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

TABITHA A FENCEROY, Employee

DEPARTMENT OF CORRECTIONS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02601115MW


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 its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a probation and parole agent for the employer, a state corrections agency, for over three years. Her last day of work was October 29, 2001, when she was suspended pending an investigation. She was discharged on December 20, 2001 (week 51).

The employer's fraternization policy provided that the employer's workers may not have relationships with inmates or offenders under the supervision or custody of the employer. The employee was granted an exception to the employer's fraternization policy in August of 2000, in order to have contact with offender DeAndre Harris for the purpose of mutual parenting of their son.

On October 23, 2001, Harris was pulled over while driving the employee's car. Harris was subsequently arrested for driving after revocation. During Harris's arrest, the police recovered baggies containing a total of 24.85 grams of cocaine from the bottom of the center console in the employee's car. At the time of his arrest, Harris told the police officers that he lived with his mother. However, when contacted by the police, Harris's mother informed the police that Harris lived with the employee.

On October 24, 2001, the police conducted a search of the employee's house and found:

The police also found male clothing in the house hanging and folded on a shelf, in a closet, in a dresser drawer, and in a hamper. Personal papers belonging to Harris were also found in the house.

On October 24, 2001, the police contacted the employer and notified it that Harris had been arrested and charged with drug possession while driving the employee's vehicle. The employer questioned the employee about Harris's arrest. During the meeting, the employee did not disclose that a search of her house had uncovered the above items.

On October 29, 2001, the police notified the employer of the search of the employee's house and items found by the police. During an investigation into her conduct, the employee denied that Harris lived with her and asserted that he lived with his mother. The employee explained that Harris's clothes were at her house because Harris had been living with his mother who had recently moved and Harris had asked if he could store some of his clothes at her house.

On October 29, 2001, the employee's employment was suspended pending investigation. At that time, the employee was given a letter that prohibited contact with any offenders under the employer's supervision. Thereafter, the employee engaged in telephone contact with Harris.

On December 20, 2001, the employer notified the employee that her employment was to be terminated for violation of the following work rules:

1. Insubordination, disobedience, or failure to carry out assignments or instructions.
2. Failure to follow policy or procedure including but not limited to the DOC Fraternization Policy and the Arrest and Conviction policy.
3. Negligence in performance of assigned duties.
4. Falsifying records, knowingly giving false information, or knowingly permitting, encouraging or directing others to do so. Failing to provide truthful, accurate and complete information when required.

The issue to be decided is whether the employee was discharged for misconduct connected with her employment. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employee was clearly insubordinate when she engaged in contact with Harris after being specifically directed that contact with an offender was prohibited. It was not reasonable for the employee to believe Harris was still excepted from this prohibition given the items found at his arrest and after a search of the employee's house. The employee claimed that Harris was not living with her. The presence of his clothes, both dirty and clean, and personal writings found during the search of her home indicated otherwise. Further, Harris's mother's statement to the police clearly contradicted such assertion. In addition, the statement that Harris provided the police as to why his clothes were in the employee's house contradicted the employee's version of events. The more credible evidence was that Harris was living with the employee. Such arrangement went beyond the bounds of the exception provided to her for the purpose of mutual parenting of their son. The employee lied to the employer during its investigation when she denied that she lived with Harris.

The evidence did not establish that the employee was aware of the drugs and other items found in the police search of her house. The employer maintained that the employee's failure to realize that Harris was storing drugs and drug related items in her home constituted negligence given that she was trained as a probation and parole agent to recognize drug-dealing behaviors. Negligence alone will not support a denial of benefits. However, the employee's violation of the employer's fraternization policy, her violation of the no contact order issued when she was suspended, her failure to disclose the presence of drugs in her vehicle and the fact of and results of the search of her home, and her dishonesty during the investigation, did demonstrate an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee rising to the level of misconduct connected with her employment.

The commission therefore finds that in week 51 of 2001 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $3,250.00 for week 52 of 2001 and weeks 1 through 3, and 5 through 16 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 employee 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 employee is ineligible for benefits beginning in week 51 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,250.00 to the Unemployment Reserve Fund. The initial benefit computation issued on December 28, 2001, (form UCB-700) is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 11, 2002
fenceta . urr : 132 : 1 : MC 630.07  MC 640.03 

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he credited the employee's testimony that she was unaware of the drugs and related items in her house, that Harris was not living with her, and that she believed the exception to the fraternization policy allowed her to continue contact with Harris despite the directive in her suspension letter. As reflected in the commission's decision, the evidence did not demonstrate that the employee knew of the drugs and related items in her house. The commission disagrees with ALJ's credibility impressions as they relate to other matters leading to the employee's discharge for reasons set forth in the body of this decision.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: Department of Corrections (Milwaukee, Wisconsin)


Appealed to Circuit Court. Affirmed January 9, 2003. [Circuit Court decision summary]

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uploaded 2002/07/17