This opinion will be unpublished and

may not be cited except as provided by

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






Arnester T. Winans,





Elm Waseca County SLS,



Commissioner of Economic Security,



Filed September 18, 2001

Klaphake, Judge


Department of Economic Security

File No. 834300


Arnester T. Winans, 809 Park Road, Madison Lake, MN  56063-9639 (pro se relator)


Perry A. Berg, Patton, Hoversten & Berg, 215 East Elm Avenue, P.O. Box 249, Waseca, MN  56093 (for respondent Elm Waseca County)


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


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Pro se relator Arnester Winans challenges a decision by a representative of respondent Commissioner of Economic Security determining that Winans was discharged because of employment misconduct.  Winans was employed by respondent Elm Waseca County SLS (Elm), a residential facility for developmentally disabled adults, and was discharged in September 2000 after the Department of Human Services (the department) advised Elm that Winans was disqualified from working with vulnerable adults and that Elm must remove Winans from its program or risk revocation of its license.

            Winans argues that his separation from employment was not the result of misconduct on his part, but was mandated by the department after additional background information was discovered regarding his prior criminal record.  Because the evidence reasonably supports the determination that the department’s disqualification of Winans was based on all relevant information, including Winans’s guilty plea in June 2000 to DWI and possession of marijuana, we affirm the commissioner’s representative’s decision that Winans was discharged for misconduct.


            The commissioner’s findings are viewed in the light most favorable to the decision and are not disturbed if the evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Where an employee’s acts are undisputed or where findings on those acts are reasonably sustained by the evidence, the issue of whether those acts constitute misconduct is a question of law on which this court remains free to exercise its independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An employee is disqualified from receiving benefits if discharged because of employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2000).  “Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2000).

            When Winans was first hired by Elm in November 1998, he completed an employee screening form and admitted that he had a criminal history for assault; a criminal background check subsequently revealed that he also had a 1988 felony assault conviction.  Winans received a variance in April 1999 from the department to allow him to work for Elm.  The variance, which required an annual renewal, stipulated that there be no other disqualifying factors and that Winans would remain chemical free.

            The evidence establishes that both of these stipulations were subsequently violated.  In April 2000, Winans was arrested for DWI and possession of marijuana, charges to which he later pleaded guilty.  In addition, during a second background check, Winans’s 1991 felony assault conviction was discovered.  In September 2000, the department notified Winans and Elm that Winans was disqualified from working with vulnerable adults and that his variance would not be renewed.  The department gave no specific reason for its final decision and merely indicated that it was based on all information submitted.

            Conduct resulting in the loss of a license necessary to perform normal job duties is considered disqualifying misconduct.  Markel v. City of Circle Pines, 479 N.W.2d 382, 385 (Minn. 1992); Minn. Stat. § 268.095, subds. 4(1), 6(a) (2000).  Here, Winans violated the variance and was disqualified from working for Elm when he failed to remain chemical free and when a second background check revealed an additional assault conviction.  Winans insists that because he cannot change or control his criminal history and because that is the sole reason his variance was denied, he is entitled to unemployment benefits.  We disagree.

            A criminal defendant is deemed to be aware of his or her criminal history.  In addition, the department indicated that its disqualification decision was based on all information submitted; that information presumably included Winans’s criminal history and his recent arrest for DWI and possession of marijuana.  The commissioner’s representative was entitled to assume that the department based its decision “upon an overall review of [Winans’s] record, including all relevant events,” which included his failure to remain chemical free.  Because Winans violated the stipulations that provided the basis for a variance, he exhibited a disregard for his employer’s interests and committed disqualifying misconduct.

            Finally, although an employee need not be perfect in maintaining sobriety, he is still disqualified from receiving benefits if he has had treatment for chemical dependency but fails to make consistent efforts to control the disease and commits misconduct as a result of the disease.  Minn. Stat. § 268.095, subd. 6(c); see Leslin v. County of Hennepin, 347 N.W.2d 277, 279 (Minn. 1984).  Here, Winans underwent treatment in 1989 and attended AA meetings for a few years, but stopped in 1993 because he did not like his AA group.  He admitted that he had relapses in 1991 and 1996 and that his most recent relapse occurred in April 2000, when he was arrested for DWI.  This history illustrates that Winans has failed to make consistent efforts to control his disease and that he is not unemployed through no fault of his own.

            The decision of the commissioner’s representative that Winans committed disqualifying employment misconduct is affirmed.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.