text:
    Globen A. DIAZ, for Himself and on Behalf of All Others Similarly Situated, Appellant, v. SILVER BAY LOGGING, INC., Appellee.
    No. S-10023.
    Supreme Court of Alaska.
    Sept. 27, 2002.

      Laurel K. Tatsuda, Law Office of Laurel K. Tatsuda, Anchorage, for Appellant.
    Robert K. Reges, Jr., Ruddy, Bradley, Kolkhorst & Reges, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.
   OPINION

MATTHEWS, Justice.

The main question in this case is whether a regulation prohibiting an employer from deducting the costs of food and lodging from an employee's pay applies to all such deductions or only those that reduce the employee's pay below the minimum wage. We conclude that the latter meaning applies because the language of the regulation will not reasonably support the former meaning.

The regulation in question is 8 AAC 15.160 as it existed until 1998. It was promulgated under section 28.10.085 of the Alaska Wage and Hour Act (AWHA) and became effective on September 28, 1985. We set out in the margin the text of the relevant subsections of the regulation, 8 AAC 15.160(a) and (d), and the statutory section which authorized the regulation, AS 28.10.085.

(Globen Diaz worked as a logger for Silver Bay Logging, Inc., during the logging seasons of 1994 through 1997. While so employed he stayed at Silver Bay's remote camps. Pursuant to a written agreement, Silver Bay deducted from his earnings $10 a day for board and lodging. This deduction did not reduce his wage rate below the statutory minimum wage. No alternative public board and lodging facilities were accessible to Diaz at any of the camps.

Diaz brought this action against Silver Bay on his own behalf and as a class representative for others similarly situated claiming, among other things, that the board and lodging deductions were unlawful under 8 AAC 15.160. Silver Bay moved for summary judgment. After several rounds of briefing and oral argument, summary judgment was granted and a final judgment was entered.

Diaz's main contention was and is that 8 AAC 15.160(d) prohibits deductions for board and lodging except where an employee opts out of alternative board and lodging, an exception not applicable to his case as alternative board and lodging was never available. In the superior court Silver Bay took issue with this interpretation and argued that subsection .160(d) does not apply to deductions that do not reduce an employee's wage rate below the minimum wage. The superior court took a third position. The court ruled that subsection (d)(1) states a requirement that is additional to those of subsections (d)(2) and (d)(8) and that it only applies where alternative facilities are available. When alternative facilities are not available only subsection (d)(2) and (d)(8) must be satisfied. The court's ruling implies that subsection (d) applies to cases where the deduction does not reduce compensation to a wage rate below the statutory minimum.

For the reasons that follow we conclude that subsection (d) does not bar deductions that are permitted under subsection (a). Instead, subsection (d) permits, under the limits it expresses, deductions that would otherwise be barred by subsection (a). We thus agree with the position taken by Silver Bay before the superior court that subsection (d) does not apply to deductions that do not reduce an employee's wage rate to below the minimum wage.

The prefatory language of subsection (d)"nothing in (a) of this section prohibits"-ecan only function to permit conduct that subsection (a) would otherwise prohibit, it cannot prohibit conduct that subsection (a) permits. Subsection (a) prohibits written deductions that "have the effect of reducing an employee's wage rate below the statutory minimum...." Thus subsection (d) can permit deductions that would take a wage rate below the minimum because those deductions are prohibited by subsection (a). But it cannot serve to prohibit deductions that do not reduce wages below the minimum, because such deductions are permitted by subsection (a).

Meaning, of course, can be conveyed by a negative implication. But the negative implication that might otherwise be drawn by a failure to satisfy one of the three conditions of subsection (d) is limited by the "nothing in (a) of this section prohibits" prefatory language of subsection (d). The failure to meet one of the (d) conditions implies only that conduct prohibited by subsection (a) is indeed prohibited.

If the prefatory language to subsection (d) were "Notwithstanding (a), deductions are prohibited unless, (1) ... (2) ... (8)" the interpretation Diaz offers would be correct. But those are not the words used, and the words that are used will not, in our view, reasonably bear Diaz's offered meanings.

The Alaska Department of Law has interpreted subsection .160(d) as we do. The attorney general, in a memorandum to the Department of Labor dated April 28, 1986, concerning the meaning of subsection .160(d), stated:

Thus, if the conditions in paragraphs (1)-(8) [of .160(d)] are met (Re., for our purposes, the employee is not at a remote site) nothing in (a) prohibits a deduction for room and board. Although one inference that might be drawn from this is that if (1)-(8) are not met, (a) would prohibit such a deduction, a reading of (a) does not support this conclusion.... When (d) is read together with subsection (a), it seems to provide that if the conditions in paragraphs (d)(1)-(@) are met, a written agreement for deductions is valid even though it would reduce the employee's wage rate below the minimum. There is nothing else in subsection (a) that would appear to limit the employer's ability to deduct the cost of room and board from an employee's wages. Nowhere in subsections (a) or (d) is the situation explicitly addressed regarding deductions when the conditions listed in (d)(1)-(8) are not present (for example, when alternative facilities are not accessible), and therefore, the general prohibition in (a) against agreements for deductions that reduce the employee's wage rate below the statutory minimum is the only limitation on deductions in that situation. Stated simply, if there are alternative facilities available, and the employee declines to use them, then deductions for the cost of facilities furnished by the employer are allowed, even though they have the effect of reducing the employee's wage below a minimum wage; if alternative facilities are not available, then the exception in subsection (d) to the limitations of (a) does not apply, and deductions for facilities furnished by the employer may not reduce the employee's wages below the statutory minimum. In short, nothing in 8 AAC 15.160 prohibits deductions for room and board in a remote-site situation if the deductions do not take the wages below the statutory minimum.... (Footnote omitted.)

Diaz argues that his interpretation of 8 AAC 15.160(a) and (d) reflects the longstanding and consistent position of the Alaska Department of Labor. Diaz argues that his, and the Department of Labor's, position is therefore entitled to deference in accordance with the "well-settled rule that courts are to give deference to an agency's construction of its own legislative-type regulations...."

It appears that the Department of Labor interprets subsection .160(d) in accordance with Diaz's position. Counsel for Diaz wrote the department in 1998, asking about the meaning of subsection .160(d). JR. Carr, Chief of Labor Standards, responded that subsection (d) applies regardless of whether a "deduction reduces the wages below the statutory minimum wage. ..." And there are internal memoranda and correspondence dating back to 1986, which suggest that this was the position of the department. In addition, Diaz has gathered affidavits and deposition testimony of officials of the Department of Labor indicating that subsection (d) was, from the outset, meant to apply to deductions that did not reduce wages below the minimum wage. On the other hand the testimonial evidence as to the department's original interpretation of subsection .160(d) is in conflict. Donald Wilson, who as Deputy Director of Labor Standards in the Department of Labor drafted subsection .160(d), testified that it did not bar a deduction that "does not reduce the employee's wage below the statutory minimum."

Given the 1986 opinion of the attorney general and the conflicting testimonial evidence of labor department officials, the deference due the Department of Labor's current interpretation of subsection (d) is debatable, but, in context, the point is unimportant. Our rule is that an agency's interpretation of its own regulation "is normally given effect unless plainly erroneous or inconsistent with the regulation." Here the department's interpretation does not satisfy the conditions of this rule because, as we have explained above, it is inconsistent with the language of the regulation and, as such, it is unreasonable.

Diaz also argues that the board and lodging deduction violated the second sentence of 8 AAC 15.160(a) because Diaz was required to "give up ... the compensation to which [he] is entitled." The superior court ruled that a written agreement between an employee and employer made before the employment relationship commenced would not fall within the prohibition of this sentence:

The terms of 8 AAC 15.160(a) apply only where the employer/employee relationship has commenced. Prior to accepting and commencing employment with [Silver Bay], Diaz was not "entitled" to any remuneration because he was not yet an employee of [Silver Bay] and had not performed any services for them.

This rationale is correct. The concept of entitlement must refer to an employee's contractual or statutory and regulatory rights. In this case contracts between Silver Bay and Diaz entered into at the outset of each season provided for a $10 lodging and board deduction. No statutory or regulatory provision prohibited this deduction. Thus Diaz was not required to give up any part of compensation to which he was entitled.

