2010-205, State Employees' Association of New Hampshire, Inc., SEIU Local 1984 v. State of New Hampshire

Molan, Milner & Krupski, PLLC

No. 2010-205

Merrimack

Hinckley, Allen & Snyder LLP

Michael A. Delaney

Hampshire, as amicus curiae. Suzan M. Lehmann on the brief), for the Community College System of New

Hampshire. attorney general, on the brief and orally), for respondent State of New

THE SUPREME COURT OF NEW HAMPSHIRE memorandum of law and orally), for the petitioner.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as legislature and the state judicial branch, that uses, expends or receives any p. 2 agency of the state government, by whatever name called, other than the executive department, commission, board, institution, bureau, office, or other RSA 9:1 states that “the term ‘department’ or ‘establishment’ means any who meet the minimum qualifications for the position. Laws 2009, ch. 144. (2003), to fill vacant positions by first making offers to laid-off state employees which requires all state departments or establishments, as defined by RSA 9:1 In 2009, in response to budget cuts, the legislature passed House Bill 2,

body politic and corporate with limited legislative oversight. See and created the Community College System of New Hampshire (CCSNH) as a In 2007, the legislature enacted Senate Bill 82, which eliminated DRCTC 2

2009, 143:17. state agencies, to pay the state for financial and administrative services. Laws 148:1. Pending termination of these services, CCSNH will be required, unlike :40. That effective date was subsequently extended to 2011. Laws 2009, advice of the attorney general, to be effective in July 2009. Laws 2007, 361:35, indemnification, the use of financial and administrative services, and the that would deprive CCSNH of state benefits and services, such as defense and state compensation statutes, see RSA 94:1-a (2001). It also mandated changes 104 (1985). The legislature repealed references to DRCTC employees in the (Supp. 2010); RSA 4:15 (2003); N.H. Retirement System v. Sununu, 126 N.H. and Council, which is required for state agency contracts. See RSA 188-F:6, XI F:5, I (1999) (repealed 2007). have the power to enter into contracts without the approval of the Governor appointed by the Governor and approved by the Executive Council. RSA 188- and affairs of the community college system.” RSA 188-F:6 (Supp. 2010). They (1999) (repealed 2007). The department was headed by a commissioner trustees are entrusted with “the management and control of all the property 188-F, which stated, “[T]he department shall be a state agency.” RSA 188-F:2 CCSNH. See RSA 188-F:2, II (2008); RSA 188-F:3, II (Supp. 2010). The Technical Colleges (DRCTC). This department was governed by RSA chapter a board of trustees to be the “policy-making and operational authority” of community colleges comprised the Department of Regional Community see RSA 188-F:1 (Supp. 2010), including the delegation of “broad authority” to The facts in this case are not disputed. Prior to 2007, New Hampshire’s ch. 361. The legislature mandated numerous changes, effective July 17, 2007,

judgment. We reverse. motion to dismiss; and (3) granting the petitioner’s request for declaratory the petitioner’s request for a writ of mandamus; (2) denying the respondent’s Employees’ Association of New Hampshire, Inc., SEIU Local 1984: (1) granting ruling of the Superior Court (Sullivan, J.) in favor of the petitioner, State CONBOY, J. The respondent, the State of New Hampshire, appeals a p. 3 Hampshire shall be creditable service for purposes of” retirement, life seniority, and “service as an employee of the community college system of New transfer to other state positions shall retain and transfer all leave accruals and support its conclusion. RSA 188-F:7, III provides that CCSNH employees who The trial court also relied upon the language of RSA 188-F:7, III (2008) to

question of law, we review the trial court’s decision de correct interpretation of a statute. As the interpretation of a statute is a The facts in this case are undisputed, and the only question is the

state appropriations and meets the definition in Black’s Law Dictionary establishment, the trial court found that CCSNH receives 36% of its funds from In ruling that CCSNH falls within RSA 9:1’s definition of department or

appears to fall within the plain meaning of RSA 9:1.” “there is no doubt that CCSNH is an institution that receives state funds[] and Law Dictionary 800 (6th ed. 1990). Consequently, the trial court concluded, charitable in its purposes, or educational (e.g. college or university).” Black’s designed for profit to those composing the organization, or public and character or one affecting a community . . . . It may be private in its character, “institution”: “an establishment, especially one of eleemosynary or public and corporate.” appeal, the State argues that CCSNH is neither, but rather is a “body politic of an establishment under RSA 9:1 and, thus, was governed by House Bill 2. On The trial court found that CCSNH met the definition of a department or from the trial court requiring CCSNH to abide by the terms of House Bill 2. In its petition for a writ of mandamus, the petitioner requested an order and not in isolation. State v. Lamy, 158 N.H. 511, 515 (2009). (2010). We interpret a statute in the context of the overall statutory scheme examine the statute’s overall objective. Favazza v. Braley, 160 N.H. 349, 351 language is ambiguous, however, we will consider legislative history and intent. Appeal of Parkland Med. Ctr., 158 N.H. 67, 72 (2008). When statutory unambiguous, we need not look beyond it for further indication of legislative not see fit to include. Id. When a statute’s language is plain and neither consider what the legislature might have said nor add words that it did modification. Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 (2005). We will language of a statute is clear on its face, its meaning is not subject to ascribe the plain and ordinary meanings to the words used. Id. When the legislature as expressed in the words of the statute, and, where possible, we Dubois, 152 N.H. 448, 451 (2005). We are the final arbiter of the intent of the

