Safety Medical Services, Inc. v. Employment Sec. Com'n of Wyoming

• Decision Date: 05 September 1986
• Docket Number: No. 86-52,86-52
• Citation: 724 P.2d 468
• Parties: SAFETY MEDICAL SERVICES, INC., Appellant (Petitioner), v. EMPLOYMENT SECURITY COMMISSION OF WYOMING, Appellee (Respondent), Margo Green, (Respondent).
• Court: Wyoming Supreme Court

Page 468

724 P.2d 468

SAFETY MEDICAL SERVICES, INC., Appellant (Petitioner), v. EMPLOYMENT SECURITY COMMISSION OF WYOMING, Appellee (Respondent) Margo Green, (Respondent).

No. 86-52.

Supreme Court of Wyoming.

Sept. 5, 1986.

C. Robert Klus, Jr., Gillette, for appellant.

Karen A. Byrne, Asst. Atty. Gen., Casper, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

Employer appealed to the district court from the decision of the Wyoming Employment Security Commission (Commission) to award unemployment compensation to discharged employee Margo Green, and the appeal was certified directly to this court under Rule 12.09, W.R.A.P. The employer, Safety Medical Services, Inc. (SMS), challenges the Commission's decision that Green was not discharged from employment for work-related misconduct pursuant to § 27-3-311(c), W.S.1977, and also challenges district court utilization of our administrative agency direct-certification appeal process. Finding that the administrative agency's decision was based on substantial evidence in accord with a generally established agency rule and that certification was proper, we affirm.

The issues on appeal are:

I. Did the district court abuse its discretion in certifying this case to the Wyoming Supreme Court?

II. Is the Commission's decision to award benefits unsupported by substantial evidence, and/or is the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law?

The substantive issue is validity of the agency's definition of work-related misconduct and whether it was properly applied to the facts of this case, raising both rule and use legitimacy. Conversely, the principle presented is whether unintended or accidental work rule violation with consequent discharge constitutes statutory misconduct for denial of unemployment-benefit payment.

FACTS

Green was employed by SMS as an emergency medical technician and security guard from July 23, 1984 to April 8, 1985. The company's basis for terminating her employment was an incident involving alleged company rule violation. That incident occurred in 1985, when Green and Nulle, a senior co-worker, reported for work at a coal mine facility where SMS provided security and medical services. They arrived at 3:30 p.m. for a shift beginning at 4:00 p.m., relieving employees on the prior shift who left early. Nulle conducted the check-out of departing mine employees, while Green left the guard shack to perform a routine ambulance inspection.

A mine employee, Ingram, entered the guard shack and told Nulle that he was going to take his (Ingram's) wife on a tour of the mine. Nulle started to assist Ingram, but Nulle became occupied with other duties. Green, who had returned to the guard shack, took over assisting Ingram. Green asked Ingram if his wife had received required safety gear, and when informed that she had not, furnished that equipment. Ingram then left the guard shack and drove with his wife up to the change house which sits on the mine site just past the guard shack. Because the vehicle they intended to use was unavailable, the Ingrams never toured the mine site but, instead, within 10 or 15 minutes left the jobsite.

After Ingram left the guard shack, Green asked Nulle if they should have logged in Mrs. Ingram. Nulle answered that he believed employee's wives were handled differently from other persons touring the mine. Because of past practices of the company, Nulle thought that employees' wives were not required to follow the same log-in procedures as others, but he was uncertain as to the correct procedures to apply in this situation. Nulle and Green then searched SMS' Policy and Procedure Manual, and the pass-along book, ¹ to ascertain the log-in requirement. They did not, however, find a definitive policy regarding tours by employees' spouses.

Later, Nulle found two pass-alongs in the outdated file ² which, without specifically addressing employees' spouses, seemed to indicate that Mrs. Ingram should have been logged in. The first pass-along, dated July 3, 1984, informed employees of the new "Assumption of Risk and Waiver of Liability" clause on the back of the safety certification check list. This pass-along stated: "It is now necessary to have all visitors to the mine site flip the sheet over and read and sign the reverse of the form." (Emphasis added.) The second pass-along, dated July 11, 1984, stated: "Everyone on a tour must sign a safety certification check list and [issue] the necessary safety equipment." Nulle and Green had initialed both memoranda to show that each had read them. SMS asserts that Green's failure to log in Mrs. Ingram and obtain her signature on the liability waiver form was misconduct even though no tour of the facility ever occurred or risk of liability to the mine company was created.

