NEBCO, Inc. v. Murphy

statutory procedures outlined in § 29-2317, as incorporated
by § 43-2,106.01, we lack jurisdiction to consider the State’s
exception. Because this case is not properly before this court,
we dismiss the exception proceeding for lack of jurisdiction.
E xcEption dismissEd.
HEavican, C.J., not participating.
nEBco, inc., a nEBraska corporation, appEllant, v.
tHErEsa k. murpHy, a nEBraska citizEn, and
catHErinE d. lang, in HEr capacity as tHE
commissionEr of laBor for tHE statE
of nEBraska , appEllEEs.
784 N.W.2d 447
Filed July 2, 2010. 	Nos. S-09-484, S-09-691.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of a jurisdictional issue is a
matter of law which requires an appellate court to reach a conclusion independent
from that of the trial court.
2. Employment Security: Judgments: Appeal and Error. In an appeal from the
Nebraska Appeal Tribunal to the district court regarding unemployment benefits,
the district court conducts the review de novo on the record, but on review by the
Court of Appeals or the Supreme Court, the judgment of the district court may be
reversed, vacated, or modified for errors appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Employment Security: Words and Phrases. Misconduct under Neb. Rev. Stat.
§ 48-628(2) (Cum. Supp. 2008) has been defined as behavior evidencing (1)
wanton and willful disregard of the employer’s interests, (2) deliberate violation
of rules, (3) disregard of standards of behavior which the employer can rightfully
expect from the employee, or (4) negligence which manifests culpability, wrong-
ful intent, evil design, or intentional and substantial disregard of the employer’s
interests or of the employee’s duties and obligations.
Appeals from the District Court for Lancaster County: karEn
B. flowErs and paul d. mErritt, Jr ., Judges. Affirmed.
Shannon L. Doering and Luke F. Vavricek for appellant.
James D. McFarland for appellee Theresa K. Murphy.
NeBCo, INC. v. MuRphy 	145
Cite as 280 Neb. 145
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

John h. Albin and Thomas A. ukinski for appellee Catherine
D. Lang.
HEavican, 	c.J., 	wrigHt, 	connolly, 	gErrard, 	stEpHan,
mccormack , and millEr-lErman, JJ.
millEr-lErman, J.
NATuRe oF CASe
In these consolidated cases, NeBCo, Inc., appeals two
orders, each of which relates to unemployment benefits paid
to a former NeBCo employee, appellee Theresa K. Murphy.
In the first case, case No. S-09-484, the district court for
Lancaster County affirmed the Nebraska Appeal Tribunal’s
decision that Murphy was not partially disqualified from
receiving unemployment benefits because there was insuf-
ficient evidence that she had engaged in workplace mis-
conduct. In the second case, case No. S-09-691, the district
court affirmed the appeal tribunal’s decision that NeBCo’s
unemployment insurance experience account could be charged
for Murphy’s unemployment benefits. We affirm the district
court’s orders in both cases.
STATeMeNT oF FACTS
Murphy was employed by NeBCo as a truckdriver. Murphy’s
employment was terminated on July 25, 2008, because of five
separate driving accidents which occurred within a 3-year
period.
In two separate accidents that occurred on September 11 and
13, 2005, the truck Murphy was driving struck a city light pole.
The third accident occurred on September 11, 2007, when the
truck Murphy was driving damaged a culvert as she was enter-
ing a construction site. In the fourth accident, which occurred
April 24, 2008, Murphy backed a truck into construction forms
and damaged the forms. Finally, on July 22, 2008, the truck
Murphy was driving damaged a culvert as she was entering a
construction site. After each of the first four accidents, NeBCo
responded with a combination of counseling regarding vehicle
handling and safety as well as discipline including a suspen-
sion and a reduction in pay. NeBCo terminated Murphy’s
employment following the final accident after determining
146 	280 NeBRASKA RepoRTS

