2007-297, APPEAL OF DONALD W. MURDOCK

The petitioner, Donald W. Murdock, appeals the decision of

general, on the brief and orally), for the respondent. Kelly A. Ayotte, attorney general (Lynmarie C. Cusack, assistant attorney to press. Errors may be reported by E-mail at the following address: Friedenthal on the brief, and Mr. Vanacore orally), for the petitioner. Vanacore Law Office, of Concord (John G. Vanacore and Natalie J.

(New Hampshire Personnel Appeals Board) APPEAL OF DONALD W. MURDOCK

editorial errors in order that corrections may be made before the opinion goes No. 2007-297 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Personnel Appeals Board Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as follow, and ensure his crew followed, the applicable rules and standards. p. 2 as with the first warning, generally instructed the petitioner that he must

to meet any work standard. The corrective action for these various infractions,

of a wash basin without the proper caution warnings, all constituting a failure workplace, noting several tripping hazards in the office, as well as the presence In addition, the warning alleged the petitioner failed to maintain a safe 2

potential for harassment . . . constitutes a failure to meet any work standard.” warning stated that the petitioner’s “failure to ensure a workplace free from the discharge from employment. several were later found “scattered about” on a desk within the office. The informal four-step review process outlined in the personnel rules, rather than a disciplinary action up to, and including, your removed the pictures from display on the wall after being instructed to do so, The petitioner challenged this warning, seeking review through the

crew. Your failure to do so will result in further

workplace after he had been told to remove them. Although the petitioner rules and standards among the members of your Sports Illustrated swimsuit model calendar pictures to be displayed in the standards in your own conduct and enforce those work standard). This warning resulted from the petitioner having allowed must ensure that you follow those rules and of warning to the petitioner, again citing Per 1001.03(a)(1) (failure to meet any of the work activities of his crew. On September 20, 2004, District Engineer Graham issued a second letter

corrective action provided, The petitioner did not appeal the issuance of this warning.

DOT policy.

set the standard for your Patrol Section . . . . You As a Highway Patrol Foreman, you are expected to and procedures within his section, and producing timely and accurate reports

petitioner was also responsible for enforcing, among other things, DOT policies (a)(1) (current version at 1002.04(b)(1)) as grounds for the warning. The Supervisor George Leel, as well as the District Engineer, Douglas Graham. The any work standard” under New Hampshire Administrative Rule, Per 1001.03 home in his state vehicle. The warning cited the petitioner’s “failure to meet purchased beer at a local convenience store and transported the alcohol to his

Specifically, it was alleged that the petitioner, after work hours,

first letter of warning for transporting alcohol in his state vehicle contrary to On May 12, 2003, District Engineer Graham issued the petitioner his

patrol crew in coordination with his immediate supervisor, Maintenance responsible for planning, scheduling and inspecting the work of his five-man his crew.

p. 3 had failed, on at least one occasion, to accurately document the work time of

Foreman. [petitioner’s] responsibilities as a Highway Patrol for, the policies and procedures governing the 3

had left work early without receiving prior approval from his supervisor and

[petitioner’s] lack of familiarity with, or disregard that rule, as each of the warnings arose from the

September 20, 2004 warning. The petitioner also argued that, with respect to each was for the “same offense” as contemplated by waived his failure to meet the filing deadline and considered his appeal of the issued in accordance with Per 1001.03(a). . . and due process. In addition, the petitioner asserted that the PAB should have the PAB’s interpretation of Per 1001.08(b)(1) was unreasonable and violated the PAB. Following a hearing, the PAB upheld the dismissal, concluding, The petitioner filed a motion for reconsideration and rehearing, arguing that

minutes more than the permitted time. The warning also alleged the petitioner lunch, and also taking a lunch that was at least thirty-five minutes, five warning, as grounds for the petitioner’s dismissal. warning indicated that the petitioner showed poor judgment in taking a late restaurant at 1:15 p.m. and observed the petitioner leaving at 1:50 p.m. The warnings for the same offense within a five-year period.

