In re Silva

172 N.H. 183

210 A.3d 887

APPEAL OF Steven SILVA (New Hampshire Personnel Appeals Board)

No. 2018-0296

Supreme Court of New Hampshire.

Argued: April 10, 2019

Opinion Issued: May 10, 2019

Gary Snyder, general counsel, State Employees' Association of New Hampshire, Inc., SEIU, Local 1984, of Concord, on the brief and orally, for the petitioner.

Gordon J. MacDonald, attorney general (Jill A. Perlow, senior assistant attorney general, on the brief and orally), for the respondent.

HANTZ MARCONI, J.

The petitioner, Steven Silva, appeals a decision of the New Hampshire Personnel Appeals Board (PAB). The PAB upheld the decisions of the respondent, the New Hampshire Department of Health and Human Services (DHHS), to suspend and subsequently terminate the petitioner's employment. We affirm.

The following facts were found by the PAB or are otherwise derived from the record. The petitioner began working at the New Hampshire Hospital in 1999. He was terminated from employment in 2015 for violating the hospital's sexual harassment policy. See N.H. Admin. R., Per 1002.08(b)(7) ("An appointing authority may dismiss an employee without prior warning for ... [v]iolation of a posted or published agency policy or procedure, the text of which warns that violation of same may result in dismissal."). He appealed this termination to the PAB. In 2016, the PAB found that the petitioner's 2015 termination did not comply with New Hampshire Administrative Rules, Per 1002.08(d) because DHHS did not provide the petitioner, prior to termination, with all of the evidence it relied upon to justify his termination, and, consequently, he was not given an opportunity to refute the evidence that led to his dismissal. See N.H. Admin. R., Per 1002.08(d). For that reason, the PAB ordered DHHS to reinstate the petitioner retroactively to the date of his termination and award him back pay and benefits.

Following the PAB's order, DHHS resumed paying the petitioner but simultaneously placed him on suspension so that it could conduct a new investigation into the same sexual harassment allegations that formed the basis for the 2015 termination. In 2017, after completing its investigation, DHHS terminated the petitioner again. The petitioner appealed his suspension as well as his 2017 termination to the PAB, arguing that the PAB's decision overturning his prior termination prevents DHHS from terminating or suspending him for the same conduct. After a hearing on the merits, the PAB upheld the suspension and subsequent termination. The petitioner moved for reconsideration; the PAB denied the petitioner's motion and this appeal followed.

RSA chapter 541 governs our review of the PAB's decision. Appeal of Cole, 171 N.H. 403, 411, 196 A.3d 950 (2018) ; RSA 21-I:58, II (2012). We will not set aside the PAB's decision except for errors of law, unless the petitioner demonstrates by a clear preponderance of the evidence that it is unjust or unreasonable. Cole, 171 N.H. at 411-12, 196 A.3d 950 ; RSA 541:13 (2007). The PAB's findings of fact are presumed prima facie lawful and reasonable. RSA 541:13. In reviewing the PAB's findings, our task is not to determine whether we would have found differently or to reweigh the evidence, but rather to determine whether its findings are supported by competent evidence in the record. Cole, 171 N.H. at 412, 196 A.3d 950. However, we review the PAB's rulings on issues of law de novo. See id.

The petitioner first argues that his 2017 termination violates RSA 21-I:58, I (2012) because that statute requires reinstatement after a termination is overturned by the PAB due to the violation of an applicable regulation, such as Per 1002.08(d). This argument requires that we engage in statutory interpretation. The interpretation of a statute is a question of law. Cole, 171 N.H. at 408, 196 A.3d 950. In matters of statutory interpretation, this court is the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. Id. When construing a statute's meaning, we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to the words used. Id. We do not consider words and phrases in isolation, but rather within the context of the statute as a whole, and we construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result. Appeal of New England Police Benevolent Ass'n, 171 N.H. 490, 493, 198 A.3d 905 (2018). We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id.

The petitioner's argument also requires that we interpret Per 1002.08(d). We use the same principles of construction when interpreting both statutes and regulations. Appeal of Michele, 168 N.H. 98, 102, 123 A.3d 255 (2015). While deference is accorded to an agency's interpretation of its own regulations, that deference is not total. Appeal of Collins, 171 N.H. 61, 63, 189 A.3d 316 (2018). A reviewing court must still examine whether the agency's interpretation is consistent with the language of the regulation and with the purpose that the regulation was intended to serve. Id.

