*1 she moves Britt, and the several William Rocky DUNCAN, Appellant, Dale unquestionably made—are husband her v. the determination of detriment relevant But, together, even taken child. FAIRBANKS, Appellee. OF CITY showing which far short they fall No. v. Pannick. under Turner made be must Supreme Court Alaska. contested between custody Where Aug. non-parent, enough it parent support the may conclu- evidence this that provide a non-parent would that
sion for the child. environment And
better Horutz, 560 P.2d in Horutz v.
recently (Alaska 1977), reaf- 15 & 16 & nn. case any custody that in the rule
firmed habits, or lifestyle, charac-
evidence custody only claimant is relevant of a
ter it be shown to affect that extent relationship to the child. person’s court the facts the trial
Arrayed against opinions witnesses on were
relied William, mother, and his testified. they were asked if felt that
sister-in-law adequate parent, and all
Gale they did. There responded
them gave any the trial court
indication opinions. believe that
weight to these We do so was error. All these
the failure came from witnesses related
opinions Gale, and party, not to all were
adverse observation of Gale’s on first-hand
based daughter. her
interaction
Therefore, ap- judgment we reverse from, remand this matter to the
pealed hearing court for a new
superior according to the standards set
conducted opinion. in Turner and
forth REMANDED. AND
REVERSED *2 January
On the City hired Dun- fighter can as a fire a federally-fund- Employment Program (PEP). ed Public On 1, 1973, after fifteen months under the program, PEP regular Duncan became a City employee, paid from City funds. His not change. duties did On November chief told Duncan he was being dismissed once and that there was hearing or appeal procedure available Peter J. Aschen- Richard D. Saveli and brenner, Saveli, Fair- Aschenbrenner & him.1
banks, appellant. The Fairbanks Ordinances di- Jr., Deputy City Atty., Doogan, P. James vides the work force into a classified Call, Acting City Atty., J. Fair- and Steven service and an A exempt griev- service.2 banks, appellee. procedure ance-appeal provided per- sonnel in classified but not exempt BOOCHEVER, Justice, RA- Before Chief The exempt service.3 service includes BINOWITZ, BURKE, Jus- CONNOR “temporary full-time employees.”4 When tices, DIMOND, Justice Pro Tern. Duncan was hired under the PEP program, designated he was aas temporary employ- OPINION ee, worked Therefore, who full time. he DIMOND, Pro Tern. Justice was in the exempt service. Duncan, Rocky Dale was a of Fair- When Duncan was removed from the fireman, summarily who was banks dis- program, continued as a fire- job. action, charged from his In this was promoted man and to “permanent sta- his dismissal violated the Fairbanks claims municipal tus.” Since code includes in and the due process of Ordinances exempt service “temporary full-time federal and state of the constitu- provisions employees,” by implication, a court full-time The trial held tions. Duncan “permanent” granted summary judgment employee, such favor of as Duncan had appealed. City. become, Duncan would be in the classified service. specific tracts, part-time employees, chief did not state temporary 1. The fire reasons full- However, at for Duncan’s dismissal. employees personnel ap- time complaint request, he letters of was shown pointed compensation. to serve without The department per- had received about his fire formance, city specifi- classified service which are not complain- but with the names of the cally placed exempt by in the service complaints appear of the ants deleted. All article, specifically designated Unless [sic] through city interdepartmental come otherwise, policies personnel and rules shall driving Three accused Duncan of channels. an only apply employees of the classified ser- manner, in a reckless and the ambulance fourth vice. long. that his hair was too stated Sec. 2.504 amended 1973. The amend- complaints until he not aware charged. was dis- identity ment deleted a list certain administrative of the senders of the record, complaints is disclosed in the officers and is not nowhere relevant this case. letters that but three of the indicate the com- pro- 3. Fairbanks Code of Ordinances plainants complaints, had told of their vides: improved. that his conduct had not but regular Any employee suspended, who is de- pro- 2. Fairbanks Code moted, may appeal or dismissed to the com- vides: employee appeals on mission ethics positions city All offices and shall be days thirty (30) after such action within hereby allocated to either the and are classi- personnel regulations taken. rules and exempt fied or