Bill 2. but CCSNH did not accord them the rehiring preference mandated by House applied for jobs within CCSNH. Each met the minimum position qualifications, state funds . . . .” The petitioner represents three laid-off state employees who and equipment. See p. 4 unemployment compensation, and costs for land, construction, furnishings

or ‘establishment’ means any executive or judicial Prior to 1979, RSA 9:1 read, in pertinent part: “[T]he term ‘department’ followed; it would therefore be illogical to conclude that the word “executive” legislative history and related statutes for indications of legislative intent. See prior to 1979, the word “judicial” modified all of the terms in the list that interpretations, we find that the statute is ambiguous and, therefore, turn to to the governor.” N.H.H.R. Jour. superfluous if the State’s argument is correct. In light of these two reasonable 621 (1979). Thus, it was understood that maintenance expenditures, costs for workers’ compensation and “This bill eliminates the requirement that the judicial branch submit its budget coverage the legislature and the state judicial branch, an exclusion rendered Tucker, speaking for the Appropriations Committee, explained to the House: a detailed format, identifying requirements for administration, operation, the State’s interpretation fails because RSA 9:1 expressly excludes from expected requirements for their operating budgets and capital expenditures in the statute was changed to its current form in 1979, Representative John “executive” modifies only the word “department.” The petitioner asserts that “Departments” or “establishments,” as defined by RSA 9:1, must submit expends or receives any state funds.” RSA 9:1 (1955) (emphasis added). When contrast, the petitioner argues that the trial court correctly ruled that by which the Governor submits the state’s budget to the legislature. government, by whatever name called, other than the legislature the legislature and the state judicial branch” supports its interpretation. In, that uses, RSA chapter 9, entitled “Budget and Appropriations,” details the process board, institution, bureau, office, court government. The State also asserts that inclusion of the phrase “other than, or other agency of the state government,” such that each entity must be part of the executive branch of department, commission, commission, board, institution, bureau, office, or other agency of the state argues that “executive” modifies each word of the phrase “department, judicial branch, that uses, expends or receives any state funds . . . .” The State RSA 9:3-a (2003); RSA 9:4 (2003). government, by whatever name called, other than the legislature and the state commission, board, institution, bureau, office, or other agency of the state terms “department” or “establishment” as “any executive department, We begin our analysis with the language of RSA 9:1, which defines the

Favazza, 160 N.H. at 351.

[House Bill] 2.” definition of RSA 9:1, therefore making it subject to the rehiring provision of be given equal benefits as other state employees, . . . CCSNH falls within the stated: “Because the legislature has clearly intended that CCSNH employees insurance, and medical benefits provided to state employees. The trial court novel.” N.H. Retirement System p. 5 legislatively created entity independent of the executive branch is not at all to be an executive branch entity. In doing so, we note that “the concept of a We turn now to the question of whether the legislature intended CCSNH

in RSA chapter 9, and that CCSNH employees not be employees of the State. executive branch, that CCSNH not be subject to the budget procedure set out ample evidence of the legislature’s intent that CCSNH not be part of the However, the language of RSA chapter 188-F and its legislative history provide respondent properly preserved the administrative gloss argument below. the second factor is inapplicable, and the petitioner disputes whether the statute established by the System’s history of functioning independently. Here, owed by its trustees to its beneficiaries; and (3) the administrative gloss on the RSA chapter 100-A, which established the System; (2) the fiduciary obligation executive department or agency.” Id. at 108. These were: (1) the language of Hampshire Retirement] System to be an independent entity rather than an three factors led us to conclude that “the legislature intended the [New

to all institutions that receive state funds. State’s executive branch.” The trial court erred in ruling that RSA 9:1 applies intended RSA 9:1 to apply only to state agencies and other entities within the the more reasonable interpretation of the current law is that the “legislature USNH, nor does it approve the line item budget.” University System of New other agency of the state government.” Therefore, we agree with the State that legislature “does not have approval power over the entire operating budget of listed entity: “department, commission, board, institution, bureau, office, or but does not follow the budgetary process governing RSA 9:1 entities. The We conclude that the modifier “executive” was intended to modify each (USNH), a body corporate and politic, is an institution that receives state funds, petitioner does not dispute, that the University System of New Hampshire 162-L:2 (2002). is a state agency within the meaning of RSA 9:1. The State maintains, and the department or establishment under RSA 9:1. See RSA 162-A:4 (2002); RSA corporate and politic created by the State, and that neither is considered a Receipt of state funds is not dispositive of the issue of whether an entity Development Finance Authority and the Business Finance Authority are bodies 2010-2011). The petitioner also does not dispute that the Community Laws 2009, ch. 143 (showing state appropriations for USNH for fiscal year Hampshire v. United States Gypsum, 756 F. Supp. 640, 646 (D. N.H. 1991);

left within the definition all executive branch entities. courts, from the definition of “department” or “establishment,” the legislature excluding, in addition to the legislature, all judicial branch entities, including modified only the first term in the list. It is logical to conclude that by p. 6 N.H.S. Jour.

