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

TAMMY A BARSTAD, Employee

COUNTY OF ADAMS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02000164WR


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 about five years as a social worker aide for the employer, a county government social services department. Her last day of work was November 6, 2001. On November 14, 2001 (week 46) the employer notified her that it was terminating her employment.

The employee was hired as a family based service aide. In such a position, the employee was responsible for undertaking certain duties and responsibilities, which included the following:

1. To promote the safety, health and well-being of both children and parents;
2. To promote emotionally supportive and other supportive services to children in families;
3. To teach appropriate parenting techniques;
4. To keep the case manager and/or supervisor informed of changes that affected the client.

(Ex. 1).

Sixty to seventy percent of the clients being served by the employer's health and social services department were involved with drugs. The employee's job included referring the employer's clients to groups that provided counseling for drugs and alcohol abuse, and providing literature about the harmful effects of drug use.

On the morning of November 7, 2001, law enforcement personnel conducted a search of the employee's home looking for evidence of a methamphetamine laboratory. During this search, a methamphetamine laboratory was found in the employee's detached garage and additional evidence was seized which included the following: 1). a Browning B.A.R. .30-06 caliber World War II military rifle; 2). a sword attached to the back of an entertainment center; 3). a glass marijuana bong; 4). a Winchester model 94 rifle; 5). a Stevens model 62 rifle; 6). a marijuana pipe; 7). a Ruger .44 magnum carbine; and, 8). a an excessive amount of Sudafed tablets and ephedrine pills. The employee was arrested for possession of drug paraphernalia and being in possession of a firearm as a convicted felon. Her husband was arrested for the manufacturing of methamphetamine and possession of narcotics and drug paraphernalia.

The employee was released on bail on November 8, 2001. The employer's director of social services advised the employee that she was being placed on leave from her employment with the employer, with pay, pending a further investigation into the matter.

On November 13, 2001, the employee met with the director of social services. At that time, the employee admitted to being convicted of the felony of welfare fraud in 1991 but contended that the Governor had pardoned her. She was unable to produce any proof of a pardon. She further admitted to owning and possessing several of the firearms seized by the police in her home. The employee denied any knowledge that her husband was involved in manufacturing methamphetamine or that he was consuming any narcotics. The employee indicated that for the past couple of months her husband had been acting strangely and forbade her and her six minor children from going outside except to travel to work or school. Moreover, the employee did indicate that her husband began associating with unsavory characters. The employee admitted that on one occasion she ventured outside the home and smelled the odor of sulfuric acid. The employee also acknowledged during this meeting that her husband, as a convicted felon, could not purchase or possess firearms.

Finally, the employee admitted that she did not handle her own personal life in a way she would advise any of her clients to handle theirs. More particularly, she did not report any of the incidents involving the physical abuse or drug abuse to social service or law enforcement agencies.

On November 14, 2001(week 46), the employer notified the employee in writing of the termination of her employment. That written notice, in part, states as follows:

Our investigation shows that sufficient evidence exists that an illegal methamphetamine laboratory was discovered at the residence owned by you and your husband. Many instruments necessary for producing this illegal controlled substance were found at your premises. In addition, various other drug paraphernalia was also discovered, as well as cocaine and marijuana. In fact, drugs from your residence were sold to a child of one of your clients.

In addition, our investigation determined, and you admitted, that two guns belonging to you as well as two guns belonging to your son were also found on premises. As a past convicted felon, it is not appropriate for you to maintain guns. While you had indicated to us that you had been pardoned for this past felony, the Governor's Office for the State of Wisconsin denies that any pardon has ever been granted to you.

As you acknowledged, your position with the Department requires your assistance to families and children in need. This assistance includes directing families and children to appropriate resources regarding drug and alcohol problems. The amount of drug paraphernalia, drugs and the fact that an illegal drug producing operation was discovered on your premises, while at the same time housing six children, is inconsistent with the necessary goals of this Department in developing appropriate family relationships and other services.

Staff simply cannot be involved in or passively condone the use, production or distribution of illegal substances. In addition, the Department cannot condone the possession and use of weapons when such use and possession is prohibited by law.

(Ex. 5).

The issue to be decided is whether the employee was discharged for misconduct connected with her work for the employer. 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 engaged in and condoned activities that were a direct contradiction to the responsibilities she held with the employer. The commission does not credit the employee's testimony that she was not aware that there was drug paraphernalia and a methamphetamine lab on her property. The employee allowed herself and her minor children to remain in an abusive environment in which illegal activity was clearly being conducted. The commission likewise does not credit the employee's claim that she received or believed she had received a pardon. The employee lied to the employer when she claimed to have received a pardon. The employer had a right to expect that the employee's off-duty behavior would comport with the responsibilities of her position with the employer. Finally, the employer had a right to honest responses from the employee. The employee was dishonest when she claimed to have received a pardon.

The commission therefore finds that in week 46 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 $6,138.00 for weeks 47 through 52 of 2001, and for weeks 1 through 28 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 46 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 $6,138.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on November 21, 2001, is set aside. If benefits become payable based on work performed in 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 25, 2002
barstta . urr : 132 : 1 : MC 618 

/s/ 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 found the employee to be a credible witness. The commission disagrees. The items found during the raid, and the employee's admitted observations before that raid, belie the employee's claim of ignorance as to her husband's activities. The employee presented no credible evidence that she received a pardon.

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: 
Attorney Steven Mays
Attorney James R. Macy


Appealed to Circuit Court. Appela dismissed on procedural grounds, October 31, 2002.

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uploaded 2002/07/26