dissenting,
with whom RABINOWITZ, Justice, joins as to Parts I and II.This dispute arises out of a complex series of events, including (1) negotiation of an employment contract between Henry Kilmer and the Dillingham City School District (District), acting through its Board of Education (Board); (2) negotiation of an addendum to that contract regarding the manner of compensating Kilmer for indisputably accrued leave; (3) meetings between Kilmer and the Board resulting in the expansion of Kilmer’s duties to encompass the principalship of the Dillingham middle/high school and the negotiation of a second addendum to Kilmer’s contract in connection with that undertaking; (4) payments to Kilmer pursuant to those addenda; (5) investigations by the District into the propriety of those payments, none of which determined that any impropriety had occurred; and finally, (6) numerous charges against Kilmer, purportedly substantiating good cause for the termination of his contract. In my view the court does not correctly analyze the factual and legal issues Kilmer raises. The result it reaches is not supportable. Therefore, I dissent.
The fundamental error in the court’s analysis stems in part from its threshold conclusion that Kilmer waived whatever right he may have had to a jury, effectively holding harmless the superior court’s denial of Kil-mer’s constitutional right to a trial by jury.1 Op. at 762. The record does not support that conclusion. This erroneous conclusion leads the court to review and then sustain factual findings on issues which should have been committed to resolution by a jury, not resolution by a superior court judge. Even if Kilmer did waive his right to trial by a jury, my review of the record leads me to conclude the superior court’s decision is not supportable.
I. ADMINISTRATIVE APPEAL
By concluding that Kilmer waived any right he had to trial by a jury, this court avoids addressing whether the proceeding in superior court was an administrative appeal or a de novo direct action in which Kilmer was entitled to trial by a jury. Since I have concluded that this court’s waiver analysis is not supportable, it is necessary to address what type of proceeding was held in superior court.
I conclude that the superior court erred when it denied Kilmer the right to initiate a direct action against the District, limiting him instead to an administrative appeal.2 This court notes that Kilmer waived by contract statutory procedures to administratively grieve [the Board’s] decision.3 Op. at 759. *769It also notes that Kilmer was not contractually bound to any administrative grievance procedure. It further notes that Kilmer was afforded the “right to address the Board concerning ... possible termination of [his] contract.” Op. at 759.
The District understood that Kilmer’s right to a pretermination hearing was of constitutional dimension, as evidenced by the District’s attorney’s statement to Kilmer that he “ha[d] a constitutional due process right to notice and a hearing ... regarding [his] termination.”4 The court does not dispute that Kilmer had no statutory right and no school district grievance right to either. His only contractual right was the right to “address the Board concerning ... possible termination of [his] contract.” Op. at 759 (emphasis added). The ad hoc hearing which Kilmer was offered was for the purpose of permitting him to “present any defenses [he] may have regarding [his] termination.”5 Kilmer’s contractual right to an audience before the Board, and his constitutional right to notice and a hearing, are not the same.
While an employee may lose the right to trial by a jury in a suit for wrongful termination of his or her employment contract by failing to use a contractual grievance procedure, as long as that procedure is not futile and it affords procedural protections, we specifically limited that holding to such a situation. Diedrich v. City of Ketchikan, 805 P.2d 862, 367 (Alaska 1991) (“When an employee enters into a contract that contains grievance procedures, it is not a denial of the right to a jury trial to require the employee to follow those procedures.”). The Board did not offer Kilmer a hearing to satisfy any contractual or statutory entitlement; he had none. The hearing he was offered was an ad hoc remedy compelled by his constitutional due process rights.
Kilmer’s situation is unlike that of a terminated teacher, who has no right to a trial by jury or to sue for wrongful termination. Fairbanks N. Star Borough Sch. Dist. v. Duncan, 878 P.2d 641 (Alaska 1994) (“No right to trial by jury attaches to an action for a statutory remedy unless the statute so provides or the statutory remedy is a codification of a common law remedy.”). Kilmer’s contract barred all the administrative remedies available by statute to teachers.
