       Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
       Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
       303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
       corrections@akcourts.us.



                THE SUPREME COURT OF THE STATE OF ALASKA

VICTOR SEYBERT, JOHN HOLMAN, )

KIMBERLY WILLIAMS, GEORGE G. ) Supreme Court No. S-15600

JACKO, and RICK DELKITTIE SR., )

                               ) Superior Court No. 3DI-12-00059 CI
                Petitioners,   )
                               ) OPINION
    v.                         )
                               ) No. 7079 – February 5, 2016
GLEN ALSWORTH SR., and         )

LORENE “SUE” ANELON,           )

                               )

                Respondents.   )

                               )


               Petition for Review from the Superior Court of the State of
               Alaska, Third Judicial District, Dillingham, Steve W. Cole,
               Judge.

               Appearances: Timothy A. McKeever, Holmes Weddle &
               Barcott, Anchorage, for Petitioners. Rebecca J. Hozubin,
               Hozubin, Moberly, Lynch & Associates, Anchorage, for
               Respondents.

               Before: Stowers, Chief Justice, Winfree and Bolger, Justices.
               [Fabe and Maassen, Justices, not participating.]

               BOLGER, Justice.


I.     INTRODUCTION
               A group of Lake and Peninsula Borough voters filed suit against two local
elected officials, alleging various violations of state and local conflict of interest laws and
the common law conflict of interest doctrine. The elected officials moved for summary
judgment on the ground that the voters failed to exhaust administrative remedies. The
superior court granted the motion and stayed the proceedings so that the Alaska Public
Offices Commission (APOC) could review several of the voters’ claims. In doing so the
court relied in part on case law involving the separate doctrine of primary jurisdiction,
which allows a court to stay proceedings to give the relevant administrative agency an
initial pass at the claims. We reverse the superior court’s order because the voters were
not required to exhaust administrative remedies and because the order staying the
proceedings cannot be affirmed on independent grounds.
II.    FACTS AND PROCEEDINGS
              The petitioners — Victor Seybert, John Holman, Kimberly Williams,
George G. Jacko, and Rick Delkittie Sr. (collectively “Seybert”) — are registered voters
in the Lake and Peninsula Borough and jointly sued Glen Alsworth, Sr. and Lorene
“Sue” Anelon. Alsworth has served as the borough mayor since the borough’s formation
in 1989 and is a voting member of the borough assembly. Anelon was a voting member
of the borough assembly during the time period relevant to Seybert’s complaint, but she
lost her reelection bid in November 2012.
              Seybert filed the present suit against Alsworth and Anelon in May 2012.
Seybert alleged numerous acts and omissions by Alsworth and Anelon while acting as
elected borough officials, including failing to disclose conflicts of interest with their
private business enterprises, taking action in their official roles related to matters on
which they had personal and business interests, and failing to fully and properly
complete required financial disclosures.1 Based on these allegations, Seybert’s amended



       1
               For a more detailed recitation of Seybert’s allegations, see our prior opinion
in this case, Alsworth v. Seybert, 323 P.3d 47, 50-54 (Alaska 2014).
                                            -2-                                        7079
complaint included five counts: counts one through three alleged violations of Alaska’s
conflict of interest laws codified at AS 39.50 and the implementing regulations.2 Count
four alleged violations of the borough charter and code3 and the common law conflict of
interest doctrine.4 And count five alleged violations of Alaska’s statutory prohibition
against “[u]nfair methods of competition and unfair or deceptive acts or practices in the
conduct of trade or commerce.”5 Seybert sought various remedies including a court
order enjoining the officials from further violations of these laws; forcing them to forfeit