Diaz also argues that the superior court should not have granted summary judgment concerning claims he asserted for unpaid overtime compensation and under-reporting of his wages to the Internal Revenue Service and the Social Security Administration. His argument concerning these claims is that Silver Bay should have added the $10 (divided by 8 for an 8-hour day) to his stipulated hourly pay rate for purposes of caleu-lating his overtime rate of pay and reported it as income for purposes of tax withholding. The superior court determined that these claims lacked merit because the furnishing of board and lodging was not a benefit furnished by Silver Bay as part of Diaz's compensation package: "Because the court finds that the deduction for room and board does not constitute a wage, Diaz's claims for un-derreporting of income, failure to withhold income and failure to pay taxes on the unreported income are all precluded as a matter of law." This conclusion is also correct. Diaz was not paid $10 or its equivalent in food and lodging, he was charged $10. To the extent that the charge reflected the value of what he received, this was not an employee benefit. He does not contend that the value of the board and lodging exceeded $10 per day.

Diaz also argues that the court's award of $3500 in attorney's fees was error. Silver Bay's actual attorney's fees were $142,542. The norm under Civil Rule 82 in a summary judgment case would be to award twenty percent of actual fees-here $28,-508-to Silver Bay as the prevailing party." Diaz correctly notes that absent a finding of bad faith a loging claimant under the AWHA may not be subjected to an award of attor- , ney's fees, and that he litigated in good faith.101

The trial court adhered to this rule. But two of Diaz's claims were not covered by the AWHA. These were claims for breach of contract and for violation of AS 23.05.140(b). Civil Rule 82 applies to these claims. The trial court ordered Silver Bay to apportion its fees between the AWHA and these claims. Silver Bay made an effort to do so but the trial court did not accept Silver Bay's calculations. The court allocated most of the work performed by Silver Bay's counsel to the AWHA claims and attributed only a little less than 124% of the total effort to the other claims. Decisions such as this are discretionary. The court's allocation here was easily within the bounds of its discretion.

For these reasons the judgment of the superior court is AFFIRMED.

FABE, Chief Justice, with whom BRYNER, Justice, joins, dissenting.

CARPENETI, Justice, not participating.

FABE, Chief Justice,

with whom BRYNER, Justice, joins, dissenting.

I. INTRODUCTION

Due to the remoteness of Silver Bay's logging operations and the fact that it frequently moved those operations during the logging season, it was necessary for Silver Bay to house its employees on "highly mobile, waterborne" barges in order to conduct its business. Thus, Silver Bay's board and lodging facilities were indispensable to Silver Bay's logging business and were furnished primarily for Silver Bay's convenience. No alternative public facilities were available to Diaz that were accessible to Silver Bay's worksite, and it was not Diaz's choice to live at Silver Bay's facilities. For these reasons, the cost of the board and lodging provided by Silver Bay cannot be deducted from Diaz's earnings.

The plurality's interpretation of 8 AAC 15.160(d) to allow such a deduction flatly ignores the federal regulatory definitions and interpretations that have been adopted by the Alaska Department of Labor pursuant to its grant of authority from the legislature. And the plurality's decision affords no deference to the Department's longstanding interpretation of its own regulation to prohibit board and lodging deductions where no alternative public facilities are accessible to the worksite. Finally, the plurality's unique interpretation of the regulatory scheme finds no support in case law from any jurisdiction, federal or state. This is because its interpretation would place the Alaska Wage and Hours Act in direct conflict with the federal Fair Labor Standards Act (FLSA) by allowing an employee to deduct board and lodging costs from wages under cireumstances not recognized as reasonable under FLSA regulations. We have held that "the Alaska Act should be construed to avoid conflicts with the FLSA." And "it is only where state law is more restrictive or more favorable to the employee that it governs in lieu of the federal Act." I therefore disagree with the plurality opinions.

II. THE ALASKA DEPARTMENT OF LABOR HAS ADOPTED FEDERAL REGULATORY DEFINITIONS THAT PREVENT DEDUCTION OF SILVER BAYS LODGING AND BOARD FROM DIAZ'S PAY.

The Alaska Legislature has granted the Alaska Department of Labor broad disere-tionary power to formulate policy consistent with the Alaska Wage and Hours Act. Alaska Statute 28.10.145 requires us to apply federal regulatory definitions where terms have not been defined by the Alaska Department of Labors. The legislature has left it to the Department's discretion whether federal definitions can be applied consistently with the Alaska Wage and Hours Act. The Department has used this broad grant of discretionary authority to adopt regulations requiring an employer's lodging and board charges to be "reasonable" and has incorporated federal regulations and interpretations to determine the "reasonable cost" of the employer's board and lodging deductions. Under these federal regulations, "reasonable cost" does not include the cost of furnishing board or lodging found to be primarily for the benefit or convenience of the employer. Thus, under the Alaska Department of Labor's regulations, an employer may deduct from an employee's wages the cost of employer-provided board and lodging facilities only if the facilities are furnished primarily for the benefit of the employee.

The relevant state regulation, 8 AAC 15.160(d)(8), provides that the cost of employer-furnished board and lodging must be reasonable:

Nothing in (a) of this section prohibits deductions from earnings, based on a written agreement, to reimburse an employer for the reasonable cost of furnishing board and lodging, if
(3) the cost to the employer for the use of the employer's board and lodging facilities, is reasonable and without profit to the employer

(Emphasis added.) The regulations expressly provide that the director of the Wage and Hour Division will make a determination of "reasonable cost" based on standards set forth under the FLSA, adopting by reference the FLSA's regulations pertaining to the determination of "reasonable cost." The language of 29 C.F.R. § 581.3(d)(1) excludes from the definition of "reasonable cost" the cost of furnishing meals and lodging that are primarily for the benefit or convenience of the employer:

The cost of furnishing "facilities" found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages.

In addition, "reasonable costs" may not exceed the employer's actual cost," may not include a profit to the employer, and may not exceed the "fair rental value" or "fair price" of the employer-provided lodging.

Thus, to determine "reasonable costs" in accordance with these provisions of the Code of Federal Regulations, a threshold determination must be made as to whether the housing and meals at issue are being furnished primarily for the benefit or convenience of the employer or the employee. Only when the lodging and board are found to be provided primarily for the convenience of the employee does one move to the second step of evaluating whether the amount to be deducted from the employee's wages is the reasonable value of the furnished board and lodging. In this case, it is clear from the record that the lodging and board that Silver Bay furnished to Diaz were primarily for Silver Bay's benefit, and thus could not be deducted from Diaz's wages as "reasonable costs."

III. THE DEPARTMENT OF LABORS LONGSTANDING AND CONSISTENT INTERPRETATION PROHIBITS DEDUCTIONS OF LODGING AND BOARD COSTS FROM DIAZS WAGES.

In addition to adopting by reference the federal "convenience to the employer" doe-trine, the Department also codified this doctrine. Indeed, the language of 8 AAC 15.160(d)(1) expressly prohibits deductions for board and lodging in the two most common cireumstances where board and lodging have been found to be furnished primarily for the employer's business convenience or benefit: (a) where no alternative public board and lodging facilities are accessible to the work-site; and (b) where the employer requires the employee to accept the employer's facilities to meet some need of the employer even though alternative facilities are available. The Department's longstanding interpretation of 8 AAC 15.160 to prohibit lodging and board deductions where no alternative public facilities are accessible to the employer's worksite is both consistent and reasonable.

Alaska Administrative Code regulation 8 AAC 15.160(d)(1) provides that board and lodging deductions from wages are prohibited in two cireumstances: (a) at a remote location where there are no alternative public board and lodging facilities accessible to the worksite; and (b) where the employer requires the employee to use the employer's board and lodging even though alternative public housing is accessible to the worksite. This is how the Department of Labor has interpreted its regulation-disallowing such deductions even where they do not reduce the employee's pay below the minimum wage.

In 1998 Randy Carr, the Department's Chief of Labor Standards and Safety, issued an opinion letter to Diaz based on the specific facts of Diaz's employment with Silver Bay and concluded that employers may only deduct room and board from wages where alternative facilities are accessible to the worksite and employees voluntarily choose to reside in employer-provided facilities, regardless of whether they reduce the employee's pay below the minimum wage. Carr confirmed that "8 AAC 15.160(d)(1) requires that alternative facilities be accessible to the worksite and that use of the employer's facilities be voluntary in order for such a deduction [for lodging and board] to be allowed.... When work is performed at a remote site, the use of employer-provided room and board is a condition of employment. It is not voluntary. No deduction may be made." Moreover, in response to a query whether his conclusion "depend[s] in any way on whether the deductions from wages reduce an employee's wage rate below Alaska's statutory minimum rate," his answer was "No." Carr proceeded to point out that whereas 8 AAC 15.160(c) specifically states that deductions for transportation are allowed so long as they do not "reduce the employee's wages below the statutory minimum," no such requirement is contained in 8 AAC 15.160(d), leading to the conclusion that the prohibition of deductions from wages for involuntary lodging is entirely independent of the statutory minimum wage.

