IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Delaware River & Bay Authority )

Appellant, )

v. ) C.A. No.: N19A

- 10

- 004 SKR

Frank Minor, )

)

Appellee. )

)

Upon Appeal from the Decision of the Unemployment Insurance Appeal Board :

AFFIRMED.

Adria B. Martinelli, Esq., Lauren E.M. Russell, Esq

. , Barry M. Willoughby, Esq.,

Young Conaway Stargatt & Taylor, LLP, Attorneys for Appellant.

Frank Minor

, pro se , Appellee.

Rennie, J.

MEMORANDUM OPINION AND ORDER

Before the Court is an appeal from the Unemployment Insurance Appeal

Board’s (the “Board”) decision finding that appellee Frank Minor’s (“Minor”) role

as Deputy Executive Director (“DED”) was not designated as a major policym aking

position , thus allowing him unemployment benefits

. The Court previously remanded

this issue to the Board to determine whether the DED position was designated as a

policymaking position, as opposed to whether Minor conducted policymaking duties2 in the course of his work

. After considering the evidence adduced at the hearing, the

Board agreed with Minor that the position was not designated as policymaking

.

Delaware River & Bay Authority (the “Authority”) contends that this was an

inaccurate reading o f the record, and the position was in fact designated as

policymaking. For the reasons set forth below, the Board’s decision is AFFIRMED

.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Record

The factual background attendant to this action was set forth in detail in this

Court’s opinion in Delaware River & Bay Auth ority v. Minor

. 1 In this M emorandum

O pinion, the Court will only recite those facts that are germane to its ruling on this

appeal.

B. Stage of Proceedings

On July 13, 2018, the Board issued a decision reversing an Appeals Referee

.

In doing so, the Board found that Minor was not a “major nontenured policymaking”

employee and that he was eligible for unemployment benefits. 2 On August 2, 2018,

the Authority appealed the Board's decision to this Court

. 3 On April 15, 2019, the

Court held oral arguments on t he appeal. 4

On June 13, 2019, this Court issued a Memorandum Opinion and Order

reversing and remanding the Board’s decision. 5 It reversed the Board’s decision in

1 Delaware River & Bay Authority v. Minor , 2019 WL 2474770 at *6 (Del. Super. June 13,

2019) (TABLE) (Trans. ID. 63361431 ).

2 On January 7, 2018, Minor filed a claim for unemployment benefits with the Delaware

Department of Labor. After his claim was denied by a Claims Deputy, Minor filed an appeal

before an Appeals Referee. The Appeals Referee held two hearings in this matter and issued a

decision affirming the Claims Deputy's denial of benefits. Minor once again appealed, this time

before the Unemployment Insurance Appeal Board. On June 20, 2018, the Board held a hearing

on Minor's appeal. See R. on Appeal 422-28, Unemployment Insurance Appeal Board's July 13,

2018 Decision (“Board Decision”).

3 Notice of Appeal (Trans. ID. 62303543).

4 April 15, 2019 Superior Court Proceeding Sheet (Trans. ID. 63173452).

5 Delaware River & Bay Auth. v. Minor , 2019 WL 2474770 at *6 (Del. Super. June 13, 2019)3 part, by holding that the DED position was not tenured

. The Court also remanded

and directed the Board to make a factual finding and to determine whether the DED

position was designated as a policymaking position, as opposed to focusing solely

on the duties that Minor fulfilled during his tenure. 6 Thereafter, on August 28, 2019,

an appeals hearing was held before the Board. 7 On October 1, 2019, the Board made

factual determinations and found that the DED position was not designated as a

major policymaking position and for that reason, Minor was not excluded from

unemployment benefits. 8 On October 18, 2019, the Authority filed this appeal,

challenging the Board’s findings

. 9 The transcript from the August 28, 2019 hearing

was determined to be lost

, but all parties agreed that the Board’s October 1, 2019

decision contained an accurate record of the Board’s factual findings from the

hearing. 10

II. STANDARD OF REVIEW

This Court has appellate jurisdiction over final agency decisions

under 29 Del. C. § 10142

. On appeal, the Court's review is limited to determining

whether the agency's decision is “free from legal error” and supported by

“sub stantial evidence.” 11 Questions of law are reviewed de novo. 12 Substantial

evidence is such evidence that “a reasonable mind might accept as adequate to

support a conclusion.” 13 When factual determinations are at issue, the Court must

(TABLE)

. 6 Id.

7 See Letter to the Parties Regarding Record of Board’s Decision.

8 R. on Appeal 481. Board Memorandum Opinion and Decision.

9 R. on Appeal 762. Notice of Appeal.

10 Letter to the Parties Regarding Record of Board’s Decision.

11 Morrison v. Unemployment Ins. Appeal Bd. , 2013 WL 5786417, at *3 (Del. Super. Oct. 18,

2013) (TABLE) (internal citations omitted).

12 Volk v. Unemployment Ins. Appeal Bd ., 2016 WL 241379, at *1 (Del. Super. Jan. 13, 2016)

(TABLE) (internal citations omitted).