All three warnings issued to the [petitioner] were

The petitioner appealed both the warning and his dismissal directly to

warnings for failure to meet any work standard, in addition to the current Rules, Per 1001.08(b)(1). The letter articulated the two previous written alleged he had observed the petitioner’s state vehicle parked outside of a See N.H. Admin. period longer than thirty minutes. Specifically, District Engineer Graham 1001.08(b)(1), which permits dismissal of an employee after three written state vehicle outside of a restaurant later than the normal lunch hour and for a The warning also served as a letter of dismissal pursuant to Per in the petitioner’s conduct including exercising poor judgment in parking his

PAB, which in November 2005 denied his request as untimely. period of time, and was denied consideration. The petitioner appealed to the

meet any work standard. The warning detailed numerous alleged deficiencies On July 15, 2005, the petitioner was issued a third warning for failure to

step, the petitioner did not file his appeal statement within the prescribed the petitioner filed a timely appeal statement. However, at the fourth and final 205.01). At each of the first three review steps, the warning was upheld after direct appeal to the PAB. N.H. Admin. Rules, Per 202.01 (current version at p. 4 Per 1001.08(b)(1). The State’s interpretation is flawed in several respects.

action, and, therefore, that should be the primary consideration for purposes of suggests that the critical part of a letter of warning is its advised corrective considered for purposes of dismissal under Per 1001.08(b)(1). The State also

same offense.

of violation, here, the violation of policies and procedures, which must be

is of such a different character that they cannot reasonably be considered the standard under Per 1001.03(a)(1), the actual conduct underlying each warning

not the actual behavior underlying the warning, but the more generalized type responsibility as a highway patrol foreman.” The State thus contends that it is of familiarity with, or disregard for, the policies and procedures governing [his]

that, although each warning is categorized as a failure to meet any work warning for the same offense within a period of 5 years.” The petitioner asserts dismiss an employee pursuant to Per 1001.03 by issuance of a third written Per 1001.08(b)(1) provides, “An appointing authority shall be authorized to

same offense because, as found by the PAB, the warnings “arose from his lack The State counters that the petitioner’s three warnings all constitute the

not in segments.

when it concluded that his three written warnings were for the same offense. The petitioner first argues that the PAB misinterpreted Per 1001.08(b)(1)

regulation is intended to serve.” Id. (quotation omitted). consistent with the language of the regulation and with the purpose which the total. We still must examine the agency’s interpretation to determine if it is is accorded to an agency’s interpretation of its regulations, that deference is not

See Appeal of Alley, 137 N.H. 40, 42 (1993). “While deference

(quotations omitted). We look at the rule under consideration as a whole, and meanings to words used.” Appeal of Flynn, 145 N.H. 422, 423 (2000) construing statutes, where possible, we ascribe the plain and ordinary motion. Elementis Chem., 152 N.H. 794, 803 (2005). “In construing rules, as in have reassigned him, rather than affirming his dismissal. The PAB denied the We review the interpretation of administrative rules de novo. State v.

unjust or unreasonable. See Appeal of Waterman, 154 N.H. 437, 439 (2006). unless we are satisfied, by a clear preponderance of the evidence, that it is deemed prima facie lawful and reasonable. Id. We will affirm the decision unreasonable or unlawful. RSA 541:13 (2007). The PAB’s findings of fact are has the burden of demonstrating that the PAB’s decision was clearly I:58, II (2000), RSA 541:6 (2007) and Supreme Court Rule 10. The petitioner This is an appeal from a final decision of the PAB pursuant to RSA 21-

fact were insufficient to sustain his dismissal, and further, that the PAB should the July 15, 2005 warning, the evidence presented and the PAB’s findings of any work standard. p. 5 have fit other categories of the rule, but were simply framed as a failure to meet 5

case – the petitioner’s various warnings address behavior that arguably could provision. This problem is exemplified by the alleged conduct at issue in this categories embody would also fall under the failure to meet any work standard intended to encompass the same types of violations, as the State suggests, merely superfluous, as, under the State’s interpretation, any behavior these version 1002.08(c)(2)). If the “same offense” language of Per 1001.08(b)(1) was 1001.03(a)(1). It necessarily follows that the remaining listed categories are within a five-year period. See N.H. Admin. Rules, Per 1001.08(b)(2) (current responsibility amounts to a failure to meet any work standard under Per dismissal of an employee after five written warnings for different offenses The State’s interpretation also nullifies Per 1001.08(b)(2), which permits

unauthorized absences), (a)(4) (warning for sexual harassment).

