Plowman v. Copeland, Buhl & Co., Ltd.

• Decision Date: 10 November 1977
• Docket Number: No. 47150,47150
• Parties: Duane J. PLOWMAN, Employee, v. COPELAND, BUHL & CO., LTD., Relator, Commissioner of Department of Employment Services, Respondent.
• Court: Minnesota Supreme Court

Page 581

261 N.W.2d 581

Duane J. PLOWMAN, Employee, v. COPELAND, BUHL & CO., LTD., Relator Commissioner of Department of Employment Services Respondent.

No. 47150.

Supreme Court of Minnesota.

Nov. 10, 1977.

Mannikko & Swenson, Joseph L. Mannikko and Jeffrey W. Lambert, Wayzata, for relator.

Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., Peter C. Andrews, Asst. Atty. Gen., William G. Brown, Sp. Asst. Atty. Gen., St. Paul, for respondent.

Heard before SHERAN, C. J., and YETKA and SCOTT, JJ., and considered and decided by the court en banc.

PER CURIAM.

Certiorari to the Minnesota Department of Employment Services (Department). Employer-relator seeks review of the Department's determination that the claimant-employee was not disqualified for unemployment compensation benefits and that relator's experience rating account should be charged. We affirm.

In May 1975, Duane J. Plowman (claimant) was discharged by Copeland, Buhl & Co., Ltd. (relator), a professional accounting corporation. On July 20, 1975, claimant applied for unemployment compensation benefits. On July 29, 1975, relator informed the Department that claimant was terminated for work related reasons, but it felt its experience rating account should not be charged. Claimant informed the Department that he and relator disagreed over the number of hours worked and over compensation. He further informed the Department that he was terminated for lack of work. Relator responded by agreeing with the first two statements but stated that there was no lack of work.

On November 10, 1975, E. Gaarder, a claims deputy, determined that claimant was not separated from his work for proven willful misconduct and that relator's experience rating account was to be charged. ¹

An appellate hearing was held December 29, 1975, before T. B. Miksza, who took testimony from claimant and Dennis W. Buhl, relator's vice president. His determination was essentially the same as Mr. Gaarder's. He specifically found:

"(2) On May 23, 1975 claimant was discharged from employment because the employer was dissatisfied with claimant's time reports and work performance."

On April 6, 1976, relator appealed the decision to the commissioner of employment services, alleging that claimant was guilty of gross misconduct and that additional wrongdoing had been discovered. ² In a decision dated July 28, 1976, R. E. Kenney, representative of the commissioner, upheld the decision of the appeal tribunal.

The testimony before the appeal tribunal is conflicting. Relator charged that claimant turned in payslips which reflected more time than he actually spent on the job, while claimant denied this.

Claimant was paid an annual base salary of $17,000 and was compensated at an hourly rate of $8.40 for any time in excess of 40 hours per week or 2,080 hours per year. At the end of each month each employee would submit to relator a "payslip" which reflected the total number of compensable hours worked. (Claimant's submitted payslips were not brought to the hearing and thus could not have been introduced into evidence.)

Claimant (and all other employees) also kept daily time records. Claimant testified that the records were for his own purposes and that they did not fully reflect work time which was not billable to specific clients. The timesheet reports were not turned in to relator, but the hours billed to particular clients were determined from the timesheets.

Relator claimed that when it first became aware of the fact that it was not getting as much work from claimant as it had expected, an investigation was begun. In March, Mr. Buhl did a "spot check" of the time the employees spent in the office and claimed to have found some discrepancies in claimant's records. He testified that on the basis of the timesheets and slips, Mr. James W. Copeland, relator's president, estimated that there were 118 hours unaccounted for by claimant.

Claimant stated that there was a dispute over hours and that he was told he was not productive enough. There was also testimony from both Buhl and claimant that there was dissatisfaction with the type of work assigned to claimant.