The case which presents a situation most analogous to Kilmer’s is Casey v. City of Fairbanks, 670 P.2d 1138 (Alaska 1983). The terms of Casey’s employment with the City of Fairbanks (City) were set forth in a collective bargaining agreement between the City and Casey’s union. The agreement provided a five-step grievance procedure for resolving employee grievances. Casey was fired and attempted to avail himself of the grievance procedure. However, the union declined to pursue the grievance. The agreement contained no provision that ensured enforcement of the grievance procedure. Casey filed suit in superior court for wrongful discharge. The City moved to dismiss Casey’s suit, claiming inter alia that Casey had faded to exhaust his contractual remedy.
In Casey we acknowledged that “an employee must first exhaust his contractual or administrative remedies, or show that he was *770excused from doing so, before he may pursue a direct action against his employer.” Id. at 1136 (citations omitted; emphasis added). We concluded that Casey was excused from pursuing his contractual remedy, as a matter of law, because it would have been futile. He was permitted to maintain a direct action against the City.
We had no occasion to determine whether Casey had a right to a trial by jury; the issue was not before us. However, we did determine that Casey was permitted to bring a direct action against his public employer, because he had no other effective remedy. Kilmer’s position is little different. Although the Board gave Kilmer due process notice of its charges against him, and offered to give him a due process hearing before it to permit him to present any defenses he had to the charges it had brought, the fact remains that Kilmer had no statutory or contractual rights that he could enforce. There were no procedures established for adjudicating the charges, and there was no effective way for Kilmer to contest the District’s action except by a direct action. Wrongful termination (breach of contract) is a remedy known at common law. Neither contract nor statute proscribed Kilmer’s right to bring a direct action against his employer for breach of contract. Neither contract nor statute limited Kilmer’s remedy to an administrative proceeding and an administrative appeal. The fact is that Kilmer’s employer fired him for reasons it specified in a letter of termination. The employer made no administrative determination regarding its reasons, nor did it ever act in an adjudicative capacity. There has never been any administrative determination regarding the proffered reasons. Kil-mer had the right to have this determination made by a jury.
II. WAIVER
This court concludes that Kilmer waived any right to trial by a jury. Op. at 762. Because of the waiver, the court is able to avoid addressing whether Kilmer and others similarly situated nonetheless have a right to trial by a jury.
The court bases its conclusion that Kilmer waived his right to a jury trial on three documents. Op. at 762-63. However, the court fails to provide any context within which these documents originated. A review of the context is necessary to understand why the conclusion that Kilmer waived his right to a jury trial is not supportable.
Kilmer’s original complaint contained both contract and tort claims,6 and was accompanied by a Demand for Jury Trial, which “request[ed] and demand[ed] a trial by jury on all issues triable of right by jury.” The District’s first affirmative defense was that Kilmer had failed timely to administratively appeal his termination as required by AS 44.62.330-630 and Appellate Rule 602.
Kilmer moved for partial summary judgment on the District’s first affirmative defense, arguing that his action was not an administrative appeal. Almost contemporaneously the District moved for summary judgment, seeking dismissal of Kilmer’s claims for “wrongful termination” on the ground that “those” claims constituted an administrative appeal. Each opposed the other’s motion, and replied to oppositions, essentially spilling a lot of ink on the same issue. However, Kilmer raised as one of his concerns the issue of his entitlement to a jury trial.'
In ruling on these motions the superior court granted each in part and denied each in part. It concluded that Kilmer should have filed an administrative appeal and that he had not done so timely, but that his failure was excused. The court “converted” the ease to an administrative appeal, and ordered Kilmer and the District to comply with Appellate Rule 602. Two weeks after the court entered its order, it entered a pre-trial order which declared that the ease was “Non-Jury.”