that the truck was put into a tipped position that presented a
safety hazard.
Murphy applied for unemployment benefits. An adjudica-
tor for the Nebraska Department of Labor concluded in a
notice of determination dated August 13, 2008, that because
her actions amounted to misconduct, Murphy was disquali-
fied from receiving benefits under Neb. Rev. Stat. § 48-628(2)
(Cum. Supp. 2008) for the week her employment ended and the
12 weeks immediately following such week, which the adjudi-
cator specified as the period from July 20 through october 18.
The adjudicator noted that Murphy had been discharged from
her job “for having too many work related accidents for which
[she was] responsible or at fault” and determined that Murphy
was disqualified from benefits because her “carelessness or
negligence resulting in these accidents was contrary to the
best interests of the employer and constitute[d] misconduct in
connection with the work.” The adjudicator further determined
that NeBCo was “not chargeable for this employment on any
future claim.”
Murphy appealed the adjudicator’s August 13, 2008, deter-
mination to the Nebraska Appeal Tribunal. In a decision
filed September 25, 2008, the appeal tribunal reversed the
adjudicator’s ruling with respect to the partial disqualifica-
tion and determined that Murphy “was discharged under non-
disqualifying conditions” and was entitled to benefits for the
weeks at issue to the extent she was otherwise eligible. The
appeal tribunal found that the evidence did not support a find-
ing that Murphy “wantonly, deliberately or willfully caused
the accidents” and instead that “the accidents occurred as
[Murphy] in good faith proceeded to perform her job as she
understood it to be.”
The appeal tribunal next considered whether Murphy “was
negligent to [such a] degree or [with such] recurrence as to
manifest culpability, wrongful intent or evil design.” In this
regard, the appeal tribunal made the following specific find-
ings: The September 11, 2007, accident was not the result
of negligence, and instead, the evidence supported Murphy’s
claim that she could not see the culvert in the mud. The two
accidents in 2005 manifested driver negligence but, the appeal
NeBCo, INC. v. MuRphy 	147
Cite as 280 Neb. 145

tribunal noted, Murphy was counseled and disciplined at the
time and approximately 3 years passed before the accident
of April 24, 2008. That accident involved “some negligence”
but “was not major,” and the “damage caused was modest”
and consisted mainly of nuisance. The final incident on July
22, 2008, evidenced negligence, but again, the “damage was
humble” and the “greater part of the damage” was nuisance.
In summary, the appeal tribunal stated that “[n]one of the
four accidents evidencing negligence were major accidents”
and that the “damage in each case was modest.” The appeal
tribunal noted the timelag between the September 2005 acci-
dents and the termination of Murphy’s employment in July
2008 and stated that the accidents of September 11, 2007,
and April 24, 2008, “were apparently accidents that the driv-
ers not infrequently experience on the construction sites due
to the conditions and circumstances the drivers face and are
expected to negotiate.” The appeal tribunal expressed that
it was “concerned with the final incident” of July 22, 2008,
because the evidence indicated that Murphy “knew or should
have known better particularly in light of the earlier warnings,
suspension and remedial driver training.” however, the appeal
tribunal concluded that it was “not convinced the degree of
negligence or the recurrence . . . supports the degree of culpa-
bility required for a holding of misconduct.” In its September
25, 2008, order, the appeal tribunal reversed the adjudicator’s
determination that Murphy was partially disqualified for unem-
ployment benefits.
on october 6, 2008, under a separate docket number, a dif-
ferent administrative law judge of the appeal tribunal filed a
decision with respect to NeBCo’s unemployment insurance
experience. In that order, it was noted that the appeal tribunal
had previously ruled in Murphy’s favor on the issue of whether
she was disqualified from receiving benefits. With regard to the
issue whether NeBCo’s experience account could be charged
with respect to unemployment benefits paid to Murphy, the
appeal tribunal noted that “[i]n order to qualify for non-
charging of its experience account, the employer must estab-
lish,” inter alia, that “a claimant’s separation from employment
was under disqualifying conditions.” Because Murphy had not
148 	280 NeBRASKA RepoRTS

