Skvorc v. State Personnel Bd., No. S-8398.

CourtSupreme Court of Alaska (US)
Writing for the CourtEASTAUGH, Justice.
Citation996 P.2d 1192
PartiesPaul A. SKVORC, II, Appellant, v. STATE of Alaska, PERSONNEL BOARD, Appellee.
Decision Date03 March 2000
Docket NumberNo. S-8398.

996 P.2d 1192

Paul A. SKVORC, II, Appellant,
v.
STATE of Alaska, PERSONNEL BOARD, Appellee

No. S-8398.

Supreme Court of Alaska.

March 3, 2000.


Rehearing Denied April 24 and 28, 2000

996 P.2d 1195
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.

OPINION

EASTAUGH, Justice.

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.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

996 P.2d 1196
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 hire him or fund his work. Skvorc told Simpson 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

996 P.2d 1197
it acted as an intermediate court of appeal.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.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.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.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."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.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

996 P.2d 1198
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...

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2 practice notes
  • RBG Bush Planes, LLC v. Alaska Pub. Offices Comm'n, No. S–15397.
    • United States
    • Supreme Court of Alaska (US)
    • November 25, 2015
    ...West v. Municipality of Anchorage,174 P.3d 224, 226 (Alaska 2007)) (internal quotation marks omitted).17 Skvorc v. State, Pers. Bd.,996 P.2d 1192, 1196–97 (Alaska 2000)(quoting Handley v. State, Dep't of Revenue,838 P.2d 1231, 1233 (Alaska 1992)).18 Southwest Marine, Inc. v. State, Dep't of......
  • Alexie v. State, Court of Appeals No. A-9941 (Alaska App. 4/15/2009), Court of Appeals No. A-9941.
    • United States
    • Court of Appeals of Alaska
    • April 15, 2009
    ...Soc. Servs., 71 P.3d 811, 821(Alaska 2003). 18. Alaska R. Prof. Conduct 1.10 cmt., para. 3. 19. Compare Skvorc v. State, Personnel Bd., 996 P.2d 1192, 1206 (Alaska 2000) (finding no conflict of interest where one assistant attorney general advised an agency board while another assistant att......
2 cases
  • RBG Bush Planes, LLC v. Alaska Pub. Offices Comm'n, No. S–15397.
    • United States
    • Supreme Court of Alaska (US)
    • November 25, 2015
    ...West v. Municipality of Anchorage,174 P.3d 224, 226 (Alaska 2007)) (internal quotation marks omitted).17 Skvorc v. State, Pers. Bd.,996 P.2d 1192, 1196–97 (Alaska 2000)(quoting Handley v. State, Dep't of Revenue,838 P.2d 1231, 1233 (Alaska 1992)).18 Southwest Marine, Inc. v. State, Dep't of......
  • Alexie v. State, Court of Appeals No. A-9941 (Alaska App. 4/15/2009), Court of Appeals No. A-9941.
    • United States
    • Court of Appeals of Alaska
    • April 15, 2009
    ...Soc. Servs., 71 P.3d 811, 821(Alaska 2003). 18. Alaska R. Prof. Conduct 1.10 cmt., para. 3. 19. Compare Skvorc v. State, Personnel Bd., 996 P.2d 1192, 1206 (Alaska 2000) (finding no conflict of interest where one assistant attorney general advised an agency board while another assistant att......

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