Kilmer complied with the superior court’s order, filing a Notice of Appeal which stated that he was appealing “from the agency deei*771sion, a letter to Kilmer from Dillingham City School District called a ‘Bill of Particulars.’ ” This notice set forth not only Kilmer’s contract claims, which had been the only subject of the motions, but also his tort claims. It also incorporated by reference his original complaint, which had asserted both, and attached the original complaint as an appendix. The Notice of Appeal was accompanied by a Request for Jury Trial. The District promptly objected to Kilmer’s request, asserting that “[t]his matter has already been designated an administrative appeal to be heard by Judge Joan Katz.” On October 14, 1992, the court denied Kilmer’s request for jury trial, without waiting for or requesting any response from Kilmer. The next day the District’s attorney filed a “Notice” advising the court that despite the court’s order sustaining its objection to Kilmer’s request for a jury trial, the objection was being withdrawn.7 The purported withdrawal bears a handwritten and initialed notation: “Moot upon review by the CT 10-21-92.”
At this point, Kilmer’s only claims that had been put in issue by pleadings and supported by memoranda were his contract claims. His tort claims had not been the subject of motions, and there was no reason for him to believe that they were not viable. When the superior court “converted” the case to an administrative appeal, it did not differentiate between the contract and tort claims, or dismiss either. There would be no reason for Kilmer to believe that he had been deprived of a jury trial on the tort claims, except for the noted pre-trial order which stated that the case was “Non-Jury.” The order itself did not differentiate between the contract claims, erroneously declaring them to be the subject of an administrative appeal, and the tort claims, which were not. Kilmer’s reassertion of his demand for a jury trial must be viewed in light of that order. There would be no right to a jury trial on an administrative appeal of the contract claims, though there would on the tort claims. By reasserting his demand for a jury trial, Kilmer would be assured that he had not waived his right to a jury trial on the tort claims.
The District objected to Kilmer’s demand for a jury trial, an objection which the superior court sustained. The court again did not differentiate between contract and tort claims. When the District attempted to withdraw its already sustained objection, it did not differentiate either. The uncontro-verted evidence in the record is that the purported withdrawal was “moot,” evidenced by the court’s notation on the purported withdrawal. There is nothing in the record to suggest that Kilmer would or should have assumed that by virtue of the attempted withdrawal, he was being given the opportunity to have his contract claims decided by a jury. The focus of the issues to that point had been on contract claims in the context of an administrative appeal.
On December 17, 1992, Kilmer filed a notice of hearing on pending motions, scheduling the hearing for January 21. On January 19 the court mailed the notice of hearing to the attorneys. The notice contained a handwritten notation from the trial judge that “[i]n addition, the court will inquire as to the parties’ intentions to present all issues to a jury despite the lack of authority to do so on an administrative appeal .... ” (emphasis in original). On January 21, Kilmer’s counsel, with the District’s consent, wrote the trial judge regarding matters “which may assist with preparation for oral argument today,” one of which was “1. The parties are in agreement that all Kilmer’s claims may be tried before the court in a judge-tried case.” The record does not disclose whether either attorney had received the court’s notice prior to transmittal of this letter.
It is these last two documents which, together with the District’s attempted withdrawal of its objection to the Request for Jury Trial, comprise the three documents the court concludes establish an express waiver of the right to a jury trial. Again, context is important. The superior court had denied Kilmer’s request for jury trial, at least as far *772as the contract claims were concerned, on the basis of the District’s objection. The District’s purported withdrawal of that objection was noted by the court to be moot. The court was faced with a proceeding which was in part an administrative appeal of contract claims, in part a conventional civil suit asserting tort claims distinct from the administrative appeal. The court wanted to “inquire as to the parties’ intentions to present all issues to a jury, despite the lack of authority to do so on an administrative appeal.” The court did not ask for further argument on its prior decision sustaining the District’s objection to Khmer’s request.
Assuming Kilmer’s letter to the trial judge was in response to this question, it was answered by the statement that “all Kilmer’s claims may be tried before the court in a judge-tried ease.” Kilmer’s agreement can be viewed as no more than his concession that since the contract claims were to be tried to the court, the tort claims might as well be also, just as easily as it can be viewed as a waiver of his right to a jury trial. Kilmer agreed that “all” claims could be tried to the court, not just the contract claims which the court had already ordered must be tried to the court.