been disqualified, the appeal tribunal determined that NeBCo’s
unemployment insurance experience account would be charged
with respect to Murphy’s employment.
NeBCo appealed both the September 25 and october 7,
2008, orders of the appeal tribunal to the district court for
Lancaster County. each appeal was docketed separately by the
district court and was assigned to a different judge. on appeal
to this court, the order regarding whether Murphy was disquali-
fied from receiving unemployment benefits is the subject of the
appeal in case No. S-09-484 and the order regarding whether
NeBCo’s unemployment insurance experience account could
be charged is the subject of the appeal in case No. S-09-691.
We refer herein to the proceedings in each case at the dis-
trict court level by the numbers the appeals are assigned in
this court.
In case No. S-09-484, the district court reviewed the appeal
tribunal’s September 23, 2008, decision de novo on the record.
After reviewing the record, in an order filed April 29, 2009,
the court found the facts to be the same as those set out in the
appeal tribunal’s decision and concluded that the facts failed to
support a finding of misconduct. The court therefore affirmed
the September 23, 2008, decision of the appeal tribunal that
Murphy was not disqualified from receiving benefits.
In case No. S-09-691, the district court reviewed the appeal
tribunal’s october 6, 2008, decision de novo on the record. In
an order filed June 29, 2009, the court concluded that because
the appeal tribunal’s September 23, 2008, decision had been
affirmed in case No. S-09-484, the case at issue with respect to
the unemployment insurance experience account was “moot,”
and it therefore affirmed the tribunal’s october 6 order to the
effect that Murphy’s unemployment benefits were chargeable.
The court further noted in its order that in her answer, Murphy
sought an award of attorney fees and costs under Neb. Rev.
Stat. § 25-824(2) (Reissue 2008). The court concluded that
NeBCo’s appeal of the october 6 order was neither frivolous
nor made in bad faith, and it therefore ordered that each party
was to pay its or her own attorney fees and costs.
NeBCo appealed each district court order separately to the
Court of Appeals. The Court of Appeals granted NeBCo’s
NeBCo, INC. v. MuRphy 	149
Cite as 280 Neb. 145

motion to consolidate the two appeals. We subsequently moved
the consolidated cases to this court’s docket.
ASSIGNMeNTS oF eRRoR
NeBCo asserts in case No. S-09-484 that the district court
erred by (1) concluding that the evidence failed to support a
finding of misconduct for purposes of § 48-628(2), (2) basing
such conclusion in part upon the severity of damage caused
by the misconduct rather than the misconduct itself, and (3)
concluding that Murphy was not disqualified from receiving
unemployment benefits as a result of misconduct.
NeBCo asserts in case No. S-09-691 that the district court
erred when it determined (1) that NeBCo’s account was
properly chargeable for benefits paid to Murphy and (2) that
Murphy’s separation from employment was not under disquali-
fying conditions.
We note that Murphy argues in her appellate briefs in both
cases Nos. S-09-484 and S-09-691 that the district court erred
by failing to award her attorney fees and costs. however, she
does not denominate such arguments as cross-appeals in accord-
ance with Neb. Ct. R. App. p. § 2-109(D)(4) (rev. 2008), and
we therefore do not consider such arguments on appeal. See,
Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988,
759 N.W.2d 75 (2009); In re Guardianship & Conservatorship
of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006).
STANDARDS oF ReVIeW
[1] When a jurisdictional question does not involve a factual
dispute, determination of a jurisdictional issue is a matter of
law which requires an appellate court to reach a conclusion
independent from that of the trial court. Miller v. Regional West
Med. Ctr., 278 Neb. 676, 772 N.W.2d 872 (2009).
[2,3] In an appeal from the appeal tribunal to the district court
regarding unemployment benefits, the district court conducts
the review de novo on the record, but on review by the Court
of Appeals or the Supreme Court, the judgment of the district
court may be reversed, vacated, or modified for errors appear-
ing on the record. Douglas Cty. Sch. Dist. 001 v. Dutcher, 254
Neb. 317, 576 N.W.2d 469 (1998). When reviewing a judgment
150 	280 NeBRASKA RepoRTS

