2013-0594, Wayne H. Kassotis v. Town of Fitzwilliam

the Town’s Chief of Police for a two - year term beginning April 1, 2011, and employment contract (contract) under which the petitioner agreed to serve as or are otherwise undisputed. The petitioner and the Town entered i nto an The following facts are drawn from the trial court’s order and the record,

Fitzwilliam (Town). We affirm. nonrenewal of his employment contract, against the respondent, the Town of Superior Court (Kissinger, J.) dismissing his complaint, arising from the HICKS, J. The petitioner, Wayne H. Kassotis, appeals a decision of the

the respondent. Orr & Reno, P.A., of Concord (Jeffrey C. Spear on the brief and orally), for

Davis on the brief and orally), for the petitioner. Sheldon, Davis, Wells & Hockensmith, P.C., of Keene (James Romeyn

No. 2013 - 594 Cheshire

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, Concor d, 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 p. 2 22 as 2

threshold inquiry, testing the facts alleged in the pleadings against the statements that are m erely conclusions of law.” Id. “We then engage in a most favorable to him.” Id. “We need not, however, assume the truth of factual allegations are true and construe all reasonable inferences in the light 166 N.H. ___, ___ (decided June 18, p. 2 2014). “