Page 21 of 36
Opening Brief of Appellant
regulations. No changes were made to the meaning of the policy. Eventually, the

University then "re-numbered" the nonretention policy and regulation and placed

04 .07.1 00. This placed into a completely different chapter which actually makes it

looks as though it is just part of a list of terminations for the University to choose

from. However, they removed it from the chapter title Financial Exigency and

considered it just a "renumbering", Again, no changes were made to the meaning or

the use for nonretention.

NO LONGER A LEGITIMATE PURPOSE

U.S. Const. amend. XIV, § 1 provides that no state

shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.

Now that the nonretention regulation had been placed in another chapter

outside of the financial exigency policies and regulations, the University could claim

that it was only another method of terminating any employee and that it did not

require any reason. 12

12 "Regents Policy 04.07.100 makes clear that the University may discontinue employment through
nonretention. The accompanying University Regulation 04.07.100 specifies that nonretention is one of a
number of options the Uni versity has to terminate employment. Termination through nonretention is separate
and distinct ITom termination for cause, and does not require cause." [footnote omitted] R. 223, para. I.
Page 22 of 36
Opening Brief of Appel/ant
 Since that time, nonretention has become an accepted and standard method of

termination. It has only recently become clearly realized by the employees of the

University, that the University was using nonretention in this manner.

In the President's fi nal decision, he states that under the regulations for "for

cause" employment, there are two sections . that are each for a different type of

tennination. He states that the procedures to be applied depend on the type of

termination type of employment. The first section being "for cause" termination,

which requires all of the processes Taylor should have received regardless of

tennination type, the second section being layoff, nonretention, or financial exigency.

All of which are due to budget restricting reasons as Taylor stated early on, and all

which are considered 'just cause" under those circumstances, and all which still

provide du e process procedures. That is until the University comes up with their new

meaning and use for nonretention which sets it apart from every other termination

listed because it is arbitrary and sets out no reason for it to be used, how it is to be

used, who it can be used for, or any meaningful process for an employee to defend

themselves against it, unlike the others. 13

J3 Substantive due process requires less of a nex us between th e challenged regulation and its objective than does
equal protection ; substantive due process is denied when a legislative enactment has no reasonable relationship
to a legitimate governm ental purpose. Const. Art. I, §§ I, 7. Wilkerson v. State, Dept. of Health and Social Ser-
vices, Div. of Family and Youth Services (1999) Alaska, 993 P.2d J0 18.
Page 23 of 36
Opening Brief of Appel/ant
 Of course, the University decides to fall back on their constitutional authority.

Under AS l4.40.170(b)( I). R. 224, para. 4. However, their authority does not provide

them the right to violate the rights of their employees.

Statutes that interfere with fair trial rights do not pass

constitutional muster under the due process clause of
the Alaska Constitution merely because they are
minimally rational. State v. Murtagh (2007) Alaska,
169 P.3d 602.

The University's use of nonretention in order to bypass the requirement of

providing due process procedures to an employee who has been accused of any

alleged wrongdoings, is so obviously wrong that it is appalling to see how open the

Universi ty is about doing this, to the extent that they admit their pretext for the

nonretention is for allegations made against an employee, they admit their reason for

using nonretention is to circumvent the "for cause" termination process because it is

expensive for the University and their decision might be reversed, they admit that

even though the regulation claims to not discredit the employee, that the employee is

still flagged internally in the University system so that, in the event they apply for a

position later on, the hiring authority must confer with HR before hiring them, and

last, they even admit that they use nonretention without cause to terminate pennanent

employees on a regular basis. The University almost seems to flaunt their illegal acts.

The University claims that any process due does not depend on the type of

Page 24 of 36
Opening Brief of Appellant
employment an empl oyee has, but rather the type of termination that the Un iversity

chooses to use. R. 287, 2, In. 12 - 16. In Zabek, the employer tried to come to the

same conclusion. However, the court found that none of the cases cited supported the

conclusion that Zabek should receive less due process protection than any other

governmental employee fired for misconduct. In all three cases that had been cited,

the court held or implied the right to present testimony and cross-examine to be a
14

requirement of due process in circumstances virtually identical to Zabek's. No Alaska

cases or any other cases could be cited which allow denial of these rights on the

theory of their opinion, which is that the scope of due process protection for

tenninated governmental employees is defined by the label the terminating authority

attaches to the tennination.

The Fourteenth Amendment to the U.S. Constitution provides in part: no state

shall make or enforce any law which shall deprive any person of life, liberty, or

property, without due process of law. This is exactly what the University is using

nonretention to do.

