This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-132

 

Allan Wayne Anderson,
Relator,

vs.

Arrowhead Regional Corrections,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

Filed August 23, 2005

Affirmed

Peterson, Judge

 

 

Department of Employment and Economic Development

File No. 14388 04

 

 

Allan Wayne Anderson, 324 Sixth Street, Cloquet, MN  55720 (pro se relator)

 

 

Alan L. Mitchell, St. Louis County Attorney, Dale O. Harris, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802-1298 (for respondent Arrowhead Regional Corrections)

 

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department of Employment and Economic Development)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Relator Allan Wayne Anderson challenges the decision of the senior unemployment review judge[1] that he was discharged from employment for misconduct, disqualifying him from receiving unemployment benefits.  Anderson’s discharge resulted from Anderson losing his driver’s license following a DWI conviction.  We affirm.

FACTS

            From February 1997 until August 16, 2004, Anderson was employed as a corrections counselor by respondent Arrowhead Regional Corrections (ARC) at the Northeast Regional Corrections Center (NERCC).  The requirements for Anderson’s position included that he be able to provide transportation for residents “when regular methods of transportation are unavailable due to emergency scheduling.”  NERCC superintendent Warren Salmela testified that transportation is an essential function of a corrections officer.  A driver’s license is required to perform this function.  Anderson had a driver’s license when he was hired. 

            Anderson was arrested for DWI in April 2003.  His conviction became final in May 2004.  His sentence included ineligibility for a driver’s license until he maintains abstinence for six years after the offense date.  ARC discharged Anderson because he no longer had a driver’s license and because a criminal conviction of a staff member diminishes the credibility of a correctional facility. 

Anderson has been an alcoholic since the late 1970s or early 1980s and underwent chemical-dependency treatment during that time.  Anderson had three prior alcohol-related driving offenses between October 1980 and June 1982.  Anderson maintained sobriety for about 20 years following treatment.  At the time of the 2003 offense, Anderson’s license was subject to a no-alcohol restriction.  Anderson understood that another DWI conviction would result in the loss of his driver’s license and that the loss of his license would cause problems with his employment. 

D E C I S I O N

            An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Whether an employee has committed employment misconduct presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The senior unemployment review judge determines the fact question of whether an employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  The factual findings of the senior unemployment review judge are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metro.  Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  This court reviews de novo whether the employee’s actions constituted employment misconduct that disqualifies the employee from receiving unemployment benefits.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            Minn. Stat. § 268.095, subd. 6 (2004), states:

            (a) Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.

 

            (b) Conduct that was a direct result of the applicant’s chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency.

 

            . . . .

 

            (d) A driving offense in violation of sections 169A.20, 169A.31, or 169A.50 to 169A.53 that interferes with or adversely affects the employment is employment misconduct.

 

Anderson was convicted of fourth-degree driving while impaired.  See Minn. Stat. § 169A.27 (2002) (defining fourth-degree driving while impaired as a violation of Minn. Stat. § 169A.20).  Anderson argues that ARC should have accommodated him because the offense resulted from his chemical dependency.  While subsection (b) generally provides that conduct that directly results from chemical dependency is not employment misconduct, subsection (d) applies specifically to alcohol-related driving offenses.  When statutory provisions conflict, a specific provision prevails over a general provision.  Minn. Stat. § 645.26, subd. 1 (2004); see also Markel v. City of Circle Pines, 479 N.W.2d 382, 385 (Minn. 1992) (in holding that DWI was employment misconduct (prior to the enactment of subsection (d)), the supreme court noted the culpability of driving under the influence and the legislature’s determination of the seriousness of this offense).

Anderson argues that the loss of his driver’s license did not interfere with or adversely affect his employment.  But Salmela testified that transportation is an essential function of a corrections officer, and a driver’s license is required to perform that function.  This court defers to the senior unemployment review judge’s ability to weigh conflicting evidence and make credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

Anderson argues that this case is distinguishable from Markel because, here, ARC did not discharge him until 16 months after his arrest.  But Anderson’s conviction did not become final until May 2004, and ARC discharged him three months later, upon learning that he would be ineligible for a driver’s license for at least six years.

The senior unemployment review judge properly determined that Anderson was discharged from employment for misconduct and, therefore, is disqualified from receiving any unemployment benefits.

Affirmed.