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

ANTON M FUS, Employee

VILLAGE OF BROWN DEER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06601935MW


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 for about seven years as a police officer for the employer, a municipality. His last day of work was September 29, 2005 (week 40).

The employer municipality had a rule prohibiting personal relationships between a supervisor and a subordinate. Any supervisor who had a personal relationship with a subordinate would be subject to discharge. The rule was enacted after the employee joined the police department. The rule's purpose was to limit liability to the municipality by shielding it from sexual harassment suits. The employee was aware of the rule, its purpose and the consequences for violating it.

Sometime in the summer of 2005, the employee began having a personal relationship with a subordinate police officer. When the employer learned of it in September of 2005, they suspended him pending a formal investigation. The employee was cooperative and fully admitted his relationship with the subordinate to his supervisors. Before the employer had completed its investigation or decided on a course of action, the employee tendered a resignation letter. His resignation took effect on December 31, 2005 (week 53).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee testified that he believed that his discharge was imminent and resigned in order to improve the likelihood of finding other work as a police officer. However, he was not in immediate danger of discharge and his resignation was not in lieu of being fired. He acted prematurely when he resigned before the investigation was completed and before he was given any clear indication that the employer intended to discharge him.

At the time the employee resigned, no decision had been made to fire him. The employee made a calculated decision that a prompt resignation before the investigation was completed would better safeguard his career than permitting himself to be fired. While the employee made a valid personal decision to quit his employment, his reasons do not fall within any exception which would permit the immediate payment of benefits.

The commission therefore finds that in week 53 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 $3,751.00 for weeks 8 through 18 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. Wisconsin 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 53 of 2005, and until four weeks have elapsed 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 $3751.00 to the Unemployment Reserve Fund.

Dated and mailed August 16, 2006
fusant . urr : 178 : 4 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 his 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 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: Daniel LaRocque


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