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Skvorc v. State (3/3/00) sp-5246
Skvorc v. State (3/3/00) sp-5246
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
PAUL A. SKVORC, II, )
) Supreme Court No. S-8398
Appellant, )
) Superior Court No.
v. ) 3AN-96-2564 CI
)
STATE OF ALASKA, PERSONNEL )
BOARD, ) O P I N I O N
)
Appellee. ) [No. 5246 - March 3, 2000]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: Jeffrey A. Friedman, Anchorage,
for Appellant. Stephen C. Slotnick, Assistant Attorney General,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
BRYNER, Justice, concurring in part and dissenting in
part.
I. INTRODUCTION
An amended accusation issued by the Alaska Department of
Law charged Paul Skvorc, an employee of the Alaska Department of
Fish and Game (ADF&G), with twenty-three violations of the Alaska
Executive Branch Ethics Act. [Fn. 1] The Alaska Personnel Board
found twenty-two violations, imposed a $10,000 fine, and
recommended terminating Skvorc's employment. The superior court
affirmed. The amended accusation did not charge Skvorc with twenty
specific acts found by the board to be violations of the
prohibition on misuse of state time and equipment. We therefore
remand for determination of whether lack of notice prejudiced
Skvorc, and if so, for dismissal or retrial of those charges. We
otherwise affirm, because we find either no merit or no prejudice
in Skvorc's other claims of error.
II. FACTS AND PROCEEDINGS
Paul Skvorc was an ADF&G employee specializing in the use
of sonar to count fish. While so employed, Skvorc became involved
in several personal business enterprises entailing the use of
sonar, and engaged in four activities relevant to this appeal.
While he was an ADF&G employee, Skvorc formed a private
business, Acoustic Research and Technology (ART). Skvorc applied
on ART's behalf for a grant from the Alaska Science & Technology
Foundation. He hoped to develop "a fisheries management tool using
pattern recognition for ID of individual fish . . . ." He did not
disclose these activities to his supervisors.
As an ADF&G employee, Skvorc also reviewed a letter sent
to ADF&G discussing the use of broadband sonar to identify fish.
Its author, Patrick Simpson, sought to interest the state in his
ideas for improving fish recognition technology in the hope that
the state would not hire him or fund his work. Skvorc told Simpson
that ADF&G was not a funding source. Skvorc and Simpson then met
privately and formed Scientific Fisheries Systems, Inc. (SFS) in
order to seek federal and state grants to develop new fish
identification technology.
SFS applied for a grant from the Alaska Science &
Technology Foundation. Although the grant application contained
statements suggesting that ADF&G supported the project, Skvorc
asked the Foundation not to share the application with ADF&G partly
because he feared reprisal.
In early 1993 the Canadian Division of Fisheries and
Oceans (DFO) in British Columbia contacted Skvorc at ADF&G. DFO
asked Skvorc to look at potential sonar sites on the Fraser River
and to offer his advice about sonar placement. Skvorc flew twice
to British Columbia for this purpose. On both occasions, the
Canadian government paid Skvorc's travel expenses and provided a
$100 (Canadian) honorarium.
Skvorc subsequently signed a contract with DFO to provide
consulting services on the Fraser River. Skvorc signed the
contract at ADF&G and had a subordinate at ADF&G witness his
signature. Skvorc did not disclose these activities to ADF&G.
Finally, DFO contacted Skvorc at ADF&G and asked him to
conduct a seminar on hydroacoustics in Winnipeg. Skvorc traveled
to Winnipeg at Canadian government expense and learned of a project
on the Arctic Red River. Skvorc bid on the project on behalf of
ART. DFO awarded Skvorc the contract and paid him approximately
$7,500 (Canadian).
After Skvorc's supervisors lodged an ethics complaint
with the Alaska Department of Law reporting some potential
violations, the Alaska Department of Law, Office of the Attorney
General, sent Skvorc a letter informing him that it had received an
Ethics Act complaint against him. The letter discussed his alleged
activities concerning ART and SFS. Apparently paraphrasing the
complaint from Skvorc's department, the letter stated that Skvorc
may have violated the Ethics Act by misusing his official position,
soliciting compensation for the performance of official duties from
an entity other than the state, using state facilities to benefit
personal and financial interests, and engaging in incompatible
outside employment. The letter informed him that the attorney
general had accepted the ethics complaint "as a complaint for
purposes of initiating an investigation." After investigating, the
Department of Law filed a twenty-count accusation against Skvorc
with the Alaska Personnel Board in April 1995. An amended
accusation filed in July 1995 included three more counts.
The personnel board hearing officer heard the case in
November 1995 and issued proposed findings of fact, conclusions of
law, and recommendations. The hearing officer found twenty-three
violations of the Ethics Act; he recommended assessing fines
exceeding $66,000 and terminating Skvorc's employment. The hearing
officer found that Skvorc was "not a credible witness," having
found that Skvorc had been untruthful in his hearing testimony, at
his deposition, and in dealing with ADF&G supervisors. The hearing
officer also found that the violations were "most serious" and that
Skvorc had shown no remorse.
After a public hearing, the personnel board adopted the
hearing officer's recommendations, but reduced the fine to $10,000
and eliminated Count XXI. The board recommended Skvorc's
termination.
Skvorc appealed to the superior court, raising various
claims of procedural error and challenging the legal or factual
basis for each violation. The superior court upheld the personnel
board's decision on all grounds. Skvorc appeals.
III. DISCUSSION
A. Standard of Review
Several different standards of review apply to this case.
We accord no deference to the decision of the superior court
because it acted as an intermediate court of appeal. [Fn. 2]
However, we apply four different standards of review to the
administrative decisions.
The "substantial evidence" test is used for
questions of fact. The "reasonable basis" test is used for
questions of law involving agency expertise. The "substitution of
judgment" test is used for questions of law where no expertise is
involved. The "reasonable and not arbitrary" test is used for
review of administrative regulations.[ [Fn. 3]]
Many of the issues presented to this court concern the
personnel board's factual findings, which we would normally review
under the substantial evidence test. [Fn. 4] Skvorc argues,
however, that we should substitute our judgment and accord no
deference to the board's or hearing officer's findings in deciding
whether the record supports the factual findings, because, he
argues, the hearing officer and board adopted findings proposed by
the attorney general rather than drafting their own findings.
