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

PATRICK E DURKIN, Employee

KRAUSE PUBLICATIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01403128AP


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 for more than nine years as editorial director of the outdoor division of the employer, a magazine publishing business. He was discharged on September 12, 2001 (week 37).

A vendor sent the employer an all terrain vehicle (ATV) valued at about $6,000 on May 25, 2001. The employee kept the ATV at his own home, paid to have a winch installed and failed to tell his co-workers about having the ATV. In August, the employee's supervisor, the divisional publisher, asked the employee about an all-terrain vehicle (ATV) he had seen pictured in a magazine. He asked the employee if he had received that ATV and the employee said he had not. The employee later admitted to the divisional publisher that he had lied earlier, and that he had received the item. The employee apologized for his actions.

The employee had scheduled an approved hunting trip to hunt elk in Colorado. The trip was to take place from September 7 through 10. The employee made travel reservations the previous July for his daughter and himself, charging his airline ticket to the employer's account. He requisitioned a check to pay for his daughter's Colorado hunting license. The daughter's license cost $432.25. His own license would have cost $275.50 but he did not request a check for that. When the divisional publisher asked the employee whether he had used the employer's funds to purchase trips or license for his daughter, the employee denied doing so.

On September 5, the divisional publisher called the employee and told him that his elk-hunting trip would not be approved. The employee agreed to reimburse the employer for expenses advanced. On September 6, he wrote a letter, accompanied by a personal check for $434.50. That check represented repayment for his airline tickets, and for the difference between the cost of his license and the cost of his daughter's license.

The divisional publisher then asked the employee if there was "anything else." The employee reviewed his prior expense authorizations and prepared a detailed list of fifteen transactions, beginning in 1996, involving payments for hunts. All the trips listed were approved hunts. The employee stated that to "short-circuit" the complicated procedure for approval of purchase orders for travel expenses, he charged items to his editorial budget that were actually travel expenses related to approved hunts. He would enter these expenses as payments made to freelancers, for articles that never appeared in the publisher's magazines. He provided the list of fifteen questionable transactions to the divisional publisher.

On September 12, the divisional publisher informed the employee that he was discharged. He never again performed work for this employer.

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

The employer contended that the discharge was for misconduct. The commission agrees.

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 purposely indicated to the employer that travel expenses claimed were actually editorial expenses. The employee asserted that he did this because it involved less work. The employee was aware that he had a limit on his travel expenses. His actions gave the employer a false picture of both travel and editorial expenses. In addition, although there is no evidence that the employee did so, this method of reporting would have allowed him to exceed his travel budget. While those expenses were approved, the commission notes that the employee held a responsible position with the employer for some years, and the employer would not be expected to check to ensure that every expense listed was actually used for the purpose stated on the expense report.

In addition, the employee intentionally requested that the employer pay for his daughter's Colorado hunting license. This resulted in a definite financial benefit to the employee at the expense of the employer. Further, the employee initially denied doing so when the employer questioned him about this.

Finally, the employee took an expensive item to his home, and when questioned about it, denied having the ATV. The employer had the right to request information about this item, and the employer had a right to expect an honest answer from the employee.

The employee's actions, in intentionally giving the employer inaccurate information, lying to the employer about the ATV, and requesting that the employer pay for a Colorado hunting license for his daughter, and his initial denial of the latter two actions, demonstrated 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 37 of 2001 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for week 38 of 2001, amounting to a total of $313.00 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 employee 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 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 37 of 2001, 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. The employee is required to repay the sum of $313.00 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 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 18, 2002
durkipa . urr : 145 : 1  MC 630.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ said that the employer's witnesses, specifically the employer's attorney and the divisional publisher, indicated the admissions made by the employee meant more than he actually admitted on a number of occasions. Further, she found the employee was credible when he stated he did not know there was anything wrong with using his editorial budget for travel and he had done so in the past. The commission disagrees with the ALJ's credibility assessment. If the employee did not think he was doing anything wrong in circumventing the procedures for properly reporting his expenses, he would not have compiled the list when asked by the employer if there was anything else. The employer asked a general question and did not specifically ask about inaccurately reporting expenses. Further, the employee specifically indicated that he owed the employer $16,900 and intended to make restitution. While the employer may have characterized the employee's actions in the worst possible light, the point is that the employee still attempted to have the employer pay for his daughter's hunting license, without requesting permission of the employer. Further, the employee still intentionally falsified his expenses on a number of occasions.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

cc: 
Attorney Richard F. Rice
Attorney J. P. Thornton


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uploaded 2002/07/26