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Bar News - June 17, 2011


NH Supreme Court At-a-Glance - May 2011

By:

Board of Education Appeals

Appeal of Keelin B.
May 12, 2011
Affirmed in part, vacated in part and remanded.
  • Whether the state board of education erred in upholding the school boardís decision because the school board acted in excess of statutory authority and in violation of Rule 317.04 by imposing a suspension in excess of ten days for neglect or refusal to conform to reasonable rules of the school and school policies.
The facts showed that the petitioners daughter Keelin B admitted to opening an email account in the name of a student from her school from her fatherís computer and sending out emails to a principal and teacher in the Sunappe School District, the emails contained vulgar and sexually explicit language. The superintendent for the Sunapee School District, Brendan Minnihan, met with Keelin B. and her parents, and imposed a ten-day school suspension, from November 19 through December 5, and informed her parents that he would recommend to the Sunapee School Board that it impose a long-term suspension under RSA 193:13, II (2008).

The school board conducted a hearing and voted to continue Keelin B.ís suspension through January 23, 2009, pursuant to RSA 193:13 (2008), bringing the total suspension period to thirty-four school days. The petitioners appealed arguing the school board acted in excess of statutory authority and in violation of Rule 317.04 by imposing a suspension in excess of ten days. The court disagreed.

The court quickly upheld the decision to suspend Keelin B. the court went on to look at the length of the suspension and whether that was in line with applicable standards in particular the court looked at both the rules in the district as well as the student handbook. At issue was the fact that the district rules provide "levels of discipline available to school officials enforcing RSA 193:13 and/or RSA 193-D relative to the suspension and expulsion of pupils," including short-term suspension "not to exceed 10 days," long-term suspension "between 11 and 20 days," and expulsion.

In their decision the court stated that although the district policies and the student handbook alerted Keelin B. and her parents that the conduct at issue was subject to discipline, and even may have given notice that expulsion was a possibility, the school board did not pursue the more severe discipline of expulsion and provide Keelin B. with the associated procedural safeguards. See, e.g., N.H. Admin. Rules, Ed 317.03. That the school board might have sought expulsion does not authorize it to exceed the twenty-day limitation for long-term suspensions established under the district policy.

The court affirmed the state board of educationís decision upholding the suspension of Keelin B., and vacated that decision only insofar as the suspension exceeded twenty school days.

Daniel B. and Lisa B., petitioner, pro se., Barbara F. Loughman and Maureen L. Pomeroy, Soule, Leslie, Kidder, Sayward & Loughman, of Salem, for respondent Sunapee School District


Appeal of School Administrative Unit #44
May 26, 2011
Affirmed in Part, Reversed in Part.
  • Whether the respondent Judith McGannís due process rights were violated during the administrative hearing process, and whether the State Board erred in granting respondent full access to the SAUís work file.
This case concerns the termination of the respondent, Judith McGann, as superintendent of the petitioner, School Administrative Unit #44 (SAU). The gist of the allegations was that McGann improperly used federal grant money in the form of stipend contracts to give raises to her staff, circumvented the SAU Board by granting the raises after it had denied her request for them, failed to ensure that "time and effort" requirements for the federal grants were followed, and intentionally failed to provide the SAU Board with an auditing companyís management letter that raised significant concerns about accounting records and systems.

McGann appealed to the State Board of Education, asserting that the SAU Board had violated her right to due process. In addition, she argued that she was denied the opportunity to review Sullivanís work file and was thus denied a meaningful opportunity to cross-examine him. The State Board referred the appeal to a hearing officer, who ordered the SAU to produce Sullivanís work file for McGann to review. The SAU refused to comply with this order. All parties appealed.

The court first held that due process did not require the SAU to provide McGann with pre-hearing access to Sullivanís file. After a thorough review of the record, the court held that McGann received all the process that was due at her termination hearing.

McGann also went on to argue that she was not given proper notice and was not given the opportunity to cure before being terminated. In regards to those issues the court held that absent a specific provision in the employment contract, and absent citation of any authority supporting such a constitutional requirement in the context of employment contracts, we decline to hold that due process requires prior notice and an opportunity to cure before terminating an employment contract.