functioning of the University System. That’s correct. Gatsas. When this transition is complete, they will mirror the Senator D’Allesandro: When – thank you for the question, Senator

policies and procedures” for its employees, as well as to determine the Further, CCSNH has been given the authority to “[d]evelop and adopt personnel subsequent legislative history, while not controlling, may be considered). budget? autonomous.” N.H.H.R. Jour. Franklin v. Town of Newport as a state don’t have the ability to look at line items in their, 151 N.H. 508, 512 (2004) (holding that agencies and its understanding that CCSNH is not a state agency. See continue “the effort . . . to make the New Hampshire community college system Technical Colleges will now be like the University System where we that CCSNH participate in a budgetary process separate from that of RSA 9:1 Additional amendments to RSA chapter 188-F were made in 2010 to Senator Gatsas: Senator, does this mean that the New Hampshire (Supp. 2010). This subsequent history confirms both the legislature’s intent with RSA 9:4-e and at the same time as state agencies.” RSA 188-F:6, VI of CCSNH are authorized to “submit [CCSNH’s operating] budget in accordance (comments of Rep. Stiles, speaking for the Education Committee). The trustees department of administrative services.” N.H.H.R. Jour. (April 14, 2010) CCS[NH] employees are not subject to the personnel provisions of the which CCS[NH]’s budget is presented, and includes clarifying language that the speaking for the Finance Committee). “This bill . . . changes the format in

oversight that the legislature would have over CCSNH’s budget process: 537 (2007). exchange took place on the floor of the Senate on the subject of the level of legislature’s intent regarding the changes to RSA chapter 188-F. The following The New Hampshire Senate Journal provides further evidence of the

council and is not a body corporate and politic.” RSA 188-F:25 (2008). and politic: “The police standards and training council is an executive branch as an executive branch agency from CCSNH’s new status as a body corporate Sen. Janeway). Accordingly, it specifically distinguished the council’s position as part of the executive branch. See p. 6 N.H.S. Jour. 536 (2007) (comments of CCSNH in 2007, however, it retained the police standards and training council administratively attached to that department.”). When the legislature created transferred to the department of regional community-technical colleges and is F:25 (1999) (repealed 2007) (“The police standards and training council is which was previously under the administration of the DRCTC. See RSA 188- RSA 188-F:25 (2008) governs the police standards and training council, p. 7 Investment Program are not state employees, see benefits is not unique. Employees of the Land and Community Heritage

The practice of providing non-state employees with state employee

accumulated in state service. See ensure that DRCTC employees would not lose benefits and seniority The Senate Journal demonstrates that the concern of legislators was to

retirement benefits as are afforded to classified employees of the state.” Id. receive such health, dental, life insurance, deferred compensation, and executive branch employees to the Authority, it permitted them “to continue to RSA 162-L:19 (Supp. 2009). However, when the legislature transferred certain of the Community Development Finance Authority are not state employees. employees of the state.” RSA 227-M:6-a, II (Supp. 2010). Similarly, employees deferred compensation, and retirement benefits as are afforded to classified 2010), but are permitted “to elect to receive such health, dental, life insurance, amendments, are members of the New Hampshire Retirement System. See RSA 227-M:6-a, I (Supp. employees of the community college system, as of the effective date of the loss of expected benefits. The 2007 amendments provided that full-time intended to protect those employees who had been state employees from the same benefit, and that’s a concern.”). be given equal benefits as other state employees.” Rather, RSA 188-F:7 was transitioned out, if the Retirement System that they are put into gives them the employees, demonstrates that the “legislature has clearly intended that CCSNH They’re not clear, the ones that are close to retirement, that once they’re which addresses the benefits and retirement system participation of CCSNH state level gives them health insurance benefits for the rest of their lives. We disagree with the trial court’s conclusion that RSA chapter 188-F, Technical Colleges and their concern is, is that the Retirement System at the Gatsas) (“I’ve gotten some calls from employees of the New Hampshire

benefits. as CCSNH employees would unquestionably be eligible for state employee remain a state agency, these statutory changes would not have been necessary, accumulated benefits and seniority to state positions. If CCSNH were to legislature also provided that CCSNH employees would be able to transfer expanded to include “the community college system of New Hampshire.” The (Supp. 2010). Accordingly, the definition of “employer” in RSA 100-A:1, IV was RSA 188-F:7 (Supp. 2010); RSA 100-A:1, V (Supp. 2010); RSA 100-A:3, I

Personnel. RSA 21-I:49, X (Supp. 2010). subject to the rules promulgated by the New Hampshire Department of its employees are not considered classified employees of the state and are not compensation of its employees. RSA 188-F:6, XVI (Supp. 2010). As of 2010, p. 8 Reversed

Bill 2. as defined by RSA 9:1 and, therefore, is not subject to the provisions of House Accordingly, we hold that CCSNH is not a department or establishment

DALIANIS, C.J.