author: CARPENETI, Justice.

text:
    Randy S. DOUGAN, Appellant/Cross-Appellee, v. AURORA ELECTRIC INC., Eagle Pacific Insurance, Alaska Workers' Compensation Board, Appellees/Cross-Appellants.
    Nos. S-9937, S-9958.
    Supreme Court of Alaska.
    June 28, 2002.

      Randy Dougan, pro se, Eagle River.
    Joseph M. Cooper, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage for Appel-lees/Cross-Appellants.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Randy S. Dougan sustained work-related injuries during his employment with Aurora Electric. The Alaska Workers' Compensation Board heard and resolved his claims. Dougan appealed the board's decision to the superior court. Dougan now appeals the superior court's decisions that he was not entitled to penalties and interest on his award and that thirteen of his fifteen claims should be dismissed. Aurora cross-appeals the decision by the superior court that the board wrongly denied Dougan a compensation rate adjustment.

We affirm the denial of penalties and interest because substantial evidence supports that decision. We affirm dismissal of eleven of the claims because, although the court erred in dismissing them for inadequate briefing without giving the pro se litigant an opportunity to correct the briefing, the error was harmless in the cireumstances of this case. We remand to the board the remaining two claims dismissed by the superior court for factual determinations. Finally, we reverse the decision remanding the compensation rate adjustment to the board for re-computation because the board's computation was proper under AS 23.30.220 as it has been amended.

II. FACTS AND PROCEEDINGS

A. Facts

Randy Dougan sustained an injury to his lower back on November 1, 1996 while working as an electrician for Aurora Electric. Dougan saw Dr. Edward M. Voke for this back injury a few days later. The doctor diagnosed Dougan with acute lumbosacral facet syndrome, an inflammation of the articulations between the vertebrae. Dougan was placed on temporary disability beginning on November 5, 1996, throughout which time he was periodically paid either temporary total disability (TTD) or temporary partial disability (TPD). Dougan's gross weekly earnings were calculated under AS 23.30.220(4)(A) using the thirteen weeks between July 27, 1996 and November 2, 1996.

Dr. Voke referred Dougan to Dr. Michael James on December 9, 1996 for a condition that Dr. Voke diagnosed as chronic low back pain. Dougan continued to be unable to work and received either TTD or TPD until January 8, 1997 when Dr. James stated that Dougan could return to light work, which was available to him. Benefits were suspended on January 9, 1997. However, on February 19, 1997, Dr. James reported that no light work had been available, resulting in Dougan not working during the previous month. That same day, Dr. James released Dougan to work as an electrician without limitation from that day forward. Although Dougan's benefits were suspended on January 9, 1997 when he was released to light duty, his inability to find such work resulted in the reinstatement of his benefits from January 31, 1997 to February 19, 1997. With Dr. James's release to full duty, though, Dougan's benefits were suspended starting February 20, 1997. Dougan eventually received benefits for January 9, 1997 through January 31, 1997 with penalties, due to Aurora's delay in payment.

Dr. James determined that Dougan was medically stable and could return to medium work on April 21, 1997. Because of Dr. James's finding of medical stability, benefits were reinstated for the time between the last suspension, February 20, 1997, to Dougan's date of stability, April 20, 1997. Benefits were then suspended on April 21, 1997. Eventually, Aurora paid benefits for the time between Dougan's first release to full duty and Dr. James's finding of medical stability, February 20, 1997 to April 20, 1997, with penalties. On April 29, 1997, Dr. James reported that Dougan had a Permanent Partial Impairment (PPT) rating of five percent and Aurora paid Dougan a lump sum pursuant to the PPI rating on May 18, 1997.

On June 20, 1997 Dr. Lee B. Silver examined Dougan for an Employer Medical Evaluation (EME) and concluded that Dougan was medically stable and could return to work as an electrician with no restrictions. Dr. Silver also concluded that Dougan had a PPI of zero percent and that he required no further medical treatment. On July 11, 1997 Aurora controverted all benefits due on the basis of Dr. James's April 29, 1997 report and Dr. Silver's June 24, 1997 report. Aurora eventually paid Dougan all benefits due to him.

In May 1997 Dougan stopped treatment with Dr. James and started treatment with Dr. Samuel H. Schurig. On June 18, 1997 Dr. Schurig stated that Dougan was medically stable; however, on June 24 he found that Dougan was not medically stable but that he could return to light work as it became available. On September 29, 1997, Dr. Schurig stated that Dougan was still medically unstable but was continuing to show improvement.

A second independent medical evaluation (SIME) was performed by Dr. Douglas G. Smith on January 283, 1998. Dr. Smith stated that, due to Dougan's objective improvement while under Dr. Schurig's care, a medical stability date of November 1, 1997 was justified. Aurora subsequently paid TTD benefits for April 21, 1997 through May 15, 1997 with interest and penalties and TTD benefits for May 16, 1997 through November 4, 1997 with interest. Aurora also paid all medical bills for treatment prior to the SIME report. Some of Dr. Schurig's bills were returned to his office because they were lacking information. Dr. Schurig's office resubmitted the bills with the requested information on June 11, 1998 and the bills were paid on June 23, 1998.

B. Proceedings

Dougan filed a petition with the Alaska Workers' Compensation Board in April 1997 making several allegations of misconduct against Aurora and its insurer in the handling of his claim. Dougan also requested "a PPI rating by Dr. Schurig, a compensation rate adjustment, and penalties and interest on TTD, PPI and medical benefits." In September 1997 Dougan filed an Application for Adjustment of Claim, requesting TTD benefits from April 21, 1997 on, with penalties, interest, medical costs, and transportation costs. Dougan alleged that Aurora unfairly and frivolously controverted his claims. In addition to these petitions, Dougan filed several petitions alleging misconduct by Aurora, violations of the Alaska Workers' Compensation Act, and civil and criminal causes of action.