This court narrows its focus to two of the documents:
Were it not for Dillingham’s filing of a withdrawal of its opposition and the trial court’s subsequent order, which emphasized that the parties should be prepared at the pre-trial hearing to address the propriety of a jury trial on all of their claims, Kilmer’s counsel’s letter could be construed as ambiguous.
Op. at 762 (emphasis in original). The court’s error is two-fold. First, the superior court already had sustained the District’s objection to the jury request when the District filed its attempted withdrawal of the objection. The superior court noted that the notice of withdrawal was “[mjoot upon review by CT 10-21-92,” which may be why the District does not attach any significance to this document.8 Second, the superior court did not ask the parties to “address the propriety of a jury trial” at the hearing. It stated that it was going to “inquire as to the parties’ intentions to present all issues to a jury despite the lack of authority to do so in an administrative appeal.... ” The superior court had already held once, arguably even twice, that Kilmer did not have any right to a jury trial on the contract claims. The only way this court can justify its conclusion is to hold that the announced inquiry noted on the notice of. hearing was (1) a ruling by the superior court that it was vacating its prior ruling that Kilmer did not have the right to a trial by jury on the administrative appeal, and (2) an acknowledgment by the superior court that Kilmer did possess such a right. Only then could this court suggest that Kil-mer had waived his right to a jury trial by agreeing that all claims could be tried to the court.
Had the superior court made the correct ruling to begin with, Kilmer would have been before a jury on both his contract claims and his tort claims. Since no issue had ever been made of Kilmer’s right to present his tort claims to a jury, there is no reason to suggest, much less conclude, that by waiving his right to present his tort claims to a jury, Kilmer was conceding, and thus waiving, his right to present his contract claims to a jury, or later claim that the superior court erred in denying him that right. The superior court had ruled that he had no such right because those claims had to be brought as an administrative appeal. He should not be held to have intentionally waived a right the court already ruled he did not have.
*773III. THE BILL OF PARTICULARS
The factual allegations contained in each separate reason identified by the District in its termination letter to Kilmer, later denominated Counts in a Bill of Particulars, were required to be proven by the District by a preponderance of the evidence, according to the superior court.9 This court notes that the factual findings relating to the Counts in that document should be reviewed under the “clearly erroneous” standard. Op. at 763-64. The resulting legal justifications, or conclusions, should be reviewed de novo. Op. at 764.
The Bill of Particulars set forth ten10 specific Counts containing allegations of misconduct, and informed Kilmer that based on these allegations he was
being dismissed ... because the [ ]Board has lost confidence in your ability to perform the customary administrative duties of the superintendent’s position in a satisfactory manner. In addition, you have substantially not complied with the policy. manual of the district.
In other words, the District’s action was justified because (1) the Board lost confidence in Kilmer’s competence as defined by AS 14.20.170(a), and (2) Kilmer had exhibited good cause for discharge as expressed in AS 14.20.170(c) (“substantial noneompliance” with laws or rules regarding education).
Although this court does not directly address the point, it and the superior court collectively have held that most of the factual allegations in the Bill of Particulars were either false or insufficient to support a good cause termination. To the extent that the superior court acknowledged Count 1 of the Bill, it deemed Kilmer’s actions a “less serious” error which did not justify termination.11 It found that Count 2 was false. It found that Counts 4 and 5 were essentially pretextual reasons for terminating the contract, since they contradicted the Board members’ unanimous testimony that they had no complaints with Kilmer’s administration of the District’s educational programs. The superior court also rejected Count 6 as a ground for termination of the contract. Finally, this court effectively negates half of Counts 8 and 9, noting that there is no evidence that Kilmer had a duty to obtain review of the addenda to his contract.12 Op. at-. To this list of rejected charges I would add Count 3, which the record shows to be false.13 In sum, Counts 1 through 6 and half of Counts 8 and 9 of the Bill of Particulars have been or should be set aside either as factually unsupported by the record or legally insufficient to constitute good cause for terminating Kilmer’s contract.
