This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Cheryl L. Malkowski,





City of Mahtomedi,



Commissioner of Employment and Economic Development,



Filed ­­­March 8, 2005

Reversed and remanded

Dietzen, Judge


Department of Employment and Economic Development

Agency File No. 239-04


Marshall H. Tanick, Ryan M. Pacyga, Mansfield, Tanick & Cohen, P.A., 1700 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for relator)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)


Roger C. Miller, Jay P. Karlovich, LeVander, Gillen & Miller, P.A., 633 South Concord Street, Suite 400, South St. Paul, MN 55075 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N



By writ of certiorari, relator Cheryl Malkowski challenges the Commissioner of Employment and Economic Development’s decision disqualifying her from receiving unemployment benefits.  Because the commissioner’s representative’s holding was not adequately supported by the record developed before the unemployment law judge (ULJ), we reverse and remand for an additional evidentiary hearing.



            From September 1996 to November 2003, relator was a maintenance operator for respondent City of Mahtomedi (city).  Relator drove a vehicle as a condition of employment, which made her subject to the Federal Omnibus Transportation Employee Testing Act (Act).  The Act, which was merged into the city’s personnel policy, subjected employees who operated commercial motor vehicles to random drug tests.  Pursuant to the policy, in October 2003, relator was subjected to a random drug test, which returned positive for amphetamines.  On November 3, 2003, the city informed relator that she had tested positive for drugs and would be required to take a leave of absence under the Family and Medical Leave Act to receive chemical-dependency treatment.  Relator subsequently met with a substance-abuse professional, who recommended a treatment plan consisting of six evaluation sessions followed by 12 therapy sessions. 

            In December 2003, a department adjudicator determined that relator was not disqualified from receiving unemployment benefits.  The city appealed, arguing that relator should be disqualified because her positive drug test constituted employment misconduct.  In an evidentiary hearing before the ULJ, the majority of the testimony focused on the issue of employment misconduct.  There was limited testimony on other issues, such as relator’s acknowledgement that she was “totally reconstructing” her house during her leave of absence. Relator also testified that she requested the opportunity to continue working in the functions of her job not covered by the Act, but the city never acted on the request.  According to her testimony, relator believed that upon completion of her chemical-dependency treatment, she would return to the city’s employ.       

The ULJ reversed the initial adjudication and denied relator unemployment benefits.  The commissioner’s representative affirmed, holding that relator (1) was not available for suitable employment because she was spending her leave of absence rebuilding her home; and (2) was not actively seeking suitable employment because she assumed that she would be returning to her prior position after treatment.  Relator petitioned this court for certiorari review on June 10, 2004.  All parties request a remand for the sole purpose of determining whether relator was actively seeking suitable employment through a union.             


On certiorari appeal, we must examine the decision of the commissioner’s representative, rather than that of the ULJ.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner’s representative are accorded “particular deference[.]”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  “A decision by the commissioner’s representative concerning an applicant’s eligibility for benefits will be upheld if it is reasonably supported by the evidence.”  Mueller v. Comm’r of Econ. Sec., 633 N.W.2d 91, 92 (Minn. App. 2001).  The burden of proof is on the applicant to show eligibility for unemployment benefits.  Id.  

            At the evidentiary hearing before the ULJ, the city argued that relator was disqualified from receiving benefits because she committed employment misconduct but never argued that relator was unavailable for and was not actively seeking suitable employment.  See Minn. Stat. § 268.085, subd. 1(2) (2002) (requiring applicant for unemployment benefits to be available for and actively seeking suitable employment).  Relator thus argues that the commissioner’s representative’s decision is improper because it was supported by findings outside the issue of her alleged misconduct.  But the process for handling unemployment claims is an informal practice dictated by statutes and administrative rules and does not follow traditional rules of civil procedure, such as notice pleading.  See Minn. Stat. § 268.105, subd. 1(b) (2002) (“The [administrative] rules need not conform to common law or statutory rules of evidence and other technical rules of procedure.”).  Therefore, the commissioner’s representative did not commit error by deciding relator’s claim based on her availability to work, as long as the judgment was reasonably supported by the evidence. 

            Relator first contends that she was available for suitable employment because, even if she spent her leave of absence remodeling her home, there was no testimony implying she was unavailable for work.  In support of this contention, relator claims that she began remodeling her home in August 2003, when she was still employed by the city.  The city, on the other hand, seizes on relator’s testimony that she spent all of her free time remodeling and that she sought to attend chemical-dependency treatment during the nights and weekends, thus leaving her days for working on her home. 

            Relator also argues that she was actively seeking suitable employment because she sought to continue working in the functions of her job not covered by the Act and because she expected to return to the city’s employ once treatment was completed, so it would have been incongruous for her to seek other employment in the interim.  The city argues that many applicants for benefits believe there are reasonable prospects that they will return to previous employment, but to claim benefits, applicants need to comply with the dictates of the unemployment statutes, which include seeking other employment in the interim. 

            In their combined brief, respondents request this court to remand the case to determine whether relator was actively seeking suitable employment through a union.  See Minn. Stat. § 268.085, subd. 16(d) (2002) (“An applicant who is seeking employment only through a union is not actively seeking suitable employment unless the applicant is in an occupation where it is required by union rule that all the hiring in that locality is done through the union.”).  Although a union representative accompanied relator before the ULJ, no testimony was taken on the applicability of the union statutory provision.    

The department of employment and economic development’s rules mandate that the ULJ’s decision must be supported by facts and evidence that were revealed at the proceeding.  Minn. R. 3310.2926 (2003).  The commissioner’s representative then must make a decision “on the basis of that evidence submitted at the [evidentiary] hearing[.]”  Minn. Stat. § 268.105, subd. 2(c) (2002).  Here, testimony before the ULJ was incomplete regarding the extent of relator’s involvement in remodeling her house and her contentions that she did not need to seek other employment because she applied to return to functions of her job not covered by the Act and because she believed she would be returning to the city’s employ after treatment.  Respondents acknowledge that the record is deficient as to whether relator was actively seeking employment through a union.  The dearth of evidence in the record is due in part to the city’s appeal that focused on the issue of relator’s alleged misconduct. 

Because the record is incomplete, as both parties acknowledge, we reverse the commissioner’s representative’s decision denying relator unemployment benefits and remand to the commissioner to remand to the ULJ to elicit testimony on whether relator was available for or actively seeking suitable employment, including the applicability of relator’s union status.

Reversed and remanded.   

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