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


JAMES R JONES, Employe

ADVANCED TECHNOLOGY SOLUTIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001992DV


On May 1, 1999, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with his employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on June 1, 1999 in Dodgeville, Wisconsin before a department administrative law judge. On June 16, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse 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 worked during 10 months as a computer service/software technician for the employer, a computer and office equipment sales and service business. His last day of work was April 8, 1999. He was discharged on April 16, 1999 (week 16) for various failures, including the possession by the employe on his computer of child pornography. The commission concludes that this possession by the employe was misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

In approximately September of 1998 the employe, on behalf of the employer, assisted in the installation of a computer system for a local school district. In addition to the installation he advised the district as to the effectiveness of a component designed to filter out objectionable material. In order to test the effectiveness of the filter he attempted to gain access to pornographic material from the internet and other sources and compared this protocol to the specifications and protections offered by the filtering system. The testing protocol then downloaded these materials and the employe categorized them into a folder system he had set up. One of the categories the employe set up, was of minors. In addition to utilizing this material as part of the system tests, he gathered some pornographic material for personal recreational purposes, but there is no evidence that any management personnel knew of or accessed the file containing child pornography. Other employe management personnel also accessed a portion of this material for recreational purposes. He did not intentionally download pornography of children, but received it when it came attached to similar material with adults as subjects.

Following his last day of work the employe was absent for several days due to symptoms of pneumonia. During his absence, the employer's president began searching the employe's computer files. In his search, the president accessed the pornographic material. By a letter of April 16 from the employer's attorney, the employe received notice of his discharge. The letter stated, inter alia: "It is my understanding that you have committed several criminal acts while employed by ATS."

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. See Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941). Little culpability occurs with regard to the child pornography coming to the employe's computer in the first instance. The employer conceded that the employe's project, in which the materials were derived, was a valid one. The employe's retention of the materials, the possession of which Wis. Stat. § 948.12 makes a class E felony, is a different matter. The child pornography was part of the employe's computer files because it came to his machine pooled in one directory. The employe then went through the images and classified (resorted) them, for personal use. The general pornography made up the bulk of the space used by the computer, and the employe would delete some of those files in order to open up machine space. According to the employe, the child pornography was in a smaller sub-directory, which presumably was not taking up much computer space, so the employe spent no time getting rid of it.

From the above, it is clear that the employe knowingly was in possession of child pornography. The commission concludes that this retention of child pornography by the employe was a substantial disregard of the employer's interests, regardless of whether the employe also knew that possession of such materials was a felony violation of the criminal law.

The commission therefore finds that, in week 16 of 1999, the employe was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The commission also finds that the employe was paid unemployment insurance in the amount of $297.00 per week for each of weeks 17-18 and 29-43 of 1999, totaling $5,049.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund.

The commission also finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment was not the result of 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 16 of 1999, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay $5,049.00 to the Unemployment Reserve Fund. Department form UCB-700 issued on April 20, 1999, 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 November 12, 1999
jonesja.urr : 105 : 1  MC 617  MC 690

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The basis for the administrative law judge's finding of no misconduct was the employe's testimony that he did not know mere possession of child pornography was a criminal violation. The administrative law judge also believed it possible that the employer knew that the child pornography materials were in the employe's computer. As indicated above, the employe's alleged ignorance of the illegality of the possession of such materials does not change the fact that the employe intentionally retained those materials in his computer. That is, the intentional conduct which is the basis for the misconduct finding is the employe's retention of the materials. The record also does not indicate that the employer's management personnel were aware of the child pornography materials. That the employer could have discovered them sooner, had it looked through the employe's computer files, is insufficient. The employer's witnesses did not testify they were aware of the materials in question; the employe conceded he did not know whether management personnel were aware of the child pornography materials. These factors contributed to the commission's decision to reverse the appeal tribunal decision.

cc: ATTORNEY ROBERT MUELLER

ATTORNEY JAMES NATWICK
CHIQUOINE MALBERG & NATWICK SC


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