Sparks v. Indiana Department of Employment & Training Services , 1988 Ind. App. LEXIS 1004 ( 1988 )

SHIELDS, Presiding Judge.

Herschel Sparks appeals an adverse decision of the Review Board of the Indiana Department of Employment and Training Services Board (Board).

We reverse.

Sparks was discharged from Indiana Cal Pro for excessive absenteeism after he was absent on September 8, 1987. On that day Sparks was detained in jail, waiting to post bail following his arrest for driving while his license was suspended. The appeal referee’s decision granting Sparks benefits was overturned by the Board’s decision Sparks was discharged for just cause.

conclaims the Board’s decision is contrary neilaw because his absence was neither voluntary nor due to any failure on his addiand because the Board procured additional evidence without notice to him. The Board disagrees, claiming Sparks’s absence was both volitional and due to a failure on his part because he intentionally ¹ his vehicle without a license¹ and further, the Board’s receipt of evidence without notice was harmless error.

Our standard of review is well-established:

The statute causes a two-part inquiry. The first part is an examination of the relationship between the premises (or facts as found) and the conclusions of the Board. We determine if the Review Board’s deductions were “reasonable,” which is a question of law. The second part is an inquiry into, “the nexus between the premises or findings of basic facts and the evidence presented to determine if the evidence justified those findings.” In this analysis, we do not reweigh the evidence and only that evidence favorable to the Board’s determination, and reasonable inferences to be drawn from it, will be considered.

Wampler v. Review Board (1986), Ind.App., 498 N.E.2d 998, 1000 (citations omitted).

The Board’s decision fails the first prong of the test. The Board’s conclusion that Sparks’s absence on September 1987, constituted just cause for discharge is contrary to our holding in Holmes v. Review Board (1983), Ind.App., 451 N.E.2d 83, (interpreting IC 22-4-15-1(e)(3), (e)(8) (1982), now IC (1983), (d)(8) (1988)). Holmes held:

Pre-trial incarceration due to the filing of criminal charges later dismissed constitutes good cause under subsection (e)(3) and is not just cause under subsection (e)(8) of IC 22-4-15-1.²

451 N.E.2d at 88. The Holmes court opined that policy requires a liberal construction of the statute in favor of employees and that only by construing the phrase “incarceration following conviction” as excluding any other form of incarceration as just cause for discharge is the legislative policy achieved. Id. at 87. Furthermore, the court reasoned that an employee incarcerated pending trial was not absent from work by his own volition or due to his own failure but rather due to the lawful act of third parties. Therefore, a determination of fault due to pre-trial incarceration would impermissibly deny the employee his presumption of innocence, a presumption which fails only upon conviction or upon a plea of guilty and not, as the Board argues, by an admission or confession.

Here Sparks was arrested for driving with a suspended license on September 7, 1987. He was absent on Monday, September 8, 1987 because he had not yet made bail. Thus, the Board’s decision is controlled by Holmes if the charges were subsequently dismissed or if Sparks was acquitted. However, the Board’s findings do not address the disposition of the charge against Sparks. Accordingly, because a finding essential to the Board’s decision was not made, i.e., whether Sparks was convicted, the decision is contrary to law.

Further, the Board erred when it procured additional evidence without notice to Sparks. According to the record, pursuant to IC 22-4-15-l(d)(6) and 640 IAC 1-11-8, the Board, on its own motion procured evidence that Sparks’s driver’s license had been suspended on May 28,1983, and that it was reinstated September 17, 1987. The Board acknowledges that its procurement of this evidence without notice to the parties violated 640 IAC 1-11-8, its regulation “which has the force and effect of law.” Appellees’ Brief at 6. That regulation may not be ignored. Fruehauf Corp. v. Review Board (1983), Ind.App., 448 N.E.2d 1193, 1197. Therefore, the Board erred. The Board argues, however, that its error is harmless. We disagree: Had Sparks received notice, he would have had the opportunity to submit evidence that the charge against him was dismissed on September 21, 1987, a fact which, in his brief, he alleges exists.

The decision of the Board is reversed and the matter remanded for further proceedings.

MILLER and SULLIVAN, JJ., concur.

1 .The Board concluded:

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2. That [Sparks] knew his driver's license was suspended and intentionally violated law by operating a motor vehicle without license.

3. That the Claimant, on his own volition, brought about his incarceration and rendered himself unable to work and was discharged for being intentionally absent.

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DECISION: The claimant was discharged for just cause and the decision of Referee DeMoss is reversed. This case is distinguishable from Holmes v. Review Board [ (1983), Ind.App.,] 451 N.E.2d 83, in that this Claimant knew his driver's license was suspended and he intentionally chose to violate the law and to risk the probability of jail. The loss of his employment was a foreseeable consequence of his own choosing. The Claimant is ineligible for unemployment insurance benefits.

Record at 5-6.

2 . IC 22-4-15-1 (1988) reads in part:

(d) “Discharge for just cause" as used in this section is defined to include but not be limited to:

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(3) unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness;

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(8) incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction or for any breach of duty in connection with work which is reasonably owed an employer by an employee.