This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Mark G. McKay,


Midwest Patrol,

Commissioner of Economic Security,

Filed October 5, 1999
Short, Judge

Department of Economic Security
File No. 8315UC98

Mark G. McKay, 8802 Knollwood Drive, Eden Prairie, MN 55347 (pro se relator)

Mark R. Gleeman, Maun & Simon, PLC, 2000 Midwest Plaza Building West, 801 Nicollet Mall, Minneapolis, MN 55401 (for respondent Midwest Patrol)

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

Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Mark G. McKay worked for Midwest Patrol, a security company, as a manager of information technology from December 29, 1997, through September 16, 1998. On September 17, 1998, Midwest Patrol terminated McKay's employment for failing to report to work and for violating multiple company policies. By writ of certiorari, McKay appeals from the commissioner's decision disqualifying him from reemployment insurance benefits. We affirm.


The reemployment insurance fund is available only to persons involuntarily "unemployed through no fault of their own." Minn. Stat. § 268.03, subd. 1 (1998). A claimant is disqualified from benefits if the claimant was discharged from employment due to misconduct that adversely affected that employment. Minn. Stat. § 268.095, subd. 4 (1998); see also Minn. Stat. § 268.095, subds. 5, 6 (1998) (defining discharge and misconduct). We will not disturb a determination by the commissioner's representative that a claimant committed misconduct if the evidence reasonably sustains the decision and it is not contrary to the law. See Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (noting appellate review of commissioner's factual findings is limited and viewed in light most favorable to decision); Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984) (concluding determination by commissioner's representative of misconduct is mixed question of fact and law).

McKay argues the commissioner's representative erred in concluding he had committed misconduct that adversely affected employment. See Colburn, 346 N.W.2d at 161 (concluding misconduct occurs when employee deliberately chooses course of action adverse to employer). But McKay was familiar with the employer's employee handbook which allows for discharge of employees who violate the company's policies requiring notification of a supervisor prior to work absences, requiring notification to a company official of any arrest that may prevent the employee from being able to perform work duties, prohibiting conduct that conflicts with the security nature of the company or adversely affects the reputation of the company, and prohibiting use of company property for personal reasons. The record demonstrates: (1) on Saturday, September 12, 1998, McKay was arrested for criminal sexual conduct and the police seized a computer from McKay's home; (2) McKay was held in jail and did not go to work on Monday, Tuesday, or Wednesday, September 14 through 16; (3) the employer learned of McKay's arrest through media publicity and, through the police, discovered McKay's use of a company computer to download pornographic material; (4) McKay did not contact his supervisor until Tuesday, September 15, after his supervisor attempted to page him; and (5) the employer began termination proceedings on September 16, effective September 17.

McKay deliberately chose a course of action that was adverse to the interests of his employer when he failed to comply with the employee handbook by neglecting to contact his employer regarding his absences and arrest, using a company computer in an unauthorized manner, and participating in conduct that could negatively affect the reputation of the security company. See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (noting violations of employer's policies constitutes misconduct), review denied (Minn. Aug. 20, 1986); Duc Van Luu v. Carley Foundry Co., 374 N.W.2d 582, 584 (Minn. App. 1985) (concluding incarcerated claimant had responsibility to follow employer's policy requiring employees to call in prior to their absences, whether or not claimant was guilty of charges against him); Schmidt v. City of Duluth, 346 N.W.2d 671, 674 (Minn. App. 1984) (determining law enforcement agency had right to expect employee to refrain from criminal conduct whether on-duty or off-duty). Given these facts and the scope of our review, we conclude the evidence supports the commissioner's findings of fact and determination that McKay was discharged due to misconduct. See Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (noting when employer makes reasonable request that does not impose undue burden on employee, employee's refusal to comply with request constitutes misconduct).


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