Hason USA Corp. v. Dir., Ohio Dept. of Job & Family Servs. ( 2016 )

[Cite as Hason USA Corp. v. Dir., Ohio Dept. of Job & Family Servs., 2016-Ohio-8273.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Hason USA Corporation, :
Appellant-Appellant, :
No. 16AP-150
v. : (C.P.C. No. 15CV-10165)
Director, Ohio Department of Job and : (ACCELERATED CALENDAR)
Family Services,
:
Appellee-Appellee.
:
D E C I S I O N
Rendered on December 20, 2016
On brief: Lundrigan Law Group Co, LPA, W. Kelly
Lundrigan, and Nicole M. Lundrigan, for appellant.
On brief: Michael DeWine, Attorney General, and Robin A.
Jarvis, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Appellant, Hason USA Corporation ("Hason"), appeals a judgment of the
Franklin County Court of Common Pleas that affirmed the decision of the Unemployment
Compensation Review Commission ("commission") that the director of the Ohio
Department of Job and Family Services ("director") lacked jurisdiction to reconsider the
unemployment contribution rate applicable to Hason for 2014 and 2015. For the
following reasons, we reverse that judgment and remand this matter to the trial court so
that it may reverse the commission's decision and order the director to consider the
merits of Hason's application for reconsideration.
No. 16AP-150 2
{¶ 2} In November 2014, Hason received from appellee, the Ohio Department of
Job and Family Services ("ODJFS"), a document entitled "Ohio Unemployment Tax
Notification, Contribution Rate Determination, Calendar Year 2015." That document
stated that Hason's unemployment contribution rate for 2015 was 2.7 percent.1
{¶ 3} On February 14, 2015, ODJFS issued a determination that altered Hason's
unemployment contribution rate for 2015 (hereinafter "the revised determination"). The
revised determination stated that ODJFS had concluded that Hason was a successor in
interest to Odom Industries, Inc. ("Odom"), and it assigned Odom's unemployment
contribution rate to Hason. Thus, Hason's unemployment contribution rate for 2015
increased from 2.7 percent to 8.2 percent.
{¶ 4} According to Jacques Dalphond, Hason's general manager, Hason did not
know about the revised determination until April 23, 2015. On that date, a Hason
employee spoke on the telephone with an ODJFS representative, who informed the Hason
employee of the revised determination. At Hason's request, ODJFS forwarded a copy of
the revised determination to Hason.
{¶ 5} On May 13, 2015, Hason applied to the director for reconsideration of the
revised determination. In a decision issued May 21, 2015, the director concluded that she
lacked jurisdiction to reconsider the revised determination because Hason failed to apply
for reconsideration within 30 days of February 14, 2015, the date that ODJFS purportedly
emailed notice of the revised determination to Hason.
{¶ 6} Hason appealed the director's May 21, 2015 decision to the commission.
The commission directed a hearing officer to conduct a hearing. At that hearing,
Dalphond testified and ODJFS submitted documentary evidence.
{¶ 7} On October 21, 2015, the commission issued a decision affirming the
director's decision. The commission found that ODJFS attached the revised
determination to an email that ODJFS sent to Hason on February 14, 2015 and,
consequently, the 30-day period R.C. 4141.26(D)(2) provided for seeking reconsideration
began running on February 14, 2015. Since Hason did not seek reconsideration until after
1Employers owe contributions to the unemployment compensation fund. The amount an employer must
pay depends upon the contribution rate assigned by the director. R.C. 4141.24 and 4141.25.
No. 16AP-150 3
the 30-day window closed, the commission concluded that the director lacked jurisdiction
to reconsider the revised determination.
{¶ 8} Hason appealed the commission's October 21, 2015 decision to the trial
court. Hason moved to supplement the administrative record with the attachments to an
exhibit the hearing officer had admitted into the administrative record. In a judgment
entered February 12, 2016, the trial court denied Hason's motion to supplement and
affirmed the commission's decision.
{¶ 9} Hason now appeals the February 12, 2016 judgment to this court, and it
assigns the following errors:
[1.] The Trial Court erred in affirming the Unemployment
Compensation Review Commission's ("UCRC") conclusion
that Appellant Hason USA Corp. did not file a timely request
for reconsideration of the Ohio Unemployment Tax
Notification Determination of Employer's Liability and
Contribution Rate Determination, with a mailing date listed
on the document of February 14, 2015 (the "New
Determination"), which was an attempt to amend the original
Ohio Unemployment Tax Notification Contribution Rate
Determination Calendar Year 2015, with a mailing date of
November 9, 2014 which had already become final (the
"Original Determination").
