dissenting.
There are two ways to interpret what the Board of Education did at the second hearing held in this matter. It is possible to read its decision as one based on the rationale that acts which violate AS 42.20.030(7) are acts constituting a crime involving moral turpitude, on the theory that AS 42.20.-030(7) defines a crime involving moral turpitude. Or that the Board’s decision reflects its view that the facts it had before it amounted to a theft, and that thefts involve moral turpitude. Under either mode of analysis the Board erred.
First, in my view, AS 42.20.030(7) does not define a crime involving moral turpitude. AS 42.20.030(7) is a general intent criminal statute. The statute simply cannot be read as a theft statute. An accused could be ■ convicted under this statute by virtue of merely tapping into an electrical line without ever using any electricity. Second, if the Board thought the facts added up to a theft it was mistaken because it did not correctly establish what the controlling facts were. In effect, the Board improperly employed collateral estoppel to determine the facts.
In Chisholm v. Defense Logistics Agency, 656 F.2d 42-50 (3rd Cir.1981), the court held that an agency cannot use collateral estoppel for the purpose of establishing the controlling facts without knowing what evidence was before the jury as well as comprehending the different ways in which the jury could have found the defendant guilty. In this regard the Chisholm court said in part:
The doctrine of collateral estoppel can only preclude relitigation of those issues actually litigated and decided in an earlier proceeding. A determination of which issues were litigated may not be immediately discernible when the antecedent criminal suit resulted in a general verdict of the jury or judgment of the court without special findings. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951). Accordingly, the Supreme Court has held that when a prior criminal judgment is sought to be used as an estoppel, the court must examine the record of the criminal proceeding, including the pleadings, evidence, jury instructions and other relevant matters in order to determine specifically what issues were decided. Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (collateral estoppel use of general verdict); Emich Motors Corp. v. General Motors Corp., 340 U.S. at 569, 71 S.Ct. at 414 (collateral estoppel use of verdict of guilty). (Footnotes omitted.) Id. at 47-48.
*1042Here all the Board had before it was the complaint against Brown, the trial court’s instructions to the jury, and the trial court’s commitment ordering Brown to jail. Thus, I disagree with the majority’s conclusion that the available evidence pertaining to Brown’s criminal conviction supports the inference that Brown committed a theft and therefore his dismissal was valid even if he was not convicted under a theft statute (a crime involving moral turpitude).
In accordance with Chisholm I would remand the matter to the Board to afford it the opportunity to correctly apply the doctrine of collateral estoppel.1
. In this regard the court in Chisholm remanded under the following guidelines:
Since it is clear that the Board’s reversal of the presiding official’s determination was based solely on the application of collateral estoppel, we believe it appropriate to remand this case to the Board so that it can ascertain whether the precise issue on which it seems to estop petitioner was in fact litigated and necessarily decided adversely to him. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, [sic] (3d Cir.1974); United States v. Friedland, 391 F.2d 378, 382 (2d Cir.1968), cert. denied, 404 U.S. 914, 92 S.Ct. 239, 30 L.Ed.2d 188 (1971). The Agency, as the party seeking to effectuate an estoppel, has the burden of demonstrating the propriety of its application. Id. It may meet the burden of establishing which issues were litigated by introduction of the record of the criminal proceeding, including the transcript, or magistrate’s opinion, if any. If that is not feasible, the Agency should be permitted to bring in extrinsic evidence so that a sufficient and adequate record of the proceeding may be developed. Basista v. Weir, 340 F.2d at 82. This could include, for example, testimony about the earlier case by the magistrate, the court reporter, or witnesses. See Popp v. Eberlein, 409 F.2d 309, 310 (7th Cir.) cert. denied, 396 U.S. 909, 90 S.Ct. 222, 24 L.Ed.2d 185 (1969); F. James & G. Hazard, Civil Procedure § 11.17, at 567 (2d ed. 1977). Thus, we conclude that while the Board is entitled to rely on the doctrine of collateral estoppel, its use of that doctrine must follow procedures similar to those established for its use in judicial proceedings.
656 F.2d at 50.