This Court explained in Dailey v. Board of Review, 214 W. Va. 419, 589 S.E.2d 797 (2003), that our Legislature has created two levels of disqualification for receipt of unemployment benefits because of misconduct, unlike many other states which have only one category of disqualification. In West Virginia employee misconduct warrants a disqualification for benefits for six weeks unless the misconduct involves specific serious, statutorily defined conduct, referred to generally as gross misconduct.   (See footnote 1)  An employee discharged for any of these specific acts is disqualified from receiving unemployment benefits not only for six weeks but indefinitely until the employee has returned to covered employment for at least thirty days.   (See footnote 2) 

    My concurring colleague, Chief Justice Maynard, would have this Court add to the statute by judicial fiat. He would have this Court create through a syllabus point an indefinite disqualification for any employees “who commit or threaten criminal acts in the workplace.” My colleague would have us create law stating that “if you commit a criminal act and are subsequently fired for that act, you cannot receive unemployment benefits - period!” I disagree for several reasons. Such broad sweeping rules are legally unjustified, legally improper, and would generate a myriad of difficulties in operation.

    First and foremost, the actions warranting disqualification have already been specified by the legislature. The statute simply does not include the reason for indefinite disqualification for benefits my colleague seeks. “We must view the law as it is, and not as we might wish it to be.” Department of Econ. and Empl. Dev. v. Taylor, 671 A.2d 523, 537 (Md. App. 1996). It is not the function of this Court to engage in judicial expansion of the grounds for indefinite disqualification. “A statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer Advoc. Div. v. Public Serv. Comm'n, 182 W. Va. 152, 386 S.E.2d 650 (1989).

    Secondly, it is patently unfair to hold that violation of every criminal statute, no matter how minor, is automatic grounds for disqualification for benefits. At one point in my colleague's concurring opinion, it appears that a disqualifying criminal act would only be one which occurred “in the workplace.” However, at another point it appears that the author of that opinion would apply his disqualification rule to any criminal act for which an employee is fired. To “parade the horribles” under the latter scenario, an employee terminated from employment after committing a criminal act totally unrelated to the workplace, such as wearing a hat in a theater,   (See footnote 3)  camping on county courthouse grounds without permission,   (See footnote 4)  or engaging in the unauthorized use of a trash dumpster,   (See footnote 5)  would be disqualified indefinitely under the rule proposed by the concurring opinion. Certainly my colleague would not consider such a result fair. Certainly a reasonable nexus between the alleged criminal act and the workplace should be required.

    Thirdly, under the rule suggested by my colleague's concurring opinion, what burden of proof would be utilized in demonstrating that the alleged criminal act had actually been threatened or committed by the employee? While our jurisprudence clearly establishes that proof beyond a reasonable doubt is necessary in a criminal prosecution, this Court has previously stated that the standard to be employed in the administrative context of unemployment benefits is preponderance of the evidence.   (See footnote 6)  Specifically, we recently allowed alleged criminal conduct to be proven by a mere preponderance of circumstantial evidence in a case involving the discharge of a member of the Department of Public Safety.   (See footnote 7)  Thus, where no criminal conviction has been obtained against an employee, the new syllabus point suggested by my colleague's concurring opinion invites the indefinite denial of unemployment benefits on a showing by a mere preponderance of the evidence that an employee threatened to or did commit a criminal act. My colleague would say to that employee, “you cannot receive unemployment benefits - period.” What a prescription for rampant unfairness!   (See footnote 8) 

    Ultimately, the determination of what actions warrant disqualification rests with the legislature. We are not here to express in case law what we wish the legislature had done.
    
    Because I believe the case before us correctly applied the law to the facts of the case, I respectfully concur with the majority opinion, stating however my total disagreement with my colleague's concurring opinion seeking to write new law not found in the governing legislative enactment.