This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-593

 

 

Dennis D. Bollig,
Relator,

vs.

City of Brainerd,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

 

Filed March 14, 2006

Affirmed

Peterson, Judge

 

 

Department of Employment and Economic Development

File No. 1013 05

 

 

Dennis Bollig, 1001 Anabec Street, Brainerd, MN  56401 (pro se relator)

 

City of Brainerd, City Hall, 501 Laurel Street, Brainerd, MN  56401 (for respondent City of Brainerd)

 

Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department of Employment and Economic Development)

 

            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

Relator challenges the decision of a senior unemployment review judge, who adopted the findings and decision of an unemployment law judge and determined that relator’s weekly unemployment benefit amount should be reduced by the amount of relator’s pension payments.  We affirm.

FACTS

Relator Dennis Bollig was laid off by Hoffmann Electric and applied for unemployment benefits.  For purposes of determining his weekly unemployment benefit amount, Bollig reported base-period wages from Hoffmann Electric, the City of Brainerd, where he serves as a volunteer firefighter, and the Brainerd Volunteer Relief Association, where he serves as president.  Bollig also reported that since 2003, he has been receiving a monthly pension benefit from a retirement plan administered by the Public Employees Retirement Association of Minnesota (PERA).  The City of Brainerd, where Bollig was employed as an engineer until 2003, contributed to the retirement plan that pays Bollig a monthly pension benefit. 

The Department of Employment and Economic Development (DEED) determined that the entire amount of the pension payments that Bollig was receiving from PERA should be deducted from Bollig’s weekly unemployment benefit amount.  Bollig filed an appeal, and a telephone hearing was conducted before an unemployment law judge (ULJ).  The ULJ determined that the pension payments should be deducted from Bollig’s weekly benefit amount.  Bollig filed another appeal, and a senior unemployment review judge (SURJ) adopted the ULJ’s findings and decision as the final findings and decision of DEED.  This certiorari appeal followed.

D E C I S I O N

            The statutes that govern eligibility for unemployment benefits and establish the weekly unemployment benefit amount that an applicant is entitled to receive provide that

[a]n applicant shall not be eligible to receive unemployment benefits for any week with respect to which the applicant is receiving, has received, or has filed for payment, equal to or in excess of the applicant’s weekly unemployment benefit amount, in the form of:

. . . .  

(2) pension, retirement, or annuity payments from any plan contributed to by a base period employer including the United States government, except Social Security benefits which are provided for in subdivision 4. The base period employer contributed to the plan if the contribution is excluded from the definition of wages under section 268.035, subdivision 29, clause (1), or United States Code, title 26, section 3121, clause (2), of the Federal Insurance Contribution Act.

 

Minn. Stat. § 268.085, subd. 3(a)(2) (2004).

If the payment is less than the applicant’s weekly unemployment benefit amount, unemployment benefits shall be reduced by the amount of the payment. 

 

Minn. Stat. § 268.085, subd. 3(b) (2004).

“No deduction shall be made from an applicant’s weekly unemployment benefit amount for earnings from service as a volunteer firefighter or volunteer ambulance service personnel.”  Minn. Stat. § 268.085, subd. 5(c) (2004).

This court defers to the SURJ’s findings of fact if they are reasonably supported by the evidence in the record, but this court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  “The construction of a statute or a regulation is a question of law to be determined by the court.”  Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn. 2003).

Bollig does not dispute that he is receiving a pension from a base-period employer; the City of Brainerd contributed to the PERA retirement plan that has paid Bollig pension benefits since he retired in 2003, and during his base period, the City of Brainerd paid Bollig for his services as a volunteer firefighter.  Bollig argues, however, that because his earnings from service as a volunteer firefighter are not deductible from unemployment benefits under Minn. Stat. § 268.085, subd. 5(c), the earnings should not be considered to be base-period wages, and the City of Brainerd should not be considered to be a base-period employer.  Therefore, Bollig concludes, his pension should not be treated as a pension contributed to by a base-period employer, and his pension payments should not be deducted from his weekly unemployment benefit amount.

Bollig’s argument is basically that the law has produced a result that the legislature did not intend.  Bollig contends that the intent of Minn. Stat. § 268.085, subd. 3(a)(2), is to protect an employer from having an employee receive unemployment benefits, which affects the employer’s experience rating and, in turn, the employer’s future unemployment tax rate, while also receiving pension benefits.  But, Bollig contends, this intent does not apply when the employer is a fire department because under Minn. Stat. § 268.047, subd. 2(4) (2004), unemployment benefits paid by a fire department are not used in determining the future unemployment tax rate of the fire department.

We conclude that Bollig’s argument is not supported by the plain language of Minn. Stat. § 268.085, subd. 3(a)(2), which does not include an exception that applies when the base-period employer that contributed to a retirement plan is a fire department.  When statutory language is clear and unambiguous, this court must give effect to its plain meaning.  Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).  Absent ambiguity, this court cannot avoid the plain meaning of the words in a statute to give effect to the spirit of the statute.  MBNA Am. Bank, N.A. v. Comm’r of Revenue, 694 N.W.2d 778, 780 (Minn. 2005).

Because Minn. Stat. § 268.085, subd. 3(a)(2), (b), unambiguously state that the weekly unemployment benefit amount of an applicant who is receiving pension payments from a retirement plan that was contributed to by a base-period employer shall be reduced by the amount of the pension payments, the SURJ did not err in concluding that Bollig’s weekly unemployment benefit amount should be reduced by the amount of Bollig’s pension payments.

Affirmed.