[2.] The Trial Court erred in denying Appellant Hason USA
Corp.'s Motion to Supplement the Record where the
administrative record submitted by the Commission to the
Trial Court was incomplete on its face, and failed to include all
evidence relevant to the appeal.
{¶ 10} By its first assignment of error, Hason argues that the trial court erred in
affirming the commission's decision that the director lacked jurisdiction to reconsider the
revised determination. We agree.
{¶ 11} An administrative body created by the General Assembly has only those
powers expressly delegated by statute and must operate within any limitations imposed
by statute. Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204,
2013-Ohio-224, ¶ 13; Shell v. Ohio Veterinary Med. Licensing Bd., 105 Ohio St.3d 420,
2005-Ohio-2423, ¶ 32. Thus, when the General Assembly grants an administrative body
the authority to hear appeals, the statutory language determines the parameters of the
administrative body's jurisdiction. Chesapeake Exploration at ¶ 13; Cordial v. Ohio Dept.
No. 16AP-150 4
of Rehab. & Corr., 10th Dist. No. 05AP-473, 2006-Ohio-2533, ¶ 20. If that statutory
language requires the filing of an administrative appeal within a specified time period, the
party seeking to appeal must comply with that requirement to invoke the jurisdiction of
the administrative body. Clemons v. Ohio State Dept. of Job & Family Servs., 10th Dist.
No. 03AP-976, 2004-Ohio-6251, ¶ 12; Moffett v. Salem City School Dist. Bd. of Edn., 7th
Dist. No. 2003 CO 7, 2003-Ohio-7007, ¶ 33. Whether an administrative body possessed
jurisdiction to hear a matter is an issue of law, which appellate courts review de novo.
Abraitis v. Testa, 137 Ohio St.3d 285, 2013-Ohio-4725, ¶ 17; Akron v. Ohio Dept. of Ins.,
10th Dist. No. 13AP-473, 2014-Ohio-96, ¶ 21; Kingsley v. Ohio State Personnel Bd. of
Rev., 10th Dist. No. 10AP-875, 2011-Ohio-2227, ¶ 27.
{¶ 12} Pursuant to R.C. 4141.26(D)(2), an unemployment contribution rate
determination becomes binding on the employer unless "[w]ithin thirty days after the
mailing of notice of the employer's rate or a revision of it to the employer's last known
address or, in the absence of mailing of such notice, within thirty days after the delivery of
such notice, the employer files an application with the director for reconsideration."
Thus, for the director to acquire jurisdiction to reconsider a rate determination, the
employer must apply for reconsideration within 30 days after the mailing of a notice of
the rate determination or, if no mailing occurred, the delivery of a notice of the rate
determination.
{¶ 13} An administrative body "must strictly comply with the procedural
requirements governing the issuance of its decision before the appeal deadline begins to
run." Pryor v. Dir., Ohio Dept. of Job & Family Servs., __ Ohio St.3d __, 2016-Ohio-
2907, ¶ 21. When those procedural requirements include the mailing of an administrative
decision, the administrative body bears the burden of establishing that the decision was
mailed and the actual date of mailing. Procter v. Giles, 61 Ohio St.2d 211, 213 (1980). A
notation on an administrative decision cannot, on its own, satisfy the administrative
body's burden to prove the date of mailing. Id.{¶ 14} Here, ODJFS contends that the 30-day window for seeking reconsideration
of the revised determination began on February 14, 2015, when ODJFS sent Hason an
email to which ODJFS attached the revised determination. All parties agree that ODJFS
transmitted an email to Hason on February 14, 2015. The parties disagree, however,
No. 16AP-150 5
regarding whether that email contained any notice of the revised determination.
Pursuant to R.C. 4141.26(D)(2), the 30-day period for applying for reconsideration begins
with "the mailing of notice of the employer's rate or a revision of it." Consequently, if the
February 14, 2015 email did not include notice of the revised determination, then it did
not trigger the beginning of the 30-day period.
{¶ 15} Dalphond, Hason's general manager, provided the only testimony regarding
the February 14, 2015 email. Dalphond stated that Hason searched its computer system
for the February 14, 2015 email after ODJFS told Hason that it had sent Hason an email
on that date with notice of the rate revision. Hason discovered an email, sent February 14,
2015 at 3:36 a.m., from "NoReply@odjfs.state.oh.us" to Michael O'Keefe, a Hason
accountant. Dalphond testified that the email stated only that Hason "ha[d] a new
message from ODJFS" and included "a link that open[ed] to a general page of basically
the home page of the [ODJFS] portal." (Tr. at 16.) According to Delphond, the email
included no attachments.
