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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barbara Jones, in an official capacity as Municipal Clerk for the Municipality of Anchorage, and the Municipality of Anchorage v. Russell Biggs (5/6/2022) sp-7592

Barbara Jones, in an official capacity as Municipal Clerk for the Municipality of Anchorage, and the Municipality of Anchorage v. Russell Biggs (5/6/2022) sp-7592

          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.gov.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



BARBARA  JONES,  in  an  official                                  )  

capacity  as  Municipal  Clerk  for  the                           )   Supreme Court No. S-18102  

                                                                                                       

Municipality  of  Anchorage,  and  the                             )  

MUNICIPALITY  OF  ANCHORAGE,                                       )   Superior  Court  No.  3AN-20-08262  CI  

                                                                   )  

                               Appellants,                                                 

                                                                   )   O P I N I O N  

                                                                   )  

          v.                                                                                           

                                                                   )  No. 7592 - May 6, 2022  

                                                                   )  

                   

RUSSELL BIGGS,                                                     )  

                                                                   )  

                               Appellee,                           )  

                                                                   )  

          and                                                      )  

                                                                   )  

           

MEG ZALETEL,                                                       )  

                                                                   )  

                               Intervenor.                         )  

                                                                   )  



                                                                                                          

                                  

                     Appeal from the Superior Court of the State of Alaska, Third  

                                                                                               

                     Judicial District, Anchorage, Kevin M. Saxby, Judge.  



                                                                                                    

                     Appearances:  Ruth Botstein, Assistant Municipal Attorney,  

                                                                                                              

                     and Patrick N. Bergt, Municipal Attorney, Anchorage, for  

                                                                                                      

                     Appellants. Samuel C. Severin, Chandler, Falconer, Munson  

                                                                                                               

                     &  Cacciola,  LLP,  Anchorage,  for  Appellee.                             Thomas  P.  

                                                                                                

                     Amodio, Reeves Amodio LLC, Anchorage, for Intervenor.  



                                                                                                    

                     Before:           Winfree,         Chief       Justice,       Maassen,          Carney,  

                                                                  

                     Borghesan, and Henderson, Justices.  



                                        

                     CARNEY, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION
  



                    A citizen filed  an  application for  a petition to  recall a member  of the  

                                                                                                                              



Anchorage Assembly, alleging that the assembly member had committed misconduct in  

                                                                                                                                



office by participating in an indoor gathering of more than 15 people in violation of an  

                                                                                                                               



executive order.  The municipal clerk rejected the application after concluding that the  

                                                                                                                              



alleged conduct did not constitute misconduct in office. The superior court reversed the  

                                                                                                                              



clerk's denial of the application.  We affirm the superior court's decision.  

                                                                                                  



II.       BACKGROUND  



                    The Anchorage Assembly is the Municipality of Anchorage's legislative  

                                                                                                                   



body and holds weekly meetings generally open to the public.  On August 3, 2020, the  

                                                                                                                              



Anchorage mayor issued Executive Order 15 (EO-15) to slow the spread of COVID-19.  

                                                                                                                                    



The order limited indoor gatherings to no more than 15 people.  

                                                                                                 



                    Russell Biggs filed an application for a petition to recall Assembly Member  

                                                                                                                      



Meg Zaletel. The Municipal Clerk denied Biggs's application, whichallegedthat Zaletel  

                                                                                                                         



"committed  misconduct  in  office"  when  she  "violat[ed]  EO-15"  by  "knowingly  

                                                                                                                



participating in an indoor gathering of more than 15 people (a meeting of the Anchorage  

                                                                                                                  



Assembly)" and "continuing to participate in an indoor gathering of more than 15 people  

                                                                                                                         



. . . after being specifically informed of the violation."  The Clerk deemed the allegation  

                                                                                                                    



legally  insufficient  because  "  'misconduct  in  office'  requires  some  component  of  

                                                                                                                               



dishonesty, private gain, or improper motive - which is not alleged within Recall  

                                                                                                             



Application 2020-05."  The Clerk based her interpretation of "misconduct in office" on  

                                                                                                                               



the definition of "official misconduct" in the 2019 edition of Black's Law Dictionary,  

                                                                                                                  



which includes a requirement of corruption or abuse of office, and the constitutional and  

                                                                                                                              



statutory history of Alaska's recall provisions.  

