Ortiz v. New Mexico Employment Sec. Dept.

• Decision Date: 30 December 1986
• Docket Number: No. 9071,9071
• Parties: , 37 Ed. Law Rep. 713 Ramona ORTIZ, Mary Torivio and Elizabeth Garcia, Petitioners-Appellants, v. NEW MEXICO EMPLOYMENT SECURITY DEPARTMENT and Sky City Community School, Bureau of Indian Affairs, Department of the Interior, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 1357

731 P.2d 1357

105 N.M. 313, 37 Ed. Law Rep. 713

Ramona ORTIZ, Mary Torivio and Elizabeth Garcia Petitioners-Appellants, v. NEW MEXICO EMPLOYMENT SECURITY DEPARTMENT and Sky City Community School, Bureau of Indian Affairs Department of the Interior Respondents-Appellees.

No. 9071.

Court of Appeals of New Mexico.

Dec. 30, 1986.

[105 NM 314] Joel Jasperse, Northern New Mexico Legal Services, Inc., Gallup, for petitioners-appellants.

Paul G. Bardacke, Atty. Gen., Richard Baumgartner, Sp. Asst. Atty. Gen. for the New Mexico Employment Sec. Dept., Albuquerque, for respondents-appellees.

OPINION

SANDRA A. GRISHAM, District Judge, by Order of Designation.

Ramona Ortiz, Mary Torivio, and Elizabeth Garcia (claimants) appeal from the district court's affirmance of the denial of unemployment compensation benefits by the New Mexico Employment Security Department (ESD). Claimants were employed by the Bureau of Indian Affairs as educational aides at the Sky City Community School for the 1983-1984 school year, and had been similarly employed since the early 1970's.

In prior years, claimants had been "furloughed" in the summer from approximately one week after school let out to one week before it reconvened, and had established a practice of collecting unemployment compensation for the ten weeks they were off in the summer.

In June of 1984, claimants were laid off earlier than usual and were told to report back October 1, 1984, the reason given for the longer furloughs being budget cuts.

The Federal Unemployment Tax Act, 26 U.S.C. Sections 3301 to 3311 (1976) provides that employees of educational institutions are ineligible for unemployment benefits for:

[A]ny week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms * * *.

26 U.S.C. 3304(a)(6)(A)(ii).

Congress mandated that this language is to be included in state law (26 U.S.C. Section 3304(a)(6)(A)), and it is found substantially unchanged at NMSA 1978, Section 51-1-5(C)(2) (Cum.Supp.1986). The state administers federal employees' claims for unemployment benefits. 5 U.S.C. Sec. 8502(b) (1976).

Relying on Section 51-1-5(C)(2) and (4), ESD denied the claims in this case on the ground that the "between terms" section applied, and the district court affirmed that decision.

Claimants raise three issues: first, granting benefits would accomplish New Mexico public policy; second, there was no "reasonable assurance of reemployment"; and third, the period of unemployment was not "between two successive academic years or terms." These are matters of first impression under New Mexico law.

In appeals from administrative decisions, the reviewing court must decide whether the decision is supported by substantial evidence in the record as a whole. Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 681 P.2d 717 (1984). The appellate court must make the same review of the determination as the district court. Groendyke Transport, Inc. v. New Mexico State Corporation Commission, 101 N.M. 470, 684 P.2d 1135 (1984). Although the reviewing court generally may not substitute its judgment for that of the administrative decision-maker, it may correct a misapplication of the law. Conwell v. City of Albuquerque, 97 N.M. 136, 637 P.2d 567 (1981).

I. PUBLIC POLICY.

Claimants argue public policy requires a liberal construction, and indeed, the supreme court "is clearly committed to a liberal interpretation of our unemployment compensation act, so as to provide sustenance to those who are unemployed through no fault of their own and who are willing and ready to work if given the opportunity." Wilson v. Employment Security Commission, 74 N.M. 3, 14, 389 P.2d 855, 862-63 (1963). This policy, however, has been refined by the limitations of Section 51-1-5(C)(2), and as enunciated by another jurisdiction, "the intent of the limited disqualification * * * is to prevent subsidized summer vacations for those teachers who are employed during one academic year and who are reasonably assured of resuming their employment the following year." Leissring v. Department of Industry, Labor & Human Relations, 115 Wis.2d 475, 488-89, 340 N.W.2d 533, 539 (1983).

Denying claimants' benefits for between-term unemployment with reasonable assurance of reemployment is consistent with public policy.

II. REASONABLE ASSURANCE OF REEMPLOYMENT.

Claimants first argue that as a matter of law there was no reasonable assurance because they were told to report back to work on October 1, 1984, which was not when the next academic school year began. The statute reads that the reemployment must be in the second of such academic years or terms, not that it must commence at the beginning of the term. October 1, 1984 was in the second year, and claimants' argument here fails under the clear language of the statute.

Claimants next argue that they were not given a reasonable assurance that they were going to be reemployed on October 1, 1984. "Reasonable assurance" is defined in Section 51-1-5(C)(5) to mean:

[A] reasonable expectation of employment in a similar capacity in the second of such academic years or terms based upon a consideration of all relevant factors, including the historical pattern of reemployment in such capacity, a reasonable anticipation that such employment will be available and a reasonable notice or understanding that the individual will be eligible for and offered employment in a similar capacity.

Claimants allege that reasonable assurance was lacking because of the uncertainty of funding; however, another jurisdiction has found that " 'an assurance of public...