       2
              See AS 39.50.020, .030 (requiring public officials to file financial
disclosure forms and outlining certain details of those reporting requirements);
AS 39.50.060 (providing penalties for not disclosing required information);
AS 39.50.090 (prohibiting a public official from “us[ing] the official position or office
for the primary purpose of obtaining personal financial gain or financial gain for a
spouse, dependent child, mother, father, or business with which the official is associated
or in which the official owns stock”); 2 Alaska Administrative Code (AAC) 50.680–.700
(2011) (outlining certain details of the statutory reporting requirements codified at
AS 39.50).
       3
               See Lake & Peninsula Borough (L&PB) Charter art. 15, § 15.01(A) (“No
elected [borough] official may vote on any question on which he has a substantial
financial interest.”); L&PB Code 02.20.090 (“A member of the [borough] assembly shall
declare a substantial financial interest he or she has in an official action and ask to be
excused from a vote on the matter.”).
       4
              See Griswold v. City of Homer, 925 P.2d 1015, 1026 (Alaska 1996)
(“Under common law [conflict of interest doctrine], ‘the focus . . . [is] on the relationship
between the public official’s financial interest and the possible result of the official’s
action, regardless of the official’s intent.’ ” (second and third alterations in original)
(quoting Carney v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990))); see also
Carney, 785 P.2d at 548 (concluding that AS 39.50.090 does not abrogate the common
law conflict of interest doctrine).
       5
              See AS 45.50.471.

                                            -3-                                        7079

their offices; voiding all unlawful transactions; compelling them to disgorge all monies
received through such transactions; and requiring them to pay penalties and fines under
AS 30.50, attorney’s fees, and punitive damages.
              Alsworth and Anelon moved for summary judgment on the grounds that
Seybert failed to exhaust administrative remedies.6 The superior court granted summary
judgment in part, finding that: (1) the exhaustion doctrine applied to claims brought
under AS 39.50 and the associated regulations; (2) Seybert had not exhausted
administrative remedies; and (3) this failure to exhaust administrative remedies was not
excused. Accordingly the court granted summary judgment for Alsworth and Anelon
with respect to counts one through three. The superior court also concluded that Seybert
was not required to exhaust administrative remedies with respect to counts four and five,
but it noted that those counts rested on “a similar enough factual predicate that judicial
economy would be best served by hearing all counts at once after APOC has the
opportunity to review the AS 39.50 and 2 AAC 50 allegations.” The court invited
further briefing from the parties as to “whether these remaining counts should be stayed
or proceed to trial.”
              Seybert moved for reconsideration of the grant of summary judgment,
arguing that, because AS 39.50.100 expressly provides for a private right of action to
enforce the statutes at issue, exhaustion of administrative remedies could not be required.
Seybert further noted that in concluding exhaustion was required, the superior court
relied primarily upon case law involving the doctrine of primary jurisdiction under which

       6
             Prior to this motion for summary judgment, the superior court issued a
preliminary injunction imposing various restrictions on Alsworth’s and Anelon’s use of
borough resources for their legal defense and barring them from speaking about the
Pebble Mine project in their official capacities. Alsworth, 323 P.3d at 52-53. We
granted a petition for review and vacated that injunction in Alsworth v. Seybert. Id. at
54-55.
                                           -4-                                       7079

“a court may, in appropriate cases, stay or dismiss pending litigation so as to enable a
proper agency to initially pass upon an aspect of the case calling for administrative
expertise.”7 Seybert argued that this doctrine was inapplicable because APOC lacked
“ ‘exclusive’ jurisdiction” over enforcement of AS 39.50.8 Seybert also claimed that the
superior court erred in finding that “robust discovery” would be available through the
APOC process and argued that “the remedies [he] requested” were unavailable through
administrative avenues.9
              The superior court summarily denied Seybert’s motion for reconsideration,
and Seybert filed a petition for interlocutory review with this court. In response we
issued an order requesting clarification from the superior court regarding whether, by
granting summary judgment, it “intended to dismiss counts one, two, and three, or
whether [it] intended to stay these counts pending referral of [those] claims to
[APOC].”10 The superior court clarified that it “intended to . . . stay[] [counts one




         7
            See Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027,
1032 (Alaska 1972), overruled on other grounds by City & Borough of Juneau v.
Thibodeau, 595 P.2d 626 (Alaska 1979).
         8
             See id. at 1032-33 (“In order for such a judicial reference to be valid, at
least some part of the case must fall within the exclusive jurisdiction of the administrative
agency.”).
         9
              Seybert also submitted an affidavit from his counsel of record, Timothy A.
McKeever, attesting that he had “handled a large number of matters before [APOC]” and
detailing various limitations on the available administrative remedies.
         10
              Seybert v. Alsworth, No. S-15600 (Alaska Supreme Court Order, Sept. 4,
2014).

