MARVIN W. GREEN v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3773-07T23773-07T2

MARVIN W. GREEN,

Appellant,

vs.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, UNITED PARCEL

SERVICE, INC., DEPT. STORE

DRIVERS HELPERS c/o TEAMSTERS

LOCAL #177, and AACE ASSOCIATION,

Respondents.

_________________________________

 

Submitted: June 23, 2009 - Decided:

Before Judges Cuff and Fuentes.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 168,548.

Marvin W. Green, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

PER CURIAM

Claimant Marvin W. Green appeals from a decision of the Board of Review (Board) affirming his one-year disqualification from receiving unemployment benefits due to fraudulent representation and holding him liable for refund of benefits received for the weeks he was, in fact, employed part-time. We affirm.

Green filed a claim for unemployment benefits on December 7, 2003, in response to which he received $12,052 for the weeks ending March 20, 2004, through September 11, 2004. Green also filed a claim on December 19, 2004, and received benefits in the amount of $4,900 for the weeks ending January 1, 2005, and April 16, 2005, through June 11, 2005. The Division of Unemployment Insurance (Division) initiated an investigation of claimant after receiving information that he was employed while collecting benefits. An investigator for the Bureau of Benefit Payment Control discovered payroll records confirming Green was employed by United Parcel Service (UPS) and Department Store Drivers Helpers (Drivers Helpers) while collecting unemployment benefits. Accordingly, on October 22, 2007, the Division Director imposed a disqualification from receipt of benefits for a period of one year from October 19, 2007, the date claimant's misrepresentation was discovered, and found him liable for refund of benefits received while he was employed. Green was also fined in accordance with N.J.S.A. 43:21-16(a).

On December 14, 2007, the Appeal Tribunal affirmed the determination of the Director. At the hearing, claimant testified that the wages presented by the Division were correct, that they were earned while he was working for UPS and Drivers Helpers, and that he had not reported those wages to the Division. Green asserted that he did not report the wages because a Division representative advised him that he did not have to report the earnings he received from his part-time jobs when he initially applied for benefits over the phone. Further, he was informed that he was eligible for unemployment benefits for the loss of full-time employment. Claimant also testified that he relied on the representative's prior statements when he failed to report his earnings on the December 19, 2004 claim.

The Board accepted the findings of the Appeal Tribunal, which held that Green knowingly made false statements to the Division regarding his employment status and earnings from that employment. In addition, because claimant could not remember the identity of the Division agent who instructed him that he did not have to report the earnings from his part-time jobs, the "issuance of [that] instruction [could] not be verified."

On appeal, claimant argues that he received unemployment benefits not as a result of any fraud or wrong-doing on his part, but rather by following the instructions of the Division representative who assisted him with setting up his claim. Therefore, claimant argues he should not be penalized or fined for following the instructions of the agent upon whose knowledge and experience he relied.

"The basic purpose of the Unemployment Compensation Act is to relieve employees, and the general public as well, from the adverse impact of involuntary unemployment." Stonco Elec. Prods. Co. v. Bd. of Review, 106 N.J. Super. 6, 9 (App. Div. 1969). The unemployment compensation statute is designed to serve the general public interest and not just the interests of the unemployed. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964). To that end, the Board is obligated to preserve the fund against the claims of those not intended to share in its benefits. Schock v. Bd. of Review, 89 N.J. Super. 118, 125 (App. Div. 1965), aff'd, 48 N.J. 121 (1966).

N.J.S.A. 43:21-16(d)(1) provides:

When it is determined by a representative or representatives designated by the Director of the Division of Unemployment and Temporary Disability Insurance of the Department of Labor and Workforce Development of the State of New Jersey that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter . . . while any conditions for the receipt of benefits imposed by this chapter . . . were not fulfilled in his case, or while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person, unless the director (with the concurrence of the controller) directs otherwise by regulation, shall be liable to repay those benefits in full.

In Malady v. Board of Review, 76 N.J. 527, 531 (1978), the Supreme Court affirmed the requirement that a claimant who has received improperly disbursed unemployment benefits turn over "a sum equal to the amount so received by him." Here, Green received benefits that he was not entitled to receive; as such, under N.J.S.A. 43:21-16(d)(1), he is liable for a refund of $12,052 for the weeks ending March 20, 2004, through September 11, 2004, and $4,900 for the weeks ending January 1, 2005, and April 16, 2005, through June 11, 2005. Indeed, the public interest would not be served if the Unemployment Trust Fund was "depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). It matters not, therefore, whether Green actually intended to defraud the Division -- which he vigorously denies -- as "N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Ibid.

Moreover, those individuals who make false statements or representations, knowing them to be false, for the purpose of obtaining unemployment benefits, are subject to a fine of up to twenty-five percent of the amount fraudulently acquired. Orzel v. Bd. of Review, 386 N.J. Super. 338, 341 (App. Div. 2006). In reversing a $2,230 fine, the court in Orzel cautioned that there must be evidence of falsity. Ibid. In this case, while filing his unemployment claim over the phone, claimant answered that he was not employed during the weeks in question. In addition, Green endorsed multiple benefit checks which specifically indicated that by signing the check he was certifying that he had reported all his earnings and met all other eligibility requirements in accordance with New Jersey law, and that he understood that the law provided penalties for false statements made in connection with his claim.

Rather than dispute these allegations, Green claims a Division representative instructed him that he did not have to report the earnings he received from his part-time jobs. Yet there was insufficient evidence before the Appeal Tribunal to sustain this assertion, as claimant is unable to identify the agent who spoke with him or produce a record of their conversation. Therefore, Green cannot rebut the strong evidentiary basis which supports a finding that he purposely failed to report his income accurately. Id. at 342. As such, he is liable for the imposition of fines, N.J.S.A. 43:21-16(a), and disqualification from receiving unemployment benefits for a period of one year, N.J.S.A. 43:21-5(g).

As an appellate tribunal, our scope of review of final decisions of administrative agencies is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Once we determine that the record contains substantial credible evidence to support the findings of fact and that the agency has properly applied the governing law to those facts, we must affirm. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 391 (1983); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

Having reviewed the administrative record, we are satisfied that there was sufficient evidence before the Board to uphold the finding that Green knowingly made false statements to the Division for the purpose of obtaining unemployment benefits. The conclusions of the Board were not arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Brady, supra, 152 N.J. at 210.

 
Affirmed.

(continued)

(continued)

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A-3773-07T2

July 20, 2009