May 29, 2007
KEVIN MAGUIRE, PETITIONER-APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT-RESPONDENT, AND EXTENSIS, INC. T/A RUGS & RIFFY, RESPONDENT.
On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development Docket No. BR-65103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2007
Before Judges Weissbard and Payne.
Petitioner, Kevin Maguire, appeals from a final decision of the Board of Review dismissing his appeal from a demand for repayment of benefits on account of fraud as untimely. On appeal, petitioner claims that he was not afforded a sufficient opportunity to prove good cause for missing the deadline on his appeal, that good cause existed, that the deadline should be waived, and that if a substantive hearing were held, he would prevail. Additionally, he challenges the penalty imposed on him.
The record discloses that, effective April 12, 2003, petitioner received unemployment benefits at a weekly rate of $482. Following an investigation, by notice mailed on November 10, 2004, the Director of the Division of Unemployment Insurance notified petitioner that, pursuant to N.J.S.A. 43:21-5 and 43:21-16(d), as the result of petitioner's fraudulent misrepresentation, he was disqualified from receipt of benefits for a period of one year; the benefits fraudulently received in the period from April 12, 2003 to January 3, 2004 must be refunded; and a fine of $4,570 had been imposed. The total debt was stated to be $22,850. Petitioner was further advised that if he disagreed with the Director's determinations, he was required to file a written appeal and mail it to a specified address within seven days after delivery of the Director's notice or within ten days of the mailing of that notice.
Petitioner did not comply with the time period for appeal set forth in the notice, but instead submitted his appeal on February 3, 2005. In it, he stated:
When I applied for U.P. I reported my part time job. I was told that I was still able to collect full benefits. I reported what my pay check was every pay period.
A hearing was held by telephone on April 6, 2005, at which time petitioner testified both as to the reason for the late filing of his appeal and as to the merits. In a decision of the Appeal Tribunal, issued on April 6, 2005, the Tribunal found as fact that:
The Director mailed a determination to the appellant's address of record on 11/10/04.
The claimant received the determination and more than seven (7) days after his receipt of the determination, he filed his appeal on 02/03/05. The appeal was not filed earlier because he was waiting to speak to his accountant regarding the refund, he just started a new job and was busy with personal matters and prior to the determination being issued he received numerous correspondence from the unemployment office to which he always responded.
After considering this evidence, the Tribunal concluded that petitioner had not met the time limitations for filing an appeal established by N.J.S.A. 43:21-6(b)(1),*fn1 and that he had failed to show good cause for his late filing. The appeal was thus dismissed. The Tribunal further found that, having dismissed the appeal, it lacked jurisdiction to rule on the merits of petitioner's substantive arguments. The Appeal Tribunal's determination was affirmed in a final decision of the Board of Review dated May 10, 2005.
Our review of the record satisfies us that petitioner was given a sufficient opportunity to demonstrate good cause for his delay in appealing, and that the Board's final decision that good cause had not been established was fully supported by the evidence presented. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964).
At the hearing, petitioner admitted to receipt of the Director's Determination and Demand for Refund, and although he did not remember when receipt occurred, he agreed that he had received the Determination in November 2004.*fn2 Petitioner did nothing until February 2005, when advised to appeal by his tax accountant. His only excuses for the delay were that he commenced a new position in sales at CMS Communications on November 30, 2004,*fn3 the holidays then occurred, and "[i]t was just very hectic." After acknowledging receipt of various correspondence generated in the course of investigation of petitioner's employment status and reporting, petitioner stated:
I sent back quite a few forms that I received. If we're only going by that form[,] then this is not just cause[,] because I received numerous forms. I returned with writing on the back of them. This is what I put down. This is what happened so forth and so. I was waiting to talk to somebody about this. So I mean an accountant of some sort. Maybe I delayed it a little longer than I should but my life was a little hectic at the time. I was trying to get things straightened out.
Also, like I said[,] I returned numerous letters stating what I[,] you know[,] because they asked for explanations.
I mean it doesn't seem right. Like I said I received numerous letters. I know I returned quite a few that needed explanations and I guess I was (inaudible) on calling to appeal but I wasn't[,] you know[,] I was sending back so many other things I didn't know what to[,] you know[,] what to expect next. That's my only explanation I have.
In Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992), the Supreme Court held that due process requires that a petitioner, and particularly one from whom a refund of benefits is sought, be given notice of the claim against him and an opportunity to challenge it. Additionally, if he contests the merits of the claim, he is entitled to consideration of his appeal, even if untimely, if good cause for the late submission is demonstrated. Since Rivera, the good cause standard has been codified in N.J.A.C. 12:20-3.1 (appeals to Appeal Tribunal) and 12:20-4.1(h) (appeals to Board of Review), both of which provide:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:
1. The delay in filing the appeal was due to circumstances beyond the control of the applicant; or
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.
