McKean-Coffman v. Employment Div.

Citation824 P.2d 410,312 Or. 543
Decision Date03 January 1992
Docket NumberP,AB-1298,KEAN-COFFMA
PartiesMarcia Mcetitioner on Review, v. EMPLOYMENT DIVISION, Respondent on Review. EAB 89-; CA A62926; SC S37747.
CourtSupreme Court of Oregon

Barry L. Adamson, Lake Oswego, argued the cause for petitioner on review. With him on the petition were Roger Hennagin and Hennagin & Shonkwiler, Lake Oswego.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent on review.


This case involves a question of statutory construction. Marcia McKean-Coffman (claimant) seeks review of a Court of Appeals' decision affirming an Employment Appeals Board (EAB) holding that she is disqualified from receiving unemployment benefits because she received her vested retirement funds in a lump sum payment when her employment was terminated. McKean-Coffman v. Employment Division, 104 Or.App. 345, 801 P.2d 858 (1990). The issue is whether, within the meaning of ORS 657.205(1), an unemployment compensation claimant to whom retirement funds have been paid in a lump sum "received" a retirement "payment" where she timely rolled the funds over into an Individual Retirement Account (IRA). We conclude that such a claimant is not disqualified. We reverse the Court of Appeals' decision and remand this case to EAB for a new determination of unemployment benefits.

Claimant worked as a secretary for a financial institution (employer) from 1984 to 1989. In June 1989, she was discharged by employer because her job description was changed and she was unable to become trained in her new position. Employer told claimant that her vested retirement funds of $8,334 would be paid to her and that she had the option of receiving the funds in a lump-sum or in periodic payments. 1 Because of the adverse tax consequences to claimant if she had elected to receive periodic payments, claimant elected to receive her retirement funds in a lump sum, which she then rolled over into an IRA within the time allowed by federal tax law. 2 Claimant thereafter submitted a claim for unemployment benefits. ORS 657.150 et seq. 3

The Employment Division (Division) denied claimant unemployment benefits on the ground that she had received a lump sum payment of retirement funds when her employment terminated, which she could have received in the form of periodic payments, and that if she had elected to receive the funds in periodic payments they would have exceeded the weekly benefit amount to which she otherwise would have been entitled. In other words, the mere availability of that option permitted the Division to treat claimant as though she had elected to receive the distribution in the form of periodic payments. The Division relied on ORS 657.205 4 and OAR 471-30-020. 5

Claimant requested a hearing. She argued that she had not "received" her retirement funds within the meaning of ORS 657.205 and OAR 471-30-020, but merely had rolled them over into another qualified retirement program. She asserted that the Division should not have considered her retirement funds in determining her eligibility for unemployment benefits. The referee set aside the Division's denial, explaining:

"Neither [ORS 657.205 nor OAR 471-30-020] apply in this case. Claimant did not retire from employer, she was discharged. She did not receive a pension or lump-sum settlement, merely rolled over her potential retirement fund into another retirement fund. This action shall not constitute a receipt of a lump-sum payment pursuant to a retirement. It would be an abuse of the referee's descretion [sic ] to apply the above rule and statute to deny claimant benefits under the facts of this case."

On the Division's application for review, EAB adopted the referee's findings. EAB agreed, however, with the Division's interpretation of the statute:

"Under ORS 657.205, retirement pay is disqualifying if payment is received under a plan maintained or contributed to by a base year employer of the individual. In the case at hand, [employer] was the base year employer. That employer did contribute to a plan under which the payment in issue was received by the claimant. The statute disqualfies [sic ] the claimant.

" * * * The claimant received retirement pay. Whatever the claimant chose to do with that lump sum payment would not avoid the disqualification."

Accordingly, EAB set aside the referee's decision.

The Court of Appeals affirmed. It stated:

"For purposes of ORS 657.205, it is irrelevant what a claimant actually does with the funds after receipt. She could have elected to keep the funds in the original retirement plan, in which case she would not have 'received' them. However, she elected to withdraw the funds, and held them for two weeks before rolling them over into the IRA. She did receive them. Whatever claimant chose to do with the funds after having actually received them is not relevant." McKean-Coffman v. Employment Division, supra, 104 Or.App. at 348-49, 801 P.2d 858 (footnote omitted).

