Wyoming Dept. of Employment, Div. of Unemployment Ins. v. Banks

• Decision Date: 22 June 1993
• Docket Number: No. 92-260,92-260
• Citation: 854 P.2d 709
• Parties: WYOMING DEPARTMENT OF EMPLOYMENT, DIVISION OF UNEMPLOYMENT INSURANCE, Appellant (Respondent), v. Bernice M. BANKS, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 709

854 P.2d 709

WYOMING DEPARTMENT OF EMPLOYMENT, DIVISION OF UNEMPLOYMENT INSURANCE, Appellant (Respondent), v. Bernice M. BANKS, Appellee (Petitioner).

No. 92-260.

Supreme Court of Wyoming.

June 22, 1993.

Karen A. Byrne, Cheyenne, for appellant.

Mark W. Harris of Harris, Morton and Cown, P.C., Evanston, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

The Wyoming Department of Employment, Division of Unemployment Insurance (agency) appeals the district court's decision which reversed the decision of the Unemployment Insurance Commission (UIC) denying the request of Bernice M. Banks (claimant) for waiver of repayment of unemployment benefits which the agency had determined it had overpaid the claimant.

We reverse the district court's decision and remand with directions that the district court reinstate UIC's decision.

The agency presented this issue:

1. Whether the Wyoming Department of Employment, Division of Unemployment Insurance properly determined that recovery of benefits overpaid to Claimant Bernice M. Banks should not be waived pursuant to W.S. 27-3-409(b).

The claimant rephrased the issue in this way:

I. Did the Wyoming Department of Employment, Division of Unemployment Insurance properly determine that claimant Bernice M. Banks was not entitled to a waiver of alleged overpayment of unemployment benefits?

A. Was the action of the Department in denying claimant a prompt hearing concerning her request to waive the alleged overpayment unlawful and unreasonable or without observance of procedure required by laws of the State of Wyoming?

B. Was the action of the Department contrary to claimant's rights under the Wyoming Employment Security law?

C. Was the action of the Department arbitrary and capricious and/or supported by substantial evidence?

FACTS

Southwestern Wyoming Alcohol Rehabilitation Association (SWARA) in Rock Springs, Wyoming, employed claimant full-time as a prevention specialist. The dates of her employment were January, 1987, until March 18, 1988. On March 7, 1988, while employed by SWARA, claimant took a part-time job with Lynpaj, d/b/a the Kasbah. According to claimant, she quit her SWARA employment "to return to school and * * * [due to] the emotional turmoil that was in that office." She filed a claim for unemployment compensation benefits. On her claim form she described the primary reason for her quitting SWARA as: "Reached point I could not handle related pressure of this position." She was awarded and began receiving benefits. She quit her part-time job with Lynpaj on April 30, 1988.

In the summer of 1988, the agency conducted a quality control audit during which it randomly selected the claimant for an interview to determine whether her benefits met all legal requirements. From the audit, the agency determined that claimant was disqualified from receiving benefits because she had quit her SWARA job for personal reasons. On September 13, 1988, the agency mailed a notice of disqualification to claimant informing her that she had ten days in which to file a protest of the disqualification decision. She did not file a protest to that decision.

On September 16, 1988, the agency mailed an overpayment determination to claimant informing her that she had received an overpayment of unemployment insurance benefits; that the agency could waive recovery of this overpayment if she could establish that recovery was against equity and good conscience; and that she must within ten days provide the agency with her written reason that recovery was unwarranted. Apparently, the agency did not mail the overpayment determination to claimant's correct address until September 26, 1988. On October 6, 1988, claimant mailed a letter to the agency in which she requested a hearing to seek the agency's waiver of the overpayment recovery.

Over the next several years, the agency held several proceedings in which it was determined that claimant's request for a waiver hearing was untimely made. Ultimately, the agency reversed this determination and conducted the hearing from which this appeal arises. In the meantime, however, the agency had filed suit against the claimant for the recovery of the overpayment in the sum of $2,754 and obtained a default judgment against the claimant in that amount. She did not appeal that judgment.

