Alaska Employment Law

The Supreme Court, in an unpublished opinion, recently addressed several issues about the Due Process rights of a public employee.  The Court issued its opinion in Bowen v. State, 2007 WL 706638 (Alaska Mar. 7, 2007), on appeal from remand proceedings following State v. Bowen, 953 P.2d 888, 901 (Alaska 1998). 

Bowen had been a staff judge advocate for the Alaska Air National Guard.  His position was at-will, but the earlier appeal had established that he had a constitutionally-protected interest in severance pay and in his reputation.

In the most recent appellate decision, the Supreme Court largely adopted Superior Court Judge John Suddock’s orders, and held as follows:

1)  an adversarial hearing before an Officer Efficiency Board qualified as a “de facto pretermination hearing” that satisfied the Supreme Court’s 1998 remand order that the Guard conduct a pretermination hearing;

2)  the after-acquired evidence rule of McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) , permitted the Guard to rely on Bowen’s post-, as well as pre-termination misconduct;* and

3) Bowen could not avail himself of the right to back pay under Storrs v. Mun. of Anch.,  721 P.2d 1146 (Alaska 1986), based on a technical violation of state Due Process rights, because Bowen’s property interest arose from his right to severance pay and not from any right to continued employment.  In the Court’s words:  “Since [Bowen] did not seek, and was not entitled to, a hearing on the issue of reinstatement, it seems to this court illogical to deem him to be a constructive employee from the date of termination to the date of the de facto termination hearing . . ..”

*The after-acquired evidence rule is discussed in detail in Kathleen Frederick’s materials presented at the December 5, 2006, Employment Law Section meeting.