This opinion will be unpublished and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

A05-1269

 

William C. Steele,

Relator,

 

vs.

 

Department of Employment and Economic Development,

Respondent.

 

Filed June 20, 2006

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 19307 04

 

 

William C. Steele, 9280 Bluebill Bay Road, Lakeville, MN 55044 (pro se relator)

 

Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

 

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Relator challenges the determination of the senior-unemployment-review judge (SURJ) that under Minn. Stat. § 268.085, subd. 2(5) (2004), he is ineligible for unemployment benefits because he works more than 32 hours per week as a self-employed real-estate agent.  Because the record reasonably supports the SURJ’s decision and because the decision is correct as a matter of law, we affirm.

FACTS

            Relator William Steele was the executive director of the Minneapolis Jaycees for 15 years before getting laid off in October 2004.  He has also worked in real estate since 1995.  Relator established a benefit account with respondent Minnesota Department of Employment and Economic Development (DEED) shortly after being laid off.  In December 2004, relator informed the agency that he had been working more than 40 hours per week in self-employment as a real-estate agent.  DEED then determined that relator was ineligible for unemployment benefits under Minn. Stat. § 268.085, subd. 2(5) (2004), because he had been performing 32 or more hours of services in a week.  Relator appealed, and the unemployment-law judge affirmed. 

            Relator appealed that determination, arguing that the DEED representative was impermissibly using the terms “work” and “performing services” interchangeably.  The SURJ determined that the terms may be used interchangeably in this context and concluded that relator is ineligible for benefits after October 30, 2004, the date he began working more than 32 hours per week.  Relator appeals to this court by writ of certiorari.

D E C I S I O N

            Appellate courts accord the decision of the SURJ “particular deference,” and affirm it if reasonably supported by the record.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The SURJ’s factual findings are reviewed in the light most favorable to the commissioner’s decision and will not be disturbed “as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp.,644 N.W.2d 801, 804 (Minn. 2002).  “When reviewing questions of law, this court is not bound by the [SURJ’s] conclusions of law, but is free to exercise its independent judgment.”  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  “However, an agency’s interpretation of the statutes it administers is entitled to deference and should be upheld, absent a finding that it is in conflict with the express purpose of the Act and the intention of the legislature.”  George A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn. 1988). 

I.

            Relator argues that the SURJ erred by ruling that he is ineligible for unemployment benefits for the weeks he worked more than 32 hours per week as a self-employed real-estate agent.  The crux of relator’s argument is his assertion that the SURJ impermissibly used the terms “work” and “performing services” interchangeably in reaching that ineligibility determination. 

            Minn. Stat. § 268.085, subd. 2(5) (2004), provides that “[a]n applicant shall not be eligible to receive unemployment benefits for any week: . . . that the applicant is performing services 32 hours or more, in employment, covered employment, noncovered employment, volunteer work, or self-employment regardless of the amount of any earnings.”  Relator contends that he is not ineligible under this subdivision because he was working for himself, not providing services as a real-estate agent, and because such work does not fall within the meaning of “performing services” under the statute.  Relator points to this court’s unpublished decision in Roedl v. Comm’r of Employment & Econ. Dev., in which we adopted the definition of “service” found in The American Heritage College Dictionary:  “[e]mployment in duties or work for another . . . [;] [w]ork done for others as an occupation or a business.”  No. A04-781, 2005 WL 287969, at *2 (Minn. App. Feb. 8, 2005) (alterations in original) (citing The American Heritage College Dictionary 1246 (3d ed. 2000)).[1]  Neither “work” nor “service” is defined in the statute.   

            DEED argues that services need not be performed for others in order to be considered services under Minn. Stat. § 268.085, subd. 2(5).  DEED contends that it simply “makes no sense that the statute would distinguish between weeks when work is being put into the general operation of a self-employed person’s business and the hours spent that are billable to particular clients.” 