Carr later confirmed that this opinion letter accurately reflects both the Department's current interpretation of the regulation and its interpretation at the time of the regulation's adoption in 1985. An earlier opinion letter issued by Carr in 1985, at the time the regulation was being drafted, confirms the longstanding consistency of this interpretation. When asked if charges for room and board could be withheld from an employee's wages, Carr, then statewide Supervisor of the Labor Standards and Safety Division, responded:

Yes, if alternate facilities are available and the employee has declined the use of such alternate facilities.... Deductions for the cost of room & board are not permitted on floating processors or shore based operations where alternate facilities are not available.

We uphold an agency's interpretation of its own regulations unless it is "plainly erroneous." Although under this deferential standard we "exercise our independent judgment in determining the validity of an administrative regulation and in interpreting the underlying regulation," we "will not substitute our judgment for that of the ageney with regard to the efficacy or wisdom of the regulation." Even under the independent judgment standard, this court "gives some weight to what the agency has done, especially where the ageney interpretation is longstanding."

The plurality opinion today affords no deference to the Alaska Department of Labor's interpretation of 8 AAC 15.160. Carr testified that the Department's purpose in writing the regulation was to prevent employers from requiring employees at remote work sites to "shoulder the cost of the employers doing business." Thus, adoption of 8 AAC 15.160(d)(1) reflected a clear policy choice, and policies regarding the determination of allowable wage deductions are squarely within the Department's purview and expertise.

Moreover, the Department's interpretation is longstanding and, contrary to the plurality's suggestion, consistent. The Department has always maintained that 8 AAC 15.160 prevents employers from deducting the cost of board and lodging from employee wages at remote work sites where no alternative housing is available. Regulations implementing the Alaska Wage and Hours Act were not adopted until 1974, but at that time they did not address wage deductions for board and lodging. A 1969 letter from then Attorney General G. Kent Edwards provided that deductions for room and board were not permitted unless the director decided otherwise:

The Alaska Legislature enacted AS 28.10.085 as a permissive statute, leaving the board and lodging deductions at the discretion of the director. By doing so, if is apparent that the legislature intended that no board and lodging deductions be made unless and until the director so provides by regulation.

(Emphasis added.)

In 1982 a team from the Department began to redraft what is now 8 AAC 15.160. Notice of the proposed regulations was published in newspapers throughout Alaska in 1983, and hearings were held the same year. The record reveals that companies likely to be affected by the proposed regulation understood it to mean that employers operating in remote locations where no alternative lodging facilities were available would have to bear the cost of employee room and board." Donald Wilson, then Deputy Director of the Labor Standards and Safety Division, noted that the Department elected not to change the regulation in spite of opposition by employers as it was designed to prevent employers from shifting their costs to employees:

Comineo/Alaska, "The Alliance" and Colorado Mining, Inc. also took exception to 8 AAC 15.160. We do not intend to make any changes to this section since the law is quite clear with regard to employers causing their employees to shoulder the cost of the employer doing business.

The Department's regulations were adopted in 1985 and have remained unaltered.

In accordance with its purpose of preventing employers from shifting their costs to employees, the Department has from the regulation's inception interpreted it to prevent employers from deducting the cost of room and board from employee wages where there are no alternative facilities available. Jim Robison, Commissioner of the Department of Labor from 1982 to 1986, wrote a letter to Warren Gore, then Executive President of the AFL-CIO, explaining that employers were not permitted to charge their employees to use employer-owned facilities where no public lodging was available:

Governor Sheffield has provided me with a copy of your letter ... concerning employer campsite requirements for remote work. Having reviewed your comments, I would like to offer an explanation of the Department of Labor's interpretation of these regulations.
Employers operating in remote areas where there is no public housing available which is immediately accessible or in close proximity to the work site are prohibited from charging employees for the use of any employee facilities....

An affidavit submitted by Robison in this case confirms that the letter to Gore accurately reflected the Department's interpretation of 8 AAC 15.160(d) at the time it was adopted. Robison also specified that it was Department policy that employers who operate in remote areas with no public housing were prohibited from charging employees for the use of employer-owned room and board. Finally, Robison confirmed that the opinion letter written by Carr for Diag's case aceu-rately reflects the Department's interpretation.

These interpretations by current and former Department officials are also consistent with the Department's administrative decisions on this issue. For example, in RAhule v. Gildersleeve, the Department determined that an employer's deductions from an employee's wages to pay for room and board were unlawful because there were no alternative board and lodging facilities accessible to the remote worksite. Rhule was an employee at a remote logging camp who was required to authorize, before beginning employment, a deduction from his wages of $12 per day to cover the cost of room and board.

After quoting in full 8 AAC 15.160(d), a Wage and Hour investigator from the Department's Juneau regional office informed Gildersleeve Logging:

The key factor is that there are no alternative facilities accessible to the worksite. This alone, renders all other arguments moot. The fact that this arrangement is also a condition of employment reinforces our determination that deductions for room & board under these conditions do not meet the requirements of [8 AAC 15.160(d) ].

(Emphasis added.) This Wage and Hour investigator emphasized to Gildersleeve that "the fact that there are no alternative public board and lodging facilities accessible to the worksite renders any deduction from wages unlawful."

And Silver Bay itself was the subject of a similar wage complaint in 1998. In Chapman v. Silver Bay Logging, the Department informed Silver Bay that it was not permissible to deduct the cost of room and board when alternate facilities were not available:

Please note that there are three criteria which must be met in order for deductions for room and board to be considered permissible. In order for board and lodging deductions to be valid, alternative public board and lodging facilities must be accessible to the worksite and the employee must have declined to use such facilities.... Unless you can prove that alternative public board and lodging facilities were accessible to the work site and that Mr. Chapman and other workers declined to use such facilities, the deductions for board and lodging are not permissible.

Thus, the record reveals that the Department of Labor has maintained a single, consistent interpretation of 8 AAC 15.160 since the regulation's promulgation in 1985. The Department's administrative actions reveal one policy: Employers are not permitted to make wage deductions for room and board unless alternative facilities are available and the employee has declined to use them-even where those deductions would not reduce the employee's pay below minimum wage.

The plurality has accepted Silver Bay's argument that there was not a single, consistent interpretation of the regulation and that the plurality therefore owes little deference to the Department's interpretation. Silver Bay relies on the testimony during the course of this litigation of Donald Wilson, who served as Deputy Director of Labor Standards from 1988 to May 1987. Wilson is now retired. Wilson was part of the original team that drafted the regulation. He was deposed for this case and provided his own interpretation of the regulation. Wilson testified that he did not intend to prohibit deductions for room and board where there was no alternative to employer-owned lodging. He characterizes the employee choice of lodging this way: "He can turn down the job and go somewhere else. That is the choice. ... It is the interpretation of the law as I live it."

However, the plurality overlooks the fact that while Wilson was at the Department, his interpretation was identical to that of Diaz and the other Department witnesses in this case. In a September 19, 1986 memorandum, Wilson explained to then Commissioner Robison that 8 AAC 15.160(d) required that employers operating at inaccessible sites provide their employees with transportation or bear the cost of room and board:

Because [of the company's provision of free, daily, round-trip transportation from Nome to the worksite] and the ready availability of public board and lodging facilities in Nome it is my opinion that [the company] can legally apply the terms of 8 AAC 15.160(d) and charge the reasonable cost of board and lodging at the camp site to those employees who elect to use it rather than return to Nome each day.
Of course if [the company] should stop providing transportation and the road condition were to remain hazardous, or if it were rendered otherwise impassable by acts of God, [the company] would then have to bear the cost of providing board and lodging to its employees and subcon-employees.

(Emphasis added.) Wilson also sent a memorandum to Bob Bacolas, Director of Labor Standards in July 1984, stating that

{regardless of whether an employer operates or sub-leases his camp site in a remote area, the employer [is] going to have to bear the burden of providing board and lodging. As long as the employee is essentially institutionalized and canmot commute to his true domicile and the work site except on an imfrequent basis, and then only by commercial carrier, the cost of providing room and board must be borne by the employer. The regulations were heard at public hearing{s]) in the three major population centers of the state.... There may be some employers who think they can cireumvent the law and make a profit. Every time a law is enacted, someone tries to take advantage of it for the reason of financial gain. It is up to the enforcement agency to ensure that such events do not occur.

