2012-0334, Petition of Michael Carrier

Molan, Milner & Krupski, PLLC, of Concord (Robert F. Berry, Jr. and

No. 2012-334 Original

benefits. In January 2009, the petitioner became the full-time fire chief for from his Londonderry position in July 2007, and began receiving retirement he worked in Londonderry, the petitioner was enrolled in the NHRS. He retired

I. Background

Londonderry as a full-time firefighter and later as the town’s fire chief. When

member of the NHRS. We affirm.

page is: http://www.courts.state.nh.us/supreme. We briefly recite the relevant facts. The petitioner worked in 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

System (NHRS), that, as fire chief for Hampstead, he was required to be a of the board of trustees (board) of the respondent, New Hampshire Retirement DALIANIS, C.J. The petitioner, Michael Carrier, seeks review of a ruling

on the brief and orally), for the respondent. Getman, Schulthess & Steere, P.A., of Manchester (Andrew R. Schulman

to press. Errors may be reported by E-mail at the following address: Glenn R. Milner on the brief, and Mr. Milner 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

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 II. Discussion

petition for writ of certiorari.

petitioner moved for reconsideration, his motion was denied. He then filed this those amounts be recouped from his future benefit payments. Although the benefits. The board ordered the petitioner restored to service and required that

overpaid $70,892.22 in pension benefits and $9,764.56 in medical subsidy

retirement benefits while still employed full-time by Hampstead, he was the board. The board determined that, because the petitioner collected his The petitioner filed a timely appeal of the February 2010 decision with

factual findings. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

interpretation. State Employees’ Assoc. of N.H. v. State of N.H., 161 N.H. 730,

a whole. Id. We first look to the language of the statute itself, and, if possible,

capriciously.” Id. (quotation omitted). “[I]t is not our function to make de novo position.” The petitioner retired from his Hampstead position in May 2010. would cease as of March 2010 for “as long as [he] . . . occup[ied] this full-time active, contributory service immediately” and that his monthly pension benefits Resolving the issues in this case requires that we engage in statutory

transcript of that hearing as part of the record before us. Absent a transcript, construe that language according to its plain and ordinary meaning. Id. We

intent of the legislature as expressed in the words of the statute considered as novo. Id. In matters of statutory interpretation, we are the final arbiter of the made, or abused its discretion or acted arbitrarily, unreasonably, or 738 (2011). Statutory interpretation is a question of law, which we review de law, whereby it arrived at a conclusion which cannot legally or reasonably be board acted illegally with respect to jurisdiction, authority or observance of the 100-A:1, VIII.” The NHRS informed him that he was “required to be restored to

a three-day evidentiary hearing in this matter, the petitioner has not provided a Retirement System, 138 N.H. 120, 127 (1993). Although the NHRS conducted findings or to substitute our judgment for that of the board.” Day v. N.H.

(quotation and brackets omitted). “Our standard of review is whether the employment was “subject to NHRS mandatory enrollment pursuant to RSA the NHRS.” Petition of State Employees’ Assoc., 161 N.H. 476, 478 (2011) In February 2010, the NHRS notified the petitioner that his Hampstead 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

A. Standards of Review

both his NHRS retirement benefits and his Hampstead fire chief salary. Hampstead. However, he did not re-enroll in the NHRS. Instead, he received to the requirements of” RSA 100-A:1, VIII.

p. 3 the State or a political subdivision thereof “in a job certified . . . as conforming

members. See RSA 100-A:1, V-VIII, X. Under the provisions of RSA chapter

elected or appointed, who is regularly employed on a full-time basis” either by Under RSA 100-A:1, VIII, a permanent firefighter is “any person, whether permanent firefighter for the purposes of mandatory group II membership.

permanent police officers or permanent firefighters are classified as group II classified as group I members of the NHRS, while members defined as Members defined as teachers or as certain other public employees are

members. See RSA 100-A:3, I(a) (Supp. 2007) (amended 2011). By contrast,

The petitioner first argues that, as the Hampstead fire chief, he was not a

1. Whether Petitioner Was a Permanent Firefighter

C. Petitioner’s Arguments

appointed for fixed terms.” Id. NHRS membership is optional for, among others, “elected officials [and] officials