Edward M. Kaplan and Beth G. Catenza, Sulloway & Hollis, P.L.L.C., of Concord, for the petitioner. Andru H. Volinsky and Christopher G. Aslin, Bernstein Shur, of Manchester, for the respondent. Theodore E. Comstock and Barrett M. Christina, of Concord, by brief, for the New Hampshire School Boards Association, as amicus curiae.


Civil Litigation

New Hampshire Limited Partners of the Lyme Timber Company v. New Hampshire Department of Revenue Administration
May 26, 2011
Reversed and Remanded
  • Whether the trial court erred in ruling that the language of New Hampshire Department of Revenue Administrationís (DRA) a regulations relating to the meaning of "transferable shares" was ambiguous and that the ambiguities had to be resolved in favor of the petitioners as the taxpayers.
Respondent, New Hampshire Department of Revenue Administration (DRA) appeals the decision of the Superior Court ruling that distributions which the Lyme Timber Company (Lyme) made to the petitioners, certain of its limited partners who reside in New Hampshire, are not taxable income to the individual petitioners because their beneficial interests in Lyme are not "transferable shares" within the meaning of RSA chapter 77.

Lyme is a limited partnership that owns, develops, and manages commercial real estate and timberland. In 2005, the DRAís audit division reviewed Lymeís distributions to the petitioners and issued notices of assessments to the petitioners for taxes and interest due for the tax years 2002, 2003, and 2004. Although Lyme itself had paid the interest and dividends taxes for these years, the audit division determined that the individual petitioners were responsible for the taxes because their beneficial interest in Lyme were represented by "transferable shares". Rule 901 uses the terms "transferable" and "freely transferable" to describe shares. Rule 901.03, created a reasonable meaning of freely transferable is that the limited partner must be able, without any restriction to dispose of his or her rights and interests by any means of his or her choosing without first obtaining approval. Under this interpretation, the units at issue in this case are not Ďfreely transferableí because transfers are subject to the restrictions and conditions set forth in the Partnership Agreement.

The Supreme Court took the Appeal and evaluated the rules using the plain and ordinary meanings to words used. It has previously been ruled that "words and phrases in Statutes are construed according to "the common and approved usage of the language" unless from the statue it appears that a different meaning was intended". Pheasant Lane Realty Trust v. City of Nashua, 143 N.H. 140, 142 (1998).

The Court decided that the Trial court erred in ruling the term "transferable shares" to be ambiguous because the rule uses different language to describe them. They went on to say that interests in entities covered by Rule 901.02, need only meet the lower standard of "transferable" all words in the statute are presumed to have the same meaning and the legislature did enact superfluous or redundant words.

The petitioners also complained that although DRA regulations have been in effect since 1998 the DRA has never sought to collect. The Court also ruled that no estoppel arises against a government agency merely because of its failure to take enforcement action at an earlier time.

The Court ruled that the Trial Court erred in ruling the language ambiguous and therefore, reversed and remanded.

Wilber A. Glahn, III and Steven J. Dutton of McLane, Graf, Raulerson & Middleton, P.A., of Manchester, for the petitioners. Michael A. Delaney, attorney general and Karen A. Schlitzer, assistant attorney general, for the respondent.


Darlene Gray v. Commonwealth Land Title Insurance Company
May 26, 2011
Affirmed
  • Whether the Trial Court erred in granting a motion to dismiss by the defendant, Commonwealth Land Title Insurance Company against plaintiff, Darlene Gray.
In July of 2003, the plaintiff and her sister in their capacity as trustees of the Ocean Estates Realty Trust (Ocean Estates), received a quitclaim deed from the Triple "P" Ranch Realty Trust (Ranch Trust). The plaintiff testified that Ocean Estates paid approximately $80,000 to $90,000 for the parcel of land in question. In December of 2003 Ocean Estates conveyed to the plaintiff a warranty deed for the parcel of land. At the time of the conveyance Plaintiff purchased title insurance from Insurer and obtained a construction loan in the amount of $243,000. In June of 2006, after incurring additional costs for construction, the plaintiff was informed that Ranch Trust never had title to the land, and that it was actually owned by the State of New Hampshire. Plaintiff and lender filed claims with the Insurer, which retained and appraiser to value the property. The appraiser found that the parcel of land was not legally build able and that the value of the property based on the fair market was $15,000.