In May 1999 the board determined after oral argument that it did not have authority to adjudicate the civil, constitutional, or erim-inal claims. The board concluded that, in criminal matters, its authority was limited to referring matters to the proper authorities if a violation became apparent during the course of the proceedings. A second hearing was held on October 21, 1999 to determine the substantive workers' compensation issues of Dougan's claims. On the substantive issues, the board ruled that: (1) Dougan was not entitled to penalties for late-paid time-loss compensation, medical benefits and PPI benefits; (2) Dougan was not entitled to interest for late-paid time-loss compensation, medical benefits and PPI benefits; (8) Aurora did not unfairly or frivolously controvert Dougan's claims; (4) Dougan was not entitled to a compensation rate adjustment; (5) Dougan was not entitled to a PPI rating by Dr. Schurig-the board dismissed this issue without prejudice; (6) Dougan's request that the board refer allegations of misconduct to other agencies and authorities was denied.

Dougan appealed the board's order to the superior court, raising fifteen issues. The superior court held that Dougan abandoned thirteen of the issues because these issues were not adequately briefed or were not listed in the points on appeal. The two remaining issues were whether the board properly found that Dougan was not entitled to penalties and interest on late-paid benefits and whether the board properly denied Dougan a compensation rate adjustment. The superior court held that the board properly. denied interest and penalties to Dougan. The issue of whether a compensation rate adjustment was due was remanded for a determination under Gilmore v. Alaska Workers' Compensation Board of whether Dougan's past employment history is an accurate predictor of losses due to injury.

Dougan appealed the superior court's ruling. Aurora filed a cross-appeal claiming that the superior court improperly ruled that the board erred in finding that no compensation rate adjustment was due.

III. STANDARD OF REVIEW

When the superior court acts as an intermediate court of appeal in an administrative matter, we independently review and directly scrutinize the merits of the board's decision. We review procedural decisions of the superior court under an abuse of discretion standard. We will reverse a ruling for abuse of discretion only when, after reviewing the whole record, we are left with a definite and firm conviction that the superior court erred.

Factual findings made by the board are reviewed under the "substantial evidence" standard. Factual findings will be upheld so long as there is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Discovery rulings are generally reviewed for abuse of discretion.

In questions of law involving the agency's expertise, a rational basis standard will be applied and we will defer to the agency's determination as long as it is reasonable. We will substitute our own judgment for questions of law that do not involve agency expertise. Constitutional questions are questions of law for which we will substitute our own judgment. We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy.

IV. DISCUSSION -

There is a threshold issue: whether this claim is properly before this court. The superior court remanded the issue of whether Dougan was entitled to a compensation rate adjustment to the board. We have held that when a superior court acts as an intermediate appellate court and reverses and remands an agency ruling, the superior court's decision is not a final judgment. Under the appellate rules, an appeal as a matter of right may not be maintained when no final order has been issued by the superi- or court. However, we have the discretion to treat this as a petition for review pursuant to Appellate Rule 402. We may review a non-final judgment when postponement of review will result in undue delay. Because we find that both the board and the superior court applied a test that is superfluous and that remanding the issue back to the board will result in undue delay, we treat this appeal as a petition for review and grant the petition so as to reach the merits.

A. -The Superior Court Did Not Err in Finding that the Board Properly Denied Penalties and Interest.

Dougan claims that the board erred in denying him penalties and interest on compensation payments controverted by Aurora. An employee is entitled to interest on compensation that is not paid when due. An employee is also entitled to penalties on compensation due if compensation is not properly controverted by the employer. We have held that an employer must have evidence that would justify denial of a compensation award in order to make a good faith controversion. Specifically, there must be "reliance by the insurer on responsible medical opinion or conflicting medical testimony."

The board found that Aurora properly controverted all benefits on July 11, 1997 on the basis of Dr. James's report and Dr. Silver's report. The board also found that Aurora eventually agreed to the payment of compensation for the period of April 21, 1997 through November 4, 1997, but properly postponed payment until Dougan's employment activities for that period were confirmed. The board found that penalties and interest were properly paid and that neither further penalties nor further interest was due. The board found that Dr. Schurig's bills were paid within the requisite time after re-submission with the requested information. The superior court upheld the board's findings using the substantial evidence standard.

Dougan also claims that the board failed to award penalties under AS 28.30.250. The board found that it was without jurisdiction to award penalties under this statute. Alaska Statute 28.30.250 provides that one who makes a false or misleading statement is "civilly liable to a person adversely affected by the conduct." The "civilly liable" portion of AS 28.30.250(a) is in reality not a penalty provision but a legislative declaration that one who engages in certain specific conduct will be liable in a civil action to a person adversely affected by the conduct. Alaska Statute 28.30.250(a) implies that the civil action should be brought in court rather than before the board both by the term "civilly liable" and by the conjunction of that term with the other provisions of subsection 250(a) which refer to criminal penalties which obviously must be adjudicated in court. This conclusion is bolstered by the fact that AS 23.830.250(b) expressly relates to remedies that the board can impose upon a finding that a claimant has made a false or misleading statement. Therefore the board did not err in denying Dougan a remedy for civil penalties under AS 28.30.250(a).

All interest payments due were paid by Aurora. Dougan offers no time period for which he claims he is specifically owed interest on compensation payments. According to the facts found by the board and stated above, compensation has been paid for the entire period that Dougan was injured, November 1, 1996 through November 4, 1997. Payments that were late due to controversion by Aurora for the periods of January 9, 1997 through January 30, 1997 and April 21, 1997 through November 4, 1997 have been paid with interest. Therefore, Dougan received the interest payments to which he was entitled.

The board had substantial evidence to find that Aurora controverted the claims in good faith and that Dougan is not owed penalties or interest. Therefore, we uphold the decision of the superior court finding that the board properly denied penalties and interest.

