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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Benavides v. State (11/17/2006) sp-6073
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RICHARD BENAVIDES, on behalf | ) |
| of himself and all others similarly | ) Supreme Court No. S-11983/12033 |
| situated, | ) |
| ) Superior Court No. | |
| Appellants, | ) 3AN-04-9267 CI |
| ) 3AN-02-11977 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA and ALASKA | ) |
| LEGISLATIVE COUNCIL, | ) No. 6073 - November 17, 2006 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Rex Lamont Butler and David E.
George, Rex Lamont Butler & Associates, Inc.,
Anchorage, for Appellants. David T. Jones,
Assistant Attorney General, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Richard Benavides is an Anchorage resident who is
required to spend the legislative session in Juneau as a
condition of his employment. Benavides receives a salary but
does not receive a per diem allowance for the time spent in
Juneau. Benavides brought this class action alleging that the
Alaska Legislative Councils failure to grant such an allowance
violates AS 24.10.130. The superior court rejected Benavidess
claims. Because we conclude that the current per diem policy
complies with the statute, we affirm the judgment of the superior
court.
II. FACTS AND PROCEEDINGS
A. Facts
Richard Benavides has worked as a legislative aide to
Senator Bettye Davis since January 2001. Benavides lives in
Anchorage but is required as a condition of employment to spend
the legislative session in Juneau. Alaska Statute 24.10.130
provides, in relevant part:
(b) Legislators and officers and employees of
the legislative branch of government are
entitled to a per diem allowance.
(c) The Alaska Legislative Council shall
adopt a policy regarding reimbursement for
moving expenses applicable to all legislators
and an applicable per diem allowance policy.
The policy must set conditions for the
reimbursement for moving expenses and payment
of per diem and prescribe the amounts of
reimbursement adapted to the special needs of
the legislative branch as determined by the
council.
Pursuant to this statutory mandate, the Alaska Legislative
Council has established a policy delineating per diem allowances
and reimbursement levels and procedures for legislators and
staff.1 Under this policy, legislators receive session per diem
payments for time spent in Juneau during the legislative session.
Legislators also receive per diem payments for time spent
returning to their districts during the session and for other
business travel. However, legislative employees receive no
session per diem and are entitled to reimbursement only for
travel on legislative business.
B. Proceedings
In October 2002 Benavides filed a class action
complaint on behalf of himself and similarly situated legislative
employees against the state and the Legislative Council. The
complaint alleged breach of statutory duty to pay session per
diem and allowances to legislative staff, breach of contract, and
violation of the Administrative Procedures Act (APA). The
complaint sought a declaratory judgment and class damages. In
April 2003 the state and council moved to dismiss under Alaska
Civil Rule 12(b)(6) for failure to state a claim. In October
2003 Superior Court Judge Morgan Christen granted defendants
motion to dismiss as to the claim for violation of the APA, and
stayed the remaining claims pending Benavidess pursuit of
administrative remedies.
While his action in state court was pending, Benavides
filed an administrative claim with the Department of Law in May
2003. The claim was initially denied and Benavides appealed to
the Department of Administration. In May 2004 the Department of
Administration found in favor of the state and the council. The
hearing officer acknowledged that the statute provided for per
diem allowance, but stated that the fact the Councils policy does
not provide per diem allowances to legislative employees that are
identical to those legislators receive is not a violation of the
plain language of AS [24.10.130(b)]; rather it is an instance of
the Councils exercise of the authority granted at AS
[24.10.130(c)].
Benavides appealed to the superior court. Judge
Christen affirmed the departments decision in May 2005, holding
the policy to be within the statute. In July 2005 the court
lifted the stay in the parallel proceeding and granted summary
judgment to the state and council on Benavidess remaining claims.2
Benavides appeals the superior courts affirmance of the
departments decision and the superior courts dismissal of his
other claims. We consolidated the appeals by our order of
September 1, 2005.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate
appellate court, we undertake an independent review of the agency
determination, and we may affirm the decision below on any ground
supported by the record.3 We apply our independent judgment to
questions of statutory interpretation if a decision does not
involve an agencys special expertise,4 adopting the rule of law
that is most persuasive in light of precedent, reason, and
policy.5 If a statute is ambiguous we apply a sliding scale of
interpretation, where the plainer the language, the more
convincing contrary legislative history must be. 6 We review
agency findings of law requiring agency expertise under the
reasonable basis standard.7 In reviewing grants of summary
judgment, we draw all factual inferences in favor of the party
against whom summary judgment was granted.
