2011-016 & 2011-018, Appeal of Timothy Alexander

Kristin H. Sheppe

2011-018

Nos. 2011-016 Personnel Appeals Board

affirm the board’s decision as to Alexander but reverse its decision as to Harris. board’s reinstatement of William Harris to his employment with HHS. We

THE SUPREME COURT OF NEW HAMPSHIRE Department of Health and Human Services (HHS) and the State appeals the

board’s affirmance of his dismissal from employment with the New Hampshire

, attorney general (Rosemary Wiant

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 Hampshire Personnel Appeals Board (board), Timothy Alexander appeals the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 HICKS, J. In these consolidated appeals from a decision of the New

attorney general, on the brief and orally), for the State. Michael A. Delaney, assistant

Mr. Reynolds orally, for Timothy Alexander and William Harris.

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 A second later, the video shows the resident on the floor following

Alexander reaching forward and pushing the resident from behind.

resident] were standing. p. 2 A second later, the video shows Mr. area near the table where Mr. Creamer, Mr. Harris, and [the approximately 30 feet between the doorway to the unit and the

the unit, Mr. Alexander had already closed the distance of

07:00:58 a.m. . . . By 07:01:01 a.m., three seconds after entering The video . . . [then] shows Mr. Alexander entering the unit at

and pulling away from Mr. Creamer.”

and made the first physical contact. The resident can be seen stepping back a.m., while speaking to the resident, Mr. Creamer reached out to [the resident] and [the resident] beginning at approximately 07:00:46 a.m.” “[A]t 07:00:49

clip” of the incident “shows the verbal confrontation between Casey Creamer

repeated instructions from Creamer. The board’s decision notes that a “video

disrespectfully under his breath and later refused to go to his room despite room when they returned to the residential unit. The resident responded assigned table. Creamer informed the resident that he would have to go to his

questioned whether he had permission to sit somewhere other than his

incident report indicated that the resident responded rudely when Creamer which began, according to Creamer, at breakfast that morning. Creamer’s (Trainee). Youth Counselor Casey Creamer was also involved in the incident,

and Harris, a full-time probationary employee, was a Youth Counselor I

resident at SYSC. Alexander was employed at SYSC as a Youth Counselor III On April 5, 2009, Alexander and Harris were involved in the restraint of a

serious physical and deadly force intervention.

successive stages of intervention described as verbal, directional, physical,

Continuum” that progresses from the presence of the staff member through situation have failed.” Accordingly, the policy prescribes a “Use of Force use force only “as a last alternative after all other reasonable efforts to resolve a

“resident disturbances and to maintain order within the SYSC.” Staff are to

property, or a client from self-harm; to prevent a crime or escape; or to prevent force is authorized only for “[j]ustifiable self-defense”; to protect a third party, According to the use of force policy applicable to SYSC staff, the use of

treatment goals.” monitoring and supervising resident behavior, and monitoring the residents’ safety and security while supervising and participating in resident activities,

staff the facility twenty-four hours a day. Their primary “function is to provide

the custody of the Commissioner of HHS. SYSC employs youth counselors to chronic and/or violent juvenile offenders. Juveniles committed to SYSC are in that provides detention, treatment and rehabilitation services for serious,

in the record. The Sununu Youth Services Center (SYSC) is a secure facility The following facts were recited in the board’s decision or are supported permanent employee, is governed by RSA 541:13 (2007). Appeal of Morton

p. 3 Our standard of review of the board’s decision as to Alexander, a

followed. denied Alexander’s appeal and granted Harris’s appeal in part. These appeals

Alexander and Harris appealed their dismissals to the board. The board

in [his] account of the incident.” the incident, he “did not conduct [himself] with honesty and [was] not truthful failed to complete a written incident report; and (3) during the investigation of

