Brent R. Henkel, Relator v. City of Mountain Iron, Department of Employment and Economic Development ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0543
Brent R. Henkel,
Relator,
vs.
City of Mountain Iron,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed December 27, 2016
Affirmed
Smith, Tracy M., Judge
Department of Employment and Economic Development
File No. 33976385-3
Brent R. Henkel, Eveleth, Minnesota (pro se relator)
City of Mountain Iron, Mountain Iron, Minnesota (respondent)
Lee B. Nelson, St. Paul, Minnesota (for respondent department)
Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Smith,
Tracy M., Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
In this unemployment-insurance appeal, relator challenges the decision of an
unemployment law judge (ULJ) that relator is ineligible for unemployment benefits.
Relator contends that the ULJ erred in concluding that the alleged drug crimes for which
Henkel was discharged amounted to employment misconduct and aggravated employment
misconduct. Because relator did not make legal arguments or cite authority, and because
the ULJ’s decision is supported by substantial evidence and not affected by legal error, we
affirm.
FACTS
On September 10, 2015, relator Brent R. Henkel was charged with fifth-degree sale
of marijuana and fifth-degree possession of methamphetamine arising out of events that
occurred in June 2015. Henkel’s employer, the City of Mountain Iron, learned about the
criminal charges and suspended Henkel indefinitely without pay on September 23.
Henkel applied for unemployment benefits. The Department of Employment and
Economic Development (DEED) determined that Henkel is eligible for benefits because
the alleged crimes for which he was suspended “had no significant negative effect on the
employment” and therefore were not employment misconduct.
On November 5, a sergeant of the St. Louis County Sheriff’s Office sent a letter to
the Mountain Iron city administrator informing him that Henkel had given an undercover
officer a city-provided phone number to facilitate the marijuana sale. The phone number
belonged to a cell phone that Henkel used as part of Mountain Iron’s employee cell-phone
program. Through this program, Henkel purchased his own phone for professional and
personal use, and the city provided a phone number and paid a portion of the service bills.
The city appealed the determination of eligibility on November 18, arguing that
Henkel was discharged for employment misconduct and thus was ineligible for
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unemployment benefits. The city believed that Henkel’s use of the city phone number in
the commission of the alleged marijuana sale made Henkel’s alleged crime “rise to the
level of employment misconduct.”
At a hearing on December 3, the ULJ told Henkel that he had a right to refuse to
testify regarding the alleged criminal conduct, but that “for the purposes of unemployment
benefits I can make a negative inference from your silence.” When the ULJ asked Henkel
whether he committed the alleged conduct for which he was suspended, Henkel declined
to answer.
The ULJ issued findings of fact and a decision on December 8. The ULJ inferred
from Henkel’s refusal to answer certain questions at the hearing that the truthful answers
“would have been unfavorable” to Henkel. The ULJ found that Henkel had committed the
alleged acts of selling marijuana using the city-provided phone number and possessing
methamphetamine.
The ULJ concluded that Henkel’s conduct amounted to both employment
misconduct and aggravated employment misconduct because it violated the employer’s
reasonable expectations, showed a substantial lack of concern for the employment, and had
a significant adverse effect on the employment “because of the use of city services in the
commission of the offense.”
Henkel submitted a request for reconsideration on December 28, arguing that the
decision “was based on many errors” in the factual findings, “overlooked evidence and
errors in exhibits,” and “misapplied laws.” On February 29, 2016, the ULJ issued an order
affirming the December 8 findings of fact and decision.
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Henkel petitioned for a writ of certiorari for the court of appeals to review the ULJ’s
decision on reconsideration.
DECISION
Henkel’s appellate brief states, in its entirety, “I was suspended for no just cause on
Sept. 23, 2015. Then ULJ made his decision based on many errors in facts and over looked
evidence & misapplied laws.” Henkel does not identify any particular legal error or piece
of evidence that was not considered. An appellant bears the burden of showing that the
decision appealed from was in error and that prejudice resulted. Midway Ctr. Assocs. v.
Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975). “[M]ere assertions” of
error that are unsupported by argument or authority are waived and should not be
considered on appeal unless prejudicial error is “obvious on mere inspection.” Schoepke
v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135
(1971); Yusuf v. Masterson Personnel, Inc., 880 N.W.2d 600, 605 (Minn. App. 2016).
Henkel’s brief merely asserts that the ULJ’s decision was based on errors. He makes no
specific arguments and cites no authority. No prejudicial error is obvious on mere
inspection. Schoepke, 290 Minn. at 519-20, 187 N.W.2d at 135.
Henkel’s arguments may be characterized as alleging that the ULJ’s decision was
“affected by other error of law” and “unsupported by substantial evidence.” Minn. Stat.
