This appeal is from a decision of the Board of Review disqualifying appellant from receiving unemployment compensation benefits pursuant to Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976). The Board held that appellant was guilty of misconduct in connection with the work based on a finding that appellant knowingly engaged in a course of conduct which was in violation of the ethical and moral standards to which the employer had a right to expect and that her actions were a willful disregard of the employer’s best interest within the meaning of the above-cited statute.
Appellant was employed by the Flippin School District as a teacher. On January 16, 1982, appellant’s husband was injured in a one-car automobile accident. After appellant’s husband was taken to the hospital, members of the Marion County Sheriff’s Department went to the accident scene to investigate and to insure that no other person had been injured. During the investigation, the sheriff’s deputies found hashish in and around the car. They returned to the hospital where appellant and her husband were questioned by the Sheriff’s Office, at which time appellant consented to a search of their home. As a result of the search, the sheriff’s deputies found drug paraphernalia, marijuana, and hash oil.
On Monday, January 18, 1982, appellant called the principal of the school and told him that she would not be at school because her husband was in the hospital. Later that day appellant and her husband were charged with possession of a controlled substance. News of the arrest was carried on local radio programs and in newspaper reports. On January 21, 1982, appellant was notified by the superintendent that she was suspended with pay. On March 11, 1982, a school board hearing was held and appellant’s teaching contract was terminated.
On March 18, appellant filed a claim for unemployment compensation benefits which was denied by the agency on April 8. Appellant appealed and two Appeals Tribunal hearings were held. The appeals referee reversed the agency and found that appellant had been discharged for reasons other than misconduct in connection with the work. The employer appealed that decision to the Board of Review and the Board reversed the appeal referee’s decision and denied benefits under the provisions of Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976). It is from that decision that appellant takes this appeal.
Appellant argues on appeal that the decision of the Board of Review that she was discharged because of misconduct connected with her work is not supported by substantial evidence.
On appellate review the findings of fact of the Board of Review are conclusive if supported by substantial evidence, and we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its result upon the evidence before it, and a review court is not privileged to substitute its findings for those of the Board even though the court might have reached a different conclusion if it had made the original determination upon the same evidence. Hodnett v. Daniels, 271 Ark. 479, 609 S.W.2d 122 (Ark. App. 1980).
Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976) provides:
. . . [A]n individual shall be disqualified for benefits: (1) If he is discharged from his last work for misconduct in connection with the work.
This court has on many occasions construed the term “misconduct”. In Nibco, Inc. v. Metcalf, et al., 1 Ark. App. 114, 613 S.W.2d 612 (1981), this court abstracted pertinent decisions dealing with the term “misconduct” and summarized those decisions as follows:
And while the language used is not exactly the same in each case, they say that misconduct involves: (1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer.
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
Whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance, is a question of fact for the Board of Review to determine. Arlington Hotel v. Employment Security Division, 3 Ark. App. 281, 625 S.W.2d 551 (1981).
Appellant argues that her conduct, as a matter of law, cannot be said to amount to misconduct because: (1) she was acquitted of criminal charges, (2) she did not admit to the use of marijuana until the time of her criminal trial, thus, she could not have been discharged on the grounds of this statement and, (3) she had no control over the amount or type of publicity that arose from her arrest and thus her actions could not be said to be willful or intentional.
As to appellant’s first point above, this court has recently held in Lakeside School v. Harrington, 8 Ark. App. 205, 649 S.W.2d 847 (1983), that “[t]he disposition of criminal charges is a factor which the Board may consider in determining whether a worker’s actions constituted ‘misconduct in connection with the work’, but it does not decide the issue.” In Food Fair Stores, Inc. v. Commonwealth of Pennsylvania, 11 Pa. Cmwlth. 535, 314 A.2d 528 (1974), the court held that the employee was guilty of willful misconduct precluding unemployment compensation benefits even though he was acquitted of criminal charges arising out of the activity which brought about his discharge.