:52-b (2013). Membership in the NHRS is mandatory for group I and group II in RSA 100-A:1 (2013). See Petition of State Employees’ Assoc., 161 N.H. at Petition of State Employees’ Assoc., 161 N.H. at 477; see RSA 100-A:52, :52-a, I members, and to receive certain other more favorable retirement benefits. 100-A, group II members are entitled to apply for retirement earlier than group

not see fit to include. Id. We construe all parts of a statute together to

directly from the pertinent statutes. opinion we use the terms “firefighter” and “police officer,” except when quoting 477. Although the NHRS statutes refer to “firemen” and “policemen,” in this

teachers, permanent police officers, and permanent firefighters, all as defined the context of the statute as a whole. Id. This enables us to better discern the (2013). Membership in the NHRS is limited to certain public employees, City of Concord v. State of N.H., 164 N.H. 130, 132 (2012); see RSA 100-A:2 The NHRS “is a tax qualified pension trust for certain public employees.”

B. The NHRS 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 omitted). analysis.” Petition of State Employees’ Assoc., 161 N.H. at 479 (quotation statute is ambiguous, however, we consider legislative history to aid our purpose sought to be advanced by the statutory scheme. Id. at 738-39. “If a legislature’s intent and to interpret statutory language in light of the policy or

Moreover, we do not consider words and phrases in isolation, but rather within effectuate its overall purpose and avoid an absurd or unjust result. Id. include “[d]irect[ing] the scene at all fire and rescue calls.” p. 4 preservation of life and extinguishing of fire.” The duties of the fire chief requires the fire chief to “direct all measures deemed necessary for the

chief with “[s]ole and absolute command at fires and alarms of fires” and

to fire fighting [and] fire prevention.” Specifically, the position vests the fire directing and coordinating all fire service activities including those pertaining supports this finding. It states that the fire chief is “[r]esponsible for planning,

exposure to the hazards of firefighting.” The job description for the position

that the normal duties of the fire chief position “contemplate more than indirect the hazards of firefighting.” RSA 100-A:1, VIII-a. However, the board found his normal duties entailed “only indirect, occasional, or short term exposure to

The petitioner contends that he was not a permanent firefighter because

occupied a position that required him to be fully certified as a firefighter. NHRS. When he was employed as the Hampstead fire chief, the petitioner affect the status of the Hampstead fire chief position for the purposes of the

because his fire certification lapsed, we agree with the board that this did not

Although the petitioner argues that he was not a permanent firefighter

meeting all of the statutory requirements.

Hampstead fire chief in a position that the town’s governing body certified as

definition, and we agree. The petitioner was regularly employed full-time as the commission. The board determined that the petitioner met the statutory requirement full certification as a firefighter by the fire standards and training

certified as (c) a firefighter position that, among other things, (d) has as a job

requires (a) regular, full-time employment in (b) a position that has been

Thus, the definition of permanent firefighter in RSA 100-A:1, VIII

firefighting.” RSA 100-A:1, VIII-a (2013).

occasional, or short-term exposure, or no exposure, to the hazards of

expert” or “[a]ny other person whose normal duties entail only indirect, “[a]ny dispatcher, mechanic, electrician, laboratory or clerical worker, technical VIII(a)(2), (3). Additionally the term “permanent fireman” does not include

firefighter that may be established by the certifying authority.” RSA 100-A:1,

mental, educational, and other qualifications for continuing certification as a standards and training commission” and that the firefighter “meet all physical, firefighter be “fully certified as a firefighter by the New Hampshire fire

functions.” RSA 100-A:1, VIII(a)(1). Further, the job must require that the

control, or extinguishment of fires, including incidental non-firefighting “activities that are required for and directly concerned with the prevention, prevention, control, or extinguishment of fires,” and the performance of

100-A:1, VIII, it must entail “the authority and responsibility to engage in the For a job to be certified as a permanent firefighter position under RSA or officials appointed for fixed terms.” See RSA 102:2, :5 (2013) (firefighter

p. 5 language regarding optional NHRS membership for elected officials and officials Webster’s Third New International Dictionary 1567 (unabridged ed. 2002). In meaning of the word “official” is “one who holds or is invested with an office.” fixed term within the meaning of the pertinent NHRS statutes. The plain

predecessor retirement systems did not contain exceptions for “elected officials RSA 100:1, :3, I (1955) (repealed 1975). By contrast, the other three optional in the case of elected officials or officials appointed for fixed terms.” 5

After the separate retirement systems were merged into the NHRS, the firefighters; (3) permanent police officers; and (4) teachers. See RSA 100-A:35,

We first examine whether the petitioner was an “official” appointed for a

for certain full-time State employees, but provided that “membership shall be

retirement systems for: (1) full-time State employees; (2) permanent (repealed 1989) (teacher system). system); RSA 103:2, :4 (2013) (police officer system); RSA 192:3 (1955)

decision. See Bean, 151 N.H. at 250.

