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    CAMPBELL COUNTY SCHOOL DISTRICT, State of Wyoming, and Lincoln County School District No. 1, State of Wyoming, Appellants (Plaintiffs), v. Judy CATCHPOLE, Superintendent of Public Instruction, State of Wyoming, in her official capacity; Cynthia Lummis, Wyoming State Treasurer, in her official capacity; and Max Maxfield, Wyoming State Auditor, in his official capacity, Appellees (Defendants).
    No. 98-310.
    Supreme Court of Wyoming.
    June 23, 2000.

      Representing Appellants: Ford T. Bussart of Bussart, West, Rossetti, Piaia & Tyler, P.C., Rock Springs, WY. Argument by Mr. Bussart.
    Representing Appellees: Gay Woodhouse, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Rowena L. Heckert, Senior Assistant Attorney General. Argument by Ms. Heckert.
    Before LEHMAN, C.J., and THOMAS, MACY, and GOLDEN, JJ., and VOIGT, D.J.

       Retired June 2, 2000.

   LEHMAN, Chief Justice.

Appellants Campbell County School District and Lincoln County School District No. 1 (Campbell and Lincoln 1, or the Districts) claim they are entitled to a rebate of excess recapture monies they paid to the Department of Education. Because we conclude the district court erred in its interpretation of the recapture statute, Wyo. Stat. Ann. § 21-13-102 (Michie 1997), we reverse its denial of the Districts' claim for declaratory relief.

ISSUES

The Districts present the following issue for review:

Whether Appellees (Defendants) have unlawfully refused to rebate to Appellant School Districts (Plaintiffs) overpayments of "recapture" revenues paid by the Districts to the State of Wyoming for the following fiscal years:
Campbell County School District-Fiscal Years 1994, 1995, and 1996 Lincoln County School District Number One-Fiscal Years 1995 and 1996

FACTS

Appellant Districts are "recapture districts" as defined by Wyoming's public education finance statutes, specifically Wyo. Stat. Ann. § 21-13-102. That is, they are school districts in which locally generated revenue exceeds 109% of the amount to which each district is entitled for operation during a fiscal year under the Wyoming public education foundation program, Wyo. Stat. Ann. § 21-13-8301 through 317. Under the version of Wyo. Stat. Ann. § 21-18-102(b) in effect at all times relevant to this case, recapture districts were required to rebate to the Department of Education (the Department) the amount by which locally generated revenue exceeded 109% of foundation program costs. The amount rebated by these districts is thus "recaptured" by the Department and credited to the public school foundation program account.

Pursuant to subsection (e) of Wyo. Stat. Ann. § 21-13-102, the amount to be rebated to the Department by recapture districts for a particular year is initially determined by estimates, based upon data from the preceding school year, computed by the Department in August of each fiscal year. The August estimates are superseded later in the fiscal year by recapture amounts certified by the Department to the districts no later than March 1. Wyo. Stat. Ann. § 21-18-102(e). Under subsection (b) of the statute, recapture districts are required to pay recapture in installments on January 15, March 15, and April 15, with the balance to be paid on June 15.

The dispute in this case arose when the Districts, relying on Wyo. Stat. Ann. § 21-13-102(c), sought a refund of amounts of recapture they claim to have overpaid. The Districts claimed to have rebated more to the Department than the amount by which actual revenues exceeded 109% of foundation program costs in the following years and amounts:

Campbell Cty. Lincoln Cty. Sch. "Sch. Dist. Dist. No. 1 FY 1993/94 $162,832 FY 1994/95 $342,493 $209,483 FY 1995/96 $435,419 $176,999

These alleged discrepancies exist because recapture estimates are based on assessed values, and the counties were either unable to collect all that was assessed or were required to refund some amounts.

Based on these figures, in May of 1995, Campbell sent a letter to the Department requesting recalculation and recertification of the amount of recapture due for fiscal years 1993/94 and 1994/95. By letter dated June 12, 1995, the Department refused Campbell's request, stating that "[the current law simply grants us no authority to recalculate and recertify the amount of recapture due." The Department further stated in its letter: "In accordance with W.S. 21-13-102(b) and (e), the final amount of recapture must be certified to the districts no later than March 1 of each year."

Following the Department's refusal to recalculate the amount of Campbell's recapture, the Districts began to file claims with the state auditor. In May of 1996, Lincoln 1 filed a claim with the state auditor, pursuant to Wyo. Stat. Ann. § 9-1-404, for repayment of the excess recapture it paid for fiscal year 1994/95. Two days later, on May 24, Campbell filed a similar claim with the state auditor for repayment of the excess amounts it paid for 1998/94 and 1994/95. These claims were denied by the state auditor on July 15, 1996. A month later, Campbell and Lincoln 1 filed claims with the auditor for repayment of the excess payments made for fiscal year 1995/96. Nothing in the record indicates the state auditor ever responded to these claims.

On November 21, 1996, Campbell and Lincoln 1 filed a complaint for declaratory relief in district court against the state superintendent of public instruction, the state treasurer and the state auditor (hereinafter the state defendants or State) alleging overpayment of recapture in amounts totaling $940,244 and $476,437 respectively. The Districts asked the court to enter an order declaring the purpose of, and duties of the Department under, Wyo. Stat. Ann. § 21-13-102(c). They also asked the court to direct payment to the Districts of the amounts in question.

On December 17, 1996, the state defendants filed an answer in which they claimed the court lacked jurisdiction because the recapture statute at issue was declared unconstitutional in Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1267-69 (1995). The state defendants also raised numerous affirmative defenses, including failure to state a claim; judicial, collateral and equitable estop-pel; res judicata; failure to exhaust administrative remedies; waiver; and laches. On July 20, 1998, a trial to the bench on stipulated facts was held in district court.

Following trial, the district court issued a decision letter ruling the Department's interpretation of Wyo. Stat. Ann. § 21-13-102(c) should be given effect. Under that interpretation, final recapture amounts would be based on assessed valuations, without regard for revenue actually received by the school districts. Although referring to the Department's interpretation as "strained," the court concluded the agency interpretation of the statute is entitled to deference. A judgment was later filed referencing the decision letter and denying the Districts' claim for declaratory relief. This timely appeal followed.

DISCUSSION

Before addressing what we view as the real issue in this case, that is, the meaning of Wyo. Stat. Ann. § 21-18-102(c), we will address whether the Districts' claim is precluded for any of the reasons advanced by the State. Because the State has not filed a cross-appeal, the Districts argue the State should not be permitted to assert these issues. We disagree. We have written:

The rules are well settled concerning matters which an appellee properly may raise in response to an appeal taken by the adverse party. An appellee need not cross-appeal to assert an alternative theory, offered to and rejected by the district court, which would support the district court's ultimate disposition of the case. First Wyoming Bank, N.A., Rawlins v. Trans Mountain Sales & Leasing, Inc., Wyo., 602 P.2d 1219 (1979). Conversely, to attack the effect of the judgment, an appellee must perfect a cross-appeal to this court. Wyoming State Treasurer v. City of Casper, Wyo., 551 P.2d 687 (1976). We said in Wyoming State Treasurer, 551 P.2d at 693:

"The controlling rule has been settled for many years. In United States v. American Railway Express Co., 1924, 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087, 1093, it was said:
"*... [A] party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. .. .'
"In summary, a non-appealing party may not attack the ultimate effect of the judgment below but may support it by any matter appearing in the record. The rejection of a contention, argument or theory in support of a claim does not reject the final upholding of the claim itself."

