The City of Madison appeals from a decision by the Labor and Industry Review Commission (LIRC), decision finding that the Citys discharge of Kendall A.  Hallett, a parking enforcement officer, was not for misconduct connected with his employment within the meaning of Wis.  Stat.  108.04(5).   The decision is reversed and the case remanded for further proceedings, because LIRC applied only a purely subjective test to the employees conduct, contrary to appellate decisions requiring use of an objective test. 

STANDARD OF REVIEW

A reviewing court is bound by LIRCs factual findings if they are supported by credible and substantial evidence and must accept LIRCs judgment as to the weight and credibility of the evidence.  Wis.  Stat.  102.23(6).

An employees actions are misconduct for purposes of unemployment compensation if they evince such willful or wanton disregard of an employers 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 employers interests or of the employees duties and obligations to his employer. Boynton Cab Co.  v.  Neubeck, 237 Wis.  249, 259, 296 NW.  636, 640 (Wis.  1941). 

Whether a discharge was for misconduct within the meaning of the applicable statutes is a question of law.  McGraw-Edison Co.  v.  ILHR, 64 Wis.  2d 703, 713, 221 N.W.2d 677 (1974).  A court is not bound by LIRC s Conclusions of law, but must give them either great weight, due weight or no weight (the last only in questions of first impression).  Knight v.  LIRC, 220 Wis., 2d 137, 148-149, 582 N.W.2d 448 (Wis.App.,1998).  The great weight standard applies if (1) the agency is responsible for administering the statute, (2) the agency conclusion or interpretation is long standing, (3) the agency employed its specialized knowledge or expertise in forming the conclusion or interpretation, and (4) the agency interpretation provides consistency and uniformity in the application of the statute [citation omitted]. Id.  at 148.  When applying the great weight standard, a reviewing court must uphold the agency interpretation if it is reasonable and if it is not contrary to the clear meaning of the statute. Id. 

 LIRCs legal conclusions about whether an employees conduct was misconduct within the meaning of the statute are given great weight.  See, e.g., Charette v.  State, Labor and Industry Review Comn 196 Wis.  2d 956, 959-960, 540 N.W.2d 239, 241 (Wis.App.,1995), Bunker v.  Labor and Industry Review Comn, 2002 WI App 216, 26, 257 Wis.  2d 255, 650 N.W.2d 864, Lopez v.  Labor and Industry Review Com'n., 2002 WI App.  9, 16, 252 Wis.  2d 476, 642 N.W.2d 561. 

A LIRC conclusion that is given great weight must be affirmed unless it is unreasonable, i.e.  it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is without a rational basis, Lopez, 252 Wis.  2d at 16, citing Harnischfeger Corp.  v.  Labor and Industry Review Com'n.  196 Wis.  2d 650, 662, 539 N.W.2d 98 (Wis.  1995), or conflicts with prior appellate decisions, Klusendorf Chevrolet-Buick, Inc.  v.  Labor and Industry Review Comn, 110 Wis.  2d 328, 330-31, 328 N.W.2d 890 (Wis.  App.1982).  However, under the great weight standard, an interpretation of law must be affirmed if it is reasonable, even if another interpretation is more reasonable, Board of Regents v.  State Personnel Comn, 2002 WI 79, 43, 254 Wis.  2d 148, 646 N.W.2d 759. 

 The party seeking reversal of the LIRC decision has the burden of showing that the decision is unreasonable.  Harnischfeger Corp.  196 Wis.2d at 661.  An agency decision has a rational basis when it applies the proper standard of law to the relevant facts and reaches a conclusion a reasonable person could reach.  Verhaagh v.  Labor & Industry Review Comn, 204 Wis.2d 154, 160, 554 N.W.2d 678 (Wis.App.,1996).

DISCUSSION AND DECISION

There is no dispute among the parties as to LIRCs findings regarding what the employers policies and actions were and what the employees actions were, and those findings will not be recited in detail here.  The dispute is whether LIRC correctly concluded that the employees actions were not misconduct because they were not an intentional violation or disregard of the employers policies. LIRC Decision, April 18, 2008.  The employee posted the employers information identifying other officers by name and summarizing their performance on a publicly accessible website.  LIRC Decision at 2.  LIRC found that the employees actions were a serious violation of the employers rules and it was not his right to release those records without proper authorization, LIRC Decision at 3.  LIRC called the employees actions a valid basis for discharge, misguided and showing bad judgment.  LIRC Decision at 2 and 3. 