                                            -5-                                        7079

through three], rather than dismiss[] them, so that [it] would retain the ability to ‘[hear]
all the counts at once after APOC has the opportunity to review the AS 39.50 and
2 AAC 50 allegations.’ ”11
              We then granted Seybert’s petition for review on the following issues:
              (1) whether it was an error of law to rule that exhaustion of
              administrative remedies was required for the claims under
              consideration; (2) whether it was an error of law or an abuse
              of discretion to require the petitioners to bring these claims to
              [APOC]; and (3) alternatively, whether the superior court’s
              order can be affirmed under the doctrine of primary
              jurisdiction.
III.   STANDARD OF REVIEW
              “We review summary judgment rulings de novo and may affirm summary
judgment on any basis appearing in the record.”12 The question of whether a litigant is
required to exhaust administrative remedies is a legal question that we review de novo.13
Under the primary jurisdiction doctrine, a superior court enjoys discretion in determining
whether to stay or dismiss a claim.14 We will affirm on independent grounds not relied
on by the superior court only when those grounds are established by the record as a
matter of law.15

       11
              Seybert v. Alsworth, No. 3DI-12-59 CI (Alaska Super., Sept. 25, 2014)
(order clarifying order granting summary judgment).
       12
              Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citation omitted).
       13
            Winterrowd v. State, Dep’t of Admin., Div. of Motor Vehicles, 288 P.3d 446,
449 (Alaska 2012).
       14
            See Matanuska Elec. Ass’n v. Chugach Elec. Ass’n, 99 P.3d 553, 559-60
(Alaska 2004).
       15
              See Riley v. Simon, 790 P.2d 1339, 1343 n.7 (Alaska 1990) (“[A] judgment
                                                                          (continued...)

                                            -6-                                       7079

IV.	   DISCUSSION
       A.	   It Was An Error For The Superior Court To Conclude That Seybert
             Was Required To Exhaust Administrative Remedies.
             “In general, a party may not seek relief in a judicial forum until that party
has exhausted his or her available administrative remedies.”16 Thus if a statute provides
administrative remedies, exhaustion generally is required.17 The statute here provides
an administrative remedy for the violations Seybert alleges. Under AS 39.50.055
(“Administrative complaints”), “[a] person may file a written complaint [to APOC]
alleging a violation of [AS 39.50] has occurred or is occurring.” However the statute
also provides for a private right of action to enforce these same provisions. Under
AS 39.50.100 (“Enforcement by private citizens”), “[a] qualified Alaska voter may bring
a civil action to enforce any of the sections of [AS 39.50].” Under this statutory scheme,
requiring a plaintiff to first exhaust administrative remedies would read a significant
prerequisite into filing a citizen suit. Because the text of the statute is silent in this
regard, we will not infer such a requirement absent some indicia of legislative intent.
             Nothing in the legislative history of either AS 39.50.100, the citizen suit
provision, or AS 39.50.055, the administrative complaint provision, suggests that the
legislature intended to require plaintiffs to exhaust administrative remedies before


       15
               (...continued)
can be affirmed ‘on any basis established by the record, whether or not it was relied on
by the trial court or even raised before the trial court.’ ” (quoting Demoski v. New, 737
P.2d 780, 786 (Alaska 1987))); McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980)
(“[A] correct ruling of law by a trial court may be affirmed, regardless of the reasons
advanced, if there exist independent grounds which, as a matter of law, support the trial
court’s conclusion.”).
       16
             Winterrowd, 288 P.3d at 450.
       17	
             Id.

