STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
PATRICIA M. CAVEY, Employe
LEGAL AID SOCIETY, Employer
UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96601148MW
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Legal Aid Society of Milwaukee, Inc. (LAS) is an organization which provides civil legal services to people unable to pay for them. LAS obtains its funding from such sources as the county (in cases in which services are provided by appointment of a court), grants from agencies such as United Way, payments from agencies which have contracted for LAS to provide legal services to certain persons, such as the AIDS Resource Center of Wisconsin ("ARC", or "ARCW"), donations, and attorneys fees awards. At the times material herein, LAS had approximately 40 employes, around 20 of whom were attorneys.
The employe, Patricia Cavey, who is an attorney, was first employed by LAS in around 1991 or 1992. She was the chief staff attorney in the Mental Disabilities Law area of LAS. Her position involved both the direct representation of clients and some supervision of staff attorneys and support staff.
For some time prior to 1995, Cavey had felt that there were inequities in the compensation at LAS, affecting both herself and other employes. Her concerns were not limited to persons employed in her (Mental Disabilities) Division. Some other staff had shared her views, and during 1994, the tenure of the then- Executive Director of LAS, Carol Wenerowicz, was marked by staff complaints, which concerned such alleged unequal treatment and perceived inequities in pay. A campaign of some sort was mounted against Wenerowicz, at least a part of which had to do with conflict over the fairness of salaries, and she was eventually released from her position on unfavorable terms, effective December 31, 1994. James Walrath, an LAS attorney who was at that time the litigation director, became the Acting Executive Director of LAS on January 1, 1995, and he was made the permanent Executive Director as of February 6, 1995.
While the concern on the part of LAS staff about pay inequities had been mostly targeted at Wenerowicz, Cavey's concern about these kinds of management issues continued to be a very important issue to her under Walrath's leadership. Cavey felt that there was inequity in the distribution of certain privileges and that some salaries were unfair in terms of productivity; specifically, that certain persons were underpaid, and that certain other persons (including attorneys who were friends of or wives of LAS Board members) were overpaid. She was vocally critical about the competence of some of the attorneys who she believed were overpaid.
The management of LAS kept records of information about the salaries and benefits of its employes in three forms. Each employe's individual personnel file contained information about the salary and benefits of that particular employe. LAS also maintained payroll records which contained information about the salaries and benefits of all of its employes. Finally, LAS kept files containing records relating to its relationships with contractors for which LAS employes provided services, and some of the documents in these files contained salary information related to the particular LAS employes providing services in connection with that contract.
At all times material herein, LAS has had written Personnel Policies which provided, under the headings "PERSONNEL FILES", "Confidentiality And Access", that
Access to personnel files is restricted to the Executive Director, the Administrators, supervisory staff designated by the Executive Director, and to the Board of Directors if involved in the resolution of employe grievances; except that any employe may upon request view his/her own personnel file.
Except for verification of employment, job title, and starting date, no salary or other information regarding employees shall be given to callers on the phone. Other information regarding employes will only be released with the employe's consent, by court order, or as otherwise required by law or the Firm's funding sources.
The Firm's auditor and accountant and any insurance agencies with whom LAS has or investigates contracts will be given only that information concerning employes that is required for the provision of their services.
Any disclosure of confidential employe information other than as authorized above will be grounds for discipline and/or termination.
The personnel policies also provided, under the headings "LAY- OFFS AND TERMINATIONS", "Terminations", that
"Employes may have their employment relationship with the Firm terminated for any of the following reasons:
. . .
d. Unauthorized disclosure of confidential personnel or client information".
Copies of these policies had been given to Cavey, with emphasized instructions that if there were any provisions she did not understand it was her responsibility to inquire as to their meaning, and she acknowledged in writing that she had received and "fully underst[ood] and accept[ed]" those Personnel Policies.
In March, 1995, Cavey complained to Walrath that personnel file information she had seen, located in the office of Kimberly Tenerelli, an administrative assistant, showed differences in salary rates or structures that she considered to be a problem. Walrath was concerned about the fact that Cavey had looked at this information, but he did not issue her a warning. The commission finds Walrath's assertions, that he did not issue a warning to Cavey at this point both because of a desire to avoid conflict and because the information he had at that point did not indicate that Cavey was disclosing confidential information to others, to be credible.
Beginning in May, 1995, an audit of LAS was being conducted by a CPA firm. The audit was carried out by a lead CPA with two other CPAs working under her. The conference room which LAS had provided the auditors to work in was only a few doors from Cavey's office. At least during the day, the room was open; and in any event, the keys which the staff had to their individual offices all opened the door to the conference room. There was a calendar posted outside the conference room, and the calendar was marked off showing that there was an audit in progress and that the room was being used for the audit. The room was not used for any other purpose while the audit was going on. Cavey had known as early as January, 1995 that an audit was planned. The commission finds Cavey's assertions, that she did not know that an audit was being conducted in the room, not to be credible. The commission infers from all of the foregoing that Cavey knew that the room was being used for an audit and that the materials in the room were records of LAS being used by the auditors.
