RICCI D PREIN, Employee

VILLAGE OF ROBERTS
SAINT CROIX 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.

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 about six and one-half years as police chief for the employer, a village unit of government. His last day of work was on or about July 24, 2008 (week 30), when his employment was suspended. The employee was discharged August 1, 2008 (week 31).

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with his employment.

The employer asserted four reasons for the employee's discharge and presented a copy of the Police Review Board Decision as proof of actions by the employee demonstrating misconduct connected with that employment.

The employer presented no firsthand evidence to support its assertion that the employee was discharged for misconduct. Rather, the employer chose to rely upon a Police Review Board Decision. Wis. Stat. § 108.101(4) provides that no finding of fact or law, determination, decision or judgment in any action or administrative or judicial proceeding in law or equity not arising under this chapter made with respect to the rights of the parties is binding in an action or proceeding under this chapter. Thus, the commission is not required to find, based solely on the review board decision, that the employee committed the offenses for which he was discharged.

The ALJ did not admit the Board's report into the record because it was hearsay. It is the commission's position that hearsay is admissible in an unemployment hearing and agrees that the report should have been admitted. However, the commission cannot make findings based solely on hearsay. The employer presented nothing in the way of evidence that was not hearsay. The commission has reviewed the Police Review Board Decision for the purpose of deciding whether to remand to allow the employer to include this report into the record. However, the commission notes that the Board's findings that the employee allegedly made phone calls to an off duty subordinate for the purpose of criticizing her work performance was based in large part upon the Board's assessment that the subordinate was a credible witness. However, the employer did not present the testimony of this subordinate so the commission did not have the opportunity to makes its own credibility determination. The commission further notes that the Board had determined that certain allegations by the Village were not supported by the record, as the employer failed to present evidence on them, for example, the employer failed to present evidence that the employee yelled at a citizen who had come to the police department to ask questions. The commission notes that the Board found that the charges that the employee behaved inappropriately at Good Neighbor Days were sustained based on credible testimony by a subordinate, who again, did not testify at the employee's unemployment insurance hearing.

With respect to the employee's alleged computer misuse, the expert witness opined that because there were searches for things such as "nudist beaches" that the sites which contained images of women in scanty swimwear were intentionally accessed. The Board also considered when reaching its decision that the employee was on duty when "a substantial number of the inappropriate personal use occurred." The commission uses a different standard for such circumstantial evidence. The expert was unable to state with certainty that the sites were intentionally accessed and it was not demonstrated that the employee was the only individual who could have accessed the sites. While there was some evidence that the employee's wife was looking at bikinis, it did not appear from the Board report that she was arguing that she was intentionally searching for these types of images. It appears that her opinion was that some of the material may have been the result of pop ups because she had been searching for bikinis on the computer. Given the fact that the Board's decision contains only hearsay, and its inclusion in the record would not change the outcome in this case, the commission will not remand this matter for additional hearing to include the Board's decision into the record.

The employer has failed to establish that the employee was discharged for misconduct connected with his work.

The commission therefore finds that in week 31 of 2008, the employee was discharged but that his discharge was not for misconduct connected with the employee's work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2008, if otherwise qualified.

Dated and mailed January 30, 2009
preinri . urr : 145 : 1 MC 686

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer argues that the ALJ should have taken judicial notice of the facts adjudicated by the Police Review Board. However, the findings of the Board are not such a generally known fact in that its "accuracy cannot reasonably be questioned." As noted in the commission's decision, the Board's decision was based in part on its credibility assessment. The employer is not asking the commission to take judicial notice of for example, the law relating to when a tavern can serve alcohol, but instead, is requesting that the commission conclude, based on a decision made in a different forum on a different issue, that the employee's discharge was for misconduct connected with his work. However, as noted in the commission's decision, the employer has failed to present sufficient firsthand testimony to support its assertion that the employee's discharge was for misconduct connected with his work, and the commission is not required to accept as true facts found by other boards or other decision-making bodies.

cc: Attorney Roger W. Palek
Attorney Christine A. Rasmussen

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uploaded 2009/02/03