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

JAMES L JACKSON, Employee

CITY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610024MW


On October 29, 2002, the Department of Workforce Development issued an initial determination which held that the employee had been discharged but not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on December 18, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On December 23, 2002, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse decision and, by April 21, 2003 order, the commission remanded the matter for additional hearing. That hearing was held on June 24, 2003; the matter is again before the commission and now is ready for determination.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee continues to work as a police officer for the employer, the City of Milwaukee. He was off work from September 19 through November 24, 2002, because he had not met certain education requirements necessary for certification by the State's Law Enforcement Standards Board. The commission concludes that the separation is more properly considered a suspension of employment due to loss of license under Wis. Stat. § 108.04(1)(f), than it is a simple quit of employment.

The employee began work as a police officer on April 8, 1996. By April 8, 2001, the employee was required to have obtained either an Associate's Degree or 60 college credits, pursuant to standards set by the State's Law Enforcement Standards Board. By operation of Wis. Stat. § 165.85, which establishes the board, the board oversees and certifies law enforcement personnel in the State of Wisconsin. The board's statutory powers include the decertification of law enforcement personnel who do not meet the board's standards, including training and education standards.

The board meets either by biennially or irregularly. In any event, it did not meet in 2001, the year the employee was supposed to have completed the educational requirement in question. Despite the employee's having met the requirement as of the time the board met in May of 2002, the board still instituted decertification proceedings against the employee. The board met on September 4, 2002, at which time it informed the employee that it would be decertifying the employee effective September 19, 2002. For this reason, the employee resigned his employment with the employer effective September 18 at 11:59 p.m. Then, the employee successfully reapplied for his position with the law enforcement agency and, as indicated above, took it up again effective November 25, 2002.

The administrative law judge found that the employee had voluntarily terminated his employment. The administrative law judge conceded that the employee was facing decertification and consequent discharge, but concluded that the employee still terminated the employment on his own initiative. This reasoning is incomplete, as it does not consider the notion of constructive discharge. That principle is to the effect that, if an employee is faced with the choice of resignation or discharge and chooses resignation, legally the separation is still deemed a discharge because the employer was the party who forced the separation from employment. In this case, since the employee was facing certain decertification and discharge, the separation is more properly characterized as a discharge than as a quit.

This does not mean the employer was at fault in any way for the separation. The employee was, due to his own failure to have met the education requirements necessary to maintain his certification by the Law Enforcement Standards Board. A case involving such a suspension is properly placed under Wis. Stat. § 108.04(1)(f), which provides:

If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06(1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded under this paragraph if the employee qualifies to establish a benefit year under s. 108.06(2)(a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 from which base period wages are excluded under this paragraph.

Webster's defines a license as "a right or permission granted in accordance with law by a competent authority to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful." American Heritage defines license as the "official or legal permission to do or own a specified thing." From these definitions, there is no question but that the certification the Law Enforcement Standards Board gives, is a license within the meaning of Wis. Stat. § 108.04(1)(f).

The commission therefore finds that, in weeks 38 through 47 of 2002, the employee's employment was terminated because a license issued by a government agency required by law in order to perform the employee's customary work for the employer, had been suspended, revoked, or not renewed due to the employee's own fault, within the meaning of Wis. Stat. § 108.04(1)(f).

DECISION

The appeal tribunal decision is modified to accord with the foregoing and, as modified, is affirmed. Accordingly, if the employer is the only employer in the base period, benefits are denied beginning in week 38 of 2002 and until the license is reissued or renewed. If there are other employers in the base period, benefits are denied beginning in week 38 of 2002 and for a period of up to five weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are employers in the base period and the employee is otherwise qualified. This matter is remanded to the department for determination whether the employee is eligible for benefits at any time during the suspension. The record in the case contains no information as to the date of the employee's recertification by the Law Enforcement Standards Board.

The wages paid by this employer shall be excluded from the employee's base period wages for purposes of benefit entitlement while the suspension, revocation, or non-renewal of the license in effect. Any benefits paid for later weeks, based on the wages excluded, while the suspension, revocation, or non-renewal remains
in effect, that would otherwise be chargeable to the employer's account, shall be charged either to the fund's balancing or administrative accounts.

Dated and mailed July 31, 2003
jacksja . urr : 105 : 1  AA 130  MC 629

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is as a matter of law, and is not based upon a differing credibility assessment from that made by the administrative law judge.

cc: Assistant City Attorney Dan Schriefer


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uploaded 2003/08/12