James Tanksley v. Director, Department of Workforce Services

2022 Ark. App. 434

Opinion

Cite as 2022 Ark. App. 434 ARKANSAS COURT OF APPEALS DIVISION III No. E-21-583

Opinion Delivered October 26, 2022 JAMES TANKSLEY APPELLANT APPEAL FROM THE ARKANSAS BOARD OF REVIEW V. [NO. 2021-BR-02509] DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES REMANDED TO SUPPLEMENT THE APPELLEE RECORD

WAYMOND M. BROWN, Judge

Appellant James Tanksley (Tanksley) appeals from the adverse ruling of the Arkansas

Board of Review (Board) affirming the Arkansas Appeal Tribunal’s (Tribunal’s)

determination that dismissed Tanksley’s appeal, finding that he untimely filed his appeal

under the law and failed to establish that it was due to circumstances beyond his control in

cases No. 2022-AT-01259. We remand to supplement the record.

A brief review of the facts reflects that Tanksley was issued a “Notice of Agency

Determination” on March 2, 2021, granting his application for benefits under Ark. Code

Ann. §11-10-514 (Supp. 2021) on finding that Tanksley was discharged due to poor

performance, but his poor performance was not done willfully and deliberately against the

employer’s best interest. From this determination, for whatever reason, Tanksley filed an

untimely appeal to the Tribunal. Thus, pursuant to Paulino v. Daniels, 269 Ark. 676, 559 S.W. 2d 760 (Ark. App. 1980), Tanksley was afforded a hearing on June 3, 2021. Thereafter,

the Tribunal dismissed Tanksley’s appeal on finding that the untimely filing was not due to

circumstances beyond his control in appeal No. 2021-AT-08689. Then, Tanksley appealed

to the Board. In case No. 2021-BR-02509 the Board affirmed the Tribunal’s decision.

Tanksley next appealed to the Arkansas Court of Appeals in case No. 2021-E-583. The court

of appeals remanded the case to the Tribunal due to the failure to locate the recording of

the June 3 hearing. The remand was docketed as No. 2022-AT- 01259.

According to the record, the June 3rd hearing transcript was never located. Thus, a

February 16, 2022, re-hearing was conducted to supplement the record. Thereafter, the

Tribunal again affirmed the Division’s determination in appeal No. 2022-AT-01259.

Following, a timely appeal the Board again affirmed the Tribunal's decisions. And from this

determination, Tanksley timely appealed to this court.

However, we are unable to reach the merits of this appeal and must remand to

supplement the record. Our record contains a decision, from the Board that indicates the

wrong decision from the Tribunal, which was previously set aside. Additionally, the Board’s

findings are not supported by testimony given at the February 16, 2022, rehearing. From

what we can gather the Board resubmitted its decision from the June 3 hearing, which was

never located, and not within the record before us. The Board stated in its decision that it

had “considered the entire record of prior proceedings before the Appeal Tribunal, including

the testimony submitted at the hearing.” However, the Board’s decision is not supported by

the record. A proper determination must be made from evidence within the record. This

2 information is essential to a proper review of the merits here.1 Therefore, we cannot reach

the merits of Tanksley’s claim at this time.

Accordingly, we remand to the Board with specific instructions to settle and

supplement the record with a finding supported by evidence within the record, taking into

account the February 16 rehearing. The supplemental record is to be returned thirty days of

this order.

Remanded to supplement the record.

VAUGHT and MURPHY, JJ., agree.

James Tanksley, pro se appellant.

Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.

1 See Van Venrooij v. Dir., 2021 Ark. App. 213; Spicer v. Dir., 2022 Ark. App. 152, at 2.