This opinion will be unpublished and

may not be cited except as provided by

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







Timothy P. McCarthy





County of Hennepin,



Commissioner of Economic Security,




Filed June 5, 2001

Affirmed; motion denied
Klaphake, Judge


Department of Economic Security

File No. 1848


Carol Lynn O’Gara, 1145 James Avenue, St. Paul, MN  55105 (for relator)


Amy Klobuchar, Hennepin County Attorney, Martin Munic, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)


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



            Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Timothy P. McCarthy challenges a decision by a representative of the respondent Commissioner of Economic Security disqualifying him from receiving reemployment compensation benefits because he was discharged by respondent Hennepin County for aggravated employment misconduct and employment misconduct.  Because the decision is reasonably supported by reliable evidence submitted by the county, we affirm.  Because the transcript in a collateral criminal proceeding involving relator does not qualify as “newly-discovered” evidence so as to warrant a remand to the commissioner to reopen the record, we deny relator’s motion to remand.


            Our review of a decision by the commissioner is limited to whether the evidence in the record reasonably supports the decision.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  We view the commissioner’s findings in the light most favorable to the decision and defer to the commissioner’s resolution of conflicting evidence.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Moreover, we review the findings of the commissioner or the commissioner’s representative, not those of the reemployment compensation judge, even when those findings involve witness credibility.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            The issue of whether an employee has committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  Once the facts are established regarding the employee’s behavior, the issue of whether that behavior constituted misconduct is a question of law reviewed de novo.  Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn. App. 1987).

            Employment misconduct is defined as

            (1) any intentional conduct * * * 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 * * * that demonstrates a substantial lack of concern for the employment. 


Minn. Stat. § 268.095, subd. 6 (Supp. 1999).  Aggravated employment misconduct is defined as “the commission of any act * * * that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected the employment.”  Minn. Stat. § 268.095, subd. 4a.

            Misconduct need only be proved by a preponderance of the evidence.  Minn. Stat. § 268.03, subd. 2 (1998); Waara v. Mesabi Regional Med. Ctr., 415 N.W.2d 362, 363 (Minn. App. 1987).  Hearsay evidence, particularly when that evidence shows inherent reliability, is admissible in unemployment cases and is often the sole basis for the decision.  See Minn. R. 3310.2922 (1999); Minn. Stat. § 268.105, subd. 1(b) (Supp. 1999); Pichler v. Alter Co., 307 Minn. 522, 523, 240 N.W.2d 328, 329 (1976); Wilson v. Comfort Bus Co., 491 N.W.2d 908, 910 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993); Vang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn. App. 1985); Brunello v. Mill City Auto Body, 348 N.W.2d 409, 411 (Minn. App. 1984).

            Relator was employed as a juvenile correctional officer at the county’s juvenile detention center.  Approximately two months before relator was terminated, one of his coworkers reported that he had seen relator spending an excessive amount of time in a particular juvenile’s room and showing the juvenile inappropriate favoritism.  The coworker was most disturbed, however, when he saw relator and the juvenile romantically hugging in the juvenile’s room.

            During a subsequent investigation of the coworker’s allegations, another of relator’s coworkers similarly reported that she observed relator spending an inordinate amount of time with the juvenile, showing favoritism toward the juvenile, and hugging the juvenile.  Relator denied any wrongdoing, but admitted that he had hugged the juvenile several times.  The juvenile initially denied that he and relator had engaged in any sexual conduct; during a subsequent interview, however, the juvenile admitted that he had lied to the first interviewer because he did not want to get relator in trouble.  The juvenile then admitted that he and relator had engaged in sexual activity, including romantic hugs and kisses, exposing their penises to each other, touching each other’s penises, and oral sex.

            The written investigative report contained the following conclusions:  (1) relator and the juvenile did hug in the manner initially described by the first coworker, and that hug was romantic and sexual; (2) relator spent an excessive amount of time in the juvenile’s room, which jeopardized staff and resident safety on at least two occasions; (3) relator routinely went into the juvenile’s room and failed to tell his co-workers; (4) relator was seen peeking suspiciously out of the juvenile’s room; (5) relator repeatedly violated the county’s policy regarding physical contact with residents; (6) relator showed significant favoritism toward the juvenile and violated county policy; and (7) relator “grossly” violated county policy by failing to maintain safe environment for staff and failing to treat the juvenile with dignity and respect.  The investigator recommended that relator be terminated immediately and that the matter be referred to police.

            Even without considering the subsequently filed criminal complaints and the evidence collected by police and seized during execution of the search warrant of relator’s home, the above-described evidence amply supports the commissioner’s representative’s decision that relator committed misconduct and aggravated misconduct by engaging in criminal acts and violating a number of the county’s policies.  As a juvenile correctional officer, relator was responsible for the protection and care of vulnerable juvenile residents.  His conduct, which the commissioner’s representative found to include engaging in sexual acts with a minor resident, would amount to criminal sexual conduct and demonstrates a shocking disregard of his duties and obligations as an employee. 

            We therefore affirm the decision of the commissioner’s representative.

            Affirmed; motion to remand denied.