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

MARK M SEIDEL, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11605862MW


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 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

From November 29, 2010, the claimant was incarcerated in Racine County Jail. He was subsequently transferred to Milwaukee County Jail. On January 21, 2011, the claimant was granted work release privileges. While the claimant was incarcerated he filed his claims for unemployment insurance benefits. The claimant continued to look for work while incarcerated because the judge indicated when he was originally sentenced in 2006 that the claimant would have work privileges if he was required to serve this sentence.

For weeks 49 of 2010 through 4 of 2011, the claimant answered "yes" to the question "Were you able to work full-time and available for full-time work?" when filing his weekly claim certifications. The claimant was not available to work because he did not have work release privileges until after the weeks in question.

The issue to be decided is whether the claimant concealed from the department any material fact relating to his benefit eligibility when filing a benefit claim in weeks 49 of 2010 through 4 of 2011, and if so what forfeiture should be imposed as a result.

Wis. Stat. § 108.04(a) provides: "If a claimant, in filing his or her application for benefits or claim for any week, conceals any material fact relating to his or her eligibility for benefits, the claimant shall forfeit benefits in accordance with par. (be)."

Wis. Stat. § 108.04(11)(g) provides: "For purposes of this subsection, 'conceal' means to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation."

In order to impose a forfeiture on a UI claimant, the burden of proof is on the department to present clear, satisfactory and convincing evidence of fraud. Sylvia M. Lubow v. LIRC, Washington Cty. Cir. Ct., Case No. 91-CV-427, January 30, 1992. A forfeiture of benefits may not be imposed against a claimant who makes an honest mistake, but only for a wilful act of concealment, not due to ignorance or lack of knowledge. There must be an intent to receive benefits to which the individual knows he is or she is not entitled. Candace K. Pitts (LIRC, May 25, 1995); Sue A. Krueger v. LIRC and General Motors Assembly Division, Case No. 81-CV-559A, Rock Cty. Cir. Ct., December 3, 1982.

The claimant credibly testified that he was notified by the judge at his sentencing that he would be eligible for Huber release if he was required to serve his stayed sentence. He answered the question regarding his availability on his weekly claim certification consistent with his good faith belief that the judge had made this provision. The jail did not formally make him eligible for Huber privileges until January 21, 2011, but the employee was unaware of this when he filed his weekly claim certification. The claimant did not intend to defraud the department by answering yes to this question. Therefore, he is not required to forfeit future benefits due to these incorrect answers.

The commission therefore finds that in weeks 49 of 2010 through 4 of 2011, the claimant did not conceal a material fact relating to benefit eligibility, within the meaning of Wis. Stat. § 108.04(11)(a), and the claimant shall not forfeit $1,650 in unemployment benefits that become payable by June 10, 2017 within the meaning of Wis. Stat. § 108.04(11)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant shall not forfeit future benefits that become payable by June 10, 2017.

Dated and mailed February 17, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ before deciding to reverse. The ALJ indicated that she had a vague recollection of the claimant and did not credit his assertions that he believed that he had Huber privileges throughout his incarceration. The commission reaches a different conclusion. The claimant provided sentencing documents that support his testimony that he was granted Huber by the judge at sentencing. The commission concludes that the claimant had a reasonable basis for his belief that he was available for work in the weeks at issue here.

 

seidema . urr : 178 : 1


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