This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Kirstin M. Johnson,



Toohey's Bar & Grill Inc.,


Commissioner of Economic Security,


Filed November 17, 1998


Anderson, Judge

Department of Economic Security

Agency No. 10309 UC 97

Gerald (Jud) E. DeLoss, James F. Sheldon, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for relator)

Toohey's Bar & Grill Inc., 3809 Hwy. 13, Burnsville, MN 55337 (respondent pro se)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Holtan, Judge.[*]



Relator Kirstin M. Johnson appeals the commissioner's representative's findings of fact that relator committed misconduct while employed as assistant restaurant and bar manager. We affirm.


Respondent Toohey's Bar & Grill Inc. employed relator Kirstin M. Johnson as assistant restaurant and bar manager. Relator oversaw the closing and cleanup of the bar. On the morning of November 3, 1997, relator closed the bar shortly before 4:00 a.m. Soon after leaving, one of the employees was stopped by a police officer who gave her an alcohol breath test after smelling alcohol on her. The test showed a warning, indicating that the employee was near the legal limit. The officer again went to the bar on November 10th at about 4:00 a.m. He talked to the same employee again, along with another employee, and could smell alcohol on their breath. Relator then locked the bar after 4:00 a.m. Later that same day, the officer told Wanda Toohey, the owner of Toohey's Bar and Grill, that "if we catch [employees] drinking, it is her license and she may want to talk to [the employees]." It is illegal for employees of liquor establishments to consume intoxicating liquor beyond 30 minutes after closing hours. Burnsville, Minn., Code § 3-1-8-5(G).

On November 13, 1997, relator was discharged from her employment for allowing employees to drink alcoholic beverages after the statutory closing time, jeopardizing the employer's license, and for staying at the bar too late.

After receiving statements from relator, Wanda Toohey, and the police officer, an adjudicator at the Minnesota Department of Economic Security determined that relator had been terminated for misconduct. Relator appealed, and both relator and Toohey appeared at an administrative appeal hearing and provided sworn testimony. Toohey entered into evidence the transcript of the police officer's telephone statement, which had been taken for the initial determination by the Minnesota Department of Economic Security.

Toohey admitted that she had allowed employees to have one cocktail at closing time while they were counting out the cash registers, which would occur after 1:00 a.m. Relator admitted, however, that it was her responsibility to see that no one drank after hours. Toohey also stated that relator had been warned on occasion by several managers that she was staying at the bar too late.

The reemployment insurance judge affirmed the decision after finding that relator was discharged for misconduct that interfered with and adversely affected relator's employment.

Relator filed a notice of appeal with the Minnesota Department of Economic Security. Respondent Commissioner of Economic Security (the commissioner's representative) reviewed the case. Based on the sworn testimony and other evidence submitted at the hearing before the reemployment insurance judge, and after considering the arguments submitted by the parties, the commissioner's representative made the following findings of fact and thus disqualified relator from unemployment benefits because of misconduct:

The [relator] was employed by Toohey's Bar and Grill from January 1996 until November 13, 1997. The [relator] was employed as the assistant manager on a full-time basis.

The [relator's] duties required her to close the bar, and allow no drinking of alcoholic beverages after the one a.m. close time required by law.

On November 10, 1997 the [relator] allowed the consumption of alcoholic beverages on the employer's premises after one a.m.

On November 13, 1997 the [relator] was discharged for allowing the drinking of alcoholic beverages after one a.m.

Relator challenges the commissioner's representative's finding of fact that, while she was acting as a manager, she allowed employees to consume alcohol after the legal closing hour. Relator also challenges the representative's conclusion of law that relator's actions constitute misconduct.