Based on the appraiserís findings the Insurer sent payment of $15,000 to the lender claiming they were only liable for the fair market value at the time of the loss, and the Plaintiff filed for a breach of contract. Plaintiff claimed she was entitled to all expenses incurred in preparing to build on the property prior to learning it was unbuildable, up to her coverage limit of $328,000.

At bench trial, the Plaintiff attempted to call the insurerís expert witness, Peter Stanhope, to testify regarding the fair market value of the property but the court granted the Insurerís motions to preclude his testimony and later granted the Insurerís motion to dismiss. Since the Plaintiff did not present any testimony or an expert opinion on the fair market value of the property, the court concluded that she did not meet her burden of proof and granted the motion to dismiss. Plaintiff then filed a motion for reconsideration, which the court denied.

On appeal the plaintiff claims the trial court erred in determining she could not recover more than the fair market value because she suffered a catastrophic or complete loss of title. She also claims the trial court unsustainable exercised its discretion in prohibiting her from calling the expert witness. Finally she assigns error to the courtís granting of the insurerís motion to dismiss at the conclusion of her case-in-chief.

The Court affirmed the previous ruling and said that the interpretation of insurance policy language is a question of law which was reviewed de novo. The Court concluded that the court correctly read the insurance policy and that the Plaintiffís damages were based upon "actual monetary loss or damage", and her actual monetary loss or damage was the fair market value of the property. Plaintiff failed to present any testimony or expert opinion regarding the propertyís fair market value to prove by a preponderance of evidence she was entitled to more damages and therefore she was not entitled to more than the $15,000. With regard to the out of pocket expenses incurred by the Plaintiff the court ruled that title insurance does not guarantee perfect title, but pages damages if any caused by any defects to the title that the title company should have discovered but did not. In this case the damages are the fair market value of the land.

The Court affirmed the decision to exclude Plaintiffís expert testimony because the Plaintiff failed to disclose within an adequate amount of time the substance of the facts and opinions about which her expert witness was to testify and the basis of the opinion. Plaintiff failed to give the insurer adequate notice that she intended to call Stanhope as a witness. She also failed to show that Stanhope failed to rise to the threshold level of reliability in order to be admissible testimony. Plaintiff needed to prove that Stanhopeís testimony is "based upon sufficient facts or data, "is the product of reliable principles and methods," and that the expert has "applied the principles and methods reliably to the facts." Plaintiff acknowledged that Stanhope would only provide a ballpark estimate to the fair market value, and therefore requisite standard for expert reliability.

Since Plaintiff failed to prove by a preponderance of evidence that she was entitled to more than the fair market value, and she failed to show that Stanhope was a reliable expert witness the Court affirmed the decision of the Trial Court.

Robert M. Shepard, Smith-Weiss Shepard, of Nashua, for the plaintiff. Meredith P. Cook and Jennifer Turco Beaudet, Wiggin & Nourie, of Manchester, for the defendant.


Criminal Law

State v. Richard MacDonald
May 17, 2011
Reversed and Remanded
  • Whether the trial court erred in not allowing an in camera review of a victim of a sexual assaults medical records.
The facts showed that a Strafford County Grand Jury indicted the defendant, Richard MacDonald, on one count of aggravated felonious sexual assault, alleging that he engaged in sexual penetration with K.H., a person whom he knew to be mentally defective. The defendant filed a motion seeking an in camera review of K.H.ís medical and mental health records from five stays at the New Hampshire Hospital.

The State did not object to the documents being provided to the court for in camera review. The trial court granted the defendantís motion, but did not grant an in camera review and ordered that the records would be for "counsels eyes only". The State moved for reconsideration of the courtís ruling, requesting that the court conduct an in camera review consistent with its earlier order and "[r]elease only those records deemed appropriate after" the in camera review. The trial court summarily denied the Stateís motion. The State then filed this petition for writ of certiorari challenging the trial courtís ruling.

The State argues that the records at issue are privileged and, thus, "the court was required to conduct an in camera review to determine whether there was an Ďessential needí for disclosure of the records, and to release only those portions of the records that were relevant and responsive to the purpose for which the disclosure was ordered." The court reviewed the trial courtís decision on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. State v. Amirault, 149 N.H. 541, 543 (2003). The Court stated that to meet this standard, the State must demonstrate that the trial courtís ruling was clearly untenable or unreasonable to the prejudice of its case.

