2010-162, Petition of State Employees' Association of New Hampshire

Molan, Milner & Krupski, PLLC

No. 2010-162

Revenue Code of 1986. See Original retirement plan as defined under the provisions of the United States Internal The record supports the following facts. The NHRS is a governmental

affirm. the New Hampshire Department of Corrections (DOC) as group II jobs. We authority under RSA 100-A:3, IX (Supp. 2010) to classify certain group I jobs at respondent, New Hampshire Retirement System (NHRS), that the NHRS lacked Hampshire (SEA), seeks review of a ruling of the board of trustees (board) of the CONBOY, J. The petitioner, State Employees’ Association of New

Sulloway & Hollis, PLLC ___________________________

2010). See RSA 100-A:3 (Supp. 2010). Members defined as teachers or other policemen, and permanent firemen, all as defined in RSA 100-A:1 (Supp. NHRS is limited to New Hampshire state employees, teachers, permanent

THE SUPREME COURT OF NEW HAMPSHIRE and orally), for the respondent.

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 p. 2 [the] NHRS.” Petition of Poulicakos of certiorari is the sole remedy available to a party aggrieved by a decision of “Because RSA chapter 100-A does not provide for judicial review, a writ

petitioned this court for a writ of certiorari. denied the SEA’s motion for rehearing and reconsideration. The SEA then rehearing and reconsideration of that decision. In February 2010, the NHRS from Group I to Group II . . . .” In December 2009, the SEA moved for the Legislature the reclassification of the 60+ Department of Corrections jobs 2 classify the positions as group II positions, stating it would “properly defer to On November 10, 2009, the NHRS refused on jurisdictional grounds to Teachers Assoc., 158 N.H. 453, 456 (2009). presents a question of law that we review de novo. Petition of Farmington Resolving this question requires that we interpret the relevant statute, which reclassify sixty-two group I positions at the DOC as group II positions. 100-A:3, IX, the NHRS erred when it ruled that it had no jurisdiction to The single question presented is whether, given the provisions of RSA

or abused its discretion or acted arbitrarily, unreasonably, or capriciously.” Id. whereby it arrived at a conclusion which cannot legally or reasonably be made, acted illegally with respect to jurisdiction, authority or observance of the law, quotations and citation omitted). “Our standard of review is whether the board

two positions in question met “all of the requirements” for group II Personnel Director then notified the NHRS that as of June 8, 2009, the sixtymet the requirements for a “permanent policeman” under the statute. The Commissioner, the Personnel Director determined that each of the positions clerks and recreational therapists. Following inquiry to the DOC

statutory requirements of “permanent policeman.” See certify that sixty-two DOC positions, currently classified as group I, meet the 16, 2009, the SEA requested that the New Hampshire Personnel Director transitional housing units, and district probation and parole offices. On April The DOC is a state agency responsible for managing the State’s prisons,

maintenance technicians, engineers, plumbers, warehouse workers, stock at issue include accountants, administrators, carpenters, dieticians, prisoners on a daily basis and ha[s] responsibility for security”). The positions correctional line employee who works “in close and immediate contact with (Supp. 2010) (defining “permanent policeman,” in part, as any DOC

benefits. See RSA 100-A:52; :52-a, :52-b (Supp. 2010). than group I members, and to receive certain other more favorable retirement chapter 100-A, group II members are entitled to apply for retirement earlier II members. See RSA 100-A:1, X (Supp. 2010). Under the provisions of RSA defined as permanent policemen or permanent firemen are classified as group state employees are classified as group I members of the NHRS while members circumstance, the elements of the job have changed where a former Group I job p. 3 NHRS can fix and a second where, due to a change in a job description or other situations: one where there is a mistaken or doubtful classification which the In its petition, the SEA “submits that the statute envisions two separate

reclassification of jobs to group II. to determine proper job classifications and requiring legislative action for Our task is to determine the legislature’s intent in both authorizing the board the NHRS Board to consider the[ ] positions for reclassification to Group II.” sentence of the statute to conclude that there was “insufficient legal basis for jobs within the retirement system.” The board, however, relied upon the last the NHRS the authority to decide, in doubtful cases, the proper classification of The SEA argues that the first sentence of the statute “expressly grants

transfer from group I to group II.

