This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Toby F. Zeno,


Turning Point, Inc.,

Commissioner of Employment and Economic Development,


Filed May 25, 2004


Minge, Judge


Department of Employment and Economic Development

File No. 5786 03



Benjamin L. Weiss, Southern Minnesota Regional Legal Services, 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101; and


Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, Mankato, MN 56002 (for relator)


Mary L. Setter, 4301 Ewing Avenue South, Minneapolis, MN 55410 (for respondent Turning Point, Inc.)


Lee B. Nelson, Katrina I. Gulstad, 390 North Robert Street, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Relator brings a certiorari appeal of the determination by the commissioner’s representative that he was discharged for aggravated employment misconduct and disqualified from receiving unemployment benefits.  Because there is no evidence that relator intended to abuse or exploit vulnerable adults and because relator’s employer did not file a report of the incident, we reverse.  We further conclude that his actions do not evince the intent required to constitute employment misconduct.



            From July 2002 to March 2003, relator Toby Zeno was employed as a program assistant at Turning Point, a residential chemical-dependency treatment facility for adults.   On March 3, 2003, two of Turning Point’s clients gave relator money and requested that he purchase certain items for them while he was out on official business.  Relator reluctantly agreed and used his own car to run the errand.  When he gave the clients their change, he informed them that he was keeping $1 from each of them to pay for gas.  One client protested, and relator returned his money. 

            Turning Point’s written employee handbook prohibits employees from selling merchandise or personal services to a client and accepting gifts and gratuities from a client.  After learning of relator’s actions, a Turning Point supervisor advised relator that he might be disciplined.  Relator then returned the dollar to the second client. 

            On March 4, 2003, Turning Point supervisors met with relator.  Relator admitted that he withheld the money but denied knowing that it was against Turning Point’s rules.  Turning Point discharged relator for violating a zero-tolerance policy, and he filed for unemployment benefits.  Although Turning Point objected to benefits and testified that taking money from a client was a violation of the Vulnerable Adults Act, it did not report any suspected maltreatment of a vulnerable adult in accordance with the Act’s requirements.  The commissioner’s representative found that relator was aware of his employer’s policy and that he was discharged for aggravated employment misconduct because he financially exploited vulnerable adults.





Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  A determination by the commissioner’s representative of the reasons for an employee’s separation is a factual determination that is to be reviewed in the light most favorable to the decision and may not be disturbed if there is evidence reasonably tending to sustain the finding.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  But, whether the acts constitute misconduct is a question of law reviewable de novo on appeal.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An employee discharged for employment misconduct or aggravated employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  A finding of aggravated employment misconduct further results in the cancellation of all wage credits from that employment for purposes of future unemployment insurance benefits.  Minn. Stat. § 268.095, subd. 10(c) (2002).  Aggravated employment misconduct is defined as

(1) the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected the employment; or

(2) for an employee of a facility as defined in section 626.5572, aggravated employment misconduct includes an act of patient or resident abuse, financial exploitation, or recurring or serious neglect, as defined in section 626.5572 and applicable rules.


Minn. Stat. § 268.095, subd. 6a (2002) (emphasis added). 

There is no dispute that Turning Point is a facility as defined by Minn. Stat. § 626.5572, subd. 6 (2002) and that its residents are vulnerable adults as defined by Minn. Stat. § 626.5572, subd. 21 (2002).  In dispute is whether financial exploitation occurred, which is defined as occurring, in part, when a person “willfully uses, withholds, or disposes of funds or property of a vulnerable adult” in the absence of legal authority.  Id., subd. 9(b) (2002).  Relator argues that the finding of the commissioner’s representative was a clear error of law because the commissioner’s representative failed to consider whether the willfulness of his action constitutes financial exploitation.  Thus, in this appeal, “willful” is a critical term.

            The word “willful” can be distinguished from the words “voluntary,” “intentional,” and “deliberate.”  Willful has been defined as “obstinately bent on having one’s own way.”  The American Heritage College Dictionary 1568 (4th ed. 2002).  Further, individuals have been defined as acting willfully when they have “intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.”  State v. Cyrette, 636 N.W.2d 343, 348 (Minn. App. 2001).   In this sense, it goes beyond just doing something intentionally; a willful employee has a determination to engage in improper conduct that is beyond the control of the employer.  We assume that the legislature chose “willful” because of its meaning.  See Minn. Stat. § 645.08(1) (2002) (“Words . . . are construed according . . . to their common and approved usage . . . .”).

Under this definition of “willful,” relator’s conduct must be judged by a higher level of determination.  Here, relator’s improper action was withholding money.  It was not accidental, but, as an isolated incident, there is no indication that relator had a perverse or obstinate determination to engage in the offending practice.  Nor is there evidence that harm would follow from relator’s actions or that he acted indifferently to the consequences.  He promptly returned one dollar after one resident objected and he returned the other dollar after a supervisor warned him it was improper.  We find that the commissioner’s representative erred in its definition of “willful” in Minn. Stat. § 626.5572, subd. 9(b) and abused its discretion in determining that relator’s actions constituted aggravated employment misconduct.