At some point during the period when the audit materials were in the conference room, Cavey went into that room, ostensibly for the purpose of using the large table to collate some materials. Among the audit materials in the conference room at that time was a payroll binder which contained detailed (1994) salary and other financial information for every person employed by LAS. The payroll binder was closed, and was resting on the windowsill, which was on the other side of the table from the door through which Cavey entered the room. There was an indication on the spine of the payroll binder that it contained payroll information. On the occasion in question, Cavey went to the windowsill, picked up the binder, opened it, and looked at and read the information inside, for three to five minutes. The commission finds Cavey's assertions, that she looked in the payroll binder "because it was there", not to be credible. The commission infers from all of the foregoing that Cavey went into the conference room and took the initiative to open and read the contents of the payroll binder because she wanted to learn more than she already knew about what LAS employes were paid.
According to testimony of LAS Fiscal/Human Resources Administrator Kathleen Smith which the commission finds credible, there was also present in the conference room at that time (from early May through June) a group of documents related to the contractual arrangements between LAS and ARC, which had been gathered together to be given to and used by the auditors. These documents were contained in a file marked "ARCW grant, 1994", and like the payroll binder, they were on the window sill in the conference room. The information in the LAS-ARC contract documents contained a level of detail as to the salaries and benefits of identifiable LAS employes (Mueller and Byers) that was not contained in the public documents concerning the DHSS grant which funded ARC's contract with LAS, or any other source.
At around this time, Cavey (or a clerical, acting at Cavey's direction) copied and gave to Janet Mueller and Steve Byers, who were other LAS attorneys, a large group of documents connected to the LAS-ARC contract. Up to this point, Mueller had known Byers' salary only approximately, and there is no evidence that Byers had known Mueller's salary. Cavey provided the documents (Ex. 6) to Mueller by simply leaving them on Mueller's chair. Cavey subsequently telephoned Mueller and asked her if she had gotten them.
Subsequently to these events, after Mueller had given Walrath the documents she had received from Cavey, and Walrath had showed them to Cavey, she conceded that it was "possible" that she had copied and given them documents to Mueller. The commission finds Cavey's claim, that she found the documents which she copied and gave to Mueller on a secretary's desk, not to be credible. The commission infers from all of the foregoing that Cavey obtained the materials which she copied and gave to Mueller and Byers from the conference room.
At some point after Cavey provided Mueller with copies of the LAS-ARC contract materials and followed up with a telephone call to Mueller to ask her if she received the documents, Cavey had a telephone conversation with Mueller in which Cavey talked about how she had had access to materials with salary information that had been in the conference room for the audit. Cavey told Mueller that she (Cavey) had inspected materials containing salary information relating to LAS employes which she had found in the conference room. In that conversation they discussed the minority attorneys, and when Mueller would ask about one of them, Cavey would tell her a salary figure. The minority attorneys included Stephan Grochowski, Jenny Ortiz, and Kathleen Thiemann. Cavey described the salary figures with such specificity that Mueller felt that the figures were being "quoted". Mueller concluded from the things Cavey said and the way Cavey spoke in this conversation that Cavey had inspected the documents some days before, but that she either had a very detailed memory of the figures or had copied them.
Also at around this time, Cavey had a conversation with another attorney, Karen
Kotecki, about the presence of documents containing salary information in the conference
room and about the compensation received by other attorneys. This conversation occurred in
Kotecki's office. In this conversation, Cavey told Kotecki that she had observed lists of
people's salaries, and she complained to Kotecki about her belief that there was
unfairness in the salaries. Cavey told Kotecki that she had reviewed and copied documents
including the exact salaries of a number of people and that she had examined and copied
other documents relating to outside contracts. Cavey told Kotecki she had obtained the
documents from the third floor conference room where the materials were present for the
auditors. Cavey identified for Kotecki the salaries of employees including Attorneys Katie
Walsh, Stephan Grochowski, and Gloria Marquardt, LAS Director Walrath, and receptionist
Eva Mero, in the process adding comments to the effect that she (i.e. Cavey) believed that
certain people were either underpaid or overpaid. In addition, Cavey told Kotecki that she
had also informed two other attorneys, Jenny Ortiz and Stephan Grochowski, and also
possibly Kathleen Thiemann, what attorneys Steve Byers and Janet Mueller earned. Cavey
told Kotecki that she (Cavey) had looked at payroll records, and had copied some of those
records and had the copies at her home.
