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


ARTHUR R EDWARDS, Employe

COUNTY OF CLARK, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96003107MD


On June 14, 1996, the Department of Industry, Labor and Human Relations (now the Department of Workforce Development) issued an initial determination that the employe had been discharged for misconduct connected with his employment. The employe timely filed a request for hearing, and hearing was held on September 18, 1996, in Madison, Wisconsin, before a department administrative law judge. On September 25, 1996, the administrative law judge issued an appeal tribunal decision affirming the initial determination of misconduct. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based on the applicable law, and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during 19 years as a sheriff's deputy for the employer, a county government unit. His last day of work was on or about May 8, 1996, when he was notified that his employment was being suspended pending discharge proceedings. On May 29, 1996 (week 22), a hearing was held before a county board committee, following which that committee determined that the employe would be discharged from his employment with the employer. The issue in this case is whether the employe's actions, which led to the discharge by the employer, constitute misconduct for unemployment compensation purposes. The commission concludes that they do not, and so reverses the appeal tribunal decision.

On November 1, 1993, the employe had responded to his adult daughter's request that he visit her because of some problem with her boyfriend. Uncertain as to the type of problem he might face, he requested that a municipal police officer meet him near his daughter's apartment. After talking to his daughter, he advised the municipal officer that no incident had occurred that required further police investigation. The employe nonetheless introduced the municipal police officer to his daughter, as a friend she would be able to talk to if she needed someone to talk to. The municipal officer reported the matter to his chief who reported it to the employer's sheriff. An investigation resulted in the filing of a criminal complaint, on November 30, 1994, against the employe for obstructing an officer in the performance of his duties, a misdemeanor.

Pursuant to the employer's sheriff's department regulations, engaging in conduct that is directly and palpably prejudicial to good order, discipline, morale, and efficiency, or that tends to destroy public respect and confidence, is a disciplinary offense. Included in the list of actions that are subject to discipline is conduct that is in violation of the law.

After a jury trial, on April 25, 1996, the employe was found guilty of the charge. The employer's personnel hearing followed, resulting in the employe's discharge for violation of department regulations.

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's conviction, alone, is not necessarily sufficient to meet this standard. "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 or liabilities of a party to an action or proceeding under this chapter is binding in an action or proceeding under this chapter." Sec. 108.101 (4), Stats. In the commission's view, the evidence in the record as to the employe's conduct underlying the conviction, is insufficient to establish misconduct by the employe. The employe had asserted to the municipal police officer that the bruise the employe's daughter had, had been accidental. That is what the employe's daughter told the employe, so the employe's relaying of that statement to the municipal police officer was not culpable behavior on the employe's part. In the context of the circumstances surrounding which the employe's conduct occurred, the response to a call involving his own daughter, the commission cannot conclude that the employe intentionally misled the municipal police officer. Had the employe intended to so mislead the municipal police officer, he would not have introduced him to his daughter as someone the daughter would be able to contact if she needed someone to talk to.

The commission therefore finds that, in week 22 of 1996, the employe was discharged but not for misconduct connected with his employment, within the meaning of sec. 108.04 (5), Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits if otherwise qualified.

Dated and mailed: February 25, 1997
edwarar.urr : 105 : 7   MC 617 MC 692.02 PC 714.11

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is necessary when the commission is considering reversing an appeal tribunal decision, and credibility was a factor in the administrative law judge's factfinding. The administrative law judge noted, however, that credibility was not a factor in his reasoning; indeed, the commission has accepted the factual findings of the administrative law judge. The commission simply has determined that, as a matter of law, sec. 108.101 (4), Stats. does not compel a finding of misconduct upon a criminal conviction.

 

PAMELA I. ANDERSON, CHAIRMAN (DISSENTING):

I am unable to agree with the result reached by the majority herein and I dissent. The employe testified that he had concerns prior to November 1, 1993 about this boyfriend's abusing his daughter. The employe testified that there was a fresh bruise under his daughter's eye. He also testified that my daughter does not always tell me the truth.

When he got the dispatch to see his daughter, it came under a sheriff's department code of a domestic abuse call. The employe made provisions for Officer Flewellen of Loyal to join him. The employe testified that "I asked him to stand by because I did not know exactly what I was dealing with. I don't normally call for a backup when I take a personal call."

The employe also testified that "I might go further to try to verify someone's statement if they appeared to have been beaten up but said they had fallen down the stairs." The employe did not do any investigation in this case. I find it incredible that he believed his daughter's story when he already suspected that she had been abused by her boyfriend prior to answering the dispatch. His conduct of asking for backup indicates that he believed that there might be trouble especially if the boyfriend was at the apartment. The jury did not believe the employe and they used the beyond a reasonable doubt standard when they convicted him. I am convinced he lied to Officer Flewellen in an attempt to follow his daughter's wishes. Under these circumstances, that is misconduct connected with his employment.

While I agree that the commission is not bound by the conviction decision, I believe that the commission should make full use of the decision especially when the employe's testimony at the hearing merely reinforces the conviction. Therefore, I would affirm the administrative law judge's decision.

Pamela I. Anderson, Chairman

cc: ATTORNEY KATHRYN J PRENN

JAMES J NEWELL
SECRETARY-TREASURER, GENERAL TEAMSTERS UNION


Appealed to Circuit Court, which reversed January 7, 1998. On appeal of this decision, the Court of Appeals reversed the Circuit Court and reinstated the commission's decision, in an unpublished decision of November 19, 1998. Court decision summary.

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