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

GEORGIOS I BAMBARAKOS, Employee

WI DEPT OF CHILDREN AND FAMILIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09607792WK


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a state agency, for about seven years as a licensing certification specialist. His last day of work was July 10, 2009 (week 28).

The employer's policies provide for discipline, up to and including discharge, of any employee who improperly uses state property, including mail services. The employer also has ethical rules, designed to ensure public confidence, which prohibit an employee from soliciting or accepting anything of value from any person or enterprise that may be construed as influencing or having the appearance of influencing the employee's actions or judgment in official business matters. The employee was aware of these policies.

On April 29, 2009, the employee performed an inspection of a daycare facility which included an approximately 90-minute closed-door meeting with the facility's program director. The next day the employee and the program director engaged in an e-mail exchange in which the program director brought up the subject of their long meeting and expressed frustration with the fact that people had gossiped about them. The employee responded, "Anyway so if the rumors are there was I at least so fantastically satisfying?," to which the program director replied, "Well, it was the best behind closed doors meeting I've ever had. I hope it was worth your trip down to this area. Pam told me Ginny was upset over our meeting, and that we met for such a long time. . . I needed that meeting yesterday, and I hope we can do that again. . . And yes, you were absolutely satisfying. Couldn't have been better." The e-mail was signed, "Your secret meeting-er and co-naughty friend." The employee responded, "I am so glad it was good for you also. I am so into pleasing. . . Yes it was a good meeting and I have sent Virginia a glowing Complinace [sic] statement. The first your place has ever received. Ha take that!. . ." The employee ended by saying, "Oh yeah, let me know if you want that reference letter sent to ya."

The e-mails from the employee to the program director also made reference to playing "hookey" from work, and included various complaints about the employee's co-workers and work environment.

On the same day the e-mails were sent, the employee issued a certificate of compliance to the daycare facility noting no violations in any area.

On May 7, 2009, the executive director of the daycare center notified the employer that she had discharged her program director because she believed the program director was maintaining an inappropriate relationship with the employee. The executive director indicated that she was concerned the compliance certificate the center had received was undeserved based upon the amount of time the employee had spent there. She told the employer that she first saw the employee at about 11:00 a.m., after which he and the program director spent about 90 minutes behind closed doors, and that the employee was next seen at 12:45 p.m., at which point he told her everything was in good shape, that there were no violations, and that he would be mailing her a compliance statement. The director told the employer that the employee visited only a few classrooms for a few minutes, and that he had not checked the play areas or the washrooms.

On the same day, May 7, the employee sent the employer's licensing supervisor an e-mail in which he asked to be reassigned due to a conflict of interest. The employee stated that he could no longer effectively continue to be the licensing specialist for the daycare center because of a friendship relationship with an administrative figure there.

The employer conducted an investigation into the matter, in which it noted that, although the compliance statement issued by the employee stated that the washrooms, toilet facilities, hand washing, and other areas of the daycare facility had been inspected, there was no supporting documentation in the licensing file. The daycare center in question had not received a complete compliance statement in the past.

During the investigation the employer also reviewed the employee's e-mail account and discovered, in addition to the e-mails between the employee and the daycare program director, that for over a year the employee had been exchanging extremely sexually explicit e-mails with a female co-worker while at work and using the employer's e-mail service.

On July 10, 2009, the employer discharged the employee for a variety of rule and code of conduct violations, including, but not limited to, inappropriate use of the employer's mail system, neglect of job duties, and for failing to adhere to codes of ethics and boundaries by engaging in an inappropriate personal friendship with a female employee of a child care center for which the employee was the assigned licensor. The discharge notice also indicated that the employee had issued a compliance statement that was undeserved and for which there was no corroborating information in the facility file.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 administrative law judge found that misconduct was not established. He reasoned that the employee received no prior warning about the sexually explicit e-mails, and that the employer indicated he would not have been discharged for that reason alone. The administrative law judge also reasoned that the employer's rule regarding conflicts of interest refers only to accepting something of value that may be construed as influencing the employee's actions or judgment in official business matters, but that the employee received nothing of value from the program director in exchange for the compliance certificate and denied having conducted less than a thorough review of the facility before issuing the certificate.

The commission disagrees with this analysis and believes that misconduct was established. The numerous, sexually explicit e-mails exchanged between the employee and a co-worker were so grossly inappropriate as to require no specific warning, and the employer's rule prohibiting the misuse of state property provides for discharge based upon a first offense. While the employee's conduct vis--vis the daycare program director may not have fit squarely within the employer's rule, which is focused on soliciting or accepting something of value, his actions were nonetheless unprofessional and contrary to the public interest. Where even the executive director of the day care facility felt uncomfortable receiving a compliance certificate under the circumstances, it seems clear that the employee's actions undermined the purpose of the code of ethics. The employee agreed there was an "appearance of impropriety," and the fact that he ultimately requested reassignment due to a conflict of interest indicates he knew his conduct was inappropriate. The commission believes that the employee's questionable conduct in regard to the daycare facility, combined with his actions in exchanging numerous sexually explicit e-mails with a co-worker while on work time and using employer resources, demonstrated a wilful and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of him.

The commission, therefore, finds that in week 28 of 2009, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 29 through week 50 of 2009 in the total amount of $7,986, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 28 of 2009 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $7,986 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700) issued on July 20, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights. The decision also results in an overpayment of Federal Additional Unemployment compensation (FAC) benefits. The employee will receive or has already received a separate "Notice of Federal Additional Compensation Overpayment, Form UCB-25" regarding the amount of FAC benefits that must be repaid.

Dated and mailed March 31, 2010
bambage . urr : 164 : 9 MC 610.25

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he found both parties to be credible and had no demeanor impressions to impart.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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 William H. Ramsey


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uploaded 2010/04/30