(Emphasis added.) These two documents authored by Wilson at the time of the regulation's adoption contradict his deposition testimony, given twelve years after his retirement from the Department.

The plurality further relies on a single opinion contained in a letter from the attorney general in 1986. However, such opinions are not binding authority on this court, nor do they have any precedential value Furthermore, this particular opinion letter has been challenged by the Department of Labor and therefore is not entitled to great weight.

In conclusion, when the agency has received such a broad delegation of power to make policy consistent with the Alaska Wage and Hours Act, has drafted a regulation that reflects a policy choice, and has then clearly and consistently implemented that regulation over a period of fifteen years, this court must defer to the interpretation unless it is clearly unreasonable.

IV. THE DEPARTMENTS INTERPRETATION OF THE REGULATION IS REASONABLE.

Finally, the plurality concludes that even if the Department's interpretation is longstanding and consistent, it is unreasonable and thus accorded no deference. The plurality maintains that when an employee is required to live in employer-provided housing because this arrangement suits the convenience of the employer, the employer may deduct the cost of that lodging from the employee's wages as long as the deduction does not reduce the wages below the statutory minimum. Yet, the plurality's strained interpretation of 8 AAC 15.160 finds no support in any federal or state decision, and the Department's interpretation is more reasonable.

First, as discussed above, the Department has expressly incorporated the federal FLSA definitions of "reasonable cost" and "customarily furnished," which exclude the cost of furnishing meals and lodging that are primarily for the benefit or convenience of the employer or that do not permit the employee to choose voluntarily to live in the employer-furnished facilities. The Department's interpretation of its regulation to preclude deductions for employer-provided lodging when the lodging is provided for the employer's convenience is thus consistent with the FLSA definitions adopted by the Department under its legislative grant of authority and is therefore reasonable.

Second, the plurality concludes that subsection (d)'s limitations on reimbursement for board and lodging facilities of the employer apply only if the reimbursement would reduce wages below the statutory minimum. The plurality maintains that subsection (d) "cannot serve to prohibit deductions that do not reduce wages below the minimum, because such deductions are permitted by subsection (a)" But subsection (d) contains three conditions that must be met before a deduction from earnings can be made for employer-provided housing: (1) alternative public board and lodging facilities must be accessible to the worksite and the employee must have declined to use these available facilities; (2) the employer-provided board and lodging facilities must be customarily furnished by the employer and used by the employees; and (8) the cost to the employee for use of the employer's board and lodging facilities must be reasonable and without profit to the employer. If, as the plurality reasons, these limitations of subsection (d)(1), (2), and (8) do not apply unless wages are reduced below statutory minimums, then employers could require employees to live in their facilities and charge unreasonable or profit-making rates, deducting these charges from wages, as long as the deductions did not reduce the employee's wages below the statutory minimum. It is the plurality's interpretation of this regulation that is unreasonable, particularly in light of its purpose to prevent employers from shifting to its employees the cost of doing business.

Finally, the Department's analysis of the interplay between the various subsections of 8 AAC 15.160 is superior to the plurality's interpretation. Randy Carr explained that interpretation in his opinion letter to Diaz. As Carr points out, subsection (a) of 8 AAC 15.160 lists a number of specific deduction practices that are prohibited, despite the presence of a written employment agreement. These banned practices include any deduction that would reduce an employee's wages below the statutory minimum. However, subsections (b), (c), and (d) proceed to describe various types of permissible wage deduction practices and specify that the prohibitions of subsection (a) will not apply to these various wage practices as long as the specific conditions contained within each subsection are met. For example, subsection (c), which allows deductions for certain transportation costs, contains the condition that no transportation deduction may reduce the employee's wages below the minimum wage.

However, the subject of minimum wages is not reflected in subsection (b), which allows deductions from earnings where the employee directs the employer to pay a sum for the benefit of a creditor, donee, or third party. Thus, even if the directed third-party payment reduces the employee's wages below the statutory minimum, it is permissible. And similarly, subsection (d), which addresses deductions of board and lodging costs, does not contain as one of its conditions that the employee's wages must not be reduced below the statutory minimum. As the Department concluded in the opinion letter, "Itlhe subject of minimum wages is not mirrored in subsection (d), which addresses room and board deductions. If the deduction practices satisfy the three conditions listed in the regulations, a deduction would be legal even if it reduced the employee's wages below the statutory minimum." By implication, however, if any of the three conditions are not satisfied, the deduction cannot be made, regardless of whether this would leave the employee's wages above the statutory minimum.

v. CONCLUSION

When the Alaska Department of Labor promulgated 8 AAC 15.160, it made a policy choice to prevent employers from forcing their employees to "shoulder the cost of the employer doing business." Because the Department has adopted the FLSA regulatory definitions, has consistently interpreted its regulation to prohibit the deductions made from Diaz's wages, and has adopted an interpretation that is not unreasonable, I believe that this court should defer to the Department's view that alternative facilities must be available before an employer may deduct the cost of room and board.

      . 8 AAC 15.160 (1985) provided in relevant part:
      (a) AS 23.10.085(c) does not limit the right of an employer and employee to enter into a written agreement to provide for deductions of monetary obligations of an employee. Requiring or inducing an employee to return or give up any part of the compensation to which the employee is entitled, whether by force, intimidation, or threat of dismissal from employment, or by any other manner, is prohibited. A written agreement for deductions payable to the employer or person acting in the employer's behalf or interest is not valid if it would have the effect of reducing an employee's wage rate below the" statutory minimum, or if it would require an employee to reimburse the employer for any of the following:
      (1) customer checks returned due to insufficient funds or any other reason;
      (2) non-payment for goods or services as a result of theft or credit default;
      (3) cash or cash register shortages unless the employee admits, willingly and in writing, to having personally taken the specific amount of cash that is alleged to be missing;
      (4) lost, missing, or stolen property, unless the employee admits willingly and in writing, to having personally taken the specific property alleged to be lost, missing, or stolen; or
      (5) damage or breakage costs unless clearly due to willful conduct of the employee and the employee has acknowledged responsibility in writing.

      (d) Nothing in (a) of this section prohibits deductions from earnings, based on a written agreement, to reimburse an employer for the reasonable cost of furnishing board and lodging, if
      (1) alternative public board and lodging facilities are accessible to the worksite and the employee has declined to use such facilities; (2) the board and lodging facilities of the
      employer are customarily furnished by the employer and used by the employees; and
      (3) the cost to the employee for the use of the employer's board and lodging facilities, is reasonable and without profit to the employer.

      . AS 23.10.085 provides:
      (a) The director may adopt, amend, or rescind administrative regulations not inconsistent with the purposes and provisions of AS 23.10.050-23.10.150 that are necessary for the administration of AS 23.10.050-23.10.150.
      (b) The regulations may, without limiting the generality of (a) of this section, define terms used in AS 23.10.050-23.10.150, and restrict or prohibit industrial homework or other acts or practices that the director finds appropriate to carry out the purpose of AS 23.10.050-23.10.150, or to prevent the circumvention or evasion of AS 23.10.050-23.10.150.
      (c) The regulations may permit deductions by an employer from the minimum wage applicable under AS 23.10.050-23.10.150 to employees for the reasonable cost, as determined by the director on an occupation basis, of furnishing board or lodging if board or lodging is customarily furnished by the employer and used by the employee.

      . The court can affirm a summary judgment on grounds not relied on by the superior court. "Moreover, we should consider any matter appearing in the record, even if not passed upon by the lower court, in defense of the judgment." Beluga Mining Co. v. State, Dep't of Natural Res., 973 P.2d 570, 574 (Alaska 1999).

      . Diaz seems to suggest that interpreting subsection (d) to apply only when board and lodging deductions would reduce effective pay to a rate lower than required rates would place AWHA in conflict with the federal Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-219 (1998). But this is clearly not the case. The regulations concerning board and lodging deductions under the FLSA explicitly do not apply to deductions where the employee still receives more than the minimum wage after deductions are taken. 29 CER. § 531.36(a) (2002). Since we interpret subsection (d) of 8 AAC 15.160 to be effective under the same conditions as the FLSA regulations and since the Alaska minimum wage is higher than the federal minimum wage, AS 23.10.065(a), our interpretation of (d) will not result in a conflict between AWHA and FLSA.

