EMPLOYMENT SECURITY DEPARTMENT -- RIGHT OF COMMISSIONER TO RECONSIDER APPEAL TRIBUNAL OR COMMISSIONER DECISIONS WHICH HAVE BECOME FINAL PURSUANT TO THE PROVISIONS OF THE UNEMPLOYMENT COMPENSATION ACT

EMPLOYMENT SECURITY DEPARTMENT -- RIGHT OF COMMISSIONER TO RECONSIDER APPEAL TRIBUNAL OR COMMISSIONER DECISIONS WHICH HAVE BECOME FINAL PURSUANT TO THE PROVISIONS OF THE UNEMPLOYMENT COMPENSATION ACT

The Commissioner of the Employment Security Department may not review Appeal Tribunal decisions nor reconsider his own decisions for the purpose of modification or reversal when the periods of time for review or appeal established by the Unemployment Compensation Act have elapsed.

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                                                                  January 9, 1950

Honorable J. H. Robertson
Commissioner
Employment Security Department
State of Washington
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 193

Dear Mr. Robertson:

            You have inquired concerning whether the Commissioner of the Employment Security Department may review any decision of that Department's Appeal Tribunal when a period of time in excess of ten days has elapsed since the date of mailing or notification of such decision; and, also, whether the Commissioner may reconsider and thus modify or reverse his own decisions when rendered pursuant to Sections 123 and 124 of the Unemployment Compensation Act when the parties concerned have failed to avail themselves of the opportunity of appeal to the Superior Court within the thirty-day period prescribed by Section 128 of the Unemployment Compensation Act.

            The opinion of this office may be summarized as follows:

            The Commissioner of the Employment Security Department may not review Appeal Tribunal decisions nor reconsider his own decisions for the purpose of modification or reversal when the periods of time for review or appeal established by the Unemployment Compensation Act have elapsed.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            Sections 120 and 121 of the Unemployment Compensation Act [§ 9998-258, Rem. Supp. 1945, and § 9998-259, Rem. Supp. 1949] prescribe that decisions of the Appeal Tribunal shall be deemed final "unless within ten days after the date of notification or mailing, whichever is the earlier, of such decision, further appeal is perfected pursuant to the provisions of this act relating to review by the Commissioner."

            Section 123 of the Unemployment Compensation Act [§ 9998-261, Rem. Supp. 1947] which concerns review by the Commissioner of Appeal Tribunal decisions provides:

            "Petition for Review by Commissioner.  Within ten days from the date of notification or mailing, whichever is the earlier, or any decision of an appeal tribunal, the Commissioner on his own order may, or upon petition of any interested party shall, take jurisdiction of the proceedings for the purpose of review thereof.  Appeal from any decision of an appeal tribunal may be perfected so as to prevent finality of such decision if, within ten days from the date of mailing the appeal tribunal decision, or notification thereof, whichever is the earlier, a petition in writing for review by the Commissioner is received by the Commissioner or by such representative of the Commissioner as the Commissioner by regulation shall prescribe.  The Commissioner may also prevent finality of any decision of an appeal tribunal and take jurisdiction of the proceedings for his review thereof by entering an order so providing on his own motion and mailing a copy thereof to the interested parties within the same period allowed herein for receipt of a petition for review.  The time limit provided herein for seeking review by the Commissioner and for the Commissioner's assumption of jurisdiction on his own motion for review shall be deemed to be jurisdictional."  (Emphasis ours).

            The above quoted statute is plain and the legislative intent too clear to admit of construction.  The Commissioner's authority to review decisions of the Appeal Tribunal is limited to ten days from the date of notification or mailing of the Appeal Tribunal decision and such time limit is specifically declared jurisdictional, thus precluding review subsequent to the lapse of  [[Orig. Op. Page 3]] such period of time, unless, pursuant to the above quoted statute, an interested party has petitioned the Commissioner for review or the Commissioner has assumed jurisdiction on his own motion.  To this effectLidke v. Brandt, 21 Wn. (2d) 137, 150 P. (2d) 399;In re Yand's Estate, 23 Wn. (2d) 831, 162 P. (2d) 434; Smith v. Department of Labor & Industries, 1 Wn. (2d) 305, 95 P. (2d) 1031, andMacVeigh v. Division of Unemployment Compensation, 19 Wn. (2d) 383, 142 P. (2d) 900.

            With reference to your inquiry concerning the Commissioner's authority to reconsider his own decisions for the purpose of modification or reversal when the parties concerned have failed to avail themselves of the opportunity of appeal to the Superior Court within the thirty-day period prescribed by Section 128 of the Unemployment Compensation Act, we direct your attention to Section 125 [§ 9998-263, Rem. Supp. 1945] which in part provides:

            "Finality of Commissioner's Decision.  Any decision of the Commissioner involving a review of an appeal tribunal decision, in the absence of an appeal therefrom as provided by this act, shall become final thirty days after the date of mailing written notification thereof * * *."

            The above quoted statute specifically provides for the finality of the decisions in question and it might be further noted that Section 128 of the Act [§ 9998-266, Rem. Supp. 1945] specifically provides that even the court has no jurisdiction to review such decisions unless the appellate procedures therein prescribed have been observed by the party desiring review of the Commissioner's decision.  It is essential that all steps prescribed by the Unemployment Compensation Act be followed in order to confer jurisdiction, first upon the Appeal Tribunal of the Employment Security Department, next upon the Commissioner and then upon the Superior Court.  Failure to comply with the requirements of the statute divest the appellate tribunals of jurisdiction to entertain hearings.  To this effectMacVeigh v. Division of Unemployment Compensation, 19 Wn. (2d) 383, 142 P. (2d) 900;Smith v. Department of Labor & Industries, 1 Wn. (2d) 305, 95 P. (2d) 1031;Lidke v. Brandt, 21 Wn. (2d) 137, 150 P. (2d) 399;In re Yand's Estate, 23 Wn. (2d) 831, 162 P. (2d) 434;In re Jullin, 23 Wn. (2d) 1, 158 P. (2d) 330, and Knestis, et al. v. U.C.&P. Division, 16 Wn. (2d) 577, 134 P. (2d) 76.

             [[Orig. Op. Page 4]]

            We are, therefore, of the opinion that the Commissioner of the Employment Security Department may not review Appeal Tribunal decisions nor reconsider his own decisions for the purpose of modification or reversal when the periods of time for review or appeal established by the Unemployment Compensation Act have elapsed.

Very truly yours,

SMITH TROY
Attorney General

WILLIAM J. MILLARD, JR.
Assistant Attorney General