On June 21, 1995, Cavey came to Walrath and told him that records she had seen relating to the salaries of staff attorneys at LAS, contained in documents placed in the third-floor conference room for the auditors, showed that there were people who were not qualified to be staff attorneys at LAS, and that staff attorneys were receiving salaries that she found objectionable or problematic. One of her complaints regarded salaries of part-time attorneys. She complained about alleged favoritism in hiring and inequality in salaries, and preferential treatment of friends of members of the board of directors, and she specifically identified Paula Lorant and Katie Walsh as being attorneys whose salaries she was concerned with. In connection with making these complaints about alleged salary inequities, she identified at least two staff attorneys specifically by name.
Following the meeting on June 21, Walrath became concerned about the fact that Cavey had been able to obtain specific information about staff salaries. To address this, he called Cavey in for a meeting on June 26, 1995, also arranging for Kathleen Smith to be present. At this meeting, Walrath asked Cavey several times to give him the names of the employes that had gone through the payroll information that was in the conference room, stating that he wanted the information so that he could relay to those people that the information was confidential and should not be disclosed by them. Walrath specifically asked Cavey what information she had obtained and with whom (if anyone) she had communicated regarding such information. Cavey did not cooperate with Walrath's request, did not answer his questions responsively, and did not give Walrath the information he was asking for. She told Walrath that he "didn't need to know that information", and that it was "too late" and that all that information was "out there" or was "all over the place". In that meeting, Walrath made it clear to Cavey that he believed that the information concerning salary and benefits in the conference room was confidential and that he thought that communication of that information to others would constitute a breach of confidentiality. The meeting ended with Walrath pointedly describing his as-yet-unanswered request as to who Cavey had communicated any confidential information to, as a "standing request".
While by the end of June 1995 Walrath knew that Cavey had seen certain information, she had not told him that she had disclosed to anyone the information, but instead had only made general statements to the effect that it was "too late" and that the information was "out there" or was "all over the place". It was not clear to Walrath from Cavey's statements in the June 26 meeting, whether the other persons who she claimed knew the information, had looked at it themselves, or had been told it by others who had looked at it. At that time, Walrath had no information from any other source that Cavey had disclosed to others the information which she had seen. Specifically, Walrath did not know at this time that Cavey had disclosed information she had obtained about others' salaries from LAS management records in the third floor conference room, to Mueller, Byers, Kotecki, Ortiz, Grochowski and Thiemann, as described above. The commission infers from all of the foregoing, that Walrath's failure to discipline or discharge Cavey following their meetings in June was not a reflection of any lack of genuine concern on his part about disclosure of employe salary information to other persons without the employe's consent, but rather a reflection of the fact that he did not know at that point about the disclosures Cavey had made, because she had not told him.
Walrath first learned in September, 1995, that prior to their meetings in June, Cavey had disclosed to others information she had obtained from materials in the conference room. His discovery of this was precipitated by a September 19, 1995 memorandum he received from Attorney Steve Byers complaining that Cavey had read through LAS Personnel Files and made photocopies of information contained in such files. Byers' memo suggested to Walrath that there had been a new development -- that Cavey had been communicating to others the confidential information which she had told him she gained. This prompted Walrath to investigate.
On September 24, Walrath spoke to Janet Mueller, who Byers had described in his
complaint as having been given information by Cavey. In her conversation with him, Mueller
told Walrath about the information Cavey had disclosed to her, as described above at p. 7.
Among other things, Mueller told Walrath that she had heard from Karen Kotecki that Cavey
had told Kotecki what various salaries of LAS attorneys were. Mueller also provided
Walrath with the documents Cavey had given her, which was Ex. 6, documents relating to the
contract between LAS and ARC connected with the Milwaukee AIDS Project.
Walrath also spoke to Karen Kotecki on September 24, 1995. In her conversation with him, Kotecki told Walrath about the information Cavey had disclosed to her, as described above at p. 8.
Walrath then met with Cavey to discuss the matter, on September 25, 1996. At his meeting with Cavey, at which Kathleen Smith was also present, Walrath asked Cavey if she had at any time gone into the third floor conference room and copied LAS-ARC contract documents and distributed them. Cavey responded, "Maybe" and "It's possible" or "possibly". Also during this meeting, Walrath showed Cavey the documents Mueller had given him with the indication that Cavey had given them to her, and Cavey said it was possible that she had copied the documents and given them to Mueller. Eventually Cavey stated that she did not want to answer any more questions without having an attorney present. Finally, Walrath informed Cavey that he was suspending her authority to act as a Chief Staff Attorney.
Following this meeting with Cavey on September 25, Walrath prepared separate memoranda summarizing the meetings he had had with Mueller and Kotecki on September 24, which he presented to each of them, asking them to sign them if they concluded that they were accurate. Both signed the memorandum respecting their September 24 conferences with Walrath, Kotecki without modifying hers, and Mueller with a modification of hers intended to indicate that she could not be certain of the number of pages in the LAS-ARC contract materials Cavey had given to her.
