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


AMY J GOVE, Employe

DATA PLUS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402931AP


O R D E R

Pursuant to authority granted in Wis. Stat. § § 108.09(6)(c) and (d), the commission sets aside the December 29, 1998 appeal tribunal decision in this case and remands the matter to the Department of Workforce Development for de novo (new) hearing and decision by Administrative Law Judge Rehbein. At the previous hearing in the case, the administrative law judge instructed the employer that it could re-open its case should evidence of theft by the employe become available in court proceedings pending against the employe at the time of the December 28, 1998 hearing in the case. At the hearing, the employer did not have evidence available to establish the alleged theft by the employe, presumably because that evidence was being held by the district attorney's prosecutor in the employe's criminal matters. It appears that the criminal proceedings have concluded, so the employer now should be able to marshal the necessary evidence to prove its theft allegations against the employe in the unemployment insurance forum. Certain evidentiary principles should be kept in mind, however.

First, the nolo contendere (no contest) plea is inadmissible. "The essential characteristic of a plea of nolo contendere is that it cannot be used collaterally as an admission . . . a plea of nolo contendere is not such an admission against interest [as is a plea of guilty] and may not be used in a subsequent or collateral civil action for that purpose." Lee v. State Board of Dental Examiners, 29 Wis. 2d 330, 334, 139 N.W.2d 61 (1966). Second, the same is not true of the judgment of conviction based upon the nolo contendere plea. Id. at 335. For this reason, the deferred judgment agreement the employer refers to in its petition for review, is admissible. Third, while admissible it still is not binding, by operation of Wis. Stat. 108.101(4), which states: "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." The judgment therefore is admissible, but it is not binding upon the tribunal, and the commission believes the same applies to the employe's alleged agreement to pay $200 restitution (presumably to the employer).

Given all of these factors, the commission believes the matter is best reheard and redecided.

Dated and mailed September 24, 1999
goveam.upr : 105 : 6 PC 714

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


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