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Warren v. Board of Appeals

Decided: June 16, 1961.


Appeal from the Circuit Court for Howard County; Macgill, J.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.


The principal question raised by this appeal is whether Wilson C. Warren (the appellant), a registered land surveyor, was an employer within the meaning of the Unemployment Insurance Law (UIL) during the period from January 1, 1958, until July of 1959. The executive director of the Department of Employment Security (D.E.S. or department), having raised the question on his own motion, subsequently determined, on the evidence produced at a formal hearing before the hearing officer, that the appellant was an employer and that he must report the names and amounts earned by his employees and pay contributions thereon as required by

law. The employer appealed first to the Board of Appeals of the D.E.S. and then to the Circuit Court for Howard County. The board of appeals affirmed the determination of the executive director and the court affirmed the decision of the board, whereupon the appellant appealed to this Court.

Although the appellant has listed thirteen contentions in a haphazard sort of way, the questions presented fall into three categories: (i) those concerning procedure; (ii) those concerning the facts; and (iii) those concerning the applicable law.

The facts are not complicated. In 1951 the appellant reported to the D.E.S. that he was engaged in the business of surveying. From 1951 through 1957, he reported the employees he had, declared their wages and paid contributions thereon. Beginning with the first calendar quarter of 1958, he filed quarterly returns showing there had been no employment. The department accepted these reports until, on the return for the fourth quarter of 1958, he noted that he was carrying on his business without employees and instead was using only "occasional assistance from associates, part-time helpers or independent contractors."

This information caused the department to surmise that the appellant was probably misusing the terms "associate" and "independent contractor," and, since a "part-time helper" is covered under the law, it was thought that the failure to report any employment and wages for the year 1958 was in error. And when efforts to have the appellant settle the matter with a field representative proved unsuccessful, the case was referred to the legal department and a subpoena duces tecum was issued to compel the appellant to appear before the hearing officer with his records of payments of money to others for services rendered.

At the hearing on July 22, 1959, before the hearing officer, the appellant testified that he had been in business as a surveyor during the year 1958, and admitted that he had had several persons help him with his work. But the only record of any practical use produced in obedience to the subpoena was an income tax return for that year showing that

he had taken credit for $709.52 as having been paid to "associates" for services rendered during the period covered by the tax return. The appellant claimed that the persons thus employed were casual employees and as such were not covered by the UIL.

The appellant conceded that his son (who was over twenty-one years of age), two high school students and two other persons had rendered services during the period in question. None of these persons was reported to the D.E.S. as employees and no contributions were paid on the remuneration received by them for services rendered. Such other facts and circumstances concerning the issues and procedures involved in this proceeding will be stated from time to time as the occasion may require.

The pertinent procedural provisions of the statute include:

Section 8 (d) of Art. 95A of the Code of 1957, which provides in part that the executive director, on his own motion or on the application of an employing unit, shall "on the basis of facts found by him determine whether an employing unit is an employer and whether services performed for it constitute employment, and the contribution rate to be assigned to an employer"; that an employer may appeal to the board of appeals as a matter of right; that the board shall afford the parties (employer and executive director) a "reasonable opportunity for a fair hearing"; and that the decision of the board shall be final "unless the employing unit * * * initiates judicial review."

Section 15 (c), among other things, provides that an aggrieved employer may secure a judicial review of the action of the board of appeals by appeal to the circuit court of the county in which the employer does business; that in any judicial proceeding under this section the findings of the board "as to the fact, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of [the] court shall be confined to questions of law"; and that an appeal may be taken to this Court.

(i). Questions Concerning Procedure.

When the board of appeals answered the ...

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