By late September, after Kotecki had talked to Walrath about Cavey's discussion of staff salary information with her, after Walrath asked Kotecki to sign a memorandum confirming the substance of their conversation, and after Cavey had been removed from her position as Chief Staff Attorney, Kotecki had come to believe that it was likely that Cavey was going to be terminated soon. She and Cavey had a conversation about this as they were driving home from a shower which had been held for another LAS employe. The commission finds credible Kotecki's testimony that in this conversation, Cavey said she had gathered the salary information because she believed that LAS was being misrun and grossly mismanaged by Walrath and that these things needed to be exposed. The commission finds Cavey's assertions as to the content of this conversation, not to be credible.
After contacting a few other people to learn about the circumstances under which the materials had been gathered for the auditors and whether any of it had been provided to Cavey, Walrath decided to terminate Cavey. He memorialized his decision in a letter dated October 2, 1995, which he hand-delivered to Cavey in her office on that day. Walrath fired Cavey for unauthorized inspection and disclosure of confidential personnel information.
Cavey was aware of her employer's rule prohibiting unauthorized disclosure of confidential employe information. She understood that the rule was intended to have application to and to make confidential, all information about employe salaries which was contained in records created and maintained by LAS management for management-related purposes when that information was not publicly available elsewhere and not voluntarily disclosed by the employe it concerned. She knowingly violated the rule by intentionally reviewing such records, copying and otherwise committing the confidential information they contained to memory, and then disclosing the information to others without the knowledge or permission of the persons about whom she was disclosing information. When she did these things, she was aware that her conduct was contrary to her employer's rule, but she nevertheless violated the rule, in the belief that her actions would not be discovered by or disclosed to LAS management by the people she was communicating with, and out of a desire to promote dissatisfaction with management decisions with which she disagreed.
The legal standard which must be applied to these facts to resolve the question of whether Cavey was discharged for misconduct was set out in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), in which 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."
In this case, there was a deliberate disregard of standards of behavior, concerning the confidentiality of employe information, which the employer had the right to expect Cavey to conform her conduct to. Those standards are reasonable and legitimate. Cavey's disregard of her employer's rules concerning confidentiality of salary information had a negative effect on the employer of precisely the kind that the rules were intended to prevent. The commission concludes as a matter of law that the conduct which it has found Cavey engaged in, was misconduct as contemplated by the court in Boynton Cab.
The commission therefore finds that in week 40 of 1995 the employe was discharged for misconduct connected with her employment within the meaning of sec. 108.04(5), Stats.
The commission further finds that the employe was paid benefits in the amount of $266 per week for week 1 of 1996 and $274 per week for each of weeks 2 through 26 of 1996, amounting to a total of $7,116, for which she was not eligible and to which she is not entitled, within the meaning of sec. 108.03 (1), Stats. Pursuant to sec. 108.22 (8)(a), Stats., the employe is required to repay such sum to the Unemployment Reserve Fund.
The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats.
The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 40 of 1995, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The initial benefit computation (UCB-700), issued on January 6, 1996 is set aside. The employe is required to repay the sum of $7,116 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 employe 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: May 16, 1997
caveypa.urr : 110 : MC 666.01 MC 687 PC 733
/s/ Pamela I. Anderson, Chairman
/s/ David B. Falstad, Commissioner
Introduction -- This case presents both factual questions as to the circumstances surrounding Pat Cavey's termination, and legal questions as to whether those circumstances involved "misconduct" within the meaning of sec. 108.04(5), Stats. The factual questions predominate. The commission has set out its findings of fact in some detail, because its decision rests in significant part on assessments of credibility made based on an analysis of evidence.
The employer, Legal Aid Society (LAS), asserts that Cavey intentionally violated rules which prohibited employes from disclosing confidential personnel information (such as salary and benefit amounts) about other employes.
Cavey's response to the position of her employer is essentially twofold. First, she asserts that she did not violate the rules because the rules only applied to personnel information in the individual personnel files LAS maintained for each employes and did not apply to personnel information in any other management document created and maintained by LAS. Second, and apparently alternatively, she asserts that as to any salary information which it is found she did disclose, she already knew the information from sources other than confidential LAS documents, or the information was a matter of public record anyway.
For the reasons described below, the commission rejects Cavey's position. It is persuaded that Cavey in fact understood, that unauthorized acquisition and disclosure of information about other employes' salaries which was not publicly available and which Cavey had not previously obtained from any authorized source, would be contrary to the Personnel Policies. It also finds that she engaged in that conduct anyway, with intentional disregard of her employer's interests. A major basis for these findings, is the commission's view that Cavey was not credible as a witness.