                                                                        



                    Biggs appealed the Clerk's denial of his application to the superior court.  

                                                                                                                                    



He argued that the Clerk erred by relying on Black's Law Dictionary's definition of  

                                                                                                                               



                                                               -2-                                                        7592
  


----------------------- Page 3-----------------------

"official misconduct." Biggs asserted that the Clerk should not have used "technical law                                                                           



dictionaries to interpret statutes" and instead should have interpreted them according to                                                                             

                                                                                                           1  Biggs also argued that, if using  

their "common and approved usage" as required by law.                                                                                                          



Black's was appropriate,  the Clerk  should  have relied  on the broader  definition of  

                                                                                                                                                                     



"misconduct" as "[a] dereliction of duty; unlawful, dishonest, or improper behavior,  

                                                                                                                                                       



esp[ecially] by someone in a position of authority or trust," because it better aligned with  

                                                                                                                                                                  



the  ordinary  meaning  of  misconduct.                                          Biggs  argued  that  using  the  2019  Black's  

                                                                                                                                                          



definition of "official misconduct" would render AS 29.26.250's "misconduct in office"  

                                                                                                                                                             



ground for recall equivalent to the crime of official misconduct found in AS 11.56.850,  

                                                                                                                                                     



contrary to the requirement that recall statutes are to be construed liberally.  He also  

                                                                                                                                                                  



argued that the legislative history of the municipal recall statute did not support the  

                                                                                                                                                   



Clerk's narrow reading and interpretation of "misconduct in office."  

                                                                                                                                        



                          Thesuperior courtagreed withBiggs. It found that theClerk's "inaccurate"  

                                                                                                                                                  



interpretation of "misconduct in office" "was overly reliant on the current definition of  

                                                                                                                                                                      



'official misconduct.' " The court reasoned that the 2019 edition of Black's was "far less  

                                                                                                                                                                   



probative of legislative intent than the definitions contained in the [e]dition in print in  

                                                                                                                                                                      

                                                                                    2     Additionally,  the  court  found  that  the  

 1985  when  AS  29.26.250  was  enacted." 

                                                                                                                                                                   



             1            Alaska Statute 01.10.040(a) directs that "[w]ords and phrases shall be                                                                    



construed . . . according to their common and approved usage."                                                



             2            Wenotethat thecurrent groundsfor recall wereestablished in 1972, though  

                                                                                                                                                             

the statute was reorganized in 1985.  Compare ch. 118,  2, SLA 1972, with ch. 74,  9,  

                                                                                                                                                                      

SLA 1985; see also Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 295 (Alaska 1984)  

                                                                                                                                                               

(discussing history of recall provisions in Alaska).  The superior court referred to the  

                                                                                                                                                                    

 1979 Fifth Edition of Black's Law Dictionary, but it should have looked at the Revised  

                                                                                                                                                          

Fourth Edition published in 1968.  The error, however, is harmless because the relevant  

                                                                                                                                                          

portion of the definition of "misconduct in office" is identical in both the 1968 and 1979  

                                                                                                                                                                

versions. Compare Misconduct in Office, BLACK 'S LAW DICTIONARY  (rev. 4th ed.                                                                               1968),  

                                                                                 

                                                                                                                                               (continued...)  



                                                                                  -3-                                                                           7592
  


----------------------- Page 4-----------------------

corruption   requirement   added   a   scienter   element   akin   to   that   required   for   official  



misconduct, which would undermine the goals of the recall statutes.                                                                       



                           The court noted that the 1979 edition of Black's defined "misconduct in                                                                        



office" as "[a]ny unlawful behavior by a public officer in relation to the duties of his                                                                                

                                                        3   This definition made clear, the superior court concluded,  

office, willful in character."                                                                                                                          



that "Zaletel's alleged unlawful behavior of participating in an over-capacity meeting as  

                                                                                                                                                                          



a public officer, after being warned that the gathering was unlawful, would constitute  

                                                                                                                                                          



misconduct  in  office."                           The  superior  court  reversed  the  Clerk's  denial  of  Biggs's  

                                                                                                                                                             



application for a petition.  

                                                     



                           The Municipality appeals the superior court's decision. We agree with the  

                                                                                                                                                                        



superior court's decision and analysis.  We affirm the court's decision and adopt the  

                                                                                                                                                                       



relevant sections of its order.  

