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10/17/83 TENDOY AREA COUNCIL v. STATE IDAHO

October 17, 1983.

TENDOY AREA COUNCIL, PLAINTIFF-APPELLANT
v.
STATE OF IDAHO, DEPARTMENT OF EMPLOYMENT, DEFENDANT-RESPONDENT



Appeal from the Industrial Commission of the State of Idaho. Chairman L. G. Sirhall. Appeal from a decision of the Industrial Commission holding that the Department of Employment properly billed the appellant, Tendoy Area Council, as a cost-reimbursement employer under I.C. § {Ref}72-1349A{/Ref} for unemployment benefits paid to a former Tendoy employee. Affirmed in part and remanded.

Donaldson, Chief Justice. Shepard, Bakes, Bistline and Huntley, Jr., JJ., concur.

Author: Donaldson

A claim for unemployment benefits was made by a former employee of the Tendoy Area Council, Boy Scouts of America under the Employment Security Law, Title 72, Ch. 13, I.C. During its employment of the claimant from October 10, 1977, to September 1, 1978, Tendoy was a cost-reimbursement employer, I.C. § 72-1349A. The claimant had resigned from Tendoy in order to take employment with a school district in September 1978. The claimant worked for the school district for the entire 1978-79 school year and thereafter filed for unemployment benefits effective June 3, 1979.

The first determination of the claimant's eligibility included the wages earned with the school district during her base period. But because the school district assured the Department of Employment that the claimant would be employed in the next school term, the school district wages by virtue of I.C. § 72-1366(o) were exempt and the Department redetermined the claimant's eligibility based only upon her wages earned with Tendoy during her base period. Tendoy received a notice dated June 22, 1979, that the claimant had filed for unemployment benefits which might result in charges to Tendoy's account as a cost-reimbursement employer. No response was made to this notice by Tendoy. Thereafter during that summer (June-August 1979), the Department paid $504 in unemployment benefits to the claimant. Only Tendoy was billed for the benefits paid. I.C. § 72-1349A. Tendoy pursued its administrative remedies, I.C. § 72-1368, and appeals from the decision of the Industrial Commission that it was properly billed.

Our appellate review of an Industrial Commission decision is limited to reviewing questions of law. E.g., Simmons v. Department of Employment, 99 Idaho 290, 581 P.2d 336 (1978).

The central question presented by this appeal is whether the appellant, Tendoy Area Council, was properly billed under I.C. § 72-1349A for unemployment benefits paid to one of its former employees. By election Tendoy was a cost-reimbursement employer under § 72-1349A. Tendoy does not argue that the claimant was not its former employee or that the claimant's base period for determining benefits did not include employment by Tendoy. Under such circumstances, we have no difficulty in affirming the Industrial Commission's Conclusion that the billing was proper. I.C. § 72-1349A.

In Department of Employment v. St. Alphonsus Hospital, 98 Idaho 283, 561 P.2d 1316 (1977), we interpreted former I.C. § 72-1349(f) (1972 Sess.Laws, ch. 344, § 3 p. 998, 1002-05) (current version at I.C. § 72-1349(f) (1972 Sess.Laws, ch. 344, § 3, bursement employer to repay the employment security fund for erroneous payments to claimants. We also acknowledged a 1976 amendment of the statute, 1976 Idaho Sess.Laws, ch. 207, § 4, p. 754, 758-62, which would require cost-reimbursement employers to repay the fund for payments erroneously or incorrectly paid.

The version of the statute,[Footnote 1] 1978 Idaho Sess.Laws, ch. 112, § 6, p. 232, 239-43 (current

version at I.C. § 72-1349A), applicable here retained this requirement that a cost-reimbursement employer repay the employment security fund for "payments erroneously or incorrectly paid or paid as a result of a determination of eligibility which is subsequently reversed, if said payment or any portion thereof was made as a result of wages earned in the employ of such nonprofit organization." Id. The clear language of the statute just quoted is dispositive of the central issue -- Tendoy is liable under § 72-1349A. See Department of Employment v. St. Alphonsus Hospital, 98 Idaho 283, 285, 561 P.2d 1316, 1318 (1977) (Bakes, J., Dissenting). The burden is clearly upon the appellant to demonstrate the invalidity of I.C. § 72-1349A, which burden the appellant has failed to carry.

Under I.C. § 72-1349A, if benefits were erroneously or incorrectly paid to a claimant, the cost-reimbursement employer would be entitled to credit to his account for any sums recovered by the Department from the benefit claimant. Therefore, it is necessary that we next consider whether the claimant was eligible for benefits.[Footnote 2] The version of I.C. § 72-1366(o)(1) and (2) applicable here provided that:

"(o)(1) With respect to weeks of unemployment beginning after December 31, 1977, benefits based on wages earned for services performed in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two (2) successive academic years, or during a similar period between two (2) whether or not successive terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.

"(2) With respect to weeks of unemployment beginning after December 31, 1977, benefits based on wages earned for services ...


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