This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0543

                                    Brent R. Henkel,
                                        Relator,

                                           vs.

                                 City of Mountain Iron,
                                      Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                               Filed December 27, 2016
                                      Affirmed
                               Smith, Tracy M., Judge

                Department of Employment and Economic Development
                                File No. 33976385-3

Brent R. Henkel, Eveleth, Minnesota (pro se relator)

City of Mountain Iron, Mountain Iron, Minnesota (respondent)

Lee B. Nelson, St. Paul, Minnesota (for respondent department)

      Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Smith,

Tracy M., Judge.

                        UNPUBLISHED OPINION

SMITH, TRACY M., Judge

      In this unemployment-insurance appeal, relator challenges the decision of an

unemployment law judge (ULJ) that relator is ineligible for unemployment benefits.
Relator contends that the ULJ erred in concluding that the alleged drug crimes for which

Henkel was discharged amounted to employment misconduct and aggravated employment

misconduct. Because relator did not make legal arguments or cite authority, and because

the ULJ’s decision is supported by substantial evidence and not affected by legal error, we

affirm.

                                           FACTS

          On September 10, 2015, relator Brent R. Henkel was charged with fifth-degree sale

of marijuana and fifth-degree possession of methamphetamine arising out of events that

occurred in June 2015. Henkel’s employer, the City of Mountain Iron, learned about the

criminal charges and suspended Henkel indefinitely without pay on September 23.

          Henkel applied for unemployment benefits. The Department of Employment and

Economic Development (DEED) determined that Henkel is eligible for benefits because

the alleged crimes for which he was suspended “had no significant negative effect on the

employment” and therefore were not employment misconduct.

          On November 5, a sergeant of the St. Louis County Sheriff’s Office sent a letter to

the Mountain Iron city administrator informing him that Henkel had given an undercover

officer a city-provided phone number to facilitate the marijuana sale. The phone number

belonged to a cell phone that Henkel used as part of Mountain Iron’s employee cell-phone

program. Through this program, Henkel purchased his own phone for professional and

personal use, and the city provided a phone number and paid a portion of the service bills.

          The city appealed the determination of eligibility on November 18, arguing that

Henkel was discharged for employment misconduct and thus was ineligible for


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unemployment benefits. The city believed that Henkel’s use of the city phone number in

the commission of the alleged marijuana sale made Henkel’s alleged crime “rise to the

level of employment misconduct.”

      At a hearing on December 3, the ULJ told Henkel that he had a right to refuse to

testify regarding the alleged criminal conduct, but that “for the purposes of unemployment

benefits I can make a negative inference from your silence.” When the ULJ asked Henkel

whether he committed the alleged conduct for which he was suspended, Henkel declined

to answer.

      The ULJ issued findings of fact and a decision on December 8. The ULJ inferred

from Henkel’s refusal to answer certain questions at the hearing that the truthful answers

“would have been unfavorable” to Henkel. The ULJ found that Henkel had committed the

alleged acts of selling marijuana using the city-provided phone number and possessing

methamphetamine.

      The ULJ concluded that Henkel’s conduct amounted to both employment

misconduct and aggravated employment misconduct because it violated the employer’s

reasonable expectations, showed a substantial lack of concern for the employment, and had

a significant adverse effect on the employment “because of the use of city services in the

commission of the offense.”

      Henkel submitted a request for reconsideration on December 28, arguing that the

decision “was based on many errors” in the factual findings, “overlooked evidence and

errors in exhibits,” and “misapplied laws.” On February 29, 2016, the ULJ issued an order

affirming the December 8 findings of fact and decision.


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       Henkel petitioned for a writ of certiorari for the court of appeals to review the ULJ’s

decision on reconsideration.

                                      DECISION

       Henkel’s appellate brief states, in its entirety, “I was suspended for no just cause on

Sept. 23, 2015. Then ULJ made his decision based on many errors in facts and over looked

evidence & misapplied laws.” Henkel does not identify any particular legal error or piece

of evidence that was not considered. An appellant bears the burden of showing that the

decision appealed from was in error and that prejudice resulted. Midway Ctr. Assocs. v.

Midway Ctr., Inc., 

, 

 (1975). “[M]ere assertions” of

error that are unsupported by argument or authority are waived and should not be

considered on appeal unless prejudicial error is “obvious on mere inspection.” Schoepke

v. Alexander Smith & Sons Carpet Co., 

, 

, 135

(1971); Yusuf v. Masterson Personnel, Inc., 

 (Minn. App. 2016).

Henkel’s brief merely asserts that the ULJ’s decision was based on errors. He makes no

specific arguments and cites no authority. No prejudicial error is obvious on mere

inspection. Schoepke, 

, 

.

