STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

BRENDA MARINO :

V. : A.A. 98-63

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

McLOUGHLIN, J. This matter is before the court on the complaint of Brenda Marino filed pursuant to Rhode Island General Laws § 42-35-15 seeking judicial review of a decision rendered pursuant to a Remand to the Respondent Board of Review.
The facts and travel of the case are as follows.
FACTS
On July twenty-third 1998 Petitioner, Brenda Marino (Petitioner) was terminated from her place of employment, Roger Williams General Hospital. On the twenty-sixth she applied for unemployment benefits from the Rhode Island Department of Labor and Training. That request was subsequently denied along with the re-filing of a similar request. Petitioner appealed from these denials for a hearing in front of a referee. The referee sustained Petitioner's appeal requesting that her benefits be backdated to August 16, 1998, but denied her appeal regarding her availability for work.
In response to this ruling Petitioner appealed to the board of review which sustained the referee's decision in a 2-1 opinion. This dissenting opinion was that of board member Nathaniel J. Rendine. In response to this unfavorable ruling by the board of review, Petitioner appealed to the District Court under R.I. Gen. Laws §28-44-52 (2001). She also motioned to have the case remanded back to the board of review for the taking of additional evidence. On April ninth, 1999 Judge Albert E. DeRobbio granted the motion pursuant to R.I. Gen. Laws § 28-44-54 (2001). The resulting hearing, which is the primary focus of this opinion, was conducted by the chairman of the board (Thomas Daniels) sitting alone. At this hearing the chairman affirmed the referee's decision. Petitioner is now appealing this decision.
The decision by Chairman Daniels on behalf of the entire board of review is invalid. With the exception of R.I. Gen. Laws § 28-44-41(2001), "Determinations With Respect to Labor Disputes" there is no provision under Rhode Island State Law that grants the chairman the authority to sit as the entire board. Although there is no explicit requirement that the full Board of Review hear all appeals, such a requirement can be implied from decisions of the Rhode Island Supreme Court. R.I. Gen. Laws § 28-44-47 (2001). In Menard v. Zoning Board of Review of City of Woonsocket, 115 A.2d 533, 533 (1955) the court held that a decision by the zoning board denying petitioner's request for a variance was invalid. The court found that the board was not legally constituted because it contained only three members and therefore could not validly function in accordance with the provisions of the enabling act. Menard, 115 A.2d at 533. This holding demonstrates the Supreme Court's view that the proper composition of a board of review is a threshold requirement which must be satisfied in order for a board's decision to be upheld.
In the instant case, the requirement was not met. Only one of the three members of the board was present to hear and decide Petitioner's appeal. In Menard, 115 A.2d at 533, the court invalidated the zoning board's decision because only three members sat on the board. Surely the court would find the single member board that decided the appeal in this case equally troubling.
In Davis v. Rhode Island Board of Regents for Education, 399 A.2d 1247, 1250 (1979), the court again emphasized the requirement that a board of review be properly constituted. In that case the court held that the failure of all school committee members to attend each of nine hearings rendered the committee's decision invalid. The court found that even though a majority of the board members were present at each of the hearings, it was still improperly constituted. Davis, 399 A.2d at 1250. In the instant case the board of review not only sat without all of its members but also without a majority of those members. It was therefore illegally constituted and as a result its decision is invalid.
When the board of review originally heard Petitioner's appeal the full three members were present. One of these (Mr. Nathaniel Rendine) dissented in favor of Petitioner in the board's 2-1 decision. The absence of the full board of review at the second hearing and of Mr. Rendine in particular placed Petitioner at an undue disadvantage . Therefore, this case is remanded to the board of review for a new hearing where all three of its members will hear additional evidence on the merits of Petitioner's claim.
CONCLUSION
The decision is not valid because it fails to represent the opinion of either the board as a whole or a majority thereof. This case should be remanded to the full board of review for a new hearing on the issue of whether claimant conducted an active independent search for suitable work.