      . Similarly, we reject the superior court's interpretation because it, implicitly at least, also accepts the proposition that subsection (d) prohibits what subsection (a) permits.

      . See 2B Norman J. Singer, SuruErtanp Staturory Construction § 49:05 (6th ed. 2000) ("[WJeight given to an agency interpretation depends on many factors, including ... its consistency with earlier and later agency pronouncements. ...").

      . Trustees for Alaska v. State, Dep't of Natural Res., 795 P.2d 805, 812 (Alaska 1990).

      . Diaz does not dispute Silver Bay's evidence showing that his overtime rate of pay was calculated before the room-and-board deductions were made.

      . If there was an excess, it would still not be considered as income, at least for federal tax purposes because, as Diaz concedes, the board and lodging was furnished for the convenience of the employer. See 26 U.S.C. § 119(a) (2002).

      . Alaska R. Civ. P. 82(b)Q2).

      . See AS 23.10.110({). Prior to 1995, the AWHA did not authorize an award of attorney's fees to a prevailing defendant. Diaz's claims for overtime wages earned before August 22, 1995 (the effective date for amended AS 23.10.110) are exempt from having attorney's fees collected against them under former AS 23.10.110(c) or Civil Rule 82. See Grimes v. Kinney Shoe Corp., 938 P.2d 997, 1001 (Alaska 1997). His claims for wages earned after that date are subject to amended AS 23.10.110(f), which allows a defendant to collect attorney's fees in an action for unpaid overtime compensation only in the event of a frivolous or bad faith claim.

      . See Dansereau v. Ulmer, 955 P.2d 916, 918-19 (Alaska 1998) (within court's discretion to independently calculate reasonable hours in determining appropriate attorney fee award).

      . Webster v. Bechtel, Inc., 621 P.2d 890, 901 (Alaska 1980).

      . Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1246 (Alaska 1979).

      . Because we are equally divided on this issue, the decision favoring affirmance has the effect of a plurality opinion: it will affirm the superior court's ruling in the present case but will not be binding in future cases. Our case law establishes that "[a] decision by an evenly divided court results in an affirmance." Ward v. Lutheran Hosps. & Homes Soc'y of America, Inc., 963 P.2d 1031, 1037 n. 11 (Alaska 1998) (quoting Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997)). Moreover, "an affirmance by an equally divided court is not precedent." City of Kenai v. Burnett, 860 P.2d 1233, 1239 n. 11, 1246 (Alaska 1993) (Compton, J., concurring).

      . See AS 23.10.085, which states:
      (a) The director may adopt, amend, or rescind administrative regulations not inconsistent with the purposes and provisions of AS 23.10.050-23.10.150 that are necessary for the administration of AS 23.10.050-23.10.150.
      (b) The regulations may, without limiting the generality of (a) of this section, define terms used in AS 23.10.050-23.10.150, and restrict or prohibit industrial homework or other acts or practices that the director finds appropriate to carry out the purpose of AS 23.10.050-23.10.150, or to prevent the circumvention or evasion of AS 23.10.050-23.10.150.
      (c) The regulations may permit deductions by an employer from the minimum wage applicable under AS 23.10.050-23.10.150 to employees for the reasonable cost, as determined by the director on an occupation basis, of furnishing board or lodging if board or lodging is customarily furnished by the employer and used by the employee.

      . AS 23.10.145 provides: "If not defined in this title or in regulations adopted under this title, terms used in AS 23.10.050-23.10.150 shall be defined as they are defined in the federal Fair Labor Standards Act of 1938, as amended, or the regulations adopted under it."

      . See Dresser Indus., Inc. v. Alaska Dep't of Labor, 633 P.2d 998, 1003 (Alaska 1981). Alaska Statute 23.10.095 provides that "[the commissioner may adopt regulations and interpretations that are made by the administrator of the Wage and Hour Division of the federal Department of Labor and that are not inconsistent with AS 23.10.050-23.10.150."

      . 8 Alaska Administrative Code 15.160(d)(3) (2000). (AAC)

      . 8 AAC 15.160(f) provides that "[the director will make the determination regarding the cost of board and lodging under (d)(3) of this section. The determination will be made in accordance with 29 C.FR. §§ 531.3-531.5 and 531.29-531.35."

      . See 29 C.F.R. § 531.3(d)(1) (2000).

      . 8 AAC 15.1608).

      . 29 CFR. § 531.3(a) (2002).

      . 29 C.F.R.§ 531.3(b) (2002).

      . 29 C.FR. § 531.3(c) (2002).

      . The Department's regulations further require that employer-provided board and lodging must be "customarily furnished" by the employer before the employer can require reimbursement. 8 AAC 15.160(d)(2). Under the federal regulatory definition adopted by the Department, board and lodging is "customarily furnished" only when the employee's acceptance of the employer's facilities is "voluntary and uncoerced." 29 CER. § 531.30 (2002).

      . Wage and Hour Opinion Letter (WHOL) # 133.

      . WHOL #30.

      . Bd. of Trade, Inc. v. State, Dep't of Labor, 968 P.2d 86, 89 (Alaska 1998) (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 602 n. 21 (Alaska 1978)).

      . Bd. of Trade, 968 P.2d at 89 (citations omitted).

      . Usibelli Coal Mine, Inc. v. State, Dep't of Natural Resources, 921 P.2d 1134, 1142-43 (Alaska 1996) (quoting Fairbanks N. Star Borough Sch. Dist. v. NEA-Alaska, Inc., 817 P.2d 923, 925 (Alaska 1991)).

      . The original regulations were numbered as 8 AAC 15.050.

      . No changes to the proposed regulations were made after comments and hearings.

      . 8 AAC 15.160, am. 9/28/85, Register 95.

      . 8 AAC 15.160 was last amended in 1999, but the provisions at issue in this case were not altered. 8 AAC 15.160, am. 4/29/99, Register 150.

      . Dep't of Labor, Claim J1296-076T (1996-1997).

      . Dep't of Labor, Claim J0893-078G (1993-1994).

      . Allison v. State, 583 P.2d 813, 816 n. 15 (Alaska 1978).

      . Id. (providing that the fact that the opinion of the attorney general had not been challenged entitled his opinion to great weight).

      . Plurality Opinion at --.

      . WHOL #133.


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    Bradley Kent LAYBOURN, Appellant, v. Roberta Yvonne POWELL, Appellee.
    No. S-10074.
    Supreme Court of Alaska.
    Sept. 27, 2002.

      D. Scott Dattan, Law Office of D. Scott Dattan, Anchorage, for Appellant.
    Tara N. Logsdon, Golter & Logsdon, P.C., Wasilla, for Appellee.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Bradley Laybourn challenges an order modifying his child support obligation and awarding partial attorney's fees to his former wife. We affirm, holding (1) that the superior court properly imputed income to Laybourn. based on his efforts to disguise actual earnings and conceal assets, (2) that the court properly considered all of the evidence and did not express any bias against Laybourn, and (8) that the court's award of enhanced fees was authorized under Civil Rule 82 because of Laybourn's vexatious conduct.

II. FACTS AND PROCEEDINGS

Laybourn's ex-wife, Roberta Powell, moved to modify his child support payments for their daughter Keley. Powell argued that Laybourn's income greatly exceeded the amount on which his existing child support payments had been based in 1997. Powell further maintained that Laybourn's wages and tax returns did not accurately reflect his actual earnings because Laybourn was hiding income. She supported these claims by relying on Linda L. Saunders, a forensic accountant, who testified that Laybourn appeared to be sheltering a large amount of his actual income.

Saunders testified that Laybourn had quit a lucrative job shortly after the couple divorced in 1995 and had remained self employed as an entrepreneur since then. Although the court had reduced his child support payments in 1997, he had failed to make any payments for nearly two years. Yet according to Saunders, Laybourn established several partnerships shortly after his divorce and frequently traded his labor for in-kind payments, such as free rent in a building owned by one of the partnerships, in an attempt to hide his income and assets. Saunders also identified vast discrepancies between Laybourn's claimed income and both his lifestyle and bank account balances. In Saunders's professional opinion,

[Laybourn] has actively participated in financial activities and labor efforts concerning property interests in Alaska ... [and] has engaged business partners and his girlfriend to aid in the concealment of such activities.... [Laybourn's] financial ree-ords and representations are riddled with contradictions and claims of expenditures contrary to customary reporting practices of the IRS.... Laybourn has overtly disguised his income and worked under the table for his personal living expenses since he left the Slope in 1996.

