concurring.
I concur, because the result in this case is required by Bunnell v. Employment Division, 304 Or 11, 741 P2d 887 (1987). Presumably the same result would be required if claimant had deliberately shot a coworker between the eyes, if he had not engaged in that misconduct before. As the Supreme Court noted in Bunnell, the definition of misconduct excludes isolated instances of poor judgment. 304 Or at 16. When EAB finds disqualifying misconduct, it in effect has already decided that the conduct was a willful violation of the standards of behavior that an employer has a right to expect and presumably has considered and decided that none of the exclusions from the definition of misconduct apply. The Supreme Court also said that the administrative rule was unclear as to “whether every willful violation of the standard of behavior which an employer has the right to expect is misconduct or whether an isolated act can be an isolated instance of poor judgment even though wilfull.” 304 Or at 15. Given the rule’s lack of clarity, if it is indeed unclear, it is still a mystery to me why EAB’s interpretation of its own rule is not a permissible one and binding on the courts.