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November 29, 2010


Appeal from the Industrial Commission. The Industrial Commission‟s decision is affirmed.

The opinion of the court was delivered by: J. Jones, Justice.

2010 Opinion No. 125

Stephen W. Kenyon, Clerk

Kootenai County appeals the Industrial Commission‟s determination that Mark Mussman was not terminated for employment-related misconduct and is eligible for unemployment benefits. We affirm.

I. Factual and Procedural History

Mark Mussman worked as a planner in the Kootenai County Planning and Zoning Department until his discharge in 2008. During his employment with the County, Mussman received corrective action which required that he "[r]review interpretations and policy decisions with the director and legal counsel before implementation." Mussman received this disciplinary measure while under the supervision of Cheri Howell, an interim director of the department. Scott Clark replaced Howell as the director of the department in 2007, and was the supervisor responsible for terminating Mussman. The County terminated Mussman after he signed an affidavit for a local developer without prior department approval. The affidavit contained historical interpretations of a County ordinance that conflicted with the director‟s official interpretation.

After Clark replaced Howell, an initial meeting was held involving Clark, Mussman, and the local developer, Mr. Graham, to discuss the Graham Project. During this meeting, the parties discussed the department‟s interpretation of a County setback ordinance, as it applied to the Graham Project. Clark subsequently sent an e-mail to Mussman informing him of a new interpretation of the setback ordinance. Mussman, Clark, and others had another meeting to discuss this new interpretation. Mussman disagreed with Clark‟s interpretation, but "the group had a productive meeting," and Mussman recognized that the final decision was up to the director. Approximately two weeks later, Mussman signed the affidavit at Graham‟s request, outlining the County‟s prior and current interpretations of the setback ordinance. The County terminated Mussman on the grounds that his actions disregarded the County‟s interest, and amounted to insubordination.

Mussman applied for unemployment benefits and the Idaho Department of Labor (IDL) initially found him to be eligible. The County appealed Mussman‟s eligibility status and, after a telephonic hearing, the IDL Appeals Examiner reversed, finding Mussman was terminated for employment-related misconduct. At the hearing, Mussman testified that "there was no policy written or verbally communicated regarding signing of affidavits." He further testified that the interpretation provided in the affidavit was not his original interpretation but, rather, outlined the County‟s historical interpretation of the setback ordinance. However, the County "felt the affidavit was in direct contradiction with [Clark‟s] interpretation and reflected negatively on the County." Mussman appealed to the Industrial Commission, which reversed again, finding Mussman eligible for unemployment benefits. The Commission found there was no specific policy requiring approval of affidavits, and that, without either the affidavit or corrective action plan in the record, the County had failed to meet its burden of proof. The County timely appealed the decision to this Court.

II. Appeal

I. Whether the Commission‟s factual finding that Mussman‟s discharge was not a result of employment-related misconduct is supported by substantial and competent evidence.

III. Discussion

A. Standard of Review

When considering an appeal from the Industrial Commission, this Court exercises free review over questions of law. IDAHO CONST. art. V, § 9; Harris v. Electrical Wholesale, 141 Idaho 1, 3, 105 P.3d 267, 269 (2004). The Commission‟s findings of fact will only be disturbed if not supported by substantial and competent evidence. Henderson v. Eclipse Traffic Control & Flagging, Inc., 147 Idaho 628, 631, 213 P.3d 718, 721 (2009). Substantial and competent evidence is "relevant evidence that a reasonable mind might accept to support a conclusion." Id. The Commission‟s findings will not be disturbed solely because there is conflicting evidence in the record, or because the Court may have reached a different conclusion. Harris, 141 Idaho at 3, 105 P.3d at 269."[I]t is up to the Commission to weigh the conflicting evidence and determine the credit and the weight to be given the testimony admitted." ...

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