2008-105 & 2008-107, APPEAL OF VICKY MORTON

The petitioner, Vicky Morton, appeals two decisions of the

attorney general, on the memorandum of law and orally), for the State. Kelly A. Ayotte, attorney general (Laura E. B. Lombardi, assistant

petitioner. to press. Errors may be reported by E-mail at the following address: (Michael C. Reynolds, general counsel, on the brief and orally) for the State Employees’ Association of New Hampshire, Inc., of Concord

page is: http://www.courts.state.nh.us/supreme. (New Hampshire Personnel Appeals Board) APPEAL OF VICKY MORTON

2008-107 editorial errors in order that corrections may be made before the opinion goes Nos. 2008-105 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

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 reconsideration, which the PAB denied. She then appealed to this court.

p. 2 to create additional minimum requirements in the SJD.

President of Academic Affairs position. Morton filed motions for

Vice President of Academic Affairs position because NHCTCS is not permitted

work experience requirements to qualify as a candidate for the Associate Vice In its second decision, the PAB found that Morton did not meet the minimum minimum requirements because she was more senior than the current holder. argues that the PAB erred in finding she was not qualified for the Associate position as opposed to reassignment to a different position. Second, she proper remedy under RSA 21-I:58, I (2000) is reinstatement to her prior

Specialist II position in Stratham, and assign it to Morton if she met the

program planning and evaluation or related management experience.” that the PAB erred in determining the remedy for her layoff. She argues the

appealed that decision to the PAB as well. was not the management level experience required for the position. Morton Personnel, reviewed the application. They both found that Morton’s experience

classification had not been laid off. less senior employees. The PAB ordered NHCTCS to reevaluate the Program her layoff to the PAB, pointing out that seven part-time employees within her NHCTCS did not offer Morton either position in lieu of layoff. Morton appealed administrative or supervisory duties concerned with program administration, On appeal, Morton makes two principal arguments. First, she argues of relevant experience be “in a management level position involving description (SJD) for the position requires that four of the required seven years

Coordinator, as well as a Classification Specialist within the Division of

have been laid off if there were any positions within the same class filled by decisions for each. In its first decision, the PAB ruled that Morton should not actually a Program Specialist II position because it involved grant management. The PAB held one hearing to decide both appeals and issued separate

requires seven years of “relevant experience.” Second, a supplemental job

requirements. Morton asked for her application to be reconsidered. The HR her application had been disqualified because she did not meet the minimum The NHCTCS Human Resources (HR) Coordinator informed Morton that

individual with less seniority than Morton, was, as determined by NHCTCS, not with more seniority than Morton. The position in Stratham, though held by an II positions within NHCTCS. The position in Littleton was held by an individual qualifications. First, the position is classified as “Administrator III,” which Associate Vice President of Academic Affairs. The position has two sets of While the PAB appeal was pending, Morton applied for the position of

Coordinator and laid her off, there were two other full time Program Specialist Keene Center. At the time NHCTCS abolished the position of Program is abolished. The State points out that the PAB prescribed the proper remedy

p. 3 the personnel rules govern only which employee is laid off, not which position

reinstatement because that position no longer exists. Rather, the State argues, her layoff was a violation of the personnel rules, the proper remedy is not the abolished position of Program Coordinator. The State responds that even if

Morton’s layoff. 3 reinstated to her prior position rather than reassigned to another. NHCTCS. Second, she argues that the proper remedy for her layoff is to be

not permit her layoff; and (2) that RSA 21-I:58, I, requires she be reinstated to

only question before us is whether the PAB ascribed the proper remedy for

while there were seven part time Program Specialist II positions within was readily apparent at the time the party initially filed for relief);

Morton’s remaining argument breaks into two parts: (1) that the rules do

judicial review of matters not raised at the earliest possible time). Thus, the v. Town of Merrimack, 125 N.H. 321, 328 (1984) (a party may not be entitled to First, she argues that NHCTCS could not abolish her position or lay her off Sklar Realty raise an issue for the first time in motion for reconsideration when the issue Assocs. v. Municipality of Conway, 144 N.H. 642, 654 − 55 (2000) (party cannot Thus, the issue has not been preserved for our review. See Mt. Valley Mall abolish her former position until she filed her motion for reconsideration. unreasonable. NHCTCS to lay her off, she did not challenge the authority of NHCTCS to As to her first argument, although Morton challenged the authority of

piecemeal.

As to the proper remedy for her layoff, Morton makes two arguments.

preponderance of the evidence before us, that such order is unjust or the regulation and with the purpose the regulation is intended to serve. Id. examine its interpretation to determine if it is consistent with the language of deference to the PAB’s interpretation, that deference is not absolute. We still

See Appeal of Alley, 137 N.H. 40, 42 (1993). Although we accord

423 (2000), looking at the rule or statutory scheme as a whole, and not the plain and ordinary meanings to words used, Appeal of Flynn, 145 N.H. 422, v. Elementis Chem., 152 N.H. 794, 803 (2005). In both instances, we ascribe de novo. N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007); State We review the PAB’s interpretation of statutes and administrative rules

Id.

set aside or vacated except for errors of law, unless we are satisfied, by a clear is clearly unreasonable or unlawful. RSA 541:13. The PAB decision will not be appealing party, Morton has the burden of proof to show that the PAB decision Our review in this case is governed by RSA 541:13 (2007). As the service.” p. 4 class, she cannot undergo a “complete separation . . . from the state classified

The regulation states that so long as there are part time positions within her

This conflates the abolition and the later layoff, and we address only the latter. 4 serving in the same class of position within the same division of the agency.” be laid off from any position while there are . . . part time . . . employees

holder. seniority, status, and pay.

