Supreme Court At-a-Glance Contributor Jonathan P. Killeen, Shareholder at Boyle | Shaughnessy Law PC in Manchester, NH

No. 2020-0450

February 11, 2022

Affirmed

 

  • Whether the Personnel Appeals Board unreasonably or unlawfully reinstated a New Hampshire state trooper with alleged integrity issues.

 

On October 29, 2018, Trooper Thomas Owens (the employee), a state trooper with the  The New Hampshire Division of State Police (Division), accepted an extra-duty detail assignment which he believed began at 3:00 p.m. that day but soon realized that the detail was scheduled for the following day, October 30, 2018. The employee believed that he could arrive at the detail on time the following day, once he completed a morning firearms training. The employee did not change out of his training uniform and into his official uniform before arriving to the detail. When the employee completed his timecard at the end of the week, he realized that between his regular and extra-duty detail shifts, he would exceed the hourly limitations for time worked in a 24-hour period and a 28-day period. In order to avoid a policy violation for exceeding hourly limits and for traveling during a regular shift to an extra-duty assignment, the employee adjusted his hours without consulting a supervisor. A supervisor recognized the October 30, 2018 time discrepancy in the employee’s timecards and questioned him in response to which the employee stated that he “mismanaged [his] hours for that day” and had adjusted the timecard to “mitigate the policy violation.” Thereafter, the Division filed a formal complaint against the employee and initiated an investigation.  The employee was interviewed three times and admitted that he travelled to the extra-duty detail on regular-duty time, wore the wrong uniform, and adjusted his timecard.

The Division subsequently terminated the employee based on his adjustment to his timecard, “making false statements during the course of the investigation into his conduct,” and violating the integrity provision of the Division’s Professional Standards of Conduct (Integrity Provision). The employee appealed his termination to the New Hampshire Personnel Appeals Board (PAB). The PAB conducted an evidentiary hearing and concluded that the employee met his burden by showing that his dismissal was unwarranted and reinstated him with a twenty-day suspension without pay. The PAB reasoned that while the employee violated rules, engaged in “poor record keeping,” and failed to communicate his timekeeping issues to his supervisor, the PAB deemed the employee credible and that his indiscretions did not rise to the level of termination.  The Division then appealed to the Supreme Court.

On appeal, the Court stated that the PAB has discretion to reinstate an employee, and its findings of fact are prima facie lawful and reasonable, which would only be vacated and set aside for clear errors of law. The Court held that the Division failed to meet its burden that the PAB’s decision was clearly unreasonable or unlawful. Specifically, the Division’s arguments were based on its interpretation that the PAB order implicitly found that the employee engaged in dishonest conduct that violated the Integrity Provision. The Court concluded that the Division failed to meet its burden where the Court interpreted the PAB’s order as not characterizing the employee’s conduct as dishonest or construing the employee’s timecard adjustments and statements during the investigation as contrary to the Integrity Provision.

 

John M. Formella, attorney general (Emily C. Goering, assistant attorney general, and Matthew T. Broadhead, senior assistant attorney general, on the brief, and Emily C. Goering orally), for the New Hampshire Division of State Police; Milner & Krupski, PLLC, of Concord (Marc G. Beaudoin and John S. Krupski on the brief, and Marc G. Beaudoin orally), for Thomas Owens; American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the memorandum of law), as amicus curiae.