for errors appearing on the record, the inquiry is whether the
decision conforms to law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. Id.
ANALySIS
The District Court Decided the Attorney Fee Issue
in Both Cases, and the Orders Were
Final and Appealable.
Although, as stated above, we do not consider Murphy’s
arguments that the district court erred by failing to award her
attorney fees, we note that in her brief in case No. S-09-484,
Murphy asserts that the court failed to rule on her request for
attorney fees and costs. Because failure to rule on all issues
in a case could mean that there was not a final, appealable
order, we must consider whether this court has jurisdiction
over these appeals. We conclude that the court either explicitly
or impliedly rejected Murphy’s requests for attorney fees and
costs asserted in her answer in both cases Nos. S-09-484 and
S-09-691, that the orders in both cases were appealable, and
that this court has jurisdiction over these appeals.
In case No. S-09-691, the district court noted in its order
entered June 29, 2009, that in her answer filed in that court,
Murphy sought an award of attorney fees and costs under
§ 25-824(2). The court denied such request and ordered that
each party was to pay its or her own attorney fees and costs.
Therefore, the district court ruled on the request for attor-
ney fees in the order from which appeal is taken in case
No. S-09-691.
Murphy asserts that in case No. S-09-484, the district court
failed to rule on her request for attorney fees and costs under
§ 25-824(2) asserted in her answer and that this court lacks
jurisdiction over case No. S-09-484 because there is no final
order. We reject this argument.
In Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003),
we noted that a party had requested an award of attorney fees
and costs in her answer to the other party’s application to
terminate child support. The district court entered an order in
which it denied the application “and granted no other relief
as to either party.” 266 Neb. at 380, 665 N.W.2d at 585. We
NeBCo, INC. v. MuRphy 	151
Cite as 280 Neb. 145

determined that “[t]he silence of the judgment on the issue of
attorney fees must be construed as a denial of [the] request
under these circumstances.” Id.
Similarly, in case No. S-09-484, Murphy requested in her
answer to NeBCo’s complaint filed in district court that she
be awarded reasonable attorney fees and costs pursuant to
§ 25-824. Murphy did not file a separate motion for attorney
fees. In its order entered April 29, 2009, the district court
affirmed the decision of the appeal tribunal and ordered no
further relief. We determine that under these circumstances, the
court’s silence on the issue of attorney fees must be construed
as a denial of Murphy’s request. See id.
Because the district court disposed of the attorney fee
requests in both cases Nos. S-09-484 and S-09-691, the order
appealed from in each case is appealable and this court has
jurisdiction over these appeals.
Case No. S-09-484: The District Court Did Not Err by
Concluding That NEBCO Failed to Show That
Murphy’s Employment Was Terminated for
“Misconduct” Under § 48-628(2).
In case No. S-09-484, NeBCo asserts that the district
court erred by determining that the evidence failed to sup-
port a finding of misconduct for purposes of § 48-628(2) and
concluding that Murphy was not partially disqualified from
receiving unemployment benefits as a result of misconduct.
The district court adopted the findings of the appeal tribunal.
NeBCo argues that the district court erred by basing its find-
ing of no misconduct in part upon the severity of damage
caused by the misconduct rather than the misconduct itself.
We conclude that although a determination of misconduct
is properly based on the employee’s conduct rather than the
severity of damage caused thereby, the court in this case did
not err in finding no misconduct and thus concluding that
Murphy was not disqualified from receiving unemployment
benefits. Finding no error on the record, we reject this assign-
ment of error.
under § 48-628(2) of Nebraska’s employment Security
Law, Neb. Rev. Stat. § 48-601 et seq. (Reissue 2004 & Cum.
152 	280 NeBRASKA RepoRTS

