Risovi v. Job Service North Dakota

2014 ND 60, 845 N.W.2d 15, 2014 WL 1320127, 2014 N.D. LEXIS 67
CourtNorth Dakota Supreme Court
DecidedApril 3, 2014
Docket20130302
StatusPublished
Cited by5 cases

This text of 2014 ND 60 (Risovi v. Job Service North Dakota) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Risovi v. Job Service North Dakota, 2014 ND 60, 845 N.W.2d 15, 2014 WL 1320127, 2014 N.D. LEXIS 67 (N.D. 2014).

Opinion

McEVERS, Justice.

[¶ 1] Kenneth L. Risovi appeals from the district court’s amended judgment affirming the decision of Job Service North Dakota (“Job Service”) disqualifying him from benefits from November 4, 2012, until October 26, 2013, on the grounds he had misrepresented facts in order to obtain benefits. We affirm.

I

[¶ 2] On November 5, 2012, a Job Service claims deputy issued an initial determination that Risovi misrepresented facts in order to obtain unemployment benefits, which he was not eligible to receive. Job Service disqualified Risovi from receiving unemployment benefits from November 4, 2012, to October 26, 2013. Risovi appealed the initial determination. On January 8, 2013, an appeals referee conducted a hearing to determine “the circumstances ... surrounding th[e] [determination, any wages reported or unreported, but more importantly if [Risovi] should have actually been disqualified from benefits for that one-year period of time.”

[¶ 3] According to the testimony and exhibits offered at the January 8, 2013, administrative hearing, Risovi worked 351.5 hours in January 2012 for Milo Trucking. Risovi explained Milo Trucking offered him “40 percent of what the truck made which at that time was anywhere’s [sic] from $125 to $145 an hour, but ... [Milo Trucking] couldn’t pay [him] until the truck got paid which would have been a month and one-half later.” Risovi asserted he could not go one and one-half months without pay so there was an oral agreement with Milo Trucking that he would be paid $260 per week for the month *17 of January, the approximate equivalent of 60 percent of his unemployment, and the commission would be paid in the future. Risovi’s paycheck for the period from January 14, 2012, to February 13, 2012, was $10,320.92, with the paystub reflecting no hourly wage rate, and included a $6,100 payroll advance. Risovi claimed the $6,100 advance was a loan while Milo Trucking claimed it was for Risovi’s work prior to January 14, 2012. For the week of January 7, 2012, Risovi reported to Job Service that he earned $260 for 26 hours rather than 94 hours actually worked. According to Risovi, “it really didn’t matter how many hours I worked because if I can emphasize that I was working for a flat fee and there wasn’t any concern how many hours I worked.” Risovi explained that he provided “hours so basically to make that $260.” Risovi pointed out that (1) he did not care how much his hourly wage came to, (2) he is not allowed to refuse work, at any rate, and claim unemployment, and (3) Job Service has no right to dictate what is an appropriate rate for work. Risovi claimed there is no proof in this case because it is his word against his employer; there is no proof Risovi received payroll checks, or that Risovi worked for what Milo Trucking claims is Risovi’s recorded earnings. Risovi had a history of submitting claims with Job Service going back to 2008 which showed another of Risovi’s employers also only reported 60 percent of the weekly benefit amount most of the time. Risovi explained this consistent reporting of 60 percent occurred because the work occurred during the slow winter months.

[¶ 4] Also considered by the appeals referee in Exhibit 4 were working notes that supported the investigation into the alleged fraud. The notes reflect that Riso-vi had indicated to the case manager that if he was not sent a payment he was going to lie and certify while he was working to receive payment. According to these notes, Risovi had indicated that he was going to start claiming weeks just to get his money.

[¶ 5] The appeals referee concluded the greater weight of the evidence in the record supported the finding that Risovi misrepresented his earnings for the entire month of January 2012. Specifically, the appeals referee found:

[Risovi] did not report that he worked or reported earnings for the sole purpose of obtaining unemployment insurance benefits to which he was not entitled. ... [Risovi] did not fail to report the proper earnings due to a lack of knowledge. On the contrary, he was fully aware of the reporting requirements. His failure to report the earnings was an intentional act to receive benefits to which he was not entitled to receive in order to meet his financial obligations.

The appeals referee concluded Risovi “misrepresented earnings and, therefore, should be disqualified from receiving future benefits for the period of time so stated in the nonmonetary determination.” The appeals referee affirmed the claims deputy’s initial determination. Risovi appealed to Job Service. Job Service denied the appeal on the grounds an appeal to Job Service is a matter of right only if the appeals referee’s decision does not affirm the initial determination. Risovi petitioned for judicial review. On June 21, 2013, the district court affirmed the appeals referee’s decision concluding it was reasonable to conclude that Risovi acted with fraudulent intent rather than due to a mistake or misunderstanding of the law or facts. This appeal followed.

[¶ 6] On appeal, Risovi argues he did not commit fraud in obtaining unemployment benefits while reporting his wages as *18 $260 per week for the month of January 2012 and receiving unemployment benefits at the time until the end of the month of January 2012. Risovi also argues Job Service’s service of its respondent’s brief was defective, because the certificate of service misidentified the employer, the employee claiming benefits, the case number, and the county of venue and, therefore, Job Service defaulted.

II

[¶ 7] “In an appeal from a district court’s review of an administrative agency decision, we review the agency’s decision, not the district court’s decision.” Gottus v. Job Service N.D., 2011 ND 204, ¶ 7, 804 N.W.2d 192. Under N.D.C.C. §§ 28-32-46 and 28-32-49, this Court must affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied within in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46; Gottus, at ¶ 7. This Court “do[es] not make independent findings of fact or substitute [its] judgment for that of the agency’s.” Willits v. Job Service N.D., 2011 ND 135, ¶ 8, 799 N.W.2d 374.

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Bluebook (online)
2014 ND 60, 845 N.W.2d 15, 2014 WL 1320127, 2014 N.D. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/risovi-v-job-service-north-dakota-nd-2014.