STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BILL L SARGEANT, Claimant

VILLAGE OF UNION GROVE
RACINE COUNTY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07607090RC


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.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked as a member of a planning commission for the employer, a government unit, during his base period and was paid a total of $475 during this period. He is still a member of the planning commission.

The first issue to be resolved is whether the services performed by the claimant were excluded from the definition of "employment" such that the money he was paid cannot be deemed to be base period wages upon which he is entitled to unemployment benefits.

Wisconsin Statute § 108.02(15)(f) provides, in relevant part, as follows:

(f) "Employment" as applied to work for a government unit or Indian tribe, except as such unit elects otherwise with the department's approval, does not include service:

* * *

6. In a position, which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position, or is designated as a policymaking or advisory position the performance of the duties of which does not ordinarily require more than 8 hours per week.

In the claimant's position as a member of the employer's planning commission, he met with the commission regarding zoning, rezoning and signs in the village. He spent one to two hours at planning commission meetings that met every couple of weeks and was paid $25 per meeting.

Both the employer and claimant agreed with the above facts. Given these facts, the claimant performed his services for the employer, a government unit, in a policymaking or advisory position which did not ordinarily require more than 8 hours per week. He is not eligible for benefits based on such work under Wis. Stat. § 108.02(15)(f)6.

For the four calendar quarters in the claimant's base period, which were the fourth quarter of 2005 through the third quarter of 2006, the employer reported wages to the department which came to a total of $475. He also had wages from his regular employing unit in the amount of $5,150 during his base period. As a result, the claimant was paid unemployment benefits for weeks 11 through 37 of 2007 based upon wages for both of the above base period employers. The amount that he was erroneously paid due to the wages from the employer is $190.

There are additional issues in this matter as to whether the employer was at fault in the erroneous payment of benefits, whether the claimant was at fault, and whether the claimant was paid benefits due to department error. Resolution of such issues determines whether erroneously paid benefits result in an overpayment, whether any resulting overpayment must be repaid by the employee, and whether the employer remains charged for the erroneously paid benefits.

When the claimant initiated his claim for benefits, there was nothing that he responded to incorrectly regarding his work with the employer. There was no fault on the part of the claimant which led to the erroneous payment of benefits.

The department was not advised of an eligibility issue prior to the claimant's claims for the base period in question. The claimant was not erroneously paid benefits due to departmental error.

The claimant was erroneously paid benefits to which he was not entitled because the employer reported the claimant's wages on quarterly wage reports. Instructions on the department Website for reporting employee wages specify that wages for government units for service in a policy or advisory job not normally requiring 8 hours per week are excluded and should not be reported.

Wisconsin Statute § 108.09(1) states as follows:

Claims for benefits shall be filed pursuant to department rules. Each employer that is notified of a benefit claim shall promptly inform the department in writing as to any eligibility question in objection to such claim together with the reasons for the objection. The department may also obtain information from the employee concerning the employee's eligibility, employment or wages.

Wisconsin Statute § 108.04(13) states, as relevant here:

(c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09(1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. If, during the period beginning on January 1, 2006, and ending on June 28, 2008, an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, charges to the employer's account for benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, except as provided in par.(g). If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.

* * *

(f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefit claim under s. 108.09 (1) or aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. If benefits are erroneously paid because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.

(g) During the period beginning on January 1, 2006, and ending on June 28, 2008, if benefits are erroneously paid because an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, the employer is at fault unless an appeal tribunal, the commission, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information.

The employer is required to submit quarterly wage reports pursuant to Wis. Stat. § 108.205. The claimant was erroneously paid benefits because the employer failed to provide correct information on those reports. Pursuant to Wis. Stat. § 108.04(13)(f), the employer was at fault. Wis. Stat. § 108.04(13)(c), states that:

Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer.

In Bolzenthal v. Herald Times Reporter, Thomson Newspapers (Wisconsin) Inc., UI Dec. Hearing No. 90400718MN (LIRC Nov. 30, 1990), the commission interpreted the phrase "does not affect benefits paid" as meaning that no overpayment is created if the employer is at fault but the employee is not at fault. The "except for otherwise provided" language refers to when there is also employee fault, in which case benefits paid prior to the late denial are affected.

There is no "good cause" exception for failing to provide correct information on a required report. The employer was at fault in the erroneous payment of benefits and, as a result, the benefits remain charged to the employer.

The commission therefore finds that the claimant's services for the employer during the base period were not employment within the meaning of Wis. Stat. § 108.02(15)(f)6.

The commission further finds that that the claimant was erroneously paid benefits in the amount of $190.00, due to the employer's fault as defined in Wis. Stat. § 108.04(13)(f).

The commission further finds that the aforementioned benefits remain paid to the claimant and need not be repaid by the claimant to the department, and that the employer remains charged for such erroneously paid benefits pursuant to Wis. Stat. § 108.04(13)(c).


DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified is affirmed in part and reversed in part. Accordingly, the claimant is not eligible for benefits based on his employment with the employer. The claimant is not required to repay the sum of $190 to the unemployment reserve fund. Benefits erroneously paid to the claimant remain charged to the employer.

Dated and mailed February 14, 2008
sargebi . urr : 132 : 8 : ET 490  BR 319.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not consult with the ALJ prior to reversing his finding that the claimant must repay the erroneously paid benefits. The commission's reversal is not based on credibility of witnesses but on its disagreement with the ALJ's interpretation of the law.

 


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uploaded 2008/02/26