author: EASTAUGH, Justice. MATTHEWS, Chief Justice,

text:
    COPPER RIVER SCHOOL DISTRICT, Appellant, v. Doyle TRAW, Barbara Goozen, Beverly Goad, Gary Stenberg, Karen Stenberg, Stanley Wallace, Teachers' Retirement System, Alison Algee, Deputy Commissioner of Administration and Janet Parker, Administrator, Teachers' Retirement System, Appellees.
    No. S-8743.
    Supreme Court of Alaska.
    Sept. 29, 2000.

      Richard B. Brown and William W. Whitaker, Holmes Weddle & Barcott, Anchorage, for Appellant.
    Robert M. Johnson, Wohlforth, Vassar, Johnson & Brecht, Anchorage, for Appellees Doyle Traw, Barbara Goozen, Beverly Goad, Gary Stenberg, Karen Stenberg, and Stanley Wallace.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I.. INTRODUCTION

Soon after the Copper River School Board passed a motion to offer retirement incentives to teachers with seniority, school district administrators realized that they had erroneously calculated the financial effect of the incentives. But before the school board met again and rescinded its motion, six teachers communicated their "acceptance" of the retirement program. The school district refused to pay the six teachers the amounts the motion had specified. The teachers sued for breach of contract and won on summary judgment in the superior court. The school district appeals. Because there are disputed issues of material fact about whether the school board's motion was an offer and whether the district's acts terminated the teachers' power of acceptance, we reverse and remand.

II. FACTS AND PROCEEDINGS

In early 1996 the Alaska legislature was considering a teachers' retirement incentive package (RIP) to ease the salary burdens on school districts in Alaska. The Copper River School District sought to take advantage of this proposed legislation. In March 1996 Copper River School District Superintendent George Maykowskyj directed the school district's business manager, Loreen Kramer, to determine how the district could or should augment the state's proposed retirement incentives.

Kramer presented her financial analysis to the Copper River School Board at its April 2 meeting. She told the school board that the district could save money by offering the teachers a payment "equal to what I understood would be the indebtedness to [the retirement fund] incurred by retiring teachers under the bill being considered by the Legislature." The school board, accordingly, voted at its April 2 meeting in favor of the following motion:

MOTION ... to offer a retirement incentive equal to the employee's indebtedness for three years (8.65% of gross wages for certified [employees] ... ) to all certified and classified employees who are eligible to retire at the end of the school year and/or meet the requirements as established by the state for RIP. The employee must notify the District by April 30, 1996 if they plan to participate.

Within a few days Kramer decided that she had erred. The retirement program the school board had approved would cost the district more than it would save. On April 8 Kramer e-mailed the district's school principals, urging them to

[pliease inform your employees that may be eligible for retirement that I am waiting for a response from our attorneys concerning the "Longevity Bonus" offered by the school board and possibly entering into an agreement with the Retirement System for a "Retirement Incentive Program". It appears that there are some additional costs to the district that I was not aware of so we may have to "re-think" the process. I'll have an answer by the end of the week.

In early April Teacher Beverly Goad called Kramer to "get the specifics of the RIP offer." Kramer told her that the district's lawyer had advised the school board to rescind the incentive motion, and that the school board would be meeting to do just that. Goad asked what would happen if the teachers accepted the incentive prior to the rescission meeting. Kramer responded, "You can't do that." Asked by Goad whether teachers needed to accept the incentive before the meeting, Board President Linda Marchini told Goad, "Please don't." Goad then apparently reported these comments to the other teachers involved in this case.

Some teachers decided to accept the "offer" before the meeting. On April 18 six teachers delivered letters communicating their "acceptance" of the terms of the April 2 program.

On April 19 the school board met and rescinded the April 2 motion. It then passed a motion approving a modified retirement incentive package.

The six teachers requested payment of retirement benefits under the April 2 plan, but the district refused to pay more than the April 19 plan envisioned. The six teachers then sued for breach of contract, among other things. The teachers and the district cross-moved for summary judgment, and the superior court granted summary judgment to the teachers on the breach-of-contract question. The district appeals. It argues that (1) the board's April 2 motion was not an offer the teachers could accept, and (2) even if it was an offer, communications from the district's administrators prevented the teachers from accepting it.

III. DISCUSSION

A. -Standard of Review

On questions of contract formation, we review grants of summary judgment de novo We "will affirm a grant of summary judgment if the evidence in the record presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." We will accordingly not affirm a summary judgment if the record presents issues of material fact or if the moving party is not entitled to judgment as a matter of law. On questions of law, we are not bound by the lower court's decision Our duty is "to adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

B. Was the Motion an Offer?

The district contends that the school board did not make an offer when it passed the April 2 motion. Rather, it argues, the school board was instructing the superintendent and the superintendent's staff to make an offer. Thus, there could have been no offer subject to acceptance until the administrative staff communicated one to the teachers. The teachers contend, and the superior court held, that the April 2 motion was an offer, made in accordance with the power and practice of the school board.

Was the motion an offer, or did it merely authorize district administrators to make an offer?

1. Contract formation in the government context, generally

Restatement (Second) of Contracts sections 24 and 26 (1981) delimit what can be considered an offer. offer as "the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will con-Section 24 defines an clude it." Section 26 informs us that "[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent."

Two factors are relevant: the language of the motion, and the teachers' understanding of the board-administration relationship.

According to one leading municipal corporations treatise, the language of a motion has the following contractual significance: "[An ordinance granting a right, accepted and acted upon by the grantee, becomes an irrevocable contract. But an ordinance or resolution authorizing the mayor, or other officers([,] to enter into a contract does not of itself create a contract, if not acted upon."

The Oregon Supreme Court quoted this language in Winklebleck v. City of Portland. That case illuminates the issues presented here. The city condemned Winklebleck's property in order to extend a road; Winklebleck learned from city officials that the city needed only some of his property. He lobbied for return of the rest of his property, and the city council passed a motion directing the city auditor to return the disputed land if Winklebleck filed a release. The motion stated that "upon the execution and filing of such document with the City Auditor [the property] shall be released." The city then realized that it had erred, and a city attorney told Winklebleck's attorney that Winklebleck could not reclaim the land. The council repealed its earlier ordinance, but before it did so, Winklebleck accepted the offer and delivered a declaration of compliance with the requirements of the ordinance; he apparently also delivered a release.

The court reasoned that the ordinance "did not contemplate that the auditor and the plaintiff should execute some contract before the language could be closed ... but that the lot owner 'should demonstrate his right to secure [the land] by waiving the privilege of an appeal," and taking other actions commensurate with ownership. The court held that the ordinance was a valid offer, and that because Winklebleck had accepted the offer, he was entitled to his land.

The Winklebleck court held a motion "fairly capable of construction as an offer" to be an offer. But even if a motion is fairly capable of being construed as an offer, the issue is not conclusively resolved. For example, if a person had a history of dealings with a municipality, and had reason to know that the municipality did not intend to make an offer (whatever the language of its ordinance), a court should apply Restatement section 26, and should not treat the ordinance as an offer. Accordingly, when a board motion is expressed in terms of a delegation, it should be considered a delegation and not an offer; but when it is couched in terms of an offer, further inquiry may be required.