B. The Superior Court Erred in Dismissing Thirteen of Dougan's Fifteen Claims.

Dougan claims that the superior court improperly dismissed thirteen of his fifteen claims because his brief did not comply with the appellate rules. The superior court's decision offers very little explanation of the reasons for the dismissal. Only one concrete example of the briefing inadequacy was given for all thirteen claims. There is no indication that Dougan was given notice of the inadequacy and a chance to comply with the briefing requirements.

Under the appellate rules, the superior court could have given Dougan a chance to correct the brief. We have held that the briefs of a pro se litigant are held to a less stringent standard than those of attorneys. A judge must inform a pro se litigant "of the proper procedure for the action he or she is obviously attempting to accomplish." Specifically, a judge must notify a pro se litigant of defects in his or her brief and give the party an opportunity to remedy those defects. Here, before dismissing the claims, the superior court should have notified Doug-an of the defects in his brief and given him leave to correct those defects. Since Dougan made a good faith effort to comply with briefing requirements, we find that the superior court erred in dismissing thirteen of his fifteen claims.

We have reviewed de movo the thirteen claims that were dismissed. We find that, no matter how restated, eleven of these claims are meritless and we dismiss them as having no basis in the law. These eleven claims include alleged violations of Dougan's right to privacy and equal protection rights, the board's refusal to refer various violations to other agencies, Dougan's third-party immunity claim, Dougan's claim regarding the exclusive remedy provision of the Act, the board's finding that it was without jurisdiction to rule on Dougan's discrimination claim, and denial of Dougan's claims that the board failed to issue its opinion within thirty days, that his claim was heard by more than one panel, and that Dougan was entitled to a second permanent partial impairment rating. However, we find that two of his fifteen claims may proceed and we remand these claims to the board to make the appropriate findings.

First, Dougan's claim that his due process rights were violated by the board's failure to rule on his discovery requests requires hearing by the board. We have held that a fair and meaningful hearing, as required by due process, does require that the parties be given adequate access to information requested in discovery. The record indicates that Dougan filed three discovery requests: one on December 3, 1998, a second on December 17, 1998, and the last on February 17, 1999. In addition to his discovery requests, Dougan also demanded that the board compel discovery in petitions filed on December 17, 1998 and April 5, 1999, as well as in an objection filed on February 18, 1999. At the pre-hearing conference on March 5, 1999, the discovery issues were discussed and the parties agreed to defer the questions regarding discovery until the issues concerning the board's jurisdiction to hear Dougan's criminal and civil claims against Aurora were decided. In the board's order ruling that the board did not have jurisdiction to hear the criminal and civil claims, the board stated that discovery would not be compelled because evidence related to these issues "is not relevant to a material issue at [the] hearing." In his petition for reconsideration, Dougan again asked the board to reconsider his discovery request because "the referenced petition to compel discovery dated 12/17/98 does include other relevant issues." Also, in an objection filed on June 7, 1999, Dougan stated that his discovery request filed on February 17, 1999 was still disputed by the parties and had not been resolved by the board. We find no indication that the board ever addressed Dougan's requests.

Second, Dougan alleges that the board failed to include the value of his employer-provided health benefits in his compensation rate. Dougan claims that he was entitled to this adjustment under 8 AAC 45.220, which includes health benefits as peri-odie payments that are taken into account in determining an employee's compensation rate. In fact, the board has held that the statute "does not leave any discretion when calculating gross earnings" and that "health and life insurance benefits 'must be included as a periodic payment.' " Dougan raised this issue to the board in an amendment to a petition and the issue was discussed in a pre-hearing conference on March 18, 1999. Therefore, we remand this issue back to the board for a determination of whether Dougan is entitled to a compensation rate adjustment based on the amount of his employer-provided health benefits.

C. The Superior Court Erred in Remanding the Issue of a Compensation Rate Adjustment to the Board.

Aurora argues on cross-appeal that, because AS 23.30.220(a) has been amended, the case law that both the board and the superior court applied is no longer applicable. In Gilmore v. Alaska Workers' Compensation Board, we found that application of a prior version of AS 23.30.220 was unconstitutional under the Equal Protection Clause. The holding in Gilmore is largely based on the fact that wage determinations under the prior version of the statute based compensation rates exclusively on the average wage earned during a period of over a year without providing an alternate approach if the result was unfair. The amended version of AS 28.30.220 corrects that problem by providing a variety of formulas for differing employment situations. The board correctly applied the new version of AS 28.30.220(a) when it initially calculated Dougan's compensation rate. The amended statute closely follows the model law cited in Gilmore as an example of a statute that would not violate the Equal Protection Clause. The application of the test outlined by this court to deal with an unfair application of the statute is superfluous due to these amendments. Therefore, we reverse the superior court's remand of the compensation rate adjustment and hold that the Gilmore test is no longer necessary when the board's initial determination of compensation is based on the amended version of AS 23.20.220.

v. CONCLUSION

Because substantial 'evidence supported the superior court's decision to deny penalties and interest, we AFFIRM the denial of penalties and interest. Because the superior court dismissed Dougan's claims without providing him an opportunity to provide adequate briefing, we hold that the superior court erred in dismissing those claims. But reviewing the thirteen claims de novo, we hold that eleven of the claims are without merit and therefore AFFIRM the superior court's dismissal of them as harmless error. As to the remaining two claims (alleged violation of Dougan's due process rights by failing to rule on his discovery requests and alleged error in the compensation rate adjustment based on employer-provided health benefits), we REVERSE the superior court's dismissal and REMAND the claims to the board for factual determinations. Finally, we REVERSE the superior court's decision applying the Gilmore standard to the amended version of AS 28.30.220, because the Gilmore standard is not applicable to the revised statute; we reinstate the board's denial of a compensation rate adjustment.

      . The employer, Aurora Electric Inc., and its insurer, Eagle Pacific Insurance Group, will collectively be referred to as "Aurora" in this opinion.

      . 882 P.2d 922 (Alaska 1994).

      . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000); Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).

      . Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n. 4 (Alaska 1991).

      . Id.

      . DeYonge, 1 P.3d at 94.

      . Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 (Alaska 1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)).

      . Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998).

      . Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).

      . Id. at 903.

      . Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . City of North Pole v. Zabek, 934 P.2d 1292, 1295 (Alaska 1997) (citing City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979)).

      . See Alaska R.App. P. 202.

      . Zabek, 934 P.2d at 1296.

      . Alaska R.App. P. 402(b)(1).

      . 8 AAC 45.142.

      . AS 23.30.155.

      . Harp v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska 1992).

      . Id. (internal quotations and citations omitted).

      . AS 23.30.250(a).

      . For a further discussion of the Board's factual findings see Part IV.B., infra.

      . Alaska R.App. P. 212(c)(11).

      . Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

      . Id.

      . See Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989) (indicating that judges must warn pro se litigants on aspects of procedure when the pro se litigant has filed a defective pleading).

      . Administrative agencies have no jurisdiction to decide issues of constitutional law such as a violation of one's right to privacy. See State, Dep't of Labor, Wage & Hour Div. v. Univ. of Alaska, 664 P.2d 575, 580 (Alaska 1983).

      . Dougan failed to make a prima facie case of a violation of his equal protection rights because he failed to show that the board intended to discriminate against him based on an arbitrary and unjustifiable standard. See Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202, 210 (Alaska 1999).

      . There was substantial evidence to support the board's findings that Aurora did not commit criminal violations during the proceedings.

      . Claims of violations relating to construction project permitting and inspections are outside the jurisdiction of the board. See Univ. of Alaska, 664 P.2d at 580.

      . The exclusive remedy provision of the Act (AS 23.30.055) prevents an employee from bringing subsequent civil actions arising out of work-related injuries and the board is without jurisdiction to hear civil claims.

      . Claims made under AS 23.30.247 are required to brought in a private civil action. The board is without jurisdiction to decide such claims.

      . Dougan failed to offer any evidence as to how the board's late-filed decision prejudiced him.

      . Dougan failed to offer any evidence as to how he was prejudiced by his claim having been heard by more than one panel.

      . Since the board retained jurisdiction over this issue, there has been no final judgment and it is not properly before this court.

      . Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202, 211 (Alaska 1999).

      . 8 AAC 45.220(c)(3)(B).

      . Irvine v. K & L Distribs., AWCB No. 00-0023 (2000).

      . AS 23.30.220(a) states in pertinent part:
      (a) Computation of compensation under this chapter shall be on the basis of an employee's spendable weekly wage at the time of injury. An employee's spendable weekly wage is the employee's gross weekly earnings minus payroll tax deductions An employee's gross weekly earnings shall be calculated as follows:
      (1) if at the time of injury the employee's earnings are calculated by the week, the weekly amount is the employee's gross weekly earnings;
      (2) if at the time of injury the employee's earnings are calculated by the month, the employee's gross weekly earnings are the monthly earnings multiplied by 12 and divided by 52;
      (3) if at the time of injury the employee's earnings are calculated by the year, the employee's gross weekly earnings are the yearly earnings divided by 52;
      (4) if at the time of injury the
      (A) employee's earnings are calculated by the day, hour, or by the output of the employee, the employee's gross weekly earnings are the employee's earnings most favorable to the employee computed by dividing by 13 the employee's earnings, including overtime or premium pay, earned during any period of 13 consecutive calendar weeks within the 52 weeks immediately preceding the injury.

      . 882 P.2d 922 (Alaska 1994).

      . AS 23.30.220(a) prior to the 1995 amendment stated in relevant part:
      (a) The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation. It is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows:
      (1) the gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury;
      (2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of the injury.

      . Gilmore, 882 P.2d at 929.

      . Id. at 928-29.

      . Id. at 929 n. 15.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    Doris CABANA, Viola Jerrel, and Naney Hillstrand, Appellants, v. KENAI PENINSULA BOROUGH, Appellee.
    No. S-9994.
    Supreme Court of Alaska.
    July 12, 2002.
    See also 21 P.3d 833.

      Robert C. Erwin and Roberta C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellants.
    Holly B. Montague, Assistant Borough Attorney; Soldotna, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

The Kenai Peninsula Borough (KPB) Assembly passed an ordinance in March 1999, exchanging forty acres of borough property near Homer (the Homer parcel) for twenty acres of property near Anchor Point owned by Clifford Shafer (the Shafer parcel). The Borough had appraised the Shafer parcel at $24,500 and the Homer parcel at $33,700. The same day that it passed the exchange ordinance, the KPB Assembly passed a resolution to classify the Homer parcel as light industrial with a variance for stockpiling material and the operation of heavy equipment and with restrictions on the use and development of the property. Doris Cabana, Viola Jerrel, and Naney Hillstrand are taxpayers of the Kenai Peninsula Borough who live within one mile of the Homer parcel. They filed suit in superior court, seeking an order determining that the KPB Assembly's classification resolution was an improper exercise of zoning power and declaring void the ordinance authorizing the exchange. The superi- or court granted KPB's cross-motion for summary judgment, and Cabana appeals that decision. We affirm because there is no genuine issue of material fact regarding KPB's appraisal procedures. KPB is therefore entitled to judgment as a matter of law.

II. FACTS AND PROCEEDINGS

A. Factual History

Clifford and Cheryl Shafer owned a twenty-acre parcel of land in Anchor Point. Approximately one-half of the Shafer parcel is wetlands, and sixty-four of 105 parcels within a half-mile radius of the parcel are developed residentially. Neighbors of the Shafer parcel opposed Shafer's two applications to operate a material site for gravel extraction. The first application was denied and, after Shafer applied the second time, the Coastal Consistency Commission began reviewing the impact of a material site on the wetlands. Facing continuing opposition by neighbors and potentially prohibitive expense as a result of the review process, Shafer approached KPB with an offer to exchange his parcel for the Homer parcel owned by KPB.

