Avila v. Arizona Dept. of Economic Sec., CA-UB

• Decision Date: 18 April 1989
• Docket Number: CA-UB
• Citation: 772 P.2d 600,160 Ariz. 246
• Parties: Yolanda AVILA, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency, Appellee. 1570.
• Court: Arizona Court of Appeals

Page 600

772 P.2d 600

160 Ariz. 246

Yolanda AVILA, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency, Appellee.

1 CA-UB 570.

Court of Appeals of Arizona Division 1, Department D.

April 18, 1989.

[160 Ariz. 247] Robert K. Corbin, Atty. Gen. by Frank Sagarino, Asst. Atty. Gen., Phoenix, for appellee.

Community Legal Services by H. Leslie Hall, Phoenix, for appellant.

OPINION

GREER, Judge.

This is an appeal from the Arizona Department of Economic Security (DES) appeals board's decision denying waiver of recoupment of unemployment benefits overpayments to the claimant. Claimant is a twenty-five-year-old single mother with two children, ages five and one years. Since February 1987, she has worked forty hours per week as a temporary machine operator for Olsten Temporary Services. She makes $5.00 per hour, and her net income after taxes is $673.00 per month.

In August 1985, claimant filed for and received unemployment benefits. Her payments totalled $1,177.00. In November 1985, the employer appealed from the benefits award on the ground that claimant voluntarily left her job. The DES appeals board found for the employer, thus creating an overpayment of benefits to claimant for the full amount of $1,177.00. The claimant did not appeal from this decision, and it became final.

In February 1986, claimant asked DES to waive recoupment of benefits overpayments because of undue hardship. In January 1987, the deputy finally issued his determination that claimant was not without fault in creating the overpayment and held that, therefore, recoupment could not be waived.

On February 11, 1987, claimant appealed the deputy's determination to the DES appeal tribunal. A hearing was set for March 24, 1987. Claimant's counsel, H. Leslie Hall, received notice of the hearing on March 13th and filed a motion for continuance on March 18th, noting that she had been scheduled to attend a conference in Washington, D.C., from March 22nd to 24th and would not be returning until "late the 26th." She further noted in the motion that no one else in the legal services office was familiar with the claimant's situation and that this was her first request for postponement.

Without stating any reason on the record, the tribunal denied the motion for continuance but rescheduled the hearing for March 26, 1987, knowing that counsel would not be returning until late that evening and would not be able to attend. The tribunal noted it was aware that Ms. Hall would be out of town, but stated that anMother Community Legal Services attorney could represent the claimant in her place.

The hearing went forward on March 26th, with Community Legal Services attorney Leslie Sansone appearing with the claimant. She reurged the motion to continue so claimant's counsel of choice could attend, and the tribunal noted the objection to the motion's denial for the record, again stating no reason for not postponing the hearing.

Claimant testified at the hearing; however, most of her testimony regarding income and expenses came through questioning by the tribunal. The tribunal asked claimant how much she made. At one point, claimant asked if the tribunal was asking for her net rate of pay. Mr. Bender of the tribunal said, "No, how much--what's your rate of pay an hour, did you state that it was $5.00 an hour?"

The next day, March 27, 1987, the tribunal issued its decision affirming the denial of the recoupment waiver. It noted claimant had expenses of $505.00 per month; however, neither child care expenses nor taxes were included in this amount. The tribunal did not delineate a gross or net income, but did state claimant was able to repay the overpayment amount back to DES based on these figures.

The claimant filed a petition for review with the appeals board challenging both the tribunal's postponement denial and its finding that she was not without fault, attaching an affidavit with exhibits clarifying her monthly child care and tax expenses. She subsequently filed a supplemental petition for review and request for a fair hearing.

On May 14, 1987, the appeals board rendered its decision on claimant's petition for review and request for a fair hearing. It adopted the tribunal's findings of fact and found no error regarding the denial of the postponement. It did, however, reverse the deputy's determination that the claimant "was not without fault," finding she was not at fault in creating the overpayment. The appeals board refused to consider the affidavit or its exhibits and affirmed the tribunal's determination that a recoupment waiver should be denied.

Claimant filed a timely request for review, but the appeals board affirmed its decision on July 27, 1987, noting claimant had not submitted any new evidence or evidence which could not have been, through due diligence, presented at the March 26th hearing. It again found no prejudicial error of law "at any hearing or during the progress of this matter." This appeal followed.

STANDARD OF REVIEW

On appeal, this court is bound by the appeals board's finding of facts unless they are arbitrary, capricious, or an abuse of discretion. Munguia v. Department of Economic Sec., 159 Ariz. 157, 158-159, 765 P.2d 559, 560-561 (Ct.App.1988); Thompson v. Department of Economic Sec., 127 Ariz. 293, 294, 619 P.2d 1070, 1071 (App.1980). If the decision is supported by substantial evidence, this court will affirm. Anamax Mining Co. v. Department of Economic Sec., 147 Ariz. 482, 485, 711 P.2d 621, 624 (App.1985). However, legal conclusions of the appeals board are not binding on this court. We are free to draw our own legal conclusions in determining if the appeals board properly interpreted the law. Munguia, 159 Ariz. at 159, 765 P.2d at 561; see also Prebula v. Department of Economic Sec., 138 Ariz. 26, 30, 672 P.2d 978, 982 (App.1983). An abuse of discretion is characterized by arbitrariness or capriciousness and failure to conduct an adequate investigation into the relevant facts. See State v. Thomas, 142 Ariz. 201, 688 P.2d 1093 (App.1984).

REFUSAL TO GRANT CONTINUANCE

A.A.C. R6-3-1502(H) provides:

Postponement of hearing. At the request of a party or on his own initiative, the hearing officer may order, orally or in writing, that a hearing be postponed. A requested postponement shall be granted if:

1. The request is promptly made after the party receives the notice of hearing, or after the circumstance requiring postponement arises, and

2. The party has good cause for not attending the hearing at the time and date set. Good cause exists when the circumstances causing the request are beyond the reasonable control of the requesting party, and failure to grant the postponement would result in undue hardship to the requesting party.

We have previously stated:

It is undisputed that an administrative body has broad discretion in determining whether to...