When there is a continuing relationship like the employment relationship here, the language of the motion must be considered in context of the contracting parties' relations. The commentary to Restatement section 26 includes language to this effect:

If the addressee of a proposal has reason to know that no offer is intended, there is no offer even though he understands it to be an offer. "Reason to know" depends not only on the words or other conduct, but also on the circumstances, including previous communications of the parties and the usages of their community or line of[]

One writer notes:

That the alleged offeree has reason to know that no offer has been made depends not solely on the words used but also on the cireumstances surrounding the communication. Thus, if the parties have dealt with one another before ... or if the custom in a particular location or trade suggests that an offer is intended ... an offer will be found.[]

This leaves us with the following process. First, courts must look to the language of the motion. If the motion is not expressed in terms of an offer, there is no offer. If the motion is expressed in terms of an offer, courts must look to the underlying context. If the context suggests that the legislative body normally acts as an offeror, there is a valid offer. But if the context suggests that the legislative body normally delegates the role of making the offer, a presumption arises that the motion is not an offer, but a delegation of power to make an offer. For a motion to be an offer, then, its language must be clear enough to overcome this presumption.

This approach answers the district's public policy argument that it "should not automatically be bound every time its board passes a motion." The school board can prevent itself from being bound merely by incorporating into its motions appropriate delegation language, such as "the board delegates the authority to" carry out specific tasks. We deal below with the other part of the district's public policy question-what happens when a school board makes a mistake and the district's administrators realize it.

2. Contract formation in this case

The language of the motion suggests that the motion was itself an offer. The motion's relevant language reads: "MOTION by Turner and seconded by Kimball to offer a retirement incentive.... The employee must notify the District by April 30, 1996 if they plan to participate." The district nearly concedes this point, noting that whether the motion was an offer "turns on whether under the circumstances the Plaintiffs were justified in viewing it as one."

Assessing the underlying context of the offer implicates three circumstances: (1) whether and how the offer was conveyed to the teachers; (2) the official structure of the school district; and (8) the history of past dealings.

Restatement section 26 is concerned with the state of mind of the recipient of the offer. It asks whether "the person to whom it is addressed knows or has reason to know that the person making it" does not intend for it to be considered an offer. The district asserts that "it was not reasonable to view the motion as an offer."

The district contends that the offer was not conveyed to the teachers, although it concedes that "those persons attending the meeting, hearing of the meeting, or in possession of the minutes could be said to have received the 'offer'" The teachers do not argue that the district conveyed the "offer" more clearly after the board passed the motion. They contend that at least one of them attended the April 2 school board meeting and heard the board pass the motion, but it is not clear from the record how many of the six teachers were present.

The conveyance circumstance slightly favors the district. By publicizing the meeting's agenda in advance, the district might be said to have taken extra steps to convey the offer. But there are other valid reasons the district might have publicized the agenda (e.g., to promote public comment) without intending to convey an offer by passing a motion. And while an offer was not directly conveyed to the teachers merely because the school board passed the motion at a public meeting, it was indisputably made public knowledge.

The second cireumstance here is the structure of authority in the school system. For purposes of this case, that structure is determined by Alaska statute and board bylaws and manuals.

Alaska Statute 14.14.090 contains an incomplete list of school board duties. It empowers school boards, among other things, to set total compensation levels: "In addition to other duties, a school board shall ..: determine and disburse the total amount to be made available for compensation of all school employees and administrative officers...."

The statute governing district bylaws provides that "school board policies relating to management and control of the district shall be expressed in written bylaws" adopted at board meetings.

Alaska Statute 14.14.1380 creates the position of the chief school administrator. It empowers the administrator to "administer" the district, and to control school personnel decisions:

(b) [The [chief school] administrator shall administer the district in accordance with the policies that the school board pre-seribes by bylaw. '
(c) [TJhe [chief school] administrator shall select, appoint, and otherwise control all school district employees that serve under the chief school administrator subject to the approval of the school board.[]

The Copper River School District policy manual states that "the Board has exclusive responsibility for all school policy. The Superintendent shall have the responsibility for executing the policy of the Board...." The manual also states that

the Superintendent is the chief executive officer of the school system and has, under the direction of the Board, general supervision of all of the public schools and of all the personnel ... of the school system. The Superintendent is responsible for management of the schools under the Board's policies, and is accountable to the Board.

These provisions support the general conclusion that the superintendent is charged with carrying out the district's executive functions, while the school board acts as a legislative policymaker. Under this scheme, board actions are more likely delegations than offers. This cireumstance strongly supports the district.

The third cireumstance concerns past dealings. There is some dispute about whether teachers had previously negotiated personnel issues with the superintendent and administrators, or with the school board itself. The teachers offered inconclusive affidavits, in which they affied that they had dealt "directly with the school district." But these assertions do not explain whether the negotiations were with the school board or with the district's administrators. While there is some evidence that the teachers negotiated with the administrators, the evidence cited by both sides on this point is meager, particularly considering the importance of this issue.

In sum, it is unclear to what extent the school board normally delegates executive and negotiating authority to district administrators. If it has been standard practice to require the administrators to take executive action in order for the district to enter into contracts, a statement by the board should be considered a direct offer only if it clearly and specifically rejects or suspends that pattern of action. In this case, the motion "to offer" the retirement incentive was not accompanied by any such extraordinary language. Ultimately, the relationship between the board, the administrators, and the teachers here is a fact question for the fact finder.

Each side cross-moved for complete summary judgment. Each side thus certified that no genuine, material fact disputes precluded favorable summary judgment. Although neither side asserted that genuine fact disputes required denial of the other side's motion, each side advanced an account of the parties' past dealings that was irreconcilable with the other side's account. Under these circumstances, summary judgment was inappropriate because material questions of fact exist as to whether the context of the April 2 motion made it unreasonable for the teachers to consider it an offer. We remand to determine whether there was an offer within the meaning of Restatement sections 24 and 26.

C. Did the District Terminate or Suspend the Teachers' Power to Accept Any Offer?

An offeror, by manifesting an intention not to enter into a proposed contract, can terminate the offeree's power of acceptance. Invoking that principle, the district argues that even if there was an offer, the district's communications with the teachers revoked the offer or terminated their power to accept it. The teachers assert that only the board had the power to revoke the offer.

Recognizing the calculation error, administrators and an individual school board member tried to prevent teachers from accepting the incentive. Their communications, discussed above, did not use words that expressly revoked the offer. We think the issue of the effect of the district's communications raises questions that should not be resolved in this appeal as a matter of law.