Therefore, we review legislative history to construe its meaning. See Petition of because it is unclear whether it refers to individuals who are fire chiefs. teachers). The former State employee retirement system mandated enrollment State employees, permanent firefighters, permanent police officers, and :36-a, :36-e, :36-g (2013) (merging into the NHRS former retirement systems for

as the petitioner. The NHRS is a successor to four separate statutory “officials appointed for fixed terms” does not apply to group II members, such applied to him. The legislative history of the NHRS statutes establishes that the phrase petitioner contends that this exception to mandatory NHRS membership provide a transcript, we must assume that the evidence supports the board’s eligible for membership in the retirement system.” (Emphasis added.) The State Employees’ Assoc., 161 N.H. at 479. entitled to rely upon the job description alone, since the petitioner has failed to firefighting. Even if we assume, without deciding, that the board was not “optional in the case of elected officials, officials appointed for fixed terms, version of RSA 100-A:3, I(a) that applies to this case, NHRS membership is the context of this case, we conclude that the word “official” is ambiguous term, he was not required to be a member of the NHRS. Pursuant to the

unclassified state employees, or those employees of the general court who are personally, was only indirectly and occasionally exposed to the hazards of The petitioner argues that, notwithstanding the job description, he,

The petitioner next asserts that because he was appointed for a fixed

2. Whether Petitioner was an Official Appointed for a Fixed Term p. 6 3. Waiver of Recoupment

evidence supports the board’s rejection of his waiver request. See Bean, 151 interest of justice and fairness,” absent a transcript, we must assume that the

authority or observance of the law, whereby it arrived at a conclusion which

I members, but does not apply to group II members. conclusion that the phrase “officials appointed for fixed terms” applies to group

failed to demonstrate that the board “acted illegally with respect to jurisdiction,

fire chiefs, are members of group II. See RSA 100-A:1, X. Although we are not appointed and employed under a fixed term contract. Such individuals, like to an official appointed to a fixed term does not apply to a police chief,

RSA 100-A:3.” Thus, the order upon which the petitioner relies supports our

board fully considered and rejected the petitioner’s waiver request. Although whether to waive recoupment in this case. The record demonstrates that the group I member, not a group II member, such as a police officer. See RSA 100- Finally, the petitioner contends that the board erred by not considering police officers. However, the board order upon which he relies concerned a For all of the above-stated reasons, we conclude that the petitioner has exception[ ]” for an official appointed to a fixed term applies to permanent III. Conclusion

N.H. at 250. construction. Since 1991, the board has decided that the statutory reference

term’ and exempted [him] from the mandatory participation requirement of time Group I employment qualified [him] as an ‘official appointed for a fixed order, the board concluded that “the express terms of [the individual’s] full-

The petitioner contends that, in fact, the board “has determined that the

the legislative intent.” Id. (quotation omitted). The board’s longstanding statutory interpretation supports our

officers and firefighters).

administration is entitled to deference.” Appeal of Town of Seabrook, 163 N.H. A:1, X(a) (defining group I members), (b) (defining group II members). In that law that an interpretation of a statute by the agency charged with its

omitted). This “is evidence that the administrative construction conforms to N.H. Dep’t of Health & Human Servs., 154 N.H. 228, 234 (2006) (quotation interpretation without “any interference by the legislature.” Bel Air Assocs. v. 635, 644 (2012). In this case, the board has applied its longstanding the legislature intended this language to apply to group II members (police appointed for fixed terms was retained. However, there is no indication that

bound by the board’s statutory interpretation, “it is well established in our case p. 7 7

arbitrarily, unreasonably, or capriciously.” Petition of State Employees’ Assoc., cannot legally or reasonably be made, or abused its discretion or acted

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

A f f i r m e d .

161 N.H. at 4 p. 7 78 (quotation omitted). Accordingly, we affirm its decision.