Supp. 2008), an employee may be partially or totally dis-
qualified from receiving benefits if he or she is found to have
been “discharged for misconduct connected with his or her
work.” A partial disqualification is effective for the week of
the discharge “and for the twelve weeks which immediately
follow such week.” § 48-628(2). An individual may be totally
disqualified if the “misconduct was gross, flagrant, and will-
ful, or was unlawful.” Id. In the present case, the adjudicator
determined that Murphy was disqualified from benefits for
the week her employment ended plus 12 weeks. Given this
partial disqualification, it is clear that the adjudicator deter-
mined that Murphy was discharged for misconduct but did
not find that such misconduct was gross, flagrant, and willful,
or unlawful.
[4] “[M]isconduct” for purposes of § 48-628(2) is not statu-
torily defined. however, in case law, “misconduct” under
§ 48-628(2) has been defined as behavior evidencing (1) wan-
ton and willful disregard of the employer’s interests, (2) delib-
erate violation of rules, (3) disregard of standards of behavior
which the employer can rightfully expect from the employee,
or (4) negligence which manifests culpability, wrongful intent,
evil design, or intentional and substantial disregard of the
employer’s interests or of the employee’s duties and obliga-
tions. See Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb.
317, 576 N.W.2d 469 (1998).
The appeal tribunal in the present case found that the evi-
dence did not support a finding that Murphy “wantonly, delib-
erately or willfully caused the accidents” that gave rise to her
discharge. Instead, the appeal tribunal found that the “accidents
occurred as [Murphy] in good faith proceeded to perform her
job as she understood it to be.” The appeal tribunal further
found that one of Murphy’s accidents was not the result of
negligence and that while her four other accidents evidenced
negligence, such negligence did not support “the degree of cul-
pability required for a holding of misconduct.” In its de novo
review, the district court agreed with the tribunal that “the facts
fail to support a finding of misconduct as defined by the appli-
cable case law.”
NeBCo, INC. v. MuRphy 	153
Cite as 280 Neb. 145

NeBCo asserts on appeal that Murphy’s negligence in con-
nection with the accidents rose to a level of culpability that
supports a finding of misconduct. NeBCo notes that the appeal
tribunal found that, at least with regard to the final accident,
Murphy “‘knew or should have known better particularly in
light of the earlier warnings, suspension and remedial driver
training.’” Brief for appellant at 9. NeBCo argues that because
Murphy knew or should have known better, the accidents were a
result of something more than mere negligence and evidenced a
level of culpability sufficient to constitute misconduct. NeBCo
further asserts that the appeal tribunal’s decision “wrongfully
addresses the degree of culpability in terms of the severity
of the resulting damage, rather than in terms of the presence
or existence of misconduct.” Id. In support of its argument,
NeBCo notes that the appeal tribunal stated that “[n]one of
the four accidents evidencing negligence were major accidents”
and that the “damage in each case was modest.”
We agree with NeBCo that the degree of damage caused
should not be a determining factor in whether an employee
engaged in misconduct. Instead, the focus should be on the
employee’s culpability as demonstrated by his or her conduct
and intentions. under the definition of “misconduct” devel-
oped in the case law, misconduct generally involves inten-
tional actions as indicated by the phrases “wanton and willful
disregard of the employer’s interests,” “deliberate violation
of rules,” and “disregard of standards of behavior.” Douglas
Cty. Sch. Dist. 001, 254 Neb. at 320-21, 576 N.W.2d at 472.
Misconduct may also involve negligence on the part of the
employee, but only when it “manifests culpability, wrongful
intent, evil design, or intentional and substantial disregard.” Id.
at 321, 576 N.W.2d at 472. Damage caused by an employee’s
action would not be determinative of whether an employee
engaged in misconduct and would be potentially relevant only
to the extent it indicated culpability or intent.
Although we agree that damage is not a determining fac-
tor in whether misconduct occurred, we do not think that the
appeal tribunal or the district court in this case based the con-
clusion that there was no misconduct on the degree of damage.
In this regard, we note that the appeal tribunal specifically
154 	280 NeBRASKA RepoRTS