Neither party disputed that the records the defendant seeks are subject to the physician-patient privilege and the psychotherapist-patient privilege. The defendant felt that it met the burden outlined in State v. Gagne, 136 N.H. 101, 105 (1992). Which held that "Before establishing essential need for the information contained in the privileged records, however, the party seeking to pierce the privilege must first Ďestablish a reasonable probability that the records contain information that is material and relevant toí the partyís defense or claim."

The court agreed that the defendant met this initial burden under Gagne. However the court went on to state that the trial court was required to conduct an in camera review to determine whether the privileges at issue should be abrogated. Its failure to do so was error.

Accordingly, the case was remanded for the trial court to conduct an in camera review of the records to ascertain which, if any, of the records should be disclosed.

Michael A. Delaney, attorney general and Susan P. McGinnis, senior assistant attorney general, for the State. Richard E. Samdperil, Samdperil & Welsh, of Exeter, for the defendant.


State v. Todd Peters
May 12, 2011
Affirmed
  • Whether the Trial Court erred when it denied Defendantís motions in limine to introduce evidence of alternative perpetrators and to exclude the testimony of the keeper of the records for Cellco Partnership d/b/a Verizon Wireless.
Defendant Todd Peters was found guilty of two counts of First Degree Murder for the Murders of Edith Riley and Thomas King. Before trial, the defendant moved in limine to introduce evidence related to aggressive, hostile or illegal behavior involving the victims and various neighbors. The trial court ruled that the evidence was inadmissible to show that other people had a motive to kill the victims, but that the defendant could use some of the evidence to cross-examine witnesses about their biases and motives to lie. The evidence was not admitted at trial, however, because the State did not call any of the people whom the defendant alleged were possible perpetrators and, thus, did not give the defense an opportunity to use the evidence to impeach.

The defendant also moved in limine to exclude the testimony of the keeper of the records for Cellco Partnership d/b/a Verizon Wireless. The State indicated that it intended to call this witness to testify about "call detail 6 records" relating to phone calls allegedly made from the Defendantís brother Dwayneís cell phones. The defendant argued that the call detail records were scientific in nature and admissible only through expert witness testimony, as well as not meeting the Daubert standard of reliability. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial court ruled that the cell phone records were admissible under the business records exception set forth in New Hampshire Rule of Evidence 803(6). The trial court further ruled that expert witness testimony was not required and that a Daubert hearing was unnecessary.

On Appeal the State countered that even if the trial court erred in any of these respects, any error was harmless. The Court concluded that the State had satisfied its burden of proving that these errors were harmless beyond a reasonable doubt.

Michael A. Delaney, attorney general and Thomas E. Bocian, assistant attorney general, for the State. Christopher M. Johnson, chief appellate defender, of Concord, for the defendant.


State v. Marilyn Demond-Surface
May 12, 2011
Reversed and Remanded.
  • Whether the trial court erred by failing to grant a mistrial for statements made by the prosecutor in her closing argument regarding the defendantís alcohol consumption and admitting evidence that she consumed one glass of wine.
The defendant, Marilyn Demond-Surace, appealed her conviction on two counts of vehicular assault stemming from a 2005 motor vehicle accident that killed two people riding on a motorcycle. The defendant had consumed alcohol prior to the accident, however, the trial court granted the defendantís motion to exclude all evidence related to blood alcohol tests because the tests were taken without the defendantís consent. At trial the defendant filed a motion in limine to preclude the State from introducing evidence regarding her alcohol consumption, which was denied. However, the trial court told the State that "as far as the jury is going to know, she was sober. She wasnít impaired." Additionally, during the trial, the court again re-emphasized that the State could not argue or elicit testimony that the defendant was impaired.

