( Rapp ) ( Grady County - Richard G. Van Dyck ) AFFIRMED Jacquelyn Lollis, Chickasha, Oklahoma, Pro Se Plaintiff/Appellee Edward E. Evans, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, For Defendant/Appellant OPINION The Oklahoma Employment Security Commission (OESC) appeals an order denying its motion to reconsider a judgment in favor of appellee Jacquelyn Louis (Lollis) which sustains her administrative appeal of a decision denying unemployment benefits. BACKGROUND The facts are not disputed. Lollis was employed by Oklahoma Geriatric Mental Health (Employer) on November 2, 1999. Employer is subject to the provisions of the Oklahoma Nursing Home Care Act, which requires criminal background checks and bars employment of persons convicted of certain crimes. When Lollis applied for the position, she completed an application that asked whether she had been convicted of a crime by checking "no." At the time, she had no convictions, but she had been charged with felony crimes and the charges were pending. Lollis testified at the administrative hearing that she was not asked about pending charges and, had she been asked, would have disclosed the charges. Louis stated that she had not seen nor been provided Employer's policy manual provisions relating to crimes and convictions. Employer had no evidence showing that the manual had been provided to Louis so it was excluded from the administrative record.1 Lollis was hired and her work record was satisfactory. Employer hired anew administrator in January 2001. Upon discovering that a background check had not been performed on Lollis, the administrator caused a check to be made. The record check showed she was convicted on the charges and sentenced to probation in August 2000 and again in January 2001. The circumstances giving rise to the charges and convictions did not occur during employment with Employer. Lollis was terminated solely because of the charges,2 because the nature of the crimes excluded her from nursing home employment. Lollis filed for unemployment benefits and OESC denied the benefits. The denial was sustained on administrative review on the basis that Lollis was terminated for misconduct related to work, thereby being ineligible for unemployment benefits.3 Louis appealed to the District Court. There, the court ruled that the agency had misapplied the law applicable to misconduct related to work and reversed the decision denying benefits and thereafter denied the OESC's motion to reconsider. OESC appeals. STANDARD OF REVIEW OESC filed its Motion to Reconsider within ten days of the order and this motion is under Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, 9, 681 P.2d 757, 758-59, considered as the functional equivalent of a motion for new trial. As a general rule, a motion for new trial is addressed to the trial court's sound discretion and, absent error as to a pure and unmixed question of law, or arbitrary and capricious action, every presumption should be indulged in favor of the trial court's ruling on appeal. Bennett v. Hall, 1967 OK 122, 5, 431 P.2d 339, 340-41. The underlying decision was made in the context of a judicial review of an administrative decision. The cases was decided on a question of law. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. ANALYSIS AND REVIEW4 OESC's first proposition appears to assert that the trial court exceeded its review authority by failing to consider the facts presented to the Board of Review to be conclusive or presumptively correct. OESC asserts here the facts show that misconduct has been established. However, nothing in the trial court's decision supports the argument. The trial court ruled as a matter of law that the administrative hearing officer incorrectly defined misconduct.5 The trial court's secondary finding pertains to the absence of notice to Lollis about employer's policy. This is exactly what the hearing record shows and without contradiction. This argument is without merit. OESC next complains that the trial court deprived it of an opportunity to brief the issues contrary to the mandate of 75 O.S. 321 (2001).6 However, the record shows no request to file a brief and thus, absent denial, it cannot be said to have been deprived of the opportunity. Moreover, the petition for review was filed May 21, 2001. On June 1, 2001, the Board of Review filed its answer complete with the administrative record. Then, on June 7, 2001, the OESC filed its answer containing the sentence "Defendant reserves the right to submit a written brief upon receipt of the Record filed by the Board of Review." (Emphasis added.) This answer was served upon the Board of Review by interagency mail. A month and a half later, on July 20, 2001, the court rendered its decision. Thus, OESC either had, or easily could have had, the record, well before the court's decision, but, in any event, OESC simply did not request to file a brief according to the record here. The contention is wholly without merit. The final issue here is whether the trial court erred in its legal conclusion drawn from the facts. The Oklahoma Supreme Court approved the following limitation of the definition of misconduct: "To conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute." Vester v. Board of Review of Oklahoma Employment Security Commission, 1985 OK 21, 12, 697 P.2d 533, 537. The Court's decision stated that it was error to narrow the definition. "Thus, we find the adoption by the Appeals Tribunal referee of a definition of misconduct which definition requires only an act or course of conduct detrimental to an employer's best interest, without the element of willfulness or culpable negligence, to be contrary to the expressed purpose and intent of the Oklahoma Employment Security Act, and to be erroneous as a matter of law." Vester, 1985 OK 21 at 15, 697 P.2d at 538 (emphasis added). It is this error which the trial court avoided and from which OESC's argument suffers. The record is devoid of evidence that could lead to a conclusion of willfulness or culpable negligence on the part of Lollis. Therefore the decision of the trial court is affirmed. AFFIRMED. GOODMAN, P.J., and REIF, J., concur. (FOOTNOTES): 1 Trial Court Record, p. 18-19. 2 Trial Court Record, p. 21. 3 Trial Court Record, p. 28-29. "An individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission. Disqualification under this section shall continue for the full period of unemployment next ensuing after he has been discharged for misconduct connected with his work and until such individual has become re-employed and has earned wages equal to or in excess of ten (10) times his weekly benefit amount." 4 Louis has not filed a brief here, but she filed a statement explaining why and stating that she stands on the record. Thus, she has made known her position. In any event the failure to file an answer brief does not result in automatic reversal. Hamid v. Sew Original, 1982 OK 46, 7, 645 P.2d 496, 497. 5 The definition of misconduct presents a question of law. Nordam v. Board of Review of Oklahoma Employment Security Commission, 1996 OK 110, 12, 925 P.2d 556, 559. 6 The statute 75 O.S. 321 provides: "The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs." Not Published