source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    Ted CHARLES, Appellant, v. INTERIOR REGIONAL HOUSING AUTHORITY, Appellee.
    No. S-10170.
    Supreme Court of Alaska.
    Sept. 20, 2002.

      Michael J. Walleri, Law Offices of Michael J. Walleri, Fairbanks, for Appellant.
    Tracey L. Knutson, Sisson & Knutson, P.C., Anchorage, for Appellee.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETT, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Ted Charles sued his former employer, Interior Regional Housing Authority, alleging constructive discharge and breach of the implied covenant of good faith and fair dealing. The superior court granted summary judgment in favor of the housing authority, reasoning that, although Charles had presented sufficient evidence to create a genuine factual dispute concerning whether his resignation resulted from a sustained campaign of harassment directed at him by a coworker, there was no evidence to support imputing the coworker's conduct to the housing authority. But because the evidence submitted by Charles could lead a reasonable juror to conclude that the housing authority's executive director participated in the alleged campaign of harassment, or at least knew about the harassment and allowed it to continue, we reverse the summary judgment order.

II. FACTS AND PROCEEDINGS

Interior Regional Housing Authority is a public corporation organized under AS 18.55.995 to provide housing assistance to low income Alaska Natives and their families in interior Alaska. Charles became the housing authority's tribal planning director in November 1998. As tribal planning director, Charles supervised tribal housing officers and tribal construction projects. At all times, Charles's employment with the housing authority was on an "at-will" basis.

Charles tendered his letter of resignation in August 1999. According to Charles, his resignation resulted from an eight-month campaign of harassment directed at him by the housing authority. Charles claims that this campaign of harassment was instigated by his coworker Al Woods, the director of the housing authority's capital improvement projects, after Charles publicly corrected Woods on two separate occasions in January 1999.

In October Charles sued the housing authority for wrongful termination, alleging constructive discharge and breach of the implied covenant of good faith and fair dealing. The housing authority moved for summary judgment. After holding oral arguments, the superior court granted summary judgment in favor of the housing authority. The court found that although Charles had presented sufficient evidence to create a triable issue of fact concerning whether his resignation resulted from a sustained campaign of harassment directed against him by his coworker Woods, there was no evidence to support imputing Woods's conduct to the housing authority. Charles appeals.

III. GENUINE ISSUES OF MATERIAL FACT EXIST CONCERNING WHETHER THE HOUSING AUTHORITY CONSTRUCTIVELY DISCHARGED CHARLES AND BREACHED THE COVENANT OF GOOD FAITH AND FAIR DEALING.

To prevail on a wrongful termination claim an employee must prove: (1) that the employee was discharged by its employer and (2) that the employer breached a contract or committed a tort in connection with the employee's termination. Charles attempted to satisfy these elements by alleging that he was constructively discharged by the housing authority and, in connection with his constructive discharge, the housing authority breached the implied covenant of good faith and fair dealing.

In granting the housing authority's motion for summary judgment, the trial court found that the housing authority had established as a matter of law that it had not constructively discharged Charles, and therefore, that Charles's claim for wrongful termination failed because he could not establish the discharge element. Charles claims that this ruling was erroneous.

We review a trial court's grant of summary judgment de novo, applying our independent judgment, and will affirm only if the record presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We must draw all reasonable inferences in favor of the non-moving party.

The moving party has the burden of proving the absence of issues of material fact. "If the movant makes a prima facie showing that he or she is entitled to judgment on the established facts as a matter of law, the opposing party must demonstrate that a genuine issue of fact exists to be litigated by showing that it can produce admissible evidence reasonably tending to dispute the movant's evidence." To determine whether the nonmoving party can produce admissible evidence creating a genuine factual dispute, we will "consider the affidavits, depositions, admissions, answers to interrogatories and similar material."

A. Charles Presented Sufficient Evidence of Constructive Discharge To Overcome Summary Judgment.

Constructive discharge "satisfies the discharge element in a wrongful discharge claim." A constructive discharge occurs when "an employer makes working conditions so intolerable that the employee is forced into an involuntary resignation. To establish constructive discharge it is not nee-essary that the employee actually "prove that the employer acted with the specific intent of causing the employee to resign." Rather, the employee "has the burden of showing that a reasonable person in the employee's position would have felt compelled to resign."

Charles's constructive discharge claim alleged that his resignation was the direct result of "a campaign of harassment initiated by Al Woods." Woods was the director of the housing authority's capital improvement projects and was responsible for overseeing various housing construction projects conducted by the housing authority. Both Charles and Woods were supervised by Joe Wilson, the executive director of the housing authority.

In response to the housing authority's motion for summary judgment, Charles presented evidence of eight incidents to support his assertion that the housing authority had engaged in a sustained campaign of harassment against him: (1) on two occasions in January, after meetings during which Charles publicly corrected Woods, Woods told Charles that if he continued to correct Woods in public he would "make sure that things became difficult for [Charles]"; (2) following these threats, Woods began subjecting Charles to unwarranted criticism; (8) as part of a series of reorganizations in January, Charles's responsibility for tribal construction crews was reassigned to Woods at Woods's request; (4) beginning in March, Charles was excluded from morning management meetings between Woods and Wilson; (5) in July, the housing authority began canceling Charles's planned travel, giving the excuse that he was behind schedule on various projects, when "lin fact, planning activities at this time were on schedule"; (6) in August, several of Charles's relatives including his daughter, son-in-law, and three or four other relatives of his estranged wife were fired because of their relation to him; (7) Woods and Wilson falsely accused Charles of nepotism in arranging to have these relatives hired; (8) although on August 19 Charles gave Wilson verbal notice that he would be resigning in thirty days, six days later Wilson called him at home and directed him to clean out his desk by Friday, August 27.

