DIANE P. STINNEY v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIANE P. STINNEY,

Appellant,

v.

BOARD OF REVIEW and

TOWNSHIP OF PEMBERTON,

Respondents.

__________________________________________

June 24, 2015

Before Judges Reisner and Currier.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 344,107.

Daryl W. Winston, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Township of Pemberton has not filed a brief.

PER CURIAM

Claimant Diane P. Stinney appeals from the January 31, 2014 decision of the Board of Review (Board) finding her responsible for the repayment of $26,320 and additional penalties. After reviewing the record in light of the contentions advanced on appeal, we affirm.

After Stinney was laid off from her full-time employment in July 2008, she applied for unemployment benefits. At the time, she was also an elected member of the Pemberton Township Council (Township) which position paid her $6,200 a year. After receiving benefits for several weeks, Stinney was interviewed by a claims examiner from the Department of Labor. During that recorded conversation, claimant provided information regarding both her former job and her council position. In response, claimant was advised that she needed to report the Township earnings each time she checked with unemployment to confirm that she continued to qualify for benefits.

Over the next year, claimant continued to receive benefits but never reported the Township income. In July 2011, the Director of the Division of Unemployment Insurance found claimant liable for a refund of benefits under N.J.S.A. 43:21-16(d)(1) because she had failed to report her earnings from the Township. She was assessed an additional fine and was disqualified for future benefits for one year. The total amount of monies owed was $32,900.

Claimant appealed the Director s determination to the Appeal Tribunal which held a hearing on May 2, 2012. Stinney argued that she was not "employed" by the Township in accordance with N.J.S.A. 43:21-19(i)(1)(D)(iii)(aa) and therefore was not required to report that income. The Appeal Tribunal affirmed the Director s decision, noting that claimant had been advised to report the Township income and had failed to do so. The appeals examiner further stated that the purpose of the statute relied upon by claimant is to determine if that type of employment can be used to establish a valid claim for benefits. It does not excuse claimant from reporting the salary received from that position. He concluded: "The evidence therefore indicates that the claimant knowingly made false statements to receive benefits for the weeks in question. The receipt of these benefits is considered to be as a result of false or fraudulent representation."

Claimant appealed to the Board claiming for the first time in an affidavit that she had spoken to two unidentified "compensation agents" who had informed her that she did not need to report her "nominal stipend from the Township of Pemberton." Based on this information, the Board remanded the matter to the Appeal Tribunal for additional testimony from claimant regarding these assertions. The Appeal Tribunal held that telephonic hearing on October 16, 2012 and thereafter affirmed the substance of the prior decision by letter mailed October 17, 2012.1 The appeals examiner stated: "The claimant has failed to demonstrate that the Opinion as expressed in the decision mailed on 5/10/12 is incorrect, that Opinion is adapted [sic] in its entirety herein. The evidence of the fact finding interview record indicates that the claimant knew to report her earnings but did not."

Stinney appealed, and on January 8, 2013, the Board affirmed the decision of the Appeal Tribunal. The Board agreed that the claimant s employment as a council member was considered exempt employment under N.J.S.A. 43:21-19(i)(1)(D)(iii)(aa), however the monies paid to claimant for those services were considered remuneration under N.J.S.A. 43:21-19(p) and must be reported. The Board concluded that: "[T]he claimant s failure to report these wages for forty-seven consecutive weeks after she was instructed to do so by a Division representative is considered fraud . . . ."

The Board found claimant liable for the return of $26,320 of received benefits and affirmed the previously assessed fine and year of disqualification for benefits. This appeal followed.

Our review here is limited. A final decision of an administrative body such as the Board of Review should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n., 98 N.J. 458, 468 (1985). The findings of the administrative body should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise . . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

During the first telephone interview, claimant was made aware that she had to report the earnings each week when she renewed her benefits application. She was given specific instructions on how to do it and what amount of monies to claim. She was provided an explanation that the Township earnings were considered income and therefore required to be reported. The initial examiner even corrected the check amounts for the first few weeks of benefits to reflect the earnings from her council position. We find that a review of the transcript from that telephone interview reveals no less than six times that the issue of reporting the Township income is discussed. Claimant was well aware at the time she hung up the phone after her first conversation with an examiner that she had to report the income and how to do so. She thereafter deliberately chose not to for her own reasons. In the later interviews, when asked about her understanding of that first conversation, she was evasive and non-responsive.

Claimant continues to assert on appeal that she did not have to claim the Township income as she was exempt from doing so under N.J.S.A. 43:21-19(i)(1)(D)(iii)(aa). She continues to be mistaken. As was set forth in the May 10, 2012 Appeal Tribunal decision, pursuant to the above statute, claimant would not be entitled to make a claim for unemployment benefits if her claim was solely based on her elected official position. That income would not be a basis to establish a valid claim for benefits. But claimant based her claim for unemployment benefits on the loss of her full-time primary job. So the statute she relies on is inapplicable. N.J.S.A.43:21-19(i)(1)(D)(iii)(aa) does not relieve claimant of the obligation to report the earnings to the Division.

An unemployed individual claiming benefits is entitled to receive "[her] weekly benefit rate less any remuneration . . . in excess of 20% of [her] weekly benefit rate . . . ." N.J.S.A.43:21-3(b). "Remuneration . . . is all compensation for personal services, including commission and bonuses and the cash value of all compensation in any medium other than cash." N.J.S.A.43:21-19(p). The "statutory provisions and regulations . . . make it clear that an unemployed individual is eligible to receive benefits for any week only if he has satisfied the reporting requirementsprescribed by the Division, one of which is that he accurately report all wages earned during the period involved." Malady v. Bd. of Review, 159 N.J. Super.530, 532 (App. Div. 1977), rev'd on other grounds, 76 N.J.527 (1978).

All monies received as compensation for personal services, which includes the services rendered to the Township for which claimant is paid, is considered remuneration under N.J.S.A. 43:21-19(p) and therefore is required to be reported to the Division. Claimant was advised of this in her very first interview in July 2008 and accepted the checks thereafter for several weeks deducting some money as a result of the reported Township income. Thereafter, she chose to not report the income.

Once the Division has determined that a false or fraudulent representation has been made, the penalties are harsh. N.J.S.A. 43:21-16(d)(1) provides that when a person has not disclosed or has misrepresented a material fact she is liable to repay any benefits received in full. N.J.S.A. 43:21-16(a) sets the additional fine to be imposed and N.J.S.A. 43:21-5(g)(1) requires the disqualification of any further benefits for a one year period.

As to claimant s argument that the appeals examiner should have recused himself, we find no basis in the record to support that contention. R. 2:11-3(e)(1)(E).

Affirmed.

1 The refund amount was modified to $26,320. The fine of $6,580 and year of disqualification were affirmed.