First, because the meaning of the words in the district's communications was not adequately litigated in the superior court, we decline to hold that those words are fairly susceptible to only one interpretation. The district gave the issue of their meaning only cursory attention in the superior court. The teachers did not address the issue there, nor have they on appeal. In holding that the district's statements did not revoke the April 2 offer, the superior court did not discuss or rely on the meaning of the statements. It relied instead on the proposition that only the board had authority to revoke a board offer. -

The absence of express words of revocation is not necessarily controlling. The history of past dealings-also relevant to whether the board's motion was an offer-is relevant to interpreting the words of the administrators and individual board members. It therefore appears that there may be genuine, material fact disputes about the meaning and effect of these communications. We consequently cannot decide as a matter of law whether these communications revoked any offer or otherwise terminated the teachers' power to accept a board-made offer.

Second, we cannot hold as a matter of law that only board action could terminate or suspend offerees' ability to accept a board-made offer.

The teachers point out that the school board could only act as a collective body. Board bylaws state that "[bloard members have authority only when acting as a body in regular or special sessions." The bylaws also state that "[the Board shall not be bound in any way by any statement or action on the part of any individual Board member or employee of the District except when such statement or action is in pursuance of special instructions by the Board or under specified delegation of responsibility."

Corporate and municipal organizations, by their nature, require executive actors to make just this sort of decision. The district has such executive actors, consisting of the superintendent and his staff; the school board endows them with the authority and powers necessary for carrying out board decisions, as noted above.

This case does not turn exclusively on whether only the school board could revoke a board-made offer. Instead, the question is whether the administrators could permissibly do things short of revocation that nonetheless had the legal effect of suspending the offer until the board could act or could otherwise terminate the teachers' power to accept the offer,. The bylaws did not explicitly grant the superintendent the power to revoke a board offer upon learning it was based on erroneous information. Rather, the superintendent had the "responsibility of executing the policy of the Board." It could be argued that powers of "general supervision" and "policy interpretation to school staff" encompass the authority to revoke a school board offer or hold it in abeyance. While the superintendent does not have the authority to bind the board, he may have the authority to "unbind" it pending further consideration. This is an issue to be resolved on remand.

The dissent would reverse and remand with directions to enter judgment for the school district. The dissent reasons that communications received by the teachers suspended their power to accept any offer here. Absent a valid acceptance, of course, no contract was formed.

Although we agree with the dissent's legal analysis, we decline to rule on this question as a matter of law. The dissent relies heavily on the principles discussed in the Restatement (Second) of Agency (1958). The parties did not discuss these propositions in their appellate briefs except in the most cursory fashion and did not cite the provisions the dissent finds persuasive. We prefer not to reverse for entry of judgment for the appellant in this cireumstance. Moreover, we decline to hold as a matter of law that the language used or the representatives' ostensible or inferred authority was necessarily sufficient to deprive the teachers (and each teacher individually) of any power to accept the alleged offer. We leave it to the parties on remand to assert any argument, not made to date, that the representatives' words were susceptible to more than one meaning or that one or more of the teachers should have realized that no offer could be accepted pending further school board action.

Finally, the district contends that, in accordance with comment d to Restatement section 43, "[the basic standard to which the offeree is held is that of a reasonable person acting in good faith" We agree with that principle. On remand the conduct of the teachers in accepting the offer should be considered in light of that standard.

IV. CONCLUSION

For these reasons, we REVERSE the teachers' summary judgment and REMAND for further proceedings.

MATTHEWS, Chief Justice,

with whom BRYNER, Justice, joins, dissenting.

I agree with the majority opinion that there are genuine issues of material fact as to whether the April 2 resolution was an offer capable of acceptance or whether it merely authorized school district administrators to make an offer. But I believe that even if the April 2 resolution was an offer, subsequent communications to the appellees suspended any power that the appellees may have had to create a binding contract by accepting the offer.

The communications to which I refer are those mentioned in the majority opinion. These are the April 8 e-mail from School District Business Manager Loreen Kramer, the early April conversation between appel-lee Beverly Goad and Kramer, and the subsequent conversation between Goad and School Board Chairperson Linda Marchini.

The e-mail stated:

Please inform your employees that may be eligible for retirement that I am waiting for a response from our attorneys concerning the 'Longevity Bonus' offered by the school board and possibly entering into an agreement with the Retirement System for a 'Retirement Incentive Program'. It appears that there are some additional costs to the district that I was not aware of so we may have to 're-think' the process. I'll have an answer by the end of the week. Thanks.

The Goad conversations with Kramer and Marchini are described by Goad in her answer to interrogatories. She states:

Between the dates of April 3-16, 1996, I had a telephone conversation with Loreen Kramer, CRSD business manager. I had called her to get the specifics of the RIP offer that the CRSD board had made at the April 2 board meeting. During the course of this conversation she revealed to me the following:
The school district's lawyer had advised the school board to rescind the RIP incentive because they could not make an offer dependent upon something that the state legislature had not determined.
The offer was for 8.65 x 8 x wages. She also relayed that she had made errors in her calculations and that the district would not be saving as much money as she had initially told the school board at the April 2, 1996, meeting.
She then said that the school board would be meeting to rescind the April 2, 1996 RIP incentive motion.
I asked what would happen if we accepted it prior to the rescission meeting. I received the response, "You can't do that." I said that several of us had been discussing the RIP incentive and intended to accept it.
Following that conversation and after school, I went to the Copper Center Post Office where Linda Marchini, CRSD board chairperson, is employed. I then asked her about the information that I had received from Loreen Kramer. She said Loreen said that the lawyer had advised them to rescind the motion and that the school board would be doing so at the special board meeting to be called later in the week. I asked her how she knew they would be rescinding the motion without discussion; she assured me that they would be definitely rescinding the motion. I asked her if they would be discussing the rescission at the meeting or if they intended to reconsider the motion at a later time. She replied that would remain to be seen. Then I replied that if we are interested in accepting the RIP incentive we needed to do that before the special board meeting. She said, "Please don't."
It was after these two discussions that the six of us who had previously been discussing our acceptance of the offer decided to take definitive action by writing our acceptance letters and delivering them prior to the special board meeting.

Taken individually or collectively, the communications were sufficient to convey to a reasonable person the message that the offer of April 2, at least temporarily, could not be accepted. The Kramer e-mail told the recipients that it appeared that the district had made a mistake in calculating the costs of the program and that it might have to be reconsidered. The telephone call from Goad to Kramer clearly communicated that the April 2 resolution was based on mistaken calculations, that a special meeting of the school board had been scheduled to rescind the resolution, and that the teachers could not accept the offer implicit in the resolution before the "rescission meeting." Similarly, the conversation with Board Chairperson Marchini confirmed that there would be a special board meeting at which the board would rescind the April 2 resolution.

An offeror need not formally state that an offer is withdrawn or revoked in order to terminate an offeree's power of acceptance.

Other facts besides a notice from the offer- or may make it unreasonable for the offer-ee to accept and rely. The offeree should be held to the standard of a reasonable person. Any statement by the offeror to the offeree that even implicitly states that the offeror no longer regards the offer as a commitment constitutes a revocation.[]

The communications to which I have referred were, to use the terms of the Restatement (Second) of Contracts section 42, "manifestation{s] of an intention not to enter into the proposed contract," "receive[d] from the of-feror." As such they "terminated" the offer-ee's power of acceptance.