Bureau Chief, or designee, the Class II abuse” of the resident by Alexander; (2)

employee” in that he: (1) failed “to immediately report to [his] supervisor, turn, was dismissed for: “failure to meet the work standard as a probationary termination; (3) he should be reinstated because SYSC failed to comply with text of which warns that violation of same may result in dismissal.” Harris, in

his termination letter; (2) the facts found by the board do not warrant that Alexander’s “actions also violated posted or published agency policies, the

could not be legally or reasonably made.” Id

however, are reviewed de unlawfully upheld his dismissal on a different factual basis from that stated in pushed him from behind causing him to fall to the ground.” The letter noted We will first address Alexander’s appeal. He argues that: (1) the board abruptly and without warning, approached [the] resident . . . and forcefully using excessive force, said force constituting Class II Abuse . . . , in that [he]. at 110-11 (quotation omitted). authority or observance of the law, thereby arriving at a conclusion which Id determination whether the [board] acted illegally in respect to jurisdiction, scope of review on a petition for a writ of certiorari is confined to a Tamm, 124 N.H. 107, 110 (1983) (appeal by probationary employee). “The probationary employee, as a petition for a writ of certiorari. Cf. Appeal of We treat the State’s appeal of the board’s decision as to Harris, a

732, 735 (2008). Its interpretations of statutes and administrative rules, are deemed prima facie lawful and reasonable.” Appeal of Murdock, 156 N.H. that such order is unjust or unreasonable.” Id. The board’s “findings of fact the grounds for dismissal as endangering “the safety of [a] resident . . . by unless we are satisfied, by a clear preponderance of the evidence before us, . We will not vacate or set aside the board’s decision “except for errors of law, proof to show that the [board’s] decision is clearly unreasonable or unlawful.” 158 N.H. 76, 78 (2008). As the appealing party, Alexander “has the burden of

terminated from employment at SYSC. Alexander’s termination letter stated Following an investigation of the incident, Alexander and Harris were

takedown” [performed] by Casey Creamer. what was described [by Alexander and Creamer] as a “one-arm alleged conduct or failure to meet the work standard in light of

p. 4 (3) The disciplinary action was unwarranted by the

appeal;

division of personnel by imposing the disciplinary action under

(2) The appointing authority violated the rules of the

(1) The disciplinary action was unlawful;

of the evidence that:

board shall determine if the appellant proves by a preponderance (b) In disciplinary appeals, including termination, . . . the

Rule 207.12(b) provides:

review is not limited to the information stated in the termination letter. Hampshire Administrative Rule, Per-A 207.12(b), counters that the board’s

The Board is not permitted to take that action.” The State, citing New

[the] resident . . . and forcefully pushed him from behind causing him to fall to

made its own determination about [his] actions and decided to terminate [him]. in evidence. “[b]y upholding [his] dismissal on alternative grounds, the Board essentially (4) The disciplinary action was unjust in light of the facts used excessive force “in that [he] abruptly and without warning, approached authority, not the board, had the power to terminate him. He contends that John F. Duffy, Bureau Chief of Residential Services at SYSC, stated that he the facts in evidence; or termination. As previously noted, Alexander’s termination letter, written by

merely recounted witness testimony to that effect. assertion that he fell as a result of Alexander’s shove, or whether the board

Alexander argues that under the personnel rules, only the appointing

a different factual basis from that relied upon by SYSC in his letter of

made a finding that the resident was taken down, thereby rejecting the

assume, arguendo, that the board made such a finding. Alexander first argues that the board erred by upholding his dismissal on Nevertheless, we will

process. not push the resident to the ground.” It is not entirely clear whether the board agree with Duffy’s version of the facts” and that the board found “that [he] did the ground.” (Emphasis added.) Alexander asserts that the board “did not

board violated several statutes and, along with SYSC, violated his rights to due the personnel rules; and (4) he is at least entitled to a new hearing because the next step in the force continuum is “directional intervention,”

p. 5 verbal intervention failed. According to the policy, however, the

asserting that it was the next reasonable step when presence and described his actions as “positional movement” of the resident, behind and shoved the resident without warning. Mr. Alexander

Alexander burst into the room, approached the resident from

on the floor talking face to face with the resident when Mr. It is important to note that there were two trained staff members

excessive use of force.

intervention before engaging in what the Board would consider an Alexander did not attempt to use any of the lesser forms of intervention” or “deadly force.” By his own admission, Mr.