                                               



III.          STANDARD OF REVIEW  

                                                    



                           This appeal raises only questions of law regarding the interpretation of  

                                                                                                                                                                         



Alaska's recall statutes.  "When interpreting Alaska's recall statutes, we exercise our  

                                                                                                                                                                       



independent judgment and adopt 'the rule of law which is most persuasive in light of  

                                                                                                                                                                         

precedent, policy and reason.' "4  

                                                              



             2             (...continued)  



                                                          LACK 'S  LAW  DICTIONARY  (5th ed. 1979).                             

with Misconduct in Office, B 



             3             Citing  Misconduct in Office                             , B   LACK 'S   LAW   DICTIONARY   (5th ed. 1979)                             



(identical in 1968 edition).         



             4             State, Off. of Lieutenant Gov., Div. of Elections v. Recall Dunleavy, 491  

                                                                                                                                                                      

P.3d 343, 354 (Alaska 2021) (quoting  von Stauffenberg v. Comm. for an Honest &  

                                                                                                                                                                         

Ethical Sch. Bd., 903 P.2d 1055, 1059 n.9 (Alaska 1995)).  

                                                                                                       



                                                                                    -4-                                                                            7592
  


----------------------- Page 5-----------------------

IV.       DISCUSSION
  



                    The Alaska Constitution provides that "[a]ll elected public officials in the  

                                                                                                                           



State, except judicial officers, are subject to recall by the voters" and that the legislature  

                                                                                                                 

                                                                             5   Alaska Statutes 29.26.240-.360  

shall set forth the grounds and procedures for recall.                                                   

                                                                     



govern  the  recall  of  municipal  officials  and  permit  their  recall  on  three  grounds:  

                                                                                                                                 

"misconduct in office, incompetence, or failure to perform prescribed duties."6  To recall  

                                                                                                                        



a municipal official an applicant must first file an application with the municipal clerk;  

                                                                                                                        



among other requirements, the application must describe "in 200 words or less . . . the  

                                                                                                                            

grounds for recall stated with particularity."7   If the clerk determines that the application  

                                                                                                                

meets the requirements, the clerk must issue a recall petition.8                            Proponents of the recall  

                                                                                                                        



then gather signatures and file the petition with the clerk, who must certify whether the  

                                                                                                                           

                               9   If it is certified as sufficient, the clerk must submit it to the  

petition is sufficient.                                                                                                    

                 

governing body and a recall election must be held.10  

                                                                    



                    Alaska'sfor-causerecall processfollows "amiddleground"between states  

                                                                                                                        



that treat recall as "special, extraordinary, and unusual" and construe grounds narrowly  

                                                                                                                   



in favor of the office holder, and states that treat recall as "essentially a political process"  

                                                                                                                   



          5         Alaska  Const.  art.  XI,    8.
  



          6         AS  29.26.250.
  



          7
        AS  29.26.260.  



          8         AS  29.26.270.  



          9         AS  29.26.280-.290.  



          10        AS  29.26.310-.320.  



                                                             -5-                                                        7592
  


----------------------- Page 6-----------------------

                                                                                                                                                                           11  

and construe "all doubts . . . in favor of placing the question before the voters."                                                                                             This  



means that a reviewing court must take factual allegations in the petition as true and                                                                                             



assess "whether such facts constitute a prima facie showing of" at least one of the                                                                                                 

                                                            12    The recall statutes should be "liberally construed so that  

statutory grounds for recall.                                                                                                                                                      

 'the people [are] permitted to vote and express their will,' "13  and the court must "avoid  

                                                                                                                                                                             



wrapping the recall process in . . . a tight legal straitjacket" navigable only "by an  

                                                                                                                                                                                      

attorney who is a specialist in election law matters."14  The threshold for legal and factual  

                                                                                                                                                                             



sufficiency is low:  the allegation must be based on a statutory ground for recall and the  

                                                                                                                                                                                     



facts alleged must describe the relevant acts or omissions with sufficient particularity to  

                                                                                                                                                                                       



give the targeted official a "fair opportunity to defend his conduct in a rebuttal limited  

                                                                                                                                                          

to 200 words."15  

                



