ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter came before me upon request by Gary G. Hom ("Petitioner") for a contested case hearing pursuant to the
provisions of S.C. Code Ann. § 12-56-65(C) (Supp. 1999). In Commission Decision Number 98-C-350 dated April 14,
1998, the South Carolina Employment Security Commission ("Respondent") concluded that (1) Petitioner received from
Respondent an overpayment in the total amount of $1,769.00 for unemployment benefits between November 15, 1997, and
January 17, 1998, and (2) Petitioner provided no excusable reason for failing to timely appeal the claims adjudicator's
determination.
After notice, the parties appeared before me on May 8, 2000, for a hearing at the offices of the Administrative Law Judge
Division ("Division") in Columbia, South Carolina.
Upon review of the relevant evidence and applicable law, the Respondent's determination that there was a debt and that the
balance of the debt was still owed is affirmed.
FINDING OF FACTS
After consideration and review of all the evidence and testimony, by a preponderance of the evidence, I make the following
findings of fact:
1. This court has jurisdiction.
2. Notice of the date, time, and place of the hearing before this court was timely given to the parties.
3. Petitioner sought unemployment benefits from Respondent for certain periods of unemployment during the years 1997 and
1998.
4. Between November 15, 1997, and January 17, 1998, Respondent paid Petitioner total unemployment benefits in the
amount of $1,769.00.
5. By letter dated February 5, 1998, Respondent mailed to Petitioner's address of record determinations by its claims
adjudicators indicating that (1) Petitioner was indefinitely disqualified from benefits effective January 11, 1998, (2) Petitioner
was ineligible for benefits for the period November 15, 1997, through January 17, 1998, and (3) Respondent considered the
benefits paid during that period in the amounts of $1,540.00 and $229.00 as overpayments.
6. Petitioner filed an appeal of the adjudicator's determinations with the Appeal Tribunal on February 20, 1998. The
tribunal, in its Appeal Tribunal Decision Number 98-A-1689, dismissed Petitioner's appeal as untimely filed.
7. Respondent, acting as a Board of Review, thereafter reviewed the record and affirmed the decision of the Appeal Tribunal
in its Order dated April 14, 1998.
8. Respondent recovered from Petitioner the sum of $1,184.00 with a balance owed on the overpayment of $585.00.
9. Respondent thereafter sought to collect the balance owed of $585.00 as a setoff of income tax refunds due Petitioner
through the South Carolina Department of Revenue pursuant to the provisions of the Setoff Debt Collection Act.
10. After the setoff action began, Petitioner requested an informal hearing. On December 13, 1999, Ronnie H. Hoover,
Director of Appeals for Respondent, issued a sworn certification that he conducted a hearing and ruled in favor of
Respondent.
11. On December 22, 1999, Respondent received a letter from Petitioner questioning the determination made by Mr.
Hoover. Respondent treated the letter as a request by Petitioner for a review of Mr. Hoover's decision and sent it to the
Division.
12. On May 8, 2000, this court held a contested case hearing. Petitioner was present as well as a representative of
Respondent. Petitioner argued at the hearing that he never owed the $1,769.00 overpayment and that Respondent owes him
the $1,184.00 that Petitioner has already paid.
13. Respondent seeks affirmance of the balance allegedly due on the overpayment in the amount of $585.00.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 41-35-720 (1986) provides that the manner in which appealed claims shall be presented shall be in
accordance with regulations prescribed by Respondent.
3. S.C. Code Ann. § 41-29-130 (1986) provides that regulations may be adopted, amended, or rescinded by Respondent.
Regulations adopted by Respondent which address the payment of unemployment benefits and the time for filing claims are
outlined in 24 S.C. Code Ann. Regs. §§ 47-10 to 47-49 (1992).
4. According to 24 S.C. Code Ann. Regs. §§ 47-51 to 47-57 (1992), an interested party who wants to appeal the
Respondent's decision must file an appeal with the Appeal Tribunal. After a de novo hearing, the Appeal Tribunal shall issue
its decision in writing, setting forth its findings of fact, its decision, and its reasons therefor, with respect to matters or issues
addressed in the notice of appeal. The interested party may appeal the decision of the Appeal Tribunal to Respondent as a
Board of Review within ten days after the date of notification or mailing of the decision of the Appeal Tribunal. See S.C.