We disagree. Alaska Statute 39.52.360(g) authorizes a
hearing officer to "direct either or both parties to submit
proposed findings of fact, conclusions of law, and recommendation"
upon the conclusion of a hearing. This provision implicitly
authorizes use of parties' proposed findings in formulating
findings and conclusions.
The same is true of the board's findings. After
considering the hearing officer's decision and the parties' written
and oral arguments, the board accepted most of the hearing
officer's findings. There is no indication the board abdicated its
responsibility to fully consider the issues before it; the board's
reduction of the recommended penalties and rejection of Count XXI
suggest otherwise. [Fn. 5]
Accordingly, we review the board's findings of fact under
the substantial evidence test. Substantial evidence is "such
evidence as a reasonable mind might accept as adequate to support
a conclusion." [Fn. 6]
B. Adequacy of Notice
The accusation and amended accusation the attorney
general filed with the personnel board alleged Ethics Act
violations not specified in the complaint ADF&G sent to the
attorney general. Skvorc argues that this procedure violated the
Ethics Act and his right to procedural due process. According to
him, the Act and due process invariably require a mandatory two-
stage process in which a complaint served on the employee must
allege a particular violation before that alleged violation can be
asserted in an accusation.
The first stage, according to Skvorc, requires a
complaint, an investigation, and a probable cause finding as to
each violation charged. He argues that the complaint gives the
employee an opportunity to respond while the Department of Law is
still investigating. He reasons that the Department of Law may
decide not to proceed to the accusation stage, permitting the
investigation and complaint to remain confidential, or possibly
permitting a negotiated settlement. He claims that the attorney
general's probable cause finding must be made on the basis of the
charges alleged in the complaint. If the attorney general's
investigation, as here, reveals a basis for new charges, Skvorc
would require that any new charges be alleged in a new complaint.
This would allow the employee to respond to the new charges, and
would require an investigation and a probable cause determination
for each new charge.
The second stage begins with the formal accusation and
leads to a personnel board hearing. [Fn. 7] Skvorc argues that
this second stage can be taken only after the Department of Law
finds probable cause to believe that there has been a knowing
violation of charges set out in a complaint; he thus argues that
the state was required to serve him with a complaint containing the
additional charges.
The text of the Ethics Act does not invariably require
the two-stage process Skvorc advocates. Certainly the
investigation and accusation process may begin with a complaint
either received or initiated by the attorney general. [Fn. 8] But
that is not the only way the accusation process can begin. If the
attorney general determines that "there is probable cause to
believe that a knowing violation [of the Act] has occurred," AS
39.52.350(a) provides that the attorney general "shall initiate
formal proceedings by serving a copy of an accusation" on the
"subject of the accusation." [Fn. 9] That determination does not
necessarily require that there be a prior complaint, much less an
amended complaint charging all violations revealed upon
investigation.
In contrast, two other clauses in AS 39.52.350(a) permit
accusations in situations that appear to contemplate prior
complaints. One clause permits an accusation if there is probable
cause to believe that there is "a violation that cannot be
corrected under AS 39.52.330," a statute that refers to the
"subject of a complaint." [Fn. 10] The other clause permits an
accusation if "the subject of a complaint" has failed to comply
with a recommendation for corrective or preventive action. [Fn. 11]
Even these two clauses do not require that the complaint be amended
in the event of later-revealed violations. If they did, the
pleading and investigation process would have to begin all over
again, at least as to any new charges. The Act does not intimate
any such requirement. And because the attorney general must find
probable cause before serving the accusation, the accusation
process itself requires a preliminary probable cause finding and
gives the employee notice of the charges. The Act does not
require, or imply, that violations discovered during an
investigation must be included in an amended complaint before they
can be alleged in an accusation. And the statute specifying the
content of complaints does not require amendment. [Fn. 12]
The benefits of Skvorc's proposed procedure seem dubious,
and are not mandated by the Act or due process. Thus, allowing an
employee to respond to the accusation is equivalent to allowing a
response to an amended complaint. Requiring an amended complaint
does not seem likely to make accusations materially more accurate,
and any marginal inaccuracy can be attacked at or before the
hearing. Reinvestigating after the accused responds to an amended
complaint would be of little utility, given that the attorney
general must find probable cause before filing an accusation; that
finding likewise minimizes the justification for, or the importance
of, confidentiality. And serving the accusation does not preclude
the attorney general and the employee from negotiating terms that
might avoid a hearing.
We agree with Skvorc that it is important for an employee
to have notice of all violations to be heard. Although Skvorc was
not told at the complaint stage of all of the charges finally
alleged, the July 1995 amended accusation charged all twenty-three
counts heard in November 1995. Except possibly with respect to
Count XXII, which we discuss below in Part III.D.7, the amended
accusation gave Skvorc adequate and timely notice of the charges
against him. Skvorc also had an opportunity to respond to the
accusation, and therefore had an adequate opportunity to be heard
and to contest all the charges, except, possibly, those encompassed
by Count XXII. Due process does not require the procedure he
proposes.
We are unpersuaded by Skvorc's assertion that we should
analogize to criminal procedure. The superior court correctly
reasoned that "a proceeding under the Ethics Act is more akin to
other administrative proceedings than to a criminal proceeding, and
therefore, amendment of the accusation should be permitted upon
probable cause and in the absence of prejudice."
Skvorc relies on Linstad v. Sitka School District [Fn.
13] as support for his assertion that the accusation cannot go
beyond the complaint. But there we simply recognized that the
district could not deviate from the original bill of particulars
either at the administrative hearing or on appeal. [Fn. 14] Except
as to Count XXII, discussed below, Skvorc is not claiming that the
state deviated at the hearing from the charges asserted in the
accusation. [Fn. 15]
C. Ethics Disclosure
Skvorc filed an ethics disclosure form in early May 1993.
His supervisor, Jeffery Koenings, drafted a memorandum to Skvorc
stating that he recommended disapproval. Koenings did not send the
memorandum, but instead recommended that the deputy commissioner
file a complaint with the attorney general. The Attorney General's
Office notified Skvorc in December 1993 that it had received a
complaint in June 1993.