§ 268.105, subd. 7(d)(4)-(5) (2014). We may reverse or modify a ULJ’s decision if the
substantial rights of the relator may have been prejudiced because the findings, inferences,
conclusion, or decision are affected by legal error or unsupported by substantial evidence.
Id., subd. 7(d). Substantial evidence means “such relevant evidence as a reasonable mind
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might accept as adequate to support a conclusion.” Carter v. Olmsted Cty. Hous. &
Redevelopment Auth., 574 N.W.2d 725, 730 (Minn. App. 1998) (quotation omitted).
“Whether an employee engaged in conduct that disqualifies the employee from
unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,
796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Whether an employee committed
a particular act is a question of fact that we view in the light most favorable to the ULJ’s
decision and affirm if it is supported by substantial evidence. Skarhus v. Davanni’s, Inc.,
721 N.W.2d 340, 344 (Minn. App. 2006). Whether a particular act constitutes employment
misconduct is a legal question that we review de novo. Id.Henkel’s suspension is considered a discharge for purposes of unemployment
benefits because it lasted more than 30 days. Minn. Stat. § 268.095, subd. 5(a) (2014). A
discharged employee is generally eligible for unemployment benefits unless he was
discharged for employment misconduct or aggravated employment misconduct. Id., subd.
4 (2014). “Employment misconduct means any intentional, negligent, or indifferent
conduct, on the job or off the job that displays clearly: (1) a serious violation of the
standards of behavior the employer has the right to reasonably expect of the employee; or
(2) a substantial lack of concern for the employment.” Id., subd. 6(a) (2014). Aggravated
employment misconduct means “the commission of any act, on the job or off the job, that
would amount to a gross misdemeanor or felony if the act substantially interfered with the
employment or had a significant adverse effect on the employment.” Id., subd. 6a(a)(1)
(2014).
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The ULJ concluded that Henkel was discharged for aggravated employment
misconduct because he committed an act that amounts to a felony and that act had a
significant adverse effect on the employment. This conclusion is supported by the ULJ’s
findings, which are in turn supported by the record.
The ULJ found by a preponderance of the evidence that Henkel possessed
methamphetamine and used his city-provided phone number to sell marijuana. The drug
possession and sale amount to “the commission of any act, on the job or off the job, that
would amount to a gross misdemeanor or felony” under Minn. Stat. § 268.095, subd.
6a(a)(1). See Minn. Stat. § 152.025 (2014) (making the sale of marijuana and the unlawful
possession of a Schedule II controlled substance fifth-degree crimes each punishable by up
to five years imprisonment); see also Minn. Stat. § 152.02, subd. (d)(2) (2014) (making
methamphetamine a Schedule II controlled substance); Minn. Stat. § 609.02, subd. 2
(2014) (defining “[f]elony” as “a crime for which a sentence of imprisonment for more
than one year may be imposed”).
Henkel’s suggestion that the ULJ’s decision is unsupported by substantial evidence
is incorrect. The ULJ’s findings that Henkel possessed methamphetamine and used a city-
provided phone number to sell marijuana are supported by the city administrator’s sworn
testimony as well as written documents prepared by the city administrator, a police
sergeant, and Henkel’s former labor union. Henkel did not present evidence to rebut the
allegations and did not deny that he committed the alleged conduct. A ULJ “may draw
adverse inferences from the refusal of a party or witness to testify on the basis of any
privilege.” Minn. R. 3310.2922. Considering the evidence in the light most favorable to
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the ULJ’s decision, the evidence in the record amounts to substantial evidence supporting
the ULJ’s findings.
The remaining issue is whether Henkel’s conduct substantially interfered with the
employment or had a significant adverse effect on the employment. Minn. Stat. § 268.095,
subd. 6a(a)(1). Minnesota courts have held that a public employee’s off-duty criminal
activity may interfere with and adversely affect employment, making the discharged
employee ineligible for unemployment benefits. See, e.g., Pechacek v. Minn. State Lottery,
497 N.W.2d 243, 246 (Minn. 1993) (concluding that a state employee’s commission of
criminal sexual conduct affects the credibility of the employer and reduces public
confidence in the integrity of the employer, thus “interfer[ing] with and substantially
affect[ing] his employment”). We agree with the ULJ that Henkel’s commission of drug
offenses had a significant adverse effect on the employment by harming the city’s
reputation, particularly because Henkel used a city-provided phone number and city-
subsidized phone service to facilitate the illegal sale of marijuana.
We therefore conclude that the ULJ’s decision that Henkel is ineligible for
unemployment benefits is supported by substantial evidence and not affected by legal error.
Affirmed.
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