What Counts remain to support the Board’s decision and the superior court’s examination of that decision? The factual allegations contained in Count 7, and parts of Counts 8 and 9, contain the following charges: (1) Kilmer misrepresented the ‘amount of compensation to be received by *774him for performing the principal’s duties; (2) Addendum One, drafted by Kilmer, did not reflect the intentions of the Board; and (3) Addendum Two, also drafted by Kilmer, did not reflect the intentions of the Board.
Additionally, one of the Bill of Particulars’ two legal justifications for dismissing Kilmer was implicitly rejected by the superior court. The District claimed that Kilmer was subject to discharge for “substantially not complying] with the policy manual of the district.” The superior court found, however, that neither of the items in the Bill alleging policy manual violations constituted grounds for discharge. It also found that “Kilmer did not violate Department of Education regulations as alleged in Bill of Particular No. 2.” Like the District’s own attorney, the superior court found no violations of the policy manual, and the Board did not appeal these findings. Thus despite this court’s implication to the contrary, there are no grounds to explain Kilmer’s discharge in terms of violation of the District’s policy manual.
The Bill of Particulars is reduced to the assertions found in three Counts, which purportedly support the legal justification for Kilmer’s termination:
[As a result of the described] conduct, the School Board ... lost confidence in [Kil-mer’s] ability to adequately carry out the responsibilities of the superintendent ... making [him] unable to adequately perform the functions of the superintendent’s position.
Assuming that the standard of review should be that applied to a bench trial, the superior court’s findings with reference to these remaining assertions should be scrutinized to see if they are clearly erroneous, and if not, whether indeed they provide grounds for Kilmer’s good cause discharge.
This court does not follow this method of analysis, however. It reviews the superior court findings, see Opinion, Part III.C.l.a.-f., only half of two of which directly address assertions set forth in the remaining Counts of the Bill of Particulars,14 and treats them as if they constitute independent justification for the Board’s decision to terminate Kil-mer’s contract. They are relevant only to our determination whether the assertions contained in the remaining Counts are based on findings that are not clearly erroneous, and if so, whether they constitute good cause for termination. This court incorrectly treats them as if they have independent significance, and by themselves supply legal justification for Kilmer’s termination.
In my view, there is insufficient evidence to support the assertions contained in the remaining Counts. In part the facts that arguably support them are clearly erroneous. Count 7 alleges that Kilmer “misrepresented the amount of compensation being received by [him] for agreeing to perform the principal’s duties.” The factual finding set forth at Opinion IILC.l.d. arguably addresses this allegation. However, it does not contain any finding that Kilmer “misrepresented” the amount. When addressing the Board regarding this matter, “[h]e led the Board to understand” that his pay, i.e. the cost of TRS buy-in, would be $30,000, or “if his testimony is [to be] believed, $30,000 to $40,000....” It is clear that the figure was an estimate. It was only after the District’s own Business Manager referred to an outdated TRS report that the actual amount was determined. Although the superior court found that Kilmer “led the Board to understand” what the amount would be, it did not find that Kilmer himself knew that the amount was greater than the estimate, or that he should have known that the amount was greater. The superior court faults Kilmer for “fail[ing] to return to the Board and advise [it] that the amount actually [was higher].” That is not the assertion contained in Count 7.
The viable halves of Counts 8 and 9 allege that “[t]he contract addendum you drafted [Addendum Two and Addendum One respectively] ... did not reflect the intention of the School Board.” These are addressed in a conclusory statement set forth at Opinion III *775C.l.f.: “[Kilmer) drafted [contract] addenda that did not reflect the Board’s intentions (based on his own representations) regarding these compensation matters.” Facially this statement hits its mark. However, standing alone neither of these assertions should be deemed sufficient to provide legal justification for termination of Kilmer’s contract. First, this statement only reiterates the assertions contained in the first sentences of Counts 8 and 9; it does not provide any subsidiary findings on how the addenda did not reflect the intentions of the Board. Second, the evidence before the superior court from the accounting firm retained by the Board was that the language of Addendum Two was authorized by the motion which the Board approved, and that payments to Kil-mer were consistent with a reasonable interpretation of Addendum Two. This court notes that “[t]he accountants, however, were not asked to determine if the language of Addendum Two reflected the Board’s intent,” Op. at 760, suggesting that Kilmer thwarted the Board’s intent through his draftsmanship. Yet it was the motion that supplied authority for Addendum Two. The parties have not argued that the motion did not convey the Board’s intent, or that Kilmer sat silently by, permitting the Board to compensate him in a manner he knew was not contemplated.