Cavey's Understanding of the Personnel Policies -- LAS' Personnel Policies obviously contemplated that information on employe salaries and similar information might have to be given out either by requirement of law or by virtue of conditions imposed (and accepted by LAS) by funding sources. These eventualities were contemplated and expressly authorized. However, the Personnel Policies also provided that any disclosure of confidential employe information other than as so authorized would be grounds for discipline and/or termination. The possibility of termination for "[u]nauthorized disclosure of confidential personnel or client information" was reiterated in the Personnel Policies.
This case concerns the question of whether Cavey violated this prohibition on "disclosure of confidential employe information". Because this is an unemployment compensation benefit case presenting the issue of "misconduct" under sec. 108.04(5), Stats., the crucial question is the employe's intent or attitude which attended her act which is alleged to be misconduct. Therefore, the question about what policies meant and what they covered cannot be separated from the question of what LAS and Cavey understood the policies to mean -- which is a question of fact. Specifically, the question is whether Cavey in fact believed that the policies only covered information about employees' salaries obtained from records physically within an employe's individual "personnel file" -- or if she in fact understood that they covered information about employees' salaries obtained from any management document when that information had not been made public or disclosed with the permission of the employee it concerned and she nevertheless sought out and then disclosed such information to others simply because she could and because she thought she could get away with it.
In resolving this factual issue about Cavey's subjective understanding and intent respecting the rules, the commission has considered both the reasonableness of competing constructions of the rules, and Cavey's statements and actions which evidence her understanding of the rules.
The commission agrees with Cavey's argument, that it is unreasonable to contend that the LAS personnel policies made any record of an individual's salary, wherever or whenever found, confidential and not subject to disclosure to anyone. For one thing, as Cavey notes, such a construction would presume to somehow render information contained in public records "confidential", if the information was also contained in a "confidential" personnel file at LAS. For another thing, it would preclude employes from voluntarily disclosing their own salary to others, as they might wish to do in innumerable contexts, such as completing a loan application. Clearly, if information about employe salaries has entered the public record by virtue of a legally required filing, or by voluntary disclosure of the individual it involves, then a person who discusses or discloses that information cannot be said to have obtained or disclosed "confidential" information.
However, it is just as unreasonable to contend that the Personnel Policies only made confidential such information as was actually, physically contained in the individual personnel files maintained by LAS -- and that information about employe salaries, if it could be found anywhere else in any document or record maintained by LAS, would be "fair game" if one could only figure out how to lay hands on it.
No employer can function if its only written records of employe salaries are kept nowhere but in individual employe personnel files. For example, employers must keep a single, overall set of financial books that reflect payroll information including salary payments; they must also commit information about employe salaries to writing in other forms that cover multiple employes and which are of a type not generally kept in individual personnel files, such as tax documents. It is patently unreasonable to think that any employer with an interest in preserving the privacy and confidentiality of its employes' salaries would adopt a policy, whose meaning was that such salary information was only confidential when it was in one of the many forms and locations in which the employer knew it would have to maintain it. Cavey is an attorney, an educated and presumably intelligent person. The commission does not believe that she would have had such a patently unreasonable understanding of the meaning of the LAS Personnel Policies.
The most reasonable understanding of the provisions of the LAS Personnel Policies, is that they apply to information about employe salaries which is contained in records created and maintained by LAS management for management-related purposes, making such information confidential in the sense that that those records are only supposed to be seen by certain identified managerial employes, and by the individual employe involved. Of course, if the information becomes public as a result of an authorized disclosure -- by the individual employe involved, or by LAS management with the individual employe's consent, or pursuant to court order, or as required by law or by LAS' funding sources -- then it is no longer confidential.
The commission believes that this is the understanding that reasonable persons -- employers and employes -- would have as to the meaning of policies such as those at LAS. That is one reason it has found that this was the understanding that Cavey had here.
In addition, Cavey's statements and actions persuaded the commission that she had this understanding. Cavey testified to concerns about sharing "confidential" information with certain employes, and it seems unlikely that she would have had such concerns if she genuinely believed that nothing except information extracted directly from individual personnel files had any attribute of confidentiality. Also, Cavey's dogged insistence that she did not learn anything she did not already know when she looked in the payroll binders, and that she did not disclose any information that she "obtained" from looking at those payroll binders (as opposed to information she already knew), was also notable. The commission is convinced, that if Cavey genuinely thought that the payroll binder was not covered by the confidentiality policies because it did not constitute a "personnel file", she would not have engaged in the kind of evasiveness she displayed in both her meetings with Walrath and in her testimony at hearing with respect to questions about her inspection of the document.
Cavey asserted that she was actually concerned about the payroll records being accessible in the conference room because of the potential for the release of confidential information. Perhaps understanding that this seemed inconsistent with her position in the litigation that there was nothing wrong in her having looked at them, Cavey asserted that her concern was that non-employes would be able to access these records. However, the commission found this assertion not to be credible. There was no basis on which a reasonable person could find some sort of distinction between employe- and non-employe-access in the Personnel Policies' provisions on confidentiality, and the commission does not think that Cavey actually thought there was any such distinction provided for.
