IN THE COURT OF APPEALS OF IOWA
No. 3-293 / 02-1136
Filed June 13, 2003
CYNTHIA A. TOFFLEMIRE,
            Petitioner-Appellant,
vs.
EMPLOYMENT APPEAL BOARD,
            Respondent-Appellee.
            Appeal from the Iowa District Court for 
Polk County, Scott D. Rosenberg, Judge.
            Tofflemire appeals from the district cs 
ourt’judicial review of the employment board decision 
denying her application for unemployment benefits.
  AFFIRMED.
            James Gilliam of Brown, Winick, Graves
, Gross, Baskerville & Schoenebaum, P.L.C., Des Mofor 
ines, appellant.
            Richard Ramsey of the Employment Appeal 
Board, Des Moines, for appellee.
            Considered by Zimmer, P.J., and Hecht and 
Eisenhauer, JJ.
HECHT, J.
Tofflemire appeals from the district court’s judicial 
review of the employment board decision denying her 
application for unemployment benefits.  We affirm.

I.  Background Facts and Proceedings.  Cynthia Tofflemire 
was employed as an attorney by the Iowa Department
 of Labor (DOL) from August 1992 until January 12,
 2001.  With the knowledge and approval of her supTofflemire 
ervisors, maintained a private law practice during
 her employment with the DOL.    
            In December 2000, Commissioner Orton received 
a communication from the Iowa Department of Revenue 
and Finance disclosing that Tofflemire reported $900 
7,438.in 1099R miscellaneous income and $60,153.00
 income from her DOL salary.  This information, coupled 
with complaints from Tofflemire’s co-workers that she 
was often unavailable during her scheduled work hoconvinced 
urs, Orton to begin an investigation to determine whether 
Tofflemire’s private practice was interfering with
 her duties as a DOL attorney.  His investigation revealed 
that on twenty-four occasions, Tofflemire had claimed 
sick leave and on the same date billed hours to the 
Public Defender for indigent defense work during the 
period from January 1, 2000 through September 15, On 
2000.  six dates, Tofflemire had billed in excess of 
twenty-four hours total to the DOL and Public Defe
nder.  
            On January 9, 2001, Orton met with Tofflemire 
to discuss his findings.  Tofflemire was suspended
 with pay until Orton could conclude his investigaOn 
tion.  January 12, Orton again met with Tofflemire
, and she offered explanations for six of the dates 
in question.  During both of these conversations, Tofflemire 
maintained her private practice was not interfering 
with her job at the DOL.  At the conclusion of the
 January 12 meeting, Tofflemire was given a written 
notice of termination, stating
This action is being taken because you abused sick
 leave during the period of time beginning January
 1, 2000 and ending September 15, 2000 by performing 
indigent legal defense work for which you received
 payment from the State of Iowa while utilizing paid 
sick leave, and because you gave less than honest and 
forthright answers during the course of our invest
igation.    
            Tofflemire filed a grievance with the Iowa 
Department of Personnel (IDOP) pursuant to the collective 
bargaining agreement.  Her grievance was denied, and 
her termination was affirmed by IDOP on March 20, Tofflemire 
2001.  then filed a claim for unemployment benefitA 
s.  telephone fact-finding interview was held, and
 the fact-finder denied Tofflemire’s unemployment Tofflemire 
benefits.  appealed and a hearing was held before an 
administrative law judge (ALJ).  The administrative 
law judge affirmed the fact-finder’s decision.  Tofflemire 
appealed to the employment appeal board (EAB), which 
affirmed the ALJ’s decision.  Tofflemire then petitioned 
for judicial review, and the district court affirmed 
the EAB’s decision.  Tofflemire appeals, asserting
 (1) the DOL failed to prove Tofflemire was terminated 
for misconduct, and (2) the agency erred by admitting 
evidence created after her termination.
II.  Standard of Review.  Our review is for errors
 at law.  Harlan v. Iowa Dep’t of Job Serv., 350 N
.W.2d 192, 193 (Iowa 1984).  The decisions of the agency 
are binding on us if they are supported by substantial 
evidence and correct conclusions of law.  Heatherly 
v. Iowa Dep’t of Job Serv., 397 N.W.2d 670, 670 (Iowa 
1987).  We will look at the record as a whole to determine 
if agency action is supported by substantial evideEvidence 
nce.  is substantial if a reasonable mind would accept 
it as adequate to reach a conclusion.  Aluminum Co
. of America v. Employment Appeal Bd., 449 N.W.2d 394 
391, (Iowa 1990).  
