DELLA D WALKER, Employee

ST CHARLES YOUTH & FAMILY SERVICES INC, Employer

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:

The employee worked as a youth development specialist from February of 2003 for the employer, a non-profit organization involved in providing human resource services to male youths in the community. Her last day of work was May 17, 2005.

The employee's employment was in jeopardy prior to her last day of work because she had been disciplined for sleeping on duty.

The employer heard reports that the employee was making inappropriate comments during a group session with male youths. On May 19 the employer met with the employee and asked her about her comments at her May 17 group session. The employee admitted speaking to the boys about selling drugs. The employee admitted telling the boys, "If you're going to hustle you need to make sure you have a check stub in your pocket so if the police pull you over you can account for the money that you have in your pocket." The employee also told the boys that if they wanted to be a player, like her, to get a job at McDonald's while out there on the street. The employer told the employee that, as the boys were in care due to committing delinquent acts, it was inappropriate to discuss with those boys hustling and selling drugs. The employee's employment was suspended pending review of the matter. The employer discharged the employee from her employment on May 24, 2005 (week 22), for making inappropriate comments at the group session.

The issue to be resolved by the commission 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 insurance 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's comments to the boys in her charge were clearly inappropriate. Indeed the employee acknowledged that if it were found that she made the comments attributed to her, such comments were be against the employer's policy. Advising youths who have previously been in trouble on how to avoid being caught violating the law is clearly contrary to standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 22 of 2005 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 $7,228.00 for weeks 22 and 23 of 2005 and weeks 25 through 48 of 2005, 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. Wis. Stat. § 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), departmental 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, by commission or omission, 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 departmental 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 departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is amended as to the week at issue and, as amended, is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2005, 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 $7,228.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on May 25, 2005, is set aside. If benefits become payable based on work performed in other covered 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 December 21, 2005
walkede . urr : 132 : 1 : MC 610.25

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not recall the demeanor of the witnesses.

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.I. 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: St. Charles Youth & Family Services (Milwaukee, Wisconsin)

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