During the grIevance process, Taylor pointed out that her contract did not

expressly allow nonretention without cause at any time during her employment, as the

University was claiming. R. 166, para. 3 and R. 225, para. 3. The paragraph which

" Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); Kenai Peninsula Borough Boord of Education v. Brown, 691
P.2d 1034 (Alaska 1984); and McMillan v. Anchorage Community Hospital, 646 P.2d 857 (Alaska 1982).
Page 25 of 36
Opening Brief of Appel/ant
referred to nonretention was discussing temlination during the employee's

probationary period. R. 240, para.2 under "General Conditions of Employmcnt",.

The University's had provided Taylor with a form entitled Request for Reasons

for Temlination of Employment, R. 182, full copy at ER 280, which she could fill out

and request the reasons for her nonretention. Taylor did not submit this fonn because

of the waiver attached to it. Taylor claims that this form shows their intent that

nonretention is not supposed to be used to tenninate a "for cause" employee without

cause. If it did intend to use it in such a way, then it only proves that the University

uses nonretention to treat a "for cause" employee as nothing more than one that is "at-

will" by refusing them due process rights. R. 168, para. 3. However, if nonretention

was meant for a more legitimate purpose such as when informing a probationary

employee that they would not be continuing, such as the definition in 2 AAC
15
07.999 , then this fonn would make more sense and be serving a more legitimate

purpose. R . 168, para. 3.

The University replied stating,

Taylor's reading of her employment letters is absurd or

superfluous. Taylor's hypothesis - that nonretention is
inapplicable outside the probationary period - violates
common sense. Her reading is absurd, and thus to be

1515 2 AAC 07.999 Definitions

21. "nonrelention" means separation of a probationary employee fTOm a position due to failure to complete the
probationary period; ...
Page 26 of 36
Opening Brief of Appellant
 avoided. [citation omitted]. If the University can
exercise its right to terminate probationary
employment without providing any notice (or pay in
lieu of notice), as it undoubtedly can, why would a
financially prudent University supervisor choose to use
the nonretention tool and thereby incur either the
additional four weeks' pay (in lieu of notice) or the
additional four weeks' work from an unsatisfactory
probationary employee? Reading the final sentence of
the employment letter the way that Taylor proposes
would make nonretention a superfluous HR tool.
Adjudicators should avoid constructions that result in
superfluity. [citation omitted]. Nonretention has its
only value in the post-probationary context. Taylor's
reading would deny the University the tool when it
most needs it. R. 223, no. 4.

They say this as though that is the only proof they need showing they are

allowed to do this. They also ,act as though it is absurd that Taylor would be pursuing

this considering no one else has ever challenged this. This is exactly why Taylor is

here and why the University is still doing this today, because no one else has

challenged it.

Taylor now asks a similar question. If nonretention may be used to terminate a

"for cause" employee without any rights to due process, then why wouldn't the

University just nonretain everyone they terminate so they do not have go through the

process of paying an "unsatisfactory" employee throughout a due process hearing

which could take time and money, and could also cause the university's decision to be

Page 27 of 36
Opening Brief of Appel/ani
reversed, not to mention possihl y subj ect the University Lo further litigation?

Additionally, what makes the University so keenl y aware of this apparent loophole

that the state has yet to figure out? After all, Taylor's "absurd and superfluous"

assumption which "defies common sense" comes directly from the Alaska's definition

in 2 AAC 07.999.

This question would be rhetorical considering the University has already

admitted that this is exactly what they are using nonretention for. In Taylor's

complaint she claims that the University has a long history of this practice,

Complaint, no. 19. The University denies this claim in their Reply to Taylor' s

Complaint. Reply, no. 19. However, see, University's Reply to Taylor's Opposition to

Motion Concerning Employment Status, R. 224, para. 2:

The University's actions toward Taylor are consistent

with its practice. Since September 2005, the University
has non-retained 55 employees, none of whom were in
probationary status. None of the other recipients of the
nonretention notices challenged the University's
authority to issue such notices to non-probationary
employees. See 0911 2/08 K. Racina affidavit. ER. 281
- 282.

Also see, University's Non-Opposition to Taylor'S Request for Presidential

Review, ER. 283 - 284:

The issue presented by Taylor is one that affects a

large number of University employees, and challenges

Page 28 of 36
Opening Brief of Appel/ant
 the long-standing practice of the University
administration. (emphasis added).

