Clearfield City v. Department of Employment Sec.

Decision Date30 March 1983
Docket NumberNo. 18388,18388
Citation663 P.2d 440
PartiesCLEARFIELD CITY, a Municipal Corporation of the State of Utah, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY, Industrial Commission of Utah, and Benjamin R. Rendon, Defendants.
CourtUtah Supreme Court

Alfred C. Van Wagenen, Clearfield, for plaintiff.

David L. Wilkinson, Atty. Gen., Floyd G. Astin, K. Allan Zabel, Salt Lake City, for defendants.

OAKS, Justice:

This action to review a decision of the Board of Review of the Department of Employment Security turns on the meaning of a 1979 amendment to U.C.A., 1953, § 35-4-5(b)(1), relating to eligibility after a discharge for misconduct.

Since the original enactment of the Employment Security Act in 1941, an employee has been ineligible for unemployment compensation benefits when "discharged for misconduct connected with his work ...." 1941 Utah Laws, ch. 40, § 5. Such provisions are common. See generally 76 Am.Jur.2d Unemployment Compensation §§ 52-58 (1975); Annot. 89 A.L.R.2d 1089 (1963). In Continental Oil Co. v. Board of Review, Utah, 568 P.2d 727 (1977), we construed this provision for the first time and held that it did not make ineligible a salesman who was discharged for driving under the influence of alcohol because that conduct, while it amounted to indifference or disregard of duty, lacked the "element of wilfulness, or wantonness, or equal culpability" necessary to a finding of "misconduct." Id. at 731.

In 1979, our Legislature expanded the provision on ineligibility for misconduct, in effect providing a statutory definition of that term. Under the heading of "discharge for misconduct," the amended statute makes an employee ineligible for unemployment compensation benefits for a specified period of time when

the claimant was discharged for an act or omission in connection with employment, not constituting a crime, which is deliberate, willful, or wanton and adverse to the employer's rightful interest ....

U.C.A., 1953, § 35-4-5(b)(1).

This appeal provides our first opportunity to construe this new amendment. The facts are undisputed. The only issue is the meaning and application of the statute as it relates to eligibility for unemployment compensation. The claimant does not deny that his employer had cause to discharge him. But it is clear that not every cause for discharge provides a basis to deny eligibility for unemployment compensation.

1. The Facts.

The plaintiff city employed the individual respondent as a police sergeant. He also worked as a part-time counselor at the Clearfield Job Corps Center, which is located in the city. On the evening of September 25, 1981, in an office at the Job Corps Center, the officer engaged in an act of sodomy with a 22-year-old female student at the Center. Several other Job Corps students observed the act. Three days later, he was discharged from his part-time employment at the Center. The incident was widely publicized in the community. When his police and city supervisors questioned him about the incident, the officer denied that it had occurred and claimed that he was being "set up." Later, following a polygraph examination on October 20, he admitted that the act had occurred.

The officer was charged with the crime of sodomy. U.C.A., 1953, § 76-5-403. On November 13, the chief of police made a written request for his resignation, stating that his conduct with the woman had brought embarrassment to the police department and to law enforcement in general and had greatly jeopardized his effectiveness as a police officer. The officer resigned, effective November 23. About a month later, a circuit court jury acquitted him of the crime of sodomy.

On November 25, 1981, the officer filed a claim for unemployment compensation benefits. The Department representative allowed the claim, and he received $166 weekly benefits totalling $1,162. The appeal referee reversed, disallowing the benefits upon his conclusion that the admitted circumstances of discharge were such that § 35-4-5(b)(1) disqualified the officer from benefits. 1 On appeal, the Board of Review, splitting 2-1, reversed the referee and held the officer entitled to the benefits. The majority reasoned as follows:

[T]he act for which the claimant was fired took place while the claimant was off duty as a police officer. There is evidence that the claimant was fired more because of his initial denial that the act had occurred rather than because of the act itself. The evidence is insufficient to establish that the claimant intended to cause harm to his employer or that his act was an intentional disregard of the employer's rightful interests. Of lesser importance is the fact that the claimant was not found guilty by the jury in his trial under the criminal charges resulting from this act. Not only were the parties consenting adults but the record indicates that the claimant may have been "set up." Although the claimant's actions were unlawful, there is a distinction between momentarily succumbing to physical emotion as compared to premeditated criminal activity. Under these circumstances the Board of Review holds that the claimant's actions did not meet that degree of culpability required for disqualification under the Utah Employment Security Act. [Emphasis added.]