Important to an understanding of the meaning of the Restatement in context is Illustration 5 to section 42. Tlustration 5 states, "A makes an offer to B, and later says to B, 'Well, I don't know if we are ready. We have not decided, we might not want to go through with it' The offer is revoked." If anything, the communications in the present case more strongly manifest an intention not to enter into a contract than the facts stated in Illustration 5. Kramer's e-mail, like Illustration 5, indicates an unreadiness and uncertainty as to whether to go forward with the original proposal just as Illustration 5 does. Under the illustration, that alone is sufficient to revoke the offer. But in the present case there is more, for in the subsequent telephone conversation with Goad, Kramer unequivocally stated that the offer could not be accepted prior to the special meeting at which the question of rescission would be taken up. ("You can't do that.") In so stating, she made erystal clear that the power to accept the offer was terminated.

With respect to these communications, the trial court held that they did not revoke the offer encompassed in the April 2 resolution because, "[oluly the Board, acting as a body in session, had the authority to terminate its offer. Statements by administrators or board members could not constitute a 'manifestation of an intention not to enter into the proposed contract." I believe that this conclusion is wrong and that applicable principles of the law of agency show that Kramer, at least, did have the authority to suspend the power to accept the April 2 offer,. The principles on which I rely are expressed in sections 33, 48(1), 47, and 73 of the Restatement (Second) of Ageney.

Section 88 provides:

An agent is authorized to do, and to do only, what it is reasonable for him to infer that the principal desires him to do in the light of the principal's manifestations and the facts as he knows or should know them at the time he acts.

Section 47 provides:

Unless otherwise agreed, if after the authorization is given, an unforeseen situation arises for which the terms of the authorization make no provision and it is impracticable for the agent to communicate with the principal, he is authorized to do what he reasonably believes to be necessary in order to prevent substantial loss to the principal with respect to the interests committed to his charge.

Section 73 provides that a manager has inferred authority to direct the ordinary operations of an enterprise. Comment b in the first paragraph states that authority to manage an enterprise does not include authority to make unusual or extraordinary contracts. But in the final paragraph of this comment the inference of authority to make unusual or extraordinary contracts in emergencies is de-seribed:

In all the above cases however, authority to act may be inferred from the cireum-stances of the authorization or from subsequent events, as where, in the absence of the principal, an emergency arises which can be met only by exceeding what is ordinarily the manager's authority.[]

And finally, section 48(1) provides that in cases where the authority of the agent is ambiguous, subsequent acquiescence by the principal indicates that the conduct was authorized:

Acquiescence by the principal in conduct of an agent whose previously conferred authorization reasonably might include it, indicates that the conduct was authorized; if clearly not included in the authorization, acquiescence in it indicates affirmance.[]

Kramer was the school district's business manager. As such, she was authorized to do what it was reasonable for her to infer that the school district would wish her to do in light of the facts as she knew them at the time that she acted. When she acted in this case, she knew that the school district had relied on her calculations in passing the April 2 resolution and that these calculations were substantially mistaken and would prove to be very costly to the school district. In my view it was unquestionably reasonable for her to infer that the district would wish her to suspend the power to accept the April 2 offer and thus under section 83 of the Restatement, she had authority to do so.

Her authority is underlined by sections 47 and 73 of the Restatement which provide that an agent can take action reasonably believed by the agent to be necessary in order to prevent substantial loss to the agent's employer. That was certainly the case here.

And even if Kramer's authority under see-tions 33, 47, and 73 of the Restatement is regarded as ambiguous rather than clear, the subsequent rescission of the April 2 resolution by the board demonstrates that Kramer acted as the district desired her to act. This, to use the terms of section 48(1) of the Restatement, "indicates that [her] conduct was authorized."

In summary, the appellees knew when they purported to accept the offer on April 18 that it was based on mistaken calculations that were overly generous to them and that the school district no longer wished to go through with it. Since Kramer had authority under the law of agency to withdraw the offer pending the special meeting of the school board, appellees' purported acceptances did not result in the formation of contracts. For these reasons, I would reverse the judgment of the superior court and remand with directions to enter judgment in favor of the school district.

      . The six teachers are Doyle Traw, Barbara Goozen, Beverly Goad, Gary Stenberg, Karen Stenberg, and Stanley Wallace.

      . In a related, pending case, the district is suing the Teachers' Retirement System (TRS). The district and TRS have agreed to defer further activity on the third-party claims until the present case is resolved.

      . See Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997).

      . Id.

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

      . Id.

      . Restatement (Second) of Contracts § 24 (1981). See also Young v. Hobbs, 916 P.2d 485, 488 (Alaska 1996) (setting out requirements for formation of express contract).

      . Restatement (Second) of Contracts § 26 (1981). See also Thrift Shop, Inc. v. Alaska Mut. Sav. Bank, 398 P.2d 657, 658-59 (Alaska 1965) (citing Restatement).

      . 10 Eugene McQuillin, The Law of Municipal Corporations § 29.03, at 247 (3d ed.1999).

      . 147 Or. 226, 31 P.2d 637, 641 (1934) (the words "or other officers" do not appear in Winklebleck ).

      . See id. at 638.

      . See id. at 638-39.

      . Id. at 639.

      . See id. at 639-40.

      . See id. at 640.

      . Id. at 641-42.

      . See id. at 641-43.

      . Id. at 641.

      . See Restatement (Second) of Contracts § 26 (1981).

      . See id.

      . Id. at § 26 crat. a.

      . 1 Richard A. Lord, Williston on Contracts § 4:7 (4th ed.1990).

      . Restatement (Second) of Contracts § 26 (1981).

      . AS 14.14.090.

      . AS 14.14.100.

      . The superintendent is the chief school administrator in the Copper River School District.

      . AS 14.14.130.

      . See Restatement (Second) of Contracts § 42 (1981) ("An offeree's power of acceptance is terminated when the offeree receives from the offer- or a manifestation of an intention not to enter into the proposed contract."); id. at § 43 ("An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.").

      . See Restatement (Second) of Contracts § 42 illus. 5 (1981) ("A makes an offer to B, and later says to B, 'Well, I don't know if we are ready. We have not decided, we might not want to go through with it.' The offer is revoked.").

      . Dissent at 290-291.

      . 1 Arthur L. Corbin, Corbin on Contracts § 2.20, at 227 (rev. ed.1993).

      . Restatement (Second) of Contracts § 42 emt. d, illus. 5 (1981). This illustration is based on Hoover Motor Exp. Co. v. Clements Paper Co., 193 Tenn. 6, 241 S.W.2d 851 (1951), in which the court concluded that the language "Well, I don't know if we are ready. We have not decided, we might not want to go through with it" "brought home to [the offeree] that [the offeror] no longer consented to the transaction" and so amounted to a withdrawal of the offer.