The University goes on to state, ""Nonretention" has no universal meamng.

Taylor assumes that "nonretention" has a fixed meaning ... In fact, the University has

quite explicitly provided its own definition of nonretention, in Regents Policy

04.07.100 and expressly directed Taylor to that definition." [footnote omitted]. R ..

224, para. 3-4. However, when Taylor requested that the University provide their

definition of nonretention and the location of this definition, the University replied

"The University has not promulgated any definition of "non-retention." The

University refers Taylor to Board of Regents Policy and University Regulation

04.07.100, accessible at the University's Policies website."" R. 130, no. 5.

The University's so called "explicitly provided" definition under P04.07.1 00

states:

The university may discontinue or not renew an

existing employment relationship through
nonretention. Nonretention does not reflect discredit
on an employee ...

This is not a special definition that would afford it any type of special

consideration. This could define every single type of termination that the University

uses. See, R04.07.110:

Page 29 af36
Opening Brief of Appellant
 The University may elect to discontinue an eXlstmg
employment rel ationship through layoff. Layoff does
not reflect discredit on the employee's performance ...

This is furth er evidence of the real intention of nonretention as being used in a

financial exigency situation.

Although Taylor has not had the opportunity to review the "Dictionary of

Universal Meanings", Taylor would welcome any supporting evidence showing a

meaning of nonretention, in the employment context, that is used as universally as (I)

a decision not to continue the employment of a probationary employee (or

substantially equivalent wording), or (2) the decision not to continue the employment

of a certificated employee in an educational setting, (or substantially equivalent

wording).

The University's nonretention practice affects one of Alaska's largest

workforces. Almost immediately after Taylor was terminated, she discovered that this

was a widely used practice within the University and was occurring constantly.16 Past

University governance committees had reviewed and approved of these policies and

regulations, without it ever occurring to them that it would be used in a manner

entirely different from how they were intended to be used. Prior to the University

using nonretention for these purposes, their "for cause" regulation read differently. It

stated:

Page 30 of 36
Opening Brief of Appel/ant
 B. For Cause Employment

In the event of a decision to terminate a for cause

employee, the supervisor will provide the employee with a
written statement of the reason(s) for the planned action, a
statement of the evidence supporting the reason(s) for the
planned action, and notice of the employee's right to
request a hearing in accordance with this procedure at the
time the employee is notified of the university's intention
to terminate employment. Also see Regents' Policy and
University Regulation 04.06.070 and 04.08.080 for
additional infonnation.

There was no doubt regarding their employment status and rights. Since then,

the wording has changed. Thcir employment status has not.

The University employees have since started to fight nonretention within the

University, so far to no avail.

Resolution in opposition to non-retention as it is being

used and carried out under the guidance and/or direction
of statewide HR and General Counsel.

Whereas Regents policy 04.01.010 Human Resources

Mission Statement states: 'To encourage excellence, the
statewide office promotes fair treatment, provides for
continuing opportunities for training and development,
values and recognizes productivity and achievement, and
respects the worth and dignity of all individuals who
comprise the university 's workforce,

T6 This practice is so often used in fact, that the nonretention letter as well as th e follow up letter, is a form letter
that the University uses when nonretaining employees.
Page 31 of 36
Opening Brief of Appellant
 Whereas Regents policy 04.07.100 Non-retention states:
"Non-retention does not rellect discredit 011 an employee,

Whereas a non-retained employee is identified in the

university system raising a flag on any applications for
future positions with the university,

Whereas non-retention is being used as a non-litigious

alternative to termination,

Whereas non-retention is being applied in an inconsistent

manner, giving the impression of unfairness,

Whereas non-retention, as it is being used under the

guidance and/or direction of statewide and general counsel
today, has a huge negative impact on co-workers and
colleagues of those non-retained,

Therefore be it resolved that the University of Alaska

System Governance Council respectfully requests that the
VA System adhere to the spirit of Regents policies
04.01.010 and 04.07.100 when implementing non-
retention, and not use it in lieu of termination when
tennination is justified.

Non-retention resolution. Written and approved by

University of Alaska, System Governance Council.
January 28, 2008.

Taylor urges the court to allow this section to be heard de novo in order for the

appropriate supporting evidence and testimony to be submitted.

