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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 36693 MARK W. MUSSMAN, ) ) Claimant-Respondent, ) ) v. ) ) KOOTENAI COUNTY, Employer, ) ) Respondent-Appellant, ) ) ) and ) ) IDAHO DEPARTMENT OF LABOR, ) ) Respondent-Respondent on Appeal. ) _______________________________________ ) Appeal from the Industrial Commission. The Industrial Commissions decision is affirmed. Kootenai County Prosecutors Office, Coeur dAlene, for appellant. Darrin L. Murphey argued. Honorable Lawrence G. Wasden, Boise, for respondent. Tracy K. Rolfson argued. ________________________ J. JONES, Justice. Kootenai County appeals the Industrial Commissions 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]eview interpretations and policy decisions with the director and legal counsel before implementation." Mussman received this disciplinary 1

Boise, November 2010 Term 2010 Opinion No. 125 Filed: November 29, 2010 Stephen W. Kenyon, Clerk

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 directors 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 departments 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 Clarks 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 Grahams request, outlining the Countys prior and current interpretations of the setback ordinance. The County terminated Mussman on the grounds that his actions disregarded the Countys 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 Mussmans 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 Countys historical interpretation of the setback ordinance. However, the County "felt the affidavit was in direct contradiction with [Clarks] 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.

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II. Issue on Appeal I. Whether the Commissions factual finding that Mussmans 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,

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