                             At issue in this case is whether participating in a meeting in knowing  

                                                                                                                                                                        



violation of an executive order constitutes "misconduct in office." The municipal recall  

                                                                                                                                                                                

                                                                      16    We have held there was no prima facie showing of  

statute does not define the term.                                                                                                                                  

                                                           



misconduct in office when elected officials "legally exercis[ed] the discretion granted to  

                                                                                                                                                                                       



               11            State, Off. of Lieutenant Gov., Div. of Elections v. Recall Dunleavy                                                                               , 491   



P.3d 343, 352-53 (Alaska 2021) (quoting                                                   Meiners v. Bering Strait Sch. Dist.                                        , 687 P.2d     

287, 294 (Alaska 1984)).                                 



               12            Id. at 356 (quoting von Stauffenberg v. Comm. for an Honest &Ethical Sch.  

                                                                                                                                                                                   

Bd., 903 P.2d 1055, 1059-60 (Alaska 1995)).  

                                                                                   



               13            Meiners,  687  P.2d  at  296  (alteration  in  original)  (quoting Boucher  v.  

                                                                                                                                                                                       

Engstrom, 528 P.2d 456, 462 (Alaska 1974)); Recall Dunleavy, 491 P.3d 343, 355  

                                                                                                                                                                                   

(Alaska 2021).  

                   



               14            Meiners, 687 P.2d at 301.  

                                                                            



               15            Id. at 302.  

                                          



               16            See AS 29.26.250.  

                                               



                                                                                           -6-                                                                                  7592
  


----------------------- Page 7-----------------------

                         17                                                                                       18  

them by law."                But we have not defined "misconduct in office,"                                         and we need not do             



so here.        As we held in            Meiners  and  Recall Dunleavy                       , recall statutes must be "liberally           

                                                                                                                                           19    The  

construed so that 'the people [are] permitted to vote and express their will.' "                                                                 



Clerk did the opposite by applying a definition that added requirements including a  

                                                                                                                                    



criminal  degree  of  intent,  and  "wrapp[ed]  the  recall  process  in  .  .  .  a  tight  legal  

                                                                                                                                               

straightjacket."20  

                               



                        The  superior  court  concluded  that  the  Clerk  "applied  an  inaccurate  

                                                                                                                                     



definition of 'misconduct in office' in determining that [Biggs's] application . . . was  

                                                                                                                                                



insufficient,  and  concluded  incorrectly  that  a  showing  of  'some  component  of  

                                                                                                                                                   



dishonesty, private gain, or improper motive' was required for the allegation's legal  

                                                                                                                                               



sufficiency."  The court therefore reversed the Clerk's denial.  We agree and adopt the  

                                                                                                                                                   

superior court's reasoning as quoted below.21  

                                                                  



            17          von  Stauffenberg,  903  P.2d  at   1060.  



            18         See  Meiners,   687  P.2d   at  299  n.14   (declining  to  decide  whether   alleged  



conduct   amounted  to  misconduct  in   office  when  it  met  different   statutory  ground   for  

recall).  



            19         Id. at 296 (alteration in original) (quoting Boucher v. Engstrom, 528 P.2d  

                                                                                                                                                

456,  462  (Alaska  1974)); State,  Off. of Lieutenant  Gov., Div.  of Elections  v. Recall  

                                                                                                                                            

Dunleavy, 491 P.3d 343, 355 (Alaska 2021).  

                                                                    



            20         Meiners, 687 P.2d at 302.  

                                                              



            21          The excerpt of the superior court's decision has been revised and modified  

                                                                                                                                         

to  conform with  our format.  Bracketed  footnotes and in-text brackets regarding the  

                                                                                                                                                   

Black's edition used indicate substantive modifications made where needed.  

