NANCY J MARTINSON, Employee

TOWN OF BUTLER CLARK COUNTY, 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.

On March 19, 2007, the commission ordered the taking of additional testimony in this matter and, pursuant to that order, a hearing was conducted on April 23, 2007. Following the hearing, the matter was returned to the commission.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at both appeal hearings. Based on its review, the commission makes the following:

The employee performed services as an elected treasurer for the employer, the Town of Butler in Clark County, WI. Her duties involved attending a monthly meetings and her annual salary was $2,500.

At the March 15, 2006 board meeting, the employee verbally notified the employer that she would have to terminate her employment due to her divorce and inability to find housing within the county, a requirement of her position. The employer requested that the employee provide formal written notice, which she did at the April 12, 2006 meeting, with her last day of work to be May 9, 2006 (week 19), when she turned over her treasurer duties to a replacement.

In March and April 2006, the employee was working over 30 hours a week for an accounting business. While she anticipated being laid off sometime after tax season ended, she had not been provided any information as to if or when the employment would end.

The employee testified that in the past, after being laid off with the accounting business, she was immediately recalled to full-time work with another employing unit. This year that recall was delayed. Thus, when the employee was notified of the ending of the accounting work at the end of April 2006, she asked for and was able to continue to work part-time for the accounting business in the beginning of May 2006.

The employee initiated a claim for partial unemployment benefits on May 2, 2006 (week 18).

The issue to be decided is whether the employee's quitting of the Town Treasurer position fell within an exception to allow for the immediate payment of unemployment insurance benefits.

Wis. Stat. § 108.04(7)(o) provides that the general quit disqualification,

does not apply to an employee who terminates his or her work in one of 2 or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week.

The ALJ found that Wis. Stat. § 108.04(7)(o) of the statutes did not apply because the employee was not employed in a position consisting of more than 30 hours per week at the time she resigned the treasurer position. Yet, in Ludwig v. Moraine Park Vocational Adult Education District, UI Dec. Hearing No. 97402609AP (LIRC January 23, 1998), the commission explained that the Wis. Stat. § 108.04(7)(o) exception looks at the employee's knowledge at the time of resignation, not the effective date of termination.

In this case, the employee had not received any notice of termination from her full-time accounting employer at the time she provided her notice of quitting to the county.

The commission therefore finds that the employee voluntarily terminated her employment but her quitting fell within the meaning of Wis. Stat. § 108.04(7)(o).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance benefits beginning in week 19 of 2006, if otherwise qualified. Benefits were not paid to the employee in error and she is not required to repay the sum of $1,449 to the Unemployment Reserve Fund.

Dated and mailed April 27, 2007
martina . urr : 150 : 1    VL 1020

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission reverses the ALJ's decision based upon evidence elicited at the additional hearing in light of Ludwig v. Moraine Park Vocational Adult Education District, UI Dec. Hearing No. 97402609AP (LIRC January 23, 1998).

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