STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

RICHARD J. GAWLIK :

V. : A.A. 05-28

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 Richard J. Gawlik, 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, Richard J. Gawlik was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant works part time for the employer and is currently employed. He refiled his claim for partial Employment Security benefits on May 24, 2004. The Director determined that the claimant failed to meet the availability requirements of Section 28-44-12 of the Rhode Island Employment Security Act. The Director further determined that the claimant was overpaid and required that the claimant make restitution under the provisions of Section 28-42-68 of the same Act. The claimant filed a timely appeal of this decision on November 10, 2004. A hearing on the appeal was held on December 2, 2004, at which time the claimant, with an observer, appeared and testified. An employer representative also appeared and testified.
The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant did not meet the availability requirements of Section 28-44-12 and was overpaid benefits which are subject to recovery and was thus disqualified pursuant to Rhode Island General Laws §§ 28-44-12 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, Richard J. Gawlik 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 did not meet the availability requirements of Section 28-44-12 and that the benefits erroneously paid are subject to recovery pursuant to 28-42-68 was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
A majority of the Board of Review adopted the following findings of fact of the Referee:
"The claimant is employed in a part-time position with the employer. The claimant limits the hours he will work to Monday through Saturday days and Wednesday, Thursday and Friday nights. In addition, the claimant has taken a number of days off on his regularly scheduled days. The employer has other hours available for the claimant, both during the week and on weekends, which the claimant had refused. When the claimant filed his claim for Employment Security benefits, he failed to inform the Department of Labor & Training that he had refused hours which were available to him from the employer."

A majority of the Board of Review adopted the following conclusions of the Referee:
"The first 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 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.'

The claimant has failed to provide evidence of an adequate work search. In order to be eligible for Employment Security benefits, an individual must be able and available for full-time work, and must make an adequate and sustained search for such employment. In this case, the claimant limits the hours he will work to daytime, Monday through Saturday, and Wednesday, Thursday and Friday nights, although the employer's business requires more employees at night. The employer has offered the claimant hours other than those which he wishes to work and the claimant has refused them. In addition, the claimant failed to demonstrate that he has conducted an adequate and sustained search for full-time employment. Therefore, I hold the claimant fails to meet the availability requirements of the Act.

The second issue in the case is whether or not the claimant is overpaid and subject to recovery 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, herself, or another, has received any sum as benefits under chapters 42 -- 44, of this title, 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 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 subsection 28-43-15. That sum shall be collectible in the manner provided in subsection 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 subsection 28-42-65.

(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.

The claimant was in receipt of benefits during a period when he was not available for full-time work. The claimant failed to notify the Department of Labor & Training that he placed restrictions on his hours and that he failed to accept work offered to him by the employer. Since the claimant was overpaid and was at fault for the overpayment, I find that it would not defeat the purpose of the above Section of the Act to require the claimant to make restitution."

There are two issues in this case - the availability issue pursuant to 28-44-12, and the issue of overpayment of benefits pursuant to 28-42-68.
As to the first issue, a review of the entire record reveals that there is evidence that the claimant restricted his availability for employment. There is evidence that he was working part-time and restricted his employment to certain days and times. The employer has attempted to accommodate claimant with other hours, which the claimant refused. This issue is one of fact.
"We consistently have held that judicial review of the determinations of an administrative agency is limited to questions of law. St. Pius X Parish Corp. v. Murray, 557 A.2d 1214, 1218 (R.I. 1989); Powell v. Department of Employment Security Board of Review, 477 A.2d 93, 95 (R.I. 1984). Judicial review of questions of fact is sharply limited in accordance with G.L. 1956 § 42-35-15, . . . "

As to the second issue, the Court, in reviewing the entire record, finds that there is evidence on the record to show that claimant was not available for full-time work and failed to report to the Department of Labor and Training that he placed restrictions on his hours and failed to accept work that was offered. There is evidence on the record that the Board could conclude that claimant was overpaid and was as fault for the overpayment, and repayment of overpaid benefits would not defeat the purpose of the Employment Security Act Section 28-42-68.

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.