Skvorc asks us to dismiss some charges because ADF&G did
not respond to his ethics disclosure. [Fn. 16] He asserts that the
Act required ADF&G to respond to him in writing, [Fn. 17] and that
departmental guidelines required response within twenty working
days. Based on employee testimony that the department typically
does not respond to ethics disclosures, Skvorc argues that he
reasonably interpreted the department's silence to indicate
approval. He claims that its failure to respond was tacit approval
that invalidated all charges based on his subsequent actions.
We agree that the department should have responded to
Skvorc's disclosure. [Fn. 18] But silence does not privilege his
violations or relieve him of his obligation to comply with the Act.
The Act requires an employee involved in activities
potentially barred by the Act to "refrain from taking any official
action relating to the matter until a determination is made under
this section." [Fn. 19] Approval is a prerequisite to entering
into any otherwise prohibited contract. [Fn. 20] Silence is not
approval.
The statute did not give Skvorc the option of entering
into contracts for outside employment without state approval. He
was responsible for obtaining approval, and should not have acted
without it. ADF&G's failure to respond to Skvorc's disclosure does
not justify dismissal of any charges.
D. Challenges to the Board's Findings
1. Use of official position for personal gain (Counts
I-III)
The board found that Skvorc used his official position
for personal gain, committing the acts charged in Counts I-III of
the amended accusation, and violating AS 39.52.120. [Fn. 21] These
counts alleged three events: Skvorc used the information in Patrick
Simpson's letter to ADF&G to form a private business with Simpson;
Skvorc converted Winnipeg DFO's request for ADF&G assistance into
a private consultancy; and Skvorc converted British Columbia DFO's
request for ADF&G assistance into a private consultancy.
Skvorc does not deny that these events took place.
Rather, he argues that there is no proof he took "official action"
as the Act defines that term. [Fn. 22] But the statute prohibiting
use of official position for personal gain does not require
"official action." [Fn. 23] It is enough that employees use their
"official position" for personal gain or to seek employment.
Paragraph 61 of the amended accusation describes the conduct
charged in these three counts and repeatedly refers to "official
position." The next paragraph is also part of the three counts;
although it refers once to "official action," it also correctly
cites AS 39.52.120(b)(1). Given the specific averments of the prior
paragraph, this drafting discrepancy is not significant. The
hearing officer and board concluded that these acts were a misuse
of "official position." And in any event, the findings and
conclusions would also satisfy the statutory definition of
"official action." We affirm with respect to Counts I-III.
2. Improper use of information (Counts IV-VI)
The board found that the activities forming the bases for
Counts I-III also constituted instances of improper use of
information gained in the course of official duties. [Fn. 24] The
board determined that "the information Canadian officials and Mr.
Simpson were seeking, hydroacoustic assistance, was never
disseminated to the public." Skvorc contends that the state
offered no evidence satisfying its burden of proving that the
information had not been publically disseminated.
The state showed that Skvorc obtained the information
(Simpson's letter and the DFO inquiries) in the course of his
official duties and that he then used it to his benefit. Simpson
testified that the recipient of his white paper was not allowed to
share it and that Skvorc told him after he and Simpson agreed to
join forces that he was going to hold on to the document "and make
sure it wasn't, you know, circulated." Given the way Simpson and
DFO transmitted their information to ADF&G, and Skvorc's intended
treatment of Simpson's paper, the board could permissibly infer
that the contents of Simpson's paper and the substance of DFO's
inquiries were not in fact publically disseminated. These facts
support the board's finding that "[t]he information that Canadian
officials and Mr. Simpson were seeking, hydroacoustic assistance,
was never disseminated to the public." The board did not err in
finding three violations of AS 39.52.140(a).
The state argues that a regulation narrowly and
explicitly defines the phrase "disseminated to the public." [Fn.
25] Because this regulation did not go into effect until after
Skvorc's 1993 actions giving rise to the charges, we cannot rely on
it directly in assessing the validity of the charges against him.
But we note tangentially that the definition is consistent with the
Act's stated statutory purpose [Fn. 26] and constructional mandate.
[Fn. 27] They seem to reflect a legislative intent consistent with
reading the statutory phrase "disseminated to the public" narrowly.
The definition is also consistent with prior executive branch
interpretation of the dissemination requirement. The state quotes
a special assistant to the attorney general who, in testimony
during legislative hearings on the proposed Act, explained the
Act's purpose in terms of equalizing the ability of public
employees and the public to take advantage of information that the
state possesses. That testimony supports a restrictive
interpretation of "dissemination." We affirm with regard to Counts
IV-VI.
3. Use of official position for personal gain (Counts
VII-IX)
The board found that Skvorc had improperly solicited and
received private compensation for performance of official duties.
[Fn. 28] The board found that Skvorc provided assistance (for
compensation) to his private clients and his business that should
have been provided as part of his official duties. Thus, Skvorc
(1) proffered information assistance for an SFS grant application
in expectation of compensation; (2) offered advice to DFO in
British Columbia in exchange for travel and lodging and later
solicited a contract for additional work; and (3) offered
assistance and information to DFO in Winnipeg for monetary
compensation.
Skvorc argues that he did not accept, solicit, or receive
compensation for these activities. But the Act defines
"compensation" as "any money, thing of value, or economic benefit
conferred on or received by a person in return for services
rendered or to be rendered by the person for another." [Fn. 29]
Seeking or receiving expense reimbursement and a contract from DFO
satisfied the Act. The Canadian government paid his airfare and
lodging. He received compensation because he received "thing[s] of
value . . . in return for services rendered . . . ." Skvorc also
received over $7,500 (Canadian) for work done on the Arctic Red
River.
The record contains evidence showing that Skvorc
participated in the grant application expecting a $72,000 annual
salary if the grant were awarded, and that he would not be employed
by ADF&G when performing his grant work. The statute covers this
prospect of future economic benefit. The statute does not require
actual or present receipt of money; solicitation of compensation,
including prospective or contingent economic benefits, suffices.
