STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

CYNTHIA A. BURKHOLDER :

DEROBBIO, C.J. This matter is before the Court on the complaint of Cynthia A. Burkholder, filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which upheld the finding of the Referee that the claimant, Cynthia A. Burkholder was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for eight months by the employer. The claimant's last day of work was June 1, 2001. She filed for Employment Security benefits on August 16, 2001. In a decision dated August 28, 2001 the Director determined that the claimant failed to meet the availability requirements according to the provisions of Section 28-44-12 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of the decision on September 5, 2001. A telephonic hearing on the appeal was held on September 24, 2001, at which time the claimant testified.

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant did not meet the requirements of availability for work and was thus disqualified pursuant to Rhode Island General Laws §28-44-12.

Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The Board determined that the Referee’s decision was a proper adjudication of the facts, and upheld the Referee’s decision. Thereafter, Cynthia A. Burkholder filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws §28-44-52.

The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:

42-35-15. Judicial review of contested cases.

(g) The court shall not substitute its judgment for that of the

agency as to the weight of the evidence on questions of

fact. The court may affirm the decision of the agency or

remand the case for further proceedings, or it may reverse

or modify the decision if substantial rights of the appellant

have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

 

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the

whole record; or

(6) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of

discretion.

 

Thus, on questions of fact, the District Court " . . . may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) citing Rhode Island General Laws § 42-35-15(g)(5). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result. Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:

. . . eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family." G.L.1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

The issue before the Court is whether the Board’s determination that the Referee’s decision was a proper adjudication of the facts and that the claimant was disqualified from receiving benefits in that she did not meet the availability requirements of Section 28-44-12 was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review adopted the following findings of fact of the Referee:

"I find by a preponderance of testimony and evidence the following findings of fact: The claimant is the corporate treasurer and bookkeeper for the employer. The claimant works with her husband, the president of the corporation and functions from her home. The claimant provides work for the corporation around her childcare schedule. The claimant has bookkeeping, banking, mortgage and secretarial skills.

The claimant has made herself available between the hours of 9:00 a.m. and 3:00 p.m., Monday through Friday, and is available on Saturdays. The claimant’s children go to school at 8:30 a.m. and return at 3:30 p.m. If the claimant were to take a full-time position she would need to provide for outside childcare. She is willing to work up to thirty hours per week. The claimant has contacted three employers, one on Friday, September 19, 2001 and two on September 21, 2001."

The Board of Review adopted the following conclusions of the Referee:

"The issue in this case is whether or not the claimant is subject to disqualification under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act.

Section 28-44-12 reads as follows:

'28-44-12. Availability and registration for work. - (a) An individual is not be eligible for benefits for any week of his or her partial or total unemployment unless during that week he or she is physically able to work and available for work. To prove availability for work, every individual partially or totally unemployed registers for work and:

(1) Files a claim for benefits within the time limits and with the frequency and in such manner, in person or in writing, as the director may prescribe;

(2) Responds whenever called for work through the employment office; and

(3) Makes an active, independent search for suitable work.

(b) If an unemployed individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the director, the individual shall be eligible to receive benefits with respect to any week only if the individual participates in reemployment services, such as job search assistance services, unless the director determines that:

(1) The individual has completed those services; or

(2) There is justifiable cause for the individual's failure to participate in those services.

(c) No individual shall be eligible for any benefits for any week in which he or she fails, without good cause, to comply with the requirements as set forth above.'

In the instant case, the claimant continues to do work for her corporation from her home. The claimant has restricted her availability to what can only be considered part-time hours in the industries that she has expertise in. The claimant began what can be considered a job search on the Wednesday before the hearing. The contacts described cannot be considered an active and independent job search on the part of the claimant for the period in question. Additionally, her restrictions do substantially restrict her attachment to the work force.

Therefore, I find and determine that the claimant fails to meet the availability requirements of the above Section of the Act and benefits are denied."

The issue in this case is a question of fact. A search of the entire record demonstrates that there is evidence that the claimant had restricted her job search and that she has restricted her attachment to the work force.

A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.