Contrary to the housing authority's assertion, the record offers admissible evidence addressing each of these alleged incidents. Each incident finds support in one or more of the following sources: Charles's affidavit, Wilson's affidavit, Charles's deposition, Wilson's deposition, or the housing authority's answer to Charles's complaint.

We have previously recognized that a constructive discharge may result from a "sustained campaign of harassment" against an employee. In Cameron v. Beard, a former employee for the state department of transportation alleged that he had been constructively discharged as a result of a sustained campaign of harassment by his supervisors. At trial, the plaintiff presented evidence of a campaign to vote him out as union representative, unjustified negative job performance evaluations, statements by his supervisors that he would never be promoted, and a supervisor's warning that he should "do something quick" because he was about to be fired. We upheld the jury's finding of constructive discharge, reasoning that there was "sufficient evidence in the record to support the jury verdiet on this issue."

Similarly, in Finch v. Greatland Foods, Inc. we addressed a former employee's appeal from the superior court's entry of summary judgment against him on his constructive discharge claim. The plaintiff had specified four incidents supporting his assertion that his employer had engaged in a sustained campaign of harassment against him. These four incidents included (1) repeatedly criticizing the plaintiff for taking family leave, (2) reassigning the plaintiffs lucrative distribution route to a junior employee and forcing the plaintiff to take a less profitable route, (8) after switching the plaintiff's route, changing the pay system in a way that negatively affected only the plaintiff's income, and (4) after switching the plaintiff to commission pay, failing to support his customer service efforts. We reversed the superior court's grant of summary judgment in favor of the employer, reasoning that

"[allithough any one of these events alone would not support a claim for constructive discharge, when viewed in the totality and in the light most favorable to [the plaintiff], ... they could lead a reasonable person in [the plaintiff's] position to conclude that [his employer] had pursued a sustained campaign of harassment that ultimately compelled him to resign." []

Here, the superior court found that Charles had presented sufficient evidence to raise a triable issue of fact as to whether there was a campaign of harassment directed at him by his coworker Woods; but, the superior court granted the housing authority's motion for summary judgment because it found that there was no evidence to support holding the housing authority liable for Woods's conduct. The superior court reasoned that because Woods had no supervisory power over Charles, his actions could not be imputed to the housing authority absent some evidence that Woods was "doing the bidding of [the housing authority1."

But Charles did not need to prove that the housing authority, or its executive director, Wilson, directed the harassment against him. Rather, the question is whether the housing authority (or Wilson) either knew or should have known about the harassment and failed to take reasonable steps to prevent it. We have previously acknowledged that an employer's "lack of care" can "subject them to direct liability without the necessity of involving respondeat superior." Other courts have also acknowledged this rule that "[aln employer ... as an entity may also be held directly liable for its own conduct if the employer knows or has reason to know that unlawful harassment is occurring or is likely to occur and fails to prevent or correct the behavior." So Charles did not need to show that the housing authority (or Wilson) intended or directed Charles's harassment; he needed only to show that the housing authority (or Wilson) either knew or should have known about the harassment.

Viewing the evidence in the light most favorable to Charles, we find that the evidence could lead a reasonable juror to conclude that the housing authority's executive director, Joe Wilson, directly participated in a campaign of harassment against Charles, or at least knew about it and allowed it to continue. The record indicates that it was Wilson who actually fired Charles's relatives and it was Wilson who called Charles at home and told him to clean out his desk by Friday, August 27-about three weeks before the effective date of Charles's announced resignation. Furthermore, the exclusion of Charles from morning management meetings between Woods and Wilson, the shifting of responsibility for tribal construction crews from Charles to Woods, and the cancellation of Charles's planned travel could not have occurred without Wilson's authorization.

Because this evidence, when viewed in the light most favorable to Charles, raises a triable issue of fact concerning whether Wilson directly participated in, or at least knew of and failed to prevent or correct, the campaign of harassment directed against Charles, we find that the superior court erred by holding as a matter of law that the housing authority did not constructively discharge Charles.

B. Charles Presented Sufficient Evidence To Overcome Summary Judgment on His Claim for Breach of the Covenant of Good Faith and Fair Dealing.

The record also indicates that Charles presented sufficient evidence to raise a triable issue of material fact concerning whether the housing authority breached the covenant of good faith and fair dealing. The covenant of good faith and fair dealing is implied in all at-will employment contracts. We have held that "[tlhis covenant does not lend itself to precise definition, but it requires at a minimum that an employer not impair the right of an employee to receive the benefits of the employment agreement" and that the "employer treat like employees alike."

An employer can commit either an objective or subjective breach of the covenant. The employer commits a subjective breach " 'when it discharges an employee for the purpose of depriving him or her of one of the benefits of the contract' " The objective aspect of the covenant requires that the employer act in a manner that a reasonable person would regard as fair. We have previously explained that examples of objective breaches of the covenant would include disparate employee treatment, terminations on grounds that were unconstitutional, and firings that violated public policy.

