Off-duty DUI: Part I of a tale of two public employees

September 16, 2014

HandcuffsThe loss of a job through a layoff or reduction in force is often a devastating experience.  Although the prospect of receiving unemployment compensation benefits can temper the economic effects of a job loss, the receipt of such benefits is not an automatic guarantee.

Termination for willful on-duty misconduct generally disqualifies a claimant from receiving benefits.

Surprisingly, off-duty illegal conduct that leads to a discharge can also render a claimant ineligible for benefits.

A recent unreported decision by a panel of the Pennsylvania Commonwealth Court illustrates how an off-duty arrest for DUI — driving under the influence — not only cost a police officer his job, but also precluded his receipt of unemployment compensation benefits.

In Borough of Fountain Hill v. Unemployment Compensation Board of Review, No. 1848 C.D. 2013 (Pa. Cmwlth Aug. 7, 2014), it was definitely the worst of times for a seven-year veteran police officer who was involved in an off-duty single vehicle collision and arrested for DUI.

Pursuant to departmental policy, the Borough placed the officer on administrative leave pending the resolution of the charge.  While on administrative leave without pay, the officer filed a claim for unemployment compensation benefits.

Based on his admission to being involved in an off-duty DUI accident, a state service center found him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law.

The service center ruled that the claimant’s off-duty DUI accident constituted willful misconduct.  On appeal of that determination, a referee affirmed the denial of benefits, concluding the claimant’s DUI constituted non-work-related misconduct that adversely affected his duties as a police officer.

The claimant appealed the referee’s decision to the Unemployment Compensation Board of Review.  The UCBR issued an order remanding the case to the referee for further hearings after the disposition of the criminal charges against the claimant.

During the interim, the officer accepted diversion of the DUI charge to resolution through Accelerated Rehabilitative Disposition.

The ARD program placed the officer on probation for six months, during which time he could not carry or possess a firearm.

Less than two months later, the Borough discharged the officer, citing numerous aggravating factors, including the speed of the collision and the presence in the vehicle of both the claimant’s duty handgun and an assault rifle.

The police chief also concluded questions about the officer’s ability to carry a duty weapon during his probation period, coupled with prior discipline issues in the past six months, and the officer’s high blood alcohol level at the time of the accident, militated in favor of the discharge decision.

Although the claimant did not testify concerning any of the aggravating factors, the UCBR reversed the referee’s decision and granted the claimant benefits.

In its unreported memorandum Fountain Hill decision, the Pennsylvania Commonwealth Court reversed the UCBR ruling and found the off-duty DUI constituted work-related misconduct under Section 402(e) of the Unemployment Compensation Law.

Observing that the claimant accepted ARD for a DUI offense, which the employer’s policies treated as a criminal conviction with disciplinary consequences, Senior Judge James Colins concluded the claimant’s DUI, coupled with his duties as a police officer, disqualified him from unemployment benefits.

Judge Colins observed that the claimant was not an ordinary employee, but rather a police officer sworn to enforce violations of the law, including DUIs.  Therefore, the employer was entitled to regard the claimant’s off-duty conduct as work-related, the court reasoned.

Additionally, even assuming that Section 402(e) did not apply, the court found the claimant’s DUI violated the employer’s standards of behavior and directly affected his ability to perform his assigned duties within the meaning of Section 3 of the UCL.

Look for part two of this DUI discussion in an upcoming post as I examine the interplay between a grievance arbitration award and public policy considerations associated with the reinstatement of a teacher arrested and charged with an off-duty DUI.