STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RANDY  M  PTACEK, Employe

COUNTY OF RUSK COURTHOUSE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97200605LS

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe began working in January of 1995 as an on-call reserve deputy for the employer, a county government unit. He became a full-time deputy in the first part of September of 1996. His last day of work was February 17, 1997 (week 8). He was discharged by the employer on February 24, 1997 (week 9).

The issue to be decided in this case is whether the employe's discharge was for misconduct connected with his employment.

The employer's jail is on the second floor of the building. Workers often take breaks in the garage area on the ground floor, where smoking is allowed.

Deputies at the employer's jail generally work in the dispatch area or in the jail area. The jail is not to be left unattended.

On February 6, 1997 (week 6), the employe was assigned to be working in the jail area. At about 7:10 p.m. the employe left with a more senior deputy, who was not on duty at the time, to have a cigarette. Another worker who was to be covering the dispatch area, Ms. White, went on break with them, and they all went downstairs together. Ms. White had been at dispatch, and had gotten another co-worker, who was to be covering the jail area with the employe, to watch dispatch. Thus, the employe was or should have been aware that the jail area was unattended. The employe did not check the jail area before leaving for break and there was an unsecured trustee in the jail area, who could communicate with secured inmates, and if unsecured, could also have access to kitchen items and the med cart. The employe was gone about 15 minutes.

At staff training, deputies were instructed that two jailers were not to take a break at one time. The employe testified that it was his understanding that there was to be a dispatcher in dispatch at all times, and a jailer on the jail floor at all times. The employe told the employer that he understood he was not to leave the jail unmanned or leave a trustee unsupervised. The jail policy and procedure manual sets out this rule, and the issue had been discussed during jail/dispatch meetings and training sessions. While at times the employe's duties required brief absences from the jail area when there was nobody else available to watch the area, the fact that several workers went down to the garage for ice cream the prior summer had been addressed at a department meeting, which was about workers not being on the jail floor. Thus, the employe should have been aware that he was not to leave the jail floor unsupervised simply to go on his break. Further the employe should have ensured that the trustee was secured prior to leaving for his break. Under the circumstances, the employe's actions in going on break, leaving the jail floor unsupervised and a trustee unsecured, amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 9 of 1997 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04 (5).

The commission further finds that the employe was paid benefits for weeks 9 through 30, weeks 32 and 34, and weeks 36 through 38 of 1997, amounting to a total of $6,293 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 9 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. Department records reflect that the employe has requalified for benefits as of week 39 of 1997. He is required to repay the sum of $6,293 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any account shall be charged to the fund's balancing account.

Dated and mailed: February 3, 1998
ptacera.urr : 145 : 1 MC 688

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who believed that the employe was simply not aware of how serious the employer considered the situation. However, the commission finds that the employe's testimony demonstrates that he was aware that the inmates were to be supervised, of the potentially serious consequences of leaving inmates unsupervised, that his actions were in violation of the employer's policy and that discipline could be imposed. Thus the employe was or should have been aware that the employer considered the supervision of prisoners to be extremely important, and his failure to properly supervise the jail floor and to secure a trustee before leaving the jail floor, amounted to misconduct connected with his work.

cc:
ATTORNEY CATHERINE QUIGGLE
RODLI BESKAR BOLES & KRUEGER SC

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