Code Ann. §§ 41-35-700, 41-35-710 (1986).
5. Pursuant to 24 S.C. Code Ann. Regs. § 47-57 (1992), an interested party may appeal final decisions of Respondent by
filing a petition, within ten days after the decision of Respondent has become final, with the court of common pleas for the
county in which the employee resides or the county in which he was last employed. See S.C. Code Ann. § 41-35-750
(1986); see also S.C. Code Ann. § 1-23-380 (Supp. 1999).
6. S.C. Code Ann. § 41-35-660 (1986), entitled "Appeals," provides that an interested party, appealing an initial
determination, redetermination, or subsequent determination of Respondent must file an appeal no later than ten days after
the determination was mailed to the party's last known address, or otherwise delivered to the party.
7. Petitioner followed the steps of appealing both to the Appeal Tribunal and to Respondent. The Appeal Tribunal found
that Petitioner, however, did not appeal the initial determination by the claims examiner within ten days. Respondent, as a
Board of Review, affirmed this decision.
9. When Petitioner did not appeal Respondent's Decision Number 98-C-350, dated April 14, 1998, to the court of common
pleas, the determination of an overpayment of unemployment benefits and the amount owed to Respondent of $1,769.00 was
final.
10. Subsequent to the final agency decision, Respondent attempted to collect the amount owed. Prior to Respondent's
initiation of the setoff action, it had collected from Petitioner the sum of $1,184.00, resulting in a balance owed of $585.00.
11. In 1995 the legislature passed Act No. 76, § 5, which created Chapter 56 of Title 12 entitled Setoff Debt Collection Act
("Act"). The provisions of the act are effective for taxable years beginning after 1995.
12. The Act generally provides that state agencies, boards, committees, commissions, public institutions of higher learning,
political subdivisions, housing authorities, the Internal Revenue Service, and the United States Department of Education may
collect debts owed to them by submitting claims to the South Carolina Department of Revenue ("Department").
13. Pursuant to S.C. Code Ann. § 12-56-60 (Supp. 1999), a claimant agency seeking to collect a delinquent debt through
setoff must notify the Department in writing and must notify the debtor of the intent to seek a debtor's refund as a setoff of
the debt owed.
14. S.C. Code Ann. § 12-56-63 (Supp. 1999) provides a protest procedure whereby the debtor may contest the setoff. If the
debtor protests the setoff, then the claimant agency must appoint a hearing officer to hear the protest. The hearing officer
must conduct an informal hearing at which the debtor may present evidence, documents, and testimony to dispute the debt.
At the conclusion of the hearing, the hearing officer shall render his decision. If the hearing officer rules in favor of the
claimant agency, then he must issue a sworn certificate that he held the informal hearing and that he ruled in favor of the
agency. S.C. Code Ann. § 12-56-65 (Supp. 1999).
15. A debtor may seek relief from the hearing officer's determination by requesting a contested case hearing before the
Administrative Law Judge Division. S.C. Code Ann. § 12-56-65(C) (Supp. 1999).
16. The statutory procedure for filing the setoff claim by Respondent was properly followed as was the protest filing and the
conduction of the informal hearing. In this case, the hearing officer determined that Respondent had a valid claim/debt.
Petitioner appealed the hearing officer's decision.
17. Based on the evidence presented, this court must conclude that Respondent properly followed all procedures and the
determination that Petitioner owed Respondent the amount of $1,769.00 was a final judgement. Petitioner did not appeal
the Respondent's decision. The decision, therefore, constitutes a final agency action. Accordingly, I conclude that the relief
sought by Petitioner is denied.
ORDER
Based upon the above Findings of Fact, Conclusions of Law, and a complete review of the record, it is hereby:
ORDERED that the Final Administrative Order issued by the South Carolina Employment Security Commission dated April
14, 1998, is final as to the amount owed by Petitioner to Respondent.
IT IS FURTHER ORDERED that the relief sought by Petitioner is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
July 6, 2000
Columbia, South Carolina |