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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. 

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Boise, November 2010 Term

2010 Opinion No. 125

Filed: November 29, 2010

Stephen W. Kenyon, Clerk

Appeal from the Industrial Commission.

The Industrial Commission‟s decision is affirmed.

Kootenai County Prosecutor‟s Office, Coeur d‟Alene, 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 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]eview interpretations and policy decisions 

with the director and legal counsel before implementation.” Mussman received this disciplinary 
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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.
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II.

Issue on 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.” Henderson, 147 Idaho at 631, 213 

P.3d at 721. Furthermore, all facts and inferences are viewed in favor of the prevailing party 

before the Commission. Higgins v. Larry Miller Subaru-Mitsubishi, 145 Idaho 1, 4, 175 P.3d 

163, 166 (2007). 

B. Finding of No Employment-Related Misconduct

Kootenai County argues Mussman‟s actions constitute employment-related misconduct 

because he was insubordinate and disregarded the County‟s interest when he signed the affidavit 

for Graham without prior approval. The County argues its policies prohibited such conduct and 

that, because of the corrective action plan and testimony at the hearing, Mussman was aware of 

these rules and standards. However, the Commission found there was no specific policy 

requiring approval of affidavits and, therefore, Mussman did not intentionally disregard a known 

rule of the County. It determined that because both the County and Mussman presented equally 

credible evidence regarding a purported standard of behavior requiring Mussman to get prior 

approval of interpretations, the County had failed to meet its burden of proof. The Commission 

also found that the interpretations in the affidavit were merely historical and, therefore, Mussman 
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had not disregarded the County‟s interest. We find substantial and competent evidence supports 

each of these findings, and discuss each in turn.

An individual is only entitled to unemployment benefits where “[t]he claimant‟s 

unemployment is not due to the fact . . . that he was discharged for misconduct in connection 

with his employment.” I.C. § 72-1366(5). Employment-related misconduct, as used in Idaho 

Code section 72-1366(5), includes any of the following: “(1) a willful, intentional disregard of 

the employer‟s interest; (2) a deliberate violation of the employer‟s reasonable rules; or (3) a 

disregard of a standard of behavior which the employer has a right to expect of his employees.” 

Kivalu v. Life Care Centers of America, 142 Idaho 262, 264, 127 P.3d 165, 167 (2005); IDAPA 

09.01.30.275.02. “The burden of proving misconduct by a preponderance of the evidence falls 

strictly on the employer, and where the burden is not met, benefits must be awarded to the 

claimant.” Harris, 141 Idaho at 3, 105 P.3d at 269; IDAPA 09.01.30.275.01. 

The Commission must consider all three grounds when making its determination of 

misconduct. Smith v. Zero Defects, Inc., 132 Idaho 881, 884, 980 P.2d 545, 548 (1999). The 

focus of the inquiry is not whether the employer‟s reason for discharge was reasonable but,

rather, whether the misconduct was work-related so as to make the employee ineligible for 

unemployment benefits. Beaty v. City of Idaho Falls, 110 Idaho 891, 892, 719 P.2d 1151, 1152 

(1986). Whether an employee‟s behavior constitutes “misconduct” is a factual determination that 

will be upheld unless not supported by substantial and competent evidence. Harris, 141 Idaho at 

3, 105 P.3d at 269.

1. Standard of Behavior Test

The Commission found that Mussman‟s conduct did not fall below a reasonable standard 

of behavior expected by the County because the County failed to prove that its expectation,

requiring prior approval of all interpretations, had been reasonably communicated to Mussman.

Misconduct under the standard of behavior test requires the employer to prove, by a 

preponderance of the evidence, that (1) the employee‟s conduct fell below the standard of 

behavior expected by the employer; and (2) the employer‟s expectations were objectively 

reasonable under the circumstances. Id.; IDAPA 09.01.30.275.02(c). The first prong of this test 

speaks only to what the employer subjectively expected from the employee, while the second 

prong considers whether the employer‟s expectations are reasonable. In order for an employer‟s 

expectation to be objectively reasonable, the expectation must be communicated to the 
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employee, unless the expectation is the type that flows naturally1from the employment 

relationship. Id. Whether an employer‟s expectation has been reasonably communicated is a 

factual determination that will not be overturned if supported by substantial and competent 

evidence. Desilet v. Glass Doctor, 142 Idaho 655, 658, 132 P.3d 412, 415 (2006).

