2011-895, Appeal of Karen Hildreth

Kristin H. Sheppe

second letter of warning for failure to meet the work standard and failure to (New Hampshire Personnel Appeals Board) APPEAL OF KAREN HILDRETH

withholding of her annual salary increment. On May 4, 2011, she received a

received a letter of warning for failure to meet a work standard, resulting in

The facts are not in dispute. On December 9, 2010, the petitioner No. 2011-895 reverse and remand. Personnel Appeals Board

, attorney general (Rosemary Wiant

continue to appeal a disciplinary action after retiring from State service. We

reporter@courts.state.nh.us

Hampshire Personnel Appeals Board (PAB) that she forfeited her right to department of health and human services, appeals the decision of the New ___________________________ DALIANIS, C.J. The petitioner, Karen Hildreth, a former employee of the THE SUPREME COURT OF NEW HAMPSHIRE attorney general, on the brief and orally), for the State. Michael A. Delaney, assistant

to press. Errors may be reported by E-mail at the following address: Ms. Sheppe orally, for the petitioner.

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as inherently exclude former . . . employees.” Duckworth v. Pratt & Whitney, Inc.

p. 2 findings of fact are deemed to be “prima facie lawful and reasonable.” Id ‘temporal qualifier,’ such as ‘current,’ . . . use of the word ‘employees’ does not

must have been applied

Our review is governed by RSA 541:13 (2007). Accordingly, the PAB’s employee’ and any commensurate benefits.” We disagree. “[A]bsent an express voluntarily, knowingly and intelligently gives up the status of ‘permanent The petitioner’s motion for rehearing was denied; this appeal followed. she was not, the State relies almost exclusively upon Appeal of Higgins– warning. Rather, the State asserts that “[b]y resigning, an employee “permanent employee” when she filed her appeal with the PAB. In arguing that rules.” Our sole task on appeal is to determine whether the petitioner was a letter of rebuttal for placement in her personnel file. See N.H. Admin. Rules, The State asserts that the petitioner’s remedy in this case is to submit a

The petitioner then appealed to the PAB. See 152 F.3d 1, 6 (1st Cir. 1998) (citation omitted). to have a right of appeal under RSA 21-I:58, the personnel rule in question

affected her status as an employee while she held her permanent position.” that the petitioner was a permanent employee when she received the letters of not appeal the PAB’s action. Id. at 579-80. Here, the State does not dispute permanent employees when the personnel rule was applied to them, they could “[a]ny permanent employee who is affected by any application of the personnel 580. Because the two employees were part-time, and, therefore, were not

affirming the PAB’s denial of jurisdiction, we concluded that “for an employee leave that had accrued while they held part-time positions. Id. at 577. In to schedule a hearing, concluding that the petitioner was no longer entitled to employees sought to appeal the denial of compensation for unused annual Brodersen, 133 N.H. 576 (1990). In Higgins-Brodersen, two full-time

relinquished her right to appeal decisions of the appointing authority that voluntarily giving up her status as a permanent employee, [the petitioner] also appeal to PAB under RSA 21-I:58). The PAB concluded that “[b]y resigning and RSA 21-I:58, I (2012) grants authority to the PAB to hear appeals from

novo.” Appeal of Alexander, 163 N.H. 397, 401 (2012). interpretations of statutes and administrative rules, however, are reviewed de

petitioner appealed this decision to step IV. The director of personnel refused by the informal settlement process was no longer available to her. The As a result of her retirement, she was notified at step III that the relief provided

205.02(b) (explaining that informal settlement process does not preclude

proceeding through the first two steps, the petitioner retired from State service. settlement process. See N.H. Admin. Rules, Per 205.03, 205.07. After p. 3 Reversed and remanded

(2012). Accordingly, we reverse and remand. 3

the purpose of appealing the disciplinary letters to the PAB under RSA 21-I:58

We conclude, therefore, that the petitioner is a “permanent employee” for

increment to which she would have otherwise been entitled.

permanent status.” Appeal of Higgins-Brodersen

letter of warning precluded the petitioner from receiving the annual salary

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

specific right of appeal to the [PAB]” of personnel decisions “based upon.

remedy.” Rix v. Kinderworks Corp. appropriate to consider ‘the evil or mischief’ the statute was designed to

is not a substitute for removal of the letters themselves. Moreover, the first rebuttal placed in the personnel file alongside the contested letters of warning

clear to us that the legislature intended to confer upon State employees a

petitioner seeks. “When the court construes a statute, it is especially Per 1501.03(a)(6). Such action, however, would not provide the relief that the