In regard to Addendum One, three cash reimbursements for unused leave days were made in 1988, the last on June 23. These totaled $19,200. There was no issue regarding these cash reimbursements until June 6, 1989, almost one year later, when Kilmer cashed in an additional $5,100. Only then, after the compensation dispute had erupted, did these cash reimbursements become an issue. As stated, no factual findings indicated that this addendum did not reflect the Board’s intentions, as embodied in the motion which the Board adopted.
IV. THE RECORD DOES NOT SUPPORT TERMINATION.
The superior court observed:
[T]he Board’s conduct does not negate the fact that Kilmer’s wrongful actions gave rise to the entire series of events. Irrespective of its own lapses, the Board was justified in losing trust in Kilmer. Board members could reasonably question whether Kilmer was presenting them with all the facts necessary for their decision-making and whether he was implementing their decisions according to their intentions. A more sophisticated group of people may (or may not) have been able to distinguish Kilmer’s actions in connection with the narrow area of his compensation from his otherwise competent performance. But human nature does not necessarily allow for such “rational” categorization.
This court tacitly accepts the superior court’s account of this case, which I believe reasonably can be read to say that an insufficiently sophisticated group of people, the Board, had the wool pulled over its eyes by its professional chief administrator. Then, when the Board members realized that they had been duped, they justifiably terminated the man who had violated their trust. This characterization of the events and participants is not borne out by the record.
First, as the superior court noted, “it is ultimately the Board’s responsibility to set the compensation for its superintendent.”15 Second, there is no dispute that Kilmer’s contract addenda were approved on more than one occasion by the Board, and that Kilmer did not act contrary to the language contained in the addenda. Third, Board members disagree on whether it was one of *776them or Kilmer who first suggested the possibility that he assume the duties as principal. Fourth, Board members do not agree whether Kilmer’s additional salary was a fixed sum, a sum equal to about one half of the salary paid to the previous principal ($60,000), or a sum in the range of $30,000 to $40,000, which were figures Kilmer mentioned. Fifth, Kilmer did not know what his retirement figure was, but had to find out from the District’s Business Manager after the addendum was negotiated. Sixth, the Board was informed by two accounting firms and its own attorney that the payments Kil-mer received were consistent with the addenda. Finally, contrary to this court’s assertions, it is not subject to dispute that the Board was informed of each payment to Kil-mer. The superior court’s conclusion that it was Kilmer’s actions that gave rise to the series of events is not supported by the record.
In light of what is not disputed, and what the Board members themselves disagree on, this case can be sketched as follows. The Board took action to modify Kilmer’s contract, in the form of Addenda One and Two. These addenda were “approved” when the Board President and Clerk signed them, and then entered into the Board minutes and approved by the Board as a whole. Kilmer then proceeded in accordance with his amended contract: he cashed in unused leave in accordance with Addendum One; he assumed joint principal/superintendent duties; and, he took principal’s compensation in the amount dictated by Addendum Two. The Board knew about each of these actions because a Board member signed Kilmer’s checks and the entire Board received monthly finance reports detailing the payments to him. Significantly, in January 1989, after the Board had authorized cheeks for Kilmer’s principal’s compensation and for approximately four-fifths of his unused leave, the Board issued a highly positive review of Kil-mer. A month later, the Board’s decisions provoked public controversy. In response, Board members met privately with Kilmer. They requested, and Kilmer agreed, that he reduce his principal’s compensation from the amount dictated by Addendum Two to a flat $30,000. Kilmer then proceeded in accordance with his contract.
