( Hunter )
( Mayes County - James Goodpaster )
Appellee J.I. Case Co., employer, discharged Appellant Walters from its employ on the ground that Appellant failed to report his on the job injury on the day it happened. Walters applied for, but was denied, unemployment compensation. Walters appealed the determination of the Oklahoma Employment Security Commission (OESC) which found in favor of employer, but filed his appeal eight days after the ten-day from date of determination filing period. OESC's Appeal Tribunal set the matter for telephone hearing. The notice of hearing informed Walters and employer that three legal issues would be covered: (1) whether Walters was disqualified from receipt of benefits because of misconduct; (2) whether the ten-day filing period should be waived for good cause shown and (3) whether Walters left work voluntarily without good cause connected to the employment so as to disqualify him from benefits. The backside of the hearing notice contained "Additional Information." One of the pieces of additional information concerned continuances, and stated:
"POSTPONEMENT OR WITHDRAWAL: Requests for continuance prior to the hearing will only be granted for good cause by the Director or Chief Hearing Officer when the request is communicated in writing to the:
Appellate Division:
Oklahoma Employment Security Commission
P.O. Box 53345
Oklahoma City, Oklahoma 73152
Such requests shall fully explain the reasons for the request for continuance and shall be received by the Director at least four (4) days prior to the date of the scheduled hearing. Continuances shall be granted only for good cause, and when granted, the hearing will be rescheduled."
By this time, Walters had retained a lawyer who sent a request for continuance to the correct address, which was received ten days prior to the date of the scheduled hearing. In that request, the lawyer stated that he was scheduled for another matter during the time set aside for the hearing. The lawyer offered two alternative times, one for the day before the scheduled hearing date and the other on the same date, but in the afternoon, not the morning. Despite completely complying with the process as outlined in the hearing notice, the Director denied the request for continuance, citing, for the first time, OAC 240:10-13-38 , which, according to the Director, defines "good cause" as a situation beyond the control of a party. This denial was sent to Appellant, but not the lawyer representing him and who had requested the continuance.
Walters represented himself at the telephone hearing and an attorney for employer represented employer at the hearing. The Hearing Officer declined jurisdiction over the case, based on her finding that Walters had not presented good cause sufficient for waiving the ten-day filing period. Consequently, the Hearing Officer did not take evidence concerning the merits of the case. The Board of Review affirmed the decision of the Appeal Tribunal, as did the District Court of Mayes County. We find that Walters was denied a fair hearing because OESC abused its discretion when it denied Walters' lawyer's request for a continuance. Answering this issue disposes of the appeal.
First, Walters' attorney was not on notice that his request needed to state specifically the nature of his scheduling conflict. The lawyer stated that he had a scheduling conflict and offered two reasonable alternative times, one of which would have caused no delay and the other a delay of a few hours. We presume the lawyer practiced candor with the tribunal and did not knowingly make a "false statement of fact or law..." 5 O.S. 1991, Ch. 1, App. 3A, Rule of Professional Conduct 3.3(a)(1).
Next, even if the specific rule defining "good cause" were written in the procedure for postponement or withdrawal section of the notice setting the hearing, clearly an attorney's scheduling conflict is beyond the control of a party. When a lawyer, in compliance with the rules as stated to him by the tribunal, alleges a scheduling conflict and requests a resetting at times which cannot constitute prejudice to the other party or to justice, the party has shown good cause for a continuance. Although Walters appeared at his telephone hearing, he did so without his lawyer. In Jackson v. Independent School District No. 16, 648 P.2d 26, 30 (Okl. 1982), the court stated:
"Procedural due process of law contemplates a fair and open hearing before a legally constituted court or other authority with notice and an opportunity to present evidence and argument, representation by counsel, y desired, and information concerning the claims of the opposing party with reasonable opportunity to controvert them."
(emphases ours).
Because we find OESC abused its discretion when it denied Walters' lawyer's request for continuance and because Walters was arguably prejudiced by this error, we reverse the order of the District Court which affirmed the order of the Board of Review. Pursuant to 40 O.S. 2-610(3) (1991), we remand this case to the Board of Review with directions to enter an order reversing the Appeal Tribunal's decision. We further direct that the matter be reset for hearing as set forth in the "Notice of Telephone Hearing."
REVERSED AND REMANDED WITH DIRECTIONS.