                                           -7-	                                     7079

commencing a citizen suit. The citizen suit provision was enacted as part of the 1974
voter initiative that established Alaska’s conflict of interest law.18 The administrative
complaint provision was not added until 2008, when the legislature amended the statute
to include the language now codified at AS 39.50.055.19 The legislature enacted the
complaint provision in a bill that made several changes to the state’s campaign finance,
lobbying, and conflict of interest rules.20 According to a staff person for the bill’s
sponsor, the bill was aimed at “strengthen[ing] the oversight of Alaska’s ethics laws by
allowing watchdog agencies more time to receive complaints and properly investigate
alleged violations.”21 Accordingly the bill extended the statute of limitations from one
to five years for alleged violations of campaign finance rules and from two to five years
for alleged violations of legislative ethics rules.22 It also imposed more stringent
requirements for the retention of lobbyist records.23 The bill also added two other
administrative complaint provisions to the statute. Each provision provides that “[a]
person may file a written complaint” alleging a violation of the state’s lobbying and



       18
               1974 Initiative Proposal No. 2, § 1 (1974); see also Warren v. Thomas,
568 P.2d 400, 400 (Alaska 1977). We refer to AS 39.50 as Alaska’s “conflict of
interest” law throughout, although it is now titled the Public Official Financial Disclosure
statute. Grimm v. Wagoner, 77 P.3d 423, 425 & n.1 (Alaska 2003).
       19
              Ch. 95, § 10, SLA 2008.
       20
              See ch. 95, SLA 2008.
       21
             Minutes, H. Fin. Comm. Hearing on H.B. 281, 25th Leg., 2d Sess. 2:33
(Mar. 31, 2008) (testimony of Mike Sica, staff to Rep. Bob Lynn, bill sponsor).
       22
              Ch. 95, §§ 3, 8, SLA 2008 (amending the applicable statute of limitations
for violations of AS 15.13 and AS 24.60).
       23
              Id. § 4.

                                            -8-                                       7079

legislative ethics rules, respectively, and each includes a five-year statute of limitations.24
The legislature made only one change to the citizen suit provision: the addition of a five-
year statute of limitations consistent with the new administrative remedy sections.25
              The legislative history of the administrative complaint provision contains
no indication that a plaintiff must exhaust administrative remedies before bringing a
citizen suit. Instead the House Judiciary Committee discussion about the citizen suit
provision supports the contrary view. During that discussion a legislator asked why a
citizen would “fil[e] a civil action.”26 Chief Assistant Attorney General Jan DeYoung
responded by offering an example of a citizen suit challenging an election that claimed
an inaccuracy in a candidate’s conflict of interest statement.27 The legislator then noted
that there were “two courses of action available” — “one [that] pertains to the ability
of . . . APOC to levy a penalty, and the other [that] pertains to the ability of a person to
bring a civil suit.”28 Later in the hearing, another legislator asked DeYoung “whether,
if he were to file a complaint and the APOC chose not to act on it, he could then bring
a civil action in order to force the APOC to act.”29 DeYoung clarified:
              [T]he action referenced in AS 39.50.100 is a direct action
              brought by a citizen, and would result in a proceeding in
              superior court. However, if a complaint is filed with the
              APOC but the complainant is not satisfied with the APOC’s

       24
              Id. §§ 7, 9-10.
       25
              Id. § 11.
       26
             Minutes, H. Judiciary Comm. Hearing on H.B. 281, 25th Leg., 2d Sess.
2:52-2:59 (Feb. 8, 2008) (statement of Rep. John Coghill).
       27
              Id. (testimony of Jan DeYoung, Chief Assistant Attorney General).
       28
              Id. (statement of Rep. John Coghill).
       29
              Id. at 3:15-3:19 (statement of Rep. Mike Doogan).