Saunders testified on the first day of a three-day hearing. At the close of Saunders's testimony-just before Laybourn began presenting his side of the case-the trial judge commented on the compelling nature of Saunders's testimony and cautioned Layb-ourn about the potential legal implications of presenting evidence that might prove to be false. The case proceeded, and the rest of the hearing consisted of witnesses presented by Laybourn.

At the close of the hearing, the superior court granted Powell's motion for modification, finding that Laybourn was in fact seeking to hide income and assets to avoid paying child support. Based on evidence of his earnings history and potential, the court estimated that he was easily capable of earning an adjusted gross income of $72,000 and imputed this amount to him as annual income for purposes of determining his new child support obligation. As explained by the court, $72,000 represented Laybourn's potential income based on his skills, experience, and qualifications. The court also awarded enhanced attorney's fees to Powell, citing Laybourn's "bad faith and vexatious conduct" in "hid[ing] his income and assets." Layb-ourn appeals.

III. DISCUSSION

A. Imputed Income

Alaska Civil Rule 90.3 governs child support and requires awards of support to "be calculated as an amount equal to the adjusted income of the non-custodial parent, multiplied by certain factors. Rule 90.3(a)(1) broadly defines "adjusted gross income" to include "the parent's total income from all sources," less certain specified deductions. Under Rule 90.3(a)(4), the court may impute "potential income" to a parent the court determines is "voluntarily

and unreasonably ... unemployed or underemployed" and "also may impute potential income for non-income or low income producing assets."

Here, the court found that Laybourn had consistently underreported his income and was engaged in an ongoing scheme of concealing assets and earnings. The court estimated his annual adjusted gross income capacity to be at least $72,000. Those findings are supported by substantial evidence and are not clearly erroneous.

Laybourn nonetheless asserts that the court was required to provide a strict accounting of its methods for determining this income amount. In particular, Laybourn takes issue with several categories of expenses that he claims the superior court must have improperly considered in computing his income. But Laybourn's argument misconceives the basis of the court's finding that his adjusted annual income totaled at least $72,000: the court was not calculating his actual income; instead, it was imputing income based on an estimate of Laybourn's earning capacity because he had made it impossible to calculate his actual income accurately. Laybourn's situation is thus functionally equivalent to voluntary underemployment. Having failed to give the court any accurate basis on which to compute his actual earnings, Laybourn cannot be heard to complain that its estimate based on his earning capacity is insufficiently precise.

Because the superior court did not clearly err in finding that Laybourn's total adjusted earning capacity from all sources easily exceeded $72,000, we hold that the court did not abuse its discretion in modifying his child support obligation.

B. Alleged Bias

Laybourn also alleges that the superior court prejudged his case and "erred in failing to consider all of the evidence." He bases his claim on the court's remarks at the close of Powell's evidence. Laybourn takes these remarks out of context. As mentioned earlier, the trial court noted the compelling na* ture of Saunders's expert testimony and warned Laybourn of the potential dangers of presenting a defense based on demonstrably false testimony. When read in light of the record as a whole, the court's remarks fail to support Laybourn's claim of bias. To the contrary, they evince a genuine concern about Laybourn's understanding of the potential implications of further testimony regarding what appeared to be a well-documented pattern of tax evasion and fraud: the court simply wanted to be certain Laybourn understood the evidently very real risk that he might incriminate himself or his proposed witnesses. After sounding this note of caution, the court heard two more days of testimony and, in the end, expressly declined to find Laybourn's defense entirely lacking in credibility. The court then entered detailed findings addressing all the evidence presented at the hearing. In the context of the record as a whole, then, Laybourn's claim of bias is unpersuasive.

C. Attorney's Fees

Finally, Laybourn argues that the superior court abused its discretion in awarding attorney's fees. The superior court assessed $9,392.57 in attorney's fees under Alaska Civil Rule 82(b)'s schedule of partial fees; the court enhanced this award by $607.48 based on Laybourn's vexatious conduct. The total fee award was $10,000.

Laybourn initially claims that child support modification cases qualify as "post-judgment modifications and enforcement actions" and, as such, fall under the divorce exception to Rule 82 and are not subject to fee awards under that rule But unlike postjudgment motions to modify custody, child support motions raise issues solely pertaining to money and property and, thus, do not fall under the divorce exception.

Laybourn separately argues that the $607 enhancement of fees was inappropriate. The superior court found that Laybourn had "engaged in bad faith and vexatious conduct in an attempt to hide his income and assets"; the court further characterized Laybourn's conduct as "outrageous." Rule 82(b)8)(G) expressly authorizes courts to enhance fees in cases of bad faith or vexatious behavior. The superior court's finding of vexatious conduct is supported by the record, and the nominal fee enbancement is not "manifestly unreasonable." We thus find no abuse of discretion.

IV. CONCLUSION

For these reasons, we AFFIRM the superior court's judgment.

MATTHEWS, Justice, not participating.

      . We review a trial court's findings of imputed income for clear error. See Routh v. Andreassen, 19 P.3d 593, 595-96 (Alaska 2001) (determination of net income for child support purposes is factual finding reviewed for error); Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (using "clearly erroneous" standard). "We deem a factual finding to be clearly erroneous 'when we are left with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding.'" Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991) (quoting Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)).

      . Alaska R. Civ. P. 90.3(a).

      . Cf. Benson v. Benson, 977 P.2d 88, 92 (Alaska 1999) (permitting calculation of support arrear-ages and noting "[al contrary holding would reward recalcitrant conduct of obligors").

      . We review modifications of child support for abuse of discretion. Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska 1998). Under this standard, we will set aside an order for modification if a "review of the entire record leaves us with a definite and firm conviction that a mistake has been made." Hilderbrand v. Hilderbrand, 962 P.2d 887, 888 (Alaska 1998) (internal quotations omitled).

      . See Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989).

      . Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991).

      . Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). Laybourn argues that Kowalski supports his claim that enhanced fees are inappropriate. But Kowalski recognizes that an attempt to mislead the court for purposes of defeating a legitimate claim qualifies as vexatious conduct under Rule 82(b)(3)(G). Id. at 1373.


author: MANNHEIMER, Judge.

text:
    Carl M. BREWER, Appellant, v. STATE of Alaska, Appellee.
    No. A-8029.
    Court of Appeals of Alaska.
    Sept. 27, 2002.
    Jody Patrick Brion, Anchorage, Anchorage, for Appellant.
    John A. Scukanee, 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.
   OPINION

MANNHEIMER, Judge.

Carl M. Brewer appeals the superior court's decision to revoke his probation. Brewer's main contention is that the superior court improperly denied his request to represent himself at the revocation hearing and forced him to proceed with a public defender whom he did not want and who was unprepared to defend him. But Superior Court Judge Donald D. Hopwood concluded that Brewer's eleventh-hour request for self-representation was a sham, a tactic aimed at delaying the adjudication.

In Gottschalk v. State, the Alaska Supreme Court ruled that a trial judge can deny a last-minute request for counsel from a defendant who previously announced that he would defend himself, if the lack of counsel can be attributed to the defendant's own lack of diligence and failure to prepare for trial We conclude that Brewer's case presents the reverse side of the same coin: Brewer, who was represented by counsel, did not assert his right to self-representation until the last minute. Moreover, Brewer told the trial judge that, if he was allowed to represent himself, he was not prepared to go forward with the hearing and he would need a substantial continuance. Under these circumstances, Judge Hopwood could properly deny Brewer's request for self-representation and make Brewer proceed with the revocation hearing.

Underlying facts

In early 1995, Carl M. Brewer was convicted of misdemeanor stalking, misdemeanor assault, and felony weapons misconduct. He served a prison sentence and then, on March 19, 1996, he was released on probation. Brewer was allowed to move to Texas, where the Texas correctional authorities supervised him.

On March 22, 1999, the Texas authorities terminated their supervision of Brewer,. According to Brewer, his Texas probation officer told him that his probation was over-that he was completely free. Because the Texas authorities were no longer supervising Brewer, the Alaska authorities lost track of him. But according to Brewer's eriminal judgement, he was to remain on probation for another two years-until mid 2001.