mandate, seniority shall govern the order of layoff.” unique credentials that are necessary for the agency to carry out a legislated Coordinator rather than be reassigned. RSA 21-I:58, I, states: a layoff becomes necessary, “[e]xcept in instances of an individual possessing requires that she be reinstated to the abolished position of Program

She relies on Per 1101.02(d), which states that “[n]o permanent employee shall

positions in lieu of layoff if she is qualified and more senior than its present reinstated to the employee’s former position or a position of like or of rules adopted by the director, the employee shall be was taken by the appointing authority . . . in violation of a statute If the personnel appeals board finds that the action complained of

agency must follow the procedures of Per 1101.02. That rule states that, once As to the proper remedy for the layoff, Morton argues that RSA 21-I:58, I,

in turn ordered NHCTCS to make such a determination. and she could not be laid off if there were part time positions within NHCTCS. Id. 1101.02(e). This is what the PAB found NHCTCS failed to do, and

reasons outside the employee’s control . . . .” examine the other Program Specialist II positions and offer Morton one of those position, change in organization, lack of work, insufficient funds, or other the abolished position. her position. Thus, once her position was abolished, NHCTCS was required to from the state classified service for an indefinite period by reason of abolition of See id. 102.34, 1101.02(d). It says nothing about NHCTCS abolishing

separated from the state classified service. In deciding who will be laid off, the

listed in the rules that in turn necessitates a layoff. Morton argues that under the rules her position could not be abolished

employee who is eventually laid off is not necessarily the employee who held resulting layoff. Layoff is defined as “the complete separation of an employee Id. 1101.02(e). Thus the

there.

position is abolished, the agency must then decide which employee will be

Thus, under the Personnel Rules, abolition of a position is an event specifically

We first address the distinction between abolition of a position and the

reevaluation of the position in Stratham and whether she could be reassigned in not reinstating Morton to her prior position, but rather ordering a within a classification to have the

distinguishing factors, and the minimum qualifications of a specific class.”

because the PAB did not reach the issue, we need not address it here. phrase “the same” in RSA 21-I:42, II, which she argues requires all positions

so that the “same qualifications

document containing the official title, basic purpose, characteristic duties,

qualifications. This allows state agencies to group reasonably similar jobs into could be reassigned to one of the seven part time positions in lieu of layoff, and have the exact same qualifications, but rather reasonably similar and if so, to offer her that position. Because Morton does not argue that she minimum qualifications for a position in the SJD. Morton relies upon the The statute’s plain meaning suggests that not all positions within a class will Specialist II position in Stratham and determine whether Morton was qualified, may reasonably be required” for all positions. specification. The language of RSA 21-I:42, II, states that classes are created specific class.” minimum requirements be the exact same as those in the generic class We disagree with Morton that RSA 21-I:42, II, mandates that SJD

general classification for the position. but rather explains what satisfies the minimum requirements set forth in the Personnel gives each position a class specification, which is a “written State argues that the SJD in this case does not add minimum requirements, required for . . . all positions in the same classification.” The Division of exact same minimum qualifications. The responsibilities assumed so that the same qualifications may reasonably be

Morton argues that state agencies are not permitted to set forth PAB did. The PAB correctly ordered NHCTCS to evaluate the Program Affairs position. Id. 102. p. 5 59. meet the minimum requirements for the Associate Vice President of Academic work, duties, and accountabilities of an agency-level position falling within a N.H. Admin. Rules, Per 102.16. The SJD, in turn, “identif[ies] the scope of

a classification scheme “based upon similarity of duties performed and RSA 21-I:42, II (Supp. 2008) requires the Division of Personnel to create

the proper remedy from the moment of the abolition forward. This is what the reinstatement as Program Coordinator. Rather, it requires a determination of the position’s abolition. Restoring her to her previous position does not mean We now turn to whether the PAB erred in finding that Morton did not

an employee awaiting the NHCTCS decision who would be laid off as a result of At the time of her layoff, Morton’s position no longer existed. Rather, she was it was valid and that Morton did not meet the requirements.

and statutes to require such an absurd result. New Hampshire Banking Department. We cannot interpret the applicable rules qualifications as the class specification, we affirm the PAB’s determination that

for administrators in the New Hampshire Fish and Game Department and the unreasonable. Because the SJD in this case contains substantially the same to an absurd result; we will not interpret a statute to lead to such a result. the class specification. Morton has not shown such a rule to be unjust or must contain substantially and reasonably similar qualifications as those in

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

specialized knowledge or experience. Affirmed. as the same basic duties, but the specific nature of those positions can require

experience in each respective field. The same might be true in creating an SJD statutory framework. To interpret the statute and rules otherwise would lead exact same requirements in the SJD and class specification. Rather, the SJD We therefore hold that “the same” in RSA 21-I:42, II, does not require the

absurd result.”). statutory language in a literal manner when such a reading would lead to an Builders v. O’Connor, 157 N.H. 387, 388 (2008) (“[W]e will not interpret agencies may have the same classifications and general qualifications, as well See Great Traditions Home

create SJD qualifications for the positions requiring a degree and teaching experience qualification to be tailored for the position is consistent with the Russian literature, under Morton’s reasoning, the college would not be able to If a college wishes to hire two new professors to teach mathematics and The education sector provides a good example of why this is necessary.

statutes to lead to a reasonable result.”). Various positions within state Appeal of N.H. Troopers Assoc., 145 N.H. 288, 290 (2000) (“We interpret

To hold that positions within a classification can require the minimum

is hired. the same class, but require specific skills for each to ensure the best candidate