Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: DILHR UC Division v. LIRC, Jennifer E. Mc Kenzie and Commissioner of Banking, Case No. 88 CV 3161 (Wis. Cir. Ct., Dane Co., November 2, 1988)

Digest Codes: BR 336 - Public policy declaration, ET 490 - Excluded public employment 

The employe was Deputy Commissioner of Banking for three years. She was appointed to that noncivil service position by the Commissioner of Banking. Her duties included fiscal, internal and personnel matters plus attending banking review board meetings every 45 days as an observer and to answer questions. She was paid a yearly salary and worked between 40 and 60 hours a week. She had decision-making authority but no policy-making authority. She became unemployed following a change of gubernatorial administrations and filed claim for benefits.

A DILHR deputy denied benefits on the ground that the employe's work for a governmental unit was in a position which, under or pursuant to Wisconsin laws, is designated as a major nontenured policy-making or advisory position the performance of the duties of which does not ordinarily require more than eight hours a week under section 108.02 (15)(f)6., Stats. The ALJ dismissed the employe's appeal as late. The Commission ordered that testimony be taken on the merits and timeliness issues. Thereafter the Commission, with one dissent, held that the failure to appeal timely was beyond her control and that her employment was not excluded under section 108.02 (15)(f)6., Stats. It was noted that the tests set forth in DILHR's U. C. Manual required, in part, that the position must be designated in state law as policy-making or advisory and usually filled by an appointment by the Governor. The employe's position did not fit such requirements although it did meet other requirements set forth in the U.C. Manual.

DILHR commenced an action for judicial review on the excluded employment issue only.

Held: Affirmed. As to DILHR's contention that because this is a case of first impression before the Commission the Court does not have to defer to the Commission's conclusion of law, the Department has equal or greater expertise in interpreting the law, and that any deference should be given the Department's prior conclusion, the Court notes that the facts are not in dispute. The Court also notes that it is not bound by Commission's determination on a question of law. "In general, however, the application of Chapter 108, Stats., made by LIRC is entitled to great weight and will be deferred to if there exists a rational basis for its conclusion. Environmental Decade v. DILHR , 104 Wis. 2d 640, 644 (1981). In dealing with a question of law, the question is whether the facts fulfill a particular legal standard. Cheese v. Industrial Comm., 21 Wis. 2d 8, 15 (1963). In the instant case, they do not."

Because this is a case of first impression, decisions from other jurisdictions are helpful. Gahres v. Bd. of Rev. , 433 A2d 152 (1981 Pa Comwlth.), points out the need to construe all of the words in the statute. DILHR's position renders the provision that the position be designated under state law meaningless.

In Wisconsin, the legislature has designated the Banking Review Board as the policy-making body and its responsibilities include approving the actions taken by the Commissioner of Banking, who enforces various laws. Other Pennsylvania cases show that other methods of ascertaining whether a position is policy-making or advisory include the individual's job description, executive orders, regulations, and management directives. Such information was not submitted in this case as the employe was the only one who testified. DILHR and the employer did not sustain the burden of proof to overcome the presumption of eligibility.

As to DILHR's contention that the Commission's conclusion of law is contrary to public policy, the Pennsylvania Court of Appeals in Gahres points out that legislative history is not applicable where a statute, such as the statute in the instant case, is not ambiguous. In addition, the Wisconsin Statutes and case law provide that public policy shall not supersede, alter, or modify the specific U.C. provisions.

The Commission did not act without or in excess of its powers. Its conclusion is reasonable, consistent with the plain meaning of the statute, legislative history, and decisions of other jurisdictions and will not be disturbed.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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