Berzins v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 16 November 1981
• Docket Number: No. 2-681A200,2-681A200
• Citation: 427 N.E.2d 1121
• Parties: Jacqueline S. BERZINS, Appellant (Defendant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams, and Paul M. Huston, as Members of and constituting the Indiana Employment Security Division, and Americana Healthcare, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1121

427 N.E.2d 1121

Jacqueline S. BERZINS, Appellant (Defendant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams, and Paul M. Huston, as

Members of and constituting the Indiana Employment Security

Division, and Americana Healthcare, Appellee (Plaintiff Below).

No. 2-681A200.

Court of Appeals of Indiana, Second District.

Nov. 16, 1981.

Clifford & Gotshall, William R. Clifford, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Jacqueline S. Berzins (Berzins) appeals from the denial of unemployment benefits by the Review Board of the Indiana Employment Security Division (Board), claiming we must reverse the Board because (1) she was not advised of the right to be represented by counsel; (2) the findings were unsupported by the evidence, as the conclusion was unsupported by the findings; and (3) the Board failed to review the evidence heard by the Appeals Referee.

We affirm.

FACTS

Berzins was denied unemployment benefits because she had voluntarily left her employment at Americana Healthcare without good cause. The facts which we may consider that led to this denial of benefits have been summarized by an Appeals Referee:

SUMMARY OF CASE: This is the claimant's appeal from a deputy's determination dated March 17, 1981, finding that the claimant voluntarily left employment without good cause in connection with the work. A hearing was held at Indianapolis, Indiana, on April 14, 1981. The claimant appeared in person. The employer was present and represented by Gerald McGowan, Administrator.

FINDINGS OF FACT: The claimant was employed by this employer from April 7, 1980, through February 12, 1981. The claimant was employed as housekeeping supervisor. The claimant was earning $4.70 per hour. The claimant worked 40 hours per week on the 7:00 a.m. until 3:00 p. m. shift. The claimant was asked by the administrator for her resignation. The claimant complied. The claimant was to be allowed to continue working for this employer until she secured other employment. The administrator had asked for the claimant's resignation due to a communications problem that had developed between the claimant and a maintenance supervisor. The claimant had been given 30 days to correct the situation. The situation did improve immediately after this. However, at approximately the end of the 30 day period, the situation had reoccurred and the administrator asked for the claimant's resignation. The communication problem between the claimant and the cosupervisor apparently stemmed from a personal situation between the two which was not connected with the employment. The claimant's resignation was to be effective on March 16, 1981, assuming she had found other work. The claimant's last day of work for this employer was February 21, 1981. The claimant indicates that due to perceived pressure and harassment, she did not believe she could continue in this employment. The claimant failed to return to this employment and did not notify the employer of her intent. The claimant was considered a satisfactory worker.

CONCLUSIONS OF LAW: I find that the claimant voluntarily left employment without good cause in connection with the work. The separation is attributable to the claimant due to the fact that she would have been able to continue in employment until she found other suitable work. The claimant elected to terminate her employment despite the fact that work remained available for her. The parties agreed that the claimant was asked to resign. The employer indicates DECISION: The deputy's determination dated March 17, 1981, is hereby affirmed.

that the decision to terminate the claimant, had she refused to resign, had not been made. Based upon the evidence of record, I find the claimant voluntarily left employment and that the separation is not attributable to the employer. The evidence of record fails to establish that any term or condition of claimant's employment was violated by the employer. The evidence does establish that the claimant left available work due to a problem she was experiencing with a co-worker.

Also apparent from the record was that Berzins was not represented by counsel or advised of her right to be represented by counsel.

The Board having affirmed the denial of benefits, Berzins raises two issues ¹ for our consideration:

ISSUES

1. Was she denied due process by the Appeals Referee's failure to advise her of the right to be represented by counsel?

2. Were the findings supported by the evidence and was the conclusion supported by the findings?

The Board's contention that issue one has been waived because Berzins only alleged in her assignment of errors that the Board's decision is contrary to law, is a will-o-the-wisp. " '(A)ll possible errors arguable before this court are necessarily embraced within the assignment that the award or decision is contrary to law, no other specifications are necessary or contemplated for the purpose of vesting review jurisdiction.' " Sotak v. Review Board of the Indiana Employment Security Division, (1981) Ind.App., 422 N.E.2d 445, 447 (quoting McKinley v. Review Board of the Indiana Employment Security Division, (1972) 152 Ind.App. 269, 272, 283 N.E.2d 395, 396, trans. denied 1973).