Brewer moved back to Alaska. The Alaska Department of Corrections found out that he was here, and in early 2001 the Department petitioned the superior court to revoke Brewer's probation. For purposes of this appeal, the Department's allegations fall into two groups-three allegations of misconduct in 1996, and a fourth allegation of misconduct in 2000.

In the first group of charges, the Department alleged that Brewer had committed three violations of the conditions of his probation in 1996 (ie, while Brewer was living in Texas and was being supervised by the Texas authorities)-by committing a new crime (driving while intoxicated), by consuming alcoholic beverages, and by using mariJuana.

In addition, the Department alleged that Brewer had violated the conditions of his probation in 2000 (.e, after the Texas authorities had ended their supervision of Brewer)-by leaving Texas without first obtaining permission from an Alaska probation officer.

(The Department also brought a fifth charge against Brewer-an allegation that in 2000, while Brewer was living in Texas, he resisted police officers who had arrested him for public intoxication. At the conclusion of the revocation hearing, Judge Hopwood concluded that the State had failed to prove this charge. This fifth charge is not at issue in this appeal.)

Brewer conceded the first group of charges-the charges based on his conduct in 1996. However, Brewer asserted that his probation should not be revoked for failing to report his change of residence in 2000. As explained above, Brewer claimed that when the Texas authorities ended their supervision of him in March 1999, they told him that he was no longer on probation. Brewer therefore claimed that he reasonably believed that he was no longer obliged to report his whereabouts to the Alaska authorities.

As described more fully in the next section of this opinion, Brewer asked Judge Hop-wood to delay the adjudication hearing so that he could obtain documentary evidence from Texas that would corroborate his claim that the Texas authorities had told him that he was being released from all supervision. Judge Hopwood refused to continue the hearing. However, Brewer took the stand at the hearing and testified that the Texas authorities had told him that he was no longer on probation. Based on Brewer's testimony, and based on the fact that the Alaska Department of Corrections never assigned a probation officer to supervise Brewer after the Texas authorities notified the Department that they were no longer going to supervise Brewer, Judge Hopwood concluded that Brewer had reasonably believed that he was no longer obliged to comply with the reporting requirements of his probation. Accordingly, Judge Hopwood ruled that the State had failed to prove the allegation that Brewer had knowingly failed to obtain the Department's permission before leaving Texas.

Thus, when Judge Hopwood revoked Brewer's probation, he did so solely on the basis of the three violations from 1996 that Brewer expressly conceded.

Brewer's request to represent himself

On February 15, 2001, Brewer was arraigned in superior court on the petition to revoke his probation. He told Judge Hop-wood that he wanted an attorney but could not afford one. Brewer had had a previous experience with the Public Defender Agency-an experience which, in his words, "didn't pan out too good". Nevertheless, Brewer did not protest when Judge Hop-wood appointed the Public Defender Agency to represent him in this litigation. Judge Hopwood directed Brewer to contact the Public Defender as soon as possible, and he calendared the revocation hearing for the week of April 9, 2001.

For reasons that are not explained in the record, Brewer's revocation hearing was continued until April 19th. When the parties assembled in court on the 19th, the assistant public defender who was representing Brewer told Judge Hopwood that there was a "preliminary matter" to discuss:

Defense Attorney: I met with Mr. Brewer earlier today. It appears that he wishes to represent himself and to not have me involved with [his] case.... I'd like the court to inquire of Mr. Brewer whether he wishes to have me continue ... as counsel....
The Court Okay. Mr. Brewer, what about this [matter] of having the PD withdraw? [Are] you going to represent yourself if they do that?
Brewer: Yes, sir. I don't see no other choice in this matter.... Your Honor, [I] stopped by Mr. Ketscher's office 30 minutes ago to see what he had [prepared] on my defense, and-
To start with, I apologize for [the fact that] I'm not very coherent. I've been 28 hours without any sleep. I just got done with a halibut opening, and I was called on the boat Tuesday [ie., two days ago] to remind me of [this] court date. And I asked my girlfriend to call in for a continuance, and [Mr. Ketscher] said that [that] was an impossible thing right now, that I need to be here, and that-because, I guess, you [areln't very sympathetic to working fishermen. And the boat dropped me off at the dock at five o'clock this morning and I lost half a crew share. ... I don't have the money to buy a - lawyer now, after losing that money, and I just want ...
The Court So far, Mr. Brewer, [Mr. Ketscher] has given you good advice.... You need the Public Defender since you can't hire [a private attorney], right?
Brewer: Well, I feel as if I can represent myself as well as I've been represent"ed so far. I just ... walked from his office to here and got as much information as he's got in his file [concerning] my defense.... I feel as if I can get just as much if you could give me some time to make some phone calls-30 more phone calls, maybe-and to see if I can get the documentation necessary to prove to you that I was released down in Texas [from all] parole and probation. ... [Nobody has] contacted [the people who supervised] me down there-my probation officer, the probation department, interstate compact. He has one document that will convict me [sic] of ... this probation violation thing.

At this point, Judge Hopwood interrupted Brewer. The judge announced that he was not willing to delay the revocation hearing again. And, because Brewer had said that he was not prepared to go forward with the hearing, Judge Hopwood told Brewer that he was not inclined to grant Brewer's last-minute request for self-representation:

The Court This [hearing was] scheduled back [at] the arraignment on February 15th. I [have] granted one continuance already. I'm not granting another one. We're doing it today....
[You are] constantly shifting around with lawyers. Any [change of lawyers] can be a way for people to manipulate the system and buy more time.... You just told me [that] you're not ready [to represent] yourself [in this] adjudication because one, you're tired, and two, you haven't done anything ... to prepare any defense on your own. So I don't see how you can possibly represent yourself today.
Brewer: Well, I'm not asking to represent myself today, Your Honor. I'm asking for some time to prepare some kind of defense for myself. Only thing we have here is something that will [be] a sure conviction.... Nobody [has] been contacted; nothing's been done in my defense.... There's absolutely no documentation from Texas that I was released [from supervision]. ... [Fl] borrow money and fly down there ... myself ... if you'll grant me a continu[ance].

After hearing Brewer's request, Judge Hopwood asked the defense attorney to give him some background information. The defense attorney told the judge that he had met with Brewer five times since the Public Defender Agency was appointed at the February 15th arraignment. Brewer never mentioned the possibility of representing himself until a conversation on April 9th (ie, ten days before the present hearing). Even then, Brewer did not make a firm decision on this matter. Two days before the hearing, Brewer's girlfriend called the secretary at the Public Defender Agency to say that Brewer was still thinking about whether to represent himself, But it wasn't until the day of the revocation hearing that Brewer finally told his attorney that he wished to represent himself.

After hearing this, Judge Hopwood denied Brewer's request to represent himself:

The Court I see this as a manipulation of the system{[.] ... [This] adjudication hearing [was] set two months ago, [and] this is the first time [that] Mr. Brewer raises the issue. And [there is al limitation on a [party's right to request] more time to change ... how his representation will [be handled]. ... I'm just not inclined to do it. I see it as manipulation. I'm going to deny [it]. The PD is still in [this casel, and I'm going to take evidence today.

On appeal, Brewer argues that Judge Hopwood abridged his constitutional right to defend himself. Brewer relies on U.S. Supreme Court and Alaska cases which recognize a defendant's right to self-representation and which declare that a court has very limited authority to deny a defendant's request for self-representation-in general, only if the defendant has not knowingly and intelligently waived the right to counsel, or if the defendant is incapable of presenting a rational and coherent case. Brewer points out that Judge Hopwood never questioned whether Brewer was knowingly and intelligently waiving his right to counsel, nor did Judge Hopwood ever question Brewer's ability to present a rational and coherent case.

But Brewer's discussion of this issue does not address the basis of Judge Hopwood's ruling. Judge Hopwood's decision had nothing to do with the voluntariness of Brewer's waiver of counsel or Brewer's intellectual or emotional ability to present a defense on his own. Instead, Judge Hopwood" ruled that Brewer was not entitled to make a last-minute decision to discharge the Public Defender Agency and represent himself when self-representation would inevitably mean a delay of the proceedings and when this delay was attributable to Brewer's own lack of diligence in pursuing this matter.