                                             -9-                                         7079

             action, there is an appeal process available — that would be
             an appeal into court.[30]
Nothing in the committee’s subsequent discussion suggested that the legislature intended
to depart from the scheme DeYoung described: parallel administrative and judicial
remedies from which a plaintiff may elect.
             Alsworth and Anelon make several arguments why exhaustion is required
notwithstanding the citizen suit provision. First they highlight case law describing the
purpose of the exhaustion doctrine as “allow[ing] an administrative agency to perform
functions within its special competence”31 and claim that APOC had the expertise
necessary to investigate Seybert’s allegations.      But the question of whether the
allegations fell within the agency’s “special competence” would only apply in a much
closer case where statutory guidance on the available remedies was absent. Here the
legislature clearly provided for a citizen suit to remedy grievances.
             Similarly Alsworth and Anelon contend that the citizen suit provision “does
not solely occupy the field” and “did not take away the administrative remedies.” In
particular they highlight APOC’s statutory authority to determine fines for the failure to
“file a properly completed and certified [conflict of interest] report.”32 While these
contentions are true, allowing a party to pursue a private cause of action without
exhausting administrative remedies does not “take away” a party’s ability to file a
complaint under AS 39.50.055 or APOC’s ability to impose fines under AS 39.50.135.


      30
            Id. (testimony of Jan DeYoung, Chief Assistant Attorney General)
(emphasis added).
      31
            See Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119, 122
(Alaska 1988) (quoting Van Hyning v. Univ. of Alaska, 621 P.2d 1354, 1355 (Alaska
1981)).
      32
             AS 39.50.135.

                                          -10-                                      7079

The case law and statutes cited by Alsworth and Anelon merely emphasize the
simultaneous availability of the administrative remedy; these cases and statutes do not
compel us to read an exhaustion requirement into the voters’ express provision for a
private right of action.
              Next Alsworth and Anelon highlight statutory language suggesting that any
fines imposed based on a failure to properly file a conflict of interest report will be
“determin[ed]” by APOC, citing AS 39.50.135. They claim that although AS 39.50.100
may allow a plaintiff to bring a civil suit, “it does not allow for any remedies within that
civil action, [as] the remedies are strictly within the jurisdiction of [APOC].” But this
argument leads to an absurd result: surely the voters did not intend to create a private
right of action through which no remedy could be granted. And even if, as Alsworth and
Anelon suggest, the determination of fines falls within APOC’s exclusive jurisdiction,
a superior court still could adjudicate the merits of a citizen suit and refer the
determination of fines to APOC. Here Seybert seeks fines in addition to several other
remedies.
              Finally, citing Ben Lomond, Inc. v. Municipality of Anchorage,33 Alsworth
and Anelon claim that “exhaustion [is] particularly appropriate” because Seybert raises
both “issues that could be determined by the administrative agency and those that
generally would not.” But in Ben Lomond, the plaintiff sought only one remedy —
monetary damages from the Municipality of Anchorage for revocation of its building
permits.34 A reversal of this initial revocation would have completely resolved the




       33
              761 P.2d 119 (Alaska 1988).
       34
              See id. at 121.

                                           -11­                                       7079
plaintiff’s concern.35 Here, in contrast, the imposition of fines based on counts one
through three of Seybert’s amended complaint — alleging violations of state conflict of
interest law — would not necessarily have fully resolved Seybert’s grievances under
counts four and five, which alleged violations of the borough charter and Alaska’s
statutory prohibition against “[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of trade or commerce.”36 Thus the fact that Seybert raises
claims both within and outside of APOC’s jurisdiction does not alone trigger the
exhaustion requirement.
              In summary, both the plain language and legislative history of the dual
remedies in AS 39.50 — the citizen suit provision and the administrative complaint
provision — show that exhaustion of administrative remedies is not required here. It was
an error for the superior court to hold that it was required.
       B.	    The Record Does Not Establish The Doctrine Of Primary Jurisdiction
              As An Independent Basis For The Superior Court’s Decision.
              Even if Seybert were not required to exhaust administrative remedies,
Alsworth and Anelon argue that the superior court had the discretion to apply the
doctrine of primary jurisdiction to stay the proceedings. They assert that this doctrine
provides an independent ground on which to affirm the superior court’s grant of
summary judgment. However we will affirm on independent grounds not relied on by
the superior court only when those grounds are established by the record as a matter of
law.37 Because the superior court did not make a discretionary decision based on primary




       35
              Id. at 122.
       36
              See AS 45.50.471.
       37
              McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980).

