This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Thomas T. Crumpton,



Minnesota Department of Natural Resources,


Commissioner of Economic Security,


Filed August 10, 1999


Kalitowski, Judge

Department of Economic Security

File No. 4907UC98

Thomas T. Crumpton, 1632 County Road 85, Birchdale, MN 56629 (pro se relator)

Minnesota Department of Natural Resources, Human Resources Bureau, 500 Lafayette Road, Box 49, St. Paul, MN 55155 (respondent)

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

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.[*]



Relator Thomas T. Crumpton, formerly a Department of Natural Resources (DNR) forester, argues the commissioner's representative erred in concluding relator's off-duty conduct of firing a rifle in the direction of two persons netting fish along the border between Minnesota and Canada constituted disqualifying misconduct. We affirm.


When reviewing a decision of the commissioner's representative, this court must ask whether there is reasonable support in the evidence to sustain the decision. Tuff v. Knitcraft Corp, 526 N.W.2d 50, 51 (Minn. 1995). The findings of the commissioner's representative must be viewed in the light most favorable to the decision, and they will not be disturbed on appeal if there is any evidence reasonably tending to sustain them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An employee discharged from his or her employment for misconduct is not entitled to unemployment compensation. Minn. Stat. § 268.095, subd. 4 (1998). The employer has the burden of proving that an employee has committed "misconduct." Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 877 (Minn. App. 1993). Whether an employee has committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). But whether the findings support a determination of misconduct is a question of law upon which this court may exercise its independent judgment. Hayes v. Wrico Stamping Griffiths Corp., 490 N.W.2d 672, 674 (Minn. App. 1992).

Misconduct is defined as intentional conduct showing a disregard of

(1) the employer's interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. § 268.095, subd. 6 (1998).

The commissioner's representative determined that relator committed disqualifying misconduct because: (1) he violated the DNR's policy of zero tolerance of violence in the workplace; and (2) he violated the DNR's policy requiring DNR employees to report alleged violations of the hunting and fishing rules and regulations to the nearest DNR enforcement officer and to refrain from getting personally involved with alleged violators. The persons netting the fish were not violating fishing laws but were exercising their rights as members of the Manitou First Nations Band of Canadian Indians. Thus, the record supports the finding of the commissioner's representative that the DNR considered the matter an international incident with the potential to escalate into a violent confrontation. The commissioner's representative concluded that even though the incident occurred while relator was off-duty, relator "could no longer effectively perform his duties as a forester."

Relator argues the DNR failed to establish that: (1) as a result of the shooting incident, he could no longer perform his duties as a DNR forester; and (2) the DNR policies at issue apply to off-duty conduct. We disagree.

An employer has a right to expect an employee to abide by reasonable policies and procedures. See McGowan v. Executive Express Transp. Enter., Inc., 420 N.W.2d 592, 596 (Minn. 1988) (noting that an employer "must be allowed to expect that reasonable orders will be followed"); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (stating that generally, it is misconduct to refuse an employer's reasonable request that does not impose an unreasonable burden on an employee). It is undisputed that the DNR had a policy requiring nonenforcement employees to report promptly alleged violations of the fish and games laws to DNR enforcement officers and not to become involved personally. In addition, although the DNR policy of zero tolerance of violence in the workplace is silent on the issue of off-duty conduct by DNR employees, two cases from this court are instructive.

In Schmidt v. City of Duluth, 346 N.W.2d 671 (Minn. App. 1984), we held that an employee's off-duty conduct could constitute disqualifying misconduct. In Schmidt, the employee was a senior animal shelter technician whose duties included the maintenance of the animal shelter, care of animals, and enforcement of animal control ordinances. Id. at 672. The employee was convicted of second-degree assault after he and a friend became intoxicated and fired three shots from a shotgun at a house to frighten the inhabitants. Id. at 673. The employee claimed that the gross misconduct was not sufficiently connected with his work to matter, and that it did not interfere with or adversely affect his ability to perform his job duties. Id. at 674. This court disagreed, holding that the standard to be applied in such a situation is "whether, by reason of his action, [the employee] can no longer effectively perform the services for which he was employed," and further stating:

As a public employee whose function was, in part, to ensure compliance with and enforcement of laws and ordinances, the [employer] had the right to expect the [the employee] to refrain from criminal conduct whether on-duty or off-duty. [The employee's] involvement and active participation in shooting at an occupied residence violated standards which the employer had a right to expect of him.


In Ballin v. Metropolitan Transit Comm'n, 525 N.W.2d 11, 11-12 (Minn. App. 1994), a bus driver was terminated after he pleaded guilty to possession of marijuana with intent to sell. The employee's actions were committed while he was off-duty. Id. at 11. This court agreed with the determination of the commissioner's representative that the bus driver committed disqualifying misconduct because, as a bus driver, the employee (1) was a public employee; (2) was the ambassador to the public for his employer; (3) was working in a safety-sensitive position; (4) was responsible for maintaining order on the bus and reporting inappropriate or illegal conduct to his employer; and (5) had unsupervised contact with the public on a daily basis. Id. at 14. We noted further that although the employee was physically and legally able to perform his job after the conduct that resulted in his termination, the conviction constituted gross misconduct that interfered with and adversely affected the employee's employment. Id.

We conclude that Schmidt and Ballin establish that an employee's off-duty conduct can constitute disqualifying misconduct where, by reason of the off-duty actions, the employee can no longer effectively perform the duties for which he or she was hired. Here, like the employees in Ballin and Schmidt, relator was in a visible position of public trust and confidence as a representative of the public agency responsible for safeguarding Minnesota's natural resources. By his actions, relator created an international incident involving the Canadian government and the Manitou First Nations Band of Canadian Indians. The incident reflected poorly on the DNR, affected the DNR's reputation, and called relator's decision-making ability into question.

Given the seriousness of the incident, the public nature of relator's position, the negative publicity the DNR received, and relator's violations of the DNR's zero violence and reporting policies, we conclude that relator violated the standards that the DNR had a right to expect of him. The findings of the commissioner's representative are reasonably supported by the record evidence, and we agree that because relator could no longer effectively perform his job duties, his actions constituted disqualifying misconduct.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.