Skvorc also claims that he did not misuse his official
position because his ADF&G duties did not include traveling to
Canada or seeking a grant. But his Canadian work required him to
apply state-derived hydroacoustic expertise for someone other than
his employer. One of his job duties was to provide advice to the
public and other governmental agencies, including foreign
governments. It does not matter that he traveled on annual leave.
And his grant application relied on information he derived from his
state employment. It also resulted from his relationship with
Simpson, formed after he learned through his employment of
Simpson's solicitation to the state.
Substantial evidence supports the findings of these
violations. We affirm as to Counts VII-IX.
4. Solicitation of employment while taking official
action (Count X)
The board found that Skvorc sought employment through use
of state action when he allowed the SFS grant application to
suggest that ADF&G would support the SFS project. The application
stated that "we [SFS] will be working closely with ADF&G," and
estimated the value of ADF&G's involvement at $360,000.
Because the application also stated that "[i]t is a
conflict of interest to request the use of ADF&G facilities until
after Skvorc has left," Skvorc argues that the application did not
indicate that he had already taken official action to obtain ADF&G
approval of the grant.
We disagree. The application insinuated that ADF&G
endorsed the project, and mentioned that Skvorc was an ADF&G
employee and that SFS, through Skvorc, had been coordinating with
ADF&G. This was substantial evidence of a violation. We affirm as
to Count X.
5. Incompatible outside service or employment (Counts
XI-XVI)
The board found that Skvorc had committed six violations
of AS 39.52.170(a), which prohibits incompatible outside service or
employment. The board based the violations on: (1) forming SFS;
(2) providing consulting services in Winnipeg in October 1992; (3)
providing consulting services in British Columbia in April 1993;
(4) purchasing a business license for ART; (5) providing consulting
services on the Fraser River in May 1993; and (6) providing
consulting services in Winnipeg in September 1993. Skvorc argues
that these activities did not interfere with his official duties.
The board found that they conflicted with Skvorc's official duties
because (1) he used his state position to facilitate his entry into
private business; (2) they were closely related to his
responsibilities at ADF&G and were conducted in secret; (3) they
took time from his official duties; (4) his private enterprises
created conflicts of interest with his official responsibilities;
and (5) his work for the Canadian government compromised his
loyalty to Alaska during a period of conflict between the two
governments. We conclude that substantial evidence supports the
board's findings that Skvorc's private activities conflicted with
his official duties.
Skvorc contends that the conflict of interest created by
consulting for DFO was insignificant or conjectural, and therefore
not punishable under the Ethics Act. DFO hired Skvorc as a
consultant to count salmon on the Fraser River. Because Alaska and
Canada were engaged in a dispute over fisheries management, ADF&G
saw this consultancy as a significant conflict. Skvorc argues that
any conflict was conjectural because the state failed to
demonstrate a direct conflict between his ADF&G responsibilities
and his commitments to DFO.
Skvorc provided education and technology which might have
been used to count other salmon species more accurately, increasing
the credibility of figures Canada might use in its dispute with
Alaska. An ADF&G official testified that the United States and
Canada were involved in sensitive treaty negotiations and that
aiding the Canadians affected a policy issue best decided by higher
levels of government. During his deposition, a DFO official in
British Columbia testified that Skvorc's help "was much appreciated
and very helpful." He was also asked whether Skvorc's help was
also useful, apparently in dealing with Native Canadian tribes, in
"a certain political sense . . . that you had hooked up with
experts from Alaska." After objection, he was asked "wasn't that
helpful in those ways, also?" He answered: "It was certainly
helpful in sending information forward that showed there was, as I
would call it, an independent outside party that was providing
advice to us on the efficacy of this choice." Substantial evidence
supports the board's finding that the consultancy created a
conflict.
Skvorc also argues that it is unfair to punish him for
purchasing the ART business license while also punishing him for
activities stemming from that purchase. Count XIV concerns his
license purchase; Counts XV and XVI concern his consultancy work.
The state would justify multiple charges here as
notifying employees that they must report outside employment as
soon as they enter into any business relationship. It argues that
upholding these violations will promote early reporting and
prevention of unethical conduct. The state did not seek -- and the
board did not impose -- any penalties for Count XIV, since
penalties had been imposed for violations committed pursuant to the
licenses.
We think the board utilized an overly broad
interpretation of the phrases "render services" and "accept
employment." Those terms imply either actual performance of work
or an actual agreement to perform services. Merely purchasing a
business license, without more, would not support a charge under
subsection .170(a). The state's rationale of promoting early
reporting is unconvincing, because it is not necessary to report
non-violations. Failure to disclose unethical activities is
punishable; failure to disclose activities that are not actually
unethical is not.
It was error to find that purchasing a business license
was a violation. But this error is harmless because the hearing
officer recommended that no additional fine be imposed for this
count and because it appears the board imposed no individual
penalty for this charge. We therefore affirm as to Counts XI-XVI.
6. Failure to disclose (Counts XVII-XX)
The board found four violations of AS 39.52.170(b),
which requires disclosure of outside employment: Skvorc's failures
to disclose the formation of SFS, his DFO business activities, and
his intent in purchasing ART's business license.
Skvorc argues that disclosure was not needed when he
purchased the ART business license because it offered only a
prospect of future, not current, compensation. But subsection
.170(b) does not require current receipt of compensation. It
requires disclosure when the employee is "rendering services for
compensation, or engaging in employment outside the employee's
agency." For reasons discussed above in Part III.D.3, Skvorc's ART
activities with DFO met this standard.
We assume for discussion's sake that merely obtaining a
business license, without more, cannot be separately charged under
subsection .170(b). But Skvorc obtained the license and formed a
business with an intention to engage in hydroacoustic-related
business activities outside his state employment. They were
preliminary but important steps needed to advance his business
purposes. Simply forming a business closely related to his state
employment created potential conflicts with his state work. In any
event, the hearing officer recommended no additional fine, and the
board imposed no separate penalty for his failure to report his
intentions when he purchased a business license.