                                           -12-	                                     7079

jurisdiction, we can affirm on this ground only if the superior court were required as a
matter of law to stay the proceeding based on primary jurisdiction.
              Primary jurisdiction is a judicially created prudential doctrine that applies
“to claims properly cognizable in court [but] that contain some issue within the special
competence of an administrative agency.”38 As we have explained, under the primary
jurisdiction doctrine “a court may, in appropriate cases, stay or dismiss pending litigation
so as to enable a proper agency to initially pass upon an aspect of the case calling for
administrative expertise.”39 Such circumstances may arise “[w]hen a case raises
questions of fact not within the ordinary experience of courts, or if the case requires the
exercise of administrative discretion.”40 The doctrine is based on “ ‘the need for an
orderly and reasonable coordination of the work of agencies and courts,’ which is
generally best achieved when courts decline to rule ‘on a subject peculiarly within the
agency’s specialized field without first taking into account what the agency has to




       38
              Reiter v. Cooper, 507 U.S. 258, 268 (1993).
       39
            Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027,
1032 (Alaska 1972), overruled on other grounds by City & Borough of Juneau v.
Thibodeau, 595 P.2d 626 (Alaska 1979).
       40
              Matanuska Elec. Ass’n v. Chugach Elec. Ass’n, 99 P.3d 553, 559 (Alaska
2004) (alteration in original) (quoting Oil Heat Inst., Inc. v. Alaska Pub. Serv. Corp., 515
P.2d 1229, 1233 (Alaska 1973)).
                                           -13-                                       7079

offer.’ ”41 Whether to invoke primary jurisdiction is left to the discretion of the superior
court because the doctrine “is one of prudence, and not an absolute jurisdictional
limitation.”42
                 Seybert argues that “for the doctrine of primary jurisdiction to apply, ‘at
least some part of the case must fall within the exclusive jurisdiction of the administrative
agency,’ ” relying on our language in Greater Anchorage Area Borough v. City of
Anchorage.43 This language, read in a vacuum, could suggest that a superior court may
defer to an agency only when at least part of a claim falls within the agency’s
exclusive jurisdiction.44 But this reading is inconsistent with other precedent, which
recognizes that superior courts enjoy discretion when deciding whether to defer to an
agency.45 As we have noted, the doctrine’s “purpose is to help a court decide whether




       41
           Id. (citation omitted) (quoting G & A Contractors, Inc. v. Alaska
Greenhouses, Inc., 517 P.2d 1379, 1383 (Alaska 1974)).
       42
                 Id.
       43
                 504 P.2d at 1033.
       44
             See id. at 1033-34; see also 2 RICHARD J. PIERCE JR., ADMINISTRATIVE LAW
TREATISE 14.2 at 1191 (5th ed. 2010) (“Sometimes courts confuse primary jurisdiction
with exclusive statutory jurisdiction.”).
       45
               See, e.g., Matanuska Elec., 99 P.3d at 559-60 (“[T]he primary agency
jurisdiction doctrine is one of prudence, and not an absolute jurisdictional limitation.”);
G & A Contractors, Inc., 517 P.2d at 1383 (“This, of course, is hardly to say that the
courts must in each and every case defer to an agency determination.”); Greater
Anchorage Area Borough, 504 P.2d at 1032 (“Under the . . . ‘doctrine of primary
jurisdiction,’ a court may, in appropriate cases, stay or dismiss pending litigation so as
to enable a proper agency to initially pass upon an aspect of the case calling for
administrative expertise.”).

