ANGEL CARE, INC., Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed by the department.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ in part, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Where the name "Sobotikik" appears in the decision, the spelling "Sobotik" is substituted therefor.

The last five paragraphs of the FINDINGS OF FACT and CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

It has not been established that any of the nurses whose status is at issue in this matter "holds or has applied for an identification number with the federal internal revenue service" within the meaning of Wis. Stat. § 108.02(12)(bm)1. The fact that the nurses have social security numbers which are used as taxpayer identification numbers by the internal revenue service, does not satisfy this criterion. The nurses thus did not meet criterion 1.

The nurses met criterion 2 because they filed business or self-employment income tax returns with the federal internal revenue service based on such services performed in 1999.

As explained above in these findings, the nurses also met criteria 3, 4, 5, 6, and 9, but they did not meet criteria 7, 8 and 10.

Angel Care has thus established only that six of the ten criteria in Wis. Stat. § 108.02(12)(bm) -- 2, 3, 4, 5, 6, and 9 -- were satisfied as to the nurses whose status is at issue.

It is therefore found that for services performed in 1999, the nurses were "employees" of Angel Care, within the meaning of section 108.02(12)(b) of the statutes.

It is further found that for services performed in 2000, the nurses were "employees" of Angel Care, within the meaning of section 108.02(12)(bm) of the statutes.

The DECISION paragraph is deleted, and the following is substituted therefor:

The department's determination that Angel Care, Inc. is subject to the unemployment compensation law retroactively to January 1, 1999 is affirmed. The department's determination that Angel Care, Inc. is liable for unemployment compensation contributions and interest for services performed in 1999 is affirmed. The department's determination that Angel Care, Inc. is liable for unemployment compensation contributions and interest for services performed in 2000 is affirmed.

The decision of the ALJ is reversed in part, modified, and affirmed in part as modified. Accordingly, the department's determination that Angel Care, Inc. is subject to the unemployment compensation law retroactively to January 1, 1999 is affirmed. The department's determination that Angel Care, Inc. is liable for unemployment compensation contributions and interest for services performed in 1999 is affirmed. The department's determination that Angel Care, Inc. is liable for unemployment compensation contributions and interest for services performed in 2000 is affirmed.

Dated and mailed December 30, 2004
angelca . smd : 110 :   EE 410

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

As affected by the stipulations entered into at hearing, this case presents the issue of whether certain individuals performing services for Angel Care as nurses in 1999 and 2000 did so as its employees.

The ALJ concluded that the nurses performed their services for Angel Care as its employees in 1999, but that because of a change in the wording in the statute the result was different with respect to services performed in 2000.

Angel Care did not petition for review with respect to the ALJ's decision on the services performed in 1999. The Department of Workforce Development petitioned for review with respect to the ALJ's decision on the services performed in 2000.  
 

Discussion --

The commission concludes that the ALJ erred in holding that a social security number can be used to satisfy the requirement of Wis. Stat. § 108.02(12)(bm)1.

The ALJ based his decision on the fact that the language of the statute applicable to periods through 1999 was

"holds or has applied for an employer identification number with the federal internal revenue service"

while the language of the statute applicable to periods from 2000 on was

"holds or has applied for an identification number with the federal internal revenue service"

The ALJ reasoned that "[t]he nurses do hold an identification number with the federal internal revenue service, their social security number". He also expressed the view, with respect to the intent of the legislature in making this change, that "[d]ropping the word employer from the criteria showed an intent not to require a Federal Employer Identification Number."

In support of its argument that there was no intent to change the meaning of the statute, the department made certain assertions about the legislative history of Wis. Stat. § 108.02(12)(bm)1. These unsworn assertions of counsel about what he was told, that someone else was told, by someone else who was involved in the drafting of the language at issue, are entitled to no weight as evidence. See, Merco Distribution Corp. v. O & R Engines, Inc., 71 Wis. 2d 792, 795-96, 239 N.W.2d 97 (1976). In any event, the matters asserted would not be proper evidence of legislative intent, see, RURAL v. PSC et al, 2000 WI 129, ¶ 29, n.20, 239 Wis. 2d 660, 688, 619 N.W.2d 888 (ex post facto explanations from legislators cannot be relied upon to determine legislative intent); State v. Consolidated Freightways Corp., 72 Wis. 2d 727, 738, 242 N.W.2d 192 (1976) (neither a legislator, nor a private citizen, is permitted to testify as to what the intent of the legislature was in the passage of a particular statute).

In the absence of any acceptable evidence about legislative intent, the commission must decide the issue by consideration of the language of the statute itself.

The statute turns on the question of whether an individual "holds or has applied for an identification number with the federal internal revenue service". One does not apply for a social security number "with the federal internal revenue service". Social security numbers are obtained only by applying for them with the Social Security Administration. The Internal Revenue Service is an administrative subdivision of the U.S. Department of the Treasury. The Social Security Administration is an independent federal agency. It is true that the Internal Revenue Service uses social security numbers, but those numbers have always been issued by the SSA. A person can no more "apply" for a social security number with the Internal Revenue Service, than they can file their federal income taxes with the Social Security Administration.

Furthermore, the commission concludes that the most reasonable construction of the statutory language is that one also does not "hold" a social security number "with the internal revenue service". In the commonly understood usages of such terms, one "holds" an identification number "with" the agency to which one applies for such a number and which issues such numbers, just as one "holds" a license "with" the agency to which one applies for that license and which issues it.

For the foregoing reasons, the commission concludes that the ALJ's interpretation of Wis. Stat. § 108.02(12)(bm)1. simply does not comport with the language of the statute. Whatever the explanation may be for the difference in the statutory language between the two versions of this criterion as found in Wis. Stat. §§ 108.02(12)(b)(1)a. and 108.02(12)(bm)1., it is clear on its face that the latter does not apply to social security numbers.

NOTE: In addition to its argument concerning the proper interpretation of Wis. Stat. § 108.02(12)(bm)1., the department argued that the ALJ erred in finding that the nurses were shown to have met the criteria 4 (operates under contracts to perform specific services for specific amounts of money and controls means and methods of providing such services) and 5 (incurs the main expenses related to the services).

The commission would note that the decision of the ALJ on the application of these and the other criteria here appears to be consistent with the specific holdings by the Jefferson County Circuit Court in Care and Comfort Associates, Inc. v. Labor and Industry Review Commission, (Jefferson County Circuit Court, Case. No. 99CV 169, Feb. 3, 2000). In addition, in view of the commission's decision that the ALJ erred in concluding that the nurses met the "holds or has applied for an identification number with the federal internal revenue service" criterion of Wis. Stat. § 108.02(12)(bm)1., the outcome of this case will be the same whether or not these other arguments by the department are accepted. For these reasons the commission elects not to address these arguments.

The department also argued that Sharon Sobotik is holder of 100% of the shares of Angel Care and that under certain previous administrative and court decisions (not cited by the department), she was thus an employee and should not be found to have satisfied the requirement of criterion 3 for a "separate business". Finally, the department also alluded to an unidentified individual who supposedly did not actually provide skilled nursing services but rather provided primarily cleaning and other types of services. Because these arguments are not sufficiently developed for the commission to be able to address them, and because as noted above the outcome of the case is in any event the same given the commission's decision on the issue presented under criterion 1, the commission also elects not to address these arguments.

cc:
Attorney Peter Zeeh, DWD UI Division, Bureau of Legal Affairs
Attorney David J. Winkel, Winkel Law Office
Angel Care, Inc., c/o Sharon Sobotik

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