STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of John P. Gallagher, 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, John P. Gallagher was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant had been employed as a school bus driver for Valley Transportation a period of one year. His last actual day of work was June 19, 2001. Subsequently in a decision dated October 3, 2001 the Director determined that the claimant was discharged under disqualifying circumstances within the provisions of Section 28-44-18 and the claimant was declared overpaid under the provisions of Section 28-42-68 of the Rhode Island Employment Security Act. The claimant filed a timely appeal. A hearing on the appeal was scheduled. A notice of hearing was sent to all interested parties. The hearing was held on October 23, 2001. The claimant appeared and testified, represented by attorney. Employer representative appeared and testified.

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant left his work voluntarily without good cause and that he was overpaid and subject to recovery of overpayment and was thus disqualified pursuant to Rhode Island General Laws §§ 28-44-17 and 28-42-68. 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, John P. Gallagher 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 left work voluntarily without good cause and subject to recovery of overpayment 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:

"The claimant had worked for this employer as a school bus driver. As a condition of his employment, he was required to maintain his certification to operate a school bus. That certification was revoked by the State of Rhode Island on July 2, 2001 because of a background check which revealed a nolo contendere plea on an issue related to a morals charge. The claimant was scheduled to resume work with this employer as of July 2, 2001. He notified the employer that his license had been revoked. During this period at issue the claimant certified via the tele-serve system that he was not offered any work and that he was unemployed due to a lack of work status. He did not divulge the fact that he was unemployed because his license had been revoked resulting in the overpayment at issue."

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

"While the Director determined that the claimant was discharged under disqualifying circumstances within the meaning of Section 28-44-18, I find that he was not discharged. He left his work voluntarily. To be determined, therefore, is whether or not he left with good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act.

An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17.

The evidence presented at the hearing establishes that the claimant was not discharged by this employer. He could not be offered work due to the fact that he did not keep his license in good standing. It is the responsibility of the employee to keep his license in good standing. The claimant’s failure to keep his license in good standing does not constitute good cause within the meaning of Section 28-44-17 and benefits must be denied on this issue.

The second issue in this case is whether or not the claimant is overpaid and subject to recovery of the overpayment under the provisions of Section 28-42-68 of the Rhode Island Employment Security Act.

28-42-68. RECOVERY OF ERRONEOUSLY PAID BENEFITS. -- (a) Any individual who, by reason of a mistake or misrepresentation made by himself or another, has received any sum as benefits under chapters 42 -- 44, in any week in which any condition for the receipt of the benefits imposed by those chapters was not fulfilled by him or her, or with respect to any week in which he or she was disqualified from receiving those benefits, shall in the discretion of the director be liable to have such that sum deducted from any future benefits payable to him or her under those chapters, or shall be liable to repay to the director for the employment security fund a sum equal to the amount so received, plus, if the benefits were received as a result of misrepresentation or fraud by the recipient, interest thereon at the rate set forth in section 28-43-15. That sum shall be collectible in the manner provided in section 28-43-18 for the collection of past due contributions. All interest received hereunder shall be credited to the unemployment security interest fund created by section 28-42-75.

(b) There shall be no recovery of payments from any person who, in the judgment of the director, is without fault on his or her part and where, in the judgment of the director, that recovery would defeat the purpose of chapters 42 -- 44 of this title.

In order for an overpayment to be not recoverable from the claimant it must be established that: (1) the overpayment is not as a direct result of fault on the part of the claimant, and (2) recovery of the amount would defeat the purpose of the Rhode Island Employment Security Act. Both aspects must be satisfied in order for the department to be barred from recovery.

The evidence presented on this issue establishes that the claimant is in fact overpaid and that the overpayment is due to fault on the part of the claimant. In specific, withholding of information on the status of his license which was the direct factor in the circumstance resulting in his unemployment. I hold that the claimant is subject to recovery of that overpayment in accordance with the provisions of Section 28-42-68. I further hold that the second aspect in determining whether or not recovery would defeat the purpose to be a moot issue as the claimant must be successful on both aspects in order for the Department to be barred from seeking recovery."

The record is uncontradicted that the Registry of Motor Vehicles for the State of Rhode Island suspended claimant’s school bus permit. This fact was verified by the employer by his contact with the Motor Vehicle Office of School Bus Safety. This suspension caused the claimant not to be eligible to drive a school bus. The claimant has the responsibility to maintain his so-called "white card" for the driving of a school bus. Any challenge to this suspension required the claimant to proceed to seek reinstatement with the Registrar of Motor Vehicles. A failure to maintain a license is not good cause for leaving one’s employment.

On the issue of overpayment of benefits, the claimant testified that the reason he was unemployed was for lack of work. The reason, which is uncontradicted, that the claimant did not work was due to his white card suspension. There is also sufficient reliable evidence on the record to substantiate the finding that overpayment was due to claimant’s fault and that such recovery would not defeat the purpose of the Rhode Island Employment Security Act.

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.