Unlike the Shafer parcel, the forty-acre Homer parcel shares its borders primarily with industrial sites, including an asphalt plant, the borough landfill, and a State Department of Transportation maintenance yard. One-third of the Homer parcel has been identified as wetlands. Just as neighbors had opposed Shafer's application for a material site permit, several neighbors of the Homer parcel, including the plaintiffs, vociferously opposed the land exchange.

As part of a 1999 reappraisal of all land in the Homer/Anchor Point area, KPB Land Appraiser Louise Paul appraised the two parcels of land in January 1999. Paul appraised the Shafer parcel at $24,500 and the Homer parcel at $33,700. In reviewing the appraisals in February 1999 Paul reaffirmed those valuations. Her supervisor, Appraisal Manager Gary Fandel, noted that the Homer parcel may "have greater future potential due to commercial and light industrial development occurring in the vicinity."

On June 1, 1999, the KPB Assembly held a public hearing on Ordinance 99-17 and its companion Resolution 99-050, which proposed classifying the Homer parcel as light industrial with an allowance for stockpiling and operation of heavy equipment. The three plaintiffs again commented on the proposed classification. At the conclusion of the hearing, the KPB Assembly adopted the resolution. Also on June 1, 1999, the KPB Assembly approved Ordinance 99-17, which set out findings regarding the benefits of the land exchange, authorized the exchange, and imposed deed restrictions to preserve the recreational use of land bordering the Homer parcel and to protect the wetlands and streams. The ordinance ordered: "The borough land will be classified in accordance with KPB 17.10 prior to the exchange, provided that this land may be used for material stockpiling and related activities including sorting and the operation of heavy equipment." (Emphasis in original.) The ordinance noted that "the proposed exchange is of almost equal value, excluding the value of gravel resources on the Shafer parcel."

B. Procedural History

In July 1999 Cabana, Jerrel, and Hillstrand (Cabana) filed this suit challenging the classification and land exchange. Cabana moved for summary judgment in May 2000, claiming that the Homer parcel was not exchanged at fair market value in violation of the KPB Code based on three arguments: "(1) the land was not appraised at fair market value; (2) the exchange itself on the new appraised value for 1999 was not an exchange for fair market value; and (8) Louise Paul was not a qualified appraiser for 1999, under Kenai Peninsula Borough Ordinances, to determine fair market value." KPB opposed the motion for summary judgment and filed a cross-motion for summary judgment. The superior court denied Cabana's motion and granted KPB's cross-motion for summary judgment. Cabana appeals the summary judgment order in favor of KPB.

III. STANDARD OF REVIEW

We review a grant or denial of summary judgment de novo. Summary judgment is appropriate if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. When ruling on a motion for summary judgment, we "may consider any argument ascertainable from the record, even if the superior court did not rule on it." "We are not bound by the reasoning articulated by the superior court and can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the superior court or the parties." The nonmoving party is the non-prevailing party on a summary judgment motion. Because Cabana appeals the grant of KPB's cross-motion for summary judgment, Cabana is the nonmov-ing, losing party with regard to that motion. As such, facts are to be viewed in the light most favorable to Cabana, and reasonable inferences are to be resolved in Cabana's favor.

Summary judgment is inappropriate when the affidavits and other evidence before the trial court establish that a genuine issue of material fact exists. The court does not weigh the evidence or witness credibility on summary judgment. "A court must deny a motion for summary judgment if there is contradictory evidence, or the mov-ant's evidence is impeached on material matters, because in such cases an issue of credibility exists."

IV. DISCUSSION

The issue before us on appeal is whether the trial court erred in granting KPB's motion for summary judgment on Cabana's claimed violations of substantive due process and the KPB Code. KPB and Cabana have differing views regarding the value of the Homer parcel. But this factual dispute is immaterial to our conclusion that KPB did not abuse its discretion in authorizing the land exchange, that it complied with the statutory procedural requirements, and that it did not violate Cabana's right to substantive due process. We conclude that the trial court properly granted summary judgment in favor of KPB because, even assuming the facts alleged by Cabana, the nonmoving party, Cabana does not have a valid legal claim against KPB.

A. KPB Did Not Violate the KPB Code by Approving the Land Exchange.

1. Kenai Peninsula Borough Code § 17.10.100(C) governs this land exchange.

All municipalities have the power to acquire and dispose of real property. Alaska Statute 29.85.090(a) provides that "[the governing body shall by ordinance establish a formal procedure for acquisition and disposal of land and interests in land by the municipality." The formal procedures governing land in the Kenai Peninsula Borough can be found in Kenai Peninsula Borough Code (KPBC) §§ 17.10.090 and 17.10.100(C). Ke-nai Peninsula Borough Code § 17.10.090 relates to land that is "sold, leased, or otherwise disposed of" and provides that "(alll lands shall be sold or leased at fair market value or fair market rental value as determined by a qualified appraiser except as provided in sections 17.10.100(I) and 17.10.120(D)" Kenai Peninsula Borough Code § 17.10.100(C) governs exchange sales:

The assembly may by ordinance authorize the exchange of land but only if the ordinance authorizing the exchange sale contains a finding that the exchange sale is in the best interests of the borough and a statement of the facts on which the finding is based.

Cabana argues that KPB violated KPBC § 17.10.090 by exchanging properties that were not of equal market value.

But we conclude that KPBC § 17.10.100(C), rather than KPBC § 17.10.090, applies to this case. First, nothing in the KPB Code clearly requires that land exchanges comply with sections other than 17.10.100(C), which specifically addresses land exchange sales. The plain language of the code requires sales of borough land to be at fair market value, but it does not expressly require exchanges of borough land to be at fair market value. Second, Ordinance 99-17 clearly states that "[the mayor is authorized, pursuant to KPB 17.10.100(C) to exchange the land. Because it makes no mention of KPBC § 17.10.090,5 it appears that the KPB Assembly only contemplated that KPBC § 17.10.100(C) would apply to this transaction.

