2013 UT App 260
_________________________________________________________
THE UTAH COURT OF APPEALS
W. STEVEN EVERETT,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20130063‐CA
Filed October 31, 2013
Original Proceeding in this Court
W. Steven Everett, Petitioner Pro Se
Amanda D. McPeck, Attorney for Respondent
Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN and
JUDITH M. BILLINGS.1
PER CURIAM:
¶1 W. Steven Everett seeks review of the Workforce Appeals
Board’s (the Board) decision denying him benefits and assessing a
statutory penalty against him for fraudulently obtaining
unemployment benefits.
¶2 In Carbon County v. Workforce Appeals Board, our supreme
court set forth the standard of review to be used in reviewing the
Board’s decision concerning a person’s request for unemployment
benefits. See Carbon County v. Workforce Appeals Board, 2013 UT 41,
¶ 7, 308 P.3d 477. Specifically, such a determination is reviewed as
1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11‐201(6).
Everett v. Department of Workforce Services
a mixed question of fact and law that is more fact‐like because “the
case ‘does not lend itself to consistent resolution by a uniform body
of appellate precedent.’” Id. (citation omitted). Accordingly, the
Board’s determinations are entitled to deference because “‘the
appellate court would be in an inferior position to review the
“correctness” of the . . . decision.’” Id. (citation omitted). The
Board’s determination of fraud involves the same fact‐like inquiry.
Accordingly, the Board’s determination of fraud is likewise entitled
to deference.
¶3 A claimant for unemployment benefits is ineligible to
receive benefits for any particular week in which the claimant
obtains a benefit “by willfully making a false statement or
representation or by knowingly failing to report a material fact.”
Utah Code Ann. § 35A‐4‐405(5)(a) (LexisNexis Supp. 2012). As a
result, if a claimant obtains unemployment benefits based upon
false information to which he was not entitled, the claimant must
repay any amounts received. See id. § 35A‐4‐405(5)(c)(i). Further,
the claimant must pay, as a civil penalty, an amount equal to the
amounts received as a result of the fraud. See id.
¶4 The Department of Workforce Services’s (the Department)
rules state that “[f]raud requires a willful misrepresentation or
concealment of information for the purpose of obtaining
unemployment benefits.” Utah Admin. Code R994‐406‐401(2).
Thus, in order to establish fraud, the Department must establish
materiality of the statement, knowledge, and willfulness. See id.
R994‐406‐401(1). “Materiality is established when a claimant makes
false statements or fails to provide accurate information for the
purpose of obtaining . . . any benefit payment to which the claimant
is not entitled.” Id. R994‐406‐401(1)(a)(i)(A). Knowledge is
established when the claimant knew or should have known that the
information submitted to the Department was incorrect or that the
claimant failed to provide required information. See id. R994‐406‐
401(1)(b). Finally, “[w]illfulness is established when a claimant files
claims or other documents containing false statements, responses
or deliberate omissions.” Id. R994‐406‐401(1)(c).
20130063‐CA 2 2013 UT App 260
Everett v. Department of Workforce Services
¶5 Here, the evidence supports the Board’s findings and
ultimate conclusions. During the two weeks in question, Everett
obtained paid employment and worked for forty hours each of
those weeks. However, in submitting his weekly claim for benefits,
Everett answered “no” to the Department’s question, “During the
week, did you work or attend paid training?” Because these
statements were false and were made for the purpose of obtaining
benefits for which Everett was not eligible, they support findings
of materiality and willfulness. Further, because Everett knew or
should have known that his statements were false, the statements
also support a finding of knowledge.
¶6 Everett argues that he did not commit fraud because upon
obtaining his employment he contacted an employee of the
Department. He explained to the employee that he had to go
through testing during the first two weeks of his job, and that if he
did not pass those tests, he would not be retained. Everett asserts
that after being told this information, the employee told Everett to
continue filing claims until his employment was secure. Everett
contends that this is exactly what he did. However, the employee
merely told him to continue submitting claims; he did not tell
Everett how to answer the questions in submitting that claim or to
include false information in his claim.2
¶7 Accordingly, we decline to disturb the Board’s decision.
2. Further, even if Everett believed that he was not going to get
paid for the two‐week probationary period if he was not retained,
he was required to notify the Department once he became aware
that his answers about being paid for those two weeks were
incorrect. See Hasratian v. Department of Workforce Services, 2013 UT
App 79, ¶ 7, 300 P.3d 324.
20130063‐CA 3 2013 UT App 260