                                                                                                                                        

                



                                                                         -7-                                                                   7592
  


----------------------- Page 8-----------------------

                                                 

                                        * * * *  



                                                                          

          TheMunicipal Clerk'srejection ofBiggs's application  

                                                                                       

. . . was based on the Clerk's interpretation of the meaning of  

                                                                               

"misconduct in office." "Misconduct in office" is not defined  

                                                                           

in the recall statutes or the municipal code.  The Municipal  

                                                                                     

Clerk   reasoned   that   a   legally   sufficient   allegation   of  

                                                                                

misconduct "requires some component ofdishonesty, private  

                                                                                   

gain, or improper motive."  The Clerk derived this rule from  

                                                                                       

a review of the [2019] Black's Law Dictionary's definition of  

                                                                              

"official  misconduct":                 "1.  A  public  officer's  corrupt  

                                                                                       

violation of assigned duties by malfeasance, misfeasance, or  

                                                             34  She also looked  

nonfeasance.  2. Abuse of public office." 

to the Black's Law Dictionary's definition of "corrupt" as  

                                                                                       

"[h]aving unlawful or depraved motives; given to dishonest  

                                                               

practices, such as bribery."35  

                            



          Biggs  argues  that  resorting  to  the  definitions  of  

                                                                                      

"official   misconduct"   and   "corrupt"   in   Black's   Law  

                                                                                  

Dictionary was improper for a few different reasons.  First,  

                                                                                  

Black's is a technical law dictionary, and the "words and  

                                                                                    

phrases"  of  Alaska's  statutes  are  to  be  "construed  .  .  .  

                                                                                         

according  to  their  common  and  approved  usage."36                             The  

                                                                                    

                                                                   

Alaska  Supreme  Court  specifically  instructed  that  recall  

                                                                                 

statutes "should be liberally construed so that 'the people  

                                                                                           

_______________________________________________  

          34        Official Misconduct, BLACK'S LAW DICTIONARY  

                                                   

(11th  ed.  2019).  

          35        Corrupt, BLACK 'S  LAW  DICTIONARY  (11th  ed.  



2019).  

          36        AS    01.10.040;   see   also,   e.g.,   Adamson   v.  



Municipality  of  Anchorage ,   333  P.3d   5,   16   (Alaska  2014);  

Norville  v.  Carr-Gottstein  Foods  Co.,  84  P.3d  996,  1001  n.3  

(Alaska  2004).  



                                           -8-                                                        7592
  


----------------------- Page 9-----------------------

                                                                                          37  

                                                                                                Thus,  

[are] permitted to vote and  express their will.' " 

Biggs argues that a broader, more accessible meaning of the                                          

phrase "misconduct in office" should apply.                         



            Second,   while   conceding   that   the   Alaska   Supreme  

Court will at times use Black's to assess common meanings                                 

of     words          and       phrases         for      the      purpose          of      statutory  

                         38 Biggsargues that thereareinstancesin which  

interpretation,                                                                                 

the Court has rejected Black's definition when it is overly  

                                                                                               

precise in a way that is not on point for the litigated issue.39  

                                                 

Here, he asserts that using the Black's definition of "official  

                                                                                            

misconduct" is unhelpful because it adopts a definition that  

                                                                                                    

is   the   functional   equivalent   of   the   crime   of   official  

                                                                                            

misconduct with no suggestion of any legislative intent to do  

                                                                                                      

so.40   Alaska has long had a statute listing the elements of the  

                                                                                                     

crime of official misconduct,[41] but there is no indication in  



the record that the legislature intended for that definition to  

                                                                                                       

apply in the civil context of a recall for misconduct in office.  

                                                                                                            



_______________________________________________  

            37         Meiners v. Bering Strait Sch. Dist., 687 P.2d  

                                                                                                            

287,  296  (Alaska  1984)  (alteration  in  original)  (quoting  

                                                                                           

Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska 1974)).  

                                                                                         

            38          E.g., Benavides v. State, 151 P.3d 332, 335-36  

                                                                                              

(Alaska 2006);  Univ. of Alaska v. Geistauts, 666 P.2d 424,  

                                                                                         

430 (Alaska 1983).  

                        

            39          Parson v. State, Dep't of Rev., 189 P.3d 1032,  

                                                                                        

 1037  (Alaska  2008);  Little  Susitna  Constr.  Co.  v.  Soil  

                                                                                                   

Processing, Inc., 944 P.2d 20, 24 (Alaska 1997); Rhines v.  

                                                                                                       

State, 30 P.3d 621, 625-26 (Alaska 2001).  

                                                                

            40           AS 11.56.850(a).  

                                

            41          Alaska Statute 11.56.850(a) provides:  

                                                                           



            A public servant commits the crime of official  

                                                                                  

            misconduct if, with intent to obtain a benefit or  

                                                                                           

            to injure or deprive another person of a benefit,  

                                                                                  

            the public servant                                         (continued...)  