Third, it appears that the KPB Assembly roughly modeled its procedure for exchanging borough land after the State of Alaska's procedure for exchanging state land. Alaska Statute 29.65.090, which governs land exchanges, provides:

The director and a municipality are authorized to exchange land or interests in land when it is in the public interest. Land or interests in land exchanged under this seetion must be of approximately equal value, including the nonmonetary value of public benefits.

Alaska Statute 38.50.020(a) provides:

If the director determines that the property to be exchanged is not equal in appraised fair market value or if the value cannot be ascertained with reasonable certainty, the director may enter into an exchange on a finding that the appraised fair market value of the property to be received, together with the value of other public benefits, equals or exceeds the value of the property which the state will relinquish,

These statutes parallel the language of KPBC § 17.10.100(C), which is quoted above, and KPBC § 17.10.120(D), which provides:

The assembly may authorize the sale of land for an amount other than fair market value only if the ordinance authorizing the sale contains: (1) A finding that the sale for an amount other than the fair market value is in the best public interest; (2) A statement of the facts on which the finding is based; and (8) The period of time during which the offer may be accepted.

Finally, KPBC § 17.10.090 provides that land must be sold or leased at fair market value "except as provided in 17.10.120(I) and 17,10.120(D)." Kenai Peninsula Borough Code § 17.10.120(D) expressly permits sale of borough land at less than fair market value if it is in the best public interest. Thus, even if this court were to apply KPBC § 17.10.090 and KPBC § 17.10.120(D) rather than KPBC § 17.10.100(C), the outcome in this case would be the same: KPB complied with KPB ordinances by approving a land exchange based on express factual findings that the exchange was in the Borough's best interest.

2. The land exchange complies with KPBC § 17.10.100(C).

The Borough's power to manage and dispose of borough land is to be liberally construed. Even if Cabana generates a genuine issue of material fact, Cabana "has the burden of overcoming the presumption that proceedings of the governing body of a municipality have been conducted in accordance with the law." Cabana does not satisfy this burden merely by pointing out anomalies in the manner in which KPB appraised the land or approved the land exchange." Because we conclude that the KPB Assembly could reasonably determine that the land exchange was in the Borough's best interest and it provided a statement of facts on which this finding was based, as required under KPBC § 17.10.100(C), we affirm the trial court's grant of summary judgment to KPB.

If the Borough received property that was worth substantially less than the property it gave up and received no other nonmonetary benefits, such an exchange arguably would not be in the Borough's best interest. Accordingly, it is understandable that the plaintiffs are troubled by the Homer parcel's substantial drop in valuation from $79,200 to $33,700 in one year's time. However, given the great deference afforded municipal action and the presumption of government regularity, this fact, even in tandem with the plaintiffs' conflicting appraisal, does not create a genuine issue of material fact tending to show the kind of abuse of discretion or bad faith necessary to overcome the presumption of government regularity.

Our decision in Norene v. Municipality of Anchorage supports our conclusion in this case. In Norene, we found no abuse of discretion where the Municipality of Anchorage authorized a controversial land exchange. The challengers alleged that the appraisals were out of date and that one contained a $209,000 error. We concluded, however, that it was not the court's role to judge the "expediency or necessity of measures relating to local government." Appraisers informed the Anchorage Assembly that the land exchange was financially sound, and the Assembly was aware of the varying estimates of the value of the land it was giving up and the problems with the properties it was acquiring. Under these circumstances, we affirmed the superior court's grant of summary judgment in favor of the Municipality despite the factual disputes regarding the accuracy of the appraisals or the condition of the land involved in the exchange."

Similarly, we conclude that the KPB Assembly is in the best position to determine that the land exchange was in the Borough's best interest. There is evidence that, like the municipality in Norene, KPB weighed the pros and cons of the exchange prior to approving it. The planning director candidly informed the mayor that "[plotential negative impacts to the borough for this exchange include the simple loss of value ($33,500 v. $24,500) and setting of preceden[t] for resolving land use conflicts through exchanges or purchases." But she justified her recommendation that the mayor approve the exchange by listing the same findings of fact as those ultimately adopted by the KPB Assembly in Ordinance 99-17. Those findings indicated that the exchange was in the Borough's best interest based on the value of the properties and the nonmonetary benefits of the exchange.

Moreover, the undisputed evidence indicates that the Borough complied with the KPB Code in approving the exchange. The Borough based its approval of the exchange on an appraisal by a qualified appraiser. The appraisal of the Homer parcel was performed as part of a comprehensive program undertaken for a period of ten months, in which 13,000 parcels were reappraised. Many of the prior appraised values were adjusted, some substantially. Only after these appraisals were completed did the planning department contact the assessing department regarding the Homer and Shafer parcels. On February 1, 1999, the appraisal manager stated that the appraisals of the Homer and Shafer parcels were still accurate. The fact that the value of the Homer parcel was appraised before the assessing department was informed of the proposed exchange tends to indicate that the Borough acted in accordance with the law, and Cabana has presented insufficient evidence to support its position that the appraisal and exchange process in this case violated the KPB Code.

In sum, the land exchange effected by Ordinance 99-17 satisfies KPBC § 17.10.100(C)'s requirement that "the ordinance authorizing the exchange sale contain{] a finding that the exchange sale is in the best interests of the borough and a statement of the facts on which the finding is based."

B. KPB's Approval of the Land Exchange Does Not Violate Cabana's Right to Substantive Due Process.

Substantive due process is denied when a legislative enactment bears no reasonable relationship to a legitimate governmental purpose. As discussed above, the KPB Assembly made several factual findings regarding the benefits to KPB of the land exchange. For example, KPB Ordinance 99-17 indicates that the exchange will reduce a land use conflict and protect the public safety and welfare by restricting future use of the Homer parcel. These are legitimate governmental purposes, and they are laid out in goal 5.5 of the Borough's comprehensive plan to reduce land use conflicts and in KPBC § 17.10.010. Cabana has offered no evidence that reducing land use conflict and protecting public welfare and safety are not legitimate governmental purposes.

