John R. Schmieg, Relator, vs. Metropolitan Council, Respondent, Commissioner of Economic Security, Respondent. C7-96-1953, Court of Appeals Unpublished, February 11, 1997.

This opinion will be unpublished and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

C7-96-1953

John R. Schmieg,

Relator,

vs.

Metropolitan Council,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed February 11, 1997

Affirmed

Schumacher, Judge

Department of Economic Security

File No. 5498UC96

John R. Schmieg, 1158 East Fifth Street, St. Paul, MN 55106 (Appellant Pro Se)

Diane M. Cornell, Associate General Counsel, Mears Park Centre, 230 East Fifth Street, St. Paul, MN 55101-1634 (for Respondent Metropolitan Council)

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

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

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

SCHUMACHER, Judge

John R. Schmieg appeals from the denial of reemployment benefits, arguing respondent Commissioner of Economic Security erred in concluding Schmieg was disqualified by reason of gross misconduct. We affirm.

FACTS

Schmieg was a city bus driver for respondent Metropolitan Council (MCTO).[1] On October 5, 1994, Schmieg was at home and off-duty when he shot at two cars with his handgun. Schmieg alleges the cars contained "skinheads" who were trying to force his son to join their group. Schmieg was identified by witnesses as an MCTO bus driver because he was still wearing his uniform.

Schmieg was arrested and pleaded guilty to second-degree assault with a dangerous weapon. Schmieg was sentenced to 30 days in the workhouse and 7 years probation. Schmieg took sick leave from work and was incarcerated between August 2 and September 2, 1995. Schmieg never informed MCTO of his felony, and MCTO did not know he was serving jail time during sick leave.

In late 1995, MCTO began investigating Schmieg in an unrelated workers' compensation claim. On May 20, 1996, the investigator informed MCTO of Schmieg's felony conviction. MCTO's "Rules of Employee Conduct" provide that an employee convicted of a felony "occurring either on or off duty may be subject to disciplinary action up to and including dismissal." On May 24, 1996, Schmieg was discharged because he had a felony conviction, he committed the felony while in his uniform, and for his overall work record.

Schmieg applied for reemployment benefits, but was disqualified because the reemployment judge held that the felony amounted to gross misconduct. The Commissioner's representative affirmed the disqualification. Schmieg appeals.

D E C I S I O N

Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Ballin v. Metropolitan Transit Comm'n, 525 N.W.2d 11, 12 (Minn. App. 1994). The Commissioner's representative's findings should be viewed in the light most favorable to the decision and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Manos v. First Bank Minnehaha, 357 N.W.2d 372, 375 (Minn. App. 1984). The ultimate determination whether an employee committed gross misconduct is, however, a conclusion of law to which this court need not defer. See Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426, 427 (Minn. App. 1987).

1. The Commissioner's representative found that Schmieg had committed a felony that constituted gross misconduct. An individual is disqualified from receiving benefits if he or she was discharged for gross misconduct connected with the work or that interferes with and adversely affects his or her employment. Minn. Stat. § 268.09, subd. 1(d) (1996). Gross misconduct is defined as any act "the commission of which amounts to a felony * * *." Id. Schmieg's felony conviction is per se gross misconduct. The only issue is whether Schmieg's gross misconduct "interfered with and adversely affected his employment so as to disqualify him from receiving benefits." Ballin, 525 N.W.2d at 12.

Schmieg argues that he was just trying to protect his family, that he was not the aggressor, and that his felony did not affect his employment. In Ballin, this court affirmed the disqualification of benefits to a bus driver who was convicted of selling illegal drugs while off-duty. Id. at 14. The reasoning in Ballin applies equally here. This court agreed with the Commissioner's representative that a bus driver is in a position of "high visibility and trust" and to allow the driver's continued employment after gross misconduct would "violate a public trust and be harmful to [the employer's] interests." Id. at 12-13. Like the bus driver in Ballin, Schmieg was a public employee who worked in a

safety-sensitive position entrusted with the lives of hundreds of passengers each day, he was the ambassador to the public for his employer, his duties included keeping order on the bus and reporting inappropriate or illegal conduct to his employer, and he had unsupervised contact with the public on a day-to-day basis.

Id. at 14.

Schmieg's felony showed a reckless disregard for life. Such recklessness directly interferes with Schmieg's employment and MCTO's interests as an employer. We conclude that Schmieg's actions constitute gross misconduct that interfered with and adversely affected his employment so as to disqualify him from receiving benefits.

2. Schmieg argues that MCTO knew of the felony in November 1994 and used it as a pretext to avoid his workers' compensation claim in 1996. This argument is without merit. The record shows that the police contacted MCTO in 1994 to verify Schmieg's employment but did not disclose the underlying reason for the call. Schmieg points to no evidence in the record to support his position.[2]

3. Schmieg argues MCTO should not be able to terminate him for misconduct when it has not terminated other employees with known felony records. We disagree. MCTO's own rule is permissive. MCTO "may" take disciplinary action "up to and including termination." Moreover, the violation of an employer's rules by other employees is not a valid defense to a claim of misconduct. Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

Affirmed.

[ ]¹ The Metropolitan Council operates the public transportation system under the name Metropolitan Council Transit Operations (MCTO).

[ ]² We did not consider the document in Schmieg's appendix because it was not part of the record below. Minn. R. Civ. App. P. 110.01; Imprint Tech., Inc. v. Commissioner of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995).