Broyles v. Broyles, 711 P.2d 1119, 1123 (Wyo.1985). See also Dechert v. Christopulos, 604 P.2d 1039, 1046 (Wyo.1980). Here, the pre-clusive doctrines advanced by the State would serve to uphold the district court's ultimate disposition of the case and are properly before us despite the lack of a cross-appeal. Our decision of these issues is further assisted because, although it did not address these issues in its decision letter, the district court heard extensive argument by the State on these issues at the trial on stipulated facts.

Estoppel

The State advances the theories of res judicata, collateral estoppel, and judicial estoppel to support its contention that our decision in Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo.1995) precludes the present action. In essence, the argument is that a party cannot seek enforcement of an unconstitutional statute.

In Campbell County Sch. Dist. v. State, we held the recapture statute unconstitutional because we found that the statutory percentage (109%) of the foundation guarantee recapture districts were allowed to retain was arbitrary and not the result of any formula or calculation as required by our earlier school finance decision, Washakie County Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo.1980). Campbell County Sch. Dist. v. State, 907 P.2d at 1267-69. In our conclusion to the Campbell County case, we stated:

Nothing in this decision shall be construed to interfere with, impair, or adversely affect existing bond obligations of the various school districts throughout the state. We realize the legislature must be afforded ample time for adequate study, drafting of appropriate reform legislation, and debate on and passage of that legislation. Consequently, as we did in Washak-ie, we shall provide a reasonable period for the legislature to achieve constitutional compliance.

Campbell, 907 P.2d at 1280. In our order denying rehearing of the case, we emphasized:

The opinion and decision of the court was implicit in its language that it was prospective in operation and not intended to disturb present statutory provisions for financing of school operations, including bonded indebtedness.

Campbell, 907 P.2d at 1281. Consistent with the prospective nature of the opinion, we further ordered that >

the school finance system of the state of Wyoming continue under existing statutes, and the validity and enforceability of past and future acts, bonded indebtedness and obligations incurred under applicable statutes, as long as they remain in force and effect, are assured.

Id. Given the prospective nature of our holding in Campbell, and the clear language leay-ing the statutes in effect until the enactment of replacement legislation, we reject the State's contention that the Districts' claim for declaratory relief is precluded by our holding in Campbell.

Failure to File Timely Claim with Auditor

Relying on Wyo. Stat. Ann. § 9-1-404 (Michie 1997), the State argues Campbell County's claim for the 1998-94 fiscal year is barred because it failed to file a claim with the State Auditor in a timely fashion. That statute provides:

§ 9-1-404. Specified claims against state to be presented within one year.
Except as provided by W.S. 1-89-101 through 1-39-120, persons having claims against the state shall document the claim and submit it to the state auditor within one (1) year after the claim accrues, to be audited, settled and acted upon.

Prior to the advent of the Wyoming Governmental Claims Act (Wyo. Stat. Ann. § 1-39-101 et seq.), this court had several opportunities to interpret § 9-1-404 and its predecessors. In those cases, it was determined that a plaintiff's claim with the auditing officer is a condition precedent to suit that cannot be waived. Rissler & McMurry Co. v. Wyoming Highway Dep't, 582 P.2d 583, 584 (Wyo.1978); Wyoming State Highway Dep't v. Napolitano, 578 P.2d 1342, 1345 (Wyo.1978); Awe v. University of Wyoming, 534 P.2d 97, 100 (Wyo.1975); Price v. State Highway Comm'n, 62 Wyo. 385, 396, 167 P.2d 309, 812 (Wyo.1946); Utah Constr. Co. v. State Highway Comm'n, 45 Wyo. 403, 422-25, 19 P.2d 951, 954-55 (1983). Such a condition precedent is jurisdictional in nature. Board of Trustees of University of Wyoming v. Bell, 662 P.2d 410, 414 (Wyo.1983); Utah Constr. Co. v. State Highway Comm'n, 45 Wyo. at 422-25, 19 P.2d at 954-55.

Despite numerous cases interpreting § 9-1-404, this court has never decided whether a notice of claim is required in cases between government agencies. We have, however, determined when the time to file such a notice of claim commences:

If it were to be determined that a notice of claim is required in intergovernmental relationships, which decision is not presently made, we would discern that the time com-mencees when the authorizing agency computes and advises whatever sum will be paid or withheld and why.

Simons v. Laramie County Sch. Dist. No. One, 741 P.2d 1116, 1121 (Wyo.1987).

Because we will conclude that Campbell's claim was timely, we again need not decide whether a notice of claim is required in intergovernmental suits that do not fall within the parameters of the Wyoming Governmental Claims Act. In May of 1995, Campbell sent a letter to the Department requesting recalculation and recertification of the amount of recapture due from the District for fiscal years 1993/94 and 1994/95. By letter dated June 12, 1995, the Department refused Campbell's request, stating that "[the current law simply grants us no authority to recalculate and recertify the amount of recapture due." The State contends Campbell's claim for the 1998/94 fiscal year accrued on July 15, 1994, the date on or before which the Department of Education is required to compute maximum and final recapture. Wyo. Stat. Ann. § 21-13-102(c). However, while that subsection requires computation by July 15, there is nothing in that subsection or elsewhere indicating who must be notified of the results of the Department's computation, or the date any notification must be accomplished. Moreover, there is nothing in the record indicating Campbell County, prior to the Department's letter of June 12, 1995, had notice of the Department's refusal to recalculate and recertify recapture. Therefore, under Simons, Campbell's claim for the 1998/94 fiscal year accrued, at the earliest, on June 12, 1995, the date of the Department's letter. Campbell filed its claim with the auditor within one year of that date, on May 24, 1996, thus making its claim timely.

As for subsequent fiscal years, we will also conclude those claims were timely. We agree with the State's contention these later claims arose each July 15 because, after the Department's letter of June 12, 1995, the Department successfully provided notice that it would not perform any computations pursuant to § 21-18-102(c). Given these circumstances, we conclude that any claims for fiscal years following the department's letter of June 12, 1995, would accrue on the July 15 following the particular fiscal year. Applying the foregoing, claims for all fiscal years at issue were filed in a timely fashion under § 9-1-404.

Failure to Exhaust Administrative Remedies

The State next claims the Districts have failed to exhaust administrative remedies, arguing the Districts were required to request certification of the auditor's findings. We disagree. The relevant statute, Wyo. Stat. Ann. § 9-1-407 (Lexis 1999), provides in pertinent part:

(a) At the request of a person who is dissatisfied with the decision of the auditor on any claim, account or credit except as provided by W.S. 1-39-101 through 1-39-120, the auditor shall certify his findings and decision.

First, nothing in § 9-1-407(a) requires the Districts to request certification of findings, and we would be hard pressed to find a failure to exhaust for failing to request findings. In addition, we perceive the question to be whether the Districts exhausted their remedies with the administrative agency, the Department of Education, not with the auditor. We can find no failure to exhaust based on the State's contention.

