This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Commissioner of Economic Security
File No. 426601
Melinda Hanson Weerts, Weerts Allen, LLC, Suite 203, 606 First Avenue North, Box 2310, Fargo, ND 58108-2310 (for relator)
Linda A. Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.*
Relator James Moench challenges a decision by respondent Commissioner of Economic Security disqualifying him from receiving unemployment-insurance benefits. Because the evidence does not reasonably support the commissioner’s representative’s findings of misconduct, we reverse.
Moench was employed as executive director of the Red River Basin Board from November 5, 1999, to February 8, 2001. He was responsible for the management of staff and the direction of the entire organization.
On February 2, 2001, the Board’s executive committee confronted Moench with an allegation that he had pornographic material on his computer. The allegation was based on a report by a female staff member who stated that, in November 2000, she had entered Moench’s office to tell him that she was leaving for the day and observed pornography on Moench’s computer screen, which Moench tried to block from her view. This staff member immediately told another female staff member what she had seen but did not report the incident to anyone else until late January 2001 when the Board’s executive assistant asked her to explain why she refused to ride to a meeting with Moench.
The executive assistant then, without Moench’s knowledge, logged onto his computer and printed out the history of web sites visited. This list, which is not part of the record, allegedly included a site called “Jenny Cam,” a web site where a viewer can look into a young woman’s apartment 24 hours a day and watch all of her activities. The executive assistant informed the chairman of the Board of the employee’s allegation and the web-site history. The chairman decided to use an already-scheduled meeting on February 2, 2001, to discuss the issue with the executive committee. This meeting was originally scheduled to discuss job evaluations and the Board’s poor performance.
At the meeting, the executive committee interviewed the female employee who saw pornographic images on Moench’s computer screen. This employee did not allege sexual harassment. She is the only staff member who personally observed offensive material on Moench’s computer. When confronted with the allegations, Moench acknowledged that he might have opened web sites sent to him through his MSN Hotmail account “out of curiosity” but denied downloading pornography to his computer. The committee placed Moench on administrative leave and informed him that the Board was going to look at the files stored on his computer.
The Board then had Moench’s computer examined by a computer specialist. According to the chairman, who testified about the specialist’s findings, there was a “catch folder” indicating someone logged onto Moench’s computer as “Jim,” conducted searches with the word “rape,” and accessed a site on the internet called “Rape, Pillage, Burn” and another called “Weird Sex.” The specialist’s report was not entered into evidence, but the chairman’s account of his findings indicates that the computer stored a listing of sites visited or the opening pages of sites visited. Because the sites required payment for access, the specialist did not access the sites and there is no evidence that Moench accessed the sites beyond the opening pages.
The chairman of the Board and two other Board members met again with Moench on February 8th. Moench was told that “pornographic material” was found on his computer. The chairman told Moench that the Board believed Moench had lied when he originally said that there was no pornographic material on his computer and stated that Moench’s actions constituted inappropriate behavior for a person in his position. The chairman of the Board told Moench that, based on the advice of an attorney, he had determined that the computer incident was not sufficient grounds for termination. Moench again admitted that he had “probably” looked at some of the pornographic sites and agreed that he had exercised poor judgment.
Monech was given the option of resigning or committing himself to improving his performance. Moench did not want to resign, but the chairman advised him that it would be best for him to resign. The chairman of the Board indicated that, due to the atmosphere of distrust in the office and the fact that Moench had lied about the computer incident, he did not think the situation was “workable.” After being given less than an hour to reflect, Moench signed a letter of resignation that had been prepared for him.
Moench applied for unemployment benefits and was initially found eligible. The Board appealed on the basis that Moench had voluntarily resigned. After a hearing, an unemployment law judge determined that Moench was “not forthcoming with the truth” at the February 2nd meeting but on February 8th admitted that he had accessed “some hot mail sites” and that the computer specialist’s investigation indicated that numerous pornographic sites had been accessed. The unemployment law judge concluded that Moench’s actions demonstrated an intentional disregard for his employer’s interests and that he was discharged for misconduct, disqualifying him from benefits.
On appeal from the decision of the unemployment law judge, the commissioner’s representative found that a female coworker saw pornographic material on Moench’s computer in November 2000 and that a computer specialist found a special, password-protected file created by Moench that “contained a large amount of pornographic material.” Based on these findings the commissioner’s representative decided that Moench was discharged for employment misconduct and is disqualified from receiving benefits.
On appeal, this court should
review the factual findings of the commissioner’s representative in the light most favorable to the decision and determine whether there is evidence in the record that reasonably tends to sustain those findings.
Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (citation omitted).
Moench contends that there is no support in the record for the findings that he had created a special password-protected file and “had stored a large amount of pornographic material on his work computer.” We agree. Moench also challenges those findings as improperly based on hearsay, but hearsay testimony is admissible in an unemployment-benefits hearing. See Minn. R. 3310.2922 (2001) (noting that a referee “may receive any evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs”); Youa True Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (recognizing that hearsay evidence may be admissible at an economic-security hearing and may be sufficient to support the commissioner’s decision). The challenged findings, however, are not supported even by hearsay evidence.