every violation of any DOT policy, regulation, procedure, or class specification N.H. Admin. Rules behavior in the workplace . . .;, Per 1001.03(a)(1)-(8). Under the State’s interpretation,

rule in such a way as to render a significant portion of it meaningless.” payment or approval for the leave is

(3) Excessive unscheduled absences even if (2) Unauthorized absences from work; (1) Failure to meet any work standard;

An appointing authority shall be authorized to use

of City of Manchester, 149 N.H. 283, 287 (2003). Per 1001.03(a) provides,

ignore several other provisions within the rules, and “[w]e will not interpret the First, to read Per 1001.08(b)(1) as the State suggests requires us to p. 6 6

Per 1001.08(b)(1) focuses on the nature of the offense itself, requiring that each

offense” is prevented. behavior in the future, would not be assured that his dismissal for the “same Because the PAB’s interpretation of Per 1001.08(b)(1) was in error, we reverse “same offense” determination, even if identical for several different behaviors. it clear to us how the remedy for a particular offense would be relevant to the part of the offense itself. The rule makes no mention of corrective action, nor is offense be the “same.” The corrective action is the remedy to the offense, not a

constitute the “same offense” under Per 1001.08(b)(1). The plain language of the appropriate measure for purposes of determining whether warnings an integral part of the warning’s purpose, similarity of corrective action is not However, although corrective action is a required element under the rules and of Gielen, 139 N.H. at 289; Appeal of Fugere, 134 N.H. 322, 331 (1991). having recognized that a particular behavior is an offense, and avoided this corrective action within a written warning in other contexts. See, e.g., Appeal dismissal following any violation of those rules. Essentially, an employee, the corrective action. We have recognized the importance of providing rules” in order to avoid additional disciplinary action, only to be subject to contention that the principal consideration for purposes of Per 1001.08(b)(1) is warnings for specific instances of misconduct and be instructed to “follow the under Per 1001.03(a). Furthermore, we are not persuaded by the State’s not merely for any behavior that might be characterized as a similar violation permit dismissal following three written warnings for a particular behavior, and offense,” negating the need for a rule allowing dismissal for “different offenses.” behind a written warning, it is clear the term “same offense” was intended to Read in the context of the rule as a whole, and in light of the purpose

disciplinary action. the corrective action which the employee shall take to avoid additional a narrative describing in detail the reason for the warning, and list specifically

dismissal. Indeed, as was the case here, employees would routinely receive action, as any infraction may be deemed the same offense for purposes of employee no meaningful guidance on how to avoid additional disciplinary the underlying behavior, each warning would always constitute the “same interpretation were to prevail, however, the written warning would provide the failure to meet any work standard provision, and, without any consideration of conduct.” Appeal of Gielen, 139 N.H. 283, 289 (1994). If the State’s meaningless. Essentially, all violations would fall within the purview of the committed an offense, and to instruct them on the proper future course of “The purpose of the warning requirement is to notify employees that they have

of the written warning. Per 1001.03(b) requires that a written warning contain Additionally, the State’s interpretation contravenes the express purpose

distinction articulated between sections (b)(1) and (b)(2) of this rule would be without any consideration of the actual behavior eliciting the warning, the follow their own rules and regulations.

