IN THE COURT OF APPEALS OF IOWA
Filed November 26, 2003
Petitioner-Appellant,
vs.
IOWA EMPLOYMENT APPEAL BOARD and LB & B ASSOCIATES, INC.,
Respondents-Appellees.
Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge.
Petitioner appeals the district court’s judgment affirming the decision of the Iowa Employment Appeal Board denying petitioner unemployment benefits. AFFIRMED.
George Qualley, Sioux City, for appellant.
Richard Ramsey, Des Moines, for appellee Employment Appeal Board.
Benjamin Thompson, Raleigh, North Carolina, for appellee LB & B.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
SACKETT, C. J.
Petitioner-appellant Douglas Frahm appeals the district court’s judgment affirming the decision of the Iowa Employment Appeal Board denying petitioner unemployment benefits. On appeal petitioner argues the district court erred in (1) refusing to reopen the record for additional evidence, and (2) affirming the determination by the Iowa Employment Appeal Board that petitioner was discharged for misconduct and therefore not eligible for benefits. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Petitioner was an employee of LB & B Associates, which was hired by General Services Administration (GSA) to operate and maintain the federal courthouse in Sioux City, Iowa. On April 23, 2002, petitioner, who had been demoted from senior mechanic to building mechanic, was asked by supervisor Michael Valelasco to carry a cell phone and be on call for building emergencies every other week. Petitioner, who claims he understood that part of his demotion included his not having to be on call, refused the cell phone duty. Valelasco testified at the hearing that he then asked petitioner if he was refusing the assigned work, petitioner responded that he was, and Valelasco therefore told him he was terminated.
Iowa Workforce Development denied petitioner unemployment benefits because he had failed to follow instructions in the performance of his job. Petitioner appealed and received notice that his appeal hearing was on June 12, 2002, at 3:00 p.m. Petitioner did not attend the hearing. He called shortly after
the hearing, claiming he had been waiting for a telephone call. He argued he did not know he was supposed to call in at the appointed time but did not deny receiving and reading the notice which included language instructing the recipient to call Workforce Development immediately with a telephone number. Upon further appeal the Employment Appeal Board affirmed the agency’s denial of petitioner’s benefits. Petitioner appealed to the district court, which affirmed the agency’s refusal to reopen the record. The court further found substantial evidence supported the agency decision that petitioner had been terminated for misconduct and accordingly affirmed the denial of benefits.
II. SCOPE OF REVIEW
Our review of agency decisions is governed by the Administrative Procedure Act, Iowa Code chapter 17A (2001). Dico, Inc. v. Iowa Employment Appeal Bd., 576 N.W.2d 352, 354 (Iowa 1998). We will grant relief where substantial rights of a party have been prejudiced because the agency action is in excess of the agency's statutory authority, is unsupported by substantial evidence, is unreasonable, arbitrary, or capricious, or is affected by other error of law. Id. (referencing Iowa Code section 17A.19(8), which contained the standards of review prior to the 1999 amendments to section 17A.19); see Iowa Code § 17A.19(10) (Supp.1999). When reviewing the decision of the district court we must determine whether the district court properly applied the law. Litterer v. Judge, 644 N.W.2d 357, 360 (Iowa 2002). In reviewing its decision we apply the standards of section 17A.19(10) to the agency action and determine whether our
conclusions are the same as the district court's. Id. An administrative law judge has wide discretion in ruling on "good cause," and we will not disturb that ruling on review absent an abuse of discretion. Purethane, Inc. v. Iowa State Bd. of Tax Review, 498 N.W.2d 706, 711 (Iowa 1993).
III. ANALYSIS
Application to supplement record. Petitioner claims he had already submitted his telephone number to the agency once before, so he had good cause to ignore the warning in his June 12, 2002 hearing notice that he must call to report a number where he could be reached. Petitioner further claims the administrative law judge did not allow him to attempt to show good cause for missing the hearing.
The petitioner responded to the notice of hearing, but did so only after the record had been closed. An agency rule provides in relevant part:
b. If a party responds to the notice of hearing after the record has been closed and any party which has participated is no longer on the telephone line, the presiding officer shall not take the evidence of the late party. Instead, the presiding officer shall inquire as to why the party was late in responding to the notice of hearing. For good cause shown, the presiding officer shall reopen the record and cause further notice of hearing to be issued to all parties of record. The record shall not be reopened if the presiding officer does not find good cause for the party’s late response to the notice of hearing.
c. Failure to read or follow the instructions on the notice of hearing shall not constitute good cause for reopening the record.
Iowa Admin. Code r. 871-26.14(7)(b), (c) (1999).
The petitioner reached the presiding officer, an administrative law judge, by telephone, minutes after the hearing record had been closed. A review of the ensuing colloquy reveals that the administrative law judge did not comply with the rule’s requirement that he inquire as to why the petitioner had not responded to the notice of hearing. The petitioner did, however, subsequently explain why he did not timely respond and provide a telephone number at which he could be reached at the date and time of hearing. In an application to present additional evidence he stated he mistakenly believed his earlier submission of a telephone number at which he could be reached for an earlier “fact finding interview” satisfied the requirement, contained in a notice his appeal hearing would be held June 12 at 3:00 p.m., that he provide a telephone number where he could be reached for that hearing.
The petitioner’s explanation of why he was late in responding to the notice of the hearing is nothing more than an explanation of why he failed to follow the instructions on the notice of hearing. The agency rule provides that a hearing will not be reopened absent good cause for a party’s late response to the notice of hearing, and that a failure to follow the instructions shall not constitute good cause for reopening the hearing. Because the record demonstrates that there was not good cause for reopening the record, the administrative law judge’s failure to comply with the rule by inquiring why the petitioner was late in responding to the notice of hearing constitutes harmless error which does not warrant relief on judicial review. We affirm on this issue.
Termination for misconduct. After a thorough review of the record we conclude there was substantial evidence, based upon testimony by petitioner’s
supervisor, Valelasco, that petitioner refused to carry a cell phone when asked to do so, and that being on call is part of a building mechanic’s duties. We affirm on this issue.
AFFIRMED.
Miller, J. concurs; Hecht, J., dissents.
HECHT, J., (dissenting)
I respectfully dissent. Although I share the majority’s view that the presiding officer violated an agency rule by failing to inquire why Frahm was late in responding to the notice of hearing, see Iowa Admin. Code r. 871-26.14(7)(b), I disagree with the disposition arrived at by the majority because I do not conclude Frahm’s explanation of why he was late in responding to the notice of the hearing was “nothing more than an explanation of why he failed to follow the instructions on the notice of hearing.” I instead characterize Frahm’s position as an articulation of his reason for believing he did follow the instructions on the notice. He had previously provided his telephone number to the agency, and as a lay person reasonably, but mistakenly, believed it was unnecessary to provide the number again. I note that Frahm, like many who appear before administrative agencies, was not represented by counsel. The record clearly indicates the agency had Frahm’s phone number in its file. The record also evidences Frahm, at the scheduled telephonic hearing time, was ready and expecting a phone call from the agency at the phone number he had previously submitted. It indicates he waited only about fifteen minutes before calling the agency himself. Frahm was then told the hearing had concluded and the record was closed. The hearing officer’s failure to follow the agency rule denied Frahm an opportunity to explain his failure to timely participate in the hearing. I would reverse the final agency action because the hearing officer’s procedural error was arbitrary and capricious. See Iowa Code § 17A.19(10)(n) (2001).