Nonetheless, LIRC found that the employee was sincere in his belief that the records he posted were not subject to restrictions Therefore, LIRC concluded that the employees actions were not an intentional violation or disregard of the employers policies.  LIRC Decision at 4.  LIRC also considered that this was the first incident of its kind in the employees disciplinary history.  LIRC Decision at 4. 

By relying exclusively on its factual finding that the employee was sincere in believing his actions did not violate rules LIRC applied a purely subjective test to the determination of the employees intent. The city argues that the proper test is an objective one.  The city relies on Wehr Steel Co.  v.  Department of Industry, Labor and Human Relations, 106 Wis. 2d 111, 315 N.W.2d 357, 361- 362 (Wis., 1982).  In that case employees had been discharged for leaving a workplace they felt was to hot for their health and safety.  Id.  at 114-115.  LIRC ruled that the walkouts were not misconduct.  Id.  at 113.  LIRC relied on the employees good faith belief that the conditions were dangerous.  Id.  at 120-21.  The Supreme Court rejected LIRCs application of the good faith test, calling it purely a subjective test and stating The correct test is what a reasonable person would reasonably believe as to whether a given set of working conditions presented a hazard to health or safety. Id.  at 121.  The Supreme Court also rejected the Court of Appeals' test of whether or not a hazard actually existed, saying the correct test is not whether there was an actual hazard but whether a reasonable person would have believed a hazard existed which justified walking off the job, though a perceived hazard is one factor to be considered.  Id.  at 121. 

The application of an objective reasonable employee standard is also implicit in Milwaukee Transformer Co.  v.  Industrial Commission, 22 Wis.  2d 502, 126 N.W.2d 6 (Wis.1964).  In that case, the Supreme Court held the courts main concern must be with the unreasonableness of the conduct of the employee. Id.  at 512.  The court concluded that the employees actions were not misconduct because her failure to continue giving notice throughout the duration of her absence was a reasonable response [emphasis added] to the employers actions.  Id. at 513. 

 Language in other cases suggests that the test is purely subjective: The crucial question is the employees intent or attitude which attended the conduct alleged to be misconduct, Bernhardt v.  Labor and Industry Review Comn.  207 Wis.  2d 292, 303, 558 N.W.2d 874 (Wis. App, 1996).  The emphasis is on the employees intent. Holy Name School v.  Department of Industry, Labor and Human Relations, 109 Wis.2d 381, 389-391, 326 N.W.2d 121 (Wis. App.,1982). 

However, Wehr has not been overruled, explicitly or implicitly.  While LIRCs decision must be given great weight, this court cannot ignore Wehr.  In applying only a purely subjective test -- the sincerity of the employees beliefs -- LIRCs decision conflicts with Wehr's rejection of a purely subjective test and requirement of an objective test and Milwaukee Transformers use of a reasonableness test.  The emphasis in Bernhardt and Holy Name on the particular employees intent or attitude must be read in conjunction with Wehr.  Thus, there are both subjective and objective components to evaluating alleged misconduct.¹

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¹  The instruction on self defense, JI-Criminal 801, is an example of a test with subjective and objective components.  A person is entitled to the privilege of self-defense only if he actually believed his actions were necessary to counter a threat that he actually believed existed and those beliefs, even if mistaken, were objectively reasonable.

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LIRC must consider the particular circumstances of the alleged misconduct, including the employees words and actions, and the inferences that can be drawn from them.  But LIRC must then also apply the Wehr objective test: what would a reasonable employee reasonably have believed or done in those same circumstances? An employee may act upon beliefs he sincerely and steadfastly holds but which are objectively so unreasonable that his actions constitute misconduct.  Put in terms of the present case, the question is whether the employees sincere belief that the employers policies did not prohibit his conduct was a reasonable belief that a reasonable employee could have held. 

LIRC did not apply an objective test, and unreasonably restricted its analysis to only the employees subjective intent.  Therefore, LIRCs decision is reversed, and the case is remanded to LIRC to determine whether the employees beliefs and actions based upon them were objectively reasonable under the Wehr standard.  This is a final order for purposes of appeal.

Dated January , 2009

BY THE COURT:

/s/ Juan B. Cols
Circuit Judge