The opinion
M. MICHAEL KINARD, Judge, dissenting.
bl write not to expand or limit the well-reasoned dissent of my colleague, Judge Marshall, with whom I agree both in content and conclusion. I too would reverse the Department of Workforce Services, the Arkansas Appeal Tribunal, and the Arkansas Board of Review in their determination that unemployment benefits are applicable in this case. That conclusion compels me to respectfully dissent from the majority, and I would reverse the grant of unemployment compensation based on what I view as a contravention of the stated policy of the Arkansas Employment Security Law (Act 155 of 1937), which specifies that the public policy stated in the preamble of the Act is to be used as a guide to the interpretation and application of the employment security statute.
Section (3) of the preamble in its amended form states that the General Assembly declares that in its considered judgment the public good and general welfare of the citizens of Arkansas require the enactment of such law “for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.” 1 (Emphasis added.) This emphasizes language absent in the 1941 Act that was added back in the law by the General Assembly in Act 155 of 1949. The language of Act 391 |sof 1941 did not contain the qualifying language “through no fault of their own.” The insertion of that qualification in the 1949 Act clearly expressed the intent of the General Assembly to exclude from receiving unemployment compensation persons who meet the criteria of Arkansas Code Annotated section 11-10-509(a)(1) and (2), to wit teachers in the public schools of this state. As codified in Arkansas Code Annotated section 11 — 10— 102(3), this preamble, as amended, becomes the statement of policy, which must be considered when interpreting the Arkansas Employment Security Law. Little Rock Furniture Mfg. Co. v. Comm’r of Labor, 227 Ark. 288 , 298 S.W.2d 56 (1957).
In the instant case the claimant was hired by appellant in August 2006, taught in the Helena-West Helena School District during the 2007-08 school year, and signed an agreement to work as a substitute teacher at Helena-West Helena School District during the 2008-09 school year. The claimant testified that she intended to return to the school during 2008-09. Thus, the employment gap experienced by the claimant was anticipated by all parties consistent with the normal summer break experienced by regular contract teachers.
The interpretation of the employment agreement between SubTeaehUSA, Helena-West Helena School District, and the claimant by the Board of Review and the majority and their interpretation of Arkansas Code Annotated section 11-10-509 provides unemployment benefits for outsourced substitute teachers, a benefit the General Assembly has clearly denied regular contract substitute teachers. Because I do not believe the parties in this case — or the General Assembly — intended that result, I agree with Judge Marshall that we should reverse the Board of Review.
MARSHALL, J., joins in this dissent.
. Arkansas’s original recognition of the right to unemployment compensation was by Act 155 of 1937, which included a declaration of state public policy for the "setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own." (Emphasis added.) The General Assembly addressed the subject more broadly in Act 391 of 1941, which is generally cited as the "Arkansas Employment Security Law.” Although the Declaration of Public Policy section left out the "through no fault of their, own" language, this omission was corrected by the General Assembly in Act 155 of 1949 when the “no fault” language was reinstated.
When the General Assembly passed Act 35 of 1971 excepting certain employees of institutions of higher education, and when it passed Act 922 of 1979 to provide an exception from benefits for certain "educational institution” employees performing service in "an instructional, research, or principal administrative capacity,” it did not alter the 1949 Declaration of Public Policy. Therefore, the "no fault of their own” language remains. It is now codified at Ark.Code Ann. § 11 — 10— 102(3) (Repl.2002).