                               



                                                   -9-                                                                   7592
  


----------------------- Page 10-----------------------

  his court agrees with the reasoning . . . in Aderhold v. City  

T                                                                

of Homer & Heartbeat of Homer that, in a recall context,  

                                                                              

"requir[ing] misconduct in office to be criminal would . . .  

                                                                                         

undermine the intent and effectiveness of the recall statutes  

                                                                               

. . . and would deny the voters' right to effectively seek recall  

                                                                                  

of their elected officials."42  

                        



          Biggs further argues that the definition of the word  

                                                                                  

"misconduct," when not defined within the context of the  

                                                                                     

crime of official misconduct, has a broader meaning more  

                                                                                  

compatible  with  the  recall  context.                   He  cites  to  Black's  

                                                                              

definition of misconduct as "[a] dereliction ofduty; unlawful,  

                                                                            

dishonest, or improper behavior, esp[ecially] by someone in  

                                                                                       

a  position  of  authority  or  trust."43                 He  argues  that  this  

                                                                                    

definition  is  more  in  line  with  the  ordinary  meaning  of  

                                                                                      

misconduct one finds in non-technical dictionaries.  And the  

                                                                                      

requirement that the misconduct must be "in office" can be  

                                                                                      

met by showing  that  the subject was acting in his or her  

                                                                                     

official capacity when committing the alleged misconduct.  

                                                                                           



________________________________________________  

          41        (...continued)  



          (1)  performs  an  act  relating  to  the  public  

                                                                      

          servant's          office        but      constituting            an  

                                                                          

          unauthorized  exercise  of the public  servant's  

                                                                  

          official      functions,         knowing         that      act     is  

                                                                   

          unauthorized; or  

                                



          (2) knowingly refrains from performing a duty  

                                                                          

          which  is imposed upon the public  servant by  

                                                                            

          law or is clearly inherent in the nature  of the  

                                                                           

          public servant's office.  

                                    

          42        No.  3AN-17-06227  CI  at  4  (Alaska  Super.,  

                                                                               

May 23, 2017).  

              

          43        Misconduct, BLACK 'S  LAW  DICTIONARY  (11th  



ed.  2019).  



                                          -10-                                                        7592
  


----------------------- Page 11-----------------------

                                                                                    

Thus,        borrowing            the     corrupt         element         from        "official  

                                                                                 

misconduct" is unnecessary for the purpose of interpreting  

                           

"misconduct in office."  



                                                                                    

           The  Municipality  argues  that  it  is  not  requiring  

                                                                                       

misconduct to be criminal and is instead drawing an analogy  

                                                                                           

from the definition of official misconduct in order to better  

                                                                                               

understand "misconduct in office." But it is unclear what use  

                                                                                      

this  analogy  is  when  it  effectively  includes  a  scienter  

                                                                                                

requirement that raises the bar for misconduct in office to be  

                                                                                                 

on par with official misconduct.  If the legislature wanted to  

                                                                                                

add  additional  scienter  elements  to  its  broad  reference  to  

                                                                                               

misconduct in office, it could have done so, as it has for  

                                                                                              

findings  of  misconduct  in  other  circumstances.                                    But  the  

                                                                                               

legislature has instead elected not to further constrain the  

                                                                                                

meaning  of  "misconduct  in  office"  for  the  purposes  of  

                             

municipal recall petitions.  



                                                                                            

           Significantly, to this court, the definitions in the most  

                                                                                                

current  edition  of  Black's  would  be  far  less  probative  of  

                                                                                         

legislative intent than the definitions contained in the edition  

                                                                         [44]   The [Fourth]  

in print . . . when AS 29.26.250 was enacted.                                          

Edition of Black's was most current [when the statute was  

                                                                                              

enacted], and it. . . [ ] defined misconduct in office as "[a]ny  

                                                                                          

unlawful behavior by a public officer in relation to the duties  

                                                                                           

of his office, willful in character."[45]  . . . . If this definition is  

                                                                                                  

________________________________________________  

           44         See ch. 118,  2, SLA 1972. "When construing  

                                                                                   

statutes de novo, we consider three factors:  'the language of  

                                                                                                 

the statute, the legislative history, and the legislative purpose  

                                                                                       

behind the statute.' "  City of Valdez v. State, 372 P.3d 240,  

                                                                                    

248 (Alaska 2016) (quoting Oels v. Anchorage Police Dep't  

                                                                                           

Emps. Ass'n, 279 P.3d 589, 595 (Alaska 2012)).  