                                             -14-                                      7079

it should refrain from exercising its jurisdiction.”46 But in cases where agency
jurisdiction is exclusive, the court has no jurisdiction to “refrain” from exercising.
              Seybert correctly asserts that APOC lacked exclusive jurisdiction over
alleged violations of Alaska’s conflict of interest laws, because AS 39.50.100 expressly
provides for a private right of action to enforce those provisions in court. But this
assertion does not end our inquiry because in a case such as this, in which the superior
court and agency share concurrent jurisdiction, a court may apply the primary
jurisdiction doctrine to stay its proceedings until the agency reaches a decision.
              “No fixed formula exists for applying the doctrine of primary
jurisdiction.”47 While we have yet to establish a standard for applying the primary
jurisdiction doctrine, courts in other jurisdictions typically consider a number of factors,48
including “(1) the extent to which the agency’s specialized expertise makes it a
preferable forum for resolving the issue, (2) the need for uniform resolution of the issue,
and (3) the potential that judicial resolution of the issue will have an adverse impact on
the agency’s performance of its regulatory responsibilities.”49 Based on our evaluation
of these factors, we conclude that the record does not establish primary jurisdiction as
an alternate basis on which to affirm the superior court’s decision.


       46
              G & A Contractors, Inc., 517 P.2d at 1383 (emphasis added).
       47
             United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956); see Greater
Anchorage Area Borough, 504 P.2d at 1032 n.17 (citing W. Pac. R.R. Co. in its
discussion about the scope of the primary jurisdiction doctrine).
       48
             See Paula K. Knippa, Primary Jurisdiction Doctrine and the
Circumforaneous Litigant, 85 TEX.L.REV.1289, 1311-12 (2007) (describing the various
multifactor tests that the federal circuit courts of appeal apply in evaluating the
application of primary jurisdiction doctrine).
       49
              PIERCE, supra note 44, at 1162.

                                            -15-                                        7079

             First, by including a citizen suit provision, the legislature evinced its clear
intent to make the courts available to hear alleged violations of Alaska’s conflict of
interest laws. The inclusion of parallel citizen suit and administrative complaint
provisions indicates that the legislature views the court as a competent and desirable
forum in which to bring conflict of interest claims, notwithstanding the authority of
APOC to also hear such claims. Applying the primary jurisdiction doctrine to claims
brought under the citizen suit provision of AS 39.50.100 would subvert the legislature’s
express intent to allow people to enforce Alaska’s conflict of interest laws through the
courts, as evident in the plain text of AS 39.50.100. Because the citizen suit provision
clearly designates the courts as competent to hear Seybert’s conflict of interest claims,
the first factor, specialized agency expertise, does not favor deferring to APOC.
             Second, there is minimal risk of inconsistent resolutions of this issue.
When the superior court stayed the proceedings, there was no pending administrative
proceeding on Seybert’s claims before APOC. And in the past APOC dismissed
complaints by Seybert that have raised similar allegations.50 In 2010 one Seybert
petitioner filed a complaint with APOC against Alsworth and another elected official in
the borough alleging violations of the conflict of interest law.51 APOC ultimately
concluded that no such violations had occurred and dismissed the complaints.52 Further,

      50
              Other courts have found that an agency’s past failure to take any action
counsels against applying the primary jurisdiction doctrine in subsequent cases. See,
e.g., Nat’l Wildlife Fed’n v. Consumers Power Co., 657 F. Supp. 989, 1001 (W.D. Mich.
1987), rev’d on other grounds, 862 F.2d 580 (6th Cir. 1988).
      51
           Complaint, Holman v. Alsworth, No. 10-14-POFD (Alaska Pub. Offices
Comm’n Sept. 20, 2010); Complaint, Holman v. Wilder, No. 10-15-POFD (Alaska Pub.
Offices Comm’n Sept. 20, 2010).
      52
             Holman v. Alsworth, No. 10-14-POFD at 4 (Alaska Pub. Offices Comm’n
                                                                     (continued...)