IV. DISCUSSION
A. The Department of Administration Correctly Concluded
that AS 24.10.130 Does Not Entitle Legislative
Employees to Session Per Diem.
1. The text of the statute supports the council
policy.
The parties offer competing interpretations of AS
24.10.130. The statute provides:
(a) A member of the legislature is entitled
to reimbursement for the expenses of moving
between the members place of residence and
the capital city for the purpose of attending
a regular session of the legislature.
(b) Legislators and officers and employees of
the legislative branch of government are
entitled to a per diem allowance.
(c) The Alaska Legislative Council shall
adopt a policy regarding reimbursement for
moving expenses applicable to all legislators
and an applicable per diem allowance policy.
The policy must set conditions for the
reimbursement for moving expenses and payment
of per diem and prescribe the amounts of
reimbursement adapted to the special needs of
the legislative branch as determined by the
council.
The councils policy provides legislators with a per
diem allowance during the legislative session but does not
provide this allowance to legislative employees. Legislative
employees only receive per diem if traveling on state business
other than to the legislative session.
Benavides argues that, because the statute mentions
legislators, officers, and employees in the same breath, each of
these classes of people should be entitled to the same per diem
allowance. Therefore, he argues, if the Legislative Councils
policy grants per diem payments to legislators during their time
in Juneau, the statute requires that the same payments be made to
legislative staff. The state argues that the policy that the
council adopted satisfies the statutory mandate because the
statute only requires that legislative employees be provided with
a per diem allowance, not that they be provided with the same
allowance that is provided to legislators. Benavides concedes
that the states reading has a thin veneer of plausibility.
Our inquiry into whether the councils policy satisfies
AS 24.10.130 begins with the text of the statute. We interpret
Alaska law according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law as
well as the intent of the drafters.8 When we interpret a
statutes language, unless words have acquired a peculiar meaning,
by virtue of statutory definition or judicial construction, they
are to be construed in accordance with their common usage.9
Blacks Law Dictionary has defined per diem as an allowance or
amount of so much per day.10
Benavidess interpretation of the language of the
statute seems strained at best. He argues that the use of the
language a per diem allowance in AS 24.10.130(b), and the
language an applicable per diem allowance policy in AS
24.10.130(c), should be read to require that a unitary system
must apply to legislators and staff, and thus that session per
diem should be granted to staff if it is granted to legislators.
But subsection (a) of the statute provides that legislators but
not staff will be entitled to relocation expense reimbursement;11
thus the statute clearly contemplates different reimbursement
arrangements for legislators and their staff.
The statute is vague in that it requires only a per
diem allowance; it does not require that both legislators and
staff receive session per diem. Defining the level of
compensation is statutorily delegated to the council. The
council has decided that although legislators may receive an
allowance during the session, reimbursement for travel back to
their districts during the session, and reimbursement for other
business travel, legislative staff may only receive an allowance
for the latter category. Although legislative staff do not
receive the full allowance accorded legislators, it does not
follow that they have been denied a per diem allowance that is
required by the statute.
The state recites a litany of past practices consistent
with the current council policy. Most importantly, it notes that
session per diem for legislators has a constitutional basis12 and
that the Legislature has viewed legislators receipt of session
per diem as a trade-off for an annual salary on the low end of
the salary schedule. This dovetails with our conclusion in
Laborers and Hod Carriers Union, Local 341 v. Groothius13 that per
diem and salary are merely two sides of the same coin of total
compensation.14 The council and legislature have decided that the
compensation mix will be tilted toward per diem in the case of
legislators but mostly made up of salary in the case of
legislative employees.
Benavides takes issue with the fairness of the
Legislative Council policy, declaring that legislators have made
nothing more than a gratuitous payment to themselves that is
arbitrary and unreasonable. The fairness or wisdom of the
policy, however, is not for a court to determine; we consider
only compliance with the statute. As the superior court noted,
we have held that [i]t is not a courts role to decide whether a
particular statute or ordinance is a wise one; the choice between
competing notions of public policy is to be made by elected
representatives of the people.15 This holds especially true where
the policy in question is a creature of the legislatures internal
affairs.
