Petition for Review of a Decision of the District of Columbia Department of Employment Services.
Before Ferren and King, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: Petitioner, William A. Mack, seeks review of a decision of the Department of Employment Services ("DOES") Office of Appeals and Review ("OAR"), that disqualified him, on the basis of job-related misconduct, from receiving unemployment benefits. D.C. Code § 46-111 (b) (1990 Repl. and 1994 Supp.). Because the record does not contain the findings necessary to support a discharge for misconduct, we must vacate and remand for further proceedings.
In early April 1992, petitioner resigned in lieu of termination from his job as a Corrections Officer at the Department of Corrections at Lorton, Virginia. On February 19, 1992, about two months before his resignation, petitioner had been indicted on four counts of accepting bribes to provide cocaine to prison inmates, 18 U.S.C. § 201 (b)(2) (1988); possession with intent to distribute cocaine, 21 U.S.C. § 841 (a)(1) (1988); introducing contraband, D.C. Code § 22-2603 (1989 Repl.); and illegal use of communication facility, 21 U.S.C. § 843 (b) (1988). *fn1 Petitioner's trial began on April 6, 1992. The next day he pled guilty to accepting a bribe to deliver cocaine to a Lorton inmate. *fn2 Petitioner later signed a formal plea agreement on April 21, 1991, which was filed in court on April 22, 1992.
Petitioner filed for unemployment compensation on December 7, 1992, indicating to the agency that he had voluntarily quit his job because he was being investigated for accepting a bribe. The Claims Examiner found that petitioner had voluntarily quit his job without good cause connected with work and disqualified him from receiving unemployment benefits. D.C. Code § 46-111 (a) (1990 Repl.). Petitioner filed an administrative appeal.
At a hearing before the Appeals Examiner, petitioner testified that, on April 2, 1992, he had called to tell his supervisor, Bill Hendricks, that he would be absent from work because he had to see his probation officer. *fn3 Petitioner maintained that Hendricks had wrongly advised an F.B.I. agent, who was looking for petitioner, *fn4 that Hendricks was unaware of petitioner's whereabouts and that petitioner was A.W.O.L. According to petitioner, this misinformation had led to his incarceration and to the revocation of his bond. Petitioner further maintained that he had been forced to resign upon his release from jail on April 6, 1992.
The Appeals Examiner found that petitioner had been "constructively discharged." *fn5 7 DCMR § 311.8 (1986). She then pointed out that, in order to sustain such a discharge as a bar to unemployment benefits, the employer had the burden of proving "misconduct." 7 DCMR § 312.2 (1986). According to the Appeals Examiner, the hearsay testimony of the employer's representative, who had not been present at petitioner's discharge, *fn6 was not sufficient, under 7 DCMR § 312.7 (1986), to corroborate the written documents showing misconduct by petitioner. *fn7 Crediting petitioner's account of the events leading to his discharge, the Appeals Examiner, on March 1, 1993, concluded that the employer had failed to meet its burden of proving that petitioner had been discharged for job-related misconduct. Consequently, she reversed the decision of the Claims Examiner and ruled that petitioner was eligible for unemployment benefits.
The employer appealed to OAR, which, on October 14, 1993, reversed the Appeals Examiner, concluding that her decision was "not supported by substantial evidence in the record." Specifically, OAR found that petitioner's April 22, 1992 written plea agreement, which the employer had entered in evidence before the Appeals Examiner, see (supra) note 7, was sufficient to support a finding that petitioner's employment had been terminated for misconduct, making him ineligible, under D.C. Code § 46-111(b), for unemployment benefits. *fn8 Petitioner now appeals this decision.
Our review of an agency's final decision is directed to the question whether that decision is supported by substantial evidence in the record as a whole. D.C. Code § 1-1510 (a)(3)(E) (1992 Repl.); see Washington Post Co. v. District Unemployment Compensation Bd., 377 A.2d 436, 439 (D.C. 1977). While our review is limited in that we may not substitute our judgment for that of the agency, we "are required to set aside holdings if they are not supported by substantial evidence in the record." Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 676 (D.C. 1984). Moreover, in reviewing the final decision of an agency, we are limited to the record on appeal and cannot consider issues or evidence not presented to the agency. John D. Neumann Properties, Inc. v. District of Columbia, Bd. of Appeals and Review, 268 A.2d 605, 606 (1970).
We have interpreted the Administrative Procedures Act to impose the following requirements on agency decisions:
(1) the decision must state findings of fact on each material, contested factual issue; (2) those findings must be based on substantial evidence; and (3) the Conclusions of law must follow rationally from the findings.
Perkins v. District of Columbia Dep't of Employment Servs., 482 A.2d 401, 402 (D.C. 1984) (citations omitted). If the agency fails to make a finding on a material, contested issue of fact, this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue." ...