       Henkel’s arguments may be characterized as alleging that the ULJ’s decision was

“affected by other error of law” and “unsupported by substantial evidence.” 

, subd. 7(d)(4)-(5) (2014). We may reverse or modify a ULJ’s decision if the

substantial rights of the relator may have been prejudiced because the findings, inferences,

conclusion, or decision are affected by legal error or unsupported by substantial evidence.

 subd. 7(d). Substantial evidence means “such relevant evidence as a reasonable mind


                                              4
might accept as adequate to support a conclusion.” Carter v. Olmsted Cty. Hous. &

Redevelopment Auth., 

 (Minn. App. 1998) (quotation omitted).

       “Whether an employee engaged in conduct that disqualifies the employee from

unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,

 (Minn. 2011) (quotation omitted). Whether an employee committed

a particular act is a question of fact that we view in the light most favorable to the ULJ’s

decision and affirm if it is supported by substantial evidence. Skarhus v. Davanni’s, Inc.,

 (Minn. App. 2006). Whether a particular act constitutes employment

misconduct is a legal question that we review de novo. 

       Henkel’s suspension is considered a discharge for purposes of unemployment

benefits because it lasted more than 30 days. 

, subd. 5(a) (2014). A

discharged employee is generally eligible for unemployment benefits unless he was

discharged for employment misconduct or aggravated employment misconduct. 

 subd.

4 (2014). “Employment misconduct means any intentional, negligent, or indifferent

conduct, on the job or off the job that displays clearly: (1) a serious violation of the

standards of behavior the employer has the right to reasonably expect of the employee; or

(2) a substantial lack of concern for the employment.” 

 subd. 6(a) (2014). Aggravated

employment misconduct means “the commission of any act, on the job or off the job, that

would amount to a gross misdemeanor or felony if the act substantially interfered with the

employment or had a significant adverse effect on the employment.” 

 subd. 6a(a)(1)

(2014).




                                             5
       The ULJ concluded that Henkel was discharged for aggravated employment

misconduct because he committed an act that amounts to a felony and that act had a

significant adverse effect on the employment. This conclusion is supported by the ULJ’s

findings, which are in turn supported by the record.

       The ULJ found by a preponderance of the evidence that Henkel possessed

methamphetamine and used his city-provided phone number to sell marijuana. The drug

possession and sale amount to “the commission of any act, on the job or off the job, that

would amount to a gross misdemeanor or felony” under 

, subd.

6a(a)(1). See 

 (2014) (making the sale of marijuana and the unlawful

possession of a Schedule II controlled substance fifth-degree crimes each punishable by up

to five years imprisonment); see also 

, subd. (d)(2) (2014) (making

methamphetamine a Schedule II controlled substance); 

, subd. 2

(2014) (defining “[f]elony” as “a crime for which a sentence of imprisonment for more

than one year may be imposed”).

       Henkel’s suggestion that the ULJ’s decision is unsupported by substantial evidence

is incorrect. The ULJ’s findings that Henkel possessed methamphetamine and used a city-

provided phone number to sell marijuana are supported by the city administrator’s sworn

testimony as well as written documents prepared by the city administrator, a police

sergeant, and Henkel’s former labor union. Henkel did not present evidence to rebut the

allegations and did not deny that he committed the alleged conduct. A ULJ “may draw

adverse inferences from the refusal of a party or witness to testify on the basis of any

privilege.” 

.2922. Considering the evidence in the light most favorable to


                                            6
the ULJ’s decision, the evidence in the record amounts to substantial evidence supporting

the ULJ’s findings.

       The remaining issue is whether Henkel’s conduct substantially interfered with the

employment or had a significant adverse effect on the employment. 

,

subd. 6a(a)(1). Minnesota courts have held that a public employee’s off-duty criminal

activity may interfere with and adversely affect employment, making the discharged

employee ineligible for unemployment benefits. See, e.g., Pechacek v. Minn. State Lottery,

 (Minn. 1993) (concluding that a state employee’s commission of

criminal sexual conduct affects the credibility of the employer and reduces public

confidence in the integrity of the employer, thus “interfer[ing] with and substantially

affect[ing] his employment”). We agree with the ULJ that Henkel’s commission of drug

offenses had a significant adverse effect on the employment by harming the city’s

reputation, particularly because Henkel used a city-provided phone number and city-

subsidized phone service to facilitate the illegal sale of marijuana.

       We therefore conclude that the ULJ’s decision that Henkel is ineligible for

unemployment benefits is supported by substantial evidence and not affected by legal error.

       Affirmed.




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