# Teegarden v. DIRECTORY, ARK. EMPLOYMENT SEC. > Court of Appeals of Arkansas · January 9, 1980 · 267 Ark. 893 URL: https://www.frixlaw.com/law-library/cases/9684023 ## Case - **Full name:** Alma TEEGARDEN v. DIRECTOR, Arkansas Employment Security Division - **Court:** Court of Appeals of Arkansas - **Decided:** January 9, 1980 - **Citations:** 267 Ark. 893; 591 S.W.2d 675 - **Precedential status:** Published - **Opinion:** Dissent by Newbern - **Judges:** Pilkinton, Newbern - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684023 ## Opinion text David Newbern, Judge, dissenting. The appellant was denied unemployment compensation by her local unemployment compensation division (ESD) agency because she was found to be ‘ ‘not unemployed’ ’ within the meaning of § 4 (c) of the Unemployment Compensation Act. Ark. Stat. Ann., 81-1105 (c) (Repl. 1976). She appealed that determination to the administrative appeals tribunal, and the notice to her of the appeal hearing was a printed ESD form which said, “[t]he primary issue involved is:” followed by a space in which was typed, in letters somewhat larger than the printing, “To determine if claimant is unemployed within the meaning of Section 4 (c) of the Arkansas Employment Security Law.” The printed matter resumed at the bottom of the page, approximately one half inch below the typewritten insert: “You are notified that the hearing may involve any question having a bearing on the claimant’s right to benefits up to the time of the hearing.” At the hearing some questions were asked the appellant by the appeals tribunal referee with respect to her efforts to obtain work during the period she alleged she was unemployed. The referee was the sole determiner of fact and law, there being no other members of the “tribunal.” Without telling the appellant the reason he was asking about the appellant’s efforts to obtain employment or otherwise indicating he was considering a question of the adequacy of her efforts, the referee concluded she was unemployed but had not tried hard enough to find work. The decision of the agency denying compensation was thus effectively affirmed but on a basis entirely different from that invoked by the agency, and with utter lack of meaningful opportunity for the appellant to prepare to defend her claim on that basis. The appellant thereafter appealed further to the board of review. She sent a handwritten list of places she had sought employment which ended, “and I’ve called other places.” On another printed, or otherwise mechanically reproduced, forth the board of review simply affirmed the appeals tribunal. No mention was made in the board’s decision or opinion of the appellant’s handwritten submission partially listing places she had sought employment. Nor was any mention made of the switch of bases for denial by the appeal tribunal. We have no idea whether these matters were considered by the board which affirmed with a mechanical reference to “the written record and the previous testimony.” This appellant has suffered a flagrant denial of fundamental fairness in the assessment of her claim. The majority relies heavily on the “fine print” in the notice to her. Even had the notice to her not directed her most specifically to the issue whether or not she. was “unemployed” within the meaning of the act, the notice would have been too vague and too broad. 1 Davis, Administrative Law Treatise, § 805, p. 530 (1958). Cf., Anderson v. Industrial Commission, 29 Colo. App. 263 , 482 P. 2d 403 (1971). See also, Lee v. Brown, 148 So. 2d 321 (La. App. 1963). Administrative due process requires either proper notice of the issues to be heard or a basis to find an intelligent waiver. Lewis v. Hot Shoppes & Fla. Industrial Commission, 211 So. 2d 20 (Fla. App. 1968). The Supreme Court of Vermont dealt with this question in Kaufman v. Department of Employment Security, 136 Vt. 72 , 385 A. 2d 1080 (1978). The claimant had filed for compensation and was refused by a claims examiner and the appeals referee on the ground she had been discharged for misconduct. This was the reason cited by the referee in his notice to the claimant. Subsequently, the claimant appealed to the board of review which determined she had not been discharged for misconduct but rather she left her job voluntarily and without good cause. In reversing the board, the court said: The hearing before the Board could encompass only the issues framed by the pleadings. The correctness of the claims examiner’s and the appeals referee’s findings that appellant had been discharged for misconduct was the only issue submitted to the Board for its determination. When the board departed from this issue and concluded that appellant’s employment was terminated by voluntary quit without giving notice to the appellant that such a conclusion was being considered, it deprived appellant of the opportunity to make a countervailing argument. This was a denial of a fair hearing. [ 385 A. 2d at 1082 ] Even cases which tend to deemphasize the notice requirement say the entire proceeding must be evaluated from the point of view of fairness to the claimant. Kartsonis v. District Unemployment Compensation Board, 289 A. 2d 370 (D.C. 1971). If the appellant before us was entitled to rely on the specific disqualification found by the agency and stated in the notice to her, the change of issues was unfair. If she was not so entitled, the notice was too broad. Either standard would require reversal in this case. The majority also emphasizes the partial listing of places to which the appellant had applied for employment. They say this makes error, if any, harmless. We must bear in mind that this appellant, as most others, appeared at the hearing and throughout her quest until she came before the court, without counsel. She needed and was entitled to the assistance of the appeals referee to draw from her a complete presentation of her case. Instead, she received an inquiry with respect to an issue she had little if any reason to expect and a decision of her case outside her presence. Her handwritten missive to the form-prone board of review was a lame substitute for an open inquiry into her overall entitlement to compensation. I intend this dissenting opinion to apply in several cases other than this one in which I will make reference to it. I chose this case to express my dissatisfaction with these Arkansas ESD practices because it probably is the one case, among several currently before us, which is least objectionable, so the remarks here should apply at Jeast with equal strength in the cases in which I incorporate them by reference. It is apparently easy for an administrative agency to slip, unintentionally, into a high-handed and complicated procedure in administering the “governmental largess.” Over ten years ago, Charles Reich made the point, with some erudition, that we must treat this form of wealth distribution as affecting and effecting property rights. Reich, The New Property, 73 Yale L. J. 733 (1964). We are hearing ESD appeals mostly in cases where citizens can afford to appeal pro se only. Lest the citizenry lose faith in the substance of the system and the procedures we use to administer it, we can ill afford to confront them with a government dominated by forms and mysterious rituals and then tell them they lose because they did not know how to play the game or should not have taken us at our word. In 1937 Chief Justice Charles Evans Hughes said: The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play. [Morgan v. United States, 304 U.S. 1 , 58 S. Ct. 999 (1937)] Forty two years would seem enough to have learned this small lesson. This case should be remanded to the board for a further hearing with proper notice to the appellant of the questions to be considered. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684023. Public record. Not legal advice.