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


DANA ROBERTS, Employee

DEPARTMENT OF CORRECTIONS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00400501AP


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 employee worked about six months as a recreation leader for the employer, a medium security correctional institution. Her last day of work was on September 2, 1999 (week 36). She was discharged on January 14, 2000 (week 3) for violating the employer's policy against fraternizing with an inmate. Exhibit 17.

The employer was informed that an officer, Officer Fuller, was bringing contraband to an inmate, Scott Seal. Inmate Seal's cell was searched and contraband was found including a cellular telephone and letters allegedly written by the employee to inmate Seal.

Upon investigation inmate Seal admitted a relationship with the employee which included some physical contact, the letters, telephone calls he made to her from his cell phone, and calls made to him from the employee. The investigation report notes that at one point inmate Seal admitted that he lied to the investigating officers when he implicated some other officers as bringing in contraband. Inmate Seal was allegedly was trying to cover up for an extortion situation being run by some other officer. Exhibit 8. Inmate Seal is in prison for forgery.

Officer Fuller was questioned and he admitted bringing the cell phone to inmate Seal from a friend of inmate Seal's named Lisa Trojanowski. Inmate Seal told Officer Fuller that he was having a relationship with the employee.

Another inmate was questioned, inmate Garland, inmate Seal's roommate. Inmate Garland stated that he passed notes between the employee and inmate Seals. Inmate Garland also testified he answered the phone on one occasion and it was the employee calling for inmate Seal.

The telephone number of the phone in inmate Seal's cell, according to an investigation report by a Detective Busha, was 551-9005. Exhibit 8. The telephone numbers that appear on various telephone records attributed to the phone in inmate Seal's possession is 551-9007.

The phone records for the telephone number 9007, which is actually in Ms. Trojanowski's name, Exhibit 4, indicate numerous phone calls from 551-9007 to the employee's home phone number of 920-235-1304. In one interview (Exhibit 21), inmate Seal recalled that the employee had called him on September 3 when her husband was in the shower. The employee's home phone records, Exhibit 3, reflect that the first telephone call made from the employee's home to the number 715-551-9007 was on September 3, at 5:22 p.m. which lasted one minute or less. The employee's cell phone records (Exhibit 2), indicate that on September 1 she called the number 715-551-9007.

The employee's husband submitted a statement at the hearing (Exhibit 7) in which he indicated that it came to his attention that the number 551-9007 called his home 17 times in a two hour period on September 1. He called the number back and someone picked up the phone but would not speak. The employee's friend testified that she was with the employee on September 1, 1999 at a softball game and the employee made no cell phone call.

Mr. Roberts indicated he made a five-minute call on September 1 from their cell phone because there had been repeated calls to his and the employee's house on that date. However, inmate Seals telephone bill, that is the bill in Ms. Trojanowski's name for the phone number 551-9007, the number Mr. Roberts alleged showed up as calling his house 17 times on September 1, does not show 17 calls made to the employee's home number on that date. (Exhibit 4, pp. 2-3). According to Exhibit 4, the first time that a call was made to the employee's home was at 9:28 on September 2. Mr. Roberts further testified that that on Thursday, i.e. September 2, he saw the number again on his caller ID. He called back from his home phone. He got a voice mail that said he had reached Lisa. Neither the employee's cell phone records, Exhibit 2, p. 15, nor the employee's home phone records, Exhibit 3, show a call to 551-9007 on September 2, 1999.

Two forensic experts testified at the hearing that the employee wrote the letters found in inmate Seal's cell, Exhibit 5. The first expert, Mr. Bell, compared the letters contained in Exhibit 5 with reports authored by the employee containing her handwriting (Exhibit 6). Mr. Bell has testified on a number of occasions on behalf of the employer. He obtained a degree in political science and took university courses in handwriting. He is court certified and has testified at judicial hearings, court and administrative hearings over the years approximately 40 to 50 times. He has performed DOC analysis about 400 or 500 times and in 10 to 15 percent of the cases indicated that these handwriting samples did not match. He indicated he was 100% certain that the employee wrote the letters contained in Exhibit 5.

Also testifying as a forensic expert was Ms. Runyon, a self-employed forensic document examiner. She has 22 years of experience. Her resume was introduced as Exhibit 14. She has testified nearly 200 times in different forums. A report submitted by Ms. Runyon, Exhibit 15, contains her opinion that employee is the author of the letters in Exhibit 5. (Syn., p. 21). She was asked whether it was possible for a known forger to do some documents like the documents in question and Mr. Runyon indicated, "that would be extremely difficult for someone else to do and to do it consistently without any indication that it was not the genuine writer." (Syn., pp. 23-24). She was also 100% certain that the employee authored the letters in Exhibit 5.

The employee denied that she had any type of relationship with inmate Seal. She denied calling inmate Seal or receiving calls from him. She denied speaking to inmate Garland on the telephone. She maintained that she and her husband called 551-9007 because it showed up on their caller ID and a female voice would state her name was Lisa and to leave a message.

The employee denied being the author of the letters found in inmate Seal's cell. The employee testified that a number of facts stated in the letter were not true. The letters indicate, among other things, that the employee had dented her Suburban and that one of her children had gotten stitches. The employee submitted letters from her health plan indicating that no claims were made for the employee's daughter since June of 1999 (Exhibit 12). There were no claims by the employee since April of 1999 (Exhibit 11). The employee also submitted a statement from her husband's auto insurer indicating that he has been insured since 1994 and the insurance did not cover a Suburban and no claims have been filed by the employee's husband. (Exhibit 13).

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court 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 commission finds that the employee did in fact engage in a relationship with inmate Seal in violation of the employer's policy against fraternizing with the inmate. First, the commission credits the testimony of the two handwriting experts that the employee was the author of the letters found in inmate Seal's cell. The employee's argument that inaccuracies in those documents prove she was not the author is not persuasive. The commission does not find that the employee had an open and honest relationship with inmate Seal, merely that she had a relationship which violated the employer's policy against fraternizing with an inmate.

Second, the commission finds the employee did engage in telephone contact with inmate Seal by both receiving calls from him and making calls to him. The commission finds that the discrepancy in the phone numbers was merely a clerical error. Further, the employee and her husband's explanation for contacting the 551-9007 number on September 1, 1999 was not truthful. The employee's husband testified that the number 551-9007 showed up on caller ID 17 times on September 1, 1999. The telephone records for 551-9007 were introduced at the hearing and there was no phone call, let alone 17 phone calls, made from 551- 9077 to the employee's home number on September 1, 1999.

The commission therefore finds that in week 3 of 2000 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,037.00 for weeks 4 through 10 of 2000, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 employee 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 decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2000 and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,037.00 to the Unemployment Reserve Fund.

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 employee 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 October 5, 2000
roberda.urr : 132 : 6 : MC 687    MC 610.25  MC 692.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge found the employee to be a credible witness. As reflected in the body of this decision, the commission credits the expert testimony provided by the employer. In addition, the phone records do not support the employee's version of events.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: MARK KLEMMER

JUDY SMITH
OSHKOSH CORRECTIONAL INSTITUTE

ATTORNEY DAVID C WHITCOMB
DEPARTMENT OF CORRECTIONS


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