Duncan v. City of Fairbanks

CONNOR, Justice,

dissenting.

I respectfully dissent.

It is my opinion that Duncan could not obtain any kind of tenure through his employment under the PEP program. That program provides only temporary funding for public employees. When the unemployment rate declines, PEP funding is to be removed and efforts are to be made to find other jobs for those employed under the program. See 42 U.S.C. Sec. 4871 et seq., and Sec. 4480(a)(2). As a temporary worker under the PEP program Duncan could not rightfully expect that his employment would be counted as fulfilling any part of his probationary period if and when he gained a permanent appointment. We must consider, therefore, what rights Duncan can assert under the city ordinances.

Unlike my colleagues, I interpret Sec. 2.512 of the Code as meaning that city officials may fix an employee’s probationary period at any period between six and twelve months.

When Duncan was placed on permanent status in the classified status his payroll change form stated that he would be subject to a probationary period of one year. He was plainly put on notice of the terms of his appointment. This being so, it is unreasonable to resort to the ambiguity of Sec. 2.512 of the Code to enhance Duncan’s status. Were his appointment indefinite as to the probationary term I would view the matter otherwise, and would hold that he can take advantage of the ambiguity to gain protected status after only six months. But that is not the case before us.

Duncan does not claim that he was singled out arbitrarily and subjected to a probationary period different from that applying to other firemen. In the circumstances he should not be permitted to take advantage of the ambiguity in the city ordinance.

For the reasons given, I would affirm the judgment below.