Charles's claim focuses on the objective component of the covenant. Specifically, Charles contends that the housing authority "failed to treat similarly situated employees alike" with regards to the enforcement of its own nepotism policy. The housing authority's nepotism policy provided in part:

No person shall be hired if a member of that person's "immediate family" is employed in a supervisory capacity or as the Department Head in the [housing authority] department being applied to. The term "immediate family" includes father, mother, husband, wife, sons, daughters, brothers, sisters, grandparents, grandechil-dren, mother-in-law, father-in-law, aunts or uncles. The term persons employed in a supervisory capacity or as a Department Head includes those persons who have overall administrative responsibility for a department.]

Charles argues that his relatives were fired based on untrue allegations of nepotism while Woods was allowed to violate the company's nepotism policy with impunity.

Viewing the evidence in the light most favorable to Charles, we find that a reasonable juror could conclude that the housing authority applied a double standard in enforcing its nepotism policy. In its answer to Charles's complaint, the housing authority admits that "the employment of [Charles's] relatives did not violate [the housing authority's] Personnel Policy provision regarding nepotism since he was neither their supervisor nor the head of the department within which they were employed." Charles's allegation that Woods's son, brother, and stepson were improperly employed within Woods's department was also supported by the admissions of the housing authority. The housing authority admitted that these relatives were employed "under the direct supervision of Charles Huntington." The housing authority's organizational chart makes clear that Charles Huntington, and therefore Woods's relatives, were employed in Woods's department. This evidence, viewed in the light most favorable to Charles, could lead a reasonable jury to conclude that the housing authority had violated the covenant in its unequal enforcement of the nepotism policy.

Moreover, as we have previously discussed, Charles presented admissible evidence to support his broader claim that he was subjected to a sustained campaign of harassment at the housing authority. As we have explained, the covenant of good faith and fair dealing requires that employers "treat like employees alike." Subjecting an employee to a pattern of harassing conduct could itself amount to disparate treatment in breach of the covenant of good faith and fair dealing. We therefore conclude that Charles presented sufficient evidence to withstand summary judgment on his claim that the housing authority breached the implied covenant of good faith and fair dealing.

IV. CONCLUSION

Because a reasonable juror could conclude that the housing authority's executive director either participated in, or knew about, the alleged campaign of harassment against Charles, we conclude that Charles presented sufficient evidence to raise a genuine issue of material fact concerning whether he was constructively discharged by the housing authority. We also conclude that Charles presented sufficient evidence to create a triable issue of material fact concerning whether the housing authority breached the implied covenant of good faith and fair dealing. Therefore, we REVERSE the superior court's entry of summary judgment in favor of the housing authority and REMAND for further proceedings. Because the housing authority is no longer the prevailing party, the award of attorney's fees is VACATED.

MATTHEWS, Justice, not participating.

      . See, eg., Starzynski v. Capital Pub. Radio, Inc., 88 CalApp.4th 33, 105 Cal.Rptr.2d 525, 530 (2001) (" 'Alfter establishing ... discharge, an employee must independently prove a breach of contract or tort in connection with the employment termination in order to obtain damages for wrongful discharge.' ") (quoting Turner v. Ankeu-ser-Busch, Inc., 7 Cal4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022, 1030 (1994); Balmer v. Hawkeye Steel, 604 N.W.2d 639, 642 (Iowa 2000) (quoting same).

      . See, eg., Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).

      . See, eg., id.

      . Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 586 (Alaska 2001).

      . Id.

      . French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996).

      . See Broderick v. King's Way Assembly of God , Church, 808 P.2d 1211, 1215 (Alaska 1991).

      . City of Fairbanks v. Rice, 20 P.3d 1097, 1102 n. 7 (Alaska 2000).

      . Cameron v. Beard, 864 P.2d 538, 547 (Alaska 1993).

      . Id.

      . Id.

      . See French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996) ("[The court will 'consider the affidavits, depositions, admissions, answers to interrogatories and similar material to determine . whether any of the [evidentiary] material suggests the existence of any ... triable genuine issue of material fact.' ") (quoting Broderick, 808 P.2d at 1215).

      . See Ford v. Alfaro, 785 F.2d 835, 841 (9th Cir.1986); Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1286 (Alaska 2001); Cameron, 864 P.2d at 547; Sterling Drug Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, 386 (1988); Thompson v. Tracor Flight Sys., Inc., 86 Cal.App Ath 1156, 104 Cal.Rptr.2d 95, 104 (2001).

      . 864 P.2d at 540-41.

      . Id. at 548.

      . Id.

      . 21 P.3d at 1286.

      . Id.

      . Id.

      . Fruit v. Schreiner, 502 P.2d 133, 140 (Alaska 1972) ("Lack of care on the employer's part would subject [the employer] to direct liability without the necessity of involving respondeat superior.").

      . Wille v. Hunkar Labs., Inc., 132 Ohio App.3d 92, 724 N.E.2d 492 (1998); see also Erdmann v. Tranquility Inc., 155 F.Supp.2d 1152, 1163 (N.D.Cal.2001) ("[Clonstructive discharge occurs where the employer either intentionally created or knowingly permitted working conditions that are so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.") (emphasis added).

      . See, eg., Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1032 (Alaska 1999); French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996); Revelle v. Marston, 898 P.2d 917, 926 (Alaska 1995).

      . Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989).

      . Id. at 789 n. 6.

