WILLIAM J SMITH, Employee

DIVISION OF WORKFORCE  SOLUTIONS, 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 for approximately two years, most recently as an employment and training specialist, for the employer, an agency of the state of Wisconsin. His last day of work was May 17, 2006 (week 20), when he was discharged from his employment.

The issue to be decided is whether or not the employee's actions, which led to the discharge by the employer, constituted misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The employee's job involved doing job searches, and helping job seekers find employment and become prepared for employment. Employment and training specialists work with employers to help them find the right workers. The employer's work is employment search related. When it is apparent to a worker that a customer had other needs, for example, a psychological need or drug or alcohol problem, the staff is to refer that customer to professionals in those fields.

The employee was given two weeks of training at the start of his employment. The employee received the work rules. It is a violation of employer rules to neglect one's job duties or engage in unauthorized personal activities during work. Part of that training included asking clients who had been convicted of sex offenses what the terms of their probation or parole were, because in some cases they could be prohibited from working with children.

In 1989, when the employee was an Episcopal priest, he was convicted of two counts of second degree sexual assault of a 15-year-old boy. In 1999, he was included in the State's Sex Offender Registry, and since that time has been required to maintain contact with the state of Wisconsin Department of Corrections (DOC). These contacts include annual registration, and in the event his residence changes between registrations, he is required to promptly contact the DOC to inform it of his new address.

In November of 2005, the employee moved to Fort Atkinson, Wisconsin but did not inform the DOC of this move. He had notified the DOC of his employment with the employer. In early March of 2006, the employee's supervisor was informed by Jefferson County Human Services that the employee had been arrested over the weekend. Because of concerns about the incident, the employer decided to investigate the employee's behavior at the workplace.

The employer then began an investigation of the employee's computer usage. A Human Resources Specialist for the Department of Workforce Development investigated the employee's e-mail and Internet activity from April 4, 2006 until April 21, 2006. He noted that there was a concern with the amount of personal time the employee spent in sending and receiving e-mails. There was a considerable amount of activity that related to a ministry in which the employee was involved. There were e-mails related to the employee's church activities, and when sending e-mails on the State account he used a variety of names. These included William J. Smith, and titles like Father Abbott or Father Joseph. Much of the e-mail correspondence was not related to his job duties. Sometimes it was difficult for the investigator to determine whether the e-mails were work related, because they would discuss finding jobs for people, but they would end with religious statements. For example, the employee would indicate in the e-mail that "You are in our prayers," or would be signed "Father Joseph." The employee saved a considerable number of personal files on his computer, and there were numerous photographs that were stored and were later removed. The employee had four different alias e-mail accounts. He also had more than 300 photographs on his H drive, and many of those photographs were of young men.

The investigator examined logs for 74 days, and on 19 of those days the employee had an hour or greater internet use, particularly around lunch time. The employee also spent a considerable amount of time searching FBI websites for fugitives. He maintained a ministry website from his DWD account. He was also doing some maintenance for another website that was religious in nature. On March 7, 2006, the employee spent two hours and 34 minutes during work time, searching the FBI website. The employee searched for fugitives on the FBI website on more than one occasion.

The employer's policy does allow for some personal use of the employer's computer, and this personal use would normally be confined to breaks or lunch times and did not allow certain access such as to pornographic websites. Personal use of more than 30 minutes either before or after work requires the approval of a supervisor.

After the investigation of his computer use and files, the employee was discharged because of his excessive use of the internet and excessive personal e-mails. The employer also considered the fact that the employee was not properly completing his work. This included not logging customer information accurately, working with customers who were not within the scope of his job description, spending personal time with clients, and not keeping up with the files of clients with whom he was supposed to be working. The employer considered a lesser form of discipline, but decided to discharge the employee because of the severity and the cumulative nature of his infractions. The employer discussed the situation with the employee, who for the most part did not dispute the allegations of excessive computer use.

The employer also determined that the employee had inappropriate relationships with young men, two of whom were his clients. The employee had these individuals to dinner at his home and had phone conversations with them on his own time. While the employer's rules did not explicitly prohibit having personal relationships with clients, the employer reasonably concluded that this violated the general prohibition against intimidating or harassing clients. The employee conceded that he spent a good deal of work time interacting with a young man who was not one of the employer's clients. The employer was understandably concerned with the amount of work time the employee spent on the cases of a few young men, when he had a case load of 50 clients, and there were a number of clients that he had not had contact with for over three months. The employee asserted that these clients did not respond to his attempts to contact them, but his supervisor credibly testified that when clients failed to maintain two-way communication, case workers were supposed to document their attempts at contact and close out the case, so that their time could be spent helping others.

