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

TIMMY D DUERR, Employe

VILLAGE OF GREENDALE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96606932MW

On September 14, 1996, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the adverse determination, and hearing was held on May 23, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On September 3, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination of no misconduct. The employer timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately six years as a firefighter for the employer, a municipality. The employer discharged the employe on August 22, 1996 (week 34), following the employe's conviction for homicide by negligent use of a motor vehicle. The issue is whether the employe's discharge was for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5). The commission believes that it was, and so reverses the appeal tribunal decision.

On November 8, 1994, the employe was involved in an automobile accident at the intersection of the northbound ramp to I-894 and West Lincoln Avenue in the City of West Allis, Wisconsin. Prior to the accident, the employe had attended a wake for the father of another firefighter. He and a number of co-workers proceeded to a local tavern after the wake. The employe acknowledged consuming approximately 4 1/2 beers after the wake (the employe indicated he drank two beers at a tavern before the wake, and that he had been at the wake for forty-five minutes to one hour). Based upon a blood test of the employe approximately 3 1/2 hours after the accident, the employe's blood alcohol concentration at the time of the accident was approximately .1 percent.

The employe's vehicle collided with another vehicle which had turned left in front of him. As a result of the accident, a passenger in the other car died. The employe acknowledged that he was driving in excess of posted speed limits at the time of the accident. The employe was charged and convicted of homicide by negligent use of a motor vehicle. The employe was sentenced to three years probation and eight months in the House of Corrections. The employer discharged the employe approximately one week after his conviction on the criminal charge.

The employer's discharge of the employe was based upon the employe's alleged violation of several of the employer's rules and regulations. Rule 310.02 requires employes to conduct their private and professional lives in such a manner as to avoid bringing the fire department into disrepute. Rule 320.71 prohibits employes, even while off duty, from being under the influence of controlled substances where they are in public view and where their conduct while under the influence of such items brings disregard to the fire department. The issue is whether the employe's conduct meets the prohibition of rule 320.71.

Misconduct for unemployment compensation purposes is the substantial and intentional disregard by an employe of standards an employer reasonably may expect of its employes. In this case the employe, at night, in the rain, while speeding, and with a blood alcohol content at or very near the level at which it is illegal to drive under any circumstances, was involved in a traffic accident which killed a passenger in another vehicle. The press coverage of this matter was extensive, and without question resulted in disregard to the fire department. This press coverage did not occur in a vacuum, however, but was the direct result of the employe's actions, so it is the employe's actions that brought the disregard to the employer. Indeed, it is difficult to imagine how the employe's actions could not have done so. The employe was in a public position in which the society must place its utmost confidence. That confidence will be seriously weakened, or negated all together, if a firefighter holding that trust may commit the wrongs the employe committed on the evening in question.

The administrative law judge, in allowing benefits, ruled that there was no nexus between the employe's accident and his employment. The commission concludes otherwise, based upon rule 320.71 which, as indicated above, prohibits off-duty employes from being under the influence of controlled substances where they are in public view and where their conduct while under the influence of such substances brings disregard to the fire department. This is a work rule, and there is no basis for concluding it is not a legitimate one. The employe's violation of this rule was significant, as evidenced by the results obtained. The commission therefore finds that, in week 34 of 1996, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5).

The commission also finds that the employe was paid benefits totaling $6,155.00, for weeks 35 of 1996 through 5 of 1997, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f), the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 35 of 1996, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $6,155.00 to the Unemployment Reserve Fund. Department form UCB-700, issued on August 25, 1996, is set aside.

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 employe 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 November 25, 1997
duerrti.urr : 105 : 1 MC 618  MC 692.02

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing assessment of credibility from that of the administrative law judge. Rather, the commission believes the employer's rules and regulations prohibited the failures the employe committed in this case.

cc: ATTORNEY ROGER E WALSH
DAVIS & KUELTHAU SC

ATTORNEY BRIDGET BOYLE
BOYLE BOYLE & SMITH SC

Appealed to Circuit Court. Affirmed August 17, 1998. Court Decision Summary

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