      . See, eg., Revelle, 898 P.2d at 927 ("An employer may not only breach the covenant of good faith and fair dealing through improper motive or intent but may also commit an objective breach of the covenant, by failing to 'act in a manner which a reasonable person would regard as fair' ") (quoting Luedtke v. Nabors Alaska Drilling, Inc. ("Luedtke II"), 834 P.2d 1220, 1224 (Alaska 1992)).

      . Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1286-87 (Alaska 2001) (quoting Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997).

      . Id. at 1286-87; Holland, 993 P.2d at 1032; Ramsey, 936 P.2d at 133.

      . See Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139 (Alaska 1999); Luedtke II, 834 P.2d at 1224.

      . On several occasions we have noted that an employer's failure to treat like employees alike may constitute a breach of the implied covenant of good faith and fair dealing. See Holland, 993 P.2d at 1033; Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1012-13 (Alaska 1999); Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 109 (Alaska 1997).

      . Jones, 779 P.2d at 789 n. 6.

      . See Luedtke II, 834 P.2d at 1224 (noting that failure to "treat like employees alike" and firings in violation of public policy both constitute objective violations of the covenant).

      . Charles also contends that the court erred by placing the burden on him, the nonmoving party, to make a "prima facie showing of breach of [the] covenant of good faith and fair dealing." Our decision makes it unnecessary to consider this argument.


author: FABE, Chief Justice.

text:
    Frank S. GRISWOLD, Appellant, v. CITY OF HOMER, a municipal corporation, and Cob, Inc., Appellees.
    No. S-10321.
    Supreme Court of Alaska.
    Sept. 20, 2002.

      Frank S. Griswold, pro se, Homer, Appellant.
    No appearance by Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Frank Griswold appeals the Homer Planning Commission's approval of nonconforming uses on a lot bordering his own. He alleges that there was insufficient evidence to support the Commission's decision and also makes several claims of procedural error. Because we conclude that there is substantial evidence to support the Commission's decision to approve the nonconforming uses, and Griswold's claims of procedural error have no merit, we affirm the superior court's decision.

H. FACTS AND PROCEEDINGS

A. Factual History

Robert L. Stewart, president of COB, Inc., owns the property located at 805 East Pioneer Avenue, which is the subject of this appeal. COB has owned the property since 1982. The property was a service station and garage before COB acquired it, and COB continued this use until 1991, when the gas tanks were removed. The property is located within an area designated by Homer's zoning regulations as the central business district. It is impermissible under zoning regulations for COB to use its central business district property for automobile repair and maintenance unless those uses were "grandfathered in." To take advantage of the grandfather provisions, the owner must have used the property for vehicle maintenance and repair prior to the zoning enactments and must not have discontinued these uses for more than a year. With these requirements in mind, COB performed only occasional automobile repair and maintenance services on the property, with the purpose of maintaining its grandfather rights. During this time, COB substantially remodeled the premises to include a three-bay garage. The remodeling was completed in 1996. Since February 1997 COB has leased the site to a full-service automobile maintenance and repair facility known as Homer Tire and Auto. In 1996 COB petitioned the Homer Advisory Planning Commission to approve its nonconforming uses.

Frank S. Griswold is the owner of nearby, competing Glacierview Garage in Homer. The record also reveals that Griswold and COB are direct competitors in that they have worked on the same cars. Griswold is the only person to object to COB's petition for approval of nonconforming uses.

B. Procedural History

COB petitioned for acceptance of its nonconforming uses under Homer City Code (HCC) 21.64.0385 in October 1996. The Commission found that COB had produced sufficient evidence to show that the property had been used for a public garage, where vehicle maintenance and vehicle repairs had not been discontinued. The Commission also found that COB never "abandoned [its] intent that the Property be used for those purposes." The Commission unanimously approved of COB's continued use of the property as a vehicle maintenance and repair facility and public garage. Griswold appealed to the Homer Board of Adjustment, which reversed the Commission's decision. COB then appealed to the superior court, which in October 1998 reversed the Board with instructions to remand to the Commission to allow COB to present evidence that vehicle repair and vehicle maintenance had continued on the property.

On remand, the Commission found that COB had failed to show that the uses actually continued, but determined that COB had intended to continue the nonconforming uses during the years in question. The Commission concluded that the zoning ordinances in effect at the time of COB's application for approval of nonconforming uses required intent to discontinue the use as well as actual discontinuance before the nonconforming use could be lost. The Board adopted the Commission's findings and conclusions. Griswold appealed to the superior court, which again reversed and remanded. This time, the superior court specified that COB's intent was not relevant to the one year non-use provision in HCC 21.64.0830. Consequently, the superior court remanded to the Board with instructions to remand to the Commission to determine whether vehicle maintenance or repair ever stopped completely on the property for more than one year. Shortly thereafter, the superior court issued an order clarifying that "the Commission hals] consistently used the wrong standard to determine whether COB's various non-conforming uses had been discontinued." The superior court directed the Commission to reconsider evidence of actual use, rather than intent. Accordingly, the superior court instructed the Commission to allow COB to present additional evidence of actual use.

On January 31, 2000, the Commission considered for a third time COB's petition for approval of nonconforming uses. COB president Robert Stewart testified again, and COB provided five affidavits from additional witnesses as well as business records and invoiees. The Commission concluded, by a preponderance of the evidence, that COB failed to show that within the past year the property was used for a public garage; thus, COB lost the right to use the property for a public garage. However, the Commission found that COB was entitled to continued use of the property for vehicle maintenance and repair as defined by HCC 21.32.542 and HCC 21.32.543 as lawful nonconforming uses.

