DENISE THAYER, Complainant


ERD Case No. 9000100

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations  issued a decision in the above-captioned matter on September 9, 1991. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. Delete paragraphs 4 and 5 of the FINDINGS OF FACT and substitute therefor the following:

3. Complainant worked in the homes of over two dozen elderly people as a home health aide, providing personal care and nursing assistance. Most of the patients had some form of physical illness, and many had terminal illnesses. Many were also in various stages of confusion or disorientation. Almost all had at least several prescription medications including medications for pain, anxiety, insomnia, or other conditions. These included controlled substances such as morphine, codeine, and valium. Complainant's responsibilities included supervising the patients' consumption of these drugs, in connection with which she would provide the medications to the patient for self-administration. Complainant was not supervised or accompanied by anyone else when she went to these patients' homes.

4.  On September 11, 1987, before she was hired by Respondent, Complainant, her husband and another person had been arrested near a rural location where the husband and the other person had been cutting down marijuana plants and stuffing them into plastic lawn refuse bags which Complainant had obtained and provided to her husband with the evident knowledge of their intended use. Seven such bags of marijuana were confiscated at this location.  When their nearby farmhouse was subsequently searched, police found marijuana paraphernalia (pipes, scales), roaches, seeds, quantities of marijuana in various kinds of containers in a number of rooms in the house, including the kitchen, living room, and a bedroom, and 51 marijuana plants hanging from lines drying in another room. There were also enough marijuana plants growing behind the barn to fill five more garbage bags. Thayer was charged with possession of a controlled substance with intent to deliver, in violation of sec. 161.41(1)(m), Stats. Respondent was aware of this pending charge when Thayer was hired.

2. At the end of the first sentence of FINDING OF FACT number 5, add the words "in violation of sec. 161.42, Stats."

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed April 8, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The specific facts about Complainant's violation of sec. 161.42, Stats. were never developed in a criminal trial because she pled no contest. However, she made some admissions on the record at the ERD hearing, and the ERD record also contains both the criminal complaint and the testimony of the sergeant who had been in charge of the criminal investigation, who conducted the search of the dwelling, and who swore out the criminal complaint. The testimony of that officer as well as those aspects of the criminal complaint that reflect matters as to which he had personal knowledge, form the basis for the specific findings as to the circumstances of the offense which the Commission has added.

The offense for which Complainant was convicted was knowingly maintaining a dwelling which is used for keeping controlled substances, in violation of sec. 161.42, Stats. This is a felony, punishable by a fine of up to $25,000 and imprisonment of up to one year. The offense has been construed, in State v. Brooks, 124 Wis. 2d 349, 369 N.W.2d 183 (Ct. App. 1985), to involve "more than simple possession;" it implies "possession for more sinister purposes." 124 Wis. 2d at 354-55. The court held that "keeping" as used in the statute means keeping "for the purpose of warehousing or storage for ultimate manufacture or delivery." 124 Wis. 2d at 354. Thus, it is implicit in the offense that more is involved, for example, than simply keeping enough drugs around the house for personal consumption. Since there must be a purpose for ultimate manufacture or delivery, trafficking is reasonably presumed to be involved.

Complainant's briefs suggest that she was an unwilling participant in the maintenance of the dwelling for this purpose, trapped by her relationship with her husband, her obligations to her children, and her need to maintain a home for them.  The Commission rejects this suggestion as unpersuasive for a number of reasons.

First, Complainant's claim of non-involvement is undercut somewhat by her admission that she went and got the plastic bags and gave them to her husband on the day that he and the other person were harvesting the marijuana. The Commission feels some doubt over Complainant's explanation, that she was coincidentally collecting butternuts in the area where the marijuana was harvested. Finally, there is no claim by Complainant that she did not know of the presence in her home of all of the contraband which was found in the search, and there is no claim that she ever tried to do anything to induce or persuade her husband to get it out of the house.

Second, and more important, the conviction of Complainant for this offense must be considered to conclusively estop her from subsequently trying to call into question her culpability in any of the material elements of the offense. Furthermore, her conviction establishes in legal contemplation that facts making out a defense of coercion under sec. 939.46, Stats. were not present.

The supreme court has described the inquiry which is necessary under the substantially related test in County of Milwaukee v. LIRC and Serebin, 139 Wis. 2d 805, 407 N. W.2d 908 (1987), as follows:

"We reject an interpretation of this test which would require, in all cases, a detailed inquiry into the facts of the offense and the job. Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test. What is important in this assessment is not the factual details related to such things as the hour of the day the offense was committed, the clothes worn during the crime, whether a knife or a gun was used, whether there was one victim or a dozen or whether the robber wanted money to buy drugs or to raise bail money for a friend. All of these could fit a broad interpretation of 'circumstances.' However, they are entirely irrelevant to the proper 'circumstances' inquiry required under the statute. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person." 139 Wis. 2d at 823-34.

A violation of sec. 161.42, Stats. basically shows an inclination towards trafficking in controlled substances as a way of earning income. In this case, it was also carried out in part using the isolation which comes from rural living. The job in this case brings the home health aide into the homes of numerous physically and mentally impaired people where they are similarly isolated from the observation of others and where there is an opportunity to steal quantities of potent controlled substances. The past involvement with marijuana stored for the purpose of delivery suggests that Complainant might have contacts with people interested in purchasing controlled substances, and this would provide an opportunity for her to sell drugs she was able to steal from patients. The condition of the patients and her relationship with them would provide an opportunity to cover up any pilfering of their drugs.

Complainant argues in her briefs that her offense and her job are not substantially related because the risk presented by the job was that Complainant might steal and then herself abuse the controlled substances, while the evidence showed that she herself (as distinguished from her spouse) did not use the marijuana which was found throughout their dwelling. Thus, she argues, there is no reason to think that the Complainant's character traits and proclivities would lead to a problem of substance abuse arising from her job. What this ignores is that the essence of the offense was related not to abuse but to trafficking. Unsupervised access to the homes of numerous impaired adults with numerous potent prescription drugs provides clear opportunity for just this kind of conduct.

This case bears many similarities to one the Commission recently decided, Delapast v. Northwoods Beach Home (LIRC, February 17, 1993).   Delapast worked as a case aide in a residential care facility for developmentally disabled adults, and her duties included having control over their prescription medications and dispensing them to the residents. The offense in question was delivery of a controlled substance (marijuana). Delapast essentially admitted a marginal role in the transfer of marijuana, acting in effect as a go-between. The Commission held that the offense was substantially related to the job, stating:

"An allegation of felony delivery of controlled substances is clearly substantially related to a job caring for dependent adults which includes responsibility for access to and distribution of medications and prescription drugs. Cf. Black v. Warner Cable Communications (LIRC, July 10, 1989), possession of and distribution of cocaine substantially related to job of being door-to-door salesman; McClellan v. Burns International Security (LIRC, March 31, 1988), possession of marijuana substantially related to job as security guard; Milwaukee County v. LIRC and Serebin, 139 Wis. 2d 805, 8282, 407 N. W.2d (1987), homicide by reckless conduct in administration of nursing home substantially related to job as telephone crisis counselor assisting a `vulnerable, dependent segment of the population'."


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