found Murphy’s accidents were of the type that drivers in her
industry “not infrequently experience on the construction sites”
and that even where Murphy was negligent, the appeal tribunal
was “not convinced the degree of negligence . . . supports the
degree of culpability required for a holding of misconduct.”
Reading the appeal tribunal order as a whole, we ascertain that
its conclusion was properly based on the determination that
Murphy’s negligence did not manifest culpability, wrongful
intent, evil design, or intentional and substantial disregard of
NeBCo’s interests or Murphy’s duties. We determine that the
decision of the appeal tribunal, adopted by the district court, is
supported by competent evidence. See Douglas Cty. Sch. Dist.
001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).
The present case may be contrasted to cases such as Raheem
v. Com., Unempl. Comp. Bd. of Review, 60 pa. Commw. 324,
327, 431 A.2d 1112, 1113 (1981), in which the court affirmed
a finding that an employee was discharged for willful miscon-
duct because he “was consistently reckless in the performance
of his assigned duties, to the direct detriment of his employer.”
In Raheem, there was evidence that the employee engaged
in “several instances of intentional or reckless acts” includ-
ing “reckless operation” of a truck on a construction site and
involvement in an accident in which the employee was driv-
ing the employer’s truck and failed to report the accident to
the employer. 60 pa. Commw. at 326-27, 431 A.2d at 1113.
In Kimble v. Director, Ark. Emp. Sec. Dept., 60 Ark. App. 36,
959 S.W.2d 66 (1997), the court found that five preventable
accidents in a 6-month period could support a finding of mis-
conduct. The court in Kimble indicated that it could be inferred
that this recurring pattern of carelessness manifested an indif-
ference constituting substantial disregard of the employer’s
interests and of the employee’s duties and obligation.
The present case is more similar to Foster v. Mississippi
Employment Sec. Com’n, 632 So. 2d 926 (Miss. 1994), in
which the Mississippi Supreme Court reversed a determina-
tion that an employee had been discharged for “work-related
misconduct” when, during a 6-month tenure as a carwasher,
the employee on five occasions backed vehicles into stationary
objects. The employee was given training after each incident
NeBCo, INC. v. MuRphy 	155
Cite as 280 Neb. 145

and, after the fourth incident, was given a suspension and was
warned his employment would be terminated if further accidents
occurred. The Mississippi Supreme Court stated that although
an employer may be justified in terminating the employment of
an “‘accident-prone’” employee, accidents that are the result
of mere negligence do not amount to willful misconduct. Id.
at 928. The court noted that there was no evidence that the
incidents were anything but accidental or that the employee
willfully or recklessly disregarded his supervisor’s instructions.
The court concluded that “[w]ithout more, mere ineptitude
cannot disqualify a terminated employee from receiving unem-
ployment compensation benefits.” Id. at 929. See, also, Myers
v. Unemployment Comp. Bd. of Review, 533 pa. 373, 625 A.2d
622 (1993) (three accidents with employer’s truck—on May 1
and September 4 and 5, 1989—did not constitute misconduct
where evidence failed to show any intentional and deliberate
conduct on employee’s part).
Although Murphy was involved in five accidents on the job,
the accidents were spread over a 3-year period and do not indi-
cate a consistent or concentrated pattern of behavior. While the
appeal tribunal found four of the accidents to be the result of
Murphy’s negligence, it did not find any of the accidents to be
the result of intentional, reckless, or deliberate acts. NeBCo
presented no evidence that Murphy acted intentionally or that
she took unacceptable deliberate action such as failing to report
any of the accidents.
We conclude that based on the evidence, there is no error
appearing on the record. The appeal tribunal and the district
court did not err in determining that Murphy’s accidents were
the result of mere negligence or ineptitude rather than any reck-
less or intentional actions on her part, the latter of which would
constitute “misconduct” under § 48-628(2). Disqualification
for unemployment benefits is appropriate under § 48-628(2)
when the employee is discharged for misconduct. Because the
district court determined there was no misconduct, the court
logically concluded that Murphy was not disqualified from
receiving benefits. The district court did not err, and we reject
NeBCo’s assignments of error and therefore affirm the district
court’s order in case No. S-09-484.
156 	280 NeBRASKA RepoRTS