During her closing argument, the prosecutor told the jury that the defendant admitted to consuming one glass of wine and that the Officer testified that a faint odor of alcohol was consistent with her claim. However, the prosecutor continued, "But the evidence here is that some three hours later at the hospital there was a strong odor of alcohol. And that was observed by two officers . . . ." The defendant did not immediately object to either argument, but moved for a mistrial immediately following the closing argument and asked for a cautionary jury instruction regarding her alcohol consumption. The trial court denied the motion for a mistrial because it found that the prosecutorís argument regarding the defendantís alcohol consumption was a fair response to testimony elicited by the defendant on cross-examination. The court also refused to give the cautionary instruction regarding alcohol consumption.

On Appeal, the defendant asserts that the argument was improper in light of the courtís earlier ruling that the State could not imply that the defendant was lying regarding the number of drinks she had consumed. She argues that the prosecutorís argument was contrary to the Stateís prior representations regarding the purpose of admitting evidence of her alcohol consumption and in disregard of the trial courtís ruling.

The Court agreed with the defendants argument stating that the State was still required to abide by the courtís order, which made unmistakably clear that the State could not "suggest" that the defendant lied about having only one drink. The Court went on to say that while a prosecutor may ordinarily use a closing argument to respond to defense counselís closing arguments and to urge the jury to draw inferences of guilt from the evidence, the courtís order in this case specifically prohibited the prosecutorís argument. Accordingly, in light of that order, the Stateís closing argument was improper.

Finding that the closing was improper the Court next determined whether the error requires reversal of the verdict. In doing so, the Court balanced (1) whether the prosecutorís improper argument was deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; and (3) whether any prejudice surviving the courtís instruction likely could have affected the outcome of the case.

The Court held that the evidence against the defendant was not overwhelming, and, indeed, the defendantís alcohol consumption may well have been critical to obtaining a conviction, while the State did produce some evidence, arguably in violation of the courtís order, tending to show that the defendant consumed more than one glass of wine, the prosecutorís improper argument then highlighted this for the jury in direct contravention of that order. The Court concluded that based on the prosecutorís improper argument and the courtís subsequent failure to take remedial action required a new trial.

Michael A. Delaney, attorney genera and Diana E. Fenton, assistant attorney general, on the brief and orally, for the State. Robert A. Stein of Robert A. Stein & Associates, of Concord, for the defendant.


State v. James W. Mello
May 26, 2011
Affirmed
  • Whether the Trial Court erred in denying Defendantís motion to suppress evidence derived from a search warrant issued by the Keene District Court, which authorized a search for information held by an out-of-state corporation.
Defendant, James Mello appeals his conviction of four counts of delivery of child pornography. The facts show that Detective James McLaughlin of the Keene Police Department had information that the defendant was in possession of child pornography. Based upon this information, McLaughlin applied for and received an additional warrant to search the defendantís home for certain computer-related equipment. McLaughlin and the Nashua Police Department executed the warrant and seized evidence that led to the indictment of the defendant on four counts of delivery of child pornography.

The defendant subsequently filed a motion to suppress all evidence obtained as a result of the initial search warrant. He contended that the district court exceeded the scope of its jurisdiction by issuing a warrant for evidence held by an out-of-state corporation. The trial court denied his motion and this appeal followed.

Both parties agree that the search warrant was defective; however the court only looks to see if despite a defective warrant that the efforts to obtain evidence here constituted a search in the constitutional sense. The defendant asserts that a search took place because he had a subjective expectation of privacy in the subscriber information that society is prepared to recognize as reasonable. The State argues that the defendant did not have a reasonable expectation of privacy because he voluntarily conveyed the information to Comcast.

The court dismissed the defendantís arguments and stated that while individuals may have a reasonable expectation of privacy in the contents of their communications, i.e., the content of e-mails and the specific content viewed over the Internet, they have no such privacy interest in information voluntarily disclosed to an Internet service provider in order to gain access to the Internet. See Valenzuela, 130 N.H. at 183.

Michael A. Delaney, attorney general and Thomas E. Bocian, assistant attorney general, on the brief and orally, for the State. Charles J. Keefe of Wilson, Bush, Durkin & Keefe, of Nashua, for the defendant.


