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Charles v. Butler

Court of Appeals of Georgia, Second Division

March 19, 2015

CHARLES
v.
BUTLER et al

Unemployment compensation. Fulton Superior Court. Before Judge Campbell.

Margaret L. Kinnear, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Senior Assistant Attorney General, for appellee.

OPINION

Page 44

Andrews, Presiding Judge.

In this discretionary appeal, Carey R. Charles appeals from an order entered by the Superior Court of Fulton County affirming the final administrative decision of the Board of Review (" Board" ) of the Department of Labor (" Department" ). The Board affirmed an administrative hearing officer's decision that, among other things, found that Charles had underreported his income from a part-time job in 2009 while receiving unemployment benefits and, except with respect to one week, allowed the Department to continue to invoke fraud penalties against Charles upon remand to the benefit control unit. Charles argues on appeal that the superior court erred in affirming the Board's decision because the Department failed to prove fraud at the hearing before the hearing officer and the hearing officer relied on inadmissible hearsay. He further argues that the trial court erred in failing to strike the supplemental record filed by the Department. We agree that the Department failed to prove fraud within the meaning of OCGA § 34-8-255, and we therefore reverse and remand.

Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by " any evidence" and to examine the soundness of the conclusions of law that are based upon the findings of fact. When this Court reviews a superior court's order in an administrative proceeding, our duty is not to review whether the record supports the superior court's decision but whether the record supports the final decision of the administrative agency.

(Citation and punctuation omitted.) Robinson v. Thurmond, 309 Ga.App. 883, 884 (711 S.E.2d 430) (2011).

[331 Ga.App. 337] The record shows that Charles was receiving unemployment benefits when he started working part-time for the YMCA of Metropolitan Atlanta (" YMCA" ) in May 2009. In or around October 2010, the Department initiated an audit of Charles's 2009 earnings by sending the YMCA a form that it was to complete showing Charles's weekly earnings from the week ending July 4, 2009 through

Page 45

the week ending December 26, 2009. In April 2011, the Department sent Charles a request for information about his reported income for the time period in question, and Charles responded on April 7, 2011. On October 10, 2012, the Department sent Charles a notice stating that he had " knowingly and willfully failed to report and/or incorrectly reported [his] earnings" for 23 weeks from July through December 2009 and that the " total amount overpaid is $7,062.00." The next day, the Department sent two additional notices to Charles stating that because of his " ineligibility" for unemployment benefits described in the October 10, 2012 notice, he also must repay the Federal Additional Compensation (" FAC" ) he received for the relevant time period.

Charles appealed from the Department's three notices, and following a hearing before an administrative hearing officer, the hearing officer issued a decision affirming the overpayment set forth in the October 10, 2012 notice. Charles then appealed the hearing officer's decision to the Board. Finding merit in Charles's arguments that his due process rights were not properly observed in the hearing and that the hearing officer erred in failing to address the October 11, 2012 notices and did not state whether the fraud penalties were properly applied, the Board remanded the case for a de novo hearing.

A de novo hearing took place before a new hearing officer on February 25, 2013. Although the YMCA received notice of the hearing, no representative from the YMCA attended the hearing. A number of documents were entered into evidence at the beginning of the hearing, including the wage audit completed by the YMCA, which was allowed into evidence over the hearsay objection of Charles's counsel for the limited purpose of showing what the Department used to " build the overpayment."

Jermine Woolery, Supervisor, Benefit Payment Control for the Department, testified that based on the audit completed by the YMCA, the Department determined that Charles underreported his earnings from July 4, 2009 through December 26, 2009. She stated that the underreporting also created an overpayment with respect to Charles's FAC payments.[1] The Department concluded that by underreporting his earnings when he certified for benefits, Charles made [331 Ga.App. 338] misrepresentations of fact to obtain higher benefit payments. Woolery testified that the handbook provided to applicants for unemployment benefits states that claimants must report gross earnings when they certify for benefits. She maintained that the handbook is given out to all applicants and that applicants are required to sign a form acknowledging receipt. Woolery admitted, however, that the Department did not have any proof that Charles received the handbook. She tried to locate Charles's acknowledgment of receiving a handbook but was not able to do so. Woolery admitted that Charles's online certifications for benefits, which were admitted into evidence, showed that he had reported some earnings for the weeks ending December 12, 19, and 26, 2009 but that the Department's database used to calculate overpayments did not reflect those reported earnings. She further admitted ...


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