We discern no basis to challenge the Board's conclusion that petitioner's statements that he filled out investigatory forms sent to him by the Division, and that he was distracted by the holidays and a new job (which, we note, he started after the appeals period had expired), failed to constitute good cause.
Nor is this a circumstance similar to Garzon v. Bd. of Review, 370 N.J. Super. 1 (App. Div. 2004), in which we found that the Division's correspondence to petitioner did not adequately apprise her of the need to demonstrate good cause for late submission of an appeal, and we afforded petitioner an additional opportunity to meet the standard. In contrast to Garzon, petitioner in the present case, whose understanding of English and the import of questions asked of him was unquestionable, was fully informed by the hearing examiner of the nature and significance of her inquiry into the reasons for petitioner's delay in appealing. The decision to dismiss petitioner's appeal, reached by the Tribunal and affirmed by the Board, did not result from a misunderstanding by petitioner of the good cause standard, but rather, a lack of reasonable excuse for the tardy submission.
Additionally, our review of the merits of petitioner's position satisfies us that no overwhelming equity requires their further consideration. At the hearing, petitioner testified that he disclosed the fact of part-time employment of fifteen to eighteen hours a week as a bartender when he sought unemployment benefits, and that he was advised that such employment did not "necessarily" preclude the receipt of such benefits.
Petitioner testified further that he informed the Division on a bi-weekly basis that he was earning $100 per week.
However, he admitted that, on a number of occasions, he falsely indicated that he was not working at all, since "someone" had told him that if he reported consistent work, he could be disqualified from receiving benefits. When confronted with records from his employer indicating far higher earnings than the $100 that he claimed to have reported, petitioner justified the under-reporting by stating the remainder was tips. He said: "My pay check only read about $100." However, the employer's records failed to confirm that latter statement, disclosing base earnings in amounts such as $145, $185, $127, $135 and $130 per week. Tips markedly increased the amount.*fn4 Petitioner's only explanation for the reporting discrepancy was: "I guess I screwed up on that part." Although petitioner claimed that he was paid less in tips than was reported by his employer, petitioner acknowledged that he provided the reported figure to his accountant for tax purposes, and stated that he paid taxes on it. Petitioner testified:
I know this sounds not true at all but that doesn't really matter too much to me because I have bigger stresses in my life (inaudible -- voice is muffled). It just -- there's a lot more going on in my life than a few dollars here and there.
I apologize if I put $100 because that's what I assumed. Like you said a couple of my checks said $100 and I guess I just sort of like took that as the figure. I should have been more accurate. I apologize for that.
In sum, petitioner's own testimony confirmed his misstatements and his lack of entitlement to relief. A person who works part-time but satisfies the statutory definition of "unemployed," N.J.S.A. 43:21-19(m) and N.J.A.C. 12:17-2.1, may be entitled to partial benefits upon properly reporting his remuneration and the other information required by N.J.A.C. 12:17-6.3. However, petitioner did not seek partial benefits. Rather, the hearing record confirms that, in an attempt to obtain full benefits, he misrepresented his earnings. Refund in full of the benefits paid is thus required by N.J.S.A. 43:21-16(d)(1). The Board's decision requiring that refund is thus affirmed. Malady v. Bd. of Review, 159 N.J. Super. 530, 532-33 (App. Div. 1977), aff'd in part, rev'd in part and remanded, 76 N.J. 527 (1978), on remand, 166 N.J. Super. 523 (App. Div 1979).
Petitioner additionally contests the imposition of the $4,570 penalty on him, pursuant to N.J.S.A. 43:21-16(a), claiming that he was not notified of its imposition or afforded the opportunity to contest it as required by Malady, supra, 166 N.J. Super. at 528-32. We reject petitioner's argument. Notice of the fine and the right to appeal from its imposition was provided in the initial notice forwarded to petitioner on November 10, 2004. Petitioner's failure to contest it at the hearing does not constitute a due process violation, but instead, a waiver of petitioner's rights.
The penalty statute, like the refund statute, requires evidence of a "knowing" misstatement made to obtain an increase in benefits. N.J.S.A. 43:21-16(a). The evidence supporting the Division's right to a refund similarly supports the imposition of the civil penalty. Compare Orzel v. Bd. of Review, 386 N.J. Super. 338 (App. Div. 2006).