Skvorc also contends that he fulfilled his duty by
submitting his May 3, 1993 disclosure statement. His disclosure
form stated:
I hereby officially report my employment or
provision of services outside the Department of Fish & Game. These
outside duties will in no way affect my usual State duties or duty
hours in this Department. This employment or service consists of
the following: Consultation services in the field of Fisheries
Hydroacoustics, solely outside the State of Alaska and not relating
to any activity associated with Alaskan fisheries issues.
This did not satisfy Skvorc's duty. Because he did not disclose
his previous consultation or contracts with DFO, the board did not
err in finding that Skvorc failed to fulfill his statutory duty to
disclose. We affirm as to Counts XVII-XX.
7. Misuse of state time and equipment (Count XXII)
The board found one violation of AS 39.52.120(b)(3),
which prohibits misuse of state time, property, and equipment. The
board based this violation on twenty-two instances of misuse.
As Skvorc argues, one of these instances, his use of his
ADF&G computer to draft a letter to Canada DFO, is relatively
insignificant. Many of the other instances are more serious, and
the board reasoned that even if the "insignificant" uses were
excluded, the remaining uses "were so extensive" as to warrant
maximum penalties. It noted that some, such as the fish kill or
exploitation of state employees, would warrant "severe fines and a
recommendation of severe discipline." Although we agree with
Skvorc, we find this argument inconsequential because it concerns
only one of twenty-two acts that form the basis for this charge.
These included, most prominently, use of state employees' time and
state lockers for killing and storing Dolly Varden trout. These
acts provided ample support for this charge. Because the attorney
general charged only one count of misuse of state equipment and
time, the hearing officer recommended a single, but maximum, fine
of $5,000. The board imposed a total fine of $10,000 for all
twenty-two remaining counts, having concluded that the cumulative
fine recommended by the hearing officer was excessive.
Skvorc argues that the complaint's failure to charge most
of these acts violates due process and the Act. Although we
concluded in Part III.B that it is not necessary to serve an
amended complaint charging all counts later charged in the
accusation, Count XXII presents a different, and more serious,
notice question. No complaint charged these incidents of misuse.
The original accusation charged only one incident (using an ADF&G
computer to type a letter). When the state served the amended
accusation on Skvorc, it also filed a notice stating that the
equipment misuse charge "is a continuing charge, and that evidence
exists of more than one instance of use of state equipment for
personal business pursuits." The amended accusation specified that
Skvorc had used the computer and telephones, and also broadly
asserted that Skvorc had "used state equipment on other occasions
for his private business interests."
We think the amended accusation did not give Skvorc
sufficient notice of the specific incidents to be presented to the
hearing officer. The record does not reveal whether the state
actually gave Skvorc adequate notice of the acts charged through
some other means, and whether this procedural deficiency was
harmless. We cannot say with assurance that the error was
harmless, because the hearing officer considered some of the
misuses not charged in the amended accusation to be among the most
serious; these uncharged violations may have influenced his penalty
recommendation and also may have influenced the board when it
imposed penalties and recommended termination. We think remand is
necessary, first to determine whether the error was harmless, and
if it is not, for reconsideration of the appropriate penalty
following dismissal or retrial of Count XXII.
E. Reliance on Unpublished Decision
The hearing officer relied on an unpublished personnel
board decision, In re Pearson, in finding violations and
recommending penalties. The state gave Skvorc a copy of the
decision and entered it into the record. Skvorc argues that the
board, which adopted the hearing officer's findings and
conclusions, impermissibly relied on this unpublished decision.
Skvorc has not shown how that reliance harmed him. He
has not demonstrated that it caused any improper definition of
terms. He does not show that this usage, which is comparable to
widely accepted sentencing practices, misguided the legal analysis.
He claims that he was disadvantaged by his inability to access
unpublished cases favorable to him, but he could have remedied any
such prejudice by requesting an opportunity to search. We find no
basis for concluding that he was prejudiced.
Skvorc also challenges reliance on Pearson because the
hearing officer disallowed testimony supporting a lighter penalty.
Skvorc offered testimony of an ADF&G employee regarding the
department's prior treatment of ethical violations. The hearing
officer allowed him to testify that ADF&G had overlooked more
egregious violations than Skvorc's, but prevented inquiry into
specific acts. The hearing officer excluded this testimony because
it was not legal precedent. Because purely evidentiary
considerations justify exclusion of this testimony, we see no
reason to attribute it to disparate treatment. There is no
comparison between this testimony and an unpublished but clearly
documented decision.
F. Assistant Attorney General's Participation
Skvorc argues that an assistant attorney general's
participation in the board hearing created a conflict of interest.
A member of the Juneau Attorney General's Office recused herself
from this case on the ground it would be a conflict of interest for
her to advise the board while another member of the Juneau office
prosecuted the accusation against Skvorc. Assistant Attorney
General Teresa Williams, of the Anchorage Attorney General's
Office, then attended the hearing but not the deliberations and
gave the board advice on procedural matters. Given that Williams
worked in an office different from the one prosecuting Skvorc and
that she did not attend the deliberations, we conclude that there
was no conflict of interest.
The Alaska Rules of Professional Conduct do not address
this issue. But the most closely analogous rule permits an
inference that Williams's participation was acceptable. Rule
1.11(c) allows government attorneys to participate in matters from
which other members of the same agency are disqualified.
Our precedent weighs against finding a conflict. The
parties dispute whether this case is controlled by Matter of
Robson, or Stigall v. Anchorage Municipality Police and Fire
Retirement Board. In Robson we held that the Alaska Bar
Association's executive director could not attend the deliberations
of the Bar's disciplinary board while an attorney from her office
prosecuted the case. In Stigall we held that an administrative
agency's legal advisor did not improperly act as an advocate by
drafting written interrogatories.
Skvorc's case is more similar to Stigall, where an
assistant municipal attorney represented the Anchorage Municipality
Police and Fire Retirement Board while it heard a former employee's
claim for disability benefits. Because the claimant had moved
Outside and wished to avoid incurring the expense of attending the
rehearing in Alaska, he agreed to answer written interrogatories as
a substitute for live testimony. The attorney drafted the
interrogatories, a list of questions for cross-examination. The
claimant alleged that she had acted both as an advocate adverse to
his position and as an advisor to the board. Since she did not
participate in the deliberations, we found that there was no
conflict. Like her, Williams did not attend the deliberations and
played a purely advisory role in the board's determinations. Like
the questions for cross-examination drafted by the assistant
municipal attorney, the findings drafted by Williams did not taint
the decision-making process. Thus, her participation did not
create either an actual conflict or the appearance of impropriety.