2. Legislative history does not conflict with the
council policy.
Since the plain language of AS 24.10.130 encompasses
the interpretation that the council has given it, we generally
will not adopt an alternative interpretation unless presented
with clear legislative history to the contrary.16 Benavides
argues that a comparison of AS 24.10.130 with former AS 24.10.105
the legislatures previous statute covering per diem demonstrates
the legislatures intention to provide equal per diem compensation
to legislators and staff because the amended statute, unlike its
predecessor, specifically refers to staff per diem allowances.17
By including legislative employees in the new statute, the
argument goes, the legislature must have intended to provide
employees a greater per diem allowance. But the former statute
is quite similar to the current council policy, in that the
former statute specified the circumstances under which certain
per diem rates would be used. As the state argues, this
similarity is evidence of delegation. Abandoning the previous
informal framework, the legislature wanted rates to be set
administratively, so it transferr[ed] authority for determining
per diem rates and policies for the entire legislative branch
from the Department of Administration to the Legislative Council.
The legislative history of the amendment is both
complicated and vague, and certainly is not clear enough to rebut
the conclusion that the plain language allows the councils
interpretation. The language was the fifty-second section of a
ninety-two section omnibus bill.18 As the state notes, some
legislative history indicates that the legislative council was
dissatisfied with the way the Department of Administration was
handling per diem rates, thus indicating a motivation to transfer
the authority to set those rates.19 The most compelling committee
statement on the section was that of Representative Kay Brown,
who stated no one here is sure why this section is in the bill or
what its supposed to be doing.20 Under our standards of statutory
interpretation, we are unable to conclude that the plain text of
the statute should be overcome by this legislative history. The
plain text of the statute, taken together with legislative
history and past practice, clearly demonstrates that a reasonable
basis exists for the councils interpretation of the statute.
B. The Superior Court Correctly Dismissed Benavidess
Remaining Claims.
Benavidess remaining claims all assert the same basic
statutory argument as his administrative claim. Benavides argues
that AS 24.10.130 creates a private right of action and that the
legislatures failure to pay session per diem to staff is a breach
of his employment contract. He further requests a trial de novo
on damages, asserting a right to receive back per diem dating to
the enactment of the current statute in 1994. All of Benavidess
additional claims of error are dependent on the success of his
claim that he was entitled to session per diem. Because we have
concluded that AS 24.10.130 does not entitle legislative
employees to session per diem, we need not reach the merits of
Benavidess other arguments.
V. CONCLUSION
The superior court did not err in denying Benavidess
administrative claim. The superior court correctly granted
summary judgment on Benavidess other claims. Accordingly we
AFFIRM the judgment of the superior court.
_______________________________
1 The relevant parts of the policy state:
Session Per Diem
Legislators, except those whose place of
permanent residence is within 50 miles of the
Capitol, are entitled to a daily per diem at
the federal rate during a legislative
session. Legislators who permanently reside
within 50 miles of the Capitol receive 75% of
the federal per diem rate for each day of a
legislative session. Legislators are
reimbursed for travel, per diem, or actual
expenses . . . in accordance with guidelines
established by the presiding officers or
authorizers of the travel . . . .
Travel Per Diem or Reimbursement
. . . .
A Legislator or Legislative employee on
legislative business is entitled to receive
travel per diem or meal allowances and
reimbursement for other actual expenses in
accordance with guidelines established by the
presiding officers or the authorizer of the
travel.
. . . .
Employees based in Juneau during a regular
session do not receive per diem during the
session. An employee based in a location
other than Juneau during the session may
receive reimbursement for travel per diem and
expenses in Juneau if approved by the
Presiding Officer. Special session per diem
in Juneau may be authorized if approved by
the Presiding Officer.
2 The superior court alternatively dismissed Benavidess
claims under Civil Rule 12(b)(6) for failure to state a claim
upon which relief may be granted.
3 Conkey v. State, Dept of Admin., Div. of Motor
Vehicles, 113 P.3d 1235, 1237 (Alaska 2005).
4 State, Dept of Revenue v. Municipality of Anchorage,
104 P.3d 120, 122 (Alaska 2004).
5 Id.
6 Tesoro Petroleum Corp. v. State, 42 P.3d 531, 537
(Alaska 2002) (citations omitted).