before the staff person can engage in “serious physical

to using force. Failure to adhere to this policy is also grounds for dismissal

intervention, directional intervention, and physical intervention

needed [his] assistance and failed to attempt to de-escalate the situation prior pushing [the resident], whether the two staff members standing beside him addition, the letter states that Alexander “also failed to determine, prior to

allegedly rejected by the board, that Alexander pushed the resident to the steps staff are required to take, including physical presence, verbal The use of force policy (State’s Exhibit 1) clearly describes the

board stated:

more times that Alexander’s use of force caused the resident to fall. In

sustained both. Since the latter ground did not depend upon the finding,

challenges the board’s conclusions relating to the use of force continuum. The represent a scenario which would permit termination.” In particular, he Alexander next argues that the facts found by the board “do not

pushing him and causing him to fall to the ground.” The letter reiterates four Sununu Youth Services (SYSC) resident . . . , by using excessive force in Alexander’s termination letter alleges that he “endangered the safety of a The board acknowledged the dual grounds for termination, and

on an “alternative theory” not stated in his letter of dismissal. ground, we conclude that the board did not independently terminate Alexander

dismissal, either of which was alone sufficient. (Emphasis added.) Thus, the agency cited alternative grounds for Alexander’s was unwarranted by the alleged conduct pursuant to Rule 207.12(b)(3), is to determine whether “[t]he disciplinary action.”

(Emphases added.)

the evidence before it. We note, however, that the board’s task, in a review (Emphases added). We agree with the State that the board may consider all of refute the evidence presented by the appointing authority . . . . p. 6 (2) Offers to provide the employee with an opportunity to

decision to dismiss the employee;

evidence which the appointing authority believes supports the (1) Offers to meet with the employee to discuss whatever

and cannot be set aside lightly.” Desmarais v. State Personnel Comm’n under this section until the appointing authority: as it saw fit. The [board’s] findings and conclusions are entitled to great weight conflict in the evidence and to accept or reject such portions of the testimony

(d) No appointing authority shall dismiss a classified employee

evidence. “As a fact-finding tribunal, the [board] was at liberty to resolve any

provides, in pertinent part: resident away from the conflict and found that claim unsupported by the violation of New Hampshire Administrative Rule, Per 1002.08(d), which board noted Alexander’s claim that his actions were an attempt to move the We do not share Alexander’s interpretation of the board’s decision. The

The Board emphasizes that the appellant

cue’ in an unsuccessful attempt to make the resident comply.” He argues: entitled to reinstatement without loss of pay because his termination was in

resident.

Alexander asserts he saw that “Mr. Creamer had already used a ‘physical Alexander next argues that pursuant to RSA 21-I:58, I (2000), he is

unreasonable.” Id without warning. us, we cannot say that the [denial] of [Alexander’s] appeal was unjust or would be able to resort only to “presence” before even talking to the clearly impending assault (as the appellant perceived in this case) continuum. If that were the case, a staff member approaching a

. (quotations omitted). engage in defusing questions. He simply shoved the resident

N.H. 582, 586 (1977) (quotation omitted). Having reviewed “the record before

Mr. Alexander did not use any physical cue, escort the resident or engage the client in defusing questions.” The evidence reflects that position is intended to move them away from the situation and lower-level interventions, but it cannot possibly be the case that

directions. Touching the client and moving with them in an escort which the policy defines as “a physical cue to follow staff p. 7 Duffy told him the decision was his, and, although Sage was surprised by that

am I not seeing him?” Nevertheless, Sage testified that he was certain that the guy that told me I’m going to – why can’t I refute anything with him? Why Secondly, if I ask the question, maybe I’ll get where is Director Fenniman. He’s

he had been “instructed and trained as a [union] steward to ask the question.

the decision to terminate, he was told it was Duffy’s decision. Sage stated that that when he asked Duffy, at Duffy’s meeting with Alexander, who would make and he’s going to be out of here, something to that effect.” Sage also testified

tape. It’s a horrible thing to see. This guy [Alexander] just wrecked this kid,

about the Alexander incident, saying “something to the effect of we got this on union chapter president Steven Sage testified that Fenniman consulted him discussed on the second day, May 27, 2010. On the third day, June 16, then

spread out over more than two months. Fenniman’s authority was first

board, the issue is not preserved. The board heard four days of testimony

information about the appointing authority prior to the hearing before the We conclude that, even assuming Alexander had no access to the

Motion for Reconsideration.”

information the next time he had a chance to review his argument – in the asserts that “[o]nce [he] had the additional information, he included this information first surfaced, he contends, at the hearing before the board. He

regarding Fenniman’s hiring powers and Duffy’s lack of authority.” That

there were violations of the personnel rules, but did not have the particulars Alexander counters that “[b]efore the hearing, [he] had reason to believe

his motion for rehearing to the board.

