This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








City of Gilbert,





Michael J. Lindgren,



Commissioner of Economic Security




Filed February 27, 2001


Schumacher, Judge


  Department of Economic Security

File No. 312000



Paul D. Cerkvenik, Sam A. Aluni, The Trenti Law Firm, 1000 Lincoln Building, 225 North First Street, Virginia, MN 55792 (for relator)


Michael J. Lindgren, 3940 West Park Boulevard, Eveleth, MN 55734-1812 (pro se respondent)


Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)



            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


Relator City of Gilbert seeks review of the commissioner's representative's determination that respondent Michael J. Lindgren was not disqualified from receiving reemployment compensation benefits because he was discharged for reasons other than employment misconduct.  We affirm.


Lindgren worked as a public works director for the City of Gilbert from February 22, 1999 to February 22, 2000 under a one-year employment contract.  In February 2000, the city council was generally dissatisfied with Lindgren's approach to management and managerial issues, including his working relationship with the city council.  At a February 15, 2000 city council meeting, the city council offered to extend Lindgren's employment for six months on a probationary basis.  Lindgren rejected the offer because he wanted his status changed to an approved employee who could only be discharged for cause.  The city had been accepting applications for the position of clerk/treasurer, and  Lindgren had heard his duties would be assigned to the new clerk/treasurer.

Lindgren believed his employment with the city was about to end and that he needed to find another job.  One of the finalists for the clerk/treasurer position was the city administrator for the City of Virginia (the city administrator).  On February 17, Lindgren called the mayor of the City of Virginia.  Lindgren told the mayor he had a feeling the position of city administrator would be opening up in Virginia and he was interested in the position.  The mayor told the city administrator about Lindgren's call.  The city administrator became upset because he had asked the City of Gilbert to keep his application confidential.

The Gilbert city council learned of Lindgren's phone call.  Lindgren's supervisor and the city attorney for Gilbert asked to meet with Lindgren.  At the meeting the city attorney asked Lindgren if he had called the mayor of Virginia and if he told the mayor that the city administrator applied for a position with the City of Gilbert.  Lindgren at first denied making the call. Lindgren later admitted he made the phone call and apologized for not admitting it.  The city council subsequently voted not to renew Lindgren's employment contract.

Lindgren applied for reemployment compensation benefits and the Department of Economic Security issued a determination of disqualification based on employee misconduct.  Lindgren appealed, and a reemployment compensation judge affirmed the determination.  Lindgren appealed the decision to the commissioner's representative.  The commissioner's representative reversed, concluding that Lindgren was discharged for reasons other than employment misconduct.  The city appeals.


            The commissioner's representative's findings of fact are viewed in the light most favorable to the decision and will not be disturbed if there is reasonable evidence to support them.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 594 (Minn. 1988).  This court, however, is not bound by the conclusions of law and may exercise its independent judgment on such issues.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989); McGowan, 420 N.W.2d at 594.

An employee who is discharged for misconduct is disqualified from receiving reemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  The determination of whether the employee committed a particular act or acts is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether those acts constituted misconduct is a question of law.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).

            The Minnesota legislature has defined disqualifying misconduct as

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or

(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2000).  The statute further provides that "[I]nefficiency, inadvertence, [and] simple unsatisfactory conduct * * * are not employment misconduct."  Id., subd. 6(b).

            The commissioner's representative concluded that Lindgren's single dishonest act did not constitute employment misconduct and was not a factor in his termination.  The commissioner's representative's decision that Lindgren's dishonest conduct was not a factor in his termination was based in part on a finding that the city council had already decided to terminate Lindgren on February 16, 2000, before his telephone call to the mayor.  The City of Gilbert claims the decision to terminate Lindgren could not have been made on February 16 because the city council met on February 15 and 22, 2000, and voted to terminate Lindgren at the February 22 meeting.  Even if the commissioner incorrectly found that the city had decided to terminate Lindgren on February 16, the finding would be irrelevant because we conclude the commissioner's representative did not err in finding that Lindgren's actions did not constitute employment misconduct. 

            In addition to the statutory definition, misconduct is defined as

conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. 


Markel, 479 N.W.2d at 384 (quoting Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (additional citation omitted)).  The city claims Lindgren engaged in employment misconduct by disclosing confidential information about the city administrator's candidacy to the mayor of Virginia and lying about it when asked.  Dishonesty connected with employment may be considered misconduct.  Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994).  Once an employee consents to answering questions, he must give truthful answers.  Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984) (denying benefits based on employee's misconduct in lying to employer during investigation of employee's alleged theft of auto parts).  To constitute misconduct, however, the employee's dishonesty must be a deliberate violation of the standards the employer had a right to expect.  See Markel, 479 N.W.2d at 384.  A good faith misunderstanding of the employer's rules or policies does not constitute misconduct.  Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 494 (Minn. App. 1987) (finding no misconduct where employee acted innocently with no intent to be disobedient or harm employer). 

            Lindgren called the mayor of Virginia believing his employment with the City of Gilbert was about to end, knowing he needed another job and believing the city administrator job would be a suitable position. Lindgren's supervisor and the city attorney accused him of calling the mayor of Virginia to sabotage the city administrator's career.  Lindgren was dishonest in that he initially denied making the call but later admitted his dishonesty and apologized.  We conclude that Lindgren acted innocently without intent to harm his employer.  The commissioner's representative did not err in concluding that Lindgren was terminated for reasons other than employment misconduct.