We review to determine whether EAB has erroneously interpreted a provision of law. 6

The question before this court is one of first impression. The question is whether, within the meaning of ORS 657.205, claimant has "received a governmental or other pension, retirement or retired pay, annuity, or other similar periodic payment" which would reduce or eliminate the unemployment benefits that she otherwise would be entitled to receive?

Claimant argues that the disbursal of her retirement funds by employer followed by her timely rollover of the funds into an IRA is tantamount to a simple transfer of funds from one qualified retirement plan to another. Thus, she asserts she did not "receive" those funds within the meaning of ORS 657.205, because she does not now have the funds available to her for her immediate use without incurring a substantial early withdrawal penalty. She argues further that the Division's interpretation would produce an absurd result that is contrary to state and federal tax policy. Finally, claimant argues that EAB erred in its construction of ORS 657.205 by applying the statute to retirement benefits that are not received in "periodic payments," and by applying the statute to persons who are not retired.

The Division argues that the word "received" in the statute is a word of common usage and must be given its common meaning. Regardless of what claimant did with her funds later, she "received" them from her employer. Relying on the plain words of ORS 657.205, the Division argues further that it is bound by the legislature's use of the words "is receiving, has received, or will receive." The Division reasons that it must disqualify claimant because she "received" her retirement funds before she rolled them over into her IRA.

The Division argues that its interpretation of ORS 657.205, as covering lump sum payments in cases where periodic payments also are available, is consistent with the rule of statutory construction requiring that subsections of a statute be read consistently with one another. See 1000 Friends of Oregon v. LCDC (Tillamook Co.), 303 Or. 430, 441, 737 P.2d 607 (1987) ("In construing statutes, a court should harmonize different sections of a single act whenever possible").

ORS 657.205 does not expressly answer how retirement funds that are timely rolled over into an IRA should be treated in this context. OAR 471-30-020(3) likewise does not expressly answer that question. Therefore, we resort to general principles of statutory construction to resolve the question.

ORS 174.010 provides:

"In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all."

ORS 174.020 provides in part:

"In the construction of a statute the intention of the legislature is to be pursued if possible * * *."

See Blyth & Co. Inc. v. City of Portland, 204 Or. 153, 159, 282 P.2d 363 (1955) (courts must endeavor to ascertain and give effect to the legislature's purpose). In construing a statute, courts must refuse to give literal application to language when to do so would produce an absurd or unreasonable result. Rather, courts must construe the statute if possible so that it is reasonable and workable and consistent with the legislature's general policy. Pacific P. & L. Co. v. Tax Com., 249 Or. 103, 110, 437 P.2d 473 (1968). The inquiry into legislative intent begins with an examination of the language of the statute itself. When the language itself provides sufficient insight into legislative intent, it is not appropriate for a court to consult legislative history. In this case, we find the language of ORS 657.205 is ambiguous and, therefore, we look to the legislative history of the statute.

The sparse legislative history of the 1979 amendments to ORS 657.205(1), Or.Laws 1979, ch. 185, § 1, suggests that the 1979 legislature changed ORS 657.205(1) in response to proposed changes in the Federal Unemployment Tax Act (FUTA), codified at 26 U.S.C. § 3304(a)(15) (1988). See, e.g., Minutes, Senate Committee on Labor, Consumer and Business Affairs, January 23, 1979 and Exh D (testimony of Libby Leonard of the Oregon Employment Division). 7 FUTA outlines requirements that states must meet in order to claim FUTA's tax credit benefits. 8 ORS 657.205(1) contains language virtually identical to the relevant federal law. Compare ORS 657.205 with 26 U.S.C. § 3304-3306(a)(15) (1988). From this, claimant posits that the disqualification language was added to ORS 657.205(1) by the 1979 legislature solely to deny unemployment benefits to persons who either are retired or who are eligible for retirement from the workforce.

Because Oregon adopted the federal language...

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