            “Various statutory provisions should be interpreted in light of one another, where those provisions relate to the same subject matter.”  Lemmerman v. ETA Systems, Inc.,458 N.W.2d 431, 434 (Minn. App. 1990).  The SURJ noted that the terms “work” and “services performed” are used interchangeably in both subdivisions 4 and 9 of Minn. Stat. § 268.035 (2004).  Subdivision 4 refers to the loss of “work” in discussing calculation of the base period, while subdivision 9 refers to “work or services” in the context of defining construction/independent contractors.  Minn. Stat. § 268.035, subds. 4, 9.

            Relator points to Minn. Stat. § 268.035, subd. 9, in which he argues, “the legislature specifically distinguishes between ‘services or work’” by using the terms alternatively.  That subdivision does indeed repeatedly refer to “work or services.”  Minn. Stat. § 268.035, subd. 9(2) (“work or service”), subd. 9(3) (“services or work”), subd. 9(4) (“service or work”), subd. 9(5) (“work or services”), subd. 9(6) (“work or service”), subd. 9(7) (“work or service”).  But subdivision 13 of the same section uses “service” and “work” interchangeably.  Subparagraph 1 of subdivision 13 defines an employee as an “individual who is performing or has performed services for an employer in employment,” while subparagraph 2 also defines an employee as an “individual employed to perform or assist in performing the work of any agent or employee of the employer.”  Minn. Stat. § 268.035, subd. 13(1), (2) (emphasis added).  Under that subdivision, it appears that an employee’s “performed services” are “work.”  

            We also note that the statutory provision in question explicitly applies to the self-employed, referring to “performing services 32 hours or more in . . . self-employment.”  Minn. Stat. § 268.085, subd. 2(5).  Relator’s urged interpretation strains the statute beyond meaning.

            When statutory language is clear and unambiguous, courts 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). 

            The SURJ concluded that “[t]here is no indication that the Legislature intended the terms ‘work’ and ‘services performed’ to have the distinction [relator] attempts to draw.”  That conclusion is supported by the varied and inconsistent use of the terms “work” and “service” in Minn. Stat. § 268.035 and by the statute’s clear application to the self-employed. 

II.

            Relator also asserts that the SURJ’s findings concerning the hours relator worked are not supported by reasonable evidence.  But the evidence reasonably supports the SURJ’s finding that relator worked more than 32 hours per week as a real-estate agent and/or in the mortgage business since October 31, 2004.  Relator’s answers to the SURJ’s specific and repeated questions at the hearing about the number of hours he “worked” and/or “provided services” were vague and often non-responsive.  For example, when the SURJ asked relator how much time he had “been putting into putting together [relator’s] website,” relator answered, “A lot.”  While relator testified that he had not put in 32 hours during “the majority of weeks,” he admitted to a DEED representative that he had been working between 30 and 50 hours per week on his real-estate business since being laid off.  Noting relator’s admissions and vague answers, the SURJ concluded that “we are convinced that [relator] was working more than thirty-two hours per week on his real estate business after learning of the Project GATE program.” 

            Because the only evidence on this point is relator’s testimony and the evidence of relator’s statement to the DEED representative, resolution of this issue turns on the SURJ’s credibility determination.  Credibility determinations are the province of the SURJ and are accorded deference on appeal.  Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005).  Giving due deference to the SURJ’s implicit credibility determination, we conclude that the evidence reasonably supports the SURJ’s finding that relator worked on his real-estate business more than 32 hours per week.

III.

            Relator argues that DEED’s promotion of Project GATE created a reasonable belief that relator could start or expand a business while seeking employment without becoming ineligible for benefits.  Even if DEED’s promotion of Project GATE created a belief that relator could start or expand a business while seeking employment without losing eligibility for benefits, that belief would only be reasonable if relator were a participant in Project GATE.  The evidence, including relator’s testimony, indicates that relator was not accepted into Project GATE and that relator was aware at the time of his first Project GATE orientation session that he had not been accepted into the program.  The evidence also shows that the Project GATE website that relator registered with explicitly explains the selection process for participation in Project GATE. 

            Relator seems to confuse his compliance with DEED’s Workforce Center Work Search Plan with compliance with the statutory eligibility requirements.  His suggestion that he somehow met the statutory eligibility requirements for unemployment compensation by virtue of his compliance with his work-search plan is unsupported by authority and lacks merit.

            Affirmed.