Feagin v. Everett, E

• Decision Date: 29 June 1983
• Docket Number: No. E,E
• Citation: 9 Ark.App. 59,652 S.W.2d 839
• Parties: , 12 Ed. Law Rep. 570 Jacqueline FEAGIN, Appellant, v. William F. EVERETT, Director of Labor, and Flippin Schools, Appellees. 82-272.
• Court: Arkansas Court of Appeals

Page 839

652 S.W.2d 839

9 Ark.App. 59, 12 Ed. Law Rep. 570

Jacqueline FEAGIN, Appellant, v. William F. EVERETT, Director of Labor, and Flippin Schools, Appellees.

No. E 82-272.

Court of Appeals of Arkansas.

June 29, 1983.

Ron Heller, Kaplan, Hollingsworth & Brewer, P.A., Little Rock, for appellant.

Bruce Bokony, Little Rock, for William Everett.

CORBIN, Judge.

This appeal is from a decision of the Board of Review disqualifying appellant from receiving unemployment compensation benefits pursuant to Ark.Stat.Ann. § 81-1106(b)(1) (Repl.1976). The Board held that appellant was guilty of misconduct in connection with the work based on a finding that appellant knowingly engaged in a course of conduct which was in violation of the ethical and moral standards to which the employer had a right to expect and that her actions were a willful disregard of the employer's best interest within the meaning of the above-cited statute.

Appellant was employed by the Flippin School District as a teacher. On January 16, 1982, appellant's husband was injured in a one-car automobile accident. After appellant's husband was taken to the hospital, members of the Marion County Sheriff's Department went to the accident scene to investigate and to insure that no other person had been injured. During the investigation, the sheriff's deputies found hashish in and around the car. They returned to the hospital where appellant and her husband were questioned by the Sheriff's Office, at which time appellant consented to a search of their home. As a result of the search, the sheriff's deputies found drug paraphernalia, marijuana, and hash oil.

On Monday, January 18, 1982, appellant called the principal of the school and told him that she would not be at school because her husband was in the hospital. Later that day appellant and her husband were charged with possession of a controlled substance. News of the arrest was carried on local radio programs and in newspaper reports. On January 21, appellant was notified by the superintendent that she was suspended with pay. On March 11, 1982, a school board hearing was held and appellant's teaching contract was terminated.

On March 18, appellant filed a claim for unemployment compensation benefits which was denied by the agency on April 8. Appellant appealed and two Appeals Tribunal hearings were held. The appeals referee reversed the agency and found that appellant had been discharged for reasons other than misconduct in connection with the work. The employer appealed that decision to the Board of Review and the Board reversed the appeal referee's decision and denied benefits under the provisions of Ark.Stat.Ann. § 81-1106(b)(1) (Repl.1976). It is from that decision that appellant takes this appeal.

Appellant argues on appeal that the decision of the Board of Review that she was discharged because of misconduct connected with her work is not supported by substantial evidence.

On appellate review the findings of fact of the Board of Review are conclusive if supported by substantial evidence, and we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its result upon the evidence before it, and a review court is not privileged to substitute its findings for those of the Board even though the court might have reached a different conclusion if it had made the original determination upon the same evidence. Hodnett v. Daniels, 271 Ark. 479, 609 S.W.2d 122 (Ark.App.1980).

Ark.Stat.Ann. § 81-1106(b)(1) (Repl.1976) provides:

... [A]n individual shall be disqualified for benefits: (1) If he is discharged from his last work for misconduct in connection with the work.

This court has on many occasions construed the term "misconduct". In Nibco, Inc. v. Metcalf, et al., 1 Ark.App. 114, 613 S.W.2d 612 (1981), this court abstracted pertinent decisions dealing with the term "misconduct" and summarized those decisions as follows:

And while the language used is not exactly the same in each case, they say that misconduct involves: (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, and (4) disregard of the employee's duties and obligations to his employer.

To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.

Whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance, is a question of fact for the Board of Review to determine. Arlington Hotel v. Employment Security Division, 3 Ark.App. 281, 625 S.W.2d 551 (1981).

Appellant argues that her conduct, as a matter of law, cannot be said to amount to misconduct because: (1) she was acquitted of criminal charges, (2) she did not admit to the use of marijuana until the time of her criminal trial, thus, she could not have been discharged on the grounds of this statement and, (3) she had no control over the amount or type of publicity that arose from her arrest and thus her actions could not be said to be willful or intentional.

As to appellant's first point above, this court has recently held in Lakeside School v. Harrington, 8 Ark.App. 205, 649 S.W.2d 847 (1983), that "[t]he disposition of criminal charges is a factor which the Board may consider in determining whether a worker's actions constituted 'misconduct in connection with the work', but it does not decide the issue." In Food Fair Stores, Inc. v. Commonwealth of Pennsylvania, 11 Pa.Cmwlth. 535, 314 A.2d 528 (1974), the court held that the employee was guilty of willful misconduct precluding unemployment compensation benefits even though he was acquitted of criminal charges arising out of the activity which brought about his discharge.

Appellant's contention that her admission to the use of marijuana during her criminal trial could have no bearing on her discharge since it was made after her discharge, is without merit. There is no evidence that her admission to the use of marijuana was the basis for her discharge, but instead, the basis of her discharge was her involvement with illegal drugs which brought about her arrest and the related publicity which rendered her ineffective as a classroom teacher.

Appellant's argument that her acts were not willful because she had no control over her personal life becoming a matter of public knowledge is not determinative. Through the course of events, her conduct did become a matter of public knowledge and interest and appellant knew or should have known that her conduct, if and when it became known, would be against her employer's best interest. Moreover, we reiterate, "whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance is a question of fact for the Board of Review to determine." Arlington Hotel v. Employment Security Division, et al., supra.

We hold that the Board of Review's decision that appellant's conduct constituted misconduct is supported by substantial evidence.

As stated above, the principle of what constitutes "misconduct" under Ark.Stat.Ann. § 81-1106(b)(1) has been construed by this Court on many occasions and is relatively well-settled. Less settled is what constitutes "misconduct in connection with the work " when the actions purporting to constitute misconduct occur while a claimant is off-duty and not on the employer's premises, which is the question presented in the case at bar.

Statutes are to be construed with reference to the public policy which they are designed to accomplish. Ark. Tax Commission v. Crittenden County, 183 Ark. 738, 38 S.W.2d 318 (1931); Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977). The declaration of state public policy as applied to our Employment Security Act, codified at Ark.Stat.Ann. § 81-1101 (Repl.1976), provides in pertinent part:

The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. (Emphasis ours.)

As the Supreme Court stated in Little Rock Furniture Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S.W.2d 56 (1957), our Employment Security Act must be given an interpretation in keeping with the declaration of state policy. The intent of the Arkansas Legislature controls the construction of our Unemployment Security laws. We believe that the legislature did not intend to limit misconduct connected with the employee's work to misconduct which occurred only during the hours of employment and on the employer's premises. If it had, the language used in Ark. Stat.Ann. § 81-1106(b)(1) (Repl.1976), would have undoubtedly expressed that intent.

Although this is a case of first impression in Arkansas, several other jurisdictions have considered the issues raised in off-duty misconduct cases and have construed statutory language identical to that contained in Ark. Stat.Ann. §...