13 Morrison , at *3 (internal citations omitted)

.4 “take due account of the experience and specialized competence of the agency and

the purposes of the basic law under which the agency has acted.” 14 The Court “does

not weigh evidence, determine ques tions of credibility, or make its own factual

findings. ” 15

III. LEGAL ANALYSIS

The issue before the Court is more limited than what it reviewed in June of

2019. Then, the Court examined whether the Board erred when it determined that

the DED position once held by Minor was not a “major nontenured policymaking”

position

. The Court held that the Board misapplied the statute by analyzing whether

Minor had actually been engaged in policymaking duties.

Title 19, Chapter 33 of the Delaware Code sets forth the legal structure in

determining unemployment compensation. The Code reads that unemployment

compensation is not available “ if such service is performed by an individual in the

exercise of duties

. . . [i] n a position which, under or pursuant to the laws of this

State, is designated as . . . [a] major nontenured policymaking or advisory

position .” 16 This statute is to be liberally construed in favor of the employee. 17

The Court remanded this issue to the Board to determine specifically whether

the DED position was designated as a policymaking position

, as the statute dictates

.

The Authority now asks that the Court reverse the Board’s decision that Minor’s

position was not policymaking and find that the Board’s conclusion is unsupported

by the record.

The Court disagrees. The Board did in fact rely upon substantial evidence

found in the record. The Board relied upon two documents that designated the DED

14 29 Del. C . § 10142.

15 Morrison , at *3 (internal citations omitted).

16 19 Del C. § 3302(10)(D)(iii)(V) (emphasis added)

. 17 Snead v. Unempl. Ins. App. Bd ., 486 A.2d 676, 678 (Del. 1984).5 position from its inception : Delaware River and Bay Authority Bylaw 3.7 , which

created the DED position

, and Resolution 04

- 04

, which specified the full job

description for the DED position.

Bylaw 3.7 states the job description of the DED: “The Deputy Executive

Director shall be an employee of the Authority, and shall manage and oversee special

projects and other activities as assigned by the Executive Director or by Resolution

of the Commissioners.” 18 The Board noted there was no express mention of

policymaking

.

The Board also reviewed Resolution 04

- 04

, which the Court had suggested as

a “good indicator of the DED’s position’s duties and functions.” 19 The Board

admitted that it was “more challenging to decipher” and grappled with whether the

DED’s express responsibility of “economic development” was tantamount to

policymaking. 20 The Board ultimately determined that it wasn’t

, because the tasks

designated in Resolution 04

- 04 were operational and managerial, rather than

policymaking. These tasks included due diligence reviews, negotiations of lease or

sale of assets, and development of standard business documents

.

The Authority contends that the Board’s reading was a limited and erroneous

constr uction of the record. It objects to what it perceives as the Board ’s assumption

that managerial and policymaking tasks are mutually exclusive . It raises evidence

that it believes the Board ignored, including a memo that indicates that roles

subordinate to the DED were policymaking 21

, minutes from an executive meeting

that demonstrates the intent to develop a “significant role” for the DED 22 , and the

18 R. on Appeal 120. By-Laws of the Delaware River and Bay Authority.

19 Delaware River & Bay Auth. v. Minor , 2019 WL 2474770 at *5 (Del. Super. June 13, 2019)

(TABLE)

. 20 R. on Appeal 486. Board Memorandum Opinion and Decision.

21 R. on Appeal 519. Resolution 01-85.

22 R. on Appeal 525. Executive Session minutes from January 20, 2004 Board of Commissioners6 job description of the Executive Director which includ ed the task of “working with

senior leadership” to establish policy. 23

The Authority is incorrect. The Board did in fact consider these arguments. It

considered all the evidence presented. This was made clear by the “Summary of

Evidence Presented” s ection of the Board’s opinion

. 24 The Board acknowledged its

review of the Authority’s February 23, 2003 and June 30

, 2009 memoranda, a DED

position organizational chart, Resolution 01

- 85, and minutes from a January 2004

executive meeting

. 25

The ruling that the Authority seeks from this Court misapprehends the Court’s

role in reviewing an appeal from the Board . It is settled law that the scope of this

Court’s review is a narrow one. 26 The role of the Court is to ensure that the Board ’s

decision is supported by s ubstantial evidence in the record from which it made its

finding and that its decision is free from legal error. Substantial evidence is defined

as such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion. 27 It requires less than a preponderance of the evidence, but more than

a mere scintilla. 28 The Board considered and weighed all of the evidence in the

record and relied upon two key documents , in the form of Bylaw 3.7 and Resolution

04

- 04, which give further description of the job as it was designated at its inception.

In its review of the appellate record here, the Court finds no legal error. T here is no

“mistake in law” present here. 29 Indeed, there is no misapplication of the statute.

Meeting.