This conclusion accords with cases elsewhere allowing
different members of an attorney general's office to fulfill the
dual roles of advisor and prosecutor.
G. Appropriateness of Penalty
Skvorc contends that the penalties imposed were
excessive. The hearing officer recommended fines exceeding $66,000
and termination of Skvorc's employment. Although the board found
the fine for each individual count reasonable, it determined that
the fines were cumulatively excessive. It reduced the total fine
to $10,000, noting that this was approximately twice the amount of
remuneration Skvorc received for his conflicting contracts, and
recommended termination.
The Ethics Act authorizes civil penalties of up to $5,000
for a violation, fines of up to twice the amount of financial gain
realized from any violation, and dismissal. Because the penalties
the board assessed bear a financial and mathematical relationship
to the amount of profit Skvorc derived from his activities and
because they fall well within the range of the penalties authorized
by statute, they are reasonable and appropriate.
But because we conclude that Skvorc may have received
inadequate notice of some of the acts charged in Count XXII, and
because we cannot say that the board's penalty may not have been
affected by the findings of some of the violations encompassed in
Count XXII, our remand on that issue may require the board to
reconsider the penalty.
IV. CONCLUSION
For these reasons, we AFFIRM on all issues, except those
relating to Count XXII. As to that count, we REMAND so that the
board can consider the notice issue. Unless it finds that Skvorc
had adequate actual notice of each on the violations found by the
board under Count XXII, it must determine whether the lack of
notice was harmless, and if it was not, dismiss or retry those
misuse acts not charged in Count XXII of the amended accusation.
Depending on the outcome of those issues, the board must reconsider
Skvorc's penalty.
BRYNER, Justice, concurring in part and dissenting in part.
I agree with the parts of the court's opinion that affirm
violations stemming from Skvorc's involvement in ACT and SFS, but
disagree with the parts that affirm violations based on Skvorc's
involvement with the Canadian DFO. Concerning the latter
violations, I would conclude that they must be reversed because
they were never properly charged.
My chief disagreement is with the court's conclusion that
the attorney general is entitled to launch formal, public
proceedings under AS 39.52.350 without following the preliminary
procedures governing complaints set out in AS 39.52.310 and without
making a formal determination of probable cause as required under
AS 39.52.350(a). I read these provisions to require all Ethics Act
charges, including charges initiated by the attorney general, to be
commenced by the filing of a complaint and to allow public
accusations to be filed only after the subject of the complaint has
had an opportunity to respond and after the attorney general has
made a formal determination of probable cause.
Alaska Statute 39.52.310, the Ethics Act provision
governing the filing of complaints, unequivocally applies to
actions initiated by the attorney general:
(a) The attorney general may initiate a
complaint, or elect to treat as a complaint, any matter disclosed
under AS 39.52.210, 39.52.220, 39.52.250, or 39.52.260. . . .
(b) A person may file a complaint with
the attorney general regarding the conduct of a current or former
public officer. A complaint must be in writing, be signed under
oath, and contain a clear statement of the details of the alleged
violation.
Under subsection (f) of the same provision, when the attorney
general determines that a complaint is worthy of investigation, the
subject of the complaint must be given formal notice of the
allegations and an opportunity to respond:
If the attorney general accepts a
complaint for investigation, the attorney general shall serve a
copy of the complaint upon the subject of the complaint, for a
response.
Alaska Statute 39.52.340 requires all proceedings
relating to the filing and investigation of an Ethics Act complaint
to be strictly confidential:
Except as provided in AS 39.52.335,
before the initiation of formal proceedings under AS 39.52.350, the
complaint and all other documents and information regarding an
investigation conducted under this chapter or obtained by the
attorney general during the investigation are confidential and not
subject to inspection by the public.[ [Fn. 1]]
Only when an investigation establishes that a complaint
filed under AS 39.52.310 is supported by probable cause does
AS 39.52.350(a) authorize the attorney general to file a formal
charge -- an "accusation." And only upon the accusation's filing
does the process become public:
If the attorney general determines that
there is probable cause to believe that a knowing violation of this
chapter or a violation that cannot be corrected under AS 39.52.330
has occurred, or that the subject of a complaint failed to comply
with a recommendation for corrective or preventive action, the
attorney general shall initiate formal proceedings by serving a
copy of an accusation upon the subject of the accusation. The
accusation shall specifically set out the alleged violation. After
service, the accusation is a public document open to inspection.
Except as provided in AS 39.52.370(c), all subsequent proceedings
are open to the public.
Not until a proper accusation is filed does the personnel board
acquire jurisdiction. [Fn. 2]
The court today interprets these provisions differently,
concluding that they allow the attorney general to institute Ethics
Act proceedings without filing a complaint. While acknowledging
that "the investigation and accusation process may begin with a
complaint either received or initiated by the attorney general,"
[Fn. 3] the court nevertheless holds:
But that is not the only way the accusation
process can begin. If the attorney general determines that "there
is probable cause to believe that a knowing violation [of the Act]
has occurred," AS 39.52.350(a) provides that the attorney general
"shall initiate formal proceedings by serving a copy of an
accusation" on "the subject of the accusation." That determination
does not necessarily require that there be a prior complaint
. . . .[]
In reaching this conclusion, the court mistakenly reads
section .350 in isolation, overlooking its relationship to other
sections of the Ethics Act and ignoring the legislative history
underlying these provisions. The legislative history of Alaska's
Ethics Act provides a compelling basis for concluding that its
drafters intended the act's provisions governing complaints and
accusations to describe a uniform process for prosecuting all
Ethics Act violations -- a process that prohibits the attorney
general from bypassing complaints and that requires formal, pre-
accusation determinations of probable cause.
The legislature enacted Alaska's Executive Ethics Act in
1986 as Senate Bill 391; its provisions dealing with complaints and
accusations are set out in article 4. The governor's sectional
analysis of article 4, forwarded to the legislature on April 2,
1986, makes it clear that the article's provisions are closely
related and contemplate an integrated, two-step system for
prosecuting Ethics Act violations: "Article 4 . . . establishes a
complete process for handling of complaints regarding violations of
the provisions of AS 39.52."