In the next three months, the following events occurred: (1) public disapproval of the Board’s decisions continued, fueled by one Board member who raised the possibility of suing Board members as individuals to recover compensation paid to Kilmer; (2) the Board’s lawyer investigated the controversy, found Kilmer’s actions reasonable, and recommended no action beyond the already-agreed compensation reduction (at the Board President’s request, the lawyer drew up a resolution expressing confidence in Kilmer and extending the joint principal/superintendent contract for another year); and (3) Kil-mer cashed in $5,100 in unused leave pursuant to Addendum One.
The Board then suspended Kilmer in order to review the results of an accountants’ investigation of the payments Kilmer had received. One week later, the stated reason for suspension evaporated when the accountants concluded that Kilmer’s compensation was in accord with the Board’s decisions. Two weeks later Kilmer’s contract was terminated, after a breakdown in negotiations which would have released the Board from the remaining two years of Kilmer’s superintendent’s contract and given Kilmer an additional year’s employment with the District in order to vest his pension.
On this record, it is difficult to understand where this court finds support for Kilmer’s “good cause” discharge. Returning to the three Counts of the Bill of Particulars that remain to be reviewed, the record shows that the Board approved of, and in fact was informed of, Kilmer’s compensation at every step of the process. It is difficult to see when or how Kilmer “misrepresented” his principal’s compensation. The Board engaged in all necessary approvals of Kilmer’s contract addenda and authorized the checks he received. What evidence then supports the charge that Kilmer drafted addenda that did not comport with the Board’s intent? Even the charge that the Board “lost confidence” in Kilmer’s abilities seems unsupported if measured against a reasonableness standard, given the fact that the Board’s opinion of Kilmer was positive for months *777alter he received all the later disputed payments, and that each investigation conducted by the Board found no illegalities or irregularities in Kilmer’s compensation.
In sum, the record indicates that the Board’s “loss of confidence” was a reaction to public controversy over the Board’s decisions and actions regarding Kilmer’s compensation. By affirming this discharge, the court has effectively transformed Kilmer’s employment status into that of an at-will employee.
It is clear that there was a fundamental misunderstanding between Kilmer and the Board in the matter of compensation. Indeed, at least one member of the Board did not even consider Kilmer’s remuneration to be “compensation.” There is no evidence that Kilmer understood there was any misunderstanding regarding compensation until a Board member made an issue of compensation, and the public became roused. When that misunderstanding became apparent to Kilmer, he agreed to reduce the amount au-thorised by Addendum Two to a flat $30,000. It seems equally clear that the Board, faced with public disapproval of its conduct, and a possible lawsuit against its members individually, sacrificed Kilmer to save itself.
I would reverse the decision of the superi- or court, with directions that it grant Kilmer a trial by jury. In the alternative, it should determine Kilmer’s damages.
. The Alaska Constitution preserves the right to trial by jury. Alaska Const, art. 1, § 16.
. As the separate opinions filed in this case show, three members of this court do not agree with the superior court on this issue.
. Paragraph 9 of the Dillingham City School District Superintendent's Contract provides in part:
Superintendent Status. It is understood by and between the parties that the Superintendent serves at the pleasure of the District. The Superintendent hereby expressly waives any rights as set forth in A.S. 14.20.095 through A.S. 14.20.210, inclusive thereof. In addition, the Superintendent waives any right to any grievance procedures established by the District. Nonetheless, the Superintendent shall have the right to address the Board concerning any aspect of the Superintendent's contract or *769concerning possible termination of the contract.
. The District’s attorney's letter to Kilmer commenced with the statement that "[y]ou are hereby notified that you are dismissed.” It set forth the Board’s reasons for so doing, and then advised Kilmer that
In the contract ... you expressly waived any statutory rights set forth in AS 14.20.095 through AS 14.20.210, inclusive thereof. Nevertheless, under Alaska law you have a constitutional due process right to notice and a hearing before the School Board to present any defenses you may have regarding your termination. If you would like a hearing before the Dillingham City School Board regarding your termination, please notify the School District in writing within five (5) days from the day you receive this letter.