Availability of Declaratory Judgment

The State further asserts the Dis-triects' claim is precluded because they failed to file timely petitions for review and a declaratory judgment action should not substitute therefor. We again disagree. In Rocky Mountain Oil and Gas Ass'n v. State, 645 P.2d 1163, 1166-69 (Wyo.1982), this court permitted a declaratory judgment action to go forward despite the absence of a timely petition for review of administrative action. The basis for such a conclusion was found in the Uniform Declaratory Judgment Act, specifically Wyo. Stat. Ann. § 1-37-102 and -114 (Lexis 1999), and in W.R.A.P. 12.12, which provides:

The relief, review, or redress available in suits for injunction against agency action or enforcement, in actions for recovery of money, in actions for a declaratory judgment based on agency action or inaction, in actions seeking any common law writ to compel, review or restrain agency action shall be available by independent action notwithstanding any petition for review.

(Emphasis supplied.)

The Rocky Mountain Oil and Gas court wrote:

Ordinarily, a declaratory judgment action is not a substitute for an appeal. School Districts Nos. 2, 8, 6, 9, and 10, Campbell County v. Cook, Wyo., 424 P.2d 751 (1967); Stahl v. Wilson, Fla App., 121 So.2d 662 (1960); Sparks v. Brock & Blevins, Inc., 274 Ala, 147, 145 SoZ2d 844 (1962); and Bryarly v. State, 232 Ind. 47, 111 N.E.2d 277 (1958). But such direct action is often available "even though there was a statutory method of appeal," School Districts Nos. 2, 8, 6, 9 and 10, Campbell County v. Cook, supra, 424 P.2d at 755. ...
However, there is a restriction on the availability of a declaratory judgment action with reference to its applicability to administrative matters. Where the action would result in a prejudging of issues that should be decided in the first instance by an administrative body, it should not lie. This is because, if it be otherwise, all decisions by the several agencies could be bypassed, and the district court would be administering the activities of the executive branch of the government. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 78 S.Ct. 236, 97 L.Ed. 291 (1952); and City of Cheyenne v. Sims, Wyo., 521 P.2d 1347 (1974). This restriction on the seope of declaratory judgments is akin to the requirement that administrative remedies must be exhausted before judicial relief is available.
Accordingly, where the relief desired is in the nature of a substitution of judicial decision for that of the ageney on issues pertaining to the administration of the subject matter for which the agency was created, the action should not be entertained. If, however, such desired relief concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based, the action should be entertained. This is no more than that obviously and plainly provided for in the language of the Uniform Declaratory Judgments Act.

Rocky Mountain Oil and Gas Ass'n v. State, 645 P.2d at 1168-69 (emphasis supplied). The court further concluded:

| Inasmuch as a declaratory judgment action is available to appellees as an independent action, separate and apart from a petition for review, the time in which a petition for review must be filed is immaterial.

Id. at 1169.

Applying the principles found in Rocky Mountain Oil and Gas Ass'n v. State, 645 P.2d at 1168, we will conclude that a declaratory judgment action is permissible under the circumstances of this case. The Districts are challenging the Department's interpretation of its governing statutes, specifically the Department's assertions that "{the current law simply grants us no authority to recalculate and recertify the amount of recapture due" and "[in accordance with W.S. 21-13-102(b) and (e), the final amount of recapture must be certified to the districts no later than March 1 of each year." As such, this declaratory judgment action presents matters of statutory interpretation which are clearly permitted to be brought via a declaratory judgment action. State v. Kraus, 706 P.2d 1130, 1183 (Wyo. 1985); Rocky Mountain Oil and Gas Ass'n v. State, 645 P.2d at 1168; State Bd. of Equalization v. Jackson Hole Ski Corp., 737 P.2d 350, 354 (Wyo.1987), modified on other grounds, 745 P.2d 58 (Wyo.1987); see also Hirschfield v. Board of County Comm'rs of County of Teton, 944 P.2d 1189, 1142 (Wyo. 1997) (proper to challenge Board's application of a rule of parliamentary procedure via declaratory judgment action); Goedert ex rel. Wolfe v. State ex rel. Workers' Safety and Compensation Div., 991 P.2d 1225, 1228 (Wyo.1999). Along the same lines, because the Districts' claim concerns the interpretation of a statute upon which the administrative action is, or is to be, based, there is no "substitution of judicial decision for that of the agency on issues pertaining to the administration of the subject matter for which the agency was created." Rocky Mountain Oil and Gas Ass'n v. State, 645 P.2d at 1168; of. City of Cheyenne v. Sims, 521 P.2d 1847, 1348-49 (Wyo.1974) (question of tax exemption, because it depends on use of property, is a question of fact reserved to administrative body); Sheridan Retirement Partners v. City of Sheridan, 950 P.2d 554, 557 (Wyo. 1997) (classification of project as multiple unit dwelling under the municipal code is "unquestionably agency function"). On the strength of the foregoing, we conclude the Districts' declaratory judgment action is permissible.

Laches and Waiver

The State also advances the doe-trines of laches and waiver. In an interesting twist on laches, the State argues the Districts' failure to challenge the Department's interpretation of § 21-18-102 for the years 1984 through 1990 amounts to an unreasonable delay. Relying on the same circumstances, the State argues the Districts' have also waived their claims.

"The defense of laches 'is a form of equitable estoppel based on a[n] unreasonable delay by a party in asserting a right.'" Goshen Irr. Dist. v. State Bd. of Control, 926 P.2d 948, 949 (Wyo.1996) (quoting Squaw Mountain Cattle Co. v. Bowen, 804 P.2d 1292, 1297 (Wyo.1991)). "Laches does not depend on the passage of time alone; the plaintiff must be chargeable with lack of diligence in failing to proceed more promptly." Id. In addition, unless the delay has worked an injustice, prejudice or disadvantage to the defendant, it is not of itself laches. Miller v. Stovall, TIT P.2d 798, 807 (Wyo.1986); Murphy v. Stevens, 645 P .2d 82, 91 (Wyo.1982); Hartnett v. Jones, 629 P.2d 1357, 1364 (Wyo.1981).

The State's reliance on laches is misplaced. We have written that "[glovern-ments and their agencies are generally not barred by laches when enforcing a public or governmental right." Big Piney Oil & Gas Co. v. Wyoming Oil and Gas Conservation Comm'n, TIS P.2d 557, 561 (Wyo.1986). In addition, we find little evidence of injustice, prejudice, or disadvantage to the defendants. We conclude laches does not preclude the present action.

We likewise reject the State's waiver claim because there is no indication that the Districts waived their claims for the fiscal years in question. We can find no "intentional relinquishment of a known right . manifested] in some unequivocal manner." In re Wright, 983 P.2d 1227, 1231 (Wyo.1999). The State's contention is more akin to an equitable estoppel. However, estoppel should not be invoked against a government or public agency fune-tioning in its governmental capacity, except in rare and unusual ..." Big Piney Oil & Gas Co. v. Wyoming Oil and Gas Conservation Comm'n, TIS P.2d at 560; State Highway Comm'n v. Sheridan-Johnson Rural Electrification Ass'n, 784 P.2d 588, 592 (Wyo.1989). We find no such circumstances here.

Recapture Statute

We turn, therefore, to the statute which is the focus of this dispute. We review a district court's statutory interpretation on a de novo basis. Corkill v. Knowles, 955 P.2d 488, 440 (Wyo0.1998). In performing our review, we look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Olheiser v. State ex rel. Worker's Compensation Div., 866 P.2d 768, TIO (Wyo.1994), citing Parker Land & Cattle Co. v. Game & Fish Comm'n, 8A5 P .2d 1040, 1042-48 (Wyo.19983). A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle, at 1048. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. We have said that divergent opinions among parties as to the meaning of a statute may be evidence of ambiguity. Basin Electric Power Coop. v. State Bd. of Control, 578 P .2d 557, 561 (Wyo. 1978). However, the fact that opinions may differ as to a statute's meaning is not conclusive of ambiguity. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Id.

