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KIMBERLY D. SIMMONS, APPELLANT,
vs.
DIRECTOR, EMPLOYMENT SECURITY DEPARTMENT, APPELLEE
 
Case:
No. E97-51
 
Location:
COURT OF APPEALS OF ARKANSAS, DIVISION THREE
 
Date:
November 19, 1997, Filed
 
Attorneys:
PRO SE.
ALAN PRUITT, LITTLE ROCK.
 
Court:
SAM BIRD, Court. Stroud and Griffen, JJ., agree.
 
Author:
The Hon. Justice Sam Bird
 

Appellant Kimberly D. Simmons was a Little Rock police officer working the graveyard shift when, on March 14, 1996, she arrested a man who was intoxicated. She asked to see his identification, and he laid his wallet on the back of the police car. Simmons opened it and shined her flashlight on his ID. She then told him to gather up his belongings and get into the car. She took him to the sheriff's office on Roosevelt Road for booking.

When they got to the sheriff's office the man started asking for his wallet, which, he claimed, contained $700 cash. Simmons told the duty officer she would check her car. She did not find it and apparently thought no more about it. She said people frequently claim they are missing property when they have been arrested. Sometime the next day, according to the appellant, the desk sergeant called and asked about the man's wallet. She told him she had not found it. Soon thereafter, appellant reported the incident to a sergeant and a captain. She testified that they told her not to worry about it.

About two months later appellant was suddenly ordered to report to detectives at internal affairs because they were conducting a criminal investigation of the incident. She was subsequently fired for taking no action after the wallet was reported missing. Sergeant Don Wells, from the internal affairs division of the Little Rock Police Department, testified that his investigation did not corroborate the appellant's testimony that she had told her supervisors (the sergeant and captain) about the missing wallet.

The Appeal Tribunal awarded unemployment benefits on a finding that appellant "may have made an error in judgment in not reporting the incident sooner," but that "misconduct on the part of the claimant has not been established." The Board of Review reversed, holding that the evidence "establishes, at the least, negligence of such a degree as to establish misconduct."

On review of unemployment compensation cases, the factual findings of the Board of Review are conclusive if they are supported by substantial evidence; but that is not to say that our function on appeal is merely to ratify whatever decision is made by the Board of Review. See Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). As we said in Shipley, "We are not at liberty to ignore our responsibility to determine whether the standard of review has been met." 17 Ark. App. at 74, 703 S.W.2d at 467. When the Board's decision is not supported by substantial evidence, we will reverse. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Indus. Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794

(1981).

In Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996), we explained what is necessary to constitute misconduct:

Arkansas Code Annotated SEC. 11-10-514(a)(1) (Repl. 1996) provides that an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work. However, as we explained in Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981):

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.

There is an element of intent associated with a determination of misconduct. Mere good faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer's interest. George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995); Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990); Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987); Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). Whether the employee's acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Arlington Hotel v. Employment Sec. Div., 3 Ark. App. 281, 625 S.W.2d 551 (1981).

In Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997), where the misconduct at issue was inflammatory words spoken by the claimant to a co-worker immediately preceding a fight, we held that the language used did not rise to the level of misconduct as defined by the statute. In Thomas v. Director, 55 Ark. App. 101, 931 S.W.2d 146 (1996), the claimant pinched a combative and assaultive patient in order to get the patient to release her hold on another nurse, and we reversed the Board of Review's finding that this was misconduct, stating that it was not of such a degree as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer's interests or an employee's duties and obligations. Similarly, in Carraro v. Director, supra, where appellant had relied on the advice of his union and went home instead of submitting to a drug test, he may have been ill-advised, but this conduct was not sufficient for reasonable minds to conclude that appellant's conduct exhibited "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."

Although appellant's actions might have been negligent, mere negligence on a single occasion does not rise to the level of wrongful intent, evil design, or an intentional disregard of the employer's interest.

Reversed and remanded for an award of unemployment benefits.

Stroud and Griffen, JJ., agree.