retirement system without legislation specifically authorizing a new job. No job shall be reclassified from group I to group II of the job with a given employer shall not be considered as creation of a paragraph, an increase in the number of persons holding a given the case of a political subdivision job. For the purposes of this majority vote of the legislative body of the political subdivision in legislation creating the job in the case of a state job, or by a classified in group I unless it is explicitly placed in group II by the

created job held by more than one person, the job shall be job in group II, and further provided that in the case of a newlyprovided, however, that a 2/3 vote shall be required to classify the

policeman, or permanent fireman as defined in RSA 100-A:1;

person holding the job is an employee, teacher, permanent

the retirement system, the trustees shall determine whether the If there is any doubt as to the proper classification of a job in

RSA 100-A:3, IX (Supp. 2010) provides as follows:

omitted). statutory scheme.” Laramie v. Stone, 160 N.H. 419, 436 (2010) (quotation enacting them, and in light of the policy sought to be advanced by the entire analysis. Our goal is to apply statutes in light of the legislature’s intent in “If a statute is ambiguous, however, we consider legislative history to aid our statutory scheme and not in isolation.” Farmington Teachers, 158 N.H. at 456. not see fit to include. We interpret a statute in the context of the overall what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider used.” Bennett v. Town of Hampstead, 157 N.H. 477, 483 (2008). “We language of a statute, we ascribe the plain and ordinary meaning to the words words of the statute considered as a whole.” Id. “When examining the “We are the final arbiter of the intent of the legislature as expressed in making a long-term career of public-safety services. p. 4 who are properly trained and qualified and can be presumed to be connection with public-safety, but should be reserved for those

hazards and has some indirect, occasional, or short-term

should not be made available to every person whose job entails warrants provision for early retirement. Group II membership period of years, with resulting shortened life expectancy, which

involve greater than normal danger and stress over an extended

firemen, recognizing that careers in these public-safety services

principle of special retirement provisions for policemen and

Group II membership criteria should preserve the long-standing expanded to include job classifications outside the original intent.

integrity of Group II, membership in which has recently been The Committee is concerned with the need for maintaining the

HB 693 explained: As the Executive Departments and Administration Committee report on

membership in group II. Laws 1987, 335:8. Administration to further study the certification process and qualifications for

also authorized the House Committee on Executive Departments and on HB 693 (April 28, 1987) (reprinted in Certified Record at 55-58). HB 693 legislative approval for such classifications. See As originally enacted, RSA 100-A:3 did not contain paragraph IX. See Senate Comm. on Ins., H’rg personnel as permanent policemen entitled to group II membership without statute that allowed the DOC Commissioner to certify additional DOC entitled to group II membership, but to “close the loophole” contained in the correctional line personnel within the definition of permanent policemen The impetus for the amendment was the legislature’s desire to include certain authorizing a transfer from group I to group II.” RSA 100-A:3, IX (Supp. 1988). from group I to group II of the retirement system without legislation specifically 1987, ch. 335. That paragraph read simply, “No position shall be reclassified statute in a number of ways, including the addition of paragraph IX. Laws RSA 100-A:3 (Supp. 1967). Subsequently, in 1987, HB 693 amended the

the board. hold that the legislative history of RSA 100-A:3, IX supports the conclusion of In the Matter of Scott & Pierce, 160 N.H. 354, 359 (2010). Upon review, we interpretation, we review a statute’s legislative history to aid our analysis. See statutory language is ambiguous or subject to more than one reasonable “reclassification” into group II requires legislative approval. Where, as here, one individual should be initially classified in Group II,” and that any IX authorizes it to determine only “whether a ‘newly created’ job held by only action).” In contrast, the board determined that the language of RSA 100-A:3, is now eligible for Group II membership (the latter case requiring legislative of positions from group I to group II, may be accomplished only by legislative p. 5 as group II of positions held by more than one person, and any reclassification by the use of the singular term “person” within the sentence. Any classification classification of a newly created position held by one person. This is evidenced as follows. The first sentence addresses the board’s authority to determine the conclude that the first and last sentences of RSA 100-A:3, IX may be reconciled contained in the legislative history, including the above-cited testimony, we Based upon the lengthy and specific discussions of group II membership