finding on the issue. The record reveals that Alexander first raised the issue in

he failed to raise it in his notice of appeal to the board and the board made no The State argues that Alexander failed to preserve this argument because

Fenniman, who was the appointing authority.”

never given the opportunity to meet with the actual decision-maker – asserts that he “was misled about the identity of the decision-maker and was therefore contends that Fenniman was the appointing authority. Alexander

had final authority with respect to hiring and firing at SYSC and Alexander

Testimony before the board revealed that Director William W. Fenniman, Jr. comply with Rule 1002.08(d) because Duffy was not the appointing authority. opportunity to refute the evidence.” Alexander argues that this offer did not

dismissal from State service as set forth in this letter and to give you the

view the evidence that supports my belief that you meet the criteria for dismiss, signed by Duffy, requesting a meeting between them “to discuss and Prior to his termination, Alexander received a letter of intention to

N.H. Admin. Rules, Per 1002.08(d). the board, on the board’s own motion or on the motion of any p. 8 At any time prior to the issuance of the decision on the merits,

consideration prior to its decision. That rule provides:

Per-A 208.01, Alexander could have moved to add the issue for the board’s

close of evidence; however, pursuant to New Hampshire Administrative Rule, argument.” We acknowledge that the board declined to hear arguments at the time,” which we interpret to mean the first time, “he had a chance to review his

We disagree with Alexander’s assertion here that this was “the next

thereby, may apply for rehearing in respect to any matter

the argument in his motion for reconsideration/rehearing on October 27. argument Alexander now makes in this appeal. Rather, Alexander first made

or proceeding before the board, or any person directly affected notice of any decision or order of the board, any party to the action (a) Pursuant to RSA 541:3, within 30 days after the date of never raised before the board, prior to its September 27, 2010 decision, the

N.H. Admin. Rules

forth” in that motion for purposes of RSA 541:4. RSA 541:4 (2007) (providing Rules, Per-A 208.03. Accordingly, we do not consider it a “ground . . . set it was not a proper ground on which to request rehearing. See N.H. Admin. Despite having elicited this testimony at the hearing, Alexander’s counsel By contrast, Rule 208.03 provides, in part: Duffy was, or properly acted on behalf of, the appointing authority. Therefore, the State notes, the board “did not make a finding on the issue” of whether the video again and explained my version of what took place here this day.” N.H. Admin. Rules, Per-A 208.03 (emphasis added); see RSA 541:3 (2007). As

consideration of the issues to be decided. the order. determined in the action or proceeding, or covered or included in

evidence or arguments are necessary to a full and fair previously received, if the board determines that such testimony, material and non-duplicative testimony, evidence or arguments not party, shall reopen the record of the hearing to receive relevant,

stated the decision to terminate was his and testified that if he had known On the fourth day of testimony, July 28, Alexander confirmed that Duffy

Director Fenniman in any of these meetings.” answer, he thought it was “kind of corroborated . . . because [he] never saw argument is either not adequately briefed and therefore waived, Appeal of Town Alexander received.” p. 9 board’s findings are unsupported by the evidence, his single-sentence

any event, “[d]ue process requires notice and an opportunity to be heard, which decision complies with RSA 541-A:35. To the extent Alexander claims the

“we hold that the statute affords no remedy.” Appeal of Martino implicates no liberty interest and the record reveals no prejudice to Alexander, that Alexander had no property right in state employment and argues that, in forty-five days of the date of the hearing. We disagree. As RSA 21-I:46, IX and separate conclusion sections as to Alexander and Harris. We hold that the execution of his termination, by both SYSC and the Board.” The State asserts his job, he asserts that he “was entitled to procedural due process in the

board violated RSA 21-I:46, IX (2000) by failing to issue its decision within stated.” The board’s fourteen-page decision includes a review of the evidence decision shall include findings of fact and conclusions of law, separately of the New Hampshire Constitution. Arguing that he had a property interest in violation of RSA 541-A:35.” RSA 541-A:35 (2007) requires that “[a] final

