Wis.LIRC UC Decision: Konrath - August 20, 1999 - MC 686 - Violation of company rule - deputies not to have personal associations with felons/prisoners

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

VICTORIA A KONRATH, Employe

COUNTY OF WASHINGTON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606864WB

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 10 weeks as a deputy sheriff for the employer, the Washington County Sheriff's Department. The employe's last day of work was September 17, 1998 (week 38) when she was discharged.

At the time of discharge, the employe informed the employer that she was being discharged because it was not working out (poor performance) and because the employe had been untruthful about some activities. Specifically, the employer alleged that the employe had continued a letter writing relationship with an inmate incarcerated at the Waukesha County Jail, a facility that had previously employed the employe as a corrections officer.

The employer contends that the employe's letter writing relationship violated two of its written work rules found at Exhibit D. They are as follows:

"1. Employees of the Sheriff's Department shall not associate on a personal basis with convicted felons or persons known to be involved in illegal activity without prior approval from the Sheriff.

"2. Employees are required to be truthful at all times. Lying or knowingly giving false information will be reason for disciplinary action or dismissal."

The employe admits that she had maintained a letter writing relationship with the inmate while employed with her previous employer in hopes of discovering information related to other criminal activities for which the inmate had not been convicted. (1 ) Sometime after the employe was hired as a deputy sheriff for the employer, the inmate wrote the employe again. The employe admits to writing 7 to 10 letters over a one and one-half month period while employed as a deputy sheriff for the employer, thereby establishing a connection between the employe's alleged wrongdoing and her employment. However, only one undated letter sent by the employe was introduced as evidence by the employer. (See synopsis, page 7).

At the hearing the employer alleges that the employe's letter writing relationship violated its written work rules (cited above) prohibiting employes to be associated on a personal basis with convicted felons or persons known to be involved in illegal activities without prior approval from the sheriff. In her defense, the employe admits maintaining the letter writing relationship only with the intent of obtaining information to turn over to the sheriff's department regarding the inmate's criminal activities for which he had not been convicted.

In addressing the employe's defense in this regard, the ALJ found that there was no evidence to contradict or rebut the employe's assertion that her only intention in maintaining the relationship was to obtain information from the inmate. The commission notes, however, that it would have been difficult for the employer to rebut the employe's assertion since it was unaware of the employe's intention to incriminate the inmate until she explained her conduct in violation of the employer's rule. (2 ) Even if the employe in fact was conducting a private investigation of the inmate in writing the letters, moreover, she still maintained a personal relationship with the inmate without the sheriff's permission. In this case, the employer's failure to rebut the employe's explanation cannot be held against the employer's duty to establish that its discharge of the employe was for misconduct connected with her employment within the meaning of Wis. Stat. � 108.04(5).

The larger issue is whether the employe violated the cited employer rule prohibiting the type of association the employe admitted she was engaged in. In her defense, the employe asserts she was unaware of this specific written rule cited by the employer. The ALJ agreed, finding no evidence was available at the hearing to suggest that the employe knew or should have known of the rule.

The employer however testified that Exhibit D, the sheriff's rule in question, could be located in its standard operating procedures contained in its blue manual distributed during deputy training. (See synopsis at page 5). The employe admitted receiving the blue training manual. (See synopsis at page 11). The employe even cited another rule contained in the blue manual during her testimony, corroborating proof of her receipt of the blue manual. The commission therefore concludes that the employe was either aware of or should have been aware of the rule prohibiting the letter writing association.

The next inquiry then is whether the employe's letter writing relationship violated the employer's rule and constituted misconduct within the meaning of the law. After reviewing the evidence, the commission is satisfied that it establishes that the employe intentionally maintained this letter writing relationship without prior approval by the employer thereby violating the cited rule. The commission further concludes that the letter writing relationship, despite the employe's characterization as an investigation, constitutes an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employe, as a deputy sheriff.

The commission therefore finds that the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. � 108.04(5) in week 38 of 1998.

The commission also finds that the employe was paid benefits amounting to a total of $977.00, for which she is not eligible 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 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 employe 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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 38 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.

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. The employe is required to repay $977.00 to the Unemployment Reserve Fund.

Dated and mailed August 20, 1999
konravi.urr : 135 : 1 MC 686

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the ALJ as to his credibility impressions. The ALJ found all of the witnesses credible but noted that the employer's production of evidence was lacking, especially regarding proof the employe received its training manual and verifying correspondence between the employe and the inmate. The commission however, reverses the appeal tribunal decision as a matter of law. The commission is satisfied that the employer established that the employe was either aware or should have been aware of the employer's written rule prohibiting the association the employe admitted to conducting without the sheriff's permission. Despite the employe's characterization of the letter writing relationship as a criminal investigation, the commission is satisfied that the employe intentionally and wilfully disregarded the employer's interests and standard of conduct the employer had a right to expect of the employe as a deputy sheriff thereby establishing that the employe's discharge was for misconduct within the meaning of Wis. Stat. � 108.04(5).

cc:
WASHINGTON COUNTY SHERIFF DEPT

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Footnotes:

(1)( Back ) The employe testified she brought forth these concerns to her former employer (Waukesha County) but it informed the employe it would not investigate the matter.

(2)( Back ) The commission, as the ALJ did, disregards any testimony regarding the employe's former boyfriend as it is hearsay testimony. Since the employe admitted maintaining the letter writing relationship during her employment with the employer, the commission sees no need to address the portion of the employer's testimony regarding this matter.