Further, the Administrative Procedure Act requires administrative agencies to failure to satisfy this time deadline, had the petitioner chosen to enforce it. by the reviewing party. Thus, the DOT was not without consequences for its Nor is there any evidence that he raised any objection to an untimely decision

step in the appeal. Per 202.04, titled “Invalid Appeals,” provides, in pertinent part: “The following fifteen days, the employee “shall have the option” of proceeding to a further application of any personnel rule. a decision at any of the four steps fail to be rendered within the prescribed See Appeal of Gielen, 139 N.H. at 288. outline a four-step procedure through which an employee may dispute the

ever availed himself of this remedy in order to minimize the delay in his appeal. Here, the petitioner has not argued, nor does the record reflect, that he

202.03(e).

are not persuaded. remedy in the event of such a delay. Specifically, the rule provides that, should deadline, and considered the merits of that appeal. Per 202.02 and Per 202.03 delaying his appeal, it was unfair for the PAB not to consider his appeal. We deadline. However, what the petitioner fails to note is that Per 202 provides a that the PAB should have used its discretion to waive the fifteen-day filing occasion, the decision of a reviewing party was rendered after this fifteen-day warning, which was on appeal at the time of the hearing, the petitioner submits specified by the petitioner, it appears from the record that, on at least one petitioner’s appeal. petitioner’s challenges to them. With respect to the September 20, 2004 Id. 202.02(a)(4), (b)(3), (c)(6), 202.03(c). Although not sets a fifteen-day deadline for the reviewing party to render its decision on the 202.02, 202.03. Like the time constraints placed upon the petitioner, Per 202 meet several of its time requirements under Per 202. N.H. Admin Rules, Per appeal, despite the fact it was untimely, because the DOT had also failed to The petitioner argues that it is unfair for the PAB not to consider his

and because the DOT had failed to meet several of its time limitations further However, he argues that, because he had met all filing deadlines before this, statement within the fifteen-day deadline when initiating the fourth step. (July 15, 2005) warnings may arise again in the future, we will address the 202.03(a). Here, the petitioner does not dispute that he did not file this preceding step’s final decision. Id. 202.02(a)(3); see also id. 202.02(b)(1), (c)(2), dispute” to the appropriate party within fifteen calendar days following the employee shall present a detailed written description of the basis for the (current version at 205.02-205.03). The rule provides that, at each step, “[t]he

Because the validity of both his second (September 20, 2004) and third

this opinion. its determination and remand for further proceedings, if any, consistent with p. 8 8

remaining arguments.

facts to support its determination. We therefore will not vacate it on that basis. BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. effective judicial review and provides a sufficient statement of the underlying could have made more specific findings, the totality of its decision allows for and remanded. determination, affirming the issuance of the warning. Thus, although the PAB Affirmed in part; reversed in part;

Based upon our determinations above, we do not reach the petitioner’s

decision will be vacated and remanded). structures its decision solely by summarizing evidence and opposing views, Cf. Petition of Support Enforcement Officers, 147 N.H. at 9 (when an agency

facts supporting the findings.”

warning, the PAB used the third warning to support its dismissal to the third warning appears only to set forth the DOT’s grounds for issuing the adequate basis for our review. Although the specific finding of fact with regard fact, coupled with the narrative decision following its findings, provides Upon review of the PAB’s decision, we conclude that the PAB’s findings of

1, 9 (2001). the administrative agency.” Petition of Support Enforcement Officers, 147 N.H. provide this court with an adequate basis upon which to review the decision of

shall be accompanied by a concise and explicit statement of the underlying It further provides that “[f]indings of fact, if set forth in statutory language, final decision include findings of fact and conclusions of law, separately stated. therefore invalid. We disagree. RSA 541-A:35 (2007) requires that the PAB’s the evidence without making any findings of fact, and that its ruling is respect to his July 15, 2005 warning, arguing that the PAB merely summarized Finally, the petitioner challenges the sufficiency of the PAB’s ruling with

decline to hear the petitioner’s appeal. rules. Given these facts, we cannot conclude that it was error for the PAB to does not dispute that this appeal statement was untimely under the applicable appeals.” N.H. Admin. Rules, Per 202.4(h) (emphasis added). The petitioner matters shall not be subject to . . . appeal under Part Per 202: . . . (h) untimely