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Wernke v. State3/17/1999
of adequate grounds for disqualifying him from receiving unemployment insurance benefits. The ALJ committed error as a matter of law.
[ ] The decision of the trial court is reversed and remanded and the trial court shall reverse and remand the Department's decision with instructions to allow Claimant's claim for benefits.
[ ] SABERS, and AMUNDSON, Justices, concur.
[ ] GILBERTSON, and KONENKAMP, Justices, Dissent.
[ ] TAPPE, Circuit Judge, for MILLER, Chief Justice, disqualified.
GILBERTSON, Justice (dissenting).
[ ] I respectfully Dissent. I would affirm the circuit court. I conclude that Claimant was properly denied unemployment benefits pursuant to SDCL 61-6-14.1 for employee misconduct. The Majority is in error when it concludes: (1) there was no evidence or finding that the conduct was violative of some code of behavior, and; (2) there was no evidence Claimant's conduct results in some harm to the Employer's interest.
[ ] As will be established, Claimant violated the following provisions of SDCL 61-6-14.1:
"(1) Failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; or
"(2) Substantial disregard of the employer's interests or of the employee's duties and obligations to his employer; or
"(3) Conduct evincing such willful or wanton disregard of a employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of the employee; ..."
As found by the ALJ, Claimant's conduct clearly did not fall within a "good faith error in judgment" as argued by Claimant:
"Claimant knew and understood that he was not to socialize with clients. On August 5, 1997, in the early evening, he asks the client's son if his mom is at home. The son does not know, so Claimant goes to the client's home. She is not there, so he leaves her a note directing her to call him at a motel. When she calls him, he asks her out for a drink. She declines, but he does not give up. He asks her out for a drink the following night and she declines again. Claimant argues that he was only concerned about the client's basement because she was having drainage problems. However, Claimant's area of expertise is weatherization, not drainage. Claimant's argument is not credible in light of the facts. If he was concerned about the client's drainage problems, he could have called her during normal business hours. He did not have to visit her house, leave her a note directing her to call him at a motel, or ask her out for drinks. Claimant's conduct bothered the client to such an extent that she reported him to Employer. This is not a good faith error in judgment. Claimant substantially disregarded Employer's interests." (emphasis added).
[ ] The ALJ found, " laimant knew and understood that he was not to socialize with clients." As determined by the ALJ, the reasons and importance for this prohibition are two-fold: (1) clients tend to be vulnerable people, and (2) "socializing can create liability problems for Employer."
[ ] The importance of protecting clientele seeking assistance for their homes was underscored by Abbie Rathbun, a Department Administrator, who investigated Claimant's actions and participated in the decision to terminate him for misconduct:
"I do believe that it [the DSS policy] is important, and it is due to the nature of the circumstances that, that they become clients of the department in the first place. They are in many cases very vulnerable. They have low esteem and they would be more apt to be subject to
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