Appellant’s contention that her admission to the use of marijuana during her criminal trial could have no bearing on her discharge since it was made after her discharge is without merit. There is no evidence that her admission to the use of marijuana was the basis for her discharge, but instead, the basis of her discharge was her involvement with illegal drugs which brought about her arrest and the related publicity which rendered her ineffective as a classroom teacher.
Appellant’s argument that her acts were not willful because she had no control over her personal life becoming a matter of public knowledge is not determinative. Through the course of events, her conduct did become a matter of public knowledge and interest and appellant knew or should have known that her conduct, if and when it became known, would be against her employer’s best interest. Moreover, we reiterate, “whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance is a question of fact for the Board of Review to determine.” Arlington Hotel v. Employment Security Division, supra.
We hold that the Board of Review’s decision that appellant’s conduct constituted misconduct is supported by substantial evidence.
As stated above, the principle of what constitutes “misconduct” under Ark. Stat. Ann. § 81-1106 (b) (1) has been construed by this Court on many occasions and is relatively well-settled. Less settled is what constitutes “misconduct in connection with the work" when the actions purporting to constitute misconduct occur while a claimant is off-duty and not on the employer’s premises, which is the question presented in the case at bar.
Statutes are to be construed with reference to the public policy which they are designed to accomplish. Ark. Tax Commission v. Crittenden County, 183 Ark. 738, 38 S.W.2d 318 (1931); Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S. W.2d 790 (1977). The declaration of state public policy as applied to our Employment Security Act, codified at Ark. Stat. Ann. § 81-1101 (Repl. 1976), provides in pertinent part:
The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. (Emphasis ours.)
As the Supreme Court stated in Little Rock Furniture Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S.W.2d 56 (1957), our Employment Security Act must be given an interpretation in keeping with the declaration of state policy. The intent of the Arkansas Legislature controls the construction of our Employment Security laws. We believe that the legislature did not intend to limit misconduct connected with the employee’s work to misconduct which occurred only during the hours of employment and on the employer’s premises. If it had, the language used in Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976), would have undoubtedly expressed that intent.
Although this is a case of first impression in Arkansas, several other jurisdictions have considered the issues raised in off-duty misconduct cases and have construed statutory language identical to that contained in Ark. Stat. Ann. § 81-1106 (b)(1) (Repl. 1976). The concept that misconduct in connection with the work can occur while an employee is off-duty has long been recognized by a majority of states which have addressed the issue. See 76 Am.Jur.2d Unemployment Compensation § 57 (1974). The following language is found in the 1958 case of Employment Security Board v. Lecates, 218 Md. 202, 145 A.2d 840:
We think we may assume that the legislature did not intend to limit misconduct “connected with” the employee’s work to misconduct which occurred during the hours of employment and on the employer’s premises. If it had, the language used would have undoubtedly expressed that intent. Since no such limitation was indicated, it is obvious the provisions of the statute were intended to deny unemployment compensation to a claimant who was discharged — and hence unemployed — because of misconduct regardless of when or where it occurred so long as such misconduct was in law connected with the employee’s work.
The following states are in agreement with Maryland in its interpretation of the term “misconduct in connection with the work”: Louisiana, Grimble v. Brown, 247 La. 376, 171 So.2d 653, cert. denied, 382 U.S. 861 (1965); Idaho, O’Neal v. Employment Security Agency, 89 Idaho 313, 404 P.2d 600 (1964); Wisconsin, Gregory v. Anderson, 14 Wis.2d 130, 109 N.W.2d 675 (1961); Texas, Texas Employment Comm. v. Ryan, 481 S.W.2d 172 (1972); Pennsylvania, Cadden v. Unemployment Compensation Board of Review, 195 Pa.Super. 159, 169 A.2d 334 (1961); Oregon, Giese v. Employment Division, 27 Or. App. 929, 557 P.2d 1354 (1976); D.C., Budzanoski v. Dist. Unemployment Compensation Board, 326 A.2d 243 (1974); Tennessee, Weaver v. Wallace, 565 S.W.2d 867 (1978).