If a statute is ambiguous, we will give some deference to an interpretation by the agency charged with execution of the statute unless its interpretation is clearly erroneous. Parker Land and Cattle Co., 845 P.2d at 1045; Mowry v. State ex rel. Wyoming Retirement Bd., 866 P.2d 729, T3l (Wyo.1998). Even then, however, we are not bound by an agency's interpretation; the final construction of an ambiguous statute is a question for the court. Parker Land and Cattle Co., at 1045.

When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Tietema v. State, 926 P.2d 952, 954 (Wyo.1996); Butts v. State Board of Architects, 911 P.2d 1062, 1065 (Wyo.1996). Instead, our inquiry revolves around the ordinary and obvious meaning of the words employed according to their arrangement and connection. In doing so, we view the statute as a whole in order to ascertain its intent and general purpose and also the meaning of each part. "We give effect to every word, clause and sentence and construe all components of a statute in pari materia." Parker, 845 P.2d at 1042.

Wyo. Stat. Ann. § 21-13-102(c) provides:

(c) The revenue to be rebated under subsection (b) of this section shall not exceed seventy-five percent (75%) of the difference between the revenue received by a school district from the mandatory levies per average daily membership provided by subsection (a) of this section and the statewide revenue per average daily membership from twenty-five (25) mills, multiplied by the average daily membership of the school district. Annually, on or before July 15, the department using average daily memberships and assessed valuations from the preceding fiscal year, shall compute maximum recapture under this subsection for each district and the final amount of recapture computed under subsection (b) of this section for the preceding fiscal year. If any district rebated more revenue to the state during the preceding fiscal year than the maximum computed, or than the amount to be rebated under subsection (b) of this section as computed using actual data from the preceding fiscal year, the department shall rebate the excess to the district. If any district rebated less revenue to the state during the preceding fiscal year than the amount to be rebated under subsection (b) of this seetion, as computed using actual data from the preceding fiscal year, the district shall rebate the difference to the state.

In its initial response to the Districts' request for recalculation, the Department claimed it had no authority to recalculate the amount of recapture after the March 1 caleu-lation required by subsection (e); the March 1 calculation, according to the Department in its June 12, 1995 letter, is the final calculation authorized by Wyo. Stat. Ann. § 21-183-102.

In its brief to this court, the State concedes that subsection (c) requires the Department to recalculate recapture by July 15 (after the March 1 calculation). Indeed, pursuant to the second sentence of that subsection, it is clear the Department, on or before July 15, is required to make two computations, maximum recapture and final recapture. It is also clear both computations are to be made using average daily memberships and assessed valuations from the preceding fiscal year.

The third sentence of subsection (c), the subject of this dispute, provides the school districts an opportunity to recoup amounts they over-rebated to the Department. There are two methods by which a district can achieve such a rebate. The first method, not a subject of this appeal, comes into play if a district rebated more revenue to the State than the maximum computed under the first sentence of subsection (c). The second method, the focus of this dispute, entitles a district to receive a rebate if it "rebated more revenue to the state during the preceding fiscal year than ... the amount to be rebated under subsection (b) of this section as computed using actual data from the preceding fiscal year...." (Emphasis supplied.)

The question thus becomes what the legislature meant when it premised a rebate to the recapture districts based on "actual data." The State argues the legislature intended that actual data means average daily memberships and assessed valuations, the basis for the July 15 computation of final recapture. Its contention is essentially that actual data is a shorthand reference to "average daily memberships and assessed valuations" found in the preceding sentence. For their part, the Districts argue that actual data contemplates revenue actually received regardless of the amounts assessed. When subsections (b) and (c) of § 21-18-102 are read together, we agree with the Districts that actual data contemplates actual revenue.

In order to interpret the meaning of actual data, we first note that subsection (c) refers back to subsection (b): "If any district rebated more revenue to the state during the preceding fiscal year ... than the amount to be rebated under subsection (b) of this section as computed using actual data from the preceding fiscal year, the department shall rebate the excess to the district." (Emphasis added.) The court must, therefore, refer to subsection (b) where the legislature mandated recapture districts to rebate "the amount by which the revenue from the sources provided by W.S. 21-183-310 exceeds one hundred nine percent (109%) of foundation program costs...." Subsection (b) thus sets forth the formula for determining recapture-the amount by which revenue from local resources (as identified in Wyo. Stat. Ann. § 21-13-810) exceeds 109% of foundation program costs (as identified in Wyo. Stat. Ann. § 21-18-809). The second clause of the third sentence of subsection (c) clearly refers back to the formula set forth in subsection (b) and contemplates the use of actual data from the preceding fiscal year, that is, the amount by which actual revenue exceeded 109% of foundation program costs based on actual average daily memberships, in determining whether a district paid too much and is entitled to a rebate. As such, this section serves to reconcile the earlier estimates with actual data.

Contrary to this interpretation, the Department's interpretation would equate revenue to assessed valuations. However, one need look no further than this case to see that assessed valuations do not always result in identical amounts of revenue. Given this reality, had the legislature intended the statute be interpreted in this manner, it would have used the term assessed valuations in subsection (b) rather than revenue. In addition, had the legislature intended that actual data means "average daily memberships and assessed valuations," it surely could have used that more specific language in the third sentence of subsection (c) rather than resorting to shorthand. When subsections (b) and (c) are read together, we agree with the Districts that actual data means actual revenue received by the Districts regardless of the amounts that have been assessed.

Because we find the language of subsection (c) to be sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words, and we resort neither to the rules of statutory construction nor to the rule of deference to agency interpretation. Thus, we conclude the district court erred in deferring to the Department's interpretation.

Having determined that the governing statute requires the Department to rebate excess recapture monies to the Districts, we must also determine by what mechanism, if any, the courts may compute and direct payment of the monies at issue. We have held that a school district may not sue the Wyoming State Hospital in tort because such a suit amounted to the State suing itself. Carbon County Sch. Dist. No. 2 v. Wyoming State Hosp., 680 P.2d 773, 775 (Wyo.1984). However, we qualified that holding by stating that principle does not apply to actions to construe statutes and to determine correlative rights between state agencies and entities. Id.

We will apply these principles here. We have declared that the Districts are entitled to a refund of sums overpaid. However, we will draw a parallel with the concept of a recovery in tort with a recovery of money owed from one arm of the state to another arm of the state, in an instance such as that presented here. See Board of County Comm'rs of County of Laramie v. Laramie County Sch. Dist. Number One, 884 P.2d 946, 951 (Wyo.1994) ("the action here is not for compensatory damages, but rather for an action seeking a declaration of rights and obligations and a,claim for monies belonging to the School District which were wrongfully diverted"). From the Districts' brief in this court, there appears to remain some question regarding the sums of money at issue. However, the courts will decline to calculate and assess sums due and owing, because to do so would be tantamount to a violation of the principle that the State cannot sue itself. To the extent the sums due and owing are agreed upon, those sums must be computed by the Department based on information supplied by the Districts under the governing statute. If the parties are unable to resolve the matter of what sums are due and owing, that is a matter which must be resolved within the structure of the executive branch of government without resort to an action in court to recover money. If the Districts disagree with a decision of the Department on these matters, it may seek review in accordance with the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 21-2-202(d).