If relator’s conduct constituted exploitation of a vulnerable adult, Turning Point was subject to a statutory directive that it report the incident.  See  Minn. Stat. § 626.557, subds. 3, 4 (2002).  Turning Point did not file such a report.  Although there is no evidence in the record explaining Turning Point’s decision not to report, that determination indicates that Turning Point did not view relator’s actions as sufficiently serious to trigger its reporting obligations.  This failure also indicates that relator’s actions did not rise to the level required to constitute aggravated employment misconduct. 

Relator takes the failure to report one step further and argues that because no state agency with responsibility for protecting vulnerable adults found his conduct abusive, the commissioner’s representative cannot find that this conduct constitutes aggravated employment misconduct.  We do not accept this contention.  Action by another state agency is not a precondition to finding employee misconduct for purposes of unemployment benefits.  There may be instances in which the evidence supports a finding of financial exploitation when the employer, purposefully or negligently, did not make such a report.  Absent such flexibility, the commissioner’s representative would be bound by the employers’ failure to follow the law and employees could receive unemployment benefits even if they engaged in aggravated employment misconduct.



            Because the commissioner’s representative found that relator committed aggravated employment misconduct, it did not address the question of whether relator committed employment misconduct.  Both parties agree that if relator’s actions do not rise to the level of aggravated employment misconduct, a remand to the commissioner’s representative is not necessary as the record contains the facts necessary for this court to decide the issue of employment misconduct.

At the time of relator’s discharge, employment misconduct was defined 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) (2002).  We decide the issue of employment misconduct under this definition.[1] 

            The supreme court has construed the 2002 language defining employment misconduct as mandating a two-pronged analysis.  For an employee’s conduct to constitute employment misconduct, the “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.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Conduct is intentional if it is deliberate and not accidental.  Id.  “[T]he word ‘disregard’ includes intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, in order to be disqualified on grounds of employment misconduct, there must be sufficient showing in the record that the employee intended to engage in, or actually engaged in, conduct that “evinced an intent to” ignore or pay no attention to the employee’s duties and obligations or the standards of behavior the employer had a right to expect.  Id

            The issue becomes whether relator acted with an intent to violate the employer’s rules or the law, which is separate from the intent to actually withhold the money from the clients.  “A single incident may constitute misconduct if the employee sufficiently disregards his or her employer’s expectations.”  Nieszner v. Minn. Dep’t of Jobs & Training, 499 N.W.2d 832, 838 (Minn. App. 1993).  An employee’s failure to obey a reasonable request may constitute misconduct.  Sandstrom v. Douglas Machine Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  But simply knowing of the rule does not satisfy the separate intent element.  See Houston, 645 N.W.2d at 150 (employee had knowledge of the rule that she admittedly violated but “nothing . . . indicate[d] that [she] intentionally ignored or paid no attention to her duties and obligations”).  

            Here, relator admitted his conduct.  He argued that he kept the money, not to harm or exploit the clients or to violate Turning Point rules, but to discourage clients from requesting that he run unscheduled store visits.  He immediately returned the money when others notified him that it was inappropriate.  Therefore, relator did not have the intent to ignore the law or disregard his employer’s instructions.  Even though the commissioner’s representative found that he was aware of the policy, relator’s actions after his withholding of the money indicate that he was not aware that what he was doing would harm his employer.  We therefore conclude that under the circumstances of this case, relator did not commit employment misconduct when he retained two dollars from Turning Point’s clients.[2]


[1] The definition of employment misconduct was amended by the legislature, effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§ 13, 20(g).  Respondent argues the appeal under the 2003 statute.  The events leading to relator’s discharge occurred prior to the effective date for the new definition of misconduct.  As we are reviewing relator’s initial qualifications for benefits, we review the record using the definition of employment misconduct in effect at the time of the conduct.  Minn. Stat.     § 645.02 (2002); Chapman v. Davis, 233 Minn. 62, 65-66, 45 N.W.2d 822, 824 (1951) (holding that no law shall be construed to apply retroactively unless “clearly and manifestly” intended); Matter of Wage & Hour Violations of Holly Inn, Inc., 386 N.W.2d 305, 312-13 (Minn. App. 1986) (concluding that the new provisions of an amended statute must be construed as effective only from the date when the amendment became effective and not retroactively unless specifically prescribed).


[2] We note that after the 2002 amendment, the statute provides that “a single incident that does not have a significant adverse impact on the employer . . . [is] not employment misconduct.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  Under the amended statute now in effect, relator’s action in the context of this case is clearly not grounds for denying benefits.