Dean v. South Dakota Department of Labor

HENDERSON, Justice

(dissenting).

I dissent. The South Dakota Department of Labor and the trial court have erred as a matter of law. Their decisions should be accordingly reversed.

Appellant was a hardworking, faithful employee of the Pennington County Auditor’s Office for approximately 22 years. Appellant developed high blood pressure, hypertension, reactive depression, and was placed upon medication by a psychiatrist and a physician. The Pennington County Auditor knew that appellant had health and mental health problems. As a result of a shoplifting incident, appellant was demoted to a clerk-typist position. This had absolutely nothing to do with her work. Approximately one and one-half years later, appellant was charged with a second shoplifting incident which arose during a vacation. After the vacation, appellant was placed on sick leave and the Pennington County Auditor advised her to seek psychiatric counseling, which she did.

After the psychiatric counseling and treatment, appellant sought to return to her job but was advised by the Pennington County Auditor that she was being discharged, but would be allowed to use her remaining sick leave and vacation time. There was nothing to ever suggest that appellant was dishonest in her employment or that she was anything but a good, faithful employee. No acts of dishonesty were ever attributed to her in her capacity as a deputy clerk. The County Auditor discharged appellant believing that the shoplifting charges involved moral turpitude and the employees in the County Auditor’s Office were held to standards of public trust and honesty. There were no policies in force governing off-duty conduct of employees during nonworking hours. There were no policies in force governing on-duty conduct, such as regulations pertaining to public trust and honesty. Were there, or had there been, the fact still remains that appellant always displayed hon*784esty and upheld public trust in the discharge and performance of her employment duties.

The entire issue is whether or not appellant is entitled to unemployment insurance benefits. The issue is not whether appellant should have been discharged from her employment. Appellant has been discharged and she is not appealing from that decision. The question is whether appellant was discharged from the Auditor’s Office for misconduct connected with her work for unemployment compensation insurance purposes.

It is undisputed, under the facts, that there was no misconduct by appellant concerning her duties while she attended to her work. It is absolute error for the trial court and the South Dakota Department of Labor to hold that two shoplifting incidents were misconduct connected with appellant’s work. SDCL 61-6-14 is the governing statute and it provides:

An unemployed individual who was discharged or suspended from his most recent employment, such employment being at least thirty calendar days in duration for misconduct connected with his work shall be denied benefits until he has been reemployed at least six calendar weeks in insured employment during his current benefit year and earned wages of not less than his weekly benefit amount in each of those six weeks. When additional claims are filed by a claimant during a benefit year subsequent to employment, the thirty calendar day requirement shall not be applied in determining disqualifications. (Emphasis supplied mine.)

The South Dakota Department of Labor and the trial court disqualified appellant from receiving her unemployment compensation benefits because she was discharged for being charged and arrested in two shoplifting incidents, both occurring during nonworking hours and away from her place of employment.

We have no right to rewrite the unemployment insurance statutes of this state. See Chamberlin v. Dep’t of Employment Security, 136 Vt. 571, 396 A.2d 140 (1978); Przekaza v. Dep’t of Employment Security, 136 Vt. 355, 392 A.2d 421 (1978). The provision speaks for itself. Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984). It is improper for the South Dakota Department of Labor to interpret an unemployment compensation statute to make eligibility requirements more restrictive than intended by the plain language enacted by the legislature. Red Bear v. Cheyenne River Sioux Tribe; 336 N.W.2d 370 (S.D.1983). The South Dakota Department of Labor’s interpretation of the terms “misconduct connected with his work,” as specified in SDCL 61-6-14, cannot exceed the limits of the statutory intent. Red Bird v. Meierhenry, 314 N.W.2d 95 (S.D.1982).

I am authorized to state that Justice MORGAN joins in this dissent.