Macey v. State, Dept. of Employment Sec.

Citation110 Wn.2d 308,752 P.2d 372
Decision Date31 March 1988
Docket NumberNo. 53824-7,53824-7
PartiesSteven MACEY, Petitioner/Appellant, v. STATE of Washington, DEPARTMENT OF EMPLOYMENT SECURITY, Respondent.
CourtUnited States State Supreme Court of Washington

Evergreen Legal Services, Greg Bass, Longview, for petitioner/appellant.

Kenneth Eikenberry, Atty. Gen., John M. Sells, Shirley Wilson, Asst. Attys. Gen., Olympia, for respondent.

BRACHTENBACH, Justice.

Appellant challenges the denial of unemployment compensation. The Employment Security Department (ESD), by a determination notice, denied benefits on the basis that appellant had been discharged for This case arises from appellant's false answer to a question on his written application for employment by Reynolds Metal Company. The question asked was:

                misconduct connected with his work, a disqualification provided for by RCW 50.20.060(1).   On appeal, an administrative law judge upheld the denial.   That denial was affirmed by the Commissioner of the ESD.   The Commissioner's decision was upheld by the Superior Court.   We affirm
                

Have you ever been convicted of any violation of the law for which the date of conviction or prison release, whichever is more recent, is within the last seven years (other than minor traffic offenses)? ______ Yes ______ No. If yes, give details. A conviction record will not necessarily bar an applicant from employment.

Appellant checked the "No" box. The application was made in September 1979. In fact, in 1975 appellant had been convicted of burglary, had his probation revoked, had served prison time, and at the time of his application was on parole.

The application form provided that the applicant certified that all statements made were true and that misrepresentation or falsification of any information shall constitute grounds for denying employment or discharge.

Appellant worked for Reynolds from September 1979 until his discharge on June 7, 1985, although during that time he was off work for some months as a result of an industrial injury. His worker's compensation claim was disputed by Reynolds; the record does not contain any of the record of that proceeding.

The only relevance of the workers' compensation claim is appellant's contention, unsupported by the record, that the claim may have been the true cause of his discharge. The fact finder did not draw that inference; the record would not support such a finding.

Appellant's falsification was not discovered until April 1985. The discovery of appellant's conviction resulted from the employer's investigation of appellant's application for Before considering the issues, we note a serious deficiency in appellant's brief which would justify dismissal of the appeal. Appellant assigns error to a finding of fact and a conclusion of law made by the administrative law judge. The finding and conclusion are nowhere set out in appellant's brief. This violates RAP 10.4(c). The necessity for the rule is obvious; its rationale has been frequently called to the attention of the bar. In Thomas v. French, 99 Wash.2d 95, 101, 659 P.2d 1097 (1983), we refused to consider jury instructions when appellant failed to comply with RAP 10.4(c). See also Arnold v. Laird, 94 Wash.2d 867, 621 P.2d 138 (1980); State v. Jones, 95 Wash.2d 616, 620 n. 1, 628 P.2d 472 (1981); Morris v. Woodside, 101 Wash.2d 812, 815, 682 P.2d 905 (1984). Appellant's two assignments of error to conclusions of law by the trial court are likewise not in compliance. These latter deficiencies are not material since the assignments of error are wholly irrelevant. Our review is on the record of the administrative tribunal, not of the superior court. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 323-24, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954, (1983). Finally, the assignment of error to the decision of the Commissioner also fails to comply with RAP 10.4(c).

                unemployment compensation which was denied for materially false information provided by appellant.   That application was separate from the one here concerned and is not at issue on this appeal.   After investigation appellant was suspended on May 31 pending a hearing with his employer
                

As pointed out in Thomas v. French, supra, and Morris v. Woodside, supra, this failure to comply with RAP 10.4(c) denies the members of the court, prior to oral argument, the very materials upon which appellant relies to assert error. While these fundamental deficiencies would justify refusal to even consider this appeal, we do go to the merits in order to settle the main issue, which is in a state of confusion. By so doing we do not indicate that this opinion hereafter will be authority for excusing failure to comply with applicable RAP's.