After having determined that off-duty activities can constitute misconduct, we must now determine what factors must be present in order to find that a claimant’s off-duty activities constitute misconduct in connection with the work. It should initially be noted that it would be impossible to list every situation where misconduct in connection with the work might occur. It would also be impossible to address every possible hypothetical factual circumstance which might present the question of whether misconduct in connection with the work has occurred. In cases which involve off-duty misconduct, as in cases involving on-duty misconduct, the factors of each case will vary since different employers and employees have differing rights and obligations and each case must be decided on its particular facts. Jackson v. Bible, 611 S.W.2d 588 (Tenn. Ct. App. 1980); Chrysler Corp. v. Review Board of the Indiana Employment Security Division, 185 N.E.2d 25 (1962). Therefore, it appears that some test should be set forth in order that employees, employers and the administrative agency might have guidance as to when off-duty misconduct will be considered misconduct “in connection with the work”.
We choose to apply the elements enunciated by the Washington Supreme Court in Nelson v. Employment Security Department, 98 Wash.2d 370, 655 P.2d 242 (1982), in reversing the Washington Court of Appeals, 31 Wash. App. 621, 644 P.2d 145. The claimant there was employed as a cashier for a publishing company and while off-duty, she was charged with shoplifting and subsequently entered a guilty plea to the charge. She personally informed her employer of the incident and was fired. The issue in the case was whether her actions constituted misconduct in connection with the work. The unemployment administration found her actions constituted misconduct in connection with her work which was upheld by the Washington Court of Appeals. The Court of Appeals found that since the claimant’s job required her to handle money, she should have known that her conviction for shoplifting would influence her trustworthiness in the eyes of her employer and peers. The court also found that the claimant should have known that conduct which impugned her trustworthiness would directly affect her ability to do her job, and thus would be adverse to her employer’s interest.
In analyzing the relationship between the claimant’s conduct and her work, the Court of Appeals stated:
Thus, we support the basic approach of the Department, which we believe can be broken down to these elements: to establish misconduct connected with work the employer must show, by a preponderance of evidence, that the employee’s conduct (1) had some nexus with her work; (2) resulted in some harm to the employer’s interest, and (3) was in fact conduct which was (a) violative of some code of behavior impliedly contracted between employer and employee, and (b) done with intent or knowledge that the employer’s interest would suffer.
The Supreme Court of Washington, in reversing the decision of the Court of Appeals denying unemployment benefits to the claimant, adopted in part the rule set forth by the Court of Appeals in determining whether an employee’s actions constitute “misconduct in connection with the work”. The court stated:
. . . We adopt the rule developed by the Court of Appeals, in Nelson v. Department of Employment Security, supra, with one change. The Court of Appeals required the employer to demonstrate conduct "violative of some code of behavior impliedly contracted between employer and employee”. (Italics ours.) We believe to insert the word “impliedly” in the test makes it far too broad. If, as alleged here, certain conduct would go to the nexus of the employee’s work and would result in harm to an employer’s interest, it is reasonable to require this conduct must be the subject of a contractual agreement between employer and employee. This agreement need not be a formal written contract between employer and employee and may be reasonable rules and regulations of the employer of which the employee has knowledge and is expected to follow . . .
In applying the standards set out in Nelson, supra, we must first determine whether a nexus exists between appellant’s work and her off-duty activities. The Supreme Court of Louisiana in Grimble v. Brown, supra, discussed when nexus with the work exists:
It will not do to say that, because an act of misconduct relates to the “private life” of the employee, it is essentially not connected with his employment for in these cases the question for determination must always be whether the result of the misconduct has adversely' affected the employee’s ability and capacity to perform his duties in an appreciable degree. If it has, then it follows that it is contrary to the employer’s interest and in . . . disregard of standards of behavior which the employer has the right to expect of his employee . . . Thus, by this criterion alone there is nexus.
