CINDY L KLATT, Employee

CITY OF WAUKESHA, Employer

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:

The employee worked about ten years as a police officer for the employer, a municipal government. Her last day of work was September 28, 2001 (week 39).

The collective bargaining agreement between the employer and the union that represented the employee contained the following provision:

21.01 Employees will reside within the County of Waukesha or within twenty (20) minutes of the Police Station. New employees must comply with this residency requirement not later than three (3) months after completing their probationary period. This initial period may be extended for up to nine (9) additional months if a legal hardship would otherwise result.

One reason for the residency requirement was so officers could respond quickly if called in for an emergency or in a short-staffing situation. In past agreements, the chief of police had the authority to grant an exemption to the residency requirement. In the most recent agreement, the common council had the authority to grant an exemption to the residency requirement.

On April 19, 2001, the employee notified the deputy chief that she was going to request an exemption from the residency requirement because she had become engaged to an investigator for the Racine County Sheriff's Department, which also had a residency requirement. There was no place that both the employee and her prospective husband could live that would satisfy both residency requirements. The employee's prospective husband's request for an exemption from his employer's residency requirement was denied. The deputy chief indicated he would speak with the city administrator about the matter. On April 20, the deputy chief informed the employee that the employer would not allow the exemption because it was a contractual matter, and because it would set a precedent.

On May 31, 2001, the employee submitted a request for a one-year exemption from the residency requirement to the human resources committee of the common council. At a June 13, 2001, meeting of the human resources committee the employee was given the opportunity to explain her need for an exemption from the residency requirement. The human resources committee denied the employee's exemption request because the contract was specific on the point.

On August 17, 2001, the employee moved out of Waukesha County to a residence in Burlington, a fifty-minute drive from the police station. On August 28, 2001, the employer gave notice to the employee that she was out of compliance with the residency rule. She was given 30 days to establish acceptable residency. She failed to do so. Her employment ended on September 28, 2001 (week 39), because of her failure to comply with the residency rule.

The issues are whether the employee quit, or if the employer terminated her employment. If she quit, the second issue is whether she quit for a reason within an exception to Wis. Stat. § 108.04(7)(a), that would allow payment of unemployment benefits. If the employer discharged her, the second issue is whether she was discharged for misconduct connected with her work.

The employee could have continued working for the employer if she had moved within Waukesha County, or within 20 minutes of the police station. Her failure to do so caused her employment to end. The commission finds that the employee voluntarily terminated her employment.

Court decisions hold that to constitute "good cause" for quitting the worker's reason for quitting must relate to some real, substantial and unreasonable act on the part of the employer. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). It must be a reason that would justify him or her in becoming unemployed rather than continue working.

The employee moved to Burlington, Wisconsin to make her home with her husband who worked for the Racine County Sheriff Department. The employee made a valid personal decision to relocate to be with her husband. However, the employer was not obligated to grant the employee an exemption. That exemptions had been granted in the past by a different decision-maker, even under similar circumstances, did not obligate the employer to grant an exemption to the employee. The employee was aware of the residency requirement. The employer gave her no assurance and made no promise that an exemption would be granted.

The commission therefore finds that in week 39 of 2001, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $6,985.00 for weeks 40 through 52 of 2001 and weeks 1 through 9 of 2002, 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).

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $6,985.00 to the Unemployment Reserve Fund.

Dated and mailed March 14, 2002
klattci . urr : 132 : 3 : VL 1007  VL 1080.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission does not disagree with any credibility or demeanor assessment made by the ALJ. The commission disagrees with the ALJ's conclusion that the employee terminated her employment with good cause attributable to the employer.

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: 
Attorney William R. Rettko
Vincent D. Moschella, Assistant City Attorney

Appealed to Circuit Court. Affirmed October 30, 2002.  [Summary of Circuit Court decision]   Appealed to the Court of Appeals.  Affirmed  August 13, 2003, sub nom. Klatt v. LIRC and City of Waukesha, 2003 WI App ___, ___ N.W.2d ___ .

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2002/03/15