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


ANGELA F BRYANT, Employe

INTERVENTIONS LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604580RC


On July 9, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with her employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on August 5, 1998 in Racine, Wisconsin before a department administrative law judge. On August 12, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately a year and nine months for the employer, an alcohol and drug rehabilitation center. The employer discharged her on June 19, 1998 (week 25), for having written a personal letter on employer letterhead to a Kenosha County Circuit Court judge. The commission concludes that the employe's actions were misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

A friend of the employe was a defendant in an action in the Kenosha County Circuit Court. He asked the employe to write a character reference on his behalf and the employe did so, using the employer's letterhead. She stated that she had known the individual for a length of time, that with the right kind of counseling he would learn to control his temper. She indicated that she had talked to him on many occasions about his personal problems stemming from drinking and had given him advice on changing his ways. She indicated she was willing to set him up with outside meetings and groups he could attend once sentenced. She stated her belief that his actions in the current case were due to his being under the influence, and that he would not have committed them had he been sober. She concluded by stating that, as a counselor at the employer, she would be willing to help him in any way she can. She listed her credentials as including a Bachelor of Science degree, and stated herself to be a staff assistant/counselor for the employer.

The employer's rules of conduct include that staff shall not perform services outside the boundaries of their training and expertise. Staff also must accurately represent their competence, education, training, and experience. In addition, the Code of Conduct for the Wisconsin Certification Board reiterates that a counselor shall not perform services outside of the counselor's area of training, expertise, competence, or scope of practice (rule 2.3). The code also prohibits a counselor from using a title designation, credential or license, firm name, letterhead, publication, term, title, or document which states or implies an ability, relationship, or qualification that does not exist (rule 5.3).

The employe did not have a Bachelor's Degree. Her job title was not staff assistant/counselor. While the employe met with clients, all of her documentation and treatment plans were "signed off" and otherwise supervised by a senior counselor. While the employe was in training to be a counselor yet her job title was direct service technician. The letter was so inappropriate that the employer met with the judge to whom it was sent, shortly after the employer discharged the employe. The judge indicated that he hoped he would never see another document like the one the employe sent. The employer testified that it had taken it years to develop a working relationship with the Kenosha County judicial system, and that the employe's letter had seriously damaged that relationship.

In Boynton Cab Co. 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 insurance in the United States, the Supreme Court of Wisconsin 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 employee, 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 employee'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 employe's indication that she had a Bachelor's of Science Degree was incorrect. In addition, the tenor of the letter clearly implied that the individual on whose behalf the letter was written had some kind of counseling relationship with the employe. The employe had no such relationship with the individual in connection with her work for the employer. Nonetheless, she intentionally put the letter on the employer's letterhead. Based upon all of the above, the commission concludes that the letter violated both the employer's rules of conduct and the Code of Conduct for the Wisconsin Certification Board. The commission therefore concludes that, in week 25 of 1998, the employe was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The commission also finds that the employe was paid benefits in the amount of $202.00 per week for each of weeks 26 through 51 of 1998, totaling $5,252.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission notes that $3,147.00 of the $5,252.00 overpayment has been dealt with in another decision, dated March 5, 1999. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 25 of 1998, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $5,252.00 to the Unemployment Reserve Fund ($3,147.00 of which is dealt with in the other decision mentioned above). The UCB-700 monetary computation issued on June 22, 1998 is set aside.

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 April 28, 1999
bryanan.urr : 105 : 1  MC 630.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge noted the employe's otherwise clean record and thought the employe's use of the employer's letterhead was simply a matter of convenience. Based upon the tenor of the letter and the fact that the employe in fact did not have a Bachelor of Science Degree (as she claimed at the bottom of the letter), however, the commission must disagree. The entire course of the employe's conduct was in direct violation both of the employer's written rules and of the professional code cited in the body of the decision above. How wrong the employe's conduct was, is illustrated by the reaction of the judge to whom the letter was sent. For these reasons, the commission must respectfully disagree with the administrative law judge's credibility assessment in this case.

cc: INTERVENTIONS LTD


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