issue for appellate review.” Petition of Guardarramos-Cepeda

Alexander next contends that he is entitled to a new hearing because the Fourteenth Amendment to the United States Constitution and Part I, Article 15 reflects either unsupported or very unclear fact-finding on material issues, in Alexander next contends that he was denied due process under the

rule is that a contemporaneous and specific objection is required to preserve an make a contemporaneous objection at the hearing. We agree. “The general State counters that Alexander failed to preserve this issue by neglecting to

preserved. sufficient.” Alexander’s counsel did not object. Accordingly, the issue is not We also disagree with Alexander’s contention that “the Board’s decision previous argument, is addressed above. be vacated because it was not issued within statutorily mandated time limit). of Nottingham, 153 N.H. 539, 555 (2006), or, to the extent it references a

denying [him] the opportunity to make a closing argument at the hearing.” The

going to have closing arguments. We appreciate it. Four days [of testimony] is

616 (1994) (rejecting claim that decision of compensation appeals board should

Alexander next argues that “[t]he Board violated [RSA 541-A:31, IV] by

not been preserved for our review. arguments at the hearing, to which Chairman Wood responded, “We’re not The transcript reveals that Alexander’s counsel inquired about closing (2006) (addressing preservation of issue before sentence review board).

motion for rehearing to the board). We conclude, therefore, that the issue has that court will not consider on appeal any grounds for error not set forth in a p. 10 RSA 21-I:58, I, provides, in relevant part:

employees. We agree. contends this was error because RSA 21-I:58, I, applies only to “permanent” the benefit of back pay, to his position of Youth Counselor Trainee.” The State

21-I:58, I, . . . [it] voted unanimously to have Mr. Harris reinstated, but without

The board stated that “[i]n accordance with pertinent provisions of RSA

Rule, Per-A 207.12(a), by reinstating Harris to employment with HHS.

regulatory authority” under RSA 21-I:58, I, and New Hampshire Administrative

Harris. The State argues that the board “exceeded both its statutory and We turn now to the State’s appeal of the board’s decision with respect to

Constitution.

the State Constitution affords him greater protection than the Federal

right.” Dorr v. County of Butte Brown “a substantive property right cannot exist exclusively by virtue of a procedural

we need not further address his constitutional claims, including his claim that burden of showing a protected property interest in his employment with SYSC, school district). Because we conclude that Alexander has failed to meet his

commission of office, does not rise to the level of a protected property right.” procedural protections and rights of appeal by statute and administrative rule, as a matter of State law, public employment without more, such as a “In the context of public employment, we have repeatedly reaffirmed that,

statute, or of the CBA, that creates such an interest. Cf

RSA 189:14-a did not create property right in continued employment with of Gorham School Board, 121 N.H. 878, 881 (1981) (procedural protections of

In addition, notwithstanding that Alexander may have been entitled to certain specific provision of contract, or other rule or understanding, that created one). (finding no property interest in employment where plaintiffs failed to cite 737 v. Auto Glass Emp. Cr. Union, 72 F.3d 1243, 1250-51 (6th Cir. 1996)

property interest.” He fails to cite a specific provision, however, of either that stem from an independent source such as state law.” Id classified system (e.g., RSA 21-I:42-58) . . . provide the ‘more’ that creates a created and their dimensions are defined by existing rules or understandings agreement (CBA) under which he worked, RSA chapter 273-A, “and the State, Constitutions, they are not created by the Constitution. Rather, they are, 122 N.H. at 630. Alexander contends that the collective bargaining

2007). interest in his employment. See Krieg v. Seybold, 481 F.3d 512, 519 (7th Cir. N.H. 627, 630 (1982). Alexander has the burden of proving he had a property omitted) (addressing takings claim); see Brown v. Bedford School Board, 122

“[W]hile property interests are protected under the Federal, as well as the statute.” Appeal of Stanton p. 11 “[A] party may not assert equitable estoppel to avoid the application of a informed him that he had the right to appeal under that section. We disagree.

that RSA 21-I:58, I, does not apply to him because his termination letter

Harris argues, however, that the State should be estopped from arguing We stated in Appeal of Higgins-Brodersen probationary employee. permanent employees. RSA 21-I:58, I. it may deem just.

