This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1053

Robert F. Severson,

Respondent,

vs.

City of Moorhead,

Relator,

Commissioner of Economic Security,

Respondent.

Filed December 17, 1996

Affirmed

Klaphake, Judge

Department of Economic Security

File No. 1008 UC 96

Robert F. Severson, 2403 South 18th Street, Moorhead, MN 56560 (Pro Se Respondent)

Steven McCullough, Ohnstad Twichell, P.C., 901 13th Avenue East, P.O. Box 458, West Fargo, ND 58078 (for Relator)

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

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Relator City of Moorhead (the city) seeks review of a decision awarding respondent Robert Severson reemployment insurance benefits. The Commissioner's representative concluded that Severson's actions did not constitute disqualifying misconduct. Because there is reasonable support in the record for this decision, we affirm.

D E C I S I O N

An employee who commits misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1994). The determination of whether an employee has committed disqualifying misconduct is a mixed question of fact and law. See Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).

At the evidentiary hearing before the reemployment insurance judge, the city focused on two incidents of alleged misconduct. The first incident involved the city's claim that Severson violated a city policy barring suspended employees from working for any other employer. While on suspension from the police department, Severson occasionally assisted a friend, Joseph Hendrickson, who owned a limousine service, by answering the phones when he visited Hendrickson's office.

Severson and Hendrickson both testified at the hearing that these services were voluntary and that Severson was not paid for answering the phones. The reemployment insurance judge and the Commissioner's representative found their testimony credible. Because the record fails to support the city's claim that Severson violated city policy by "working" during his suspension, the city has failed to establish he committed misconduct so as to disqualify him from receiving reemployment insurance benefits. See Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (disqualifying misconduct must evince "wilful or wanton disregard" of employer's interest as is found in "deliberate violations or disregard of standards of behavior" which employer has right to expect of employee).

The second incident involved the city's claim that, prior to his suspension, Severson violated city policy by working for a trade show without permission. Severson did submit a written request to the police chief, however. After four months and no response, Severson allowed his union agent to ask on his behalf. The agent stated that he spoke to the city personnel director on two separate occasions and was assured that Severson could work at the show. Severson had worked at the show on previous occasions without incident.

By submitting a written request to the police chief many months prior to the show and then acting through his union agent, Severson made reasonable efforts to get permission pursuant to city policy. He, in good faith, believed that he had received that permission from the personnel director. This incident does not constitute disqualifying misconduct. See Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493-94 (Minn. App. 1987) (employee who believed she was acting in accordance with policy did not commit misconduct).

The city finally claims that this case should be remanded because it has further evidence to offer regarding Severson's past conduct. However, the city failed to raise this as an issue to the Commissioner's representative, and we decline to review it now on appeal. Cf. Jeane Thorne Temp. Serv., Inc. v. Elliot, 351 N.W.2d 393, 395-96 (Minn. App. 1984) (review of Commissioner's denial of relator's motion to remand to referee to allow relator to produce additional testimony).

Affirmed.