The evidence shows that a coworker claims to have seen pornographic material on Moench’s computer and that Moench accessed the opening pages of three web sites: “Rape, Pillage, Burn,” “Weird Sex,” and “Jenny Cam.” But the evidence in the record does not indicate the number of times or length of time that the sites were accessed or that any material from the sites was intentionally downloaded and stored on the computer. Counsel for respondent explained at oral argument that what was stored resulted from the automatic operation of the computer. This evidence does not support a finding that Moench intentionally downloaded or stored any pornographic material on his computer. Also, there was no evidence that Moench created a “special [password] protected file.” As testified to by the chairman of the Board, the computer specialist found only that Moench’s computer contained a “catch folder” called “Jim” which contained “pornographic material.”
Moench also asserts that he did not receive sufficient notice of the claims against him and was not given an opportunity to prepare and present evidence in his defense. “Unemployment benefits are an entitlement protected by the procedural due process requirements of the fourteenth amendment.” Schulte v. Transp. Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984).
Nothing in the record reveals that the Board ever asserted that Moench was discharged for misconduct due to computer use. In fact, the chairman of the Board told Moench and the unemployment law judge that Moench was not terminated for the computer use. Still, it is evident that Moench realized that the computer use would be discussed at the hearing because Moench knew that the computer use was related to his discharge. In response to a question—“Was there a final incident that caused you to be discharged?”—on the Department of Economic Security’s discharge questionnaire Moench acknowledged that an employee “had seen inappropriate material on my computer.” He further noted that the problem “came to a head about one week prior to discharge. They found some visits to inappropriate sites.”
Moench complains that he never received a copy of the computer specialist’s report, yet he did not subpoena the computer specialist’s report. See Minn. R. 3310.2914, subp. 1 (2001) (allowing for the use of subpoenas by a party to compel the production of documents). As discussed above, Moench was sufficiently aware of the importance of the computer use to have alerted him to the importance of the report. As a result, we conclude that Moench’s due-process arguments are without merit.
On appeal, the commissioner’s representative argues that the Board did not discharge Moench for the computer use alone, but rather as the result of the “ripple effects of his behavior and because he lied while the behavior was being investigated.” The commissioner’s representative, however, did not make such a finding. Furthermore, the evidence does not support the finding that Moench lied during the investigation. He admitted that he had accessed adult sites and consistently denied that he ever downloaded pornography onto his computer. The evidence also demonstrates that the Board was concerned about poor performance prior to the computer incident and that the February 2nd meeting had originally been scheduled to address the Board’s concerns. Therefore, the evidence does not support the representative of the commissioner’s finding that the Board discharged Moench for storing pornographic files on his work computer.
Moench also challenges the representative of the commissioner’s finding that he engaged in intentional conduct that violated the standards of behavior that the Board had a right to expect from him.
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). Employment misconduct is defined as “intentional conduct” by an employee that “disregards the standards of behavior that an employer has the right to expect * * * or disregards the employee’s duties and obligations to the employer.” Minn. Stat. § 268.095, subd. 6(a)(1) (2000).
In order for conduct to be intentional, it must be deliberate and not accidental. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). “A single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.” Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989).
Respondent argues that Moench’s perusal of pornographic web sites was not accidental and that he intentionally used his employer’s computer to view these sites. What the evidence supports, however, is not that Moench used the computer to peruse pornography, but that he opened three adult web sites that appeared on his e-mail account. There is no evidence about how many times he opened the sites, whether he opened the sites during working hours, or how much time he spent looking at each site, and there is no evidence that he went beyond the opening pages of these sites or intentionally downloaded pornography from the sites.
Although the record supports a finding that Moench intentionally opened these three web sites, such intentional conduct is quite different from a finding that he intentionally downloaded a large amount of pornography onto his computer into a password-protected file.
[F]or purposes of disqualification from unemployment compensation on grounds of employment misconduct under the statute, there must be a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.
Houston, 645 N.W.2d at 150. The supreme court noted that the term “disregard” is “separate and distinct from the intent to engage in the conduct in question.” Id. The court noted that this interpretation is
consistent with the remedial nature of unemployment compensation and the declared public policy that unemployment benefits are for those who are “unemployed through no fault of their own.”
Id. (quoting Minn. Stat. § 268.03, subd. 1 (2000)).
If an employer issues a policy prohibiting employees from using their computers for non-work related reasons, then an employee who is terminated for violating the policy will be denied unemployment benefits. See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (stating that a “violation of an employer’s policy constitutes misconduct”), review denied (Minn. Aug. 20, 1986). Although the Board did not have any computer policy, the commissioner’s representative concluded that “an employer clearly has the right to expect employees to refrain from storing large amounts of pornographic material under protected files in work computers” even in the absence of a computer policy prohibiting such conduct. Although there is no authority for this statement, we do not disagree. But the evidence in this case does not support the findings that Moench engaged in the conduct described.
* The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal. Due to Judge Foley’s untimely death before the filing of the opinion, Judge Kalitowski has been assigned as a substitute, and now joins the panel in issuing this decision.
 The executive assistant who logged onto Moench’s computer obtained a list of web sites visited, but the record does not reflect that she accessed pornography.
 The name of MSN’s free e-mail system is “Hotmail,” but the name has nothing to do with adult content or pornography.
 Moench also objects to the fact that, because the computer specialist did not testify, he was unable to cross-examine him. Moench, however, cites no support for his assertion that he had a right to cross-examine the expert.
 Throughout the hearing the list of the web sites visited were referred to by respondent as pornographic material but the evidence does not support a conclusion that anything more than the name of the sites or opening pages for the sites (accessible without payment) were found on the computer.