In re Appeal of New Hampshire Div. of State Police

175 N.H. 1

280 A.3d 246

APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE

(New Hampshire Personnel Appeals Board)

No. 2020-0450

Supreme Court of New Hampshire.

Argued: September 30, 2021

Opinion Issued: February 11, 2022

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.

BASSETT, J.

This appeal arises from the decision of the New Hampshire Division of State Police (Division), to terminate State Trooper Thomas Owens (the employee) based upon his adjustment of his timecard and his conduct during the subsequent investigation. The employee appealed his termination to the New Hampshire Personnel Appeals Board (PAB), which reinstated him. The Division appeals, arguing that the PAB's reinstatement of the employee was unjust and unreasonable because he is no longer qualified to be a state trooper. It also argues that the PAB erred as a matter of law when it reinstated the employee in contravention of public policy. We affirm.

The following facts were found by the PAB or are supported by the administrative record. The Division hired the employee as a probationary trooper in April 2016 and elevated him to the rank of trooper a year later. He typically worked the midnight highway shift and frequently picked up extra-duty shifts. On Monday, October 29, 2018, the employee accepted an extra-duty detail assignment, which he believed began at 3:00 p.m. later that same day. He soon realized, however, that the detail was scheduled for the following day. Although the employee had firearms training the next morning, he anticipated that he would have time to complete the training and arrive at the detail on time. On October 30, he participated in firearms training in the morning and traveled to his extra-duty detail that afternoon. Before traveling to the detail, he failed to change out of his training uniform and into his official uniform.

The employee did not complete his timecard for October 30 until the end of that week. When doing so, he realized that, between his regular shift and the extra-duty detail, he would exceed the hourly limitations for time worked in a 24-hour period and a 28-day period. Consequently, without consulting a supervisor, he "adjusted the hours" on his timecard to avoid a policy violation for exceeding the hourly limits and for traveling during his regular shift to an extra-duty assignment. The adjustments included changing his regular-duty start time to be approximately thirty minutes earlier than it actually was so that his regular-duty shift would appear to end before his extra-duty detail began.

During a routine review of timecards, the employee's supervisor noticed that the employee's October 30 timecard was inconsistent with other records. Specifically, the computer-aided dispatch records demonstrated that the employee had actually started and ended his regular shift later than was indicated by his timecard, and had used approximately sixteen minutes of regular-duty time to travel to his extra-duty detail. The employee's supervisor informally questioned him about these discrepancies. The employee told his supervisor that, when completing his timecard for October 30, he "realized [he] had mismanaged [his] hours for that day" and had adjusted the timecard to "mitigate the policy violation."

The Division later filed a formal complaint against the employee and initiated an investigation related to two possible violations of the Division's Professional Standards of Conduct: traveling to an extra-duty detail during regular-duty time, and wearing an improper uniform during the extra-duty detail. The employee was interviewed three times as part of the investigation. During those interviews, he admitted that he had traveled to the extra-duty detail on regular-duty time, worn the wrong uniform, and adjusted his timecard to avoid a policy violation. He also stated that he attributed the issues with his timecard in part to "mismanagement of time[ ] and poor planning."

Following its investigation, the Division terminated his employment. It found that the employee had violated numerous administrative rules and the Professional Standards of Conduct by: traveling to an extra-duty detail during regular-duty time; wearing an improper uniform during extra-duty detail; intentionally submitting an inaccurate timecard; and making false statements during the course of the investigation into his conduct.

The Division determined that the employee's conduct — specifically, the adjustment of his timecard and his behavior during the investigation — had compromised his personal and professional integrity, which the Division described in its dismissal letter as "one of the most fundamental and valuable qualities that a State Trooper must possess." It found that the employee had lied during the investigation because he initially represented to his supervisor that any errors on his timecard were an accident, but later stated that he had intentionally made the entries to avoid violating the policy against traveling to an extra-duty detail during his regular-duty shift. The Division concluded that the employee had violated several provisions of the Division's Professional Standards of Conduct, including the "Integrity" provision, which provides that no Division member "shall, under any circumstances, make any false official statement or intentional misrepresentation of facts." See N.H. Admin. R., Per 1002.08(b)(7), (12) (listing terminable offenses, including violation of agency rules and falsification of agency records).

The employee appealed his termination to the PAB. See RSA 21-I:46, I (2020), :58, I (2020). Following an evidentiary hearing, the PAB ruled that the employee had violated rules by using regular-duty time to travel to an extra-duty detail, wearing the wrong uniform while on extra duty, engaging in "poor record keeping," and failing to communicate his timekeeping issues to his superiors in a timely manner. The...