Marion v. Job Service North Dakota, 900340

• Decision Date: 03 June 1991
• Docket Number: No. 900340,900340
• Citation: 470 N.W.2d 609
• Parties: James MARION, Petitioner and Appellant, v. JOB SERVICE NORTH DAKOTA and Department of Corrections and Rehabilitation, Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 609

470 N.W.2d 609

James MARION, Petitioner and Appellant, v. JOB SERVICE NORTH DAKOTA and Department of Corrections and Rehabilitation, Respondents and Appellees.

Civ. No. 900340.

Supreme Court of North Dakota.

June 3, 1991.

Bair, Brown & Kautzmann, Mandan, for petitioner and appellant; argued by Dwight C.H. Kautzmann.

John J. Fox (argued), Asst. Atty. Gen., Bismarck, for respondents and appellees. Appearance by David E. Clinton, Asst. Atty. Gen.

GIERKE, Justice.

James L. Marion appealed from a district court judgment affirming a decision by Job Service of North Dakota (Job Service) denying Marion's request for unemployment compensation benefits. We affirm.

Marion's employment with the Department of Corrections and Rehabilitation was terminated by the director of that department, effective July 25, 1989. At the time of his discharge, Marion was employed as the Director of Probation and Parole and also served as Clerk to the Pardon and Parole Board.

The reasons for Marion's termination involved his use of confiscated property which was in the department's possession. More specifically, Marion removed a confiscated shotgun from a locker in which it was kept for safekeeping and he and his son used it while hunting during the fall of 1987 and again in 1988. The shotgun remained at Marion's home and was not returned until after an investigation of the incident had commenced. In 1988, Marion also traded confiscated weapons in the department's possession in exchange for jackets to be used by the parole and probation officers in the department. This trade was allegedly unauthorized and in violation of department procedures.

Following his termination, Marion applied for unemployment compensation benefits with Job Service. A claims deputy found that Marion was not entitled to benefits, because Marion was terminated for reasons constituting misconduct in connection with his work. A hearing was then held before Job Service's Chief Appeals Referee. The referee concluded that Marion was entitled to benefits, because the use of the shotgun, although constituting an "incident of poor judgment," did not constitute misconduct for purposes of disqualifying Marion from receiving unemployment benefits. The appeals referee also concluded that there was no evidence in the record to demonstrate that Marion acted improperly in exchanging confiscated weapons for jackets.

The Executive Director of Job Service then reviewed the record, and reversed the referee's decision, concluding that Marion was not entitled to benefits because his use of the shotgun constituted disqualifying misconduct. In reaching his decision, the Executive Director did not refer to, and apparently did not rely upon, the incident involving the exchange of confiscated weapons for jackets. Marion appealed to the district court, which affirmed Job Service's decision denying benefits. Marion then appealed from the district court judgment to this court, and on appeal has raised two issues:

"1. DID THE ACTIONS OF JIM MARION AMOUNT TO MISCONDUCT THAT DISQUALIFIES HIM FROM RECEIVING UNEMPLOYMENT COMPENSATION?

"2. WAS JOB SERVICE JUSTIFIED IN DENYING BENEFITS BECAUSE OF THE CONDUCT IN QUESTION, AFTER ITS CHIEF APPEALS REFEREE HAD DECIDED IN FAVOR OF JAMES MARION?"

The scope of review of administrative agency decisions in this court is governed by Section 28-32-19, N.D.C.C., which provides that the decision of the agency shall be affirmed unless the court finds that one of the following is present:

"1. The decision or determination is not in accordance with the law.

"2. The decision is in violation of the constitutional rights of the appellant.

"3. Provisions of this chapter have not been complied with in the proceedings before the agency.

"4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

"5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

"6. The conclusions and decision of the agency are not supported by its findings of fact."

In reviewing the factual basis of an administrative agency's determinations we do not make independent findings of fact or substitute our judgment for that of the agency, but we determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached by the agency were proved by the weight of the evidence from the entire record. Pickard v. Job Service North Dakota, 422 N.W.2d 409 (N.D.1988).

A person who has been discharged for misconduct in connection with his most recent employment is disqualified from receiving unemployment benefits. Section 52-06-02(2), N.D.C.C. The term "misconduct" is not statutorily defined. However, in Perske v. Job Service North Dakota, 336 N.W.2d 146, 148-149 (N.D.1983), we adopted the following definition of "misconduct" as originally set forth in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941):

" '... 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" within the meaning of the statute.' "

We have most recently declared that the determination of whether a person's actions constitute misconduct, for purposes of determining eligibility for unemployment compensation benefits, involves a...