23 R. on Appeal 501. Executive Director Job Description.

24 R. on Appeal 483. Board Memorandum Opinion and Decision.

25 R. on Appeal 485. Board Memorandum Opinion and Decision.

26 Boon v. Jolly Smiles , P.A., 2017 WL 1363896 at *1 (Del. Super. Apr. 11, 2017) (TABLE).

27 Oceanport Indus. Inc. v. Wilmington Stevedores Inc ., 636 A.2d 892, 899 (Del. 1994).

28 Mathis v. Delaware River and Bay Authority , 2012 WL 5288757 at *2 (Del. Super. Aug. 22,

2012) (TABLE)

. 29 Longobardi v. Unempl. Ins. App. Bd., 287 A.2d 690, 692 (Del. Super. 1971).7 When reviewing an appeal from the Board, the Court’s scope of review is

limited to whether the Board’s decision is supported by “ substantial evidence and

free from legal error.” 30 It is not the Court’s role to second guess the Board

. 31 The

Court does not sit as a trier of fact. 32 It does not have the authority to weigh evidence

or make its own factual findings or conclusions. 33

It appears from its arguments that the Authority deems the DED position as

policymaking on the basis of proxy rather than designation. The Authority argues

that Resolution 01

- 85 identified other positions, such as the Executive Director and

Chief Operating Officer, which are subordinate to the DED, but are also designated

as policymaking. 34 The Authority co ntends that this chain of command demonstrates

that the DED is policymaking. After considering this argument, the Board found that

the Resolution “unquestionably shows” that the Authority knew that certain

positions were policymaking and that

, if the Authority “intended this position to be

‘policymaking’, it could have said so. Instead, [ the Authority] used [terms such as]

‘manage’ and ‘oversee’ to designate the DED’s role.

. .” 35 The Authority also points

to the Executive Director ’s job d escription to show that “[w]ith the Leadership

Team, [ he ] develops appropriate supporting policies, procedures, and practices as

needed

. . .” 36 The Authority concludes that because the DED is part of the

“Leadership Team”, then the position must also be p olicymaking. This is not

necessarily the case. For example, to the extent that a judge is considered a

30 Zavala v. Port to Port International Corp ., 2018 WL 1640778 at * 1 (Del.Super. 2018)

(TABLE).

31 Id. at *2.

32 Woodruff v. Unemployment Ins. Appeals Bd., 2016 WL 4040078 at *3 (Del. Super. July 25,

2016) (TABLE).

33 Id.

34 R. on Appeal 519. Resolution 01-85.

35 R. on Appeal 486. Board Memorandum Opinion and Decision at fn 23.

36 R. on Appeal 501. Executive Director Job Description.8 policymaker, his conferring with his law clerk doesn’t necessarily transform the law

clerk into a policymaker.

While the Authority’s position may be a reasonable determination based on

inferences and deduction s, the Board’s determination

, based on its deductions

gleaned from the record

, is equally reasonable. To accede to the Authority’s position

would require the Court to make its own independent deter mination about

policymaking, rather than review what was clearly and expressly designated for the

DED position from its inception. While reasonable fact finders can reach different

conclusions, it is well established that the unemployment compensation provision of

the Delaware Code is to be liberally construed in favor of the employee

. 37 On this

record

, it is not indisputable that the DED position is policymaking. For that reason,

the Court must uphold the Board’s reasonable determination on that point.

Further, even if the Board had deemed some of the DED tasks to be

policymaking, it would still have to determine whether the DED was designated as

a “ major

. . . policymaking position .” 38 There is substantial evidence in the record to

support a finding that any policymaking duties of the DED were not major

. Indeed,

when the Board analyzed the DED’s designated task of economic development

, it

determined that while “ the DED is responsible for the development and

implementation of an annual economic plan

– which could possibly involve

policymaking

– the remainder of the DED economic development functions are

unquestionably operational or managerial.” 39

37 Snead, 486 A.2d at 678.

38 19 Del C . § 3302(10)(D)(iii)(V) (emphasis added).

39 R. on Appeal 487. Board Memorandum Opinion and Decision. ( Citing the following functions

as operational or managerial: due diligence reviews, negotiations of lease or sale of assets

, development of standard business documents, development and implementation of an annual

marketing plan, and management of properties.)9 On this record, applying the appropriate standard of review, the Court finds

that the Board’s conclusions are supported by substantial evidence set forth in the

record and are free from legal error . Hence

, its decision must stand, even if the Court

itself would have decided the matter differently. 40 The Board’s decision was logical,

sequential, uniform, and coherent. It considered all of the evidence produced by the

Authority, yet the Board came to a different but reasonable conclusion. The Court

finds that the Board’s decision is t ethered to the evidence in the record and without

error. 41

IV. CONCLUSION

For the reasons stated above, the Board’s determination is AFFIRMED

.

IT IS SO ORDERED

, t his 19 th day of November, 2021.

Sheldon K. Rennie, Judge

40 Morrison v. Unempl. Ins. App. Bd., 2013 WL 5786417 at *3 (Del. Super. Oct. 18, 2013)

(TABLE)

. 41 Minor argues that the Court’s previous ruling that the DED position was nontenured should be

re visited, because the evidence presented by the Authority to the Court was materially false and

discredited. The Court’s current ruling leaves Minor eligible for unemployment benefits and

thus, obviates the need to rule on this argument.