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

ALLAN A ACKER, Employe

VILLAGE OF STURTEVANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606485RC

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, wages for the weeks ending October 24, 1998 through March 13, 1999, must be applied in reduction of the employe's benefits. The employe is required to repay the sum of $585 to the Unemployment Reserve Fund. No waiver for the overpayment of benefits is allowed.

Dated and mailed January 7, 2000
ackeral.usd : 132 : 7  ER 490 UW 900

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he earned wages in weeks in which he also received unemployment insurance benefits and that those wages required reduction in his weekly benefit rate resulting in an overpayment of benefits to the employe. The employe states in his petition that Wis. Stat. § 108.02(15)(f) clearly provides that an elected official's wages do not reduce his benefits. This is incorrect. Wis. Stat. § 108.02(15)(f) provides that "employment" does include work for a government unit in service as an elected official by vote of the public. The determination that such services is not considered "employment" means that wages earned by the employe in such service cannot be used by the employe to meet the minimum qualifying requirements necessary for unemployment insurance eligibility. That is, wages earned in such employment cannot be used as "base period wages" which are used to determine the employe's entitlement to and amount of weekly unemployment insurance benefits. A separate question is at issue when determining whether services are performed for "wages." The definition found in Wis. Stat. § 108.02(26), does not require that the services be performed in covered "employment" but that the services be performed for an employing unit for pay. Whether or not the employe performed services in "employment," he performed for an employing unit and received remuneration for such services. Under Wis. Stat. § 108.05(3), his weekly benefit entitlement must be reduced due to the wages he earned as an elected official.

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