The opinion
KISTLER, J.,
concurring.
The Employment Appeals Board (board) ruled that, before the Employment Department (department) may require a claimant to repay benefits, it must issue two decisions — one decision finding that the claimant has made a misrepresentation that resulted in an overpayment and, after that decision has become final, a second decision ordering the claimant to repay the benefits that he or she wrongfully obtained. I agree with the majority that ORS 657.310 requires only one decision. I write separately because, in my view, the statute is unambiguous.
ORS 657.310(1) provides that any person who either makes a false statement or fails to disclose a material fact shall “be liable to repay” the amount of any overpayment if the decision finding such misrepresentation or nondisclosure has become final. ORS 657.310(2) provides that no decision “shall be construed to authorize the recovery” of any benefits paid to a claimant unless the decision specifies that the claimant is liable because of a misrepresentation or nondisclosure, the nature of the misstatement or omission, the number of weeks for which the claimant wrongfully received benefits, and not “until such decision has become final.”
Based solely on the text, I would hold that ORS 657.310 does not require the department to issue a second decision before seeking to recover an overpayment. Rather, ORS 657.310(1) identifies the substantive conditions that must be found before liability attaches, and ORS 657.310(2) sets out certain information that the decision must contain in order to put a claimant on notice that he or she will be liable *440 to repay benefits if the department’s decision is not reversed. Each subsection complements the other. Both provide that a claimant is not liable to repay (and correspondingly that the department may not seek to recover) any benefits until the decision becomes final. The statute refers to one decision, not two. In my view, the text of the statute unambiguously permits the department to recover benefits once a single decision finding a claimant liable for an overpayment due to a misrepresentation or material nondisclosure becomes final.