We find the following testimony pertinent wherein the superintendent explained the position of trust in which teachers in the Flippin School District found themselves:
Flippin School District, which is composed of the communities of Flippin and Bull Shoals, and their surrounding rural areas, retain the image of small community America, in which the home, school, church, and their combined and separate associated values are highly prized or valued by the citizenry as a whole. The citizenry, therefore, would not approve of the continued employment of this teacher. The teachers have traditionally and historically been expected to exemplify those good values inherent to the local school community, and by instruction and personal example, transmit these values to the young and impressionable students entrusted on a daily basis into the teacher’s care. Results of my investigation led to the following conclusion: In my professional judgment, Mrs. Feagin’s presence as a teacher would be ineffective, and would hinder the local process, and I recommended termination.
From a review of the evidence, we hold that there was a sufficient nexus with her work, even though the activities complained of occurred while she was off-duty and off the employer’s premises.
Next, we must determine whether appellant’s off-duty activities resulted in any harm to her employer’s interests. There is substantial evidence in the record, specifically in the testimony of the superintendent, that appellant’s ability to teach in the Flippin Schools was severely harmed by her arrest and the attendant publicity. Thus, the second standard set out in Nelson, supra, has been complied with.
Finally, we must determine whether the conduct of appellant (a) was violative of some code of behavior contracted for between the employer and the employee and, (b) whether her conduct was done with the intent or knowledge that her employer’s interests would suffer. It is important to note here that the third Nelson standard was qualified by language to the effect that the agreement between employer and employee need not be a formal written contract and could consist of reasonable rules and regulations which the employee had knowledge of and was expected to follow. We hold that there is substantial evidence in the record that appellant had both notice and knowledge that her involvement with an illegal substance was a violation of the standards expected of her as a teacher, guide and counselor to her students and as a representative of the Flippin School District.
The Flippin School Board policy manual provided the following statement regarding a teacher’s responsibilities:
To maintain such relationship with the students as is conducive to and consistent with desirable progress and growth in all areas of good citizenship.
The Flippin School Board policy manual provided the following statement regarding cause for dismissal of all employees as follows:
The Board of Education may dismiss any school employee for one or more causes. Some of these may include poor health, incompetency, insubordination, immorality and undesirable personal traits.
Appellant acknowledged acceptance of her responsibilities during the Appeals Tribunal hearing as evidenced by the following testimony:
ATKINS: Mrs. Feagin — Mrs. Feagin, do you accept the concept espoused in the manual put out by the School Board, that you are a moral instructor of these children?
CLAIMANT: Yes Sir, I do.
When reviewing unemployment benefit cases which involve off-duty misconduct, we recognize that some professions require higher standards of behavior than do others. We believe the teaching profession is one which requires a higher standard of its practitioners. The very nature of their employment requires such. Teachers serve as examples and role models for their students and we find it difficult, if not impossible, to find from the evidence presented that appellant, a college-educated individual, did not have knowledge of this. We are very much aware of the problems associated with the use of drugs by school-age children. Non-association with illegal substances is certainly a reasonable regulation of the school board of which appellant had both knowledge and notice. Appellant, a college-educated individual, knew or should have known that her involvement with illegal drugs might cause her to be arrested and that the attendant publicity would have an adverse effect on her job and that the school district would suffer.
We hold that there is substantial evidence in the record to support the Board’s finding that appellant violated the “ethical and moral standards which the employer had a right to expect” and that such actions were done in “willful disregard of the employer’s best interest”. In so holding we adopt the standards adopted by the Supreme Court of Washington in Nelson, supra, in cases involving a determination of what constitutes “misconduct in connection with the work” where the misconduct took place while the employee was off-duty and off the employer’s premises. It is important to note in adopting this test that the fact situation in the case at bar involves a narrow interpretation of what constitutes “misconduct in connection with the work” and that future decisions will, of course, be determined on a case-by-case basis.
Affirmed.
Cooper and Glaze, JJ., dissent.