The main issue is whether appellant's false answer in his employment application constituted "misconduct connected with his ... work" thereby disqualifying him from unemployment benefits pursuant to RCW 50.20.060(1).

The parties raise preliminary questions as to the standard of review. Appellant apparently contends that the case presents a mixed question of fact and law and should be reviewed under the "error of law" standard. The ESD urges that factual findings are reviewable under the clearly erroneous and arbitrary and capricious standards.

The controlling statute, RCW 34.04.130(6), authorizes reversal of the administrative decision "if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are", among others, "(d) affected by other error of law; or (e) clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or (f) arbitrary or capricious." In the present case, RCW 50.32.120 authorizes review of the Commissioner's decision "only in accordance with the procedural requirements of RCW 34.04.130."

The language of RCW 34.04.130 on its face is directed toward trial court review, e.g., subsection .130(2) (filing a petition in superior court), subsection .130(5) (review by the court without a jury or permitting in certain instances additional testimony). However, we have held that appellate courts are in the same position as trial courts in reviewing administrative agency decisions. Farm Supply Distribs., Inc. v. Utilities & Transp. Comm'n, 83 Wash.2d 446, 448, 518 P.2d 1237 (1974).

Part of the review problem is that RCW 34.04.130 "does not even hint at when one test should be chosen over another." See Abrahams, Scope of Review of Administrative Action in Washington: A Proposal, 14 Gonz.L.Rev. 75, 85 (1978). In Franklin Cy. Sheriff's Office v. Sellers, supra, however, we clarified the standards of review. Review is on the entire record. Factual questions in this context are reviewed under the clearly erroneous test. We Applying these standards to this case, we do not review de novo the finding that falsification of the job application was the sole reason for appellant's discharge. Appellant would have us try anew this question of fact and draw inferences contrary to those inferences drawn and findings found by the Commissioner based upon the findings of the administrative law judge. Moreover, this record precludes a conclusion that the factual findings were clearly erroneous; thus, the factual determination is established that appellant was discharged for falsification of his job application answer which denied that he had been convicted of a felony.

                will not try facts de novo on review.   Issues of law are reviewed under the error of law standard of RCW 34.04.130(6)(d) which allows the reviewing court to substitute its judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law if it falls within its expertise in that special field of law.   Earlier confusion as to review of what have been characterized as mixed questions of law and fact was dispelled by  Franklin Cy., 97 Wash.2d at 329, 646 P.2d 113.   We said:  "By mixed questions of law and fact we are really referring not to the facts themselves, nor the law governing the situation, but to the law as applied to those facts."
                

The remaining, and primary, issue is one of law, i.e., what is the legal meaning of "misconduct" which we apply to the facts as found by the ESD and upheld on our review?

Since 1935 the unemployment compensation acts have provided for disqualification for benefits to one discharged for "misconduct connected with [his or her] employment". Laws of 1935, ch. 145, § 7(6); Laws of 1937, ch. 162, § 5(b); Laws of 1945, ch. 35, § 74; RCW 50.20.060. The word "misconduct" has never been defined by the Legislature. As discussed hereafter, one opinion by this court and a number of decisions of the Court of Appeals have formulated differing, and sometimes conflicting, standards for determining whether there was disqualifying misconduct. This is the We first review decisions of the Court of Appeals. In Willard v. Employment Sec. Dep't, 10 Wash.App. 437, 517 P.2d 973 (1974) Division One adopted the definition of misconduct from the oft-cited case of Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). Levold v. Department of Empl. Sec., 24 Wash.App. 472, 604 P.2d 175 (1979).

                first Washington case which must construe "misconduct" in the context of a false answer on a job application.   The earlier cases have involved on-the-job activities, and, in one, conduct off the job.   The factual contexts are important and are relevant to the appropriate test in a particular case
                

A different formulation arose from Division Two's opinion in Durham v. Department of Empl. Sec., 31 Wash.App. 675, 644 P.2d 154 (1982). It found the following four guidelines to be appropriate:

1. The employer's order must have been reasonable.

2. The employee's disobedience must have been intentional.

3. The consequences...

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