Opinion
No. C7-99-851.
Filed November 30, 1999.
Appeal from the Department of Economic Security, File No. 7789UC98.
Celeste E. Culberth, (for relator)
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Anoka County Government Center, (for respondent county)
Kent E. Todd, Department of Economic Security, (for respondent commissioner)
Considered and decided by Short, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
For 10 years, Roger L. Hanson worked as a parking ramp attendant for Anoka County. In June 1998, he was granted a paid medical leave. On September 3, 1998, Anoka County fired Hanson for allegedly stealing parking ramp funds. When he applied for reemployment insurance benefits, Anoka County objected. After an administrative hearing, benefits were denied. By writ of certiorari, Hanson argues the commissioner's decision should be reversed because there is no evidence that Hanson committed gross misconduct. We affirm.
DECISION
Reemployment insurance benefits are available only to people who are "unemployed through no fault of their own." Minn. Stat. § 268.03, subd. 1 (1998). Therefore, an employee discharged for gross misconduct is disqualified from receiving reemployment benefits. Minn. Stat. § 268.095, subd. 4(2) (1998). We will not disturb a determination by the commissioner's representative that a claimant committed misconduct if the evidence reasonably sustains the decision and is not contrary to the law. See Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (noting appellate review of commissioner's factual findings is limited and viewed in light most favorable to decision); Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984) (concluding determination by commissioner is mixed question of fact and law).
Hanson argues Anoka County did not establish gross misconduct. See Minn. Stat. § 268.095, subd. 4(2)(i) (defining gross misconduct as conduct equivalent to a gross misdemeanor or felony); Posch v. St. Otto's Home, 561 N.W.2d 564, 566 (Minn.App. 1997) (holding respondent failed to meet burden of proving gross misconduct). The record, viewed in the light most favorable to the commissioner's decision, demonstrates: (1) before Hanson went on leave, he was the only employee who worked in the parking ramp booth and who had unlimited access to the safe, the register tapes, and the money; (2) the register tapes show skipped numbers, representing missing funds, in the transaction sequences; (3) there were no skipping transaction numbers when Hanson was not working; (4) the skips were not the result of register malfunction; (5) the parking ramp was attached to the busy Anoka County Government Center, which has over 250 unreserved parking spots; (6) Hanson recorded zero paying customers on 40 days in 12 months; and (7) after Hanson went on medical leave, the proceeds of the ramp rose by almost 500%. That evidence reasonably sustains the finding that Hanson stole parking ramp revenue from Anoka County, which constitutes a felony regardless of the precise amount. See Minn. Stat. § 609.52, subd. 3(3)(d)(iv) (1998) (punishing theft of public funds as felony regardless of amount). Although evidence exists that another employee stole some money, we defer to the commissioner's representative on weight and credibility of evidence. See Nyberg v. R. N. Cardozo Bro., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954) (holding this court will not reweigh evidence); Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn.App. 1995) (deferring to commissioner's ability to weigh evidence); Gradine v. College of St. Scholastica, 426 N.W.2d 459, 462-63 (Minn.App. 1988) (deferring to commissioner's credibility decisions), review denied (Minn. Aug. 24, 1988). Given our narrow scope of review, we conclude that the commissioner properly determined Hanson was terminated for gross misconduct and therefore, is ineligible for benefits.