Griswold again appealed to the Board, raising the same issues currently before this court, and the Board affirmed the Commission in all respects. Griswold appealed to the superior court, which also affirmed in all respects. Griswold now appeals to this court. The City of Homer and COB have filed notices of nonparticipation.

III. STANDARD OF REVIEW

Judicial review of zoning board decisions is narrow, and board decisions are accorded a presumption of validity. The zoning body's decision shall not be reversed if it is supported by substantial evidence.

Substantial evidence is generally defined as evidence that "a reasonable mind might accept as adequate to support a conclusion." Zoning board interpretations of zoning ordinances "should be given great weight and should be accepted whenever there is a reasonable basis for the meaning given by the board." This deferential standard reflects the fact that the Commission and the Board have expertise in administering zoning ordinances and they receive deference equal to that accorded to an administrative agency. With respect to questions of law that do not involve Commission or Board expertise, we substitute our independent judgment. Because the superior court was acting as an intermediate appellate court, we independently review the record.

IV. DISCUSSION

A. The Commission's Findings Are Supported by Substantial Evidence.

This appeal concerns the Commission's approval of COB's nonconforming use. It is the responsibility of the landowner to "show proof of continuing nonconforming use of any property or structure which is in nonconformity." The Commission serves as fact finder, and we determine whether the Commission's factual findings are based upon substantial evidence.

The ordinance in effect at the time COB filed its petition, HCC 21.64.0830, provided that "[olnce the [nonconforming] use is changed or discontinued, or the structure not used for the specific use for more than one year, it shall not be repermitted." While the Commission found that the ordinance required proof of intent to discontinue as well as actual discontinuance, the superior court disagreed and found that intent was irrelevant to the one year non-use provision. The superior court concluded that "the only reasonable interpretation of the one year provision is that a nonconforming use terminates as soon as the property is not actually used for the nonconforming use for one continuous year." Thus, on remand, COB was required to show, by a preponderance of the evidence, that "no period of greater than one year elapsed during which no vehicle maintenance or repair took place on the property."

The Commission voted against permitting continuation of the nonconforming use as a public garage, but voted four to one that COB had maintained its grandfather rights for vehicle maintenance and repair. The Commission indicated that although the evidence satisfied the preponderance of the evidence standard, it probably would not satisfy a higher standard. The Board, which must accept the Commission's findings of fact if they are supported by "substantial evidence," concluded that the findings were adequately supported by the record.

Griswold claims that although COB provided "a large quantity of evidence, [it] was unable to provide substantial evidence as provided in HCC 21.68.070(c)(4)." Griswold alleges that the receipts and affidavits that showed work was performed at COB's lot were "fabricat[ed]" and "lacking in fundamental details." Griswold further asserts that even if all the evidence is accepted as valid, "there are one-year gaps."

COB maintains that it has documented forty-six instances of vehicle repair and/or maintenance on the property since 1991. Even while the property was being leased to Maggie's Taxi, COB occasionally performed repair work on the premises solely to maintain its grandfather rights. In addition, COB president Stewart testified before the Commission that although he was told he only had to work on the property onee a year to maintain his grandfather rights, he worked on the property more than onee a year. Stewart conceded that COB did not run an ongoing, day-to-day business on the property. It performed services on the property for cash, checks, and "trade out," meaning Stewart sometimes traded vehicle services for supplies or other work.

Substantial evidence is defined as what "a reasonable mind might accept as adequate to support a conclusion." Assuming that COB's occasional use of the property solely to maintain its grandfather rights provides a legal basis to allow a finding of continued nonconforming use, there is substantial evidence to support the trial court's findings. There are several specific vehicle maintenance and repair entries every twelve months. The existence of these activities was established by evidence of over fifty instances of vehicle maintenance and repair. Because it was not unreasonable for the Commission to gccept this as evidence of continuing nonconforming use, we conclude that the Commission's findings are supported by substantial evidence.

B. The Work Was of a Commercial Nature.

Griswold also argues that COB did not perform commercial automotive service and repair; rather, it bartered services for friends and associates. Griswold contends that this is insufficient to maintain grandfather rights. Although there is no "commercial" requirement in the applicable provision, COB concedes that "to qualify as a valid nonconforming use, the work in question must have been performed on another's vehicle and in exchange for consideration of some sort." COB adds that this is not an issue because all of the work performed on the property was on third-party vehicles and that COB received cash or "trade out" for all of the work.

Griswold's argument boils down to a contention that for work to be considered commercial, it must be performed on strangers vehicles for cash. Not only is this a unique interpretation of the term "commercial," but it would be nearly impossible to achieve in a small town like Homer. The record indicates that COB performed work on the vehicles of other persons, and that he received some form of consideration for the work. That is sufficient to qualify as "commercial" in this context.

C. Vehicle Maintenance and Repair Do Not Have To Occur Outdoors.

Griswold also claims that the Commission has disallowed the use of the property as a public garage, yet allowed vehicle maintenance and repair to occur inside a building, which effectively allows use of the property as a public garage. There is no merit in this argument and the Board properly addressed it by pointing out that there is no requirement that vehicle maintenance and repair occur outdoors.