The flavor of artificiality in Cavey's explanation of her views as to the applicability of the confidentiality rules, was most notable in her discussion of how they would have applied to certain hypothetical situations. Thus, she testified that whether she would have felt it legitimate to look at the payroll binder would depend on what room it was in. When she was then questioned with a hypothetical about their being in the administrative office, she testified that if documents were not under lock and key, whether it would be legitimate to look at them in that room would depend on other factors such as whether one would have to open a purse or briefcase to see them, or whether they were in (as opposed to on) a desk. When she was then questioned on this matter, she testified that even if documents were not in a purse or briefcase, but were out on a desk, whether it would be legitimate to look at them would depend on factors such as whether they were "in plain view". (Given her concession that the actual payroll binder had to be opened to see the information it contained, her standards as to "in plain view" presumably entailed some further distinctions). This testimony seemed to the commission to have been totally improvised; none of these distinctions are even arguably supported by the provisions of the LAS Personnel Policies. Testimony such as this contributed to the commission's unwillingness to credit any of Cavey's assertions as to her subjective understanding of what her employer's confidentiality rule meant.
Cavey argues that the actions of LAS (and Walrath in particular) in leaving the materials in question accessible in the conference room is inconsistent with the claim that they thought the materials were "confidential", and shows that they did not so consider them. The commission does not agree. For one thing, as noted above, Cavey's actions and statements were inconsistent with her claim that she thought the materials were not confidential. More important, the commission believes that it is more likely that the actions of LAS and Walrath were a reflection of a certain level of trust in the integrity, good judgment and ethical sensitivity of its employes. Cavey proved only that such a level of trust was unjustified in her case.
Given the fact that Cavey understood full well that information about salaries contained in LAS payroll binders and other internal, non-public management documents, was intended by the Personnel Policies to be confidential, as well as the fact that it is clear that Walrath did not even know until September that Cavey had been disclosing to others the information she had obtained, the commission has concluded that it is not significant that Walrath did not formally warn, reprimand or counsel Cavey regarding her statements to him in March and again in June indicating that she had viewed confidential information. The statutory misconduct standard does not ipso facto incorporate some kind of hard-and-fast procedural requirement that there be a "warning". Whether and how an employe has been warned respecting certain conduct, is merely evidence bearing on the crucial question of what the employe's intent was in their actions which are alleged to be misconduct. What is significant is whether an employe has intentionally engaged in actions which they understood to be contrary to the interests of the employer. Here, the Personnel Policies provided sufficient notice to Cavey that disclosing such information about salaries to others would be a dischargeable offense: the rule was the warning. The commission has no doubt that Cavey knew that what she was doing was contrary to the Personnel Policies.
In conclusion, the commission found for the reasons discussed above that Cavey subjectively understood and believed that the meaning and effect of LAS' Personnel Policies concerning disclosure of confidential personnel information was that information about employe salaries which was contained in records created and maintained by LAS management for management-related purposes, was confidential, in the sense that that those records were only supposed to be accessed by certain identified managerial employes, and by the individual employe involved; and that if the information about employe salaries contained in those records had not been disclosed to others by the individual employe involved, or by LAS management with the individual employe's consent, or pursuant to court order or as required by law or by LAS' funding sources, she was prohibited from accessing that information or disclosing it.
Cavey's actions -- Cavey asserted that any salary information she discussed with other employes originally came to her by way of voluntary disclosure by other employes to her, or was in any event available in public records. The commission was not persuaded by these assertions.
Cavey argued that she already knew a great deal of salary information. However, the commission is persuaded by the record that she had, at best, only limited or approximate knowledge of certain employes' salaries -- but that after her acknowledged inspection of the conference room materials, she had fairly exact figures. At the very least, therefore, Cavey had her guesses or estimates as to some salaries confirmed by seeing the actual records (she actually conceded this in her testimony), and the fact that she may have had some approximate and second-hand knowledge before she looked in those records does not mean that she did not obtain information from them. In fact, the commission believes that she obtained information she had not known before about various employes' salaries.
Cavey also asserted that she did not discuss salary information that was not already know to the person(s) she was talking with, but this critical assertion was directly disputed. Specifically, Cavey's testimony was in stark contrast with that of both Janet Mueller and Karen Kotecki respecting what she did or did not tell them about other employes' salaried. For reasons which are discussed below, the commission concluded that Cavey was not credible. Therefore, it made the findings of fact set forth at pages 7-9 above concerning Cavey's disclosures.
