Torres

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

JABOUR, M. This matter is before the Court filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, (hereinafter cited as "the Board") which affirmed a Referee's decision that the claimant, Joe Torres (hereinafter cited as "claimant") was not entitled to receive employment security benefits. This matter has been referred to me for the making of findings and recommendations pursuant to section 8-8-16.2 of the General Laws.
FACTS AND TRAVEL OF THE CASE
Claimant was employed by MVC Enterprises as a manager for six years. On or about July 11, 2006, claimant was suspended from the job when an employee took a duplicate key (which claimant had made a copy and left unsecured) of the manager's office, accessed the safe key and removed funds from the safe. Because he was the manager at the time of the incident, he was suspended from the job.
The Director determined that the claimant was not entitled to employment security benefits under the Rhode Island Employment Security Act. A timely appeal was filed; a hearing before a Referee was held on September 21, 2006. The claimant and employer representative appeared and testified. Each party was represented by counsel.
The Referee engaged in fact finding to determine whether or not the clamant was discharged from the job under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. In his decision, the Referee concluded that
"An individual who is discharged for reasons of proven misconduct in connection with his work must be held to have been terminated under disqualifying circumstances under the provisions of Section 28-44-18 which provides, in part, as follows:

For the purposes of this section, misconduct shall be defined as deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee's incompetence. Notwithstanding any other provisions of chapters 42 - 44 of this title, this section shall be construed in a manner which is fair and reasonable to both the employer and the employed worker.

In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A.2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, "misconduct" as enunciated in Boynton Cab Co. v. Newbeck, 237 Wis. 249, 296 N.W. 636 (1941):

"'[M]isconduct' . . . is limited to conduct evincing such willful 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 interest 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. Id. at 259-60, 296 N.W. at 640."

The evidence presented establishes that it was the claimant's responsibility to maintain proper security protocol. The employer does not need to specify in writing that keys may only be utilized by authorized individuals. Based on the claimant's prior work experience, that is an understood situation. The claimant's subsequent making of a duplicate key and not properly securing that key does constitute negligence on the part of the claimant and a violation of the duties and responsibilities which an employer has a right to expect of their employee in a manager capacity. The claimant's suspension is under disqualifying conditions and benefits must be denied on this issue."

Referee, Decision, page 2.

The Referee's decision affirmed the Director's decision that the claimant was discharged under disqualifying circumstances as provided in Rhode Island General Laws § 28-44-18. Claimant filed an appeal before the Board of Review. Pursuant to Rhode Island General Laws § 28-44-47, the Board reviewed the Referee's decision and declared the decision to be the Board's decision. The Board determined that Referee's findings and conclusions of law were a proper adjudication of the facts and applicable law. The Board affirmed the Referee's decision.
A complaint was filed for judicial review; jurisdiction for review of the Board's decision is vested in the District Court by Rhode Island General Laws § 28-44-52.
STANDARD OF REVIEW
The Administrative Procedures Act sets forth the standard of review in Rhode Island General Laws § 42-35-15(g), which provides as follows:
42-35-15. Judicial review of contested cases.
(g) The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of
fact. The court may affirm the decision of the agency or
remand the case for further proceedings, or it may reverse
or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Thus, on questions of fact, the District Court "* * * may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are 'clearly erroneous.'" The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result.
The Supreme Court of Rhode Island recognized in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 200, 200 A.2d 595, 597 (1964) that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:
* * * eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family." G.L.1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act.

ANALYSIS
The issue before the Court is whether the decision of the Board was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous or affected by error of law.
The Board determined that claimant was discharged under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. This Court "must determine whether the decision is [m]ade upon unlawful procedure" or "affected by other error of law", Section 35-15(g)(3) and (4)." University of Rhode Island v. Department of Employment and Training, Board of Review, 691 A.2d 552, 554 (1997). Under the provisions of R.I.G.L. Section 28-44-18, "misconduct" is defined as "deliberate conduct in wilful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be a result of the employee's incompetence."
On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency. An employer representative as well as the claimant appeared and gave testimony before the Referee. Each party represented by counsel testified as to job duties and employer policies, respectively. On review, there was ample probative evidence for the Board to consider.
Upon careful review of the record, this Court should find that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." R.I.G.L. § 42-35-15(g)(5)(6).
CONCLUSION
I recommend that this Court find that the decision of the Board of Review was made upon lawful procedure and was not affected by error of law. Rhode Island General Laws § 42-35-15(g)(3),(4). Neither was it was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record nor arbitrary or capricious. Rhode Island General Laws § 42-35-15(g)(5),(6).
Accordingly, I recommend that the decision of the Board be AFFIRMED.

Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) citing R.I. Gen. Laws § 42-35-15(g)(5).

Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968).

Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986)