The Alaska Supreme Court faced an analogous situation in Gottschalk v. State, 602 P.2d 448 (Alaska 1979). The defendant in Goff schalk was tried twice for larceny. (His first trial ended in a hung jury.) Gottschalk represented himself at his first trial 5, and he apparently was going to represent himself at his second trial. But then, on the first day of the renewed trial, Gottschalk announced his decision to hire an attorney. Gottschalk asked the trial judge to delay the trial for four days so that the new attorney could prepare the case, but the trial judge refused. The judge offered to allow Gottschalk's attorney to enter the case in mid-trial and take it to completion, but the newly-hired attorney told the judge that he could not ethically enter the case unless the trial was delayed (so that he would have time to properly prepare). Hearing this, the judge again refused to stop the trial, and Gottschalk was ultimately convicted.

On appeal, Gottschalk argued that the trial judge had unlawfully abridged his right to counsel, but the supreme court disagreed. The court acknowledged that, several times in the past, it had reversed eriminal convie-tions when a trial judge refused to grant a defense attorney's request for more time to prepare for trial. But the court concluded that Gottschalk's case was different because those prior cases "involv[ed] cireumstances beyond the control of the requesting party". The court declared that CGottschalk's case was governed by a different rule:

[When] a defendant is financially able to engage an attorney, he may not use his neglect in hiring one as a legitimate reason for delay. United States v. Yamashita, 527 F.2d 954, 955 (9th Cir.1975); United States v. McMann, 386 F.2d 611, 618 (2nd Cir.1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1045, 19 L.Ed.2d 1153 (1968); Relerford v. United States, 309 F.2d 706, 708 (9th Cir.1962).
We acknowledge that a continuance of several hours or one day may have been reasonable in this case. However, we cannot say that the trial court's denial constituted an abuse of discretion. Any delay would have seriously inconvenienced the court, an Anchorage judge temporarily sitting in Naknek, the prosecutor, and at least one witness who traveled from Dill-ingham. "While blind adherence to the requirements of court calendaring should never be used as an excuse to deny one accused of a serious crime the fundamental right to organize his defense, there is a compelling public interest in the prompt and orderly disposition of such matters." Green v. State, 544 P.2d 1018, 1023 (Alaska 1976) (footnote omitted).
We conclude that the seven months between Gottschalk's first and second trials afforded him more than a reasonable time to engage an attorney. As he made no effort to retain counsel during those months, Gottschalk's failure can only be attributed to his lack of diligence. Under the cireumstances, we must hold that the trial court acted within its discretion in denying appellant's requests for trial continuances.

Gottschalk, 602 P.2d at 451.

Brewer's case is the flip-side of Gottschalk: Brewer is a defendant who obtained an attorney at his. arraignment and then, on the day scheduled for his hearing, announced his desire to represent himself-but only if the trial judge granted him a continuance. We conclude that the same rule applies: a trial judge may deny a defendant's last-minute request for self-representation when granting the request would nee-essarily delay the trial and the tardiness of the request is due to the defendant's lack of diligence in pursuing the issue of self-representation.

Although this precise issue has never before been decided in Alaska, we note that other jurisdictions have upheld a trial judge's authority to deny a defendant's last-minute request for self-representation under similar circumstances.

For instance, in United States ex rel. Maldonado v. Denno, the Second Circuit confronted a situation where, on the first day of trial, before jury selection, the defendant asked the trial judge to allow him to discharge his attorney and represent himself. The trial judge refused, and the Second Circuit upheld the trial judge's ruling. The Second Cireuit recognized that a defendant's request for self-representation should normally be granted if made before trial, but

[once the trial has begun with the defendant represented by counsel, ... [the defendant's] right ... to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing [of al prejudice to the legitimate interests of the defendant [that] overbalances the potential disruption of proceedings already in progress, with considerable weight given to the trial judge's assessment of this balance.

Denno, 348 F.2d at 15. Other court decisions since Denno have echoed this rule.

In Brewer's case, Judge Hopwood denied Brewer's last-minute request for self-representation expressly because granting the request would require a delay of the revocation hearing. Moreover, Brewer's sole claim of prejudice to his interests was that his public defender had failed to obtain documentary evidence from Texas that would corroborate Brewer's testimony about what the Texas probation authorities had told him (¢.e., that he was released from all supervision in March 1999). But, as explained above, Judge Hopwood ultimately accepted the truth of Brewer's testimony on this point even though Brewer had no corroborating documents. The judge ruled in Brewer's favor on the allegation that Brewer had knowingly failed to notify the Alaska authorities before leaving Texas. Brewer's probation was revoked solely on the basis of the three allegations of misconduct from 1996 that Brewer conceded-driving while intoxicated, consuming alcohol, and using marijuana.

Thus, Judge Hopwood had a valid reason for refusing to grant Brewer's eleventh-hour request to represent himself and, in addition, Brewer can not show that he was prejudiced by that ruling, Accordingly, we hold that Judge Hopwood did not unlawfully abridge Brewer's right of self-representation.

Brewer argues in the alternative that Judge Hopwood's refusal to grant him a continuance constituted an improper infringement of Brewer's right to prepare his defense (in particular, to gather potentially exculpatory documentary evidence from Texas). We reject this characterization of Judge Hopwood's ruling for the same reasons.

Brewer's argument that the State should be estopped from seeking to revoke his probation based on misconduct that he committed Five years earker

Brewer argues that the State of Alaska should have been estopped from petitioning the superior court to revoke Brewer's probation in May 2001 when the petition was based on misconduct that Brewer committed in 1996, almost five years before.

Citing our decision in State v. Mouser, Brewer argues that probation revocation proceedings should be governed by the same due process considerations that require a speedy indictment on criminal charges. Quoting Mouser, Brewer contends that we should adopt a "speedy petition" rule to protect probationers from "the infliction of anxiety ... because of longstanding charges" and to prevent "weakening of [a probationer's] case as evidence in the memories of witnesses grow stale with the passage of time".

We reject Brewer's argument for two reasons.

First, Brewer never raised this contention in the superior court. Instead, Brewer conceded that the superior court could properly revoke his probation for the three acts of misconduct that he committed in 1996.

Second, Brewer's argument is moot, Even if we were to recognize a probationer's right to a "speedy revocation petition", similar to a criminal defendant's due process right to a speedy indictment, Brewer would not be entitled to relief.

As we discussed in Mouser, a defendant who claims that they were denied a speedy indictment must prove two. things: the absence of a valid reason for the delay, and resulting prejudice. Here, Brewer made a credible showing that there was no good reason for the State of Alaska's long delay in petitioning the superior court to revoke Brewer's probation based on misconduct that he committed in 1996. But Brewer made absolutely no showing that he was prefudiced by this delay. In fact, Brewer conceded that he had committed the three violations of his probation-driving while intoxicated, consuming alcohol, and using marijuana.

For all of these reasons, we reject Brewer's argument that the State was estopped from seeking to revoke his probation based on his 1996 misconduct.

Conclusion

The judgement of the superior court is AFFIRMED.

      . 602 P.2d 448, 450-51 (Alaska 1979).

      . See Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); McCracken v. State, 518 P.2d 85, 89, 91 (Alaska 1974).

      . See, e.g., Annas v. State, 726 P.2d 552 (Alaska 1986) (requiring a knowing and intelligent waiver of the right to counsel); Adams v. State, 829 P.2d 1201, 1206 (Alaska 1992) (declaring that a knowing and intelligent decision to waive counsel and represent oneself can be denied only "in the fairly rare circumstances in which the defendant is unable to present a rational and coherent defense").

      . See id. at 449.

      . Id. at 449 & n. 2.

      . Id. at 450.

      . Id. at 450.

      . Id. at 450.

      . 348 F.2d 12 (2nd Cir.1965).

      . See id. at 14.

      . See Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990); Vanisi v. State, 117 Nev. 330, 22 P.3d 1164, 1170-71 (2001); Clearwater v. State, 2 P.3d 548, 554 (Wyo.2000); People v. Windham, 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187, 1192 (1977); Schnepp v. State, 92 Nev. 557, 554 P.2d 1122, 1124 (1976).

      . Compare Boggess v. State, 783 P.2d 1173, 1182 (Alaska App.1989) (upholding a trial judge's refusal to grant a continuance so that the defendant could switch attorneys, when "the only reason a continuance was needed was [the defendant's] own lack of diligence in substituting a new attorney" and when the defendant failed to establish that he was prejudiced by the trial judge's refusal to give him extra time).

      . 806 P.2d 330 (Alaska App.1991).

      . Id. at 338, quoting Rutherford v. State, 486 P.2d 946, 947 (Alaska 1971).

      . Mouser, 806 P.2d at 336, citing York v. State, 757 P.2d 68, 71 (Alaska App.1988).