Cavey also argued that her disclosure of the MAP contract materials could not be considered disclosure of confidential personnel information because the information it contained concerning the salaries of Byers and Mueller could also be extracted from public records, specifically, Exhibit 14, which consists of documents relating to the State of Wisconsin grant to ARC which provided funding for the LAS-ARC contracts. Cavey's argument is that "[t]he specific salaries of Mr. Byers and Ms. Mueller are public records on file with the Department of Health and Social Services". However, it is simply not true that "[t]he specific salaries" of Byers and Mueller are set out in the public record. While the public records give some idea of the salaries involved, there is clearly more information in the LAS-ARC contract materials, information that cannot be obtained from the DHSS-ARC grant figures.
In conclusion, the commission found for the reasons discussed above that by looking into LAS management documents intended to be confidential under LAS Personnel Policies, Cavey acquired non-public information about employe salaries that she had not previously known, and that she then disclosed that information to other persons who also had not been aware of it.
Credibility -- As has been noted above, the evidence in this case was in conflict on a number of points material to the important factual questions of what Cavey knew about other employe's salaries and benefits, how she learned what she knew, what she communicated to other persons concerning what she knew, and what her intent was in the actions and statements. Most significantly, the testimony of Cavey and Janet Mueller was in conflict in respect to who disclosed whose salary to who in their contact(s) that occurred around the time of the audit in the spring of 1995 (or before), and in what conversations they had concerning the MAP contract materials which Cavey provided to Mueller. The testimony of Cavey was also in conflict with that of Karen Kotecki concerning who told who what about various employes' salaries, and about a conversation the two had while driving home from a social engagement. In addition, a judgment was required as to whether or not to believe testimony of Cavey as to why she did certain things, such as looking in the payroll binder in the conference room. Because of this, an assessment had to be made as to the credibility of different witnesses. Based on factors including her evasiveness and unresponsiveness and the inherent implausibility of much of her testimony, the commission concluded that Cavey's testimony was not credible.
Cavey was extremely evasive and unresponsive as a witness. For example, she repeatedly qualified her responses on cross- examination by inserting the word "specific" into her answer (often using the same stock phrase) in such a way as avoid providing a complete answer, when she had not been asked if she had a "specific recollection", but simply whether something occurred. She also repeatedly qualified her responses on cross- examination with phrases such as "I [don't] believe that..." or "I [don't] think that..." when a simple "yes", "no", or "I don't know" was called for. And on a number of occasions at hearing, she responded to direct questions about things she would have had personal knowledge of had they occurred, by saying that it was "possible", or "may have", or "could have" -- the same kind of evasion she had engaged in when asked by Walrath on September 25, 1995 if she had gone into the conference room and copied information. Also, on a number of occasions Cavey was asked direct and material questions which she evaded by providing an answer to a different question.
The commission recognizes that no individual occurrence of a response such as those described above is necessarily an indication of unreliability on the part of a witness. Most witnesses, including those who are making every effort to testify fully and honestly, may occasionally lapse into such usages. What is significant here is the extent to which these usages permeated Cavey's testimony. Under adverse examination by counsel for LAS, these kinds of evasive and unresponsive qualifications were virtually constant.
The characteristics of evasiveness and unresponsiveness combined with implausibility in one important area, that being the matter of Cavey's statements as to why she went into the conference room and opened up and looked at the payroll records. This was, to the commission, one of the most troubling aspects of Cavey's case.
Cavey explained that she went into the conference room because she need to use the long table there to collate a multi- page document she had copied. However, the closed payroll binder was located not on the table where she was doing her collating, but on the windowsill, which (judging from the map of the room) would have been on the other side of the table from the door through which Cavey would have entered the room. Ostensibly there to collate documents at the table, Cavey went around the table, got the binder, opened it, and read for at least 3 to 5 minutes. The question is, why did she take the initiative to do this?
Under cross-examination, Cavey initially responded to a request to explain her motives in looking in the binder by saying that "it was there" and that "[she] had . . .over the years, heard complaints from minority staff". Later in cross- examination, apparently recognizing that the latter of those two explanations came too close to an acknowledgment that she wanted to obtain information to support her complaints about supposed salary inequities, she settled into a dogged insistence that the whole reason she looked in the payroll binder was "because it was there".
Cavey's "explanation" of why she looked at the payroll records echoes the answer given by Sir Edmund Hillary when he was asked why he had climbed Mt. Everest. Yet Hillary's famous answer, the meaning of which is clear where it refers to a difficult challenge, becomes a meaningless non-answer when a simple, everyday action (such as looking at some records) is involved. Cavey's testimony on this point was thoroughly and completely implausible and unbelievable. People generally read books because they want to obtain the information in them. Thus, the commission believes that Cavey's reasons were less like those of Sir Edmund, and more like those of the bear who went over the mountain: she wanted to "see what she could see".