Family Law

In the matter of Richard Lister and Marianne Lister
May 12, 2011
Affirmed
  • Whether the Trial Court erred in refusing to grant the father of an adult disabled son a child support dollar for dollar credit of the Social Security Income benefits (SSI) from Social Security received by the son.
Petitioner Richard Lister appealed the refusal by the Derry Family Division Trial Court to grant him a dollar for dollar credit on his child support payments for the amount of SSI benefits received by his adult, disabled, son. Richard Lister, the father, and Marianne Lister, the mother, have a disabled adult son, who resides with the mother and under her direct care. According to the sonís neurologist the son will always be dependent on others for care, and therefore, will be eligible for child support so long as he remains dependent. As a direct result of his disability the son also received SSI benefits in the sum of $450 per month.

Richard Lister claims courts have previously required credit to the obligor for Social Security benefits received by the child. The court ruled that in previous cases the SSI benefits are derived from the contributions of the parent throughout the course of his/her employment. Although the benefits are payable directly to the child the payments represent those past earnings of the contributing parent. In this case, the SSI benefits are based on the disability of the adult son and are not derived from the previous earning of the father. Since the sonís SSI benefits have no connection to the fatherís previous earnings, and are substitution for the sonís own income the Supreme Court affirmed the decision of the Trial court.

Eugene F. Sullivan III, of Concord, by brief, for the petitioner. Marianne Lister, pro se, respondent.


Professional Responsibility

Bruzgaís Case
May 12, 2011
Suspended for Six Months
  • Whether Bruzga violated Rule 1.7(b) by representing the brother of a client while they were both (client and brother) subjects of a Medicaid Fraud Unit probe.
The violations at issue arise from Bruzgaís representation of an incapacitated client, George Doherty, while also advising Dohertyís brother, who served as Dohertyís guardian and trustee of Dohertyís special needs trust (SNT).

The facts showed that in May 2005 Bruzga first suggested creating a SNT for Dohertyís benefit. Over the course of the next two years, the brother solicited, received and was billed for advice from Bruzga regarding a variety of matters, including the stipulation granting the brother guardianship over Doherty, the sisterís complaint about the brotherís performance as trustee and the winding up of Dohertyís affairs and disbursement of his assets.

Additionally, the brother continued to rely upon Bruzga for advice when the Medicaid Fraud Unit began its investigation in June 2006. From that point forward, the brother consulted with Bruzga numerous times regarding the failure to reimburse the State for Dohertyís Medicaid benefits. Bruzga disputes that he represented the brother at all.. The brotherís testimony confirmed that the brother relied upon Bruzga for legal advice throughout the probate court proceedings and through most of the Medicaid Fraud Unitís investigation. The brother testified that he "relied on [Bruzgaís] expertise in everything".

The court took no account of Bruzgaís alleged mitigating factors, but took much deference to the aggravating factors most notably the fact that he had a past suspension and his refusal to accept any responsibility for his actions. Which was also noted with regard to a 2000 suspension, his actions again "raise[ ] a question as to the likelihood that he would modify his conduct in the future." Bruzgaís Case, 145 N.H. at 72. Accordingly, the court concluded, as did the PCC, that the proper sanction is a six-month suspension.

James L. Kruse, assistant disciplinary counsel, of Concord, for the professional conduct committee. David Horan, of Manchester, by brief and orally, for the respondent.


New Hampshire Compensation Appeals Board

Appeal of the Hartford Insurance Company
May 26, 2011
Vacated and Remanded
  • Whether the Compensation Appeals Board erred denying recovery from the State Special Fund for Second Injuries to the Hartford Insurance Company.
The petitioner in these consolidated cases, The Hartford Insurance Company (Hartford), appeals orders of the Compensation Appeals Board (CAB) denying recovery from the State Special Fund for Second Injuries, see RSA 281-A:54, :55 (2010), for injuries to Claire Hamel and John Rygiel. Both parties were injured at work, the Hartford put in a request for reimbursement from the second injury fund the New Hampshire Department of Labor (DOL) denied Hartfordís request, and was subsequently denied by CAB.

The facts show that the second injury fund was created to encourage employers to hire or retain employees with permanent physical or mental impairments of any origin by reducing the employerís liability for workersí compensation claims. RSA 281-A:2, XIV, in turn, defines permanent physical or mental impairment," for purposes of RSA 281-A:54, to mean "any permanent condition that is congenital or due to injury or disease and that is of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining employment if the employee should become unemployed."

