HB 2178--
By Representative Nichols

AN ACT concerning the employment security law; relating to hearing procedures thereunder; amending K.S.A. 1996 Supp. 44-709 and re- pealing the existing section. Be it enacted by the Legislature of the State of Kansas: Section 1. K.S.A. 1996 Supp. 44-709 is hereby amended to read as follows: 44-709. (a) Filing. Claims for benefits shall be made in accor- dance with rules and regulations adopted by the secretary. The secretary shall furnish a copy of such rules and regulations to any individual re- questing them. Each employer shall post and maintain printed statements furnished by the secretary without cost to the employer in places readily accessible to individuals in the service of the employer. (b) Determination. (1) Except as otherwise provided in this subsec- tion (b)(1), a representative designated by the secretary, and hereinafter referred to as an examiner, shall promptly examine the claim and, on the basis of the facts found by the examiner, shall determine whether or not the claim is valid. If the examiner determines that the claim is valid, the examiner shall determine the first day of the benefit year, the weekly benefit amount and the total amount of benefits payable with respect to the benefit year. If the claim is determined to be valid, the examiner shall mail a notice to the last employing unit who shall respond within 10 days by providing the examiner all requested information including all infor- mation required for a decision under K.S.A. 44-706 and amendments thereto. The information may be submitted by the employing unit in person at an employment office of the secretary or by mail. If the required information is not submitted or postmarked within a response time limit of 10 days after the mailing date of the examiner's notice, the employing unit shall be deemed to have waived its standing as a party to the pro- ceedings arising from the claim and shall be barred from protesting any subsequent decisions about the claim by the secretary, a referee, the board of review or any court, except that the employing unit's response time limit may be waived or extended by the examiner or upon appeal, if timely response was impossible due to excusable neglect. In any case in which the payment or denial of benefits will be determined by the provisions of subsection (d) of K.S.A. 44-706 and amendments thereto, the examiner shall promptly transmit the claim to a special examiner des- ignated by the secretary to make a determination on the claim after the investigation as the special examiner deems necessary. The parties shall be promptly notified of the special examiner's decision and any party aggrieved by the decision may appeal to the referee as provided in sub- section (c). The claimant and the claimant's most recent employing unit shall be promptly notified of the examiner's or special examiner's decision. (2) The examiner may for good cause reconsider the examiner's de- cision and shall promptly notify the claimant and the most recent em- ploying unit of the claimant, that the decision of the examiner is to be reconsidered, except that no reconsideration shall be made after the ter- mination of the benefit year. (3) Notwithstanding the provisions of any other statute, a decision of an examiner or special examiner shall be final unless the claimant or the most recent employing unit of the claimant files an appeal from the de- cision as provided in subsection (c). The appeal must be filed within 16 calendar days after the mailing of notice to the last known addresses of the claimant and employing unit or, if notice is not by mail, within 16 calendar days after the delivery of the notice to the parties. (c) Appeals. Unless the appeal is withdrawn, a referee, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and decision of the examiner or special examiner. The parties shall be duly notified of the referee's decision, together with the reasons for the decision. The decision shall be final, notwithstanding the provisions of any other statute, unless a further appeal to the board of review is filed within 16 calendar days after the mailing of the decision to the parties' last known addresses or, if notice is not by mail, within 16 calendar days after the delivery of the decision. (d) Referees. The secretary shall appoint, in accordance with subsec- tion (c) of K.S.A. 44-714 and amendments thereto, one or more referees to hear and decide disputed claims. (e) Time, computation and extension. In computing the period of time for an employing unit response or for appeals under this section from the examiner's or the special examiner's determination or from the referee's decision, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. (f) Board of review. (1) There is hereby created a board of review, hereinafter referred to as the board, consisting of three members. Except as provided by paragraph (2) of this subsection, each member of the board shall be appointed for a term of four years as provided in this subsection. Two members shall be appointed by the governor, subject to confirmation by the senate as provided in K.S.A. 75-4315b and amendments thereto. Except as provided by K.S.A. 1996 Supp. 46-2601, no person appointed to the board, whose appointment is subject to confirmation by the senate, shall exercise any power, duty or function as a member until confirmed by the senate. One member shall be representative of employees, one member shall be representative of employers, and one member shall be representative of the public in general. The appointment of the employee representative member of the board shall be made by the governor from a list of three nominations submitted by the Kansas A.F.L.