instead we consider the statute as a whole.” Appeal of Kat Paw Acres Trust interpreting statutes, “we do not merely look at isolated words or phrases, but

because that statute does not confer that authority in the case of a intended to be confined to cases arising under that section – that is, appeals by any order of the appointing authority, or make such other order as

seemingly expansive introductory phrase, “[i]n all cases.” Nevertheless, when

board’s reliance upon RSA 21-I:58, I, to reinstate Harris was erroneous whole, we conclude that the discretion conferred by the last sentence was representation contrary to statute was unreasonable). We conclude that the [board] may reinstate an employee or otherwise change or modify 722-23 (2006) (rejecting claim of municipal estoppel because reliance upon a position of like seniority, status, and pay. . . . In all cases, the in part and dissenting in part); cf employee shall be reinstated to the employee’s former position or a. Thomas v. Town of Hooksett, 153 N.H. 717,

We acknowledge that the last sentence of RSA 21-I:58, I, begins with the

recommended for permanent appointment by the proper authority”).

decision in Higgins-Brodersen should not be equated with part-time employees.” We are not persuaded. Our 156 N.H. 536, 537 (2007) (quotation omitted). Reading RSA 21-I:58, I, as a Harris attempts to distinguish Higgins-Brodersen, violation of a statute or of rules adopted by the director, the permanent status.” Higgins-Brodersen confer upon State employees a specific right of appeal to the Board based upon

“[p]ermanent employees have completed a working-test period and have been probationary, as well as part-time, employees. Id. at 580 (noting that

concerned a part-time employee and arguing that “probationary employees

[board] finds that the action complained of . . . was taken in, 133 N.H. at 580. calendar days of the action giving rise to the appeal. . . . If the reviewing RSA 21-I:58, it [was] clear to us that the legislature intended to the personnel rules . . . may appeal to the [board] within 15

Any permanent employee who is affected by any application of independent recollection those details he actually found in another employee’s

p. 12 forthcoming during the investigation, and should not have related as

with respect to reporting the incident,” and “Harris should have been more in light of the board’s findings that “Harris might have used better judgment an assessment of the degree of his failure to meet it. We reach this conclusion

We read this not as a finding that Harris met the work standard, but as

a failure to meet work standards that would justify his dismissal. the Board found that [Harris’s] work performance did not represent

actually applied and observed in the workplace. Having done so,

N.H. Admin. Rules violated the work standard.” Harris counters that the board “essentially found that [he] had not a vacuum, but must be weighed in practical terms as they are to find, that those policies and procedures may not be evaluated in policies and procedures. However, the Board found, and continues

sufficient to warrant the appellant’s reinstatement. standard prior to dismissing the employee, shall not be deemed employee’s unsatisfactory performance or failure to meet the work to meet the work standard as articulated in the Department’s

employees. in exceeding the limits on its authority to review dismissals of probationary authority took no formal disciplinary action to correct the than the appellant’s actions warranted.” The State argues that the board erred made in bad faith, as the Department believed that [Harris] failed

the reason(s) for the dismissal, or evidence that the appointing that the decision to dismiss in this case imposed a more substantial penalty decision to dismiss [Harris] was not arbitrary, illegal, capricious or made in bad faith. Allegations that the appellant does not know considering . . . all the facts in evidence that the Department’s evidence that the termination was arbitrary, illegal, capricious or In its September 27, 2010, decision, the Board concluded after

decision to be arbitrary, illegal, capricious or made in bad faith, [it] believes determine if the appellant proves by a preponderance of the

for rehearing, the board stated:

Here, the board concluded that “[w]hile [it] did not find the dismissal (a) In probationary termination appeals, the board shall

We now examine the board’s actual authority in such cases. New p. 13 13

administrative official.” Clark v. Manchester

Accordingly, we reverse the board’s decision with respect to Harris.

interfere with a reasonable exercise of discretion by a department head or an

with HHS’s exercise of discretion in terminating Harris’s employment.

arbitrary, illegal, capricious or made in bad faith, but the courts will not DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred. authority, not the board. “The dismissal of a probationer must not be employee who fails to meet the work standard” rests with the appointing part.

arbitrary, illegal, capricious or made in bad faith, it was not entitled to interfere (quotation omitted). Similarly, once the board found that the dismissal was not

Administrative Rule, Per 1002.02(a), “the discretion to dismiss a probationary . . . [incident] report.” As the State points out, however, under New Hampshire