CONCLUSION

The district court erred in applying the rule of deference to the Department's interpretation of Wyo. Stat. Aun. § 21-18-102(c), which, in clear and plain language, requires that, if any district rebated more revenue than the difference between actual revenue and 109% of foundation program costs based upon actual data, the Department shall rebate the excess to the district. We, therefore, reverse the judgment denying the Districts' claim for declaratory relief and remand to the district court for proceedings consistent with this opinion.

      . For a sketch of the general contours of the school finance system, see Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1248-50 (Wyo. 1995).

      . The version of Wyo. Stat. Ann. § 21-13-102(b) at issue in this case requiring recapture districts to rebate the amount by which revenues exceeded 109% of costs was declared unconstitutional in Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1267-69 (Wyo.1995). The legislature has since amended this subsection, deleting the 109% figure effective July 1, 1998. Later in this opin-fon, we will discuss the effect of our 1995 holding on the Districts' present claim.

      . The fiscal year for school districts in the state begins July 1 and ends the following June 30. Wyo. Stat. Ann. § 21-3-112.

      . Wyo. Stat. Ann. § 21-13-102(c) (Michie 1997) provides in pertinent part:
      (c) * * * If any district rebated more revenue to the state during the preceding fiscal year than the maximum computed, or than the amount to be rebated under subsection (b) of this section as computed using actual data from the preceding fiscal year, the department shall rebate the excess to the district.

      . Those statutes provide:
      § 1-37-102. Scope and general consideration.
      Courts of record within their respective jurisdictions may declare rights, status and other legal relations whether or not further relief is or could be claimed. No proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The decla-
      ration may be either affirmative or negative in form and effect, and such declarations shall have the effect of a final judgment.
      § 1-37-114. Construction of chapter. The Uniform Declaratory Judgments Act is remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to legal relations, and is to be liberally construed and administered.


source: Caselaw Access Project

author: THOMAS, Justice.

license: Public Domain

text:
    HAT SIX HOMES, INC., Appellant (Petitioner), v. The STATE of Wyoming, DEPARTMENT OF EMPLOYMENT, UNEMPLOYMENT INSURANCE COMMISSION, Appellee (Respondent).
    No. 99-102.
    Supreme Court of Wyoming.
    July 6, 2000.

      Representing Appellant: Les Bowron of Beech Street Law Office, Casper, Wyoming.

      Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General Gerald W. Laska, Senior Assistant Attorney General; and Joe Scott, Senfor Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   THOMAS, Justice.

After quitting ber situation at Hat Six Homes, Inc. (Hat Six), Dawn Welch (Welch) filed for unemployment benefits under Wyoming law. The Wyoming Department of Employment, Unemployment Insurance Commission (Commission) referred the case to an appeals examiner to make findings of fact and determine the correct application of the law. The first question for this Court to resolve is the sufficiency of the evidence in the contested case hearing to sustain the findings of fact by the appeals examiner. That determination leads to a corollary issue concerning the failure of Hat Six to sustain its burden of establishing the statutory factors articulated in Wyo. Stat. Ann. § 27-8-104(b) (Lexis 1999), which it must do to exclude Welch from the status of an employee for purposes of unemployment benefits. Ultimately, the Commission ruled that Welch was entitled to benefits, and Hat Six brought the case before the district court for judicial review of the decision of the ageney. The district court entered an order affirming the agency, and Hat Six appealed to this Court. We hold that there is sufficient evidence to support the findings of fact made by the appeals examiner, and those findings of fact support the ruling that Hat Six did not satisfy its burden of proving the requisite statutory factors to exclude Welch from the status of an employee. The Order Affirming Agency Decision entered in the district court is affirmed.

This statement of the issues is found in the Appellant's Brief, filed on behalf of Hat Six:

A. Whether substantial evidence exists in the record to support the District Court's finding that Claimant was an employee as opposed to an independent contractor.
B. Whether substantial evidence exists in the record to support the District Court's finding that Claimant quit her job with good cause.

This Statement of the Issues is found in the Brief of Appellee Wyoming Department of Employment, Unemployment Insurance Commission:

A
Whether Unemployment Insurance Commission Decision No. C-6607-98, which held Dawn Welch to be an employee of Hat Six Homes, Inc., covered by the employment security law, is supported by substantial evidence?
B

Welch worked at Hat Six from September of 1996 until November 14, 1997. She did not sign, nor was she offered, a contract. Welch's initial duties were answering phones, greeting customers, and keeping the office orderly. Before long, she was allowed to conduct sales of manufactured homes, perform income analyses of prospective customers, and assist the customers in filling out credit applications. Welch explained to the appeals examiner that her job title was housing consultant.

During the material period, Welch was paid an hourly wage, and she also received a bonus based upon the sales of homes by Hat Six. Welch's hourly wage was increased when the federal minimum wage was raised. During the course of her association with Hat Six, no federal employment-related taxes were withheld, and Welch admitted that she filed a self-employed Form 1099 with the Internal Revenue Service. She explained that the Form 1099 was furnished to her at Hat Six, and was premised upon the advice of the vice-president that she was a contract employee and the assistance of the Hat Six bookkeeper, who also prepared Welch's personal income tax return.

During the time she worked at Hat Six, Welch also was enrolled at Casper College. This required some flexibility in her schedule at work. Hat Six claims that Welch was free to come and go as she pleased, and was not required to report to work at any specified time. Welch contends, however, that her schedule was prepared in advance, and she was not free to come and go as she pleased. She also asserts that she was required to get approval for time off and sick days.

While she was working at Hat Six, Welch did not sell homes for any other seller of manufactured homes. She distributed business cards, which listed both her name and Hat Six. In locations other than her place of employment, she often spoke to potential customers about the homes for sale at Hat Six. However, all actual sales occurred on the Hat Six premises.

Welch left her situation at Hat Six due to what she characterized as a "hostile work environmient * * *," Welch testified that the president of Hat Six regularly touched her under her shirt and behind her knees in an unwelcome manner, and continued this behavior after she asked him to stop. Additionally, the behavior of the vice-president of Hat Six created a tension that "could [be] cut * * * with a knife * * *." Welch testified to several occasions on which the vice-president yelled and screamed at customers, another employee, and even the president of Hat Six. On some occasions, office supplies and equipment were thrown about and broken by the vice-president. Welch determined to end her employment voluntarily when her concerns about the behavior of the president and vice-president were not remedied.

Following the termination of her association with Hat Six, which she asserted was an employment relationship, Welch filed a claim for unemployment benefits with the Wyoming Department of Employment, Employment Resources Division (the Division). Her claim was presented in accordance with the regulations of the Commission. See Wyo. Stat. Ann. § 27-8-401 (Lexis 1999). Welch's claim was denied by the Division, and Welch filed a timely appeal. The matter then was referred to the Division's appeals examiner, and the appeals examiner found Hat Six was chargeable for benefits to be paid to Welch, ruling that Welch was an employee of Hat Six, not an independent contractor, and that Welch had good cause to terminate her employment. The matter then was appealed to the Commission for a panel review. The Commission remanded the case to the appeals examiner, ordering that additional evidence be taken on the issue of employment and the issue of good cause for leaving. A second hearing was conducted, and the appeals examiner again found that Welch was an employee of Hat Six and had good cause to quit her employment. This decision also was reviewed by the Commission, which affirmed the decision. Upon the petition of Hat Six, the case then was the subject of judicial review by the district court. This appeal follows from the Order Affirming Agency Decision entered in the district court.