                                           -16-                                       7079

even if Seybert now filed a complaint with APOC, there is no guarantee that APOC
would investigate the allegations.53 Thus there is little risk that judicial resolution would
conflict with a ruling by APOC.
              Third, judicial resolution of Seybert’s allegations is unlikely to encroach
on APOC’s regulatory responsibilities. Seybert’s claims do not fall within APOC’s
regulatory expertise: Seybert is not challenging regulations promulgated by APOC nor
is Seybert challenging an internal agency procedure.54 Further, there is no indication that
APOC is currently involved in rulemaking or in revising the regulations at issue. Rather
Seybert’s claims arise under existing conflict of interest law and regulations, and courts
are well versed in statutory interpretation.55 Here Seybert simply asks the court to


       52
              (...continued)
Mar. 2, 2011) (“Because the Commission refused to find a violation of the statute in the
nearly identical circumstances of the Wilder case, it is inappropriate to conclude that such
conduct constituted a violation of the law in this case.”); Holman v. Wilder, No. 10-15­
POFD at 3 (Alaska Pub. Offices Comm’n Mar. 2, 2011) (“[T]he Commission does not
agree that a violation of the statute can be established given the ambiguous nature of the
reporting requirements and the agency’s role in contributing to the [elected official’s]
confusion as to how to properly report his financial affairs.”).
       53
              See 2 AAC 50.870(c)-(d) (authorizing APOC to reject a complaint without
investigation if it determines that the complaint fails to meet certain criteria).
       54
             Cf. In re Real Estate Brokerage Antitrust Litig., 622 P.2d 1185, 1189
(Wash. 1980) (declining to apply the doctrine of primary jurisdiction based partly on the
fact there was no challenge to an agency regulation or to agency procedures).
       55
               See Union Oil Co. of Cal. v. Dep’t of Revenue, 560 P.2d 21, 23 (Alaska
1977) (Where the issues “to be resolved turn on statutory interpretation, the knowledge
and expertise of the agency is not conclusive of the intent of the legislature in passing a
statute. Statutory interpretation is within the scope of the court’s special competency,
and it is our duty to consider the statute independently.” (citations omitted)); In re Real
Estate Brokerage Antitrust Litig., 622 P.2d at 1189 (“[S]tandards to be applied in [an]
                                                                             (continued...)

                                            -17-                                       7079

enforce the standards that the legislature and APOC already determined are appropriate.
Further, Seybert’s citizen suit is not a collateral attack on any permitting or regulatory
decision by APOC; the citizen suit complements and enhances APOC’s regulatory
efforts.56 The legislature conceives of APOC as a “watchdog agenc[y],” and its stated
purpose in adding the administrative complaint provision was to “strengthen the
oversight of Alaska’s ethics laws.”57 Allowing court enforcement of the conflict of
interest law complements, rather than encroaches on, the role of APOC and the goal of
the administrative complaint provision.
              In light of these three factors, the record does not establish as a matter of
law that the superior court was required to apply the primary jurisdiction doctrine to stay
Seybert’s claims pending resolution by APOC. In fact these factors may counsel against
the application of the doctrine to Seybert’s claims. Thus the primary jurisdiction
doctrine does not provide an alternative ground on which we can affirm the superior
court’s grant of summary judgment.
V.     CONCLUSION
              We conclude, first, that it was an error for the superior court to hold that
Seybert was required to exhaust his administrative remedies before bringing a citizen


       55
               (...continued)
antitrust action are within the conventional competence of the courts and the judgment
of the agencies is not likely to be helpful in the application of these standards to the facts
of this case.”).
       56
             Cf. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.
49, 60 (1987) (explaining that a citizen suit under the federal Clean Water Act “is meant
to supplement rather than to supplant governmental action”).
       57
            Minutes, H. Fin. Comm. Hearing on H.B. 281, 25th Leg., 2d Sess. 2:33­
2:36 (Mar. 31, 2008) (testimony of Mike Sica, staff to Representative Bob Lynn, bill
sponsor).
                                            -18-                                        7079

suit, and, second, that the record does not establish the doctrine of primary jurisdiction
as an independent basis on which to affirm the superior court’s decision. We thus
REVERSE the superior court’s order granting summary judgment and staying the
petitioners’ claims.




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