These considerations led the commission to credit the testimony of Janet Mueller and Karen Kotecki over that of Cavey. To a significant extent, this case constituted a test of the credibility of Cavey as a witness compared to Janet Mueller and Karen Kotecki. For the reasons discussed above, the commission found Cavey's testimony to be less than credible as a general matter. Judged by the same standards it applied to Cavey's testimony (i.e., looking at such items as general evasiveness, inherent unbelievability, etc.), the commission found Mueller's testimony regarding these issues to be more credible than Cavey's. Mueller was much more direct and forthright in her answers than was Cavey, both in terms of acknowledging when she did not know or remember something and in stating her recollection without equivocation when she did. The commission also found Kotecki's testimony to be more credible than Cavey's. Like Mueller, Kotecki was more direct and forthright in her answers than was Cavey. The commission's decision to credit the testimony of Mueller and Kotecki over that of Cavey explains its findings at pages 7-9 above as to what information Cavey obtained where and who she disclosed it to.
The matter of the disputed conversation on the way home from the shower for Maggie Romera is particularly significant. The things which Kotecki asserted that Cavey said, and which Cavey denies having said, are things that ring true given the other evidence, including the evidence of Cavey's repeated, angry complaining to Walrath about salary decisions and her initial acknowledgment that the reason she looked at the payroll information had to do with her historic campaign on salary equity issues. The record in this case amply supports the finding, that Cavey firmly believed that LAS "was being misrun and grossly mismanaged and that there were serious errors being made by Mr. Walrath and his running of the organization and that these things needed to be exposed". Thus, it is entirely likely that Cavey would have said just what Kotecki described her as having said.
Consultation with the ALJ -- As required by decisions of the Wisconsin Supreme Court, see, Carley Ford, Lincoln, Mercury v. Bosquette, 72 Wis.2d 569, 575, 241 N.W.2d 596 (1976), the commission consulted with the administrative law judge before whom the hearing was held in order to obtain the benefit of any impressions as to credibility he obtained through observing the demeanor of the witnesses while they testified.
In this consultation, the administrative law judge described and explained his views as to the testimony he found most persuasive. His explanations related to aspects of the content of the testimony. However, the consultation process arises from the need to preserve demeanor evidence, Falke v. Industrial Comm., 17 Wis.2d 289, 295, 116 N.W.2d 125 (1962), such as the "manner of testifying, demeanor, hesitancies and inflections" of witnesses. Burton v. DILHR, 43 Wis.2d 218, 223, 168 N.W.2d 196 (1969), as distinct from matters relating to the content of testimony such as internal consistency and plausibility, which may also be a factor relied on by a trier of fact in evaluating credibility, see, e.g., Briggs & Stratton Corp. v. DILHR, 43 Wis.2d 398, 407, 168 N.W.2d 817 (1969); Flippin v. Turlock, 24 Wis.2d 49, 55, 127 N.W.2d 822 (1964). The administrative law judge did not describe any observations of the demeanor of witnesses while testifying as having been a factor in his assessment of the credibility of the witnesses.
With all due respect to the views of the administrative law judge as to the persuasiveness of the content of the witnesses' testimony, the commission -- which by virtue of the applicable procedural scheme now must act as a de novo factfinder in the case -- has arrived a different view. Because there was no indication by the administrative law judge of any demeanor issues that might suggest a different result than that which its analysis of the content of the evidence brought it to, the commission adheres to its view.
Other issues raised in the parties' briefs -- The commission wishes to assure the parties that it has carefully considered the arguments made in their briefs. However, because it considers that its findings and the discussion set forth above adequately address the material arguments made, it will for that reason not add to the length of this decision by specific response to those arguments. It adds only the following points in respect to the arguments made.
LAS argues that it was denied a fair opportunity to present rebuttal witnesses. However, when the extensive record of the lengthy hearing in this matter is considered as a whole, it is extremely difficult to conclude that either party suffered from any lack of opportunity to litigate this case. Administrative law judges have substantial discretion to limit testimony in order to avoid unnecessarily prolonging the hearing and unduly burdening the record, to determine the order of witnesses, to deny requests to examine witnesses adversely, and to exclude repetitious testimony, Wis. Admin. Code Ch. ILHR 140.10(1),(2),(3), 140.12, and the commission is satisfied that the Administrative Law Judge in this case exercised his discretion properly. He is in fact to be commended for the job he did in providing the parties with a full and fair opportunity for hearing notwithstanding the often combative attitudes of counsel.
Cavey has objected strenuously to the fact that LAS has also included a number of affidavits with its briefs, ostensibly to indicate the evidence it could have presented in rebuttal if it had been allowed to. The commission's review is by law required to be based on the evidence received at hearing, and it has not considered, or even read, these documents.
Attorney Jeffrey R. Myer
Attorney David F. Loeffler
Appealed to Circuit Court. Affirmed August 20, 1998. [Circuit Court decision summary]
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