The CAB denied the Hartfordís request on the basis that neither condition was so serious as to Ďconstitute a hindrance or obstacle to obtaining employment. The court disagreed and as this was a case of first impression the Court followed the reasoning of similar cases from other Jurisdictions and concluded that the employeeís ability to perform his or her existing job, or one like it, is not determinative of whether the preexisting impairment is "a hindrance or obstacle to obtaining employment."

The Court went on to say that the CABís reliance upon the employeesí abilities to perform their most recent jobs was error. The Court adopted the language of Country Wide Truck v.Indus. Comín, 891 P.2d 877, 878 (Ariz. Ct. App. 1994) to frame the proper query "The inquiry should be whether the impairment is such that an employer who knew of it and its extent would more likely than not significantly consider it when making a decision to hire or retain the employee." Country Wide Truck, 891 P.2d at 879. The Court stated that because the CAB did not employ the correct analysis in reaching its decisions in both cases, the Court vacated and remanded for further proceedings consistent with this opinion.

James Owers and Timothy A. Gudas of Sulloway & Hollis, Concord, for the petitioner. Michael A. Delaney, attorney general and Evan J. Mulholland, assistant attorney general, for the State.


New Hampshire Public Employee Labor Relations Board

Appeal of Matthew Kennedy and the Hinsdale Federal of Teachers Union
May 26, 2011
Affirmed
  • Whether the New Hampshire Public Employee Labor Relations Board (PELRB) erred when it (1) denied petitioners claim that the school district had engaged in impermissible subcontracting; and (2) dismissed petitioners claim that the school district violated its reduction-in-force policy.
The petitioners, Matthew Kennedy and the Hinsdale Federation of Teachers (union), appeal the decision of the New Hampshire Public Employee Labor Relations Board (PELRB) denying their unfair labor practice claims against the respondent, the Hinsdale School District (school district).

The facts show that Kennedy was a music teacher in the Hinsdale Middle and High Schools for approximately ten years and a member of a bargaining unit represented by the union. The school district and the union were parties to a collective bargaining agreement (CBA). Citing lack of student participation, the school district attempted to not renew Kennedyís employment for the 2008-2009 school year. This action was overturned by the state board of education on the grounds that the school district had failed to provide timely notice of non-renewal. On March 26, 2009, the school district again notified Kennedy that he was not being renewed due to declining enrollment. In order to appease the student body instead of hiring a new music teacher or bringing back Kennedy the school district entered into an agreement with Brattleboro (Vermont) High School whereby interested Hinsdale students could receive credit for participation in Brattleboroís music programs, as well as offering an online class. The petitioners then filed an unfair labor practice complaint with the PELRB. The two allegations discussed here involve alleged violations in regards to 1) the school districtís reduction-in-force policy in connection with Kennedyís termination of employment; and (2) outsourcing the school band program. The PELRB denied their claims.

In regards to the issue of illegal subcontracting the Court agreed with the PELRBís conclusion that the elimination of the Hinsdale band program was part of a reorganization within the districtís managerial prerogative. As the PELRB noted, no outside contractor was hired to replace Kennedy as the Hinsdale band instructor.

The next issue discussed is whether the PELRB erred in dismissing their claim that the school district committed an unfair labor practice by terminating Kennedyís employment in violation of its reduction-in-force policy. In its dismissal motion, the school district argued that the PELRB lacked jurisdiction over the petitionersí reduction-in force claim because the petitioners had failed to exhaust the required grievance procedure. The Court disagreed with the petitionerís assertion that the PELRB did not reach the jurisdictional question. The PELRB found that "violations of the reduction in-force policy are not expressly excluded from the contractual grievance procedure." The Court interpreted this as a ruling that violations of the reduction-in force policy are reserved to binding arbitration by the grievance procedure and, therefore, outside the PELRBís jurisdiction. The Court found no error in this ruling.

James F. Allmendinger, NEA-New Hampshire, by brief and orally, for the petitioners. Mark A. Paige and Matthew H. Upton, Drummond Woodsum & MacMahon, of Portsmouth), for the respondent.



Nicholas Howie



Nicholas Howie is an attorney in the Law Office of Patrick Shanley in Lowell, MA, as well as Of Counsel at the Howie Law Office in Salem, NH. He is a member of both the Mass. Bar and the NH Bar.

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