Eric A. Odegard, Relator, vs. Department of Employment and Economic Development, Respondent.

Eric A. Odegard, Relator, vs. Department of Employment and Economic Development, Respondent. A04-2168, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2168

 

Eric A. Odegard,

Relator,

 

vs.

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed September 6, 2005

Affirmed Willis, Judge

 

Department of Employment and Economic Development

File Nos. 8353 04 & 8354 04

 

Eric A. Odegard, Hennepin County Work Release, 1345 Shenandoah Lane, Plymouth, MN  55447-3292 (pro se relator)

 

Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Forsberg, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

By writ of certiorari, relator challenges the senior unemployment-review judge's decision that relator obtained unemployment benefits through fraud.  Because the evidence reasonably supports the senior unemployment-review judge's findings, we affirm.

FACTS

On November 17, 2002, an unemployment-benefit account previously established by relator Eric Odegard was reactivated.[1]  Odegard was in jail at the time of the reactivation and was, therefore, unavailable for work.  Odegard was paid unemployment benefits from November 30, 2002, through August 9, 2003; during this time he was continuously incarcerated in various correctional facilities in Minnesota. 

            Odegard's wife and his former roommate both stated in interviews and in affidavits that Odegard instructed them to submit check stubs to the Minnesota Department of Employment and Economic Development (DEED) to show that he had sufficient earnings in new, covered employment to clear the previous disqualification.  Odegard's former roommate faxed this information to DEED on November 22, 2002.  Odegard denies making such a request. 

            Biweekly requests for unemployment benefits for the weeks ending November 23, 2002, through May 24, 2003, were filed through TELECLAIM[2] using Odegard's social-security number and personal-identification number.  On May 25, 2003, an unemployment-benefit account was established for Odegard under the Federal Temporary Extended Unemployment Compensation (TEUC) program.  Again, biweekly claims were filed through TELECLAIM, using Odegard's social-security number and personal-identification number for the weeks ending May 31, 2003, through August 9, 2003.  Although Odegard was not available to work because he was incarcerated, each time a claim was made, the caller would answer "yes" using a touch-tone phone to the question "Were you available for work?"

            Odegard was paid $9,010 in unemployment benefits for the weeks ending November 30, 2002, through May 24, 2003.  He was paid $3,850 in TEUC benefits for the weeks ending May 31, 2003, through August 9, 2003.  Odegard did not personally cash any of these checks; his wife cashed most of the checks by endorsing them with Odegard's name.

            The senior unemployment-review judge (SURJ) found that Odegard was aware that other individuals were calling TELECLAIM and using his social-security number and personal-identification number to continue to request unemployment benefits.  Odegard disputes this finding, but the SURJ specifically noted that

Odegard's testimony that he was not aware others were using his Social Security Number and Personal Identification Number to file continued biweekly requests for benefits and that he attempted to notify the Carver County Sheriff Department and the Department of Employment and Economic Development in April 2003 that others may be improperly using those numbers to request benefits through TELECLAIM, is not believable.

 

            On April 28, 2004, DEED mailed determinations of overpayment to Odegard regarding the unemployment benefits and the TEUC benefits.  DEED determined that Odegard failed to properly report his employment or earnings, or both, as required by law.  DEED requested Odegard to repay the $9,010 of paid unemployment benefits, plus a penalty of $2,252 for intentionally giving DEED false information to obtain benefits.  DEED also requested Odegard to repay the $3,850 in paid TEUC benefits, in addition to a $962 penalty.

            By two separate decisions, an unemployment-law judge determined that Odegard fraudulently obtained unemployment benefits and TEUC benefits.  On October 5, 2004, a SURJ independently reviewed these cases and concluded that Odegard obtained unemployment benefits and TEUC benefits by fraud and ordered that Odegard repay the overpayments, in addition to the penalties.  Odegard filed a single petition for writ of certiorari seeking review of both of the SURJ's decisions.

