                                   Cite as 2014 Ark. App. 512

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                        No. E-13-820

PAUL SIMS                                          Opinion Delivered   OCTOBER 1, 2014
                                APPELLANT
                                                   APPEAL FROM THE ARKANSAS
V.                                                 BOARD OF REVIEW
                                                   [NO. 2013-BR-01943]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and
BISMARCK PUBLIC SCHOOLS
                    APPELLEES                      REVERSED AND REMANDED



                               BILL H. WALMSLEY, Judge

       Appellant Paul Sims appeals from the Board of Review’s decision on July 26, 2013,

affirming and adopting the Appeal Tribunal’s determination that Sims was discharged from

his job at Bismarck Public Schools for misconduct connected with the work.1 Sims argues that

the Board’s decision is not supported by substantial evidence. We reverse and remand for an

award of benefits.

       Sims was hired as the high school counselor in August 1995 and discharged on June

30, 2009. Sims had only one evaluation in his fourteen years with Bismarck Public Schools.

The evaluation dated February 27, 2009, shortly before his termination, indicates that Sims

was “proficient,” and even “distinguished,” in all areas of his job with the exception that he

had received a score of “basic” with respect to the accuracy of his records.

       In February 2008, the Department of Education conducted a standards review at

       1
        This case has an extensive procedural history; however, it is not relevant to this appeal.
Sims v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 241.
                                  Cite as 2014 Ark. App. 512

Bismarck Public Schools, and the review revealed that one student was permitted to graduate

in 2007 without the proper credits. Specifically, the student had 2.5 math credits when the

State required three. Sims was advised in a letter from the principal, Jarrod Bray, dated May

27, 2008, of “a transcript issue.” Bray informed Sims that, as the high school counselor, it was

his job to ensure that all students had the appropriate number and type of credits required by

the district and the State. Bray directed Sims to develop “a check system” and to review and

update the students’ transcripts before the start of school in August to avoid “further issues of

this nature.”

       At the school district’s request, there was an audit of the students’ transcripts in

December 2008. The audit indicated that twenty-one out of fifty-six seniors were not

scheduled to take a fourth math credit, which was a new requirement by the State for seniors

graduating in 2009.

       On April 15, 2009, Superintendent David Hopkins informed Sims that he would

recommend that his contract not be renewed, citing the standards review in February 2008

and the audit in December 2008. Hopkins made his recommendation to the school board,

which voted unanimously to terminate Sims’s contract.

       In the employer’s statement with the Department of Workforce Services, Sims’s duties

are described as “duties assigned to a high school counselor.” The form indicates that Sims

violated “company & State” policy in that, “Seniors must have by State standards a certain

number of [credits] in math to be able to graduate. A large number of our Seniors did not

have them.” The form also states that Sims was made aware of the policy through the


                                               2
                                  Cite as 2014 Ark. App. 512

“employer’s handbook” and “verbally” and that he was advised of the policy in that he “was

notified of these requirements a year prior to this incident.”

       In a hearing before the Appeal Tribunal, Hopkins testified that it was the counselor’s

responsibility to ensure that students had the proper number of credits to graduate. Hopkins

testified that he expected the counselor to look for changes in the standards but that he looked

for such changes as well. He stated that they were supposed to work together as a team but

that Sims was not a team player. When asked whether Sims had received notice of the change

in requirements, Hopkins stated that Sims had “every opportunity” to get that information.

Hopkins also stated that, had Sims attended the in-service workshops for counselors, he would

have stayed up-to-date on the State’s standards. Hopkins further testified that the change from

requiring three math credits to four was “broadcast across the state” and that “[e]verybody

knew about it but Mr. Sims, for whatever reason.”

       Hopkins admitted, however, that the school’s 2008–2009 student handbook was

incorrect in requiring students to have only three math credits. According to Hopkins, a

committee created and reviewed the school’s handbook every year and he himself had

reviewed it but did not catch the error. Hopkins stated that he did not know whether Sims

was on the committee but that, nevertheless, it was Sims’s job to make sure the handbook was

correct. Hopkins described the student handbook as the final authority on the number of

credits required to graduate.

       Regarding Sims’s failure to ensure that students had the proper credits, Hopkins

testified, “And that situation arose not only once, but twice. There was an opportunity given


                                               3
                                  Cite as 2014 Ark. App. 512

to make a correction; that correction was not made.” Hopkins conceded that, while Sims was

negligent, he did not think that Sims’s failure to perform his job duties was intentional or

deliberate.

