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


DAVID G PAGAN, Employe

CITY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605217MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about ten and one-half months as a police officer for the employer, a municipality. His last day of work was March 25, 1998 (week 13), when he was discharged.

While stationed with the U.S. Marines in Hawaii on, or about, June 10, 1996, the employe dismantled and disposed of a motorcycle. He filed an insurance claim stating that the motorcycle was stolen. He reported the motorcycle was stolen to the U.S. Naval Investigative Services and to Hawaiian police. He received $3,400 in payment from the insurance company. After the employer began investigating the matter he made restitution to the insurance company. He was never prosecuted for the offense.

The employe completed a personal history questionnaire when he applied for work with the employer. One section asked the employe to:

List occasions in the last five (5) years where you were the victim of a reported crime (such as thefts, robberies, burglaries, etc.):

The employe answered:

7/95 my 1992 Honda CBR 600F2 was stolen from my residence. (735 Murray Dr. Honolulu HI 96818)

5-6/96 my 2nd Honda CBR 600 F2 was stolen from Bldg 1604 parking lot while on deployment to Alaska (HQ 30 Mar S-4 Bldg. 1604 Kaneohe, HI 96863). Both thefts were reported to HPD, NCIS.

The employe signed the questionnaire certifying:

. . . that there are no willful misrepresentations, omissions, or falsifications in the foregoing statement and answers to questions. I am fully aware that any such misrepresentations, omissions or falsifications will be grounds for immediate rejection or termination of employment.

The employe was discharged following an investigation. The reason for the employe's discharge was set forth in a letter to the Fire and Police Commission. In that letter the chief of police and assistant chief of police set forth the employe's actions, and noted that although he had not been charged with a crime because he made restitution his actions were felonious. The letter further stated:

"The aforementioned incident is severe enough to have disqualified former Probationary Police Officer David Pagan as a candidate for the Department, had it been uncovered prior to his appointment. Former Probationary Police Officer David Pagan showed extremely poor judgment, and his credibility and honesty must be seriously questioned. His poor judgment demonstrated conclusively that he is not suitable for a career in law enforcement.

The conduct of former Probationary Police Officer David Pagan, as referenced above, is contrary to the high standards required and expected of Department members. If the community we serve is to maintain, undiminished, its confidence in the Milwaukee Police Department, then these standards must be strictly adhered to by Department members. Former Probationary Police Officer David Pagan failed by considerable margin to meet this obligation, and so was dismissed."

The issue to be decided is whether the employe was discharged for misconduct connected with his employment.

While clearly the employe's actions in committing insurance fraud occurred before his employment, the commission cannot conclude that he was discharged for actions not connected with his employment. The employe clearly submitted a false statement to the employer. That statement was not only used to determine whether the employe would be hired, the employer noted that the employe would not have been hired if he had informed the employer of his true role in the insurance case. An employer in general, and this employer in particular, has a right to expect honest responses to inquiries reasonably related to a worker's employment. The employe's dishonest statement led to his hiring. The employe was aware that a misrepresentation, omission or falsification in completing the personal history questionnaire was grounds for dismissal. For these reasons, the commission concludes that the employe was discharged for misconduct connected with his work.

The commission therefore finds that in week 13 of 1998 the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $5800.00 for weeks 29 through 48 of 1998, for which he was not eligible and to which he 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 Statute § 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 employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts.

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 employe 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 13 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay $5800.00 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 December 4, 1998
paganda.urr : 132 : 1 MC 630.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission does not disagree with any credibility determination made by the administrative law judge but has reached a different legal conclusion when applying the law to the facts.

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.C. 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.


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