D. The Commission or Board Members Were Not Biased.

Griswold sets forth two claims of bias, one against a member of the Commission and the other against a member of the Board. Griswold argues that the two members had "disqualifying bias[es]." The Homer City Code does not have an ordinance that specifically pertains to bias. Each municipality is directed to adopt a conflict of interest ordinance that provides that a member of a governing body "shall declare a substantial financial interest the member has in an official action and ask to be excused from a vote on the matter." Homer's conflict of interest ordinance, HCC 21.68.090, provides that a member of the Commission or Board may not participate in the deliberation or voting process of an appeal if that person has a substantial financial interest in the official action, or "[olther legal grounds for disqualification are established." The ordinance does not define "other legal grounds for disqualification." Homer bas also enacted an entire chapter on conflicts of interest as they pertain to other city officers. The conflicts of interest chapter applies only in the event that a city employee or other officer has a "substantial financial interest" in an official action.

There have been no allegations that either challenged member has any financial interest in the property at issue here; therefore the only code provision that applies is HCC 21.68.090, which provides for "other legal grounds for disqualification." Since the version of HCC 21.68.090 in effect at the time did not provide a remedy in the event that a conflict of interest is established, we draw guidance from the three-part test established in Griswold v. City of Homer to determine whether the Commission or Board decisions must be invalidated. The threshold issue is whether a member with a disqualifying interest cast the decisive vote. If so, the ordinance is invalid. If not, the court examines three factors: "(1) whether the member disclosed the interest or the other council members were fully aware of it; (2) the extent of the member's participation in the decision; and (8) the magnitude of the member's interest."

1. Chairperson Evans

Griswold asserts that Commission Chairperson Evans's question as to whether it would be appropriate for the Commission to reach a decision different from its original decision constitutes bias. He further asserts that Chairperson Evans's "eager[ ]" acceptance of COB's testimony and "unwarranted warnings to Mr. Griswold" also constitute bias. Griswold therefore argues that Evans's participation in the process has "tainted the proceedings" and that all proceedings in which he was involved are therefore invalid.

The Commission first approved COB's nonconforming uses in January 1997. Gris-wold appealed to the Board, which reversed the Commission, and COB then appealed to the superior court, which in October 1998 reversed the Board and remanded to the Commission to determine whether vehicle maintenance and repair as defined in the Homer City Code took place on the property. On remand in January 1999, Evans-who was not chairperson when the first approval was granted in 1997-asked the Commission's attorney, Allen Tesche, whether the Commission could reverse its prior decision. In response, Tesche explained that the Commission was the trier of fact and, based on the current evidence, could issue a decision different from its original one.

The above exchange does not constitute a conflict under the Homer City Code. It is also difficult to see how Evans's brief exchange with Tesche could constitute legal grounds for disqualification. Evans, a non-lawyer and recent appointee as chairperson, expressed a legitimate concern regarding whether the Commission was bound by its earlier decision. In addition, this exchange allegedly took place in January 1999 before the second Commission decision that was later reversed. The third Commission decision underlying the present case occurred in January 2000, when the Commission was considering additional evidence under a different standard. Indeed, Griswold's argument that Evans is biased against him is undermined by the fact that Evans voted against COB in the second decision, conelud-ing that COB had not demonstrated continuing nonconforming use. Griswold's other claims regarding Evans's "eager" acceptance of COB's testimony and "unwarranted warnings" have no merit.

2. Board Member Fenske

Griswold asserts that Board member Fenske also had a disqualifying bias and that his participation "automatically nullifies the vote of the Board of Adjustment." In January 1999, on the first remand to the Commission, Fenske, who was not a member of the Commission or Board at the time, participated in the audience commentary at the end of the hearing and voiced his agreement with the Commission's decision to approve the nonconforming uses. Later, Fenske was appointed to the Board and served at the Board's March 1999 and April 2000 hearings. Griswold raised the issue of possible bias on both occasions. Fenske explained that his comments reflected approval of the way in which the Commission handled the situation, rather than approval of the result:

And I-we should explain the comments that were made at the [Commission] hearing. Because they aren't all inclusive. But, it was a very difficult hearing that the [Commission] had dealt with And my comments were merely with the evidence that they had been presented with. I thought they did a good job of coming to a conclusion. One conclusion or another.... But I don't think, you know, my judgment has been impaired by the fact that I was showing support for a task, a hard task, that was pursued by a commission.

When specifically asked by Mayor Cushing, who served on the Board at the time, whether he could base his decision on the evidence in front of him, Fenske apparently said "yes," but then added that he understood why Griswold would feel uncomfortable with his presence on the Board.

Assuming Griswold's quotations of Fenske's comments are accurate, they do not rise to the level of a "disqualifying bias." Fenske's statement to the Commission that he agreed with its decision was made in January 1999. At that time, the Commission was proceeding under a different legal standard on a different evidentiary record. Eight months after Fenske's comment, in September 1999, the superior court remanded the case for a second time and clarified that the Commission had "used the wrong standard to determine whether COB's various non-conforming uses had been discontinued." The Board did not make the decision now on review until June 2000. In addition, again assuming the veracity of Griswold's quotation, Fenske's March 1999 explanation of his earlier comments suggests that his remark indicated approval of the way the Commission handled the delicate situation, rather than an approval of the result. This explanation is not unreasonable.