Case No. S-09-691: The District Court Did Not Err by
Concluding That NEBCO’s Account Was Chargeable
for Benefits Paid to Murphy.
NeBCo asserts in case No. S-09-691 that the district court
erred 	when 	it 	determined 	that 	Murphy’s 	separation 	from
employment was not under disqualifying conditions and con-
cluded that NeBCo’s account was properly chargeable for
benefits paid to Murphy. We conclude that because the court
in case No. S-09-484 did not err in concluding that Murphy
was not disqualified from receiving benefits, it follows that
the court did not err in case No. S-09-691 when it con-
cluded that NeBCo’s account was chargeable for benefits paid
to Murphy.
Section 48-652(3)(a) provides in relevant part:
No benefits shall be charged to the experience account of
any employer if (i) such benefits were paid on the basis
of a period of employment from which the claimant . . .
left work from which he or she was discharged for mis-
conduct connected with his or her work . . . and (ii) the
employer has filed timely notice of the facts on which
such exemption is claimed in accordance with rules and
regulations prescribed by the commissioner.
The appeal tribunal in case No. S-09-691 concluded that
NeBCo “cannot meet the first of the two requirements for
non-charging 	of 	its 	unemployment 	insurance 	experience
account” because, in case No. S-09-484, it had been deter-
mined that Murphy was not discharged for misconduct. The
district court affirmed.
NeBCo’s argument on appeal in case No. S-09-691 is con-
tingent on its being successful in its appeal to this court in
case No. S-09-484, in which it argued that the district court
had erred when it concluded that Murphy was not disquali-
fied from receiving unemployment benefits because Murphy
had not engaged in misconduct. We have concluded in case
No. S-09-484 that the court did not so err. Thus, the district
court did not err in case No. S-09-691 when it determined
that Murphy’s separation from employment was not under
disqualifying conditions and therefore concluded that under
§ 48-628(2), NeBCo’s account was properly chargeable for
NeBCo, INC. v. MuRphy 	157
Cite as 280 Neb. 145

benefits paid to Murphy. We reject NeBCo’s assignments of
error. Because the district court’s ruling in case No. S-09-691
conforms to the law, we affirm.
CoNCLuSIoN
We conclude in case No. S-09-484 that the district court did
not err when it determined that Murphy was entitled to unem-
ployment benefits because NeBCo had failed to establish that
Murphy’s employment was terminated for misconduct under
§ 48-628(2) and when it accordingly affirmed the appeal tribu-
nal’s decision. We conclude in case No. S-09-691 that the dis-
trict court did not err when it concluded that NeBCo’s account
was chargeable for benefits paid to Murphy and accordingly
affirmed the appeal tribunal’s decision. We therefore affirm the
orders of the district court.
affirmEd.
statE of nEBraska Ex rEl . counsEl for disciplinE of
tHE nEBraska suprEmE court, rElator , v.
paula B. HutcHinson, rEspondEnt.
784 N.W.2d 893
Filed July 2, 2010. 	No. S-09-805.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The basic issues in a disciplinary proceeding against a lawyer are whether
discipline should be imposed and, if so, the type of discipline appropriate under
the circumstances.
3. ____. With respect to the imposition of attorney discipline in an individual case,
the Nebraska Supreme Court evaluates each attorney disciplinary case in light of
its particular facts and circumstances.
4. ____. To determine whether and to what extent discipline should be imposed in
a lawyer discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
5. ____. The determination of an appropriate penalty to be imposed on an attorney
requires consideration of any aggravating or mitigating factors.
158 	280 NeBRASKA RepoRTS