An employee who is discharged for misconduct that interfered with and adversely affected the employment is disqualified from receiving reemployment insurance benefits. See Minn. Stat. § 268.09, subd. 10 (Supp. 1997). The employer bears the burden of proving that an employee is disqualified from receiving benefits. Marz v. Department of Emp. Servs., 256 N.W.2d 287, 289 (Minn. 1977). The employer must establish misconduct by the greater weight of the evidence. Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

Whether an employee has committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner's representative's findings of fact must be viewed in a light most favorable to the representative's decision and will not be disturbed if the record contains evidence that reasonably tends to support the findings. Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992). This court reviews the findings of the commissioner's representative rather than the findings of the reemployment insurance judge who held the hearing. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). This court defers to the commissioner's representative's credibility determinations. Dean v. Allied Aviation Fueling, Co., 381 N.W.2d 80, 83 (Minn. App. 1986). The issue of whether an employee's "acts constitute misconduct is a question of law upon which this court is `free to exercise its independent judgment.'" Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997) (quoting Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989)).

Relator argues that the representative's findings of fact were based solely on hearsay rather than upon the sworn testimony and exhibits submitted at the hearing. Relator also argues that Toohey's failed to satisfy its burden of proof for establishing misconduct.

Based on the record, the commissioner's representative determined that relator was required to allow no drinking of alcoholic beverages after 1:00 a.m. as required by law, that relator did allow this to occur, and that she was discharged for doing so. The representative recognized that, although the employer's evidence consists of hearsay, the court of appeals has made it clear that hearsay can support a finding of misconduct. See Youa True Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985).

Economic security hearings may be conducted in conformance with the Commissioner's own rules, whether or not they are technically in compliance with the Minnesota Rules of Evidence or other rules of procedure. Hearsay may be admissible and sufficient to support the Commissioner's decision. A decision regarding the credibility of witnesses rests within the discretion of the Commissioner, and the testimony should not be reweighed on appeal.

Id. (citations omitted).[1]

The statements of the police officer that he could smell alcohol on the breaths of employees were apparently found by the commissioner's representative to be more credible than the statements of relator. See id.; see also Holton v. Gnan Trucking, Inc., 379 N.W.2d 571, 574 (Minn. App. 1985) (reversing a decision by commissioner's representative after determining that out of court statements of witnesses were credible because the witnesses had no reason to fabricate complaints or to color their observations); cf. Posch v. St. Otto's Home, 561 N.W.2d 564, 566 (Minn. App. 1997) (hearsay evidence unwarranted because hearsay statement was suspect on face because of obvious reason for statement's fabrication).

We conclude that the evidence supports the commissioner's representative's findings of fact that relator committed misconduct.

The Minnesota legislature defines misconduct as:

[I]ntentional conduct showing a disregard of:

the employer's interest;

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

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 employer. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. § 268.09, subd. 12 (Supp. 1997).

Relator contends that, even if it is accepted as true that relator allowed employees to drink alcoholic beverages after the legal closing time, this would not amount to misconduct. Allowing the consumption of alcohol in the bar after hours is illegal and can result in the revocation of the employer's liquor license. See Burnsville, Minn., Code § 3-1-8-5(G) (prohibiting alcohol consumption by employees 30 minutes after legal closing time); Minn. Stat. § 340A.415 (1996) (violations can result in revocation of license). Therefore, the conduct demonstrates a disregard of the employer's interest. See Minn. Stat. § 268.09, subd. 12. Additionally, relator admitted that it was her responsibility to see that no one drank after hours. Toohey also stated that relator's pattern of staying late was a reason for relator's discharge because relator had previously been warned about this behavior.

Relator allowed others to drink after work, repeatedly failed to leave the bar at a reasonable time, and jeopardized Toohey's liquor license. Relator's intentional conduct shows a disregard of Toohey's interest as well as a disregard of the standard of behavior that Toohey had a right to expect of the relator. See id. We conclude that the commissioner's representative did not err in determining that relator is disqualified from receiving reemployment insurance benefits because of 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.

[1]The court in Youa True Vang, while discussing the rules for conducting an Economic Security hearing, cited to Minn. Stat. § 268.10, subd. 6 (1984), which was repealed and replaced by Minn. Stat. § 268.105, subd.1 (Supp. 1997). Essentially, section 268.105 rephrases the repealed statute.