{¶ 16} Dalphond's testimony describes a document attached as Exhibit 1 to
Hason's notice of appeal of the director's decision, filed with the commission on June 18,
2015. Exhibit 1 is an email from "NoReply@odjfs.state.oh.us" to "Michael O'Keefe" sent
February 14, 2015 at 3:36 a.m. regarding "a new message from ODJFS." In relevant part,
Exhibit 1 reads, "A message has been sent to your online message box regarding your
ODJFS Unemployment Compensation Tax account. Please visit our website at
https://unemployment.ohio.gov/wp/wps/myportal to access your account and view your
messages." Exhibit 1 contains no reference to any attachments.
{¶ 17} In its appellee's brief, ODJFS completely ignores Exhibit 1 and Dalphond's
testimony regarding it. ODJFS, instead, identifies a different document as the
February 14, 2015 email that ODJFS sent Hason regarding the rate revision. In ODJFS'
view, the email at issue is the second page of Exhibit A, which ODJFS introduced and the
hearing officer admitted during the hearing before the commission.2
{¶ 18} Exhibit A is a printout of a webpage found at a web address beginning
"http://eric-int.odjfs.oh.us/wp/wps/myportal." The header on Exhibit A reads, "Message
2 For ease of reference, we will hereinafter call the second page of Exhibit A merely "Exhibit A."
No. 16AP-150 6
Details Page." The message contained in Exhibit A was sent by "UCTAX" to "Hason USA
Corp" on February 14, 2015 at 3:27 a.m. In relevant part, the message reads, "Attached to
this message is correspondence regarding your ODJFS Unemployment Compensation
Tax account." (Ex. A.) ODJFS asserts that the attached correspondence the message
references is the revised determination.3
{¶ 19} ODJFS presented no witness testimony to authenticate or explain the
meaning of Exhibit A. Thus, we can only examine the text of Exhibit A itself to determine
its significance. After reviewing that text, we conclude that Exhibit A is not an email, but a
message that ODJFS posted to the "my portal" portion of its website. In Exhibit 1, ODJFS
directed O'Keefe to "our website at https://unemployment.ohio.gov/wp/wps/myportal"
to view a "new message from ODJFS." (Emphasis added.) Exhibit A is a printout of a
webpage found at "http://eric-int.odjfs.oh.us/wp/wps/myportal." (Emphasis added.)
Given the similarity in the two web addresses, we conclude that Exhibit A is the "new
message from ODJFS" that O'Keefe would have seen had he logged into Hason's account
on ODJFS' website.
{¶ 20} In short, Exhibit 1 is an email sent from ODJFS to Hason, while Exhibit A is
a posting on ODJFS' website. Because Exhibit A was never mailed to Hason—either by
ordinary mail or email—it cannot qualify as a "mailing" under R.C. 4141.26(D)(2).
{¶ 21} Having identified Exhibit 1 as the sole "mailing" to Hason, we must examine
its content to determine whether it gave Hason notice of the revised determination.
Notably, Exhibit 1 does not include the revised determination as an attachment, and it
makes no mention of the rate revision. The email, instead, merely informs the recipient of
a new message "regarding your ODJFS Unemployment Compensation Tax account." (Ex.
1.) We find this generic description insufficient to notify Hason of a revision to its
unemployment contribution rate. Therefore, ODJFS' dispatch of the February 14, 2015
email does not constitute "the mailing of notice of the employer's rate or a revision of it."
{¶ 22} Because the February 14, 2015 email failed to accomplish "the mailing of
notice of the employer's rate or a revision of it," the period in which Hason had to apply
3 For this assertion, ODJFS cites the revised determination itself. However, nothing in the text of the
revised determination indicates that it is an attachment to Exhibit A. Moreover, nothing in the text of
Exhibit A describes the contents of the attached correspondence. ODJFS' evidence, therefore, does not
prove ODJFS' assertion.
No. 16AP-150 7
for reconsideration of the revised determination did not begin on February 14, 2015. That
period began, instead, on April 23, 2013, the date on which ODJFS actually delivered to
Hason a copy of the revised determination. Consequently, the application for
reconsideration that Hason filed on May 13, 2015 was timely, and the director had
jurisdiction to consider it.
{¶ 23} For the foregoing reasons, we sustain Hason's first assignment of error. Our
resolution of the first assignment of error moots Hason's second assignment of error, and
thus, we do not rule on it. We reverse the judgment of the Franklin County Court of
Common Pleas, and we remand this matter to that court so that it may reverse the
commission's decision and order the director to consider the merits of Hason's
application for reconsideration.
Judgment reversed; cause remanded.
BROWN and SADLER, JJ., concur.