      . Restatement (Second) of Agency § 73 cmt. b (1958).

      . Restatement (Second) of Agency § 43(1) (1958).

      . See Restatement (Second) of Agency § 33 (1958).


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Alaska, Appellant, v. Harold KALVE, Appellee.
    No. A-7394.
    Court of Appeals of Alaska.
    Sept. 29, 2000.
    Deborah L. Greenberg and Lance Nelson, Assistant Attorneys General, Anchorage, and Bruce Botelho, Attorney General, Juneau, for Appellant.
    James T. Brennan, Hedland, Brennan, Heideman & Cooke, Anchorage, for Appellee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   O P I N I 0 N

STEWART, Judge.

Harold Kalve is an Alaska commercial fisherman. He holds an individual fish quota (IFQ) permit that was issued under a federal IFQ management program for sablefish pursuant to the Magnuson-Stevens Fishery Conservation Act (the Magnuson Act) In accordance with federal regulations implementing the IFQ management program, Kalve's individual annual quota limit was set by the amount of sablefish that he caught from the "IFQ regulatory area," which by definition included federal waters and certain state waters.

In April 1998, the State of Alaska, by emergency regulation, closed its waters to sablefish fishing. Although Kalve was aware that state waters had been closed to sablefish fishing, he went fishing in state waters on June 23, 1998, and landed 120 pounds of sablefish. Kalve was issued a citation for illegal retention of sablefish taken from closed state waters. Kalve moved to dismiss the charges against him. The district court granted Kalve's motion after concluding that the "paramountey doctrine" established federal supremacy in state waters. The State now appeals. Because we conclude that the paramountey doctrine is inapplicable to this case and that the State's emergency regulation was not preempted by federal law, we reverse.

Does the Paramountey Doctrine Apply?

The paramountey doctrine is essentially derived from four U.S. Supreme Court cases, where "the federal government and various coastal states disputed ownership and control of the territorial sea and the adjacent portion of the [outer continental shelf]." These cases established that the federal government has paramount rights in lands and natural resources in the offshore seabed as an incident of national sovereignty. The district court relied on these cases, and on the decision in Native Village of Eyak v. Trawler Diane Marie, Inc., in dismissing the State's charges against Kalve.

But although the federal government might lawfully exercise sole authority over the offshore seabed, Congress has chosen to share that authority. In 1958, Congress passed the Submerged Lands Act. This legislation gave coastal states control over the submerged lands beneath the three-mile zone of their territorial waters, and the authority to regulate the natural resources within those waters. Thus, Kalve's case raises no issue of federal paramountey.

Kalve concedes this point. However, he now raises a different argument based on the supremacy clause that the district court did not rely on-the provision of the federal constitution declaring that when federal law and state law are in conflict, federal law shall govern. In particular, Kalve argues that the State's emergency regulation closing the sablefish season is in direct conflict with certain federal sablefish regulations enacted pursuant to the Magnuson Act.

(Although Kalve raised this argument in the district court, the district court did not rely on this theory when it dismissed the charge against Kalve. Nevertheless, because Kalve is the appellee, he may argue for affir-mance of the district court's decision on any legal theory revealed by the existing record.)

Is the State's Sablefish Regulation Preempted by Federal Law?

Federal law can preempt state law in three ways:

First, Congress may expressly declare that state law is preempted. Second, state law is preempted if Congress intends the federal government to occupy a field exclusively. Third, federal law preempts state law if the two actually conflict." []

Generally, federal regulations should not preempt state regulations absent "persuasive reasons." As the Alaska Supreme Court has recognized:

When considering preemption, "[courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." []

With these principles in mind, we next determine whether any of the above three grounds for preemption exist in Kalve's case. Kalve does not claim that he can satisfy the first prong of the above test-that the Magnuson Act expressly preempts state regulation of a fishery within its boundaries. Indeed, the Magnuson Act does just the opposite-it expressly recognizes the State's authority over its territorial waters:

Except as provided in subsection (b) of this section, nothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.[]

Kalve also concedes that the second prong-that Congress intended the federal government to occupy the field exclusively-does not apply to his case. We agree that Congress's express recognition of the State's Jurisdiction over its territorial waters demonstrates that Congress did not intend to occupy the fisheries field exclusively.

Kalve relies on the third prong of the test in support of his argument that we should affirm the district court's dismissal of the charges against him. Specifically, Kalve argues that the State's sablefish regulation is preempted by federal law because it directly conflicts with the federal regulations implementing the federal IFQ sablefish program. In support of his argument, Kalve relies on the federal definition of IFQ regulatory area:

IFQ regulatory area means: ... (2) with respect to IFQ sablefish, any of the three regulatory areas in the [Gulf of Alaska] . and all waters of the State of Alaska between the shore and the inshore boundary of such regulatory areas and sub-areas, except waters of Prince William Sound and areas in which sablefish fishing is managed under a State of Alaska limited entry[]

Kalve also relies on two other federal regulations. The first authorizes an IFQ permit holder to harvest IFQ sablefish from a specified IFQ regulatory area at any time during an open fishing season. The second provides that fishing for sablefish in any IFQ regulatory area may be conducted in any fishing year during the period specified by the Regional Administrator of the National Marine Fisheries Service.

The parties agree that actual conflict between state and federal law arises when compliance with both federal and state law is physically impossible or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of federal law." We now examine whether there is actual conflict between the state and federal regulatory schemes.

Kalve argues that the State's closure of the sablefish fishery stood as an obstacle to the accomplishment and purpose of the federal IFQ management program and made it physically impossible for him to comply with the federal regulations that authorized him (as an IFQ holder) to fish for sablefish within the IFQ regulatory area-a 200-mile zone that included the three-mile zone of state waters. But the federal regulations did not require Kalve to fish in state waters; rather, those regulations authorized him to fish there. Thus, the true question is the intended seope of that federally granted authority. Did the United States Department of Commerce intend to authorize IFQ holders to harvest sablefish in these waters, despite any contrary state law? Or did the department intend to authorize IFQ holders to fish for sablefish so long as their fishing did not conflict with applicable state law?

We conclude that the federal regulations are not intended to supplant applicable state regulations. We reach this conclusion based on another section of the Magnuson Act regulations, entitled "Relation to Other Laws." One provision of that section declares that "conservation and management of groundfish in waters of the territorial sea ... of the State of Alaska" are governed by 5 AAC 28 and by Title 16 of the Alaska Statutes. In other words, the federal law is intended to be a concurrent regulation of the sablefish fishery in Alaska waters, not an exercise of exclusive control. Kalve was obligated to

conform his conduct to both the federal and the state sablefish regulations.

The judgment of the district court is REVERSED; the charge filed against Kalve is reinstated.

      . 16 U.S.C. §§ 1801-1883 (1994 & West Supp. 2000).

      . See 50 C.F.R. §§ 679.2, 679.4(d)(4)@).

      . See United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975); United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950); United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947).