PROLOGUE

The interesting question posed by this case is whether there is a duty to advise a claimant of his or her right to be represented by counsel at the hearing determining eligibility for unemployment benefits. Berzins directs us to no Indiana Supreme Court cases nor any federal or state (other than Indiana) court cases unequivocally holding that there is such a duty. We conclude that there is no denial of due process if, as here, the case is developed by the Appeals Referee as required by regulation.

Three Districts of this Court have reached differing results on this subject:

District One An Appeals Referee has a duty to advise, but any failure to advise is harmless error if the Referee fulfills his duty, imposed by regulation, to develop the claimant's case for him.

District Three The Referee has no duty to advise of the right to be represented by counsel.

District Four The Referee must advise of the duty and failure to do so can never be harmless error.

ISSUE ONE Counsel Was Berzins denied due process by the Appeals Referee's failure to advise her of the right to be represented by counsel?

PARTIES' CONTENTIONS Berzins sees a denial of due process in that she was not advised of the right to be represented by counsel at the hearing. Reversal must necessarily follow, she says, without a showing of prejudice, and specifically cites cases of the Fourth District of this Court so holding. Infra. And she further claims she has demonstrated prejudice in any event.

The Board responds that no prejudice has been demonstrated.

CONCLUSION The Appeals Referee fulfilled his duty to develop Berzins' claim for her; therefore, no denial of due process occurred.

Undoubtedly unemployment benefits are a constitutionally protected property interest which may be affected only by observing the essentials of due process. But due process is not an inflexible concept requiring identical procedural safeguards in all circumstances. The requirements vary according to time, place, and circumstance. Wilson v. Review Board of the Indiana Employment Security Division, (1979) Ind., 385 N.E.2d 438, 443-44 (citing Mathews v. Eldridge, (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18; Cafeteria Workers v. McElroy, (1961) 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230).

Determining the specific requirements of due process for a given factual situation necessitates the balancing of three factors:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, along with the probable value, if any, of additional or substitute procedural safeguards, and; (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Id. at 424 U.S. 335, 96 S.Ct. 903, 47 L.Ed.2d 33.

Wilson, supra 385 N.E.2d at 444. As we shall see, courts have disagreed when applying these guidelines to a hearing before an Appeals Referee.

A. Right To Counsel

A claimant unquestionably has the right upon request to be represented by counsel. Hamm v. Review Board of the Indiana Employment Security Division, (1961) 132 Ind.App. 318, 177 N.E.2d 337. But that is not to say there is a right to be provided with counsel. Goldberg v. Kelly, (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.

The Indiana Supreme Court has not yet spoken as to whether the Appeals Referee has a duty to advise a claimant of the right to be represented by counsel. The First and Fourth Districts of this Court seem to agree that the Appeals Referee has the duty to advise an unemployment benefits claimant of the right to be represented by counsel. Sotak v. Review Board of the Indiana Employment Security Division, supra (First); Leon-Roche v. Review Board of the Indiana Employment Security Division, (1981) Ind.App., 419 N.E.2d 801 (Fourth); Felders v. Review Board of the Indiana Employment Security Division, (1981) Ind.App., 419 N.E.2d 190 (First); Foster v. Review Board of the Indiana Employment Security Division, (1980) Ind.App., 413 N.E.2d 618 (First); Sandlin v. Review Board of the Indiana Employment Security Division, (1980) Ind.App., 406 N.E.2d 328 (Fourth). The Third District, on the other hand, does not see the failure to advise as a denial of due process, at least when the opportunity to be represented by counsel is not denied. See Russell v. Review Board of the Indiana Employment Security Division, (1981) Ind.App., 415 N.E.2d 774; Walker v. Review Board of the Indiana Employment Security...