       Sims testified that since he was hired at Bismarck Public Schools in 1995, students were

required to have three math credits. Sims complained about the school’s outdated computers

and stated that, according to his own records on which he relied, the one student referred to

in the standards review in early 2008 had the required three math credits to graduate. Sims

testified that before he was discharged, he did not receive notice that the number of math

credits required by the State had increased to four. Rather, he consulted the school’s

2008–2009 handbook in determining the number of required credits. Sims testified that the

year he was discharged, as well as the previous year, he was told that he did not need to go

to the in-service workshops.

       The Appeal Tribunal found that Hopkins credibly testified that the guidance counselor

was responsible for ensuring compliance with the State’s graduation requirements. The

Tribunal found that Sims failed to adequately perform at least a portion of his job duties and

concluded that Sims’s negligence was of such degree to constitute misconduct.

       The Board adopted the Tribunal’s decision and made additional findings in affirming

the denial of benefits. The Board pointed out that Sims offered no information to show that

he attempted “to check the state standards as he had been directed to do” by Bray in the letter

dated May 27, 2008. The Board concluded that Sims offered “no credible explanation” as to

why he failed to perform his job duties and that such failure was negligence of such degree


                                              4
                                  Cite as 2014 Ark. App. 512

or recurrence as to manifest wrongful intent or evil design.

       We review the Board’s findings in the light most favorable to the prevailing party and

affirm the Board’s decision if it is supported by substantial evidence. Price v. Dir., Dep’t of

Workforce Servs., 2013 Ark. App. 205. Substantial evidence is such relevant evidence as

reasonable minds might accept as adequate to support a conclusion. Id. Even when there is

evidence on which the Board might have reached a different decision, the scope of our review

is limited to a determination of whether the Board reasonably could have reached the decision

it did based on the evidence presented. Id.

       If so found by the Director of Workforce Services, an individual shall be disqualified

for benefits if he is discharged from his last work for misconduct in connection with the work.

Ark. Code Ann. § 11-10-514(a)(1) (Supp. 2009). The employer has the burden of proving

by a preponderance of the evidence that an employee engaged in misconduct. Price, supra.

Misconduct in connection with the work includes the violation of any behavioral policies of

the employer as distinguished from deficiencies in meeting production standards or

accomplishing job duties. Ark. Code Ann. § 11-10-514(a)(3)(A). Misconduct in connection

with the work shall not be found for instances of poor performance unless the employer can

prove that the poor performance was intentional. Ark. Code Ann. § 11-10-514(a)(4)(A). An

individual’s repeated act of commission, omission, or negligence despite progressive discipline

constitutes sufficient proof of intentional poor performance. Ark. Code Ann. § 11-10-

514(a)(4)(B).

       This court has held that misconduct includes (1) disregard of the employer’s interest,


                                              5
                                  Cite as 2014 Ark. App. 512

(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. Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612

(1981). The act of misconduct requires “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.” Id. at 118, 613

S.W.2d at 614. 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. Id.

       Sims argues that neither he, nor the principal, nor the superintendent, nor the

handbook committee was aware that the State had changed its standards to require four math

credits. Sims further argues that the two mistakes he made were entirely different. He

contends that, at most, his failure to learn of the new requirements was negligence but not

misconduct.

       We agree. The situation in early 2008 involved a mistake with respect to one student’s

transcript, while the audit in late 2008 revealed that many students did not have the required

credits to graduate—not due to errors in the transcripts—but because the State’s standards had

changed. It was undisputed that Sims was unaware that the State had changed the graduation

requirements and that the school’s 2008–2009 student handbook did not reflect that change.

While the letter from the principal broadly advised Sims to ensure that students had the

proper credits to graduate, Sims was not directed to check the State’s standards, as found by


                                               6
                                 Cite as 2014 Ark. App. 512

the Board. It was the employer’s burden to show that Sims’s negligence constituted

misconduct. We cannot say that reasonable minds could conclude that Sims’s apparent error

in his records and his failure to stay current on graduation requirements amount to

misconduct sufficient to deny him unemployment benefits. We hold that there was no

substantial evidence to support the Board’s determination that Sims’s negligence was of such

degree or recurrence as to manifest wrongful intent or evil design.

       Reversed and remanded.

       PITTMAN and HIXSON, JJ., agree.

       Baker, Schulze & Murphy, by: J.G. “Gerry” Schulze, for appellant.

       Phyllis A. Edwards, for appellee.




                                             7