RSA 21-I:58, I, provides in pertinent part:

Any permanent employee who is affected by any application of the personnel rules, except for [certain rules not at issue here], may appeal to the personnel appeals board within 15 calendar days of the action giving rise to the appeal.... If the personnel appeals board finds that the action complained of was taken by the appointing authority ... in violation of a statute or of rules adopted by the director, the employee shall be reinstated to the employee's former position or a position of like seniority, status, and pay.

RSA 21-I:58, I.

Per 1002.08(d) provides:

No appointing authority shall dismiss a classified employee under this section until the appointing authority:

(1) Offers to meet with the employee to discuss whatever evidence the appointing authority believes supports the decision to dismiss the employee; (2) Offers to provide the employee with an opportunity to refute the evidence presented by the appointing authority provided, however:

a. An employee's failure to respond to a request for a meeting with the appointing authority shall not bar the appointing authority from dismissing an employee pursuant to this part; and

b. An employee's refusal to meet with the appointing authority shall not bar the appointing authority from dismissing an employee pursuant to this part; and

(3) Documents in writing the nature and extent of the offense.

N.H. Admin. R., Per 1002.08(d).

The petitioner argues that, because the PAB found that DHHS's 2015 termination failed to comply with the requirements of Per 1002.08(d), that termination was in violation of a rule adopted by the director, and thus DHHS was required to reinstate him pursuant to RSA 21-I:58, I. He argues that this statutory reinstatement requirement precludes DHHS from terminating him again for the same conduct which gave rise to his 2015 termination. He further asserts that construing the statute to allow for termination in these circumstances renders the protections of RSA 21-I:58 and Per 1002.08(d) meaningless, is contrary to legislative intent, and produces an absurd result. By contrast, DHHS argues that nothing in RSA 21-I:58, I, precludes it from terminating the petitioner, and that a contrary interpretation would give the petitioner an unfair windfall, "who, because of a technical rule violation, would be above reproach from his employer, regardless of how egregious the underlying conduct."

RSA 21-I:58, I, provides that, if the PAB finds that the "action complained of" by the employee was taken "in violation of" an applicable administrative rule, then the employee must be reinstated to his former position or a like one. RSA 21-I:58, I; Appeal of N.H. Div. of State Police, 171 N.H. 262, 267, 194 A.3d 488 (2018). The parties' dispute boils down to whether DHHS's second termination, after its first was rejected for failure to comply with Per 1002.08(d), is consistent with this reinstatement requirement. We conclude that it is.

The term "reinstated," as it is used in RSA 21-I:58, I, is not defined by statute. See RSA 21-I:1-a (2012) (defining certain terms used in RSA chapter 21-I). When a term is not defined in a statute, we look to its common usage, using the dictionary for guidance. Michele, 168 N.H. at 102, 123 A.3d 255. Webster's Third New International Dictionary defines "reinstate" as "to restore to a proper condition: replace in an original or equivalent state." Webster's Third New International Dictionary 1915 (unabridged ed. 2002); see also Black's Law Dictionary 1477 (10th ed. 2014) (defining "reinstate" as "[t]o place again in a former state or position; to restore"). Therefore, the statute requires that the employee be restored to the same state that he or she occupied prior to the action complained of. Here, prior to the petitioner's 2015 termination, he occupied a state in which he was required to comply with his employer's lawful policies or else face potential termination. See N.H. Admin. R., Per 1002.08(b)(7). This suggests that, upon the petitioner's reinstatement, he remained subject to potential discipline for the conduct underlying his 2015 termination. Conversely, construing the statute in the manner suggested by the petitioner would, in essence, immunize him from discipline for that conduct, which is a wholly different (and more favorable) state from that which he enjoyed prior to his 2015 termination. The plain language of the statute does not support such a construction.¹

The petitioner argues that construing the statute to allow for termination in these circumstances renders the protections of both Per 1002.08(d) and RSA 21-I:58 meaningless because the State would not have to "follow the procedural requirements for...