      . Native Village of Eyak v. Trawler Diane Marie, Inc., 154 F.3d 1090, 1092 (9th Cir.1998), cert. denied, 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 234 (1999).

      . Id.

      . 43 U.S.C. § 1301 et seq.

      . See 43 U.S.C. § 1311(a).

      . See U.S. Const. art. VI; "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

      . See International Investors v. Business Park Fund, 991 P.2d 219, 226 (Alaska 1999).

      . Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995).

      . Webster v. Bechtel, Inc., 621 P.2d 890, 898 (Alaska 1980) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 10 L.Ed.2d 248] (1963)).

      . Totemoff, 905 P.2d at 958 (quoting Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605 [111 S.Ct. 2476, 115 L.Ed.2d 532] (1991)).

      . 16 U.S.C. § 1856(a).

      . 50 C.F.R. § 679.2.

      . See 50 C.F.R, § 679.4(d)(4)(1).

      . See 50 CFR. § 679.23(g)(1).

      . Quinn v. Alaska State Employees Ass'n, 944 P.2d 468, 471 (Alaska 1997).

      . 50 C.FR. § 679.3(b). Federal law generally prohibits IFQ permit holders from discarding the sablefish they catch before they have satisfied their quota. See 50 C.F.R. § 679.7(0(11). But the regulation suspends this prohibition "in waters within the State of Alaska [when] discard of sablefish is required under [the] laws of the State of Alaska." Id. 679.7(0(11)().


text:
    Stephan H. IVANOFEF, Sr., Appellant, v. STATE of Alaska, Appellee.
    No. A-7278.
    Court of Appeals of Alaska.
    Sept. 29, 2000.

      Paul E. Malin, Assistant Public Defender, Anchorage, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Ben M. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   0 P I N I 0 N

STEWART, Judge.

Stephan H. Ivanoff, Sr., appeals his conviction for fourth-degree misconduct involving a controlled substance. Ivanoff argues that the superior court erred in concluding that probable cause supported the issuance of a search warrant for his home. Ivanoff also argues that the court erred in concluding that execution of the warrant at night was authorized. Because we conclude that the record before the magistrate does not support a probable cause finding, we reverse.

Facts and proceedings

On Friday, February 20, 1998, at 7:80 p.m., Robert Cyr called the Kotzebue Police Department to report that his wife, Annie Cyr, had purchased a bottle of whiskey from someone in town. The purchase was unlawful because Kotzebue was a local option community where the sale of alcohol was prohibited. About thirty minutes later, Corporal Eric Swisher and Officer Rocky Norris of the Kotzebue Police Department went to Cyr's home and spoke to Annie Cyr about the purchase. She said that she bought the alcohol from Otto Kenworthy.

Later in the evening, Swisher and Norris went to Kenworthy's home to speak with him. They told Kenworthy that he was not under arrest and that he did not have to talk to them. Nevertheless, Kenworthy told them that he had sold a bottle of whiskey to Annie Cyr earlier that day.

Both officers noticed that Kenworthy smelled like marijuana. They saw a rolled-up baggie sticking out of the chest pocket of his bib overalls. Kenworthy told the officers that he was not selling marijuana, but that he had bought the "quarter bag" of marijuana for $100 from Ivanoff earlier that day at Ivanoff's house.

Kenworthy said that he went to Ivanoff's home, knocked on his door, and asked him whether he had any marijuana to sell. He gave Ivanoff two $50 bills, and Ivanoff gave him a baggie of marijuana in return. Ken-worthy claimed that Ivanoff retrieved the marijuana from a green fanny pack lying next to him on the couch. Kenworthy also told the officers that Ivanoff's house was the green house across from 678 Caribou Drive. Kenworthy said that when he purchased marijuana from Ivanoff at other times, Iva-noff retrieved the marijuana from a back room in his house. Finally, Kenworthy told the officers that Ivanoff shipped the marijuana to Kotzebue on Alaska Airlines and that Ivanoff sold marijuana to several other people in town.

Swisher and Norris returned to the police station at about 11:00 p.m. They discussed the case with Officer Pat Octuck, the department's drug enforcement investigator. Oc-tuck said that during an investigation of Kenneth Hall, Hall told Octuck that Ivanoff was selling drugs. Hall was known as a major drug dealer in Kotzebue and had been convicted of selling drugs several times.

At about 2:00 a.m. on February 21, 1998, the officers appeared before Magistrate Sherry A. Clark and applied for a search warrant. Kenworthy did not appear before the magistrate. The officers submitted an affidavit in support of the application. Magistrate Clark reviewed the affidavit and initially indicated:

I have read your affidavit and I find that I have probable ecause for a search warrant, but I just want to ask a couple of questions about either the veracity or the truthfulness of your informant, or any possibility of corroborating the informant's statement. [Slo if you have information on Otto Ken-worthy ... or [Stephan] Ivanoff, I need for you to tell me about it.

Swisher testified that he heard from Officer Octuck that while investigating Hall on a separate drug case, Hall mentioned that Iva-noff was selling drugs Magistrate Clark stated: "I think that will work because that way we have some corroboration of the fact that Mr. Ivanoff does sell, or possibly sell, and it would corroborate the informant's statement."

Norris then testified that Kenworthy was advised that he was not under arrest and that he did not have to speak if he did not want to. Norris also testified that Kenwor-thy had voluntarily admitted that he sold alcohol and that Kenworthy's statements were against his penal interest. Magistrate Clark noted that Kenworthy had personal knowledge and then found "probable cause to believe that on the premises [of Ivanoff's home] there is ... marijuana which is evidence of the crime of misconduct involving a controlled substance in the fifth degree."

The magistrate also directed that the warrant could be served at night. The officers executed the warrant at 2:27 a.m., and seized more than 800 grams of marijuana and $4,600 in cash.

Ivanoff was indicted on a charge of fourth-degree misconduct involving a controlled substance for possessing one ounce or more of marijuana with intent to deliver. Ivanoff moved to suppress the evidence obtained as a result of the search warrant. Superior Court Judge Richard H. Erlich concluded that Ken-worthy's statements qualified as admissions against his penal interest, sufficient to meet the veracity prong of the Aguilar-Spinelli test and denied Ivanoff's motion.

Ivanoff pleaded no contest, reserving his right to appeal the denial of his motion to suppress. Judge Erlich imposed a non-presumptive sentence of 18 months with 12 months suspended. This appeal followed.

Discussion

Did the police present sufficient evidence to satisfy the Aguilar-Spinelli test?

The warrant to search Ivanoff's home was issued on the basis of information supplied to the police by an informant-Otto Kenworthy. Ivanoff contends that Kenworthy's eredibility was not sufficiently established to support a finding of probable cause.