Moreover, the sectional analysis specifies that the state
must follow section .310's provisions governing the handling of
complaints even when the attorney general is the initiating party:
"This section sets out the procedures for handling a complaint,
whether filed with the attorney general or initiated by the
attorney general, and establishes the conditions under which a
complaint will be accepted and investigated." Furthermore, the
analysis describes only one way of initiating formal proceedings
under section .350: the attorney general first makes a
determination of probable cause, and then "initiates formal
proceedings by serving an accusation upon the subject of the
complaint." By referring to the newly accused employee as "the
subject of the complaint," (and by subsequently referring to
formally accused employees as "the subject[s] of the accusation"),
the sectional analysis unmistakably indicates that section .350's
formal accusation process is to be initiated only when section
.310's preliminary complaint process has already been used.
In my view, sound public policies support article 4's
progressive structure and militate in favor of enforcing its
uniform procedural requirements. The court decides otherwise by
determining that procedural due process does not require this
procedure. But while procedural due process concerns certainly are
implicit in section .310's provisions governing complaints and in
section .350's provisions governing probable cause and formal
accusations, due process is not the only policy that favors strict
adherence to article 4's procedural requirements.
By prohibiting public disclosure of Ethics Act
proceedings until the first stage of the process is complete,
article 4's procedural structure safeguards privacy rights of state
employees and protects confidential personnel records from
unwarranted disclosure. The statutory structure also encourages
voluntary, informal resolution of complaints.
Here, by initiating formal proceedings without filing a
complaint and without making a formal determination of probable
cause, the state deprived Skvorc of the process prescribed under
sections .310 and .350. And by prematurely exposing him to formal
public charges, the state also deprived him of his right to
confidentiality, virtually dooming any realistic possibility of an
informal private resolution. Considering the violation of Skvorc's
privacy rights, I do not believe that the initial procedural error
was cured by the procedural rights that the state subsequently
accorded Skvorc; nor do I think that the undeniably strong evidence
against Skvorc can justify a finding of harmless error.
Admittedly, the Attorney General's Office served Skvorc
with the functional equivalent of a complaint when it sent him its
December 13, 1993, letter notifying him of allegations concerning
his involvement in a private business -- ART -- and his
participation in soliciting grants through SFS -- the partnership
that he had established with Patrick Simon. Although the state
failed to provide Skvorc with the original letters of complaint
that Skvorc's supervisors wrote to the Attorney General's Office,
the state's recitation of the substance of the allegations in its
December 13 letter substantially complied with the requirements of
section .310 with respect to the allegations discussed in the
letter. Therefore, to the extent that the formal accusation
incorporated the charges earlier described in the complaint -- or
to the extent that it set out charges that were reasonably
foreseeable in light of the information contained in the
December 13 letter -- the formal accusation should be considered
properly filed and procedurally sound.
But the formal accusation did not simply restate or
elaborate on the charges set out in the attorney general's
December 13 letter of complaint. Rather, it advanced two entirely
new factual theories of misconduct, one relating to Skvorc's
dealings with the Department of Fisheries and Oceans in Winnipeg;
the other relating to his dealings with the British Columbia branch
of the DFO. Each of these new factual theories resulted in
multiple newly alleged counts of misconduct. Skvorc thus stood
accused of engaging in numerous violations that had not been
covered in the original complaint, that bore no close connection to
the originally alleged misconduct, and that were not reasonably
foreseeable based on the facts alleged in the December 13 letter.
Since these acts had never before been raised by complaint, I would
conclude that they were not properly raised in Skvorc's amended
allegation and that they accordingly should have been dismissed.
The court insists that once a complaint has initially
been filed, neither the Ethics Act nor due process requires newly
discovered violations to be charged in a new or amended complaint:
[B]ecause the attorney general must find
probable cause before serving the accusation, the accusation
process itself requires a preliminary probable cause finding and
gives the employee notice of the charges. The Act does not
require, or imply, that violations discovered during an
investigation must be included in an amended complaint before they
can be alleged in an accusation. And the statute specifying the
content of complaints does not require amendment. The benefits of
Skvorc's proposed procedure seem dubious, and are not mandated by
the Act or due process.[]
The court's reasoning is flawed in two ways. First,
contrary to the court's view that the Ethics Act does not require
new violations to be charged in new or amended complaints, the
language and legislative history of article 4 reveal that sections
.310 and .350 are intended to operate in tandem, requiring all new
actions under the Ethics Act to be initiated by a complaint. To
the extent that an investigation discloses new violations that fall
clearly beyond the scope of an initial complaint, it follows that
the act does require the filing of a new or amended complaint.
Second, even if the court is correct in predicting that
the accusation process alone sufficiently protects alleged
violators' procedural due process rights, the court's focus on due
process misses the point at issue. The core concern here is not
one of procedural notice or fairness; rather it involves the
personnel board's statutory authority.
The legislature has created a new species of ethical
offenses that are punishable by substantial penalties; these
penalties apply over and above any sanction that can be directly
meted out through ordinary personnel actions taken by a state
worker's employing agency. Jurisdiction over this new class of
misconduct is vested in the personnel board. But the board's
authority to act depends upon the existence of a properly filed
charge. When the attorney general improperly bypasses the
requisite first step of the charging process and directly engages
the second by filing an accusation that has not been preceded by a
complaint and a formal determination of probable cause, that
accusation is not properly before the board, and, lacking authority
to hear the new accusations, the board cannot properly find new
violations.
Thus, while I agree with the court's disposition of other
violations, I would vacate all counts of misconduct reflecting
Skvorc's involvement with the Canadian DFO.
FOOTNOTES
Footnote 1:
AS 39.52.010 et seq.
Footnote 2:
See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
Footnote 3:
Id. (citing Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska
1975)).
Footnote 4:
See id.
Footnote 5:
Cf. Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274,
284-85 (Alaska 1994) (holding that commission did not abdicate its
responsibility by adopting hearing officer's recommendations).