Member Darcie H. White dissented in an opinion which noted that the act the officer admitted was not only unlawful but was further reprehensible because it was committed while he was on duty as a counselor at the Job Corps Center, where he had counseled the male students to leave the girls alone. The dissent continues:

The claimant then further compounded his error and destroyed his credibility as a police officer by denying to his superior officer, the Police Chief, that the activity had actually taken place. In the sensitive area of law enforcement a police officer's reputation of high moral character and his credibility as a witness in his frequent appearances in the courts of law are essential to his effective performance of his duty.... Under these circumstances I find that the claimant's actions were sufficiently culpable and adverse to the employer's rightful interests to invoke a disqualification under Section 35-4-5(b)(1) of the Utah Employment Security Act. [Emphasis added.]

For the reasons explained below, we agree with the position of the dissent, and reverse the Board of Review.

Section 35-4-5(b)(1), quoted above, provides that a claimant "discharged for misconduct" will be ineligible for unemployment compensation when three requirements are fulfilled: the claimant was (1) "discharged for an act or omission in connection with employment," which was (2) "deliberate, willful, or wanton," and (3) "adverse to the employer's rightful interest." The majority of the Board of Review apparently rested its decision upon the absence of the second requirement, which it called the "degree of culpability." The Board of Review apparently did not deny that the other two requirements were fulfilled, but we will still discuss them as background for our review of the contested one. 2

2. Connection with Employment.

States with similar statutes have held that "connection with employment" is not limited to misconduct "which occurred during the hours of employment and on the employer's premises." Employment Security Board v. LeCates, 218 Md. 202, 210, 145 A.2d 840, 845 (1958). Accord : O'Neal v. Employment Security Agency, 89 Idaho 313, 319, 404 P.2d 600, 603 (1965); Nevel v. Commonwealth, Unemployment Compensation Board of Review, 32 Pa.Commw. 6, 377 A.2d 1045, 1047 (1977); Gregory v. Anderson, 14 Wis.2d 130, 136-37, 109 N.W.2d 675, 679 (1961), noted in 1962 Wis.L.Rev. 392. It is only necessary that the misconduct have such "connection" to the employee's duties and to the employer's business that it is a subject of legitimate and significant concern to the employer.

The foregoing principle has been applied to deny unemployment benefits to employees discharged for off-duty behavior analogous to the acts involved in this case. In O'Neal, a postal worker was charged with an act of lewdness with a minor child. There the court cited a postal regulation forbidding immoral or notoriously disgraceful conduct, observed that the employee's conduct was "closely connected with the business interests of the employer," and concluded that a public or private employer "has the right to expect his employees to refrain from acts which would bring dishonor on the business name or the institution." 89 Idaho at 319, 404 P.2d at 603-04. In Nevel, which involved liquor law violations by a state liquor agency employee, the court relied on the fact that the claimant had "deliberately disregarded a statute which his employer had the affirmative duty to administer and enforce." 377 A.2d at 1047. In Gregory, a truck driver who violated an employer's rule against drinking while off duty was held ineligible for benefits. In addition to the foregoing precedents, which are relevant to the "connection" between the officer's employment and his off-duty act of sodomy, the false denial he gave his supervisors was of course given in the direct course of his employment.

3. Adverse to Employer's Interest.

The act of sodomy violated the laws the officer and his employer had a sworn duty to uphold and enforce. It occurred within the limits of the city where he was on call 24 hours a day as a police officer. It was also a violation of the terms of his part-time employment, which resulted in his discharge by an institution with which he would be obliged to work in his capacity as an officer. He first denied the act and then admitted it. This entire course of events was a matter of public notoriety in the city, and, as the dissenting opinion of member White observed, would surely have a significant adverse effect upon the officer's credibility as a police officer and as...

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