In addition to the officers' testimony, Magistrate Clark was presented with an affidavit, which stated in relevant part:

[T}he facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: On February 20, 1998, Officers Rocky Norris and Eric Swisher received a call from Robert Cyr about his wife, Annie Cyr, buying a bottle of R & R whiskey from Otto Kenworthy. When Officer{s] Norris and Swisher met with Otto Kenworthy, he told the Officers that he sold three bottles of R & R whiskey on 02-20-98, one [each] to Annie Cyr, David Davis, and Dan Henry.
The Officers smelled a strong odor of Marijuana on Otto Kenworthy's person. Corporal Swisher saw a rolled-up baggie sticking out of Otto Kenworthy's chest pocket on his bibs. When asked, Otto Kenworthy said that he bought the 'Quarter Bag' of Marijuana for $100.00 from [Stephan] Ivanoff, who lives in the green house across from 678 Caribou Drive, on 02-20-98. (A 'quarter bag' is slang for 8.5-grams of Marijuana.)
Otto Kenworthy said that when he knocked on [Stephan] Ivanoff's door on 02-20-98, he asked [Stephan] Ivanoff if he had any Marijuana. Otto Kenworthy said that he paid [Stephan] Ivanoff two, fifty-dollar bills for the Marijuana. Otto Kenworthy said that [Stephan] Ivanoff took the money and put it into a green Fanny Pack, which was laying on the couch beside [Stephan] Ivanoff[.] [Stephan] Ivanoff [then] took out the baggie of Marijuana from the Fanny Pack and gave it to Otto Kenworthy.
Otto Kenworthy said that he bought Marijuana from [Stephan] Ivanoff a couple of times this month before this and on those separate occasions, [Stephan] Ivanoff went to the back room of the house to get the Marijuana. Otto Kenworthy said that [Stephan] Ivanoff brought the Marijuana up to Kotzebue on Alaska Airlines. Otto Kenworthy told the officers that [Stephan] Ivanoff sells Marijuana [to] several people in town.
Otto Kenworthy told the officers this information against his own personal interest. Otto Kenworthy's statement was tape-recorded. The officers know [Stephan] Ivanoff to live at 668 Caribou Drivel,] Kotzebue, Alaska, which is a green house across from 678 Caribou Drive.

When the State relies on informant hearsay to establish probable cause for a search warrant, a magistrate considering the application must apply the two-prong Aguilar-Spinelli test. Under this test, the applicant for the search warrant must provide the magistrate with sufficient information to independently evaluate both the basis of knowledge and veracity prongs of the test.

Both parties agree that Kenworthy asserted sufficient personal knowledge to satisfy the first prong of the Aguilar-Spinelli test. According to the search warrant application, Kenworthy had personal knowledge of Iva-noff's possession and sale of marijuana because he purchased some from him earlier that day.

However, Ivanoff argues that there was insufficient evidence presented to the magistrate to establish Kenworthy's veracity under the second prong of the test. Under the second prong of the Agmilar-Spinelli test, to establish the informant's veracity, the applicant must inform the magistrate of "the underlying cireumstances [to support the conclusion] that the informant was credible or that his information was reliable."

Informants are divided into two categories under the Aguilar-Spinell. analysis: citizen informants and police informants. Both the State and Ivanoff agree that Ken-worthy was acting as a police informant when he spoke to the police. Police informants are often associated with the criminal milieu and are subject to mistrust because they may provide tips in exchange for payment, favorable treatment in the criminal process, or personal advantage or revenge. However, a police informant's reliability may be established in the following ways: by demonstrating his past reliability, by independent police corroboration of several detailed facts in the informant's tip, or by the informant's admission against penal Here, the parties agree that no evidence of Kenworthy's past reliability was offered to the magistrate. Therefore, the discussion turns to determining whether there was another basis to conclude that Kenworthy's statement was credible.

The State argues that three factors cumulatively establish the Aguilar-Spinelli veracity prong. First, the State argues that Kenworthy's statement was against his penal interest and made at a time when the police were already able to charge him with a felony offense. Second, the State argues that Kenworthy's statement was independently corroborated by "another specifically identified informant"-Hall's tip to Octuck about Ivanoff that was relayed by Corporal Swisher. And third, the State argues that Kenworthy's statement contained self-verifying details.

Were Kenworthy's statements against his penal interest?

-In Elerson v. State, this court noted that in certain cireumstances, an informant's admission against his penal interest can be sufficient to establish eredibility.

"What is needed is a showing that 'the informant's statements against his own penal interest were closely related to the criminal activity' for which probable cause to arrest or search is being established...." Onee the appropriate nexus has been established, the next "fundamental question is whether the informant would have perceived his remarks as highly incriminating." []

Thus, under Elerson, Kenworthy's admissions must have been closely related to Iva-noff's criminal activity that was the subject of the search warrant and Kenworthy must have perceived his remarks as highly incriminating.

Kenworthy's admission that he bought the marijuana from Ivanoff establishes the nexus between his admissions and Ivanoff's erimi-nal activity. Moreover, Ivanoff has not argued that this nexus was lacking.

Ivanoff argues that Kenworthy would not necessarily have viewed his statements as highly incriminating. Kenworthy indicated where and how he purchased marijuana from Ivanoff, both in the current occasion and on previous occasions. The State claims that Kenworthy's admissions could conceivably support his prosecution for soliciting Ivanoff to sell him marijuana under AS 11.31.110 and AS 11.71.050. But Ken-worthy's potential liability for solicitation is dubious because, under AS 11.16.120(b)(2), a purchaser of controlled substances is not legally accountable when his conduct is inevitably incidental to the commission of the offense. The State also points out that Kenworthy could be prosecuted for possession of marijuana under AS 11.71.060(a)(1). But this charge is a class B misdemeanor and a minor offense compared to the potential crime that was the subject of discussion between the police and Kenworthy: sale of alcohol in a local-option area, a class C felony.

The State also argues that because Ken-worthy was subject to prosecution for the alcohol offense, his statement is more eredi-ble because he risked disfavor with the prosecution if his tip was false. We recognized the potential merit of this principle in State v. Bianchi. There we noted Professor La-Fave's analysis that an informant is considered more reliable when he makes a statement against penal interest knowing that the police have evidence to charge him with a crime:

[OJne who knows the police are already in a position to charge him with a serious crime will not lightly undertake to divert the police down blind alleys. Thus, where the circumstances fairly suggest that the informant "well knew that any discrepan-cles in his story might go hard with him," that is a reason for finding the information reliable.[]

Kenworthy knew at the time he made these statements about purchasing marijuana that the police were in a position to charge him with the felony of selling alcohol in a local option area. But it is not clear whether Kenworthy believed he would face any official displeasure if, when Ivanoff's house was searched, the police found no marijuana. The police already suspected that it might be too late to catch Ivanoff with the marijuana. When the officers applied for the warrant for Ivanoff's house, they told the magistrate that it was essential to serve the warrant quickly because they feared that Ivanoff's supply of marijuana would soon be sold-that very night-because it was a payday and the beginning of a weekend. This being the case, it does not seem likely that Kenworthy would face adverse consequences if the search failed to turn up evidence to substantiate his statements about Ivanoff's selling marijuana.