See

Legislature. This bill, I think, stops every loophole there is. people into the Group II system and not have to go through the it should be. No one should be able to circumvent the law and get whether these people will go into Group II or not – that is the way Legislature in its ultimate wisdom are determining point blank would like to go in and, we have the parole people now, and the we, the Legislature, determine it. If there are groups of people that Group II job or not. If two or more people go in there, though, then State’s Addendum at 41-42). person in it, they will make the determination whether it is a Senate Comm. on Ins., H’rg on HB 1066 conflict with one guy. A new job is created and it has only one (March 11, 1988) (reprinted in people will make the final determination. Basically if there is a of the bill where – there is a section in there that says that these That’s really not true. If you go into the job classifications portion they have a right to determine whether a job is Group II or not. that we have taken away from the Board of Trustees the fact that N.H.H.R. Jour. There are going to be some people that might tell you today

board’s authority to determine group II classification. He stated: Senate Insurance Committee hearing on HB 1066 regarding the issue of the On March 11, 1988, Representative Robert Hawkins testified at the

for possible 1988 legislation. a review by the Committee of Group II qualifications and positions from Group I to Group II without specific legislation[ ] and calls for The amended bill prohibits further transfer of job positions in the current version. Id. “permanent policeman” and further amended paragraph IX to add the language enacted as Chapter 161. See Laws 1988, ch. 161. Chapter 161 redefined The following year, subsequent to the committee review, HB 1066 was

569 (1987).

. . . . p. 6 Affirmed

intent of the legislature. Accordingly, we decline to interpret the statute in a way that is contrary to the to reserve to itself the power to reclassify positions from group I to group II. the legislative history of the statute demonstrates the intent of the legislature approves the reclassification. This argument is of no avail. As noted above, doubtful cases, whether a position belongs in group II and the legislature then interpretation of RSA 100-A:3, IX exists whereby the board determines, in Finally, we address the SEA’s passing argument that an alternative DALIANIS, C.J., and DUGGAN and HICKS, JJ., concurred.

legislative intent. See this singular action cannot be deemed an “administrative gloss” indicative of the stock control supervisor position without legislative approval, evidence of group II. Moreover, even assuming that the board impermissibly reclassified intent.”). the legislature previously approved the stock control supervisor position as of legislative action, because to do so would, presumably, violate legislative stock control supervisor. However, it is apparent from the board minutes that upon a clause, the [agency] may not change its de the November 9, 2009 board minutes reflecting the reclassification of a DOC facto policy, in the absence legislative interference. If an ‘administrative gloss’ is found to have been placed group I to group II without legislative approval. As evidence, the SEA points to and apply it to similarly situated applicants over a period of years without The SEA argues that the board has reclassified other positions from responsible for its implementation interpret the clause in a consistent manner (“‘[A]dministrative gloss’ is placed upon an ambiguous clause when those under RSA 100-A:3, IX. “reclassification” of the positions – an action requiring legislative approval DHB v. Town of Pembroke, 152 N.H. 314, 321 (2005) group I. Thus, any change in classification to group II would necessarily entail as group I, there is no dispute that the positions are presently classified as requirements for group II membership but were merely “mistakenly” classified While the petitioner argues that the positions have always met the

approval. reclassifying the group I positions at issue to group II, without legislative action. Thus, we hold that RSA 100-A:3, IX prohibits the NHRS board from