7 Leuthe v. State, Commercial Fisheries Entry Commn, 20
P.3d 547, 550 (Alaska 2001). We agree with the state that the
reasonable basis standard which gives the councils policy some
deference is appropriate because the adoption of the policy is
an exercise of the councils delegated statutory authority and
because the council, made up of legislators, therefore possesses
special expertise in gauging the special needs of the legislative
branch. (We give no such deference to the Department of
Administrations ruling, and none has been urged by the parties.)
We apply the independent judgment standard to the Department of
Administrations ruling.
8 Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).
9 Govt Employees Ins. Co. v. Graham-Gonzalez, 107 P.3d
279, 284 (Alaska 2005).
10 Blacks Law Dictionary 1136 (6th ed. 1990).
Appropriately enough, the entry continues: For example, state
legislators are often given a per diem allowance to cover
expenses while attending legislature sessions.
11 AS 24.10.130(a) provides, A member of the legislature
is entitled to reimbursement for the expenses of moving between
the members place of residence and the capital city for the
purpose of attending a regular session of the legislature.
12 See Alaska Const. art. II, 7 (legislators may receive
a per diem allowance for expenses while in session and are
entitled to travel expenses going to and from sessions).
13 494 P.2d 808 (Alaska 1972).
14 Id. at 810 (stating that the definition of the words
per diem and wages are sufficiently similar that to make the
existence of an employment relationship turn on this point would
be unrealistic).
15 Concerned Citizens of S. Kenai Peninsula v. Kenai
Peninsula Borough,
527 P.2d 447, 452 (Alaska 1974).
16 See, e.g., State, Dept of Natural Res. v. City of
Haines, 627 P.2d 1047, 1049 (Alaska 1981) ([T]he party seeking to
dissuade us from giving the statute its apparent meaning must
demonstrate that the legislative history reveals some hidden
ambiguity in the legislatures usage of terms, and resolves that
ambiguity in that partys favor.).
17 Former AS 24.10.105 provides, in relevant part:
(a) Each member of the legislature is
entitled to receive per diem at the same rate
allowed for a state employee under AS
39.20.110 and 39.20.160, including variations
in the rate where applicable.
(b) A legislator is entitled to
receive per diem at the
short-term rate
(1) during a legislative session if he
does not live in his place of permanent
residence during the session; and
(2) while he is on committee business
for an interim committee of the legislature
in a place which is not his place of
permanent residence.
(c) A legislator is entitled to receive per
diem at the long-term rate
(1) during a legislative session if he
lives in his place of permanent residence
during the session; and
(2) while he is engaged in committee
business for an interim committee of the
legislature at his place of permanent
residence.
18 Ch. 63, 52, SLA 1993. The title of the bill was:
An Act relating to licenses, certificates,
permits, and programs administered and fees
charged by the Alcoholic Beverage Control
Board, the office of public advocacy, the
Alaska Commission on Postsecondary Education,
the Department of Fish and Game, the
Department of Labor, the Alaska Police
Standards Council, the Department of Natural
Resources, and the Department of
Environmental Conservation; relating to
moving expenses for legislators; relating to
motor vehicle registration and insurance and
the definition of vehicle; relating to the
administration of the state insurance
catastrophe reserve account; requiring
proration of certain state payments; relating
to fiscal reporting and accounting by the
Department of Administration; relating to the
provision of group life or group health
insurance for state employees; authorizing
the Department of Natural Resources to accept
certain donations for parks and recreation;
extending the suspension of certain tax
credit provisions; relating to coverage of
persons under Medicaid and revising the order
of priority for coverage of optional medical
services under Medicaid; providing for
extensions of certain state leases; changing
the number of days required for issuance of a
denial of an intrastate application by the
Alaska Public Utilities Commission from 90 to
180 days; and amending Alaska Rule of Probate
Procedure 16(d); and providing for an
effective date.
Id. (emphasis added).
19 As Representative Mulder, the sponsor of the amendment,
noted, [T]hats what this amendment would do, is transfer that
authority from the Department of Administration to Leg. Council
so we can have a . . . consistent per diem rate. Tr. House Floor
Sess. 2 (May 10, 1993).
20 Tr. H. Fin. Comm. Meeting 8 (May 9, 1993).
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