DocketNumber: No. 2018-0296
Citation Numbers: 210 A.3d 887
Judges: Marconi
Filed Date: 5/10/2019
Status: Precedential
Modified Date: 9/8/2022
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.
*891RSA chapter 541 governs our review of the PAB's decision. Appeal of Cole,
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,
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,
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;
*892(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,
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,
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 termination ... [or] abide by the requirement to reinstate an employee under RSA 21-I:58 for violation of the Personnel Rules." We disagree on both counts. As to Per 1002.08(d), we have explained that one of the rule's purposes is to provide adequate notice regarding the reasons why the employer believes termination is warranted. Collins, 171 N.H. at 64,
To the extent the petitioner argues that allowing the State to begin anew after reinstatement gives it insufficient incentive to abide by the requirements of Per 1002.08(d) in the first instance, we are unpersuaded. In addition to reinstatement, RSA 21-I:58, I, provides that "[t]he employee shall be reinstated without loss of pay, provided that the sum shall be equal to the salary loss suffered during the period of denied compensation less any amount of compensation earned or benefits received from any other source during the period." RSA 21-I:58, I (emphasis added). Having to pay an employee for time during which he or she was not working is not an insignificant incentive for the State to comply with Per 1002.08(d). There is also the fact that the State must expend additional resources to carry out a second, duplicative termination, especially when, as here, that termination is appealed to the PAB. See N.H. Admin. R., Per-A 207.01(b) ("In appeals involving disciplinary action ... the appointing authority shall have the burden of producing evidence supporting the action under appeal.").
As to RSA 21-I:58, nothing we say today alters the statute's requirement that, when the PAB finds that a challenged action was taken in violation of an applicable rule, such as Per 1002.08(d), reinstatement is required. See N.H. Div. of State Police, 171 N.H. at 267,
The petitioner's next argument is that the PAB erred by failing to conclude that res judicata barred DHHS from litigating whether he could be suspended and subsequently terminated for the same conduct upon which his 2015 termination was based. The doctrine of res judicata prevents parties from relitigating matters actually litigated and matters that could have been litigated in a previous action. 412 S. Broadway Realty v. Wolters,
As noted above, the PAB overturned the petitioner's 2015 termination on the grounds that DHHS failed to satisfy the requirements of Per 1002.08(d) prior to termination. That regulation obligates the appointing authority, prior to termination, to provide the employee with notice of the evidence against him and an opportunity to refute that evidence. N.H. Admin. R., Per 1002.08(d)(1)-(2); see also Collins, 171 N.H. at 64,
We next consider the petitioner's argument that the PAB erred by failing to conclude that the doctrine of collateral estoppel barred DHHS from relitigating *895whether he could be suspended and subsequently terminated for the same conduct that gave rise to his 2015 termination. Collateral estoppel may preclude the relitigation of findings by an administrative board, provided that the following requirements are satisfied: (1) the issue subject to estoppel must be identical in each action; (2) the first action must have resolved the issue finally on the merits; (3) the party to be estopped must have appeared in the first action or have been in privity with someone who did; (4) the party to be estopped must have had a full and fair opportunity to litigate the issue; and (5) the finding must have been essential to the first judgment. Barry v. N.H. Dep't of Health and Human Servs.,
The petitioner argues that collateral estoppel applies because, in part, the PAB made factual findings in its first order regarding DHHS's evidence of sexual harassment. Any such findings made by the PAB, however, would not have been essential to its judgment that the petitioner's termination should be overturned due to DHHS's failure to comply with Per 1002.08(d). Any discussion of DHHS's evidence of sexual harassment in the PAB's first order had no bearing on whether DHHS provided the petitioner with adequate notice of that evidence and an opportunity to refute it prior to his 2015 termination. See Petition of Gilpatric,
The petitioner's remaining arguments bear only brief mention. He argues that the PAB erred because the law of the case doctrine precluded the State from re-terminating him. See Saunders v. Town of Kingston,
The petitioner also argues that the PAB's decision violates his due process rights under the Fourteenth Amendment *896to the United States Constitution.
The petitioner's final arguments are that the PAB erred when it failed to address, in the instant proceeding, DHHS's failure to provide him with a "breakdown" of the back pay owed to him from the time of his 2015 termination to his 2016 reinstatement, and further erred when it failed to address, in the instant proceeding, DHHS's failure to pay him from the time of the PAB's 2016 order overturning his 2015 termination until the point at which he was placed on paid suspension one month later. These arguments concern DHHS's compliance with the PAB's 2016 order. The 2016 order is not before us in this appeal; therefore, we decline to comment on the existence or scope of DHHS's continuing obligations under that order. See State v. Bent,
Affirmed.
LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.
The common usage of the word "reinstate" also leads us to reject the petitioner's argument that his subsequent termination, in addition to violating RSA 21-I:58, I, violated the PAB's original order requiring that he be reinstated.
The petitioner does not argue that his rights under the New Hampshire Constitution were violated.