Palmer v. Department of Workforce Services

----ooOoo----

Lawrence A. Palmer,
Petitioner,

v.

Department of Workforce Services,
Workforce Appeals Board,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990084-CA

F I L E D
September 30, 1999
  1999 UT App 277 -----

Original Proceeding in this Court

Attorneys:
Lawrence Palmer, Orem, Petitioner Pro Se
Suzan Pixton, Salt Lake City, for Respondent -----

Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Petitioner Lawrence Palmer seeks judicial review of a decision of the Workforce Appeals Board denying him unemployment benefits on the basis that he is self-employed and not unemployed.

Utah Code Ann. § 35A-4-207(1)(b) (1997) delegates to the Department of Employment Security the responsibility to adopt rules to determine what constitutes unemployment. This constitutes an explicit grant of discretion to the agency. See Robinson v. Department of Employment Security, 827 P.2d 250, 252 (Utah Ct. App. 1992). Accordingly, we defer to the agency and we will not overturn its conclusions unless we determine that it has abused that discretion. Id. The Board concluded that although Palmer was working less than full-time at self-employment activities, he had limited his time as a matter of his own choice. Thus, the fact that he was working less than full-time in terms of his hours and earning less than his weekly benefit amount in this activity was not evidence that he was unemployed within the meaning of Utah Code Admin. P. R994-207-102. The Board instead concluded that the lack of effort in pursuing either the self-employment opportunity or full-time employment in his former field was disqualifying.

Given the deference that must be accorded to the Board's conclusions, we affirm the decision.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Gregory K. Orme, Judge