Even if Fenske's comment did amount to bias, it would not necessarily invalidate the Board's decision. Fenske did not have a financial or personal interest in the case; moreover, Fenske did not cast the deciding vote. There were six Board members and the decision was unanimous. Applying the factors of Griswold v. City of Homer, (1) the Board members were fully aware of Fenske's possible bias because it was raised by Griswold and the Board solicited Fenske's explanation twice; (2) the extent of Fenske's participation cannot be determined because the decision was reached in executive session; and (8) Fenske does not have a financial or other interest in the outcome of the case. These factors weigh in favor of not invalidating the Board's decision.

In a related argument, Griswold also claims that Mayor Cushing did not have the authority to rule as to whether Fenske had a disqualifying bias. After Griswold raised the issue of Fenske's purported bias for a second time in April 2000, Mayor Cushing stated his opinion that Fenske was not biased and then gave the Board the opportunity to override him:

MAYOR CUSHING: ... [If the Board sees fit to override or-or make the motion to override and have a vote at this ....
COUNCIL MEMBER WELLS: ... I guess I myself feel that-that [Fenske's] impartial in this, and would a motion be necessary to reaffirm that?
MR. TANS: It-it would not be necessary to reaffirm it, in light of the Mayor's already ruling that he should participate, and if the Board does not move to override that, it signifies your at least passive approval.
COUNCIL MEMBER WELLS: So I think he stays.
MAYOR CUSHING: Okay. Any-in other words, the-anybody on the Board right now has the opportunity to take it to a vote if you like. If not-okay, we'll proceed.

Thus, the Board agreed with the Mayor on the issue of Fenske's participation and did not vote to override the Mayor's decision that Fenske was unbiased.

The conflict of interest provision, HCC 21.68.090, appears not to have contained a clause to address who determines disqualification, and the current version simply states that "the Commission or Board determines" whether a conflicted member should participate. Homer's chapter on conflicts of interest, which was in effect when these proceedings were initiated, provided that voting members of city boards or commissions must disclose financial interests, and "may not participate in the debate or vote upon the matter unless the board or commission determine that a financial interest is not substantial." We conclude that the Board proceeded with proper caution by discussing the matter on the record; moreover, the Board had the opportunity to override the Mayor's initial determination and elected not to do so. This procedure does not conflict with any applicable provisions.

E. The Board Did Not Improperly Review the Case with an Incomplete Record.

Griswold's fourth claim of error is that the Board improperly decided this case without having a complete record of the Commission's January 12, 2000 proceedings. Griswold contends that by reviewing the record without a transcript of the Commission's proceedings, the Board manipulated the evi-dentiary record "to achieve a desired result." However, Griswold fails to note that, according to HCC 21.68.070, it was his responsibility to obtain a transcript of the testimony before the Commission:

A verbatim transcript of the testimony before the Planning Commission will be included only if a party makes a written request to the City Clerk within ten days after the filing of the notice of appeal .... All arrangements for preparation of the transcript are the responsibility of the party desiring the transcript.

It was thus Griswold's responsibility to request and provide the transcript. He acknowledges that the ten-day deadline for providing a transcript was March 3, 2000. He also concedes that he did not meet that deadline, and filed a request for an extension on March 10, 2000. That late request was denied, and Griswold does not challenge that ruling. There is no error here.

F. Griswold Was Not Improperly Denied the Right To Cross-Examine.

Griswold also claims that his case was prejudiced by "the inadequate notice of his right to cross examine" COB president Stewart at the January 12, 2000 hearing and by "warnings and restrictions imposed" on his cross-examination by Chairperson Evans. He further asserts that "[tlhe agenda should have advised parties of their right to cross examine and of their potential obligation to face cross examination." This argument also has no merit. Griswold was given the opportunity to and, in fact, did cross-examine Stewart. Griswold was evidently aware that he would have this opportunity to cross-examine because he had prepared cross-examination questions. Furthermore, Griswold failed to object at the hearing that he did not have adequate notice of the opportunity to cross-examine or that he was unprepared to do so.

Moreover, Chairperson Evans did not impose restrictions on Griswold's cross-examination of Stewart. Rather, Chairperson Evans cautioned Griswold to be "brief [and] courteous," and reserved the "right to reign [sic] [Griswold] in should [he] get out of tolerable acceptance level." These admonitions did not constitute substantive restrictions on Griswold's cross-examination and did not interfere with his examination of Stewart.

G. Griswold Was Not Improperly Denied the Opportunity To Speak.

Griswold's final argument is that neither the parties nor the public were provided the opportunity to speak at the Board's meeting. He bases this claim on AS 29.20.020(a) which provides that municipal bodies "shall provide reasonable opportunity for the public to be heard at regular and special meetings." That statute also provides that "[Imjeetings of all municipal bodies shall be public as provided in AS 44.62.8310." Alaska Statute 44.62.3810, the Open Meetings Act, specifically provides an exemption for governmental bodies "performing a judicial or quasi-judicial function when holding a meeting solely to make a decision in an adjudicatory proceeding." Griswold concedes that, because of this provision, the Board is exempt from the Open Meetings Act. However, he seems to argue that the provision allowing "reasonable opportunity for the public to be heard" exists in a vacuum and is unaffected by the Board's exemption from the Open Meetings Act. Thus, Griswold is claiming that while the Board may conduct its appellate review in private, the public must be afforded the opportunity to speak at closed proceedings. Such a result is incongruous and would eviscerate the Board's exemption from the Open Meetings Act. Nevertheless, even if he were entitled to be heard, he made no oral or written request to speak. Furthermore, he filed two appellate briefs with the Board. Griswold had "reasonable opportunity" to set forth his arguments, and he did so.

v. CONCLUSION

For the foregoing reasons, the decision of the superior court is AFFIRMED.