The letter does not suggest that the Board might bear the burden of proving the charges, or that Kilmer might be entitled to a hearing before a tribunal consisting of persons other than those who themselves made the charges.
. The due process guarantees in the Alaska and United States constitutions give public employees a right to notice and a hearing before they can be dismissed. Odum v. University of Alaska, 845 P.2d 432, 434 (Alaska 1993); Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1148-51 (Alaska 1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 878, 93 L.Ed.2d 832 (1987).
. Kilmer alleged breach of contract, breach of the covenant of good faith and fair dealing, defamation, intentional interference with prospective contractual relationships and business opportunities, negligent interference with prospective business opportunities, and invasion of privacy.
. The District does not rely on this Notice to establish a waiver. This is understandable, since litigants cannot unilaterally overrule a court's decision. The superior court did not respond directly to the District’s Notice, rather it noted that the Notice was moot. Nonetheless, this is one of the three documents on which this court relies in concluding that a waiver occurred.
. In footnote 12 of the District's Brief of Appel-lee/Cross-Appellant, the District asserts that "Kilmer concedes that he agreed to waive trial by jury. Kilmer Brief at 24, note 37.”
Note 37 states:
Kilmer filed a Notice of Appeal, Statement of Points on Appeal, and Request for Jury Trial.... The District objected to the jury trial request, based on Kilmer’s case being designated an administrative appeal, and the court denied Kilmer a jury.... After that, the parties agreed to waive jury trial as to Kilmer's remaining claims, which were not part of the administrative appeal.
Kilmer and the District may disagree on what was intended by Kilmer's waiver. However, the District's representation of Kilmer's waiver is patently wrong.
. See Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1260 (Alaska 1988) ("We have adopted a rule that agency decisions, in the exercise of their adjudicative powers, must be accompanied by written findings and a deci-sional document.”). There are neither written findings nor a decisional document in this case, because (1) there was no hearing from which they might be generated, Kilmer having waived the ad hoc due process hearing, and (2) there is no citation to any authority suggesting that the Board had or was exercising any adjudicative powers with respect to Kilmer.
. Count 10 is a reiteration of the first justification for terminating Kilmer’s contract, i.e., the "loss of confidence” in his ability to carry out the responsibilities of superintendent.
. The superior court does not list Kilmer's failure to record the meeting as a factor relevant to the Board’s loss of faith in Kilmer. Moreover, the Board's attorney, in his report exonerating Kilmer of wrongdoing, found that tape recording the meeting was not required trader Alaska law or under the District's policy manual.
. These Counts accuse Kilmer of stating that he would obtain review, and then failed to do so. This assertion is not borne out by the minutes of any Board meeting, however, and the superior court made no such factual finding.
. The District’s policy manual required the signature of a Board member and an administrator on each check. There is no question that Kil-mer's checks, which were signed by Board member Wiggins and Kilmer himself, met this requirement. The District’s attorney found no fault with the checks issued to Kilmer.
. These findings respectively state that Kilmer erred several ways: by leading the Board to mistakenly believe that he intended to cash in only past and not future unused leave; by not presenting the Board with the dollar amount of his unused leave; and, by taking his principal’s compensation in advance, failing to use the money to buy back retirement.
. The court implies that Kilmer’s actions breached that part of the District policy manual that requires the superintendent to “plac[e] before the Board such necessary and helpful facts, information, and reports as are needed to insure the board's acting in full possession of all the relevant data.” That general provision of the manual does not speak to the issue of the superintendent’s compensation, however. In regard to compensation, the manual explains that the superintendent’s usual advisory duties are suspended; he need not even be present at meetings which pertain to his employment and compensation. These provisions do not absolve the superintendent of responsibility for misrepresentation in matters pertaining to compensation. But as discussed infra, the record does not support the proposition that Kilmer engaged in misrepresentation.