Footnote 6:
Handley, 838 P.2d at 1233.
Footnote 7:
See AS 39.52.350.
Footnote 8:
See AS 39.52.230 (reporting of potential violation to
supervisor); AS 39.52.310(a) (permitting attorney general to
"initiate" complaint or "elect to treat as a complaint" any matter
disclosed in a report or request for advisory opinion).
As of 1995, AS 39.52.230 provided:
A person may report to a public officer's
designated supervisor, under oath and in writing, a potential
violation of AS 39.52.110 - 39.52.190 by the public officer. The
supervisor shall provide a copy of the report to the officer who is
the subject of the report, and shall review the report to determine
whether a violation may exist. The supervisor shall act in
accordance with AS 39.52.210 or 39.52.220 if the supervisor
determines that the matter may result in a violation of AS
39.52.110 - 39.52.190.
As of 1995, AS 39.52.310 provided in pertinent part:
(a) The attorney general may initiate a
complaint, or elect to treat as a complaint any matter disclosed
under AS 39.52.210, 39.52.220, 39.52.250, or 39.52.260.
(b) A person may file a complaint with the
attorney general regarding the conduct of a current or former
public officer. A complaint must be in writing, be signed under
oath, and contain a clear statement of the details of the alleged
violation.
Those statutes were amended in 1998 in ways not material
here. See sec.sec. 90, 93-95, ch. 74 SLA 1998.
Footnote 9:
AS 39.52.350(a). That section provides in part:
If the attorney general determines that there
is probable cause to believe that a knowing violation of this
chapter or a violation that cannot be corrected under AS 39.52.330
has occurred, or that the subject of a complaint failed to comply
with a recommendation for corrective or preventive action, the
attorney general shall initiate formal proceedings by serving a
copy of an accusation upon the subject of the accusation.
(Emphasis added.)
Footnote 10:
Id.
Footnote 11:
Id.
Footnote 12:
AS 39.52.310, the provision of the Ethics Act governing
complaints, explicitly discusses the content of complaints filed by
individuals but not by the attorney general:
(a) The attorney general may initiate a
complaint, or elect to treat as a complaint any matter disclosed
under [the disclosure provisions of this Act].
(b) A person may file a complaint with the
attorney general regarding the conduct of a current or former
public officer. A complaint must be in writing, be signed under
oath, and contain a clear statement of the details of the alleged
violation.
. . . .
(d) The attorney general shall review each
complaint filed, to determine whether it is properly completed and
contains allegations which, if true, would constitute conduct in
violation of this chapter.
. . . .
(f) If the attorney general accepts a
complaint for investigation, the attorney general shall serve a
copy of the complaint upon the subject of the complaint, for a
response . . . .
(g) If a complaint is accepted . . . the
attorney general shall investigate to determine whether a violation
of this chapter has occurred.
Footnote 13:
863 P.2d 838 (Alaska 1993).
Footnote 14:
See id. at 840-41.
Footnote 15:
Skvorc also relies on the dissenting
opinion in D.M. v. State, Division of Family and Youth Services, __
P.2d __, Op. No. 5230 (Alaska, Jan. 14, 2000). That case concerned
the state's failure to give a mother pre-hearing notice that it
would ask the court to follow a procedure potentially prejudicing
her parental rights. But Skvorc does not claim that he had
inadequate notice of the procedure governing the hearing or, except
for Count XXII, the charges to be heard.
Footnote 16:
This argument concerns Counts I-VII, IX,
XI, and XVII of the amended accusation.
Footnote 17:
See AS 39.52.210(b).
Footnote 18:
See AS 39.52.210(b): "A public employee's
designated supervisor shall make a written determination . . . ."
Footnote 19:
AS 39.52.210(a).
Footnote 20:
Cf. AS 39.52.240(d) (shielding public
officers from liability once they receive approval based on full
disclosure).
Footnote 21:
AS 39.52.120 provides in relevant part:
(a) A public officer may not use, or attempt
to use, an official position for personal [Fn. 30]gain, and may not
intentionally secure or grant unwarranted benefits or treatment for
any person.
(b) A public officer may not
(1) seek other employment or contracts
though the use or attempted use of official position. . . .
Footnote 22:
AS 39.52.960(14) defines "official action" as "a
recommendation, decision, approval, disapproval, vote, or other
similar action, including inaction, by a public officer."
Footnote 23:
See AS 39.52.120.
Footnote 24:
AS 39.52.140(a) provides:
A current or former public officer may not
disclose or use information gained in the course of, or by reason
of, the officer's official duties that could in any way result in
the receipt of any benefit for the officer or an immediate family
member, if the information has not also been disseminated to the
public.
Footnote 25:
9 Alaska Administrative Code (AAC) 52.070 provides:
(a) For purposes of AS 39.140, information
has been disseminated to the public if it has been published
through newspaper publication; broadcast media; a press release; a
newsletter; a legal notice; a nonconfidential court filing; a
published report; a public speech; or public testimony before the
legislature, a board, or a commission.
(b) Information that is available to the
public but that has not been published as described in (a) of this
section has not been disseminated to the public.
Footnote 26:
See AS 39.52.010.
Footnote 27:
AS 39.52.940 provides: "This chapter shall be construed to
promote high standards of ethical conduct in state government."
Footnote 28:
AS 39.52.120(b)(2) provides that a public officer may not
"accept, receive, or solicit compensation for the performance of
official duties or responsibilities from a person other than the
state."
Footnote 29:
AS 39.52.960(7).
Footnote 30:
Id.
FOOTNOTES (Concurrence / Dissent)
Footnote 1:
At all times applicable in Skvorc's case, this provision made
violation of the confidentiality provision a class A misdemeanor.
See former AS 39.52.340(a) (1986). Article 4 of the Ethics Act was
extensively amended in 1998, and the misdemeanor penalty was then
deleted. See AS 39.52.340(a), as amended by ch. 74, sec. 98, SLA
1998.
Footnote 2:
See AS 39.52.350(c)-(d); AS 39.52.360; AS 39.52.370.
Footnote 3:
Op. at 8.
Footnote 4:
Op. at 8-9 (footnote omitted).
[Fn. 4]