Kenworthy's statement did contain admissions that he possessed marijuana in addition to the crime for which the police were

interviewing him (the alcohol violation). In Atkinson v. State, a juvenile informant admitted that he possessed marijuana after his father reported him to the police. The juvenile told the police that he had taken marijuana from Atkinson's house more than once after breaking in with the intention of stealing the marijuana. We noted that the juvenile's admission to possessing marijuana might not have been sufficiently against his penal interest to establish the reliability of his tip that there was marijuana growing in the defendant's home. However, the informant admitted to far more than "the misconduct for which he had already been apprehended: he acknowledged engaging in a series of burglaries at [the defendant's] house that had as yet evidently gone undetected." This court held that this admission was clearly against the juvenile's penal interest.

Kenworthy's admission that he bought marijuana from Ivanoff on a few occasions and particularly on the day in question hardly incriminated Kenworthy to the extent of the admission in Atkinson. Kenworthy did admit that he purchased marijuana from Iva-noff a few times and obviously the police found him in possession of three grams at home. But we noted in Atkinson that an informant caught in possession of marijuana has "little to lose by admitting his possession and much to gain by naming someone else who could also be blamed." We also noted that courts are reluctant to recognize these types of statements (by drug informants) as admissions against an informant's penal interest. Furthermore, there is no evidence in this record nor any findings that Kenwor-thy, in fact, understood that his statements about the marijuana were particularly incriminating. We conclude that the information about Kenworthy's statements submitted to the magistrate did not establish that Ken-worthy would have viewed his statements as particularly incriminating. Therefore, Ken-worthy's statements do not qualify as admissions against penal interest.

The State also argues that the police had independent corroboration of Kenwor-thy's tip from Hall's comment to Officer [Oc-tuck]. Swisher's testimony at the search warrant hearing that he "heard from Officer [Octuck] ... with the Kotzebue Police Department that while investigating Kenneth Hall on [a] separate drug case, he had mentioned that ... Ivanoff was selling drugs." However; in his final order, Judge Erlich based his denial of the suppression motion solely on his finding that Kenworthy made statements against his penal interest. Nevertheless, the State argues that Hall's statement provided additional "cross-corroboration" for Kenworthy's admission.

"For purposes of the Aguilar-Spinel-li doctrine, the veracity of a statement given by a police informant whose reliability is unknown may be established by a corroborating statement from another informant[.] 'Cross-corroboration among informants is a well-accepted method of demonstrating the validity of the information given.'" However, in Carter v. State, we noted that cross-corroboration does not enhance credibility when it involves "[the mere repetition of a conclusory accusation." Here, Hall's statement was a flat claim that Ivanoff sold drugs without any support for that conclusion. Thus, Hall's statement that Ivanoff sold drugs is a "conclusory allegation" and does not qualify as eross-corroboration.

The State also argues that Kenwor-thy's statements were "self-verifying"; that is, the statements, by themselves, established Kenworthy's reliability because they contained a "wealth of details" concerning Ken-worthy's purchase of marijuana from Ivanoff. The detail contained in an informant's tip can be used to establish the personal knowledge prong of the Aguilar-Spinelli test, but it cannot be used to establish the veracity or credibility prong. This point is explained by Professor LaFave in this treatise on the law of search and seizure:

[The self-verifying detail test should be used only with respect to the basis of knowledge and not with respect to veracity.... As explained in Stamley v. State, []
the "self-verifying detail" technique cannot repair a defect in the "veracity" prong. The notion that great detail implies personal observation rather than the overhearing of barroom gossip, presupposes an honest informant. If the informant is concocting a story out of whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail[ ] tells us nothing about "veracity." []

We therefore reject the State's argument that Kenworthy's credibility was established by the detail of his statements.

From our review of the record, we conclude that the record before the magistrate did not satisfy the Aguilar-Spinelli test. Therefore, the search warrant was not based on probable cause. Because the warrant was invalid, we need not reach Ivanoff's claim that the magistrate should not have authorized the execution of the warrant at night.

Conclusion

The judgment of the superior court is RE-

VERSED.

      . AS 11.71.040(a)(2).

      . Id.

      . See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 LEd.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 LEd.2d 637 (1969); State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985).

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). .

      . See Jones, 706 P.2d at 324.

      . Id. at 324-25 (citing Davis v. State, 499 P.2d 1025, 1029 (Alaska 1972), rev'd on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

      . See Evans v. State, 550 P.2d 830, 842 n. 35 (Alaska 1976) (quoting Fresneda v. State, 483 P.2d 1011, 1015 (Alaska 1971); Effenbeck v. State, 700 P.2d 811, 813-14 (Alaska App.1985).

      . See Lloyd v. State, 914 P.2d 1282, 1286 (Alaska App.1996); Jones, 706 P.2d at 325; Davis, 499 P.2d at 1029.

      . 732 P.2d 192 (Alaska App.1987).

      . See id. at 194; Jones, 706 P.2d at 325.

      . Elerson, 732 P.2d at 194 (quoting 1 Wayne R. LaFave, Search and Seizure § 3.3(c), at 531 (1978)).

      . Alaska Statute 11.31.110(a) provides:
      A person commits the crime of solicitation if, with intent to cause another to engage in conduct constituting a crime, the person solicits the other to engage in that conduct.

      . Alaska Statute 11.71.050(a)(2) provides:
      [A] person commits the crime of misconduct involving a controlled substance in the fifth degree if the person ... manufactures or delivers, or possesses with the intent to manufacture or deliver, one or more preparations, compounds, mixtures, or substances of an aggregate weight of less than one-half ounce containing a schedule VIA controlled substance, for remuneration(.]

      . Alaska Statute 11.16.120(b)(2) provides:
      Except as otherwise provided by a provision of law defining an offense, a person is not legally accountable for the conduct of another constituting an offense if the offense is so defined that the person's conduct is inevitably incidental to its commission.

      . See State v. Burden, 948 P.2d 991, 992-93 (Alaska App.1997).

      . See AS 04.16.200(b).

      . 761 P.2d 127 (Alaska App.1988).

      . Id. at 131 (quoting 2 Wayne R. LaFave, Search and Seizure § 3.3(c), at 129 (3d ed.1996)).

      . See AS 04.11.010; AS 04.16.200(b).

      . 869 P.2d 486 (Alaska App.1994).

      . See id. at 489.

      . See id.

      . See id. at 491.

      . Id.

      . See id.

      . Id.

      . See id.

      . Lewis v. State, 862 P.2d 181, 186 n. 5 (Alaska App.1993) (quoting State v. Prince, 760 P.2d 1356, 1359-60 (Or.App.1988) (en banc)).

      . 910 P.2d 619 (Alaska App.1996).

      . Id. at 625.

      . See, eg., Schmid v. State, 615 P.2d 565, 574-75 (Alaska 1980).

      . 19 Md.App. 507, 313 A.2d 847 (1974).

      . 2 Wayne R. LaFave, Search and Seizure § 3.3(e), at 156-57 (3d ed.1996).