D E C I S I O N

On appeal, this court reviews the decision of the SURJ and accords it "particular deference."[3]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The SURJ's factual findings are reviewed in the light most favorable to his or her findings and will not be disturbed "as long as there is evidence that reasonably tends to sustain those findings."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  "When the parties have presented conflicting evidence on the record, this court must defer to the [SURJ's] ability to weigh the evidence; we may not weigh that evidence on review."  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  But this court reviews questions of law independently.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An applicant for unemployment benefits "who receives unemployment benefits by knowingly misrepresenting, misstating, or failing to disclose any material fact, or who makes a false statement or representation without a good faith belief as to the correctness of the statement or representation, has committed fraud."  Minn. Stat. § 268.18, subd. 2(a) (2004).  Whether an applicant "knowingly and willfully misrepresented or misstated material facts to obtain benefits involves the credibility of the [applicant's] testimony" and "lies within the province of" the senior unemployment-review judge.  Burnevik v. Dep't of Econ. Sec., 367 N.W.2d 681, 683 (Minn. App. 1985).

            Here, the SURJ determined that "[a]ll of Odegard's unemployment benefits were overpaid because they were obtained through knowing[] and willful[] misrepresentation, misstatement and failure to disclose a material fact."  Odegard argues that he had no knowledge that others were requesting or obtaining unemployment benefits on his behalf, but the SURJ specifically found that Odegard's testimony on this point was not credible.

According to the statute, an applicant receives overpayments of unemployment benefits by fraud when the applicant receives such benefits "by knowingly misrepresenting, misstating, or failing to disclose any material fact" or by making "a false statement or representation without a good faith belief as to the correctness of the statement."  Minn. Stat. § 268.18, subd. 2(a).  Here, Odegard did not make the phone calls requesting unemployment benefits.  But both Odegard's wife and his former roommate stated that Odegard told them to reactivate his unemployment-benefits account and that he provided his social-security number and his personal-identification number.  Odegard also sent his wife a letter asking, "Did you get the unemployment?"  He sent her another letter asking for "a decent amount" of money and reminding her that the money was his, too.  Further, in their affidavits and interviews, both Odegard's wife and former roommate stated that Odegard knew that they were using his social-security number and personal-identification number to obtain unemployment benefits.  We conclude that the evidence reasonably supports the SURJ's determination that Odegard knew that others were using his social-security number and personal-identification number to obtain unemployment benefits under his name. 

Odegard also argues that he did not "receive any funds from this fraudulent activity" and therefore cannot be found to have committed fraud because the statute refers to fraud by an "applicant who receives unemployment benefits."  Minn. Stat. § 268.18, subd. 2(a).  The SURJ found that Odegard was paid unemployment benefits to which he was not entitled.  While Odegard may not have personally received the proceeds, the unemployment-benefit checks were written to him.  His wife stated that Odegard directed her to use the funds to pay some of their bills, including the phone bill Odegard incurred by calling her collect from jail.  Because Odegard provided others with the information necessary to fraudulently obtain unemployment benefits from his account, knew that they were receiving unemployment checks payable to him, and at least indirectly benefited from the proceeds of the checks, we conclude that Odegard received unemployment benefits within the meaning of the statute.  Further, under Minnesota law, persons who combine to accomplish an unlawful purpose and who commit a civil wrong or tort are vicariously liable for the acts committed by their co-conspirators.  Harding v. Ohio Cas. Ins. Co., 230 Minn. 327, 337-38, 41 N.W.2d 818, 824-25 (1950).  We believe that this principle is applicable here, and we conclude that, based on the evidence, Odegard is liable for fraud under section 268.18, subdivision 2(a).

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Odegard had been disqualified from receiving unemployment benefits in August 2002 because he voluntarily quit his employment.

[2] TELECLAIM is an information and payment system that includes an automated application that processes continued biweekly requests for unemployment benefits filed by applicants through a touch-tone telephone.  Applicants must enter their social-security numbers and private personal-identification numbers and must answer questions regarding the time period in question. 

[3] The legislature recently substituted the term "senior unemployment review judge" for "representative of the commissioner."  See 2004 Minn. Laws ch. 183, § 71, at 304.