- The Wyoming Administrative Procedure Act governs this Court's review of decisions by the Commission. Wyoming Dept. of Employment, Unemployment Ins. Com'n v. SF Phosphates, Ltd., 976 P.2d 199, 201 (Wyo.1999); Employment Sec. Com'n of Wyoming v. Western Gas Processors, Ltd., 786 P.2d 866, 870 (Wyo.1990). The review provision reads:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(1) Compel agency action unlawfully withheld or unreasonably delayed; and
(i) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-8-114(c) (Lexis 1999).

In reviewing unemployment benefit cases, we have said:

The standard of review of an agency determination is well-established. Unemployment benefit cases involving contended misconduct normally present mixed questions of law and fact. Henson v. Employment Sec. Dept. of State, 113 Wash.2d 374, 779 P.2d 715 (1989). See generally Natrona County School Dist. No. 1 v. McKnight, 764 P.2d 1039 (Wyo.1988). A reviewing court is "confined to the matters explicitly referenced in WS. 16-3-114(c) and WRAP. 12.09." Cook v. Zoning Bd. of Adjustment for the City of Laramie, 776 P.2d 181, 184 (Wyo.1989).
"On appeal from a district court's consideration of an agency action, this court is not bound by the conclusions of the reviewing court. Rather, using the same evidentiary materials and the same review standards as the district court, we conduct an independent inquiry into the matter, just as if it had proceeded directly to us from the agency."
Southwest Wyoming Rehabilitation Center v. Emp. Sec. Com'n of Wyoming, 781 P.2d 918, 920 (Wyo.1989). (Accord Employment Sec. Com'n of Wyoming v. Bryant, 704 P.2d 1311, 1314 (Wyo.1985) and Matter of North Laramie Land Co., 605 P.2d 367, 378 (Wyo.1980).) Our deference for findings of fact is reserved for the fact-finder which, in this case, is ESC. Department of Revenue and Taxation of State of Wyoming v. Casper Legion Baseball Club, Inc., 767 P.2d 608 (Wyo.1989). See Zezas Ranch, Inc. v. Board of Control, 714 P.2d 759, 764 (Wyo.1986).

Western Gas Processors, Ltd., 786 P.2d at 870 (footnote omitted).

We review an agency's findings of fact by applying the substantial evidence standard. DeWall v. State ex rel. Wyoming Workers' Safety and Compensation Division, 960 P.2d 502, 508 (Wyo.1998). This Court examines the entire record to determine whether substantial evidence supports the agency's findings. Id. Substantial evidence is relevant evidence which a reasonable mind may accept in support of an agency's conclusions. Id. We will not substitute our judgment for that of the agency when substantial evidence supports its decision. Id. We do not, however, grant the same deference to an agency's conclusions of law. Nelson v. Sheridan Manor, 939 P.2d 252, 255 (Wyo.1997). We affirm an agency's conclusions of law when they are in accordance with law. Corman v. State ex rel. Wyoming Workers' Compensation Division, 909 P.2d 966, 970 (Wyo.1996). Unemployment benefit cases which involve the contention that an employee was discharged for misconduct connected with his work normally present mixed questions of law and fact. Wyoming Department of Employment, Division of Unemployment Insurance v. Rissler & McMurry Company, 837 P.2d 686, 688 (Wyo.1992); Employment Security Commission of Wyoming v. Western Gas Processors, Ltd., 786 P.2d 866, 870 (Wyo.1990).

SF Phosphates, Ltd., 976 P.2d at 201.

In summary, review of the decision by the Commission comes to this Court with no special deference to the decision of the district court. Wyoming Dept. of Employment, Unemployment Ins. Com'n v. Porter, 986 P.2d 148, 150 (Wyo.1999). The matter is treated as if it had come directly to this Court from the agency. SF Phosphates, Ltd., 976 P.2d at 201. The legal conclusion of an agency is affirmed only if it is in accordance with the law. SF Phosphates, Ltd., 976 P.2d at 201; Haynes v. State ex rel. Wyoming Workers' Compensation Div., 962 P.2d 876, 878 (Wyo.1998).

In recent worker's compensation cases, we have turned to the "arbitrary, capricious, or an abuse of discretion" standard when evaluating a hearing examiner's finding that a party failed to meet the burden of proof:

When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[alrbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Stat. § 16-3-114(c)@ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 482, 489 (Wyo.1974); Marathon Oil Co. v. Welch 379 P2d 882, 886 (Wyo.1968); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles,, 882 P.2d 878, 875 (Wyo.1994).

Pederson v. State ex rel. Wyoming Workers' Compensation Div., 989 P.2d 740, 742 (Wyo. 1997). Pederson has been followed as recently as Murray v. State ex rel. Wyoming Workers' Safety and Compensation Div., 998 P.2d 827, 329-80 (Wyo.1999).

The Wyoming Employment Security Act provides:

(b) An individual who performs service for wages is an employee for purposes of this act unless it is shown that the individual:
(1) Is free from control or direction over the details of the performance of services by contract and by fact;
(i) Repealed by Laws 1991, ch. 153, § 1.
(iii) and (iv) Repealed by Laws 1995, ch. 121, § 8. -
(v) Represents his services to the public as a self-employed individual or an independent contractor; and
{(vi) May substitute another individual to perform his services.

Wyo. Stat. Ann. § 27-3-104(b). It is uncontested that Welch was paid an hourly wage during her tenure at Hat Six. This wage began at $5.00 an hour and was later increased to $5.15 an hour when the federal minimum wage was increased to that amount. According to the Wyoming Employment Security Act, Welch is an employee entitled to unemployment insurance.

To contradict this assumption, the employer is charged with the burden of proof to demonstrate the cireumstances of employment were such that the elements of Wyo. Stat. Ann. § 27-8-104(b) were satisfied:

We have said that the statutory definition of employment determines whether a worker may be eligible for unemployment benefits under the Act, Scott v. Fagan, Wyo., 684 P.2d 805, 810 (1984). A worker is covered by the Act unless the hiring party establishes that the worker's services satisfy all three specified conditions of nonemployment. Unemployment Compensation Commission of Wyoming v. Mathews [56 Wyo. 479, 111 P2d 111 (1941) ], supra.

Employment See. Com'n of Wyoming v. Laramie Cabs, Inc., 700 P.2d 899, 404 (Wyo. 1985).

The first element requires that the employer demonstrate that the worker was "free from control or direction over the details of the performance of services * * *." Wyo. Stat. Ann. § 27-3-104(b)G). Hat Six points to several disputed facts in the record to indicate that Welch was free from direct supervision and control by Hat Six.

Demonstrating evidentiary contradictions in the record does. not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Matter of Corman, 909 P.2d 966, 971 (Wyo.1996); Knight [v. Environmental Quality Council of State of Wyo., 805 P.2d [268] at 274 (Wyo.1991) ]; Ward v. Board of Trustees of Goshen County School Dist. No. 1, 865 P.2d 618, 623 (Wyo.19983); State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, 839 P.2d 936, 941 (Wyo.1992).

