STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

CITY OF PROVIDENCE 

V. : A.A. 01-133

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW 

D E C I S I O N

DEROBBIO, C.J. This matter is before the Court on the complaint of the City of Providence, 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, George J. Boitano was entitled to receive employment security benefits.

The travel of the case is as follows. The claimant’s last day of work was June 21, 2001. He filed a claim for Employment Security benefits on July 3, 2001. In a Director’s decision dated July 25, 2001 it was determined that the claimant was eligible for benefits under Section 28-44-68 of the Rhode Island Employment Security Act. The employer filed a late appeal of that decision. A hearing on the appeal was held on September 11, 2001, at which time the claimant testified by telephone. An employer representative appeared and testified at the hearing and was represented by legal counsel.

The Referee held the claimant was entitled to receive unemployment security benefits, based on the determination that claimant had no reasonable assurance that he would be performing similar services for the next ensuing year and was thus qualified pursuant to Rhode Island General Laws § 28-44-68.

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, City of Providence 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 had no reasonable assurance that he would be performing similar services for the next ensuing year 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:

"A notice of Director’s Decision was mailed to the employer on July 25, 2001. Because of problems in the mailroom related to the illness of the person in charge, the school department was not in receipt of that mailing in a timely manner. Upon receipt of the decision the school department immediately faxed its appeal of that decision.

Prior to the claimant’s last day of work, June 21, 2001, he had been employed as a per diem substitute in the Providence School Department during the 2000/2001 academic year. Following that date he received no letter of assurance indicating he would be similarly employed in the next ensuing school year, 2001/2002."

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

"The first issue in this case is whether or not the employer filed an appeal out of time with good cause within the meaning of Section 28-44-39(b) of the Rhode Island Employment Security Act. Based on the findings of fact and the credible testimony presented at the hearing it is determined that the employer has established good cause for filing his appeal out of time and, therefore, its late appeal is allowed.

The second issue in this case is whether or not the claimant is subject to the between term disqualification under the provisions of Section 28-44-68 of the Act.

‘28-44-68. BENEFIT PAYMENTS FOR SERVICES WITH NONPROFIT ORGANIZATION AND EDUCATIONAL INSTITUTIONS AND GOVERN- MENTAL ENTITIES. -- Benefits based on service in employment for nonprofit organizations and educational institutions and governmental entities covered by chapters 42 -- 44 of this title shall be payable in the same amounts on the same terms and subject to the same conditions as benefits payable on the basis of other services subject to chapters 42 -- 44 of this title, except that:

(1) With respect to services performed after December 31, 1977, in an instructional, research, or principal administrative capacity for an educational institution (including elementary and secondary schools and institutions of higher education) benefits shall not be paid based on those services for any week of unemployment commencing during the period between two (2) successive academic years or during a similar period between two (2) regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual’s contract, to any individual if that individual performs those services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of those academic years or terms; and provided, that section 28-44-63 shall apply with respect to those services prior to January 1, 1978....’

(a) "Reasonable assurance" shall mean a written agreement by the employer that the employee will perform services in the same or similar capacity during the ensuing academic year, term or remainder of a term. Further, reasonable assurance would not exist if the economic terms and conditions of the position offered in the ensuing academic period are substantially less than the terms and conditions of the position in the first period.

The credible testimony and evidence presented at the hearing establishes that the claimant, who had been a per diem substitute in the Providence School system in the 2000/2001 school year, had no reasonable assurance by virtue of a written notification that he would be performing similar services in the next ensuing year 2001/2002. Under these circumstances, I find that the claimant had no reasonable assurance as defined under the above Section of the Act and, therefore, he cannot be denied benefits."

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.