III.  Substantial Evidence Supporting the EAB’s DeTofflemire 
cision.  claims the EAB’s determination that she was 
terminated for misconduct for abusing sick leave and 
lying during the investigation is not supported by
 substantial evidence.  She contends that because the 
DOL never provided documentation establishing the s 
IDOP’written sick leave policy, the department could 
not have proven she violated that policy.  However
, the EAB’s determination of Tofflemire’s eligibility 
for unemployment benefits is not based on whether she 
violated a written policy, but whether she was terminated 
for misconduct as defined by the Iowa Administrative 
Code.  An individual is disqualified from unemployment 
benefits if “the department finds that the individual 
has been discharged for misconduct in connection with 
the individual’s employment.”  Iowa Code §96.5(2)(
a) (2001). 
"Misconduct" is defined as a deliberate act or omission 
by a worker which constitutes a material breach of
 the duties and obligations arising out of such wos 
rker'contract of employment.  Misconduct as the term 
is used in the disqualification provision as being
 limited to conduct evincing such willful or wanton 
disregard of an employer's interest as is found in
 deliberate violation or disregard of standards of
 behavior which the employer has the right to expect 
of employees, or in carelessness or negligence of such 
degree of recurrence as to manifest equal culpabilwrongful 
ity, intent or evil design, or to show an intentional 
and substantial disregard of the employer's interests 
or of the employee's duties and obligations to the
 employer.  On the other hand mere inefficiency, unsatisfactory 
conduct, failure in good performance as the result
 of inability or incapacity, inadvertencies or ordinary 
negligence in isolated instances, or good faith errors 
in judgment or discretion are not to be deemed misconduct 
within the meaning of the statute.
Iowa Admin. Code r. 871-24.32(1)(a) (1997).  
            The EAB determined that the DOL proved
 Tofflemire was terminated for misconduct because she 
abused sick leave and lied during the investigatioOur 
n.  review of the record convinces us that there is 
substantial evidence to support the EAB’s finding that 
Tofflemire abused sick leave.  Because of our determination 
on that issue, we do not address the EAB’s finding
 that Tofflemire lied during the investigation.
            Although Tofflemire provided explanations 
for the occasions on which she utilized sick leave
 from the DOL tending to establish that she did not 
perform indigent defense work during the hours she
 claimed sick leave from the DOL, when evidence is
 in conflict or where reasonable minds might disagree 
about the conclusions to be drawn, the findings of
 the agency are binding on the court.  Freeland v.
 Employment Appeal Bd., 492 N.W.2d 193, 197 (Iowa The 
1992).  record contains evidence from which a reasonable 
fact finder could find that Tofflemire claimed sick 
leave on days on which she appeared in court, met with 
clients and judges, and performed other work for her 
indigent defense practice.  This substantial evidence 
provides minimally sufficient support for EAB’s determination 
that Tofflemire’s conduct constituted misconduct as 
defined in the Iowa Administrative Code.  We therefore 
affirm the agency’s ruling.
IV.  Admission of Documents Created After Tofflemis 
re’Termination.  Tofflemire contends that the agency 
abused its discretion when it admitted certain documents 
created by the DOL after Tofflemire’s termination.
  She relies on Lee v. Employment Appeal Board, 616 
N.W.2d 661, 669 (Iowa 2000) for the proposition that 
sufficient proof of an employee’s misconduct must exist 
on the date of termination.  We agree with this prbut 
oposition, disagree that the agency relied on evidence 
that did not exist on the date of Tofflemire’s terMany 
mination.  of the exhibits Toflflemire finds objectionable 
are merely compilations of information used by the
 DOL in its decision to terminate her employment. 
 Even if the other documents were improperly admitthe 
ted, record indicates no prejudice resulting from their 
admission.  See Graber v. City of Ankeny, 616 N.W.2d 
633, 638 (Iowa 2000).  We agree with the district s 
court’determination that the agency did not rely on 
these documents in its decision, and we find no reversible 
error on this issue.  
            AFFIRMED.