Additionally, the employee's supervisor was concerned because the employee had obtained releases of information to obtain psychological and psychiatric reports, and this was not part of the employee's job duties. The employee's work duties involved finding jobs for job seekers. He was not a social worker or a psychologist. The employee's supervisor explained that the employee was not to review or to assess what was in a psychological or psychiatric report on clients; nevertheless, the employee obtained confidential medical information on individuals who were not part of his case load.

During the employee's investigatory interview he was asked why he had books relating to sexual offenses in his work area, and he indicated that he had 10-15 sex offenders as customers. The employer checked the employee's case load and found only one customer who had a sex offense arrest, so the employee's supervisor reasonably concluded that the employee had lied with respect to the reason he kept the books in his work area.

The employee denied that he had been told that obtaining confidential medical information about clients was inappropriate. He indicated that in one case he informed a client that she seemed to be depressed, and asked the client about the medication she was taking. He further indicated that he has two masters degrees, that he knows what depression is, and that he felt that he was able to make that determination.

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' within the meaning of the statute."

The commission concludes that the employee was discharged for misconduct connected with his employment. He habitually and intentionally neglected his work duties. He failed to perform his work because he was spending an excessive amount of time using the employer's internet and e-mail system for his personal projects. He combined his work e-mails with promises to pray for the individual, or signed his e-mails with a religious designation, and it is inferred that he knew this was inappropriate for an individual representing a state agency. The employee spent time gathering confidential medical information about persons who were or were not his clients, despite the fact that this was not necessary or appropriate for the performance of his job. The employee knew that his job duties did not include the gathering of confidential medical information and making medical judgments. The mere fact that he had clients sign paperwork giving him permission to obtain their confidential records ought to have indicated to the employee the objectionable nature of such activity. The employee also spent an inordinate amount of work time with several individuals, while failing to contact other clients for months. He had personal relationships with certain clients, which any reasonable individual in the employee's position would know constituted inappropriate behavior against the employer's interests. This was particularly true for the individuals who had mental health issues. The employee had a great deal of autonomy in his position, and it is inferred that he knew he needed to use his work time to complete his work. Nevertheless, he routinely engaged in excessive personal activities during work hours. Taken as a whole, the employee's disregard of the employer's interests was so egregious, and had occurred over such a lengthy period, that no warning prior to his discharge was necessary. The employee's job autonomy resulted in his behavior being hidden until circumstances prompted the investigation performed just prior to his discharge. In the commission's view, the cumulative effect of the employee's activities, as herein described, evinced an intentional and substantial disregard for the employer's interest

The commission therefore finds that in week 20 of 2006, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for week 22 of 2006, and weeks 28 through 52 of 2006 and week 1 of 2007, amounting to a total of $8,866.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 department error. See Wis. Stat. § 108.22 (8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2006 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $8,866.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on May 21, 2006, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed February 23, 2007
smithwi . urr : 145 :  MC 657 MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the administrative law judge who held the hearing. The ALJ indicated that he believed that all of the witnesses were credible. The commission, for the reasons stated in its decision, did not find credible the employee's testimony that he was not aware that he was abusing the employer's internet and e-mail use policy. The employee admitted many of the allegations, and the commission did not find credible his assertion that he did not know it was inappropriate to mix religion with his work e-mails. In addition, it is inferred that the employee was aware that he could not sign his work e-mails with various aliases. It was entirely inappropriate for the employee to have gathered personal medical information concerning the employer's clients, and the commission did not find credible his assertions that he believed he was authorized or qualified to diagnose a client's medical condition or make recommendations concerning medication. Further, given the employee's status as a registered sex offender, it is inferred that he knew the employer would be legitimately concerned that he was cultivating personal relationships with young male clients, particularly outside of work, and particularly with one who had mental health issues.

With respect to the issue raised by the employee's attorney, that the employer failed to follow the proper procedure by filing its petition with the commission, the commission's letter of December 8, 2006, explains that the purpose of the rule is to ensure that the petition is filed in a timely manner. The petition was received by the commission prior to the expiration of the appeal deadline, and therefore was timely filed.

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:
Attorney Timothy M. Scheffler
Attorney Howard Bernstein
Workforce Development Center of Jefferson County, Jefferson, WI

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