In re N.H. Div. of State Police

175 N.H. 229

286 A.3d 170

APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE (New Hampshire Personnel Appeals Board)

No. 2021-0267

Supreme Court of New Hampshire.

Argued: April 14, 2022

Opinion Issued: June 7, 2022

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Jessica A. King, assistant attorney general, on the brief and orally), for the New Hampshire Division of State Police.

Milner & Krupski, PLLC, of Concord (John S. Krupski and Marc G. Beaudoin on the brief, and Marc G. Beaudoin orally), for the respondent.

DONOVAN, J.

The New Hampshire Division of State Police (the Division) appeals an order of the Personnel Appeals Board reversing the Division's nondisciplinary removal of an employee pursuant to New Hampshire Administrative Rule, Per 1003.03, and ordering him reinstated subject to certain conditions. The Division argues that the PAB: (1) erred by reversing the employee's removal; and (2) exceeded its statutory authority by ordering the employee's reinstatement subject to certain conditions. We conclude that the Division failed to meet its burden of demonstrating that the PAB's decision to reverse the employee's removal was clearly unreasonable or unlawful. We further conclude that the PAB exceeded its statutory authority by imposing certain conditions upon the employee's reinstatement. Accordingly, we affirm in part and reverse in part.

I. Facts

The following facts are supported by the record or are otherwise undisputed. The Division hired the employee as a state trooper in December 2011. In January 2019, following a series of off-duty incidents, the employee became concerned about his mental health and entered inpatient treatment at a hospital for a period of approximately two weeks. The employee applied for leave through the Family Medical Leave Act (FMLA), which the Division granted. In March 2019, as required by the FMLA, the employee provided a fitness-for-duty certification from his primary care provider (PCP) and returned to work.

The following month, the employee suffered a decline in his mental health and again entered inpatient treatment at the same hospital for ten days. His treating psychiatrist determined that he had been misdiagnosed during his previous visit and that his current prescription medications were exacerbating his conditions. The employee received new medications and a revised diagnosis. During his second round of inpatient treatment, the employee took leave under his prior FMLA request. Following his discharge to outpatient treatment, the employee remained on leave throughout the summer of 2019.

In August 2019, a counselor discharged the employee from outpatient treatment. Thereafter, the employee's PCP again completed a fitness-for-duty certification and cleared him to return to work. However, the Division deemed the PCP's fitness-for-duty certification insufficient for the employee to return to work. Instead, the Division initiated the non-disciplinary removal process set forth in New Hampshire Administrative Rule, Per 1003 and requested additional information from the employee's treatment providers pursuant to Per 1003.02(a)-(d).

After securing the employee's authorization, the Division sent identical letters to four of his treatment providers: his PCP; Dr. Liu, who treated him at the inpatient hospital; his outpatient counselor; and his psychiatric nurse. The letters requested "an assessment on [the employee] ... in regards to his physical or mental ability to perform the essential functions of his position as a State Police Trooper." The letters also contained information about the duties of a state trooper, as well as the employee's signed authorization to release the information.

The PCP responded to the Division's request with a four-sentence letter stating that the employee "is physically and mentally able to perform the essential functions of his position as a New Hampshire state police trooper." The psychiatric nurse, who was responsible for monitoring his medications, responded that, as of their last meeting, the employee was following the recommended dosage of his medication. She also reported the employee's statements that he benefitted from therapy and felt ready to return to work. The outpatient counselor did not respond to the request pursuant to her employer's policy, but previously submitted a discharge summary to the Division detailing the employee's progress during outpatient treatment. During the interim between the Division's initiation of the non-disciplinary removal process and its requests to the employee's treatment providers, the Division received a fitness-for-duty certification from Dr. Liu. The letter cleared the employee to return to work, opining that "there is no psychiatric contraindication to [the employee] returning to full unrestricted duty as of the date of this letter," provided that he continued to participate in his treatment.