In this case, the County argues Mussman was aware of a general policy prohibiting the 

dissemination of interpretations prior to obtaining director approval. The County points to 

Mussman‟s testimony acknowledging the existence of a general policy “perhaps not clearly 

written, but taken for granted that in interpretations of the language of the ordinance, especially 

major ones that were questionable, had to be run through the director.” However, Mussman also 

testified that “there was no policy written or verbally communicated [to Mussman] regarding 

signing of affidavits.” The Commission specifically found this latter testimony to be credible and 

this Court does not re-weigh the evidence. Thus, even if such a general policy existed, the 

County‟s failure to communicate how that policy applied in the circumstance of affidavits, 

demonstrates that its expectation is unreasonable. See Harris, 141 Idaho at 4, 105 P.3d at 270

(affirming Commission‟s finding that an employer‟s expectation was not reasonable where it 

failed to communicate to its employee how a general policy of insurability applied to employee‟s 

off work activities). As such, the Commission‟s finding is supported by substantial and 

competent evidence.

Alternatively, the County argues that the corrective action plan communicated to 

Mussman its expectation that all interpretations be reviewed prior to release to the public. The 

portion of the corrective action plan read into the record provides that “You must . . . [r]eview 

interpretations and policy decisions with the director and legal counsel before implementation.” 

While the Commission considered this evidence in its decision, it discounted its significance 

pursuant to the best evidence and hearsay rules. The County argues this creates a heightened 

evidentiary standard prohibited in Industrial Commission cases.

It is true that Industrial Commission proceedings operate under relaxed evidentiary 

standards and that exclusion of evidence based on the strict application of these rules can amount 

to reversible error. See Hagler v. Micron Technology, Inc., 118 Idaho 596, 598-99, 798 P.2d 55, 

57-58 (1990). In Hagler, a pro se claimant filed a claim for worker‟s compensation benefits, 

 

1 The County has not claimed that its asserted expectation—that affidavits be approved by the director or legal 

counsel—flowed naturally from the employment relationship. 
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alleging that a fungus on her hands was a result of her employment at Micron. Id. at 598, 798

P.2d at 57. In support of her claim, Hagler attempted to read from a medical treatise and admit 

the text in full; however, the Commission excluded the evidence based on evidentiary rules. Id.

A majority of this Court found the exclusion to be in violation of the simplicity and equity 

principles underlying Industrial Commission cases. Id. at 599, 798 P.2d at 58.

The Commission in this case made the following comments regarding the corrective 

action plan and affidavit:

Not only do the parties [sic] testimony conflict, but we are without the best 

evidence of the corrective action. Without a copy of the corrective action plan, we 

cannot determine what was truly written on the form. . . . Since the interim 

director did not testify, the evidence read into the record is considered hearsay. 

Therefore, based on the above reasons, the corrective plan read into the record 

carries little weight.

Unlike Hagler, where the Commission excluded proffered evidence based on evidentiary 

principles, the Commission in this case merely used the reliability principles underlying the 

hearsay and best evidence rules to support its determination to discount the portions of the 

corrective action plan read into the record. Because it is the Commission‟s role to “determine the 

credit and weight to be given the testimony admitted,” we find no error in the Commission‟s use 

of evidentiary rules to justify its ultimate decision. Henderson, 147 Idaho at 631, 213 P.3d at 

721.

The County also argues that the Commission‟s decision to discount the corrective action 

plan at a time when the County was no longer able to augment the record amounts to an injustice 

because neither the Appeals Examiner nor Mussman objected to its absence from the record at 

the time of the hearing.

2 However, this argument reflects a misunderstanding of the burden of 

proof which “falls strictly on the employer . . . .” Harris, 141 Idaho at 3, 105 P.3d at 269; 

IDAPA 09.01.30.275.01. 

