concurring.
I agree with the court's resolution of the summary judgment issues presented in this appeal. I write separately only to express my view that if Boyko and the School District actually entered into a resignation agreement as Boyko alleged, that agreement itself is a waiver of the School District's statutory immunity under AS 09.65.160. In the absence of an express reservation of its statutory immunity rights as a part of a resignation agreement, an employer cannot enter into an agreement limiting what the employer can say about the resigning employee and then rely on the statute to immunize itself from damages arising from its breach of the agreement:
A waiver can be accomplished either expressly or implicitly. An implied waiver arises where the course of conduct pursued evidences an intention to waive a right, or is inconsistent with any other intention than a waiver, or where neglect to insist wpon the right results in prejudice to another party.[1]
To the extent the court suggests otherwise, by stating there is a genuine issue of material fact on whether the resignation agreement, if it exists, "included an implicit waiver of statutory immunity," (emphasis added) I disagree.
. Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (emphasis added).