Administrative Law: 

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

Appeal of New Hampshire Division of State Police, No. 2017-0449, September 7, 2018

Affirmed.

 

  •     Whether the decision of the New Hampshire Personnel Appeals Board to reinstate a State Trooper after termination by the New Hampshire Division of State Policy was unreasonable and unjust.

The respondent, New Hampshire Division of State Police (Division), appealed a decision from the New Hampshire Personnel Appeals Board (PAB) to reinstate a State Trooper after termination by the Division.

Petitioner, a New Hampshire State Trooper was terminated following the Division’s findings that he violated numerous administrative rules and standards of professional conduct. Petitioner’s termination stemmed from an incident in which he prematurely left an extra-duty assignment escorting a truck to the Massachusetts border in Plaistow. Petitioner claimed he was concerned about his ability to arrive timely to begin his regular-duty shift and, after attempting to contact a supervisor for advice, he ceased escorting the truck and drove to Troop F, located in northern New Hampshire, to begin his regular-duty shift. Due to the abandonment of his extra-duty shift, the Division terminated Petitioner after determining that he engaged in terminable offenses. Petitioner appealed his termination to the PAB.

The PAB concluded that the termination was unjust in light of mitigating factors, including attempts to reach a supervisor about the truck’s late departure and his concern for being able to reach his regular-duty assignment on time.  The PAB reinstated the Trooper. The Division appealed the PAB’s decision on grounds that (1) the PAB improperly substituted its own judgment for the Division’s and (2) the PAB failed to consider facts relied upon by the Division and Petitioner’s prior disciplinary history.

On appeal, the court noted that the PAB’s findings of fact were prima facie lawful and reasonable, and the Division had the burden to show that the PAB’s decision was “clearly unreasonable or unlawful.”  RSA 541:13. The court reviews PAB decisions under a preponderance of the evidence standard and only for errors of law.

The court determined that the PAB had broad authority to reinstate Petitioner and relied on the language in the applicable statute, which provides that “[i]n all cases, the [PAB] may reinstate an employee or otherwise change or modify any order of the appointing authority,or make such other order as it may deem just.” RSA 21-I:58, I. Thus, the PAB had authority to reinstate Petitioner, and it can do so even if it appears that a petitioner committed a terminable offense. Further, the PAB is not required to consider facts relied upon by the Division as it has discretion over which factors to consider.  (N.H. Admin. R., Per 1002.03.) In further noting that the PAB conducted a proper review and issued extensive findings, the court concluded that the Division failed to carry its burden of showing that the PAB’s decision was unjust or unreasonable.

 

John S. Krupski, Milner & Krupski, Concord, for the petitioner; David Appleby, Gordon J. MacDonald, attorney general and Karen A. Schlitzer, senior assistant attorney general, for the respondent New Hampshire Division of State Police.