This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
William M. Verhaigh,
CSM Corp. (1989),
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 1388 03
Joseph H. Belzer, Law Offices of Joseph H. Belzer, P.O. Box 26036, St. Louis Park, MN 55426 (for relator)
Brian T. Benkstein, Felhaber, Larson, Fenlon & Vogt, 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402-4302 (for respondent CSM Corp.)
Lee B. Nelson, Katrina I. Gulstad, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by
Kalitowski, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Relator challenges the commissioner’s representative’s determination that he was terminated for employment misconduct by engaging in intentional conduct disregarding the standards of behavior the employer has a right to expect when the relator had rented a non-smoking hotel room using his employee discount, and there was underage drinking, smoking, and disruptive behavior. Because there are no facts in the record to show that relator’s actions were intentional, he did not commit employment misconduct as defined by the statute, and we reverse.
Relator William Verhaigh was employed full time as a payroll specialist by respondent CSM Corp. from November 19, 2001, until January 2, 2003. CSM’s business includes hotel management. As a benefit, CSM offers its employees discounts on hotel room rates for hotels that it manages. Relator reserved a non-smoking room at the CSM-managed Country Inn, Woodbury, at a discounted rate for December 31, 2002.
At about 4:30 p.m., shortly after relator had checked in, hotel management received a complaint from another guest that the adjacent room was noisy and that she could smell cigarette smoke. The hotel manager on duty went to the room and informed relator that he and his three guests were in a non-smoking room but that they could smoke out on the balcony. The manager also told relator that she was the manager on duty all night and that he could contact her if the situation got out of control. The manager did not notice any other problems at that time.
At approximately 10:00 p.m., another guest staying near relator’s room called the front desk to inform hotel management that a young girl who had been going in and out of relator’s room was lying on the floor in the hallway and appeared to be intoxicated. Two hotel security guards went to relator’s room and found the situation to be “out of control.” They called the manager and she saw that the room occupants were extremely intoxicated and that there were cigarette butts on the table covered with beer, a crock pot filled with barbecued hot dogs on the bed, and barbecue sauce smeared on the walls. At that time, relator and several other people, some of whom were minors, were in the room. Relator offered the manager some money, apparently to pay for some of the cleanup costs.
One of the security guards then radioed the front desk to call the police because of the condition of the room and the guests’ levels of intoxication. Relator left after he heard that the police were being called. Two of the several people remaining in the room, both of whom were intoxicated, began fist-fighting and screaming obscenities at each other. The security guards were unable to stop these individuals from fighting. When the police came, they broke up the fight, obtained identification, found what was believed to be marijuana in a guest’s purse, and handcuffed and arrested one of the women.
When relator was terminated, his employer told him that “he had made some poor choices, he had rented one of our hotel rooms which is a benefit for employees and had a loud party there, serious damage.” Although the hotel incurred special cleaning costs because of the excessive mess, there was no physical damage to the walls or furniture.
When reviewing the decision of the Commissioner of Employment and Economic Development about an employee's qualifications for unemployment benefits, we review the commissioner’s representative’s findings rather than the unemployment law judge’s findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). We have a limited scope to review the commissioner’s representative’s findings in the light most favorable to the decision. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). We will not disturb the commissioner’s representative’s findings if there is evidence that reasonably tends to sustain them. Id. And we defer to the commissioner’s representative’s ability to weigh any conflicting evidence. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
The commissioner’s representative’s findings are a mixed question of law and facts. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner’s representative determines the fact question of whether an employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). And we review de novo whether the employee’s actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits as provided by Minn. Stat. § 268.095 (2002). Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
The facts are undisputed that relator rented an employee-discounted hotel room for a New Year’s Eve party. The question before us is whether relator, by having a party in his room that resulted in the room’s occupants becoming loud and disruptive to other guests, allowing smoking in a non-smoking room, permitting under-age drinking, generally failing to control his intoxicated guests, and messing the room such that it required special cleaning, engaged in employment misconduct disqualifying him from receiving unemployment benefits.
An employee is disqualified from receiving unemployment benefits if he was discharged for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2002). Employment misconduct is “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.” Minn. Stat. § 268.095, subd. 6(a)(1) (2002). Intentional misconduct is “deliberate” and “not accidental.” Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).
The supreme court has interpreted the meaning of employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), in Houston. Id. at 146. In Houston, the supreme court articulated a two-pronged analysis to determine whether an employee's actions constitute "employment misconduct" under the statute. Id. at 149. To constitute employment misconduct, the employee's “conduct must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee's duties and obligations to the employer. Id.”
Under the first prong, the court requires that the intent to engage in the conduct in question be “deliberate” and “not accidental.” Id. The second prong requires that the employee’s intent be “separate and distinct” from the intentional conduct required in the first prong. Id. at 150. Thus, the Houston analysis for employment misconduct requires 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.” Id.
Relator chose to have a party involving tobacco and alcohol in his hotel room. We do not, however, believe that the evidence shows that relator engaged in intentional misconduct disqualifying him from unemployment benefits. The record does not support that relator deliberately chose to have a disruptive party in his hotel room. Although he failed to take more definitive action when the problems arose, we consider his non-action to be negligent rather than deliberate. And the commissioner’s decision was not based on negligence, but rather solely on intentional conduct that disregards the standards of behavior that an employer has a right to expect. Because there are no facts in the record to show that relator’s actions were intentional, he did not commit employment misconduct as defined by the statute, and he is not disqualified from receiving unemployment benefits under Minn. Stat. § 268.095 (2002).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The commissioner’s representative reviewed this case in May 2003 under the 2002 version of the statute. In the amended statute effective August 1, 2003, the legislature significantly revised the definition of employment misconduct. Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). In cases involving employment and economic development, however, we use the statute in effect at the time the claim was filed. Therefore, we apply the 2002 statute in this case.