Pederson, 939 P.2d at 742. Our review of the record in this case discloses that the appeals examiner reasonably could have found that Welch was not "free from control or direction over the details of the performance of services * * *." Wyo. Stat. Ann. §

Second, to meet its burden, Hat Six was required to show that Welch "[rJepresents [her] services to the public as a self-employed individual or an independent contractor[.]" Wyo. Stat. Ann. § 27-83-104(b)(v). The evidence clearly indicates that Welch at no time made a representation to the public that she was representing any business entity other than Hat Six. The finding of the appeals examiner that Hat Six did not establish this element was reasonable. Hat Six argues that by submitting the Form 1099 and by not complaining about her status to the proper authority, Welch represented herself as self-employed to the public. However, we are satisfied that the purpose of this prong of the independent contractor test is to protect the potential customer by providing notice of the status of the person with whom business is being transacted. Tax returns and the information filed with the Internal Revenue Service are confidential. 26 U.S.C. § 6103. The public has no access to these filings, and could not receive any notice of Welch's status from them.

Finally, Hat Six argues that because Welch was never told she could not substitute another individual to perform her services, she could have substituted another. However, there is a lack of sufficient evidence in the record which would demonstrate any instance in which Welch substituted another employee to perform her services within the meaning of the Wyoming Employment Security Act. The Wyoming Employment Security Act distinguishes between an employee and an independent contractor, whose responsibility is to complete the job he/she was hired to do. As long as the job is completed to specifications, the independent contractor is allowed to disperse the actual labor in whichever way that person selects. The Wyoming Employment Security Act is not intended to prevent an employee from receiving the benefits of unemployment insurance simply because of trading shifts with a coworker when the employee needs a day off or is ill.

The appeals examiner found that Hat Six did not overcome the presumption of employment set forth in the statute. After reviewing the record, we hold that the conclusion of the appeals examiner that Hat Six failed to meet the requirements of Wyo. Stat. Ann. § 27-3-104(b) was not arbitrary or capricious, nor did it constitute an abuse of disceretion. Affording deference to the determination of the appeals examiner, we hold that Hat Six did not sustain its required burden of proving that Welch was an independent contractor and not an employee of Hat Six.

Our statute provides for disqualification of an employee from unemployment benefits in this language:

(a) An individual shall be disqualified from benefit entitlement * * * if the department finds that he:
(i) Left his most recent work voluntarily without good cause attributable directly to his employment, except for bona fide medical reasons involving his health or if returning to approved training which meets the requirements of W.S. 27-8-807[.]

Wyo. Stat. Ann. § 27-8-3ll(a)() (Michie 1997).

Good cause was defined by this court in Sage Club, Inc. v. Employment Sec. Commission of Wyoming, 601 P.2d 1306, 1310 (Wyo.1979):

To constitute "good cause" the evidence presented must demonstrate:
" * * * such a cause as Justifies an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed; the quitting must be for such a cause as would reasonably motivate in a similar situation the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the compensated unemployed. The terms 'good cause' and 'personal reasons' connote, as minimum requirements, real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results; adequate excuses that will bear the test of reason; just grounds for action. * * *"
81 C.J.S. Social Security and Public Welfare s 226(a), pp. 448-452; Erie Resistor Corporation v. Unemployment Compensation Board of Review, 1958, 172 Pa.Super. 430, 94 AZ2d 367, 369; 18A Words and Phrases, 'Good Cause, pp. 58-64 (1956) (1979 Pocket Part, pp. 20-28).

That definition has been followed consistently. Southwest Wyoming Rehabilitation Center v. Employment See. Com'n of Wyoming, 781 P.2d 918, 921 (Wyo.1989); Beddow v. Employment See. Com'n of Wyoming, 718 P.2d 12, 14 (Wyo.1986); Employment Sec. Com'n of Wyoming v. Bryant, 704 P.2d 1811, 1815-17 (Wyo.1985); Scott v. Fagan, 684 P.2d 805, 809 (Wyo0.1984).

Welch gave two reasons for quitting her job at Hat Six-unwelcome sexual advances by the president of Hat Six, and the increasing number of violent episodes by the vice-president of Hat Six. The record demonstrates a great deal of inappropriate sexual behavior by both Welch and the president. We evaluate only whether the decision of the appeals examiner that Welch had good cause was supported by substantial evidence on the record, We must find more than a scintilla of evidence and more than a suspicion that a certain fact exists. Southwest Wyoming Rehabilitation Center, 781 P.2d at 921. Once substantial evidence is found, the possibility of drawing two inconsistent conclusions from this evidence does not prevent this Court from finding that the conclusion drawn by the administrative agency was supported by substantial evidence. Southwest Wyoming Rehabilitation Center, 781 P.2d at 921, and cases therein cited. Upon review of the record, we discern substantial evidence that would justify Welch in voluntarily leaving her employment because of the sexual harassment and violence in the work place. The evidence demonstrated that the president consistently touched Welch with his hands in an inappropriate manner for a person in a position of power. The record also encompasses episodes of the vice-president throwing staplers, cellular phones, and drive way alarms about the office requiring Welch to duck to avoid being struck. Welch also testified that the work place environment was affecting her health. We will defer to the experience and expertise of the appeals examiner in weighing the evidence presented.

After our examination of the record, we are satisfied that the decision of the appeals examiner was based upon substantial evidence, and was neither arbitrary, capricious, nor an abuse of discretion. The decision of the appeals examiner was in accordance with law. The Order Affirming Agency Decision entered in the district court is affirmed.


text:
    2002 OK CR 41
    James D. BEDNAR, Executive Director, Oklahoma Indigent Defense System, Petitioner, v. The DISTRICT COURT OF KAY COUNTY, Oklahoma, The Hon. Douglas C. Revard, Special Judge, and Mark Gibson, District Attorney, Kay County, Oklahoma, Respondents.
    Nos. PR 2002-1310, PR 2002-1311.
    Court of Criminal Appeals of Oklahoma.
    Nov. 26, 2002.
   ORDER DENYING EXTRAORDINARY RELIEF AND LIFTING STAY EFFECTIVE DECEMBER 6, 2002, IN THE DISTRICT COURT OF KAY COUNTY, DISTRICT COURT CASE NOS. CF 2001-354, CF-2001-140, CF-2002-116, CM-2000-240, CM-2002-225 AND TR-2002-980

¶ 1 On October 25, 2002, Petitioner James B. Bednar, Executive Director of the Oklahoma Indigent Defense System, by and through Craig Sutter, Deputy Executive Director of the Oklahoma Indigent Defense System (OIDS), filed two' applications for extraordinary writs, PR 2002-1310 and PR 2002-1311, entitled “Emergency Application Requesting Immediate Stay of District Court Contempt Proceedings.” In both cases Petitioner also filed a “Petition For Writ of Prohibition and/or Mandamus Prohibiting Any Further Contempt Proceedings Against Petitioner and Directing Dismissal of the Pending Contempt Proceedings Against Petitioner and Brief in Support Which Order was Entered on October 23, 2002, by the Honorable Douglas C. Revard, Special District [sic] Judge of Kay County, Oklahoma.”