the service. appeal procedure. establish shall exempt shall include all elected service 2.504, supra 4. Fairbanks Code of Ordinances § officials and members of citizen boards and commissions, employees covered con- note 2. proceedings superior court. of the Code It However, part another ap- promotional attorney that the original represented is true “all vides pe- be for a shall stated below mana- pointments” “[t]he Therefore, though Duncan had even general authority riod.5 under the to adminis- ger, temporary for fifteen served . ter the . . has *3 the PEP employee under full-time probationary that the period determined for status on promoted was and police and depart- of the fire employees nevertheless, was, required 1, 1973, he . . year. is one ments proba- as a time an additional for serve This statement does not resolve the ambi- During probation- tionary employee. we with are guity which concerned. First being subject was period, ary all, merely portion of the statement was a right of any time without “at dismissed made argument counsel for of an hearing any in manner.”6 or appeal during the course of City proceedings in the 2.512 of probation, of period § to the Secondly, superior court. even if the the part that: in provides the manager adopted policy, had such a it all regulations provide shall rules and The had authority is at all clear that he the not promotional appointments original and 2.512of the Code and Rule VI construe § of six probationary period a be for shall impose of Personnel Rules so as to a the (12) than twelve nor more months (6) twelve probationary period of months on months. firemen and policemen pe- and some lesser as to provides, Rule VI City’s Personnel The probation employees.8 on other of riod probation: city manager’s policy the may Whatever period probationary The (2) Duration. been, future, will be the the or in fact (6) more months nor than be six shall language probation- that the remains “[t]he (12) months.7 twelve (6) shall be six months nor more ary period ambiguous. is foregoing language (12) ambiguous; months” is it twelve than be employee City may Although an or prospective existing city a not tell does language reading the from to ascertain able any degree certainty with of for employee the that he must serve and rule the Code of and period beyond the six months less what of six period probationary minimum a probationary his status twelve months than his months, all clear whether is not at it exist. will time, or ends at that probationary peri- some indefinite it extends whether legislative of enact As in the case twelve months. six and between od adopted by the ments, municipal ordinances the which are City branch” of “legislative proba- that Duncan’s contends be will construed so as favor ambiguous this year was one because period tionary This rule of rights.9 construction individual employees for all policy of the the that, interpreting rule in to the is similar sup- In departments. police the in contracts, ambiguities are to fact, be construed of purported of statement this port supplies and drafts a party the transcript the portion of City refers the discharged charges filed § of Ordinances Fairbanks 5. provided rules. this article in vides: provide shall The rules Id. 6. appointments promotional shall original and (6) period probationary of six a of 2.523. be for Fairbanks Code 7. (12) months. than twelve more months nor employee period probationary an During this been Had evidence introduced any right establishing without may passed time at a resolution dismissed be had Council period, hearing probationary be in a appeal in manner. the case would or of during posture. dismissed different position to which he has been period from Sands, Statutory position 2A Sutherland Con promoted reinstated to 1973). (4th promoted ed. been unless struction had from which quality contract.10 The principle supporting employee’s form of performance. rule, example as for contracts of performance this duties during insurance, bargaining power is that the six-month from toMay 1 Novem- parties unequal in that the insured ber when considered with the fact performed policy a form that he had with same duties presented fifteen provisions.11 prior to its months to May choice clearly regular and substantial presented with a We are similar sit enough intelligent to afford an evaluation here. The uation Duncan were of Duncan’s abilities as a fireman.13 Under equal bargaining power positions presented circumstances case, provisions respect of enacted language construe the “[t]he regulations adopt ordinances and rules and (6) be six shall more nor than authority ed ordinances. (12) months” to