The Division determined that the responses from the employee's treatment providers were "unresponsive" to their assessment requests within the meaning of Per 1003.02(e). In a letter to the employee, the Division noted that it had considered the opinions of the four treatment providers and explained that "[n]one of the responses provided any specificity with regards to the nature of any illness, disability or condition" which would affect the employee's ability to perform the essential functions of his job. Thus, the Division mandated that the employee undergo an independent medical examination (IME) to determine his fitness for duty. See N.H. Admin. R., Per 1003.02(e). In December 2019, the examiner reviewed the opinions of the employee's previous treatment providers, conducted his own clinical interview of the employee, and administered a litany of tests. Ultimately, the examiner recommended that the employee "not be considered fit for duty at this time or in the foreseeable future." In May 2020, based upon the opinion of the examiner, the Division removed the employee for non-disciplinary reasons pursuant to Per 1003.03.

The employee appealed his non-disciplinary removal to the PAB. At the evidentiary hearing, the PAB heard testimony from the employee, as well as the Division's human resources director who initiated the IME process, and the state police colonel who issued the notice of removal to the employee. In its order reversing the employee's non-disciplinary removal, the PAB determined that the treatment providers’ assessments were responsive to the Division's requests for assessments and that the criteria for ordering an IME were "not satisfied and constituted a rule violation under [Per-A 207.12(d)]."¹ Further, the PAB found that the employee is on "the right path to recovery" and invoked "its broad authority" under RSA 21-I:58, I (2020) to tailor a decision that contemplated providing the employee with a support system of "family, work, friends, and therapy." Accordingly, the PAB reinstated the employee subject to seven conditions:

1. [The employee] will remain in active outpatient treatment as recommended by his treatment providers with appointment[s] and meetings scheduled in a manner that will minimize the impact on his work schedule, and will continue to maintain his recovery;

2. [The employee] will submit quarterly progress reports from one of his licensed treatment providers to [Human Resources] and to the [PAB] for one year to demonstrate continued compliance with the treatment plan and both entities will preserve the confidentiality of these medical records; the first report will be due on May 1, 2021;

3. [The employee] will work a regular work week but on shifts approved by his health care provider(s) to accommodate the treatment plan and he will keep [the Division] apprised of his availability based on the recommendations of his treatment providers;

4. [The employee] will also focus on preserving the integrity of the family unit for the sake of the young children — he must accordingly limit his availability for overtime and/or details to the equivalent of one shift per week for one year from the date of this decision; this condition is intended to reduce the level of stress both on the job and at home;

5. The State will reinstate [the employee] to his rank and salary base retroactively to the date of his dismissal with full back pay and benefits;

6. The State will remove from [the employee's] personnel file the letter of dismissal dated May 7, 2020[; and]

7. The board retains the right to modify this decision for good cause at the request of [the employee], the State, or on its own motion as the interests of justice and public safety may require.

The Division filed a motion for rehearing, which the PAB denied. This appeal followed.

II. Analysis

The Division first challenges the PAB's order reversing the employee's non-disciplinary removal. Our review of the PAB's decision is governed by RSA 541:13 (2021). See Appeal of N.H. Div. of State Police, 171 N.H. 262, 266, 194 A.3d 488 (2018). The Division, as the appealing party, has the burden to show that the PAB's decision "is clearly unreasonable or unlawful." RSA 541:13. The PAB's findings of fact are deemed prima facie lawful and reasonable. See id. We will not vacate or set aside the PAB's decision except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that its order is unjust or unreasonable. See Appeal of N.H. Div. of State Police, 171 N.H. at 266, 194 A.3d 488. However, we review the PAB's interpretations of statutes and administrative rules de novo. Id. When interpreting both statutes and administrative rules, we ascribe the plain and ordinary meanings to the words used, looking at the rule or statutory scheme as a whole. Id. at 266-67, 194 A.3d 488.

Per 1003.01 allows for the removal of a full-time employee for nondisciplinary reasons when "[t]he employee is physically or mentally unable to perform the essential functions of the position to which appointed." N.H. Admin. R., Per ...