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


WAYNE E DOBBRATZ, Employe

CITY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600576MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The administrative law judge's "NOTE," contained on page three of the appeal tribunal decision, is deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is ineligible for benefits for three weeks beginning in week 49 of 1998. Thereafter, the employe is eligible for benefits, if otherwise qualified. The employe is required to repay the sum of $290 to the Unemployment Reserve Fund.

Dated and mailed July 19, 1999
dobbrwa.umd : 164 : 5 PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employe's attorney argues that Det. Riley's testimony was not admissible under Wis. Stat. § 908.045(4), because the employe was not "unavailable". The employe's attorney contends that the employe was not obligated to appear at the hearing and that, in order for the testimony in question to come in as a "statement against interest", the employer needed to attempt to procure the employe's attendance by process or other reasonable means, which it did not do. The commission agrees, and concludes that the testimony in question was not properly admissible as a "statement against interest." However, the commission finds that Det. Riley's testimony regarding the employe's statements before the Board of Police and Fire Commissioners was properly admissible as an "admission by a party opponent," within the meaning of Wis. Stat. § 908.01(4)(b), since the statements in question were made by the employe, a party, in his individual capacity, and were offered against him. An "admission by a party opponent" is not considered hearsay and, therefore, it is not necessary that the declarant be unavailable. Det. Riley testified that he heard the employe testify under oath that, subsequent to a traffic stop, he was intrigued with Mr. Kendrick's cell phone and was playing with it. Det. Riley stated that the employe listened to a tape recording of the offensive and threatening voicemail messages that were left on Mr. Kendrick's cell phone and admitted that he could have said those things and that the voice on the tape was his. The commission considers this testimony sufficient to establish that the employe's disciplinary suspension was for good cause connected with his work. Accordingly, the appeal tribunal decision, as modified, is affirmed.

cc:

Attorney Donald L Schriefer
City Of Milwaukee
Office Of City Attorney

Attorney Jonathan Cermele
Eggert Law Office SC


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