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

Bradford Gove :


v. : A.A. No. 05-54

Rhode Island Department of Labor And Training, Board of Review :

DECISION

LAFAZIA, J. This matter is before the Court 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, (hereinafter cited as "the Board") which reversed the Referee's decision that the claimant, Bradford Gove (hereinafter cited as "claimant") was not entitled to receive employment security benefits. The decision is affirmed for the reasons set forth below.
FACTS & TRAVEL
The travel of the case is as follows:
The claimant was employed by the Town of Foster for twenty-seven months. The claimant's last day of work was December 9, 2004. The claimant filed for Employment Security benefits December 10, 2004 In a decision dated January 19, 2005, the Director determined the claimant's wages to be non-subject wages under the provisions of Section 28-42-14(5)(i) of the Rhode Island Employment Security Act. The Director further determined that the claimant was overpaid $1524.00 (one thousand five hundred twenty-four dollars) in benefits paid because those benefits were paid based on ineligible wages. The claimant was not found at fault for the overpayment and not required to make restitution under the provisions of Section 28-42-68 of the Rhode Island Employment Security Act. The claimant filed a timely appeal on the decision January 21, 2005. A hearing on the appeal was held February 14, 2005, at which time the claimant and one claimant witness testified. The claimant was represented by his attorney during the hearing. The employer was represented by the employer attorney during the hearing. Decision of Referee at 1.
The Referee made the following findings of fact:
The claimant was hired as the Acting Public Works Director by the Town of Foster and subsequently appointed as the full-time Director of Public Works. The claimant was one of several major non-tenure policy making and advisory executives reporting to the Town Council. Upon the claimant's arrival, he evaluated established procedures within his Department, found them to be satisfactory and in general continued to carry out his predecessor's policies. The claimant was responsible for making recommendations to the Town Council who would then either authorize or turn down the recommendations. Decision of Referee at 1.

Accordingly, the Referee came to the following conclusion:

Section 28-42-14(5)(i) of the Rhode Island Employment Security Act states in part, that the term "employment" shall not include services performed in the employ of a governmental entity by an individual in the exercise of duties in a major non-tenure, policy making or advisory position.

In the instant case, the claimant was one of several executives responsible for the operation of a governmental department in the Town of Foster. The claimant made a determination to continue with the established policies and procedures in place at the time of his arrival. Making the decision to continue an existing policy rather than make changes in and of itself is a policy determination. As in most cases, governmental and private, department directors or managers are not considered isolated entities but are customarily responsible to a higher authority, elected or appointed. A great deal of testimony was provided during the hearing relative to the absence of any written documentation to support that the claimant was an advisor to the Town Council. Sufficient credible documentation has established that the claimant was required, as part of his duties, to make recommendations. To recommend is to advise and to advise is to recommend according to Webster's Collegiate Dictionary.

Therefore, I find and determine that the claimant's service to a governmental entity fails to support eligible employment for the purposes of this case. Decision of Referee at 1-2.

A timely appeal was filed and heard before the Board on March 24, 2005. Both the claimant and employer were present and provided testimony. Both were represented by counsel. The Board issued the following findings of fact:
The claimant had been the public works director for the Town of Foster. His last day of work was December 9, 2004. The claimant was terminated by vote of the new town council which had been just recently elected in the town. The employer contends that the claimant is not eligible for benefits under the specific provisions of Section 28-42-14(5)(i) under which the employer considers the claimant to be a "major non-tenure policy making or advisory position." Decision of Board at 1-2.

Accordingly, two members of the Board concluded as follows:
The evidence establishes that all governmental authority within the Town of Foster is vested completed (sic- should be completely) and solely with the town council. In his position as director of public works the claimant did not have any real authority beyond a supervisory sense. The responsibilities imposed upon the position can be considered similar to those of any fore members or supervisor in a similar business. The fact that the claimant may have been in a position or asked to make "recommendations" to the town council on occasion did not change the subservient nature of his position with respect to the town council in the governmental structure of the Town of Foster. Decision of Board at 2.

Thereafter, a complaint was filed for judicial review; jurisdiction for review of the Board's decision is vested in the District Court by R.I.G.L. § 28-44-52.
STANDARD OF REVIEW
The standard of review is provided by R.I.G.L. § 42-35-15(g), a section of the state Administrative Procedures Act, which provides:
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 R.I.G.L. § 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, 246 A.2d at 215. See also, D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).
The Supreme Court, in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 200, 200 A.2d 595, 597 (1964), 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.

DISCUSSION

The issue before this court is whether the Board's determination was supported by reliable, probative, and substantial evidence in the record and whether or not it is clearly erroneous.
This case involves the application and interpretation of the following provision of the Rhode Island Employment Security Act, R.I. Gen. Laws § 28-42-14, which provides:
§ 28-42-14 Employees of governmental entities. - For the purposes of §§ 28-42-13 and 28-42-13.1, "employment" does not include services performed in the employ of a "governmental entity" as defined in § 28-42-3(21) by an individual in the exercise of duties:
(5) In a position which, under or pursuant to the laws of this state, is designated as a:
(i) Major non-tenure policymaking or advisory position
The single issue before the Board was whether the claimant's employment position was a major non-tenure policy making position, thus disqualifying the claimant from benefits pursuant to the Rhode Island Employment Security Act. This analysis subsequently turns to whether the claimant, in the course of his employment, set policy for the Town of Foster.
At the hearing before the Referee, the claimant testified that he did not set policy for the Town of Foster. (Tr. at 10.) The claimant's job responsibilities did not include interviewing potential employees, hiring or firing personnel, or awarding bids. (Tr. at 11-12, 36-37.) The claimant further testified that he was given a budget for the department and told to stay within the confines of that budget. (Tr. at 12, 30.) While the claimant made recommendations to the Town Council, his duties included "organizing, planning, scheduling and overseeing seasonal maintenance operations - including repair and reconstruction of roads, laying an (sic) repair of drainage pipe, construction repair, and cleaning of cash basins, street sweeping, plowing and removal of snow from roads, and general care and maintenance of roadsides." (Tr. at 23.)
Town Councilmember Harold Shippee also provided testimony at the hearing before the Referee. He stated that the Town Council runs the Town of Foster, is responsible for awarding bids and hiring employees, and that "it's the job of the Town Council to give direction to the department heads." (Tr. at 46, 52.) Shippee testified that it was not the claimant's responsibility to set policy, but rather that policy is set by the Council. (Tr. at 46.) The claimant's position was to carry out duties delegated by the Council. (Tr. at 49.)
The Charter of the Town of Foster does not refer to the Director of Public Works as a policy-making position. The Town of Foster Town Charter, Article VII states:
Section 7.01. Department Responsibilities.
There shall be a Department of Public Works that shall be responsible for the building, repairing and upkeep of Town highways, bridges, other public works and Town recreation areas and the repair and upkeep of Town buildings. The department shall also be responsible for such other duties of a like nature as may be assigned to it from time to time by the Town Council.

Section 7.02. Director.
There shall be a Director of Public Works appointed by the Town Council to serve at the pleasure of the Council who shall be the head of the department and shall be responsible for the supervision and administration of the work of the department and shall also have the powers, rights and duties prescribed by the laws of the state for highway surveyors.

It appears clear, therefore, that the Town Council sets policy for the Town of Foster. The Board's conclusion that "the evidence establishes that all governmental authority within the Town of Foster is vested completed and solely with the town council" is supported by substantial, probative and reliable evidence.

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." R.I.G.L. § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.