mean that Duncan's *4 placed City pay on the When probationary period was for the minimum after fifteen months under roll the six-month of Considering time. the “bargaining he had no program, power” at purpose the probationary behind period, it respect personnel gov with rule all would make little to sense construe the length erning the of occupy time would language of Rule to impose VI on Duncan probationary status. He either had to ac months, provision the rule’s and cept remain a by when the time the six-month had reject it job. fireman or and lose his expired 1973, in November Duncan had had unequal bargaining In such a situation of a total of 21 of experi- continuous considering power, long and how City fighter. ence as a job the been on as a fire fighter, had support position In of its that Duncan ambiguous provisions the must construe of was a employee for one year Rule VI the the 1, 1973, months, after rather than six affording right in favor of Duncan the to City points the to Duncan's “payroll appeal his dismissal. He is entitled to the change” form. On the form the following non-proba- remedies which afforded to language had been inserted: “Remove from tionary employees in the classified service. PEP Program promote to VI, stated in Rule the probationary Probationary year.” status. one (Empha- employment integral part of is “an added). sis process.” the examination Its of stated ob- language italicized in the payroll is: ject change form does change not the result we closely work, observe the employee’s to to It merely represents reached. adjustment the most effective of secure employee’s interpretation of the rule re- promoted employee or position, new garding probationary status. We have in- reject any employee per- whose terpreted the rule otherwise. We have con- not required formance does meet work cluded that probationary period standards.12 (from was for six months May 1 Novem- of purpose probation 1973). 1, to allow the ber When he was summarily dis- adequate opportunity 8, the observe missed on November he was enti- State, (Alas relationship employer-employee 10. Wessells v. 562 P.2d shown 1050 —as Similarly, 1977). govern where the equal- ka local judicial designed to of statutes treatment agency language ment the selected the power. bargaining See Sands’ Sutherland ize dispute, any or contract clause guity party. doubt ambi 1973). (4th Statutory ed. Construction private will be resolved in favor of the Antieu, Municipal Corporation 1A C. 2.523, Fairbanks Code of Ordinances § Per- (1974). Law 1056 at 801 Regulations, VI(1). sonnel Rules and Rule Co., Guaranty Hahn v. Alaska Title 557 P.2d Redman, 491 P.2d v. State (Alaska 1976). 13. have in- 144-45 Courts 1971). (Alaska creasingly recognized inequalities of Duncan does not claim that he was sin- grievance of the benefits tied to subjected in the Fair- arbitrarily set out procedures gled out appeal and the rules and bationary period apply- different from that banks under the ordinances adopted In other firemen. ing to circumstances non-proba- extent not permitted the same to take should advan- service. classified tionary ambiguity tage of ordinance. in favor of judgment summary given, I would For the reasons affirm reversed, and the case Fairbanks judgment below. proceedings further is remanded expressed in the views inconsistent opinion. AND REMANDED.
REVERSED Justice,
CONNOR, dissenting. dissent. respectfully
I could not that Duncan my opinion It BAILEY, Appellant, A. Christine through his em- of tenure any kind obtain v. That program. the PEP ployment only temporary funding provides BAILEY, Appellee. Daniel D. unemploy- When employees. public *5 No. 3047. declines, funding PEP is to be rate ment made to find to be and efforts Supreme Court of Alaska. removed employed those jobs for Aug. seq., 4871 et 42 U.S.C. Sec. program. temporary work- 4480(a)(2). and Sec. could
er under employment his expect that rightfully fulfilling any part of be counted would if and when probationary
his We permanent appointment.
gained rights Dun- consider, therefore, what
must city ordinances. assert under can
can interpret colleagues, I Sec. my
Unlike meaning the Code probation- employee’s fix
officials period between six
ary months. placed on
When payroll his classified status in the he would sub- stated that
change form year. of one
ject on terms plainly put notice He so, it is unrea- This appointment. ambiguity of Sec. to resort sonable sta- enhance of the Code as to appointment indefinite hisWere
tus. would term I view otherwise, hold that and would
matter advantage ambiguity take
can only six months. status after protected
gain us. is not the case before
But