BOARD OF APPEALS
|DECISION NO: 1555-BH-82
DATE: October 22, 19982
|CLAIMANT: Samuel J. Began
|| APPEAL NO.: OP-83
|EMPLOYER: OCS, Home Remodlers
||L.O. NO: 13
Issue: Whether the Claimant has made a false statement or representation,
knowing it to be false, or has knowingly failed to disclose
a material fact to obtain or increase any benefit or other
payment within the meaning of Section 17(e) of the Law;
whether the Claimant was unemployed within the meaning
of Section 20(1) of the Law; and whether a previous overpayment
of unemployment insurance benefits is recoverable from
current compensable claims under provisions of Section 17(d) of the Law.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH
THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON
OR THROUGH AN ATTORNEY IN THE SUPERIOR COURT OF BALTIMORE
CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.
THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT November
|For the Claimant:
Samuel J. Began - Claimant
Joseph Mahoney - Attorney At Law
|For the Employer:
John Zen - Legal Counsel
The Board of Appeals has considered all of the evidence presented,
including the testimony offered at the hearings. The Board
has also considered all of the documentary evidence introduced
in this case, as well as the Employment Security Administration's
documents in the appeal file.
In determining the value of the Claimant's interest in OCS as a going
concern, the Board has considered whether it is reasonable
to infer that, since the Claimant's services were valued
at $150.00 a week after August 1980, his similar services
were worth that much at the time he was filing unemployment
insurance claims. Although the question in this case is
not how much the Claimant's services were worth but how
much he was remunerated, it could possibly be assumed
that the remuneration is roughly equal to the worth of
the services. In the absence of any evidence on the worth
of the remuneration, however, the Board declines to make
this assumption, since to do so would be to make findings
of fact based more upon conjecture than upon actual evidence.
FINDINGS OF FACT
The Claimant filed a claim for unemployment insurance benefits and
collected twenty-six weeks of benefits between the weeks
ending January 19, 1980 and July 12, 1980. The Claimant's
weekly benefit amount (including allowances for dependents) was $106.00.
Simultaneously with the collection of benefits, the Claimant was performing
some services on behalf of OCS Remodlers, a small business
of which he later became secretary, then president. These
services was performed sporadically.
Shortly after his unemployment insurance claims were exhausted, the
Claimant went on the payroll of OCS Remodlers at a pay
rate of $150.00 per week. This payment was for substantially
increased services which were then being performed by
the Claimant. Shortly after that, the other major principal
of the corporation retired and the Claimant became president of the company.
The Claimant received no wages from OCS during the period in which
unemployment claims were filed. No other remuneration was proven.
CONCLUSIONS OF LAW
Since the Claimant was not asked during the relevant period whether
or not he was a corporate officer, and since the mere
fact that one is a corporate officer does not automatically
disqualify a person from receiving benefits, Gleason v
Gleason, 1033- BH-81, the Board does not find a violation
of Section 17( e) by the Claimant in the fact that he
did not reveal his corporate officer status.
The performance of services by the Claimant for the corporation is another
matter. Although the performance of incidental services
without pay does not disqualify a person from the receipt
of benefits, Yetta Baker, 1034-BH-81, the performance
of services for wages does. The term wages means not only
regular wages, but "all remuneration for personal services,"
as Section 20(n) of the Law makes clear.
In this case, no proof was presented that the Claimant did receive remuneration
in return for his full-time personal services for the
corporation. Remuneration may be an interest in a going
business concern. The Board has ruled that the receipt
of an interest in a business constitutes wages within
the meaning of Sections 20(1) and 20(n) of the Law. Lynch,
612-SE-81. In this case, however, no proof was presented
that the Claimant received an interest in the company
in return for his services.
Since the Claimant was not receiving remuneration, he was unemployed
within the meaning of Section 20(1) of the Law. Under
Section 17(d) of the Law, he is therefore not overpaid.
for all of the weeks in question.
Whether the Claimant deliberately failed to disclose a material fact
in order to obtain benefits, within the meaning of Section
17(e), is a question of intent. The Board concludes that
there is insufficient evidence in the record of any intent
to defraud the agency and obtain benefits to which he
was not entitled. The Claimant believed that he was entitled
to benefits since he was not receiving wages. Although
there is some evidence that the Claimant deliberately
made a false statement, there is insufficient evidence
of this fact, especially in the light of the fact that
the claim cards themselves are absent from the file. The
Referee decision, therefore, imposing a penalty on the
Claimant under Section 17(e) of the Law, will be reversed.
The Claimant was unemployed between the weeks ending January
19, 1980 and July 12, 1980. He was not disqualified for
benefits under Section 20(1) of the Law during that time.
The Claimant is not overpaid under Section 17(d) of the Law
for the benefits collected during that period, unless
he was disqualified under some other section of the Law.
The Claimant did not make a false representation of a material
fact in order to obtain or increase his amount of benefits
within the meaning of Section 17(e) of the Law.
The decision of the Appeals Referee is reversed.
Thomas W. Keech, Chairman
Hazel A. Warnick, Associate Member
DATE OF HEARING: August 11, 1981
COPIES MAILED TO:
John Zen - Legal Counsel
UNEMPLOYMENT INSURANCE - ELKTON