On March 2, 1992, the agency's chief appeals examiner held a hearing of claimant's appeal of the deputy appeals examiner's earlier decision denying her request for waiver of overpayment recovery. The chief appeals examiner affirmed the waiver denial. As of that date, the agency had recovered $1,900 of the $2,754 judgment through garnishment of claimant's wages.

On April 21, 1992, UIC considered claimant's appeal of the chief appeals examiner's decision. UIC affirmed that decision and made additional findings and conclusions. In particular, UIC held that claimant's presentation had failed to meet the criteria for waiver of overpayment set forth in the agency's regulations adopted to implement Wyo.Stat. § 27-3-409(b) (1991) relating to waiver.

Claimant filed her petition for review of UIC's decision to the district court; the court reversed UIC's decision. The agency lodged this appeal. We are informed by the parties that to date only $100 of the $2,754 overpayment remains unpaid.

DISCUSSION

We proceed with our review of UIC's action as if the agency's petition for review had come directly from UIC, giving no special deference to the district court's appellate decision. Union Pacific R.R. Co. v. Wyoming State Bd. of Equalization, 802 P.2d 856 (Wyo.1990); Southeast Wyoming Rehabilitation Center v. Employment Sec. Comm'n, 781 P.2d 918 (Wyo.1989). Our standard of review is as follows:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

WYO.STAT. § 16-3-114(c) (1990).

With respect to the agency's waiver of recovery of overpayment of benefits, the legislature has provided:

(b) An individual receiving benefits under this act to which he is not entitled shall be liable for and repay any such benefit. Repayment of the benefits shall be had either by recoupment, recovery by civil action or both:

(i) The department in its discretion, may recoup the benefit amount liable to be repaid by offsetting, without civil action, against future benefits payable to the individual under this act within three (3) years from the date of an overpayment determination. There shall be no recoupment if an individual is without fault in receiving the benefits and it defeats the purpose of this act or is against equity and good conscience as considered by the department in accordance with regulations of the commission;

(ii) The department may also recover overpaid benefits from an individual by civil action brought in the name of the department.

WYO.STAT. § 27-3-409(b)(i), (ii) (1991).

To implement these statutory provisions relating to the agency's waiver decision, the agency has adopted regulations which read as follows:

Section 1. Fault Criteria. In determining whether a claimant is without fault for purposes of deciding whether to waive recovery of overpaid benefits under W.S. § 27-3-409, the Division shall consider the following criteria:

(a) Whether the claimant made an incorrect statement of facts of a material nature in order to collect benefits; or

(b) Whether the claimant knew or should have known that the statement he gave the Division was incorrect; or

(c) Whether the claimant failed to disclose or caused another person to fail to disclose a material fact in connection with a claim for benefits; or

(d) Whether the claimant knew or should have known the fact not disclosed was material; or

(e) Whether the claimant knew or should have known he was not entitled to benefits; or

(f) Whether the overpayment resulted directly or indirectly, in whole or part, from some other erroneous act or omission of the claimant, which he knew or should have known was wrong; or

(g) Any other relevant factor. Section 2. Equity and Good Conscience and Defeats the Purpose of the Act Criteria. In determining whether recovery of an overpayment defeats the purpose of the Employment Security Law or is against equity and good conscience for the purpose of deciding whether the overpayment of benefits shall be waived, the Division shall consider the following criteria:

(a) The extent to which recovery of the overpayment would create an extreme financial hardship on the claimant. Extreme financial hardship as used herein means the claimant would be unable to provide himself or his immediate family with minimal necessities of food, clothing, medicine, and shelter as a result of the Division recovering the overpayment. Extreme and lasting financial hardship shall be extreme as described above and lasting means that the financial hardship may be expected to endure for more than 120 days.

(b) The extent to which an agent of the Division made an error which contributed...