-C.I.O. The appointment of the employer representative member of the board shall be made by the governor from a list of three nominations submitted by the Kansas chamber of commerce and industry. The appointment of the public representative member of the board, who, because of vocation, occupation or affiliation may be deemed not to be representative of either management or labor, shall be made by the members appointed by the governor as employee representative and employer representative. If the two members do not agree and fail to make the appointment of the public member within 30 days after the expiration of the public member's term of office, the governor shall appoint the representative of the public. Not more than two members of the board shall belong to the same political party. (2) The terms of members who are serving on the board on the ef- fective date of this act shall expire on March 15, of the year in which such member's term would have expired under the provisions of this section prior to amendment by this act. Thereafter, members shall be appointed for terms of four years and until their successors are appointed and con- firmed. (3) Each member of the board shall serve until a successor has been appointed and confirmed. Any vacancy in the membership of the board occurring prior to expiration of a term shall be filled by appointment for the unexpired term in the same manner as provided for original appoint- ment of the member. Each member shall be appointed as representative of the same special interest group represented by the predecessor of the member. (4) Each member of the board shall be entitled to receive as com- pensation for the member's services at the rate of $15,000 per year, which rate of compensation shall be effective retroactively to the beginning of the first payroll period chargeable to the fiscal year ending June 30, 1994, together with the member's travel and other necessary expenses actually incurred in the performance of the member's official duties in accordance with rules and regulations adopted by the secretary. Members' compen- sation and expenses shall be paid from the employment security admin- istration fund. (5) The board shall organize annually by the election of a chairperson from among its members. The chairperson shall serve in that capacity for a term of one year and until a successor is elected. The board shall meet on the first Monday of each month or on the call of the chairperson or any two members of the board at the place designated. The secretary of human resources shall appoint an executive secretary of the board and the executive secretary shall attend the meetings of the board. (6) The board, on its own motion, may affirm, modify or set aside any decision of a referee on the basis of the evidence previously submitted in the case; may direct the taking of additional evidence; or may permit any of the parties to initiate further appeal before it. The board shall permit such further appeal by any of the parties interested in a decision of a referee which overrules or modifies the decision of an examiner. The board may remove to itself the proceedings on any claim pending before a referee. Any proceedings so removed to the board shall be heard in accordance with the requirements of subsection (c). The board shall promptly notify the interested parties of its findings and decision. (7) Two members of the board shall constitute a quorum and no action of the board shall be valid unless it has the concurrence of at least two members. A vacancy on the board shall not impair the right of a quorum to exercise all the rights and perform all the duties of the board. (g) Procedure. The manner in which disputed claims are presented, the reports on claims required from the claimant and from employers and the conduct of hearings and appeals shall be in accordance with rules of procedure prescribed by the board for determining the rights of the parties, whether or not such rules conform to common law or statutory rules of evidence and other technical rules of procedure. A full and com- plete record shall be kept of all proceedings and decisions in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed. In the performance of its official duties, the board shall have access to all of the records which pertain to the disputed claim and are in the custody of the secretary of human resources and shall receive the assistance of the secretary upon request. When reasonably possible, all parties and witnesses shall appear in person before the referee except as provided below: (1) The referee may allow a party or witness to appear by telephone if: (A) Due to geographic distance, incarceration, hospitalization, or in- clement weather, it is not reasonable for the party or witness to appear in person before the hearing officer; (B) to do so permits confrontation and cross-examination of the party or witness not otherwise possible; and (C) the telephone equipment permits simultaneous participation of all parties. (2) The chief of appeals may determine that participation by tele- phone is necessary for the fair disposition of the appeal. (3) A duly authorized representative shall not appear by telephone at a geographic location different than the party represented, except when appearing as a witness only. (4) Documentary evidence shall be submitted in advance of the hear- ing whenever possible by mailing copies to the referee and opposing party. However, the referee shall allow the submission of documentary evidence at the hearing or after the hearing if to do so is necessary for the fair disposition of the appeal. (h) Witness fees. Witnesses subpoenaed pursuant to this section shall be allowed fees and necessary travel expenses at rates fixed by the board. Such fees and expenses shall be deemed a part of the expense of admin- istering this act. (i) Court review. Any action of the board is subject to review in ac- cordance with the act for judicial review and civil enforcement of agency actions. No bond shall be required for commencing an action for such review. In the absence of an action for such review, the action of the board shall become final 16 calendar days after the date of the mailing of the decision. In addition to those persons having standing pursuant to K.S.A. 77-611 and amendments thereto, the examiner shall have standing to obtain judicial review of an action of the board. The review proceeding, and the questions of law certified, shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under the workers compensation act. (j) Any finding of fact or law, judgment, determination, conclusion or final order made by the board of review or any examiner, special exam- iner, referee or other person with authority to make findings of fact or law pursuant to the employment security law is not admissible or binding in any separate or subsequent action or proceeding, between a person and a present or previous employer brought before an arbitrator, court or judge of the state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts. Sec. 2. K.S.A. 1996 Supp. 44-709 is hereby repealed. Sec. 3. This act shall take effect and be in force from and after its publication in the statute book.