At no time was claimant ever told that relator felt he was deliberately submitting excessive payslips. Claimant specifically denied that he charged any extra time to the firm.

The timesheets kept by claimant were discussed and summarized at the hearing. They were never marked as exhibits, never offered into evidence, and are not a part of the record submitted by the Department pursuant to the writ of certiorari.

The issues before us are:

(1) May we consider documents which were seen by an administrative hearing officer, but which were neither formally offered into evidence nor transmitted as part of the record for review?

(2) Did the evidence support the findings and decision of the Department of Employment Services that claimant was involuntarily separated from his employment for reasons other than misconduct?

1. Documents not introduced into evidence.

The issue of whether the documents should be considered by this court was raised in prehearing motions by relator and the Department and was renewed in the briefs.

The documents which relator contends were erroneously excluded from the record consist of timesheets kept by claimant for the months of January through April 1975; relator's record of its spot check of hours spent by claimant in the office for a 14-day period; and a calculation, made by relator, of the discrepancies between the timesheets and payslips submitted by claimant. Although relator argues in its brief that the documents were offered as exhibits at a portion of the initial proceedings, the transcript does not indicate this to be the case. The only evidence for this claim is the affidavit of Dennis W. Buhl submitted in support of the motion for remand.

It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered. Moose v. Vesey, 225 Minn. 64, 29 N.W.2d 649 (1947); Holtberg v. Bommersbach, 235 Minn. 553, 51 N.W.2d 586 (1952); 5 C.J.S., Appeal and Error, § 1522.

There are exceptions to this rule, however. In Mattfeld v. Nester, 226 Minn. 106, 32 N.W.2d 291 (1948), we upheld a trial court's postverdict reception of a certified copy of letters of special administration in a wrongful death action. There this court said:

"Although the power of appellate courts is more circumscribed * * * by the rule that an appeal must be decided solely upon the evidence produced in the trial court and shown by the record on appeal, appellate courts, in order to sustain verdicts and judgments, will permit omissions to be supplied by documentary evidence of a conclusive nature." 226 Minn. 123, 32 N.W.2d 303 (Italics supplied.)

In Moose v. Vesey, supra, this court refused to consider evidence of a plat not received in evidence in a zoning case where the plat was inconclusive and controvertible and where it would have been received for the purpose of granting a reversal.

In Crystal Beach Bay Assn. v. Koochiching County, Minn., 243 N.W.2d 40 (1976), we went outside the record of proceedings of the county board to uphold the granting of a conditional-use permit. We relied upon detailed findings of another administrative agency, adopted after public hearings at which the appellant participated. ³

The documents presented by relator in its motion for remand are neither conclusive nor uncontroverted. Their meaning was disputed at the appeal tribunal hearing and, except for the self-serving comparison of payslip hours and hours shown on the timesheet, they explain little standing alone. They do not meet the limited criteria for appellate admission of evidence as set out above. In addition to their inconclusive nature, they are offered for the purpose of reversal, not affirmance, and this court, in Mattfeld v. Nester, supra, indicated that production of record evidence is never allowed in an appellate court for the purpose of reversing a judgment.

Rule 110.01, Rules of Civil Appellate Procedure, states:

"The papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases." (Italics supplied.)

This rule is made applicable to the present case by Rule 115.04, Rules of Civil Appellate Procedure.

Relator argues, in effect, that the exhibits were offered but that the appeal tribunal "failed to receive, accept, and mark as evidence, certain exhibits submitted by the Employer." If the proceedings below were before a trial court proceedings and relator had been represented by counsel, the argument would be without merit since there is no indication in the transcript that the exhibits were marked, offered, or rejected. However, relator was not represented by counsel at the appeal tribunal, and an administrative hearing differs from a trial court in its degree of formal adherence to evidentiary rules. See, Minn. St. 268.10, subd. 6; Pichler v. Alter Co., 307 Minn. 522, 240 N.W.2d 328 (1976); ...