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

THOMAS J BRICK, Employee

CITY OF CHIPPEWA FALLS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200306EC


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 15 years as a firefighter and emergency medical technician for the employer, a municipality. The last day that he performed work was May 28, 2005 (week 22).

The first issue to be decided in this case is whether the employee voluntarily terminated his employment or was discharged by the employer. A secondary issue involves the employee's eligibility for benefits in view of the nature of his separation from work.

The employee was placed on administrative leave with pay following his last day of work. A hearing was scheduled before the Police and Fire Commission (PFC) for November 16 and 17, 2005 (week 47). The employee through his attorney was involved in negotiations with the employer regarding his employment. The hearing was postponed. As of on or about December 22, 2005 (week 52), a final agreement was reached whereby the employee submitted his resignation and it was accepted. With the resignation the employee was able to retain retirement benefits and other benefits.

The commission stated in Tice v. City of West Allis, UI Dec. Hearing No. 03608220MW (LIRC April 15, 2004):

A review of the record reflects that employee had the option to continue his employment at least through the hearing stage with the Fire and Police Commission.

Generally the commission and the courts have concluded that when an opportunity for hearing is given, resigning one's employment in lieu of what the employee considers impending discharge does not constitute a discharge but a voluntary termination of one's employment without good cause attributable to the employer. Hopland v. School District of Oostburg, UI Dec. Hearing No. 98400892SH (LIRC May 27, 1999).

Further, the Wisconsin Supreme Court in Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 534, 535, (1979), held that in order for a worker to successfully bypass the hearing stage, it must be shown that the hearing would have been pro forma and that the employer was acting in bad faith. There is also a presumption of good faith by the official decision-makers. Id.

While the petitioner did not believe that he would ultimately succeed in maintaining his employment following a hearing before the Fire and Police Commission, the record in this matter does not demonstrate that his hearing process was merely pro forma and did not establish that the Fire and Police Commission was acting in bad faith. Consequently, the commission affirms the appeal tribunal decision.

The commission finds that the employee voluntarily terminated his employment. The employer's city administrator testified that the fire chief and city attorney told him the employee was going to be terminated. The city administrator was also relying on exhibit 18 which is the complaint against the employee submitted by the fire chief to the PFC. There was no testimony that a recommendation to the PFC automatically results in a decision to discharge a worker. The filing of the complaint by the fire chief recommending that the employee's employment be terminated did not mean that the PFC was actually going to terminate the employee. The record does not reflect that the city administrator had firsthand knowledge that the employee was going to be discharged. There was no indication in the record as to how the chief or city attorney was aware that the employee was going to be discharged. The employee did not establish that the hearing process was merely pro forma.

The employee asserts that he had no choice but to quit in order to preserve his retirement and accrued time. He also stated his attorney was not going to allow him to present his full case in front of the media and the PFC when he had criminal charges pending. The employee indicated there was no way he could continue to work as an EMT under the accusations made against him. However, the employee had a choice to proceed with the hearing. The tactical decision on the part of the employee's attorney not to present all the evidence in front of the PFC did not take the decision on whether to continue working for the employer out of the employee's control. The commission cannot conclude that the employer's actions in recommending dismissal, given the information uncovered during the employer's investigation, in itself, provided the employee with good cause attributable to the employee for quitting. The employee could have continued on leave while awaiting the outcome of the hearing.

The commission therefore finds that in week 22 of 2005, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $5,797.00 for weeks 1 through 3 and 9 through 22 of 2006, 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2005, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $5,797.00 to the Unemployment Reserve Fund.

Dated and mailed June 15, 2006
brickth . urr : 132 : 8 : VL 1007.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission has not reversed the ALJ's decision based on the credibility 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:
Attorney Richard Wachowski
Attorney Robert A. Ferg


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uploaded 2006/06/20