Gordon v. Review Bd. of Indiana Employment Sec. Division, 2-281A66

Citation426 N.E.2d 1364
Decision Date28 October 1981
Docket NumberNo. 2-281A66,2-281A66
PartiesRegina GORDON, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division and Thom McAn Shoe Store Company, Appellees.
CourtCourt of Appeals of Indiana

Judith M. Haller, Blanca Bianchi de la Torre, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellees.

HOFFMAN, Presiding Judge.

Regina Gordon appeals the denial of her claim for unemployment benefits. The issues raised are:

(1) whether Gordon was denied due process by the Indiana Employment Security Division's failure to inform her of the availability of free legal counsel prior to her hearing before the referee;

(2) whether the Review Board erred in determining that it lacked jurisdiction to reopen Gordon's claim, or in the alternative, to remand the claim to the referee; and

(3) whether Gordon was denied equal protection by the Review Board's refusal to reopen her claim.

The referee's findings which are supported by the evidence presented at the hearing and adopted by the Review Board are as follows:

"The evidence shows that the claimant worked for this employer for the period from August 9, 1980, to October 4, 1980. The claimant last worked for this employer as an assistant manager trainee. The evidence further shows that the claimant voluntarily left her employment on October 4, 1980. The claimant felt that she had another job secured prior to her leaving however, this job did not materialize. The claimant left her employment because she felt it was too far to commute to work. The claimant had been transferred from the Merrillville store to the Joliet store and had worked in the Joliet store for approximately one week when she made her decision to leave her employment. The claimant was satisfied with the work that she performed for this employer. Work was available for the claimant with this employer at the time of her leaving. The claimant's job was not in jeopardy, as the employer was satisfied with the claimant as an employee. The employer would consider the claimant for rehire. Further, at the time of hire the claimant indicated that she would be willing to relocate as an employee of this employer."

After the Review Board affirmed the referee's denial of Gordon's claim, Gordon filed a verified petition for reopening of claim and alternatively, notice of intention to appeal. The Review Board denied the petition on the basis of lack of jurisdiction. This appeal followed.

Gordon first asserts as error the failure of the Indiana Employment Security Division to give her notice of the availability of free legal counsel to represent her at the referee's hearing. According to Gordon, this lack of notice violated due process in that she was not represented by counsel at the referee's hearing because she could not afford an attorney and was unaware of the availability of free legal counsel.

The concept of due process with regard to unemployment compensation proceedings was examined by the Indiana Supreme Court in Wilson v. Bd. of Ind. Employment Sec. Div. (1979), Ind., 385 N.E.2d 438, cert. denied 444 U.S. 874, 100 S.Ct. 155, 62 L.Ed.2d 101. The Court stated:

"Due process is not a technical conception with a fixed content unrelated to time, place and circumstances. Cafeteria Workers v. McElroy, (1961), 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230. Rather, due process is a flexible concept which calls for such procedural protections as the particular situation demands. Mathews v. Eldridge, supra at 424 U.S. 334, 96 S.Ct. 902, 47 L.Ed.2d 33. In order to determine the specific dictates of due process in a given situation, it is necessary to balance three distinct 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. 385 N.E.2d at 444.

Generally, in a referee's hearing, the due process right to a fair hearing requires only that the parties be permitted to testify freely and that they not be deprived of their right to counsel or of their right to offer and cross-examine witnesses. Walker v. Review Bd. of Ind. Employment Sec. (1980), Ind.App., 404 N.E.2d 1363.

The procedures to be utilized in hearings before a referee are set out in 640 IAC 1-11-3 (1979 Ed.). The regulation provides:

"All hearings shall be conducted informally in order to determine the substantial rights of the parties. The parties may present such evidence as the referee deems necessary for determining the substantial rights of the parties. The parties to the appeal may appear in person, by attorney, or duly authorized agent or representative, in accord with Regulation 1012 (640 IAC 1-11-12), and shall have the right to examine their own witnesses, present evidence, and cross-examine witnesses of the opposing party. Any referee engaged in conducting such a hearing shall have the right to examine all witnesses and may require the parties to produce any available evidence he may deem necessary for proper determination of the case. Where either party fails to appear or where either party is not represented by an attorney or duly authorized agent, it shall be the duty of the referee to examine such party's witnesses, and to cross-examine all witnesses of the other party, in order to insure complete presentation of the case. In general, rules of evidence and procedure for the trial of civil causes shall govern proceedings before a referee or the Review Board, but not to such an extent as to obstruct or prevent a full presentation of fact or to jeopardize the rights of any interested party. No improper conduct shall be permitted during the progress of the hearing." (Emphasis added.)

The regulation provides that where a party is not represented by an attorney at the hearing, the referee has a duty to question witnesses in order to complete the record.

See generally, Sotak v. Review Bd. of Indiana Employment, etc. (1981), Ind.App., 422 N.E.2d 445;

Russell v. Review Bd. of Ind., etc. (1981), Ind.App., 415 N.E.2d 774.

A similar provision does not appear in the Medicaid and Aid for Families with Dependent Children regulations 1 cited by Gordon in support of her argument.

The record contains a petition verified by Gordon in which she stated "(t)hat claimant was advised by the Division of her right to be represented at the hearing by legal counsel but she was not advised of the existence of free legal services." Neither Gordon, nor her former employer were represented by legal counsel at the referee's hearing. In addition to allowing Gordon and the employer's representatives to examine and cross-examine witnesses, the referee took an active roll in conducting her own examination of the witnesses. At one point in the hearing the referee asked Gordon, "Are there any other reasons for your leaving?" Gordon answered, "Well, it was just, I didn't have any other reason besides, just the traveling expense because, I was transferred in the Indiana region and I was expected to be transferred to Illinois. But, other than that, I didn't have any other reason." It is apparent from the record that the referee fulfilled her statutory duty to insure complete presentation of the case.

In light of the fact that the referee has a statutory duty to examine witnesses when either party is not represented by an attorney, it cannot be said that a claimant is denied a fair hearing by the absence of a notice informing her of the availability of free legal counsel. Gordon received notice of her right...

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    ...regulation concerning the Board's acceptance of additional evidence has the force and effect of law. Gordon v. Review Board of Ind. Emp. Sec. Div., (1981) Ind.App., 426 N.E.2d 1364. The Review Board has no discretion to disregard its own regulations. York v. Review Board of Ind. Emp. Sec. D......
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