Where an employer fails to introduce evidence that the Commission ultimately 

determines would have been fundamental to its decision, the employer has failed to meet its 

 

2 The Commission may consider additional evidence not heard by the Appeals Examiner, where the interests of 

justice would require it. I.C. § 72-1368(7). However, this “injustice” requires a showing that the proffered evidence 

was unavailable at the time of the Appeals Examiner‟s hearing. Higgins, 145 Idaho at 6, 175 P.3d at 168. Neither 

party in this case can meet this showing because the affidavit and corrective action plan were read into the record 

and clearly available at the time of the Appeals Examiner‟s telephonic hearing.
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burden of proof. Appeals Examiner of Idaho Dept. of Labor v. J.R. Simplot Co., 131 Idaho 318, 

321, 955 P.2d 1097, 1100 (1998). In Simplot, the employer alleged the employee disregarded the 

employer‟s interest by failing to conduct testing pursuant to OSHA and Simplot standards, but 

failed to introduce any written evidence regarding those standards. Id. Without this evidence, the 

Commission found Simplot failed to meet its burden of proof and noted that while the company 

verbally referenced OSHA regulations “these were not part of the original record, . . . [and] if 

Simplot had „introduced such evidence, the Commission might have reached a different 

conclusion.‟” Id. Thus, it is not the duty of the Commission or the Appeals Examiner to tell 

parties to a hearing what evidence should be admitted, and to what degree, because that would 

place the burden of proof on the hearing officers rather than the parties. 

This evidentiary burden is further explained in the IDL Appeals Bureau‟s hearing notice,

which states that it is the responsibility of the parties to submit all documents which they believe 

support their respective positions.

EVIDENCE: Any documents that YOU want considered at the hearing must be 

submitted immediately to the Appeals Bureau and all other interested parties of 

the case. Since this is a NEW proceeding, information submitted for the 

Determination being protested may not have been forwarded to the Appeals 

Bureau. Please review the documents in this packet. If a document critical to your 

position is not included, you may get it into the record by providing a copy to the 

Appeals Bureau AND all interested parties. (italics added).

The notice goes on to say that “[t]he employer is required to prove misconduct.”

In this case, the County failed to meet its burden of proof, like the employer in Simplot, 

by failing to introduce the critical documents that it believed demonstrated Mussman‟s 

misconduct. Its failure to do so does not create an injustice when the Commission subsequently 

notes the omission of such documents and decides to weigh the evidence accordingly. 

Mussman argues that it was not violative of any County policy to sign affidavits because 

he had signed other affidavits without receiving discipline. On the other hand, the County argues 

that the Commission‟s finding that no specific policy existed regarding approval of affidavits is 

erroneous because, although Mussman may have signed other affidavits after receiving

corrective action, Mussman did not notify the County of any other affidavits and, therefore, the 

County was not in a position to take disciplinary action. The record demonstrates that Mussman 

received corrective action in March of 2007, and that he signed at least one additional affidavit

around June of 2008. The Commission found that there was “no indication that [Mussman] 
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received discipline about failing to obtain prior approval [regarding the 2008 affidavit].” Because 

the corrective action plan did not specifically address affidavits, and because Mussman had not 

received discipline for signing the 2008 affidavit, the Commission found that no specific policy 

existed regarding affidavits. This is a reasonable conclusion based on the evidence. As a basis for 

overturning the Commission‟s finding, the County only points to a single line of testimony 

wherein Mussman testified that he did not “share” the 2008 affidavit with the director of the 

department. However, whether this testimony means Mussman never told the County about the 

2008 affidavit, or that he only failed to tell the County prior to its issuance, is a potential conflict 

of evidence that only the Commission has the authority to resolve. As such, this finding will not 

be disturbed on appeal.

The Commission‟s finding that the County‟s expectation regarding interpretations had 

not been reasonably communicated to Mussman is supported by substantial and competent 

evidence.

2. Willful Disregard of Employer’s Interest

The County argues Mussman disregarded its interest by providing an affidavit to a third 

party which contained interpretations in conflict with the director‟s official interpretation. 

However, the Commission found the interpretation in the affidavit was merely “historical” and, 

without the full context of the affidavit, the County had failed to meet its burden of proof on the 

issue of willful disregard.

On this issue, the employer must prove by a preponderance of the evidence that the 

employee intentionally disregarded the employer‟s interest. IDAPA 09.01.30.275.02.

Mussman testified as follows during the hearing before the Appeals Examiner: 

I did not make the interpretation that Mr. Clark maintained in that affidavit, I was 

merely stating what was discussed in the past . . . . Mr. Clark did attend a meeting 

in June 2007, of which this interpretation—and, again, not made by myself, but 

made prior to my even starting at Kootenai County, was discussed, albeit very 

briefly. And, you know, that‟s—the—one of the basis for my signing that 

affidavit without further review by Mr. Clark and also because there was no 

written or verbal policy whatsoever regarding affidavits and I will reiterate that 

between August 28, the date I signed it, and October 14th I perused [sic] on a 

daily basis that I was on the county team. I did do my very best to serve the 

public. I did my very best to support the building and planning department . . . . 

