Arlene A. Mandler, Relator, vs. Minnesota Correctional Facility - Lino Lakes, Respondent, Commissioner of Economic Security, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-374

Arlene A. Mandler,

Relator,

vs.

Minnesota Correctional Facility - Lino Lakes,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed October 7, 1997

Affirmed

Schumacher, Judge

Department of Economic Security

File No. 9877UC96

Peter B. Knapp, Perry Mosentine, Certified Student Attorney, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Minnesota Correctional Facility Lino Lakes, 7525 4th Avenue, Lino Lakes, MN 55014 (respondent)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Arlene A. Mandler appeals from the commissioner of economic security's denial of reemployment insurance benefits because of misconduct, arguing she did not intend to damage her employer's interests when she associated with an inmate at respondent Minnesota Correctional Facility - Lino Lakes without prior written approval. We affirm.

FACTS

Mandler was employed as a corrections officer at the Lino Lakes facility from March 1992 until her termination in October 1996. Mandler personally associated with a Lino Lakes inmate from July through September 1996. The inmate was "on paper," living in minimum security housing outside the walls of the Lino Lakes facility.[1] The inmate made several phone calls to Mandler's home, visited Mandler's home a number of times, gave Mandler a gift, and hugged her on one occasion.

Lino Lakes has a written policy that requires prior written approval before engaging in a personal association with an "on paper" inmate. The policy also prohibits receiving gifts from inmates. Violation can result in termination. Mandler was aware of this policy, but testified she initially did not know the inmate was subject to the policy because the inmate told her he was "off paper."

On October 7, 1996, Mandler reported her contact to her supervisor. Mandler was immediately suspended and subsequently terminated.

Mandler applied for reemployment insurance benefits, but was denied because the reemployment insurance judge concluded she was terminated for misconduct. The commissioner's representative affirmed. Mandler appeals.

D E C I S I O N

Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner's representative's findings should be viewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosps., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The final determination of whether an employee committed misconduct, however, is a question of law upon which this court is free to exercise its independent judgment. See id.

An employee who is discharged for misconduct is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving by a preponderance of the evidence that an employee committed disqualifying misconduct. Ress, 448 N.W.2d at 523.

The supreme court has adopted the following definition of "misconduct":

" * * * [T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's 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 employer's interests or of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * * .

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). In analyzing misconduct, this court generally has considered the following factors:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employees, (2) whether an employee's conduct adversely affected the business or other employee's morale, and (3) whether an employee ignored past warnings.

Ress, 448 N.W.2d at 524. Even a single incident can constitute misconduct. Colburn, 346 N.W.2d at 161.

1. Mandler argues that her violation of Lino Lakes' policy cannot in and of itself constitute willful disregard of Lino Lakes' interests because she did not deliberately violate the policy or compromise Lino Lakes' security. See Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 396 (Minn. App. 1995) (requiring that "the focal point in any analysis must be the subjective intent of a person accused of misconduct"). We disagree.

The personnel director of Lino Lakes testified the policy barring personal association between prison employees and inmates without prior approval exists for security reasons. The policy prohibiting gifts is to discourage favoritism and also to promote security. Lino Lakes has discharged several employees for violations of this policy.

The record shows Mandler believed the inmate when he said he was "off paper", but knew he had a room in the minimum security facility. Apparently, through carelessness or negligence, she chose not to check the inmate's status before continuing with a personal association. Mandler's conduct evinces an intentional disregard of her employer's interests. See Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646 (holding carelessness or negligence sufficient to show misconduct). The commissioner's representative's decision that Mandler is disqualified from receiving benefits is supported by the record.

2. Mandler argues that the commissioner's representative's finding that she "abrogated" Lino Lakes' policy is not a finding that she willfully intended to violate the policy, therefore, the commissioner's representative created a "per se" disqualification rule because of the technical rule violation. We disagree.

In cases where the employee violates a known employer policy adopted to protect important employer interests, disqualification for misconduct is not strictly because of the rule violation without any acknowledgement of the employee's state of mind. The "willfulness" of the employee is imputed by his or her negligence, carelessness, or disregard of known standards of employee behavior.

In this case, Mandler was aware of the policy and the reasons for the policy. Mandler chose to believe the inmate when he told her he was "off paper." Mandler's subsequent reporting of the association, while proper, does not minimize the fact that she failed to adhere to the policy and thereby disregarded her employer's interests.

Affirmed.

[ ]1 Apparently, an inmate "on paper" is still serving their sentence or released with less than two years of probation completed. An inmate is "off paper" when they have been released from the facility and have been on probation for two years.