The president of SMS, while reviewing the day's records, discovered the Ingrams' tour approval form, and noticed that the logs were not appropriately signed. He spoke with Nulle and put him on 90-days probation for failing to inform management of the incident. When the project site manager mentioned the incident to Green she could not recall the incident, but said that if she had done anything wrong she was sorry and would not do it again. However, two days later, Green was informed that her employment was terminated.

ISSUE I

After the Commission affirmed a hearing examiner's contested trial finding that Green was eligible for unemployment benefits, SMS petitioned for judicial review by the district court, and the Commission asked the district court for certification to the Wyoming Supreme Court. Following receipt of memoranda and a hearing on that issue, the district court directly certified the case to this court, and the appeal comes to us on the factual record developed by the hearing examiner.

SMS contends that the district court should not have certified this case to the Supreme Court because it does not present a novel legal or constitutional issue and because it requires no construction of a statute. Rule 12.09, W.R.A.P. provides in part:

"If after such review [of the record], the district court concludes the matter to be appropriate for determination by the Supreme Court, the district court may certify the case to the Supreme Court."

This rule does not require that any particular criteria be considered before certification is proper: a case need not present a novel or complex legal issue, a question of constitutionality, nor invoke construction of a statute. The rule leaves the question of certification to the trial court's discretion without reference to the criteria appellant seeks to impose. Beddow v. Employment Security Commission of Wyoming, Wyo., 718 P.2d 12, 13 n. 1 (1986).

This case does, however, involve construction of a statute. Section 27-3-311(c), W.S.1977, provides:

"An individual shall be disqualified from benefit entitlement and shall forfeit all accrued benefits if he was discharged from his most recent work because of misconduct connected with his work * * *."

The appeal centers around the Commission's interpretation of the word "misconduct." There are no Wyoming decisions defining misconduct for purposes of the Employment Security law. Because the Commission is in a position where it has to defend its actions in every district court in Wyoming it is desirable that this court construe the statute to provide the district courts with uniform guidance as to what constitutes misconduct. Therefore, although a question of statutory construction is not required for proper certification, the existence of such a question supports the trial court's decision to certify.

Appellant further asserts that Rule 12.09, W.R.A.P. requires the district court to review not only the record, but also the parties' briefs in determining the appropriateness of the case for certification. Appellant's position is clearly contrary to the direct language of the rule:

"The review shall be * * * confined to the record * * * and to the issues raised before the agency."

Rule 12.09 neither requires the trial court to review the briefs nor imposes any other specific requirement for certification. The present rule and procedural system encompasses a screening process by the district court rather than the certiorari process observed by the supreme courts of many states. Any evaluative criteria would involve appellate expediency and judicial efficiency. Obviously what can be settled in the district court should be.

SMS argues that the Commission would not have standing to appeal an adverse decision from the district court and that therefore the Commission's request for certification to the Supreme Court is also inappropriate. SMS relies on § 16-3-115, W.S.1977 of the Wyoming Administrative Procedure Act, which provides:

"An aggrieved party may obtain a review of any final judgment of the district court under this act * * * by appeal to the supreme court."

See also Rule 12.11(a), W.R.A.P. SMS reasons that the Commission would not be an aggrieved party because it does not have a substantial, immediate and pecuniary interest in the case. In the matter of Various Water Rights in Lake DeSmet v. Texaco, Inc., Wyo., 623 P.2d 764 (1981).

To the contrary, the Commission would have standing to appeal to the Supreme Court even if the district court originally had decided to hear the appeal and then reversed the Commission's decision on the merits. An agency adversely affected by the decision of a district court is aggrieved and is entitled to appeal to this court. An agency is also a party as that term is defined in the Wyoming Administrative Procedure Act, § 16-3-101(b)(vi), W.S.1977. SMS would have this court adopt an approach to administrative review which would make the district courts the final arbiters of decisions adverse to state agencies but would allow individuals to obtain Supreme Court review of district court decisions...