                                                                                   

           45         Misconduct               in      Office,          BLACK 'S           LAW  



DICTIONARY   (rev. 4th ed. 1968).                        See supra         note 2 (noting     

applicability of Black's Revised Fourth Edition but superior                           

court citation to Fifth Edition was harmless error).                      



                                               -11-                                                              7592
  


----------------------- Page 12-----------------------

                                                                              

applied in this case, then Zaletel's alleged unlawful behavior  

                                                                                 

of  participating  in  an  over-capacity  meeting  as  a  public  

officer, after being warned that the gathering was unlawful,  

                                                 

would constitute misconduct in office.  



                                                                                     

          Biggs's arguments are persuasive on this issue.  The  

                                                                                

Clerk's  definition  of  "misconduct  in  office"  was  overly  

                                                                                         

reliant on the current definition of "official misconduct" in a  

                                                                              

way that obviated, rather than captured, the ordinarymeaning  

                                                                         

of AS 29.26.250.  Consequently, the "corrupt" requirement  

                                                                                            

does not apply within the meaning of "misconduct in office."  

                                                                                 

And this court agrees with [the superior court in an earlier  

                                                                                  

recall case] that  "there is no  de minimis exception  under  

                                                                                    

Alaska law mandating that an alleged ground for recall must  

                                                                              46  

                                                                

reach a certain threshold of severity to be certified." 



          But this court also appreciates that Alaska is a "for  

                                                                                    

cause" recall state, and that there must be some sufficient  

                                                                            

allegation of actual misconduct in order for a petition to go  

                                                                                       

forward.47       Officials must be able to identify, and potentially  

                                                                           

avoid, the conduct that would serve as the basis for a recall  

                                                                                   

petition.[48]   Zaletel's alleged violation of EO-15 is sufficient  

                                                                             

to meet that threshold.  She allegedly violated EO-15 in her  

                    

official  capacity  as  an  assembly  member  and  actively  

                                                                             

participated in a meeting that violated an existing emergency  

                                                                           

order.  This is enough for her misconduct to have been "in  

                                                                              

office" and enough to make a prima facie case.  

                                                                



________________________________________________  

          46        Midtown  Citizens  Coal.  v.  Municipality  of  

                                                                                       

Anchorage ,  No.  3AN-20-09614  CI  at  6  (Alaska  Super.,  

                                                                               

Jan. 25, 2021).  

              

          47        von Stauffenberg v. Comm. for an Honest &  

                                                                                        

Ethical Sch. Bd., 903 P.2d 1055, 1059-60 (Alaska 1995);  

                                                                                 

Meiners  v.  Bering  Strait  Sch.  Dist.,  687  P.2d  287,  294  

                                                                   

(Alaska 1984).  

              

          48        See von Stauffenberg, 903 P.2d at 1059.  

                                                                         



                                          -12-                                                        7592
  


----------------------- Page 13-----------------------

                                                                                                     

                              This   court,   in   reviewing   applications   for   recall  

                                                                                                      

                    petitions, treats the factual claims as true.   And the recall  

                                                                                                           

                    statutes are  to  be  construed  liberally.                  Participating  in an  

                                                                                                 

                    assembly  meeting,  as  an  assembly  member,  in  knowing  

                                                                                                            

                    violation of municipal law, while obviously defensible, is  

                                                                                                            

                    legally sufficient to support an allegation of misconduct in  

                                                                                                        

                    office for the purposes of a recall petition. The decision must  

                                             

                    be left up to the voters.  



                                                                      

                                                            * * * *  



V.        CONCLUSION  



                                                                                                                              

                    Because  the  superior  court  correctly  found  that  the  Clerk  applied  an  



                                                                                                                  

inaccurate definition of "misconduct in office" in determining that Biggs's application  



                                                                                                                               

was  insufficient,  which  improperly  required  a  showing  of  "some  component  of  



                                                                                                                       

dishonesty, private gain, or improper motive," we AFFIRM the decision of the superior  



court.  



                                                              -13-                                                        7592
  

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