Alex Sylvester v. Director, Arkansas Employment Security Department and Arkansas State Police
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV
E0546
March 15, 2006
AN APPEAL FROM ARKANSAS
STATE BOARD OF REVIEW
[NO. 2004BR2263]
ALEX SYLVESTER
APPELLANT
V.
DIRECTOR, ARKANSAS
EMPLOYMENT SECURITY DEPT. and
ARKANSAS STATE POLICE
APPELLEES
AFFIRMED
WENDELL L. GRIFFEN, Judge
Alex Sylvester appeals from a decision from the Board of Review denying him
unemployment benefits based on misconduct connected with the work on account of
dishonesty. He argues that the Board’s decision is not supported by substantial evidence.
We hold that the Board’s decision is supported by substantial evidence and affirm.
Appellant was terminated by the Arkansas State Police on April 7, 2004, and
reinstated by the Arkansas State Police Commission on July 20, 2004. At the hearing on
appellant’s claim for unemployment benefits, Steve Clemons testified on behalf of the
Arkansas State Police that appellant’s discharge was associated with a sexual affair appellant
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had with the victim in one of his cases. Clemons learned of the affair when the victim’s
husband complained that appellant caused him and his wife to divorce. When asked about
the affair, appellant initially denied the relationship; however, he later admitted to having the
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Clemons also testified that appellant was terminated for incompetence because he
interviewed two suspects at the same time in a restaurant and allowed the suspects to
enter his residence. These facts appear to be irrelevant for the purposes of this appeal.
affair. Clemons stated that an employee who does not give a truthful statement is in violation
of Arkansas State Police policy, and the fact that the employee recants the false statement
does not make the error any less of a violation. On crossexamination, Clemons stated that
the prosecutor had no issues with appellant’s credibility; however, the deputy prosecutor did
have an issue with appellant’s veracity. Clemons also testified that the sexual contact
between appellant and the victim was consensual.
The employment security department denied appellant benefits pursuant to Ark. Code
Ann. § 1110514(a) (Repl. 2002), which disqualifies an individual from receiving benefits
if he is discharged for misconduct in connection with the work. The Arkansas Appeals
Tribunal modified the decision to deny benefits pursuant to Ark. Code Ann. § 1110514(b),
which disqualifies an individual from receiving benefits if he is discharged for misconduct
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specifically on the account of dishonesty. It concluded that appellant’s violation of the
truthfulness policy “was willful and below the standard of behavior the employer had a right
to expect.” The Board of Review affirmed and adopted the Tribunal’s decision.
We affirm the findings of the Board of Review if they are supported by substantial
evidence. Billings v. Director, 84 Ark. App. 79, 133 S.W.3d 399 (2003). Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support
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Arkansas Code Annotated section 1110514 reads in pertinent part:
(a)(1) If so found by the Director of the Arkansas Employment Security Department,
an individual shall be disqualified for benefits if he or she is discharged from his or
her last work for misconduct in connection with the work.
* * *
(b) If he or she is discharged from his or her last work for misconduct in connection
with the work on account of dishonesty, . . . he or she shall be disqualified from the
date of filing the claim until he or she shall have ten (10) weeks of employment in
each of which he or she shall have earned wages equal to at least his or her weekly
benefit amount.
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a conclusion. Id. We view the evidence and all reasonable inferences therefrom in the light
of the Board’s findings. Id. Like a jury, an administrative body is free to accept or reject the
testimony of witnesses. Gunter v. Director, 82 Ark. App. 346, 107 S.W.3d 902 (2003).
Even if there is evidence that could lead the Board to reach a different decision, our review
is limited to whether the Board could have reasonably reached its decision based upon the
evidence presented. Billings v. Director, supra.
Appellant argues that the Board’s decision that he was discharged from the Arkansas
State Police for misconduct on account of dishonesty is not supported by substantial
evidence. The employer has the burden of proving by a preponderance of the evidence that
it discharged the employee for misconduct. Maxfield v. Director, 84 Ark. App. 48, 129
S.W.3d 298 (2003). Misconduct is defined as: (1) disregard of the employer’s interests; (2)
violation of the employer’s rules; (3) disregard of the standards of behavior which the
employer has a right to expect of his employees; (4) disregard of the employee’s duties and
obligations to the employer. Id. Mere unsatisfactory conduct, ordinary negligence, or good
faith errors in judgment or discretion are not considered misconduct unless they are of such
a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard
of the employer’s interests. Id. In addition, dishonesty is defined as “a disposition to lie,
cheat or defraud; untrustworthiness; lack of integrity.” King v. Director, 80 Ark. App. 57,
60, 92 S.W.3d 685, 68687 (2002) (quoting Olson v. Everett, Director, 8 Ark. App. 230, 231,
650 S.W.2d 247, 248 (1983)). A goodfaith belief that an assertion is true and with no intent
to deceive is not adequate grounds for disqualification of benefits under Ark. Code Ann. §
1110514(b). Id.
Appellant argues that his relationship with the victim was consensual and, therefore,
protected under both the federal and Arkansas Constitutions (citing Lawrence v. Texas, 539
U.S. 558 (2003); Swope v. Bratton, 541 F. Supp. 99 (W.D. Ark. 1982); Jegley v. Picado, 349
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Ark. 600, 80 S.W.3d 332 (2002)). However, his argument misses the point. Appellant was
not terminated for having a sexual relationship with the victim on one of his cases; rather,
he was terminated for lying to his employer about the relationship when directly asked about
it. As noted by the Appeals Tribunal, appellant’s denial of the affair could be detrimental
to the prosecution’s case, as his denial of the relationship affects his veracity on the witness
stand. The fact that appellant eventually admitted the relationship does not repair the
damage to his credibility, nor does it make his misstatement less serious. Appellant’s job
required him to be an honest person, and his actions showed an intentional disregard for his
employer’s interests.
The Board’s decision to deny appellant unemployment benefits for misconduct
connected with his work on account of dishonesty is supported by substantial evidence.
Accordingly, we affirm.
Affirmed.
GLADWIN and NEAL, JJ., agree.
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