¶ 2 OIDS states that on October 23, 2002, Judge Revard held Mr. Bednar in contempt of court for failing to provide counsel to the defendant in District Court Case No. CF-2002-354 in Writ PR 2002-1311 and in CF-2001-140, CF-2002-116, CM-2000-240, CM-2002-225 and TR-2002-980 in Writ PR 2002-1310, and directed the District Attorney to issue a contempt citation. Mr. Bednar was ordered to appear for an initial appearance on November 4, 2002, at 1:00 p.m. before the District Court. OIDS sought an immediate stay of the contempt proceedings in the District Court while this Court considers the petitions for extraordinary relief “[b]ecause of the substantial harm the contempt proceedings pose to Mr. Bednar and the operation of the Oklahoma Indigent Defense System, and because of the magnitude of the constitutional, statutory and ethical questions raised by the District Court’s actions.” OIDS contends “the District Court’s actions constitute a clear violation of the separation of powers doctrine and constitute excessive and unauthorized application of judicial force.” Mr. Bednar states that he is “unable to comply with the District Court’s order, as to do so would violate provisions of the Oklahoma Constitution, state purchasing laws and the penal code.”

¶ 3 OIDS raised the following propositions in its applications:

1. The judiciary cannot compel James D. Bednar, Executive Director of the Oklahoma Indigent Defense System, through contempt proceedings, to provide conflict counsel representation ’ when the agency is no longer funded to do so.
2. OIDS cannot contract for the services of new conflict counsel with no unencumbered funds available to pay under such contract.

OIDS seeks a writ of prohibition “precluding the District Court from entertaining any further contempt proceedings against him and prohibiting the District Attorney from further prosecuting said contempt proceedings.” OIDS further seeks a writ of mandamus “directing both the District Court and the District Attorney to dismiss the contempt citation with prejudice and vacate the order holding Mr. Bednar in contempt and directing the filing of the contempt citation.”

¶ 4 In an Order issued October 28, 2002, further contempt proceedings in the District Court of Kay County against James D. Bed-nar, Executive Director of the Oklahoma Indigent Defense System, were STAYED. The Respondents were directed to file a response to Petitioner’s applications. The response, prepared and filed by and through Brant M. Elmore, Assistant Attorney General, was filed in this Court November 7, 2002.

¶ 5 The State argued the following propositions:

1. The Petition should be dismissed because Petitioner has failed to properly invoke the authority and jurisdiction of this Court.
2. Alternatively, the District Court of Kay County can lawfully hold Petitioner in contempt for failing to appear and/or for failing to perform his statutory duty to defend indigent criminal defendants under 22 O.S.2001, § 1355.7.
3. Alternatively, OIDS is not being compelled to contract with new conflict counsel without unencumbered funds available to pay under said contract.
4. Alternatively, the Local Court Fund Board is prohibited from providing the funds for conflict counsel.
5. In the event that this Court does not dismiss the Petition, Respondent requests oral argument.

The State concluded Petitioner “has wholly failed to provide representation, despite the fact that the Legislature has clearly established that he is to provide representation in contract attorney conflict situations”, and that “Petitioner has wholly failed to comply with § 1355.7.” The State also concluded that Petitioner “has failed to comply with the District Court’s order that he provide representation” and that the “proper determination as to whether these acts are willful and constitute indirect contempt of court is for the jury that will be seated at Petitioner’s trial.” Respondent asserts that “[njeither Petitioner nor the courts of this State can rewrite Petitioner’s statutory duties or re-legislate OIDS’ funding.”

¶ 6 Oral argument was heard in this matter November 25, 2002. Mr. Bednar appeared on his own behalf and Brant M. El-more appeared on behalf of Respondent.

¶ 7 For a writ of prohibition Petitioner must establish: (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002). For a writ of mandamus, Petitioner has the burden of establishing (1) he has a clear legal right to the relief sought; (2) the respondent’s refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. Rule 10.6(B).

¶ 8 Petitioner has not met the burden for extraordinary relief. OIDS’ reliance upon Fields v. Driesel, 1997 OK CR 33, 941 P.2d 1000, is misplaced. Fields is not applicable to the facts of this case. The contempt proceedings against OIDS are not properly before this Court as other adequate remedies exist.

¶ 9 These proceedings have been in progress now for almost six months. The issues are complex and involve multiple conflicting constitutional and statutory provisions. For example, OIDS is statutorily mandated to represent indigent defendants, but constitutionally prohibited from entering into contracts with counsel if it does not have unencumbered appropriated funds to pay such contracts. The case also raises important separation of powers questions and potential conflicts in jurisdiction between this Court and the Oklahoma Supreme Court.

¶ 10 All of the issues presented by this case are resolvable by the Court. But it is fairly clear that to finally resolve the issues presented by this case (and the many similar cases) will require thousands of hours of lawyers and judicial time and tens of thousands of dollars. By concentrating efforts on the foregoing issues as framed by the parties, the real issue raised by this case is being overlooked.

¶ 11 The real issue raised by this case is what do we do about the fact that one Richard Price and one Shaun McClure have been sitting in the Kay County jail, charged with multiple serious crimes, for almost six months without a lawyer. There are numerous other indigent individuals incarcerated in other counties under circumstances similar to those in thé present case. They too are without counsel. There is absolutely no doubt that both the United States Constitution and the Oklahoma Constitution require the State to provide and pay for a lawyer to represent indigent persons charged with a serious crime. Moreover, ultimately, it matters little whether the lawyer is paid by OIDS, the Court Fund (we find no authority interpreting § 1304 of Title 20 prohibiting judges of the District Court from appointing attorneys and providing payment from the Court Fund), or the General Fund. It is the State’s responsibility. We simply cannot and will not permit the State to charge indigent persons with crimes and incarcerate them indefinitely without counsel.

¶ 12 Thus, because this case presents us with matters of State-wide constitutional concern, we set forth the following principles to cover these cases and other similar cases which may arise in the future. We begin with the proposition that it is the District Court’s responsibility to see that indigent persons charged with a crime are represented by competent counsel within a reasonable amount of time from the date such person is incarcerated. If the District Court appoints OIDS to represent an indigent person and OIDS will not, or cannot accept the appointment, it is the District Court’s duty to appoint other competent counsel at State expense. Whatever sanction, or action, may be taken against OIDS or the individual OIDS lawyer, shall not delay the District Court’s responsibility to provide counsel to the indigent person. In the event an indigent incarcerated person is not provided with counsel within a reasonable amount of time, such person shall be released from custody.

¶ 13 In the present cases, Shaun McClure and Richard Price have been incarcerated without counsel in violation of their constitutional rights for almost six months. They must both be provided with counsel immediately. If these defendants do not have active counsel on or before Friday, December 6, 2002, they shall be released by the District Court.

¶ 14 Accordingly, Petitioner’s application to this Court for extraordinary relief is DENIED. The stay imposed by this Court October 28, 2002, is hereby LIFTED effective 5:00 p.m., Friday, December 6, 2002.

¶ 15 IT IS SO ORDERED.

¶ 16 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 26th day of November, 2002.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ Steve Lile STEVE LILE, Judge

      . On October 29, 2002, Petitioner filed in both cases motions to "correct cover pages of petition previously filed” which is herewith GRANTED and reflected as set forth above.

      . The Attorney General of the State of Oklahoma was appointed by the Chief Justice of the Supreme Court of the State of Oklahoma to file a response on behalf of Respondent, the Honorable Douglas C. Revard, Special Judge, District Court of Kay County.