      . Homer City Code (HCC) 21.64.010; HCC 21.64.015; HCC 21.64.030; HCC 21.64.035.

      . Specifically, the superior court directed the Commission to reopen the record to determine whether "vehicle maintenance," as defined in HCC 21.32.542, and "vehicle repair," as defined in HCC 21.32.543, continued on the property for the years in question. Homer City Code 21.32.542 provides:
      "'Vehicle maintenance" means to keep a vehicle in proper running condition by services which do not customarily require a qualified mechanic such as the installation and service of lubricants, tires, batteries, and other small accessories.
      Homer City Code 21.32.543 provides:
      "Vehicle repair or auto repair" means to restore a vehicle to a sound state after decay, dilapidation, or partial destruction with such repair requiring the services of a qualified mechanic.

      . As defined in HCC 21.32.215, a public garage is "a building other than a private garage used for the care, repair or equipment of automobiles, or where such vehicles are parked or stored for remuneration, hire or sale."

      . The first two appeals to the superior court were before Judge Jonathan H. Link. On this third appeal, Griswold filed a peremptory challenge of Judge Link and the case was reassigned to Judge Harold M. Brown.

      . South Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168, 173 (Alaska 1993).

      . Id.; Galt v. Stanton, 591 P.2d 960, 962-63 (Alaska 1979).

      . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)).

      . South Anchorage Concerned Coalition, 862 P.2d at 173 n. 12 (quoting 3 Edward Ziegler, Rare wopu's THE Law or Zoninc amp Praxninc § 42.07 (1992)).

      . Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals, 904 P.2d 373, 385 n. 68 (Alaska 1995).

      . Alaska Public Employees Ass'n v. State, 831 P.2d 1245, 1247 (Alaska 1992).

      . South Anchorage Concerned Coalition, 862 P.2d at 173.

      . HCC 21.64.035.

      . South Anchorage Concerned Coalition, 862 P.2d at 173.

      . HCC 21.64.030 (1996) (language has since undergone minor alteration).

      . HCC 21.68.074(e).

      . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)).

      . The standard applied by the Commission was whether COB had performed work on the property once per year. This standard is apparently consistent with advice to Stewart by the City Planning Department that he only had to perform vehicle maintenance and repair on the property once a year in order to continue the nonconforming use. Griswold has not challenged this standard and it is therefore not before us for review. But whether one use per year is sufficient to maintain a nonconforming use remains an open question. The authorities are split on the issue. 8A Eugene McQuillan, Munict par Corporations § 25.194 (3d ed. 1994) ("Casual, intermittent or temporary use of land may be enough to stop the running of a discontinuance period."); Estate of Cuomo v. Rush, 273 A.D.2d 234, 708 N.Y.S.2d 695 (App.2000) (holding that nonconforming use as a nightclub had been lost where the property was used as such only once per year for an annual holiday party attended by twenty to forty people and held for the sole purpose of maintaining the nonconforming use); but see Islip v. P.B.S. Marina, 133 A.D.2d 81, 518 N.Y.S.2d 427 (App.1987) (holding that nonconforming use as a marina was not lost where one mooring was leased and used at least once per year); cf. Cizek v. Concerned Citizens of Eagle River Valley, Inc., 41 P.3d 140, 143 (Alaska 2002) (noting that nonconforming uses are disfavored and should be terminated as quickly as possible "because those uses frustrate a local government's implementation of consistent and logical land use planning").

      . In addition, Chapter 21.32 of the Homer City Code, which seis forth the zoning definitions, does not define "commercial."

      . As defined in HCC 21.32.215, a public garage is "a building other than a private garage used for the care, repair or equipment of automobiles, or where such vehicles are parked or stored for remuneration, hire or sale." Compare to HCC 21.32.542 and 21.32.543, set forth in full, supra note 2.

      . AS 29.20.010(a).

      . See HCC 1.12.020 (council members); HCC 1.12.060 (city employees and officials); HCC 1.12.070 (members of city boards or commissions).

      . HCC 1.12.

      . 925 P.2d 1015, 1029 (Alaska 1996).

      . Id.

      . For purposes of this argument, we are assuming the exchange actually did take place where and when Griswold claims because, while the two transcript pages containing the exchange are in the record, they are undated, out of context, and there is no title or other identifying information to show that they actually occurred at the January 1999 Commission meeting.

      . Evans did find that COB had intended to continue the nonconforming uses, and therefore approved them.

      . The January 1999 remand was the first of two remands, and was designated by a different case number.

      . There is no record support for these comments by Fenske. Griswold's citations in his brief are to an earlier brief containing these statements allegedly by Fenske. We have no way of verifying the statements attributed to Fenske while on the Board, nor can we discern their proper context.

      . 925 P.2d 1015, 1029 (Alaska 1996).

      . HCC 1.12.070. The two authorities Griswold cites in support of his argument that the Mayor could not decide whether a conflict existed are inapplicable: HCC 21.68.100 only applies to ex parte contacts, and Section G of the Bylaws of the Homer Advisory Planning Commission only applies to the Planning Commission.

      . Griswold asked "I was wondering if I was going to be given the opportunity to cross examine that witness before I give my presentation." Griswold then asked Stewart a series of questions about licensing, sales, tax, and Stewart's prior testimony.

      . AS 44.62.310(d)(1).