dissenting:
I disagree with the finding of the majority, in reversing, that the Board’s decision allowing recoupment was void and unenforceable. Both plaintiffs had received unemployment benefits for a number of weeks, and when the department learned that they had each received awards of back pay for the same period in settlement of the NLRB action against their employer, the department started action to recoup the benefits paid to plaintiffs. Initially, a claims adjudicator reconsidered previous determinations of eligibility and found that plaintiffs were ineligible during the period they had received back pay. Thereafter, a referee conducted a full hearing and found that the department was entitled to recoupment because each plaintiff “was not an unemployed individual” during the weeks she received the back pay. On appeal, the Board of Review adopted the decisions of the referee, and plaintiffs then filed separate complaints for administrative review in the circuit court. They were consolidated, and after a number of hearings the court affirmed the Board’s decisions.
The majority has reversed on the basis of a finding that the re-considerations of eligibility by the claims adjudicator were not undertaken within one year after plaintiffs had received their last benefit checks. This was required, according to the majority, under section 703 of the Act. There is, however, no language in section 703 or elsewhere in the Act which applies the limitation of section 703 to recoupment under section 900.
Section 702 requires the claims adjudicator to make weekly determinations of eligibility for benéfits while section 703 requires that reconsideration of these weekly findings be undertaken within one year. Specifically, section 703 provides that the claims adjudicator “may reconsider his determination at any time within one year after the last day of the week for which the determination was made, except that if the issue is whether or not the claimant misstated his earnings for the week, such reconsidered determination may be made at any time within two years after the last day of the week.” There was no reconsideration as to any such weekly ruling here; rather, the claims adjudicator, on reconsideration, made a finding that the department was entitled to recoupment because plaintiffs were ineligible for benefits during the period for which they received the back-pay payments.
Additionally, it appears to me that the legislature did not intend to apply the one-year limitation of section 703 to a recoupment proceeding, not only because the Department may not learn within one year of its entitlement to recoupment, but also because a right to recoupment may not arise within that time, as could have been the situation here if the NLRB action had not been settled since it conceivably could have taken more than a year to conclude.
More significantly, however, is the fact that there is nothing in section 703 placing any time limitation on the reconsidered finding of a referee. It is clear here that the referee, after a full hearing, upheld recoupment on the basis that neither plaintiff was an unemployed individual during the period she received the back pay. Section 900(A)(2) provides for recoupment within three years from the reconsidered finding of a referee. Thus, even assuming that section 703 applies to a recoupment proceeding, it contains no time limitation as to a referee’s decision, and since proceedings were instituted here within three years, the majority mistakenly found that the Board’s decision affirming the referee was void and unenforceable.
Furthermore, the time limitation of section 703 does not apply to a proceeding under section 900(A)(1), which provides for recoupment at any time where a recipient “knowingly failed to disclose a material fact.” It appears clear here that plaintiffs failed to make such a disclosure when they did not reveal that they had an NLRB lawsuit pending for back pay or that they subsequently received back-pay payments in settlement of the action. Thus, the decision of the Board should be affirmed because recoupment was properly awarded under the provisions of section 900(A)(1).
The decision was also proper under section 900(D), which provides in pertinent part that “[wjhenever, by reason of a back pay award made by any governmental agency *** an individual has received wages for weeks with respect to which he has received benefits, the amount of such benefits may be recouped or otherwise recovered as herein provided.” The back-pay awards here were made by a governmental agency, and, since the action of the department was within the time limitation of section 900(A)(2), the Board properly found that it was entitled to recoupment. In light of the foregoing, I believe that the majority erroneously found the Board’s decisions to be void and unenforceable.
Moreover, it is clear to me that plaintiff Weingart’s action should have been barred because she failed to file her complaint within 35 days of receiving notice of the Board’s decision, as she was required to do under section 3 — 103 of the Administrative Review Act (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 103). The majority, agreeing that her action would ordinarily be barred by this section, held to the contrary because the Board’s decision was void and unenforceable. Since the decision was improperly found to be void and unenforceable, the majority should have found that plaintiff Weingart’s action was not timely filed.
I would affirm the decision appealed from.