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

Subject: Farm & Fleet of Monroe, Inc. v. LIRC and Jay D. Albrecht, Case No. 2006AP2152 (Court of Appeals, District IV, April 26, 2007)

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes:  MC 605.091   PC 740

The employee came home from his work shift and got into a fight with his father. He apparently struck his father but did not admit doing so. After he left the house and took off in his vehicle his brother called the police, and the police chased him. At the end of the chase the employee’s vehicle collided with a police car, but it is unclear who caused the collision. The employee was incarcerated for three days and all of those were work days. However, the morning of the first day the employee’s father telephoned the employer and informed them that the employee was in jail. The employee got out of jail the morning of the fourth day and immediately telephoned the employer, but the employer had already discharged him for missing three consecutive work days.

At the appeal tribunal hearing, the employee conceded that he had fought with his father and had subsequently been in an accident with a police car, but did not admit striking his father or causing the accident. The employer’s only witness at the hearing was the store manager, who indicated that when the employer discharged the employee it had no knowledge of why he had been incarcerated. The appeal tribunal found that the employer had failed to demonstrate misconduct, because it had failed to show that the employee had done anything to justify his incarceration.

The commission issued a decision which affirmed the conclusion that the discharge was not for misconduct, but which also indicated that if the employer could subsequently demonstrate that the employee had been convicted of criminal behavior causing his incarceration, it should request reconsideration.

Subsequently, the employer submitted documents indicating that the employee had pled “no contest” to four misdemeanors stemming from the incident in question. The commission responded with a letter denying the request to reopen. The commission's letter stated:

Although the commission has in the past granted requests, pursuant to Wis. Stat. 108.09(6)(c), to set aside and reissue its decisions when an employee has pled guilty to a relevant offense or has been convicted after a not guilty plea  (see, Krispin v. Ameri-King/Burger King, UI Hearing No. 00001536WU (LIRC May 10, 2000);  Puckett v. Samuels Recycling Co., UI Hearing No. 95000269JV (LIRC Sept. 21, 1995)),  the commission has declined to do so when conviction is based on a no contest plea.  The Commission has relied on In Matter of Estate of Safran, 102 Wis.2d 79 (1981)(a criminal conviction based on a plea of no contest is generally not admissible in a subsequent civil action as evidence of the facts on which the conviction is based) for refusing further action based on no contest convictions. The commission declines to take further action here, since the certified judgment of conviction was imposed pursuant to a no contest plea, rather than a guilty plea or following a trial in which the employee had been found guilty of intentional behavior that resulted in his absence from work.

The employer appealed and the circuit court held that the record demonstrated the employee was incarcerated as a result of intentional criminal conduct, and that the commission’s finding of no misconduct was not supported by the evidence. The commission appealed, asserting that the record did not support a finding of misconduct. The commission also argued that its discretionary decision not to reopen the case should be affirmed, stating that even though it not longer adhered to the position that the nature of the plea made a difference, there were grounds upon which reopening could be denied.

Held: The court of appeals reversed the decision of the circuit court on the misconduct issue. The court of appeals concluded that the evidence presented at the administrative hearing did not constitute credible and substantial evidence of any crime committed by the employee, and therefore the commission properly found that misconduct had not been demonstrated.

With respect to the issue concerning the commission's decision not to reopen the case, the court noted that LIRC was no longer taking the position expressed in the letter denying the request to reopen, that the type of plea is relevant to whether the judgment of conviction establishes criminal conduct.  Thus, the court noted that  in its brief on appeal, the commission had stated:

[I]n future cases with procedural circumstances similar to the employee’s, the commission will no longer place particular emphasis on what type of plea was made by an employee charged with criminal conduct.  This is because a criminal conviction, whether based on a plea of no contest, a guilty plea, or a guilty verdict, is not admissible in a civil case as evidence of the facts upon which such plea or verdict was based.  In Matter of Estate of Safran, 102 Wis. 2d 79, 94-95, 306 N.W.2d 27 (1981).

The court declines to affirm a discretionary decision for reasons that were not considered by LIRC when making that decision.  LIRC’s counsel’s argument in a brief is not the equivalent of the agency exercising its discretion.  In light of the fact that LIRC is not relying on the reason it initially gave for its exercise of discretion, the court remands the case to LIRC for it to reconsider the employer’s request to reopen.

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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uploaded 2007/06/25