Mussman also testified that he and the director had a “productive discussion regarding that 

interpretation and my recollection is—at the end of that meeting is that I reiterated the fact that 
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he was the director and it was his final decision to make . . . .” Based on this evidence, the 

Commission found that “[w]hile Claimant‟s actions are of some concern, there is insufficient 

evidence to find by a preponderance of the evidence that Claimant‟s affidavit constituted a 

disregard of Employer‟s interest.” 

The Commission‟s finding is supported by substantial and competent evidence because a 

reasonable person could find credible Mussman‟s testimony that he “did [his] very best to 

support the building and planning department,” that he regarded the director‟s decision as final, 

and that he honored this view in the affidavit by providing a historical timeline of the County‟s 

interpretation of the setback ordinance. Additionally, accepting the Commission‟s finding that 

the affidavit contained only historical information, the County seems to be suggesting that this 

Court should recognize, as an act of insubordination, a situation where a public employee 

distributes truthful and public information at the request of an interested citizen without 

obtaining prior approval from a supervisor. The only apparent purpose for such an internalapproval mechanism would be for the County to control and filter the dissemination of otherwise 

public information because there is no allegation that the interpretations at issue in this case are 

confidential or proprietary in nature. The County‟s efforts undermine the integrity of a 

transparent and open government and will not be condoned by this Court. See, e.g., I.C. § 31-

710(4) (requiring that the “books, records, and accounts [of the county board of commissioners]

must be kept at the office of the clerk, open at all times for public inspection, free of charge.”).

See also Noble v. Kootenai County ex rel. Kootenai County Bd. of Comm’rs, 148 Idaho 937, 943, 

231 P.3d 1034, 1040 (2010) (holding that “in order to comply with the spirit of the open meeting 

laws, details should be provided to the interested parties”). We find no error in the Commission‟s 

finding that Mussman did not disregard the County‟s interest.

3. Deliberate Violation of Employer’s Reasonable Rules

The County also argues the Commission erred in failing to address Mussman‟s actions 

under the deliberate violation of a known rule test. In order to prove misconduct under this test, the 

employer must demonstrate that the “employee acted deliberately, violating a known rule.” Wulff 

v. Sun Valley Co., 127 Idaho 75, 76, 896 P.2d 979, 983 (1995). Because the Commission found 

that no specific rule regarding approval of affidavits existed, it determined there could be no 

known rule for Mussman to violate, and further addressed his misconduct under the two remaining 

tests. 
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There is no evidence of a specific policy stating that affidavits must be approved by 

the Director. Therefore, because the alleged policy violation is based on Claimant‟s 

conduct, we find that assessing whether the conduct was insubordinate or reflected 

negatively on the County can be better assessed under the analysis of the standardsof-behavior and a willful, intentional disregard of Employer‟s interest [tests].

While the County alleges this analysis fails to adequately consider all three grounds of misconduct 

as required by Smith v. Zero Defects, Inc., that standard is appropriately met when the Commission 

addresses each test pursuant to the particular facts of the case. See Dietz v. Minidoka Cty. Highway 

Dist., 127 Idaho 246, 248, 899 P.2d 956, 958 (1995). For example, in Dietz this Court remanded 

the Commission‟s finding of employment-related misconduct because, although the Commission 

recited the three types of misconduct, it only analyzed the facts pursuant to one of the tests. Id. 

In this case, the Commission did more than recite the three grounds of misconduct and 

disregard the deliberate violation of a known rule test like the Commission in Dietz. Rather, 

based on its determination that no specific policy regarding affidavits existed, the Commission 

determined that Mussman‟s conduct could not fall within this category of misconduct and more 

fully analyzed his conduct under the remaining two tests. Because the Commission‟s finding that 

no policy requiring approval of affidavits existed is supported by substantial and competent 

evidence, its consideration of Mussman‟s conduct under the violation of a known rule test is 

sufficient.

IV.

Conclusion

Substantial and competent evidence supports the Commission‟s finding that Mussman 

was not terminated for employment-related misconduct. Thus, the Commission‟s conclusion that

Mussman is eligible for unemployment benefits is affirmed.

Chief Justice EISMANN, and Justices BURDICK, W. JONES, and HORTON 

CONCUR.