Page 32 of 36
Opening Brief of Appel/ant
 THE HEARING OFFICER FAILED TO CONSIDER TAYLOR'S
ARGUMENTS WHEN HE SUBMITTED HIS RECOMMENDATION TO
UPHOLD TAYLOR'S ARGUMENT, TO THE CHANCELLOR OF THE
UNIVERSITY

The hearing officer's decision was that the University did not violate their

policies because they only required 4-weeks notice for nonretention notice was

provided. It was mentioned many times by Taylor and almost every person who

reviewed Taylor's grievance at a point, that Taylor did not dispute that the

nonretention regulation said what it said, nor did she dispute that she was given the

proper notice according to the nonretention regulation.

The University's arguments and the hearing officers decision has been based

on the reading of the nonretention regulation by itself, regardless of whether it was

inconsistent with any other regulations or made other regulations to be unambiguous.

Regulations are to be read as whole so that they read hannoniously and one

does not conflict with another 17

To view the nonretention regulation with the regulations around it, it cannot be

seen as a method of standard termination that can be implemented in the middle of a

contract term, without the University having to give a reason or any way to dispute it,

without rendering almost every regulation around it completely invalid.

17 in interpreting ordinance provisions of a municipality, or the University's own promulgated personnel

poliCies, relevant sections of the ordinance, or of the policies, must be construed so that each has meaning, and
so that the sections do not conflict with each other. Stanfill v. City qfFairbanks, 659 P.2d 579, 581 (Alaska
1983).
Page 33 of 36
Opening Brief of Appel/ant
 Taylor pointed out how their use of nonretention conflicted with each policy or

regulation.

The hearing officer did not consider this, which IS the proper method of

determining the meaning and intent of a regulation. 18

When considered properly, it IS plainly seen that nonretention was never

supposed to be used in this manner.

THE COURT SHOULD ISSUE INJUNCTIVE RELIEF, BARRING THE

UNIVERSITY FROM USING NON-RETENTION IN ORDER TO DEPRIVE
PAST, PRESENT AND FUTURE EMPLOYEES OF THEIR DUE PROCESS
RIGHTS.

Taylor understands that the record may not provide the court enough

infonnation in order to make a decision on this section. However, Taylor has shown

the University's admissions of making nonretention of their regular employees

without any due process rights, a nonnal practice.

The court should grant a de novo trial on the unconstitutionality of the

University's nonretention regulation. At that time, more evidence and testimony can

be submitted in order to show that injunctive relief would be appropriate.

Page 34 of 36
Opening Brief of Appellant
 CONCLUSION

Not only does the University refuse to make a consistent argument, but they

refuse to provide any docum entation, references, etc. , that are even remotely

supporting to these conflicting arguments. Additionally, they have not shown or

attempted to show that of the proof or authorities that support Taylor' s argument to be

otherwise. Instead, they rely on P04.07. I 00 and R04.0 7.J 00 and insist that the

University is the controlling authority. The court should not allow the University to

continue to operate with the assumption that they are a Supreme Being. Neither their

constitutional status nor any authority granted to them has given granted them the

authority to disregard federal or state laws.

Most importantly, the University of Alaska, as a representative of the State of

Alaska, is bound by the U.S. Constitution and the Alaska Constitution, and cannot use

their constitutionally granted status or authority to violate the fundamental rights of

the people. Therefore, they cannot terminate or otherwise negatively affect the

employment of those employed by the University on a permanent basis within the

regular course of business, without just cause and providing at least the minimum

requirements of due process under the Alaska Constitution.

" Under rational basis standard, if age ncy decision fails to consider an important factor, it will be regarded as
arbitrary. State v. Alaska State Employees Association/AFSCME Local 52, 1996,923 P.2d 18.
Page 35 of 36
Opening Brief of Appel/ant
 In the interest of the reputations of both the State of Alaska and the Un iversity

of Alaska, as well as in the interest of the citizens of Alaska who expect our

government to protect them and their rights without such blatant disregard and lack of

respect, responsibility and/or accountability, Taylor requests that the court holds the

University responsible for their actions and ensures their future accountability by

performing periodic audits of the University's personnel practices and by granting

injunctive relief barring the University from applying personnel practices that violate

and/or circumvent their past, present and future employees fundamental rights.

Additionally, for the egregious acts against committed by the University against

Taylor, she requests that the court grants her relief in the fonn of back pay for wages,

and benefits lost, beginning from April 4, 2008, including any raises she was entitled

to and COLA, legal fees and costs, and any other relief the court finds appropriate.

RESPECTFULLY SUBMITTED this 19th day of May, 2009, in Fairbanks,

Alaska.

Page 36 of 361
Opening Brief of Appel/ant