Ordinance 99-17 bears a fair and substantial relationship to the Borough's policy of reducing land use conflicts and protecting public welfare and safety. A land use dispute existed over Clifford Shafer's application to operate a material site on his property in Anchor Point. Numerous members of the public voiced their opposition to granting Shafer a material site permit and the Coastal Consistency Commission initiated a review of the potential impact of a material site on the Shafer parcel. Shafer approached the Borough to exchange his property, which is one-half wetlands and is in a primarily residential neighborhood, with KPB's parcel in Homer, which is one-third wetlands and abuts an asphalt plant, the borough landfill, and a State Department of Transportation maintenance yard. Although there was public opposition to the exchange, the KPB Assembly mitigated the potential harm to neighbors of the Homer parcel by imposing restrictions on its use and by classifying the Homer parcel as light industrial rather than heavy industrial.

The elected borough assembly, rather than the courts, should decide between competing notions of public policy. We conclude that there is a fair and substantial relationship between KPB's approval of the land exchange and the legitimate governmental goals of reducing land use conflicts and protecting public health and safety. Therefore, the alleged factual disputes proffered by Cabana are immaterial and summary judgment was properly granted in favor of KPB on the substantive due process claim.

C. The Appraisal of the Homer Parcel Did Not Violate the KPB Code or Substantive Due Process by Failing To Account for the Light Industrial Classification.

Cabana next argues that the KPB Assembly based its approval of the land exchange on an appraisal of the Homer parcel that failed to account for the reasonably probable classification of that parcel as light industrial. KPB argues that the classification would not have impacted the value placed on the Homer parcel by the KPB Assessing Department. The record supports this assertion.

Gary Fandel, the appraisal manager and appraiser Louise Paul's supervisor at the time of the valuation, stated in his deposition that the Homer parcel is in an unzoned area. He testified that an industrial classification in an unzoned area does not affect the valuation by the assessing department. He added that unzoned vacant or raw land is valuated by direct sales comparison, whereas land in a zoned area is appraised by accounting for the potential for development. The Director of Assessing, Jim Lawyer, also stated in his affidavit that the Shafer and Homer parcels are both in unzoned areas. He testified that the assessing department would not have any reason to change the appraised value of the Homer parcel for 2000 from its 1999 value. The undisputed evidence indicates that industrial classifications do not affect KPB's valuations of land in an unzoned area and the Homer parcel was in an unzoned area. Therefore, we need not determine whether Paul accounted for the light industrial classification in appraising the Homer parcel.

KPB's procedures for appraising land comply with the KPB Code. Kenai Peninsula Borough Code § 17.10.250(J) defines "fair market value" as "the estimated price that land would bring in an open market and under the then prevailing market conditions in a sale between a willing seller and a willing buyer both conversant with the property and with prevailing general price levels." Jim Lawyer described in his affidavit the actual practice of the KPB Assessing Department in appraising land:

When establishing a value for a parcel current market sales are used to determine fair market value. Current market sales take into consideration the market trends in a neighborhood. Establishing the value of a piece of raw land which is adjacent to industrial uses would take the surrounding trends and land use into consideration.

Cabana offered no evidence that Paul acted inconsistently with what appears to be a policy of exeluding from consideration potential industrial classifications when appraising a parcel of land in an unzoned area, or that any KPB ordinance forbids this practice. Rather, Cabana relies on Martens v. State, in which we stated that "it is a well established rule of law that a jury, in determining the fair market value of condemned land, may consider zoning changes which were reasonably probable at the time the land was taken." However, Martens is not controlling because here it is KPB rather than a jury that determined fair market value and Cabana has not overcome the presumption of government regularity.

Cabana has failed to establish that Paul was not qualified or that the appraisal procedures were flawed. We therefore conclude that KPB's failure to consider the subsequent light industrial classification of the Homer parcel did not violate the KPB Code or Cabana's right to substantive due process.

v. CONCLUSION

A presumption of government regularity applies in this case and we defer to the factual determinations of the KPB Assembly. Cabana has failed to establish that there is a factual dispute regarding KPB's appraisal procedures or that its procedures violate the KPB Code or substantive due process. Accordingly we AFFIRM the superior court's order granting summary judgment to KPB.

      . Under KPB Ordinance 96-14, a material site is defined as an area used for extracting, quarrying, stockpiling, or conditioning gravel, sand, rock, peat, pumice, pumicite, cinders, clay sod, topsoil, or other similar resources.

      . In the two weeks before Ordinance 99-17 was introduced, the Kachemak Bay Advisory Planning Commission (KBAPC) and the KPB Planning Commission each held a public meeting regarding the classification of the Homer parcel. The three plaintiffs and other members of the public voiced their concerns regarding the development of the wetlands, wildlife protection, noise, water contamination, and fears that the entire area will become industrial. The KBAPC passed a motion to support Ordinance 99-17 with the proviso that the parcel be classified light industrial with a variance to accommodate gravel storage, that a 100-foot buffer be maintained, and that the wetlands not be filled, dredged, or developed except for road access. The KBAPC noted that "the Light Industrial classification reflects the wishes of the public." The KPB Planning Commission approved the proposal to recommend to the KPB Assembly the light industrial classification with a variance, which led to the Assembly's passage of Resolution 99-050 and Ordinance 99-17.

      . Prior to filing this suit, the plaintiffs raised the same issues in an administrative appeal to the superior court challenging the classification (Resolution 99-050) and the land exchange (Ordinance 99-17). In September 1999 the superior court dismissed the appeal as an inappropriate appellate challenge of legislative action. The plaintiffs appealed and we affirmed, but specifically permitted Cabana to obtain review of KPB's classification decision through this action. Cabana v. Kenai Peninsula Borough, 21 P.3d 833, 836 n. 12, 838 (Alaska 2001).

      . United Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259, 1262 (Alaska 1999); Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995).

      . Alaska R. Civ. P. 56(c), accord Jackinsky, 894 P.2d at 654.

      . Jackinsky, 894 P.2d at 654.

      . Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 351 (Alaska 2001).

      . See Thoma v. Hickel, 947 P.2d 816, 818 (Alaska 1997); see also Chilton-Wren v. Olds, 1 P.3d 693, 696 (Alaska 2000); Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska 1984). The fact that the issue of fair market value is essential to the resolution of both parties' motions for summary judgment does not alter our obligation to draw all inferences of fact relevant to the cross-claim for summary judgment, including the fair market value issue, in favor of Cabana.

      . Peterson v. Wirum, 625 P.2d 866, 869-70 (Alaska 1981).

      . Meyer v. State, Dep't of Revenue, Child Support Enforcement Div. ex rel. N.G.T., 994 P.2d 365, 367 (Alaska 1999).

      . Bauman v. Day, 892 P.2d 817, 826 (Alaska 1995).

      . Cabana's complaint does not list causes of action separately. The superior court correctly interpreted the plaintiffs' complaint as alleging a violation of substantive due process, a violation of the KPB Code, and improper zoning. Cabana now concedes that the classification was not an exercise of zoning power and so we need not reach that issue.

      . Ron Johnson submitted an expert affidavit that the Homer parcel has a value of $56,000 to $64,000, which conflicts with KPB's appraisal of $24,500. In addition, the Homer parcel was valuated at $79,200 for every year from 1994 to 1998. But in 1999 Louise Paul appraised the Homer parcel at $33,700. «

      . Cf. Whaley v. State, 438 P.2d 718, 720 (Alaska 1968) (holding that a factual question is considered material and thereby prevents the entry of summary judgment if, as a matier of law, the appellant would then have a basis for a claim).

      . AS 29.35.010(8).

      . In a memorandum to the mayor recommending the land exchange, Planning Director Lisa Parker wrote:
      Rationale
      17.10.090 states, "The assembly may by ordinance authorize the exchange of land but only if the ordinance authorizing the exchange sale contains a finding that the exchange sale is in the best interests of the borough and a statement of the facts on which the finding is based."
      Parker quotes the "best interests" language of KPBC § 17.10.100(C), but asserts that it is from KPBC § 17.10.090. Her intention to apply KPBC § 17.10.100(C) is subsequently made clear in an almost identical memorandum to the mayor in which she correctly cites that section.

      . KPBC § 17.10.120(D) provides:
      The assembly may authorize the sale of land for an amount other than the fair market value only if the ordinance authorizing the sale contains:
      1. A finding that sale for an amount other than fair market value is in the best public interest;
      2. A statement of facts on which the finding is based; and
      3. The period of time during which the offer may be accepted.

      . AS 29.35.400.

      . McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001) (internal citation and quotation omitted). We first applied the presumption of government regularity in Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1117 (Alaska 1978), where we affirmed the superior court's order of summary judgment in favor of the Borough on a claim attacking a borough ordinance imposing a sales tax on all raw fish caught within the borough. We held that the plaintiffs, the nonmoving party, failed to offer any evidence to overcome the presumption that the municipality complied with the statutory requirements for a public hearing by making copies of the tax ordinance available and hearing all persons who wish to be heard. Id. In City of St. Mary's v. St. Mary's Native Corp., 9 P.3d 1002, 1007-08 (Alaska 2000), we again applied the presumption in holding that the municipality could repeal a tax exemption by ordinance without public vote. Finally, in McCormick, 16 P.3d at 738, we held that the plaintiff had failed to present sufficient evidence to overcome the presumption that the city lawfully passed its sales tax.

      . See McCormick, 16 P.3d at 738-39 ("Although McCormick can point to anomalies in the codification of the sales tax in 1977, he has not established that the city failed to comply with the law.").

      . See Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985) (reviewing for abuse of discretion municipality's decision to consummate land exchange based on allegedly erroneous appraisals of land in question).

      . 704 P.2d 199 (Alaska 1985).

      . Id. at 202.

      . Id., quoting 2 E. McQuillin, THs Law or Municr-Pat Corporations § 10.33, at 825 (3d ed.1979).

      . Id.

      . The planning director and the KPB Assembly made the following factual findings: (1) Shafer had applied for a material site permit for the Shafer parcel; (2) the public was concerned about the potential harm to the environment that would result from the permit's issuance; (3) Shafer had agreed to restrictions on the use and development of the Homer parcel; (4) the Shafer parcel and the surrounding area would be most appropriately used for a single-family residence and for recreation and preservation; (5) the Borough comprehensive plan's goal is to reduce land use conflicts; (6) the proposed exchange is of almost equal value, excluding the value of gravel resources on the Shafer parcel; and (7) restrictions on future use of the Homer parcel will help protect public safety and welfare.

      . Louise Paul's name appeared as being an active appraiser as of 1998, and in August 1999 Jim Lawyer, the Director of Assessing, testified by affidavit that she is a certified assessor/appraiser.

      . Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985).

      . KPBC § 17.10.010 states:
      A. It is the policy of the Kenai Peninsula Borough to manage all borough owned and municipal entitlement lands and resources to provide for:
      1. The efficient acquisition, management, classification and disposal of borough lands;
      2. The promotion of orderly development;
      3. The protection and orderly management of the borough's natural resources;
      4. The preservation of borough lands and resources for wildlife habitat, scenic value, recreational needs, and historic needs;
      5. The retention of borough lands essential for health, safety and education needs;
      6. The orderly disposal of lands and resources in a manner which is fair to all.

      . Id.

      . Cabana notes that Lawyer testified that commercially zoned property would have a higher appraised value than residential zoning. Because Cabana does not dispute that the Homer parcel is not commercially zoned, this testimony is irrelevant.

      . 554 P.2d 407, 409 (Alaska 1976).

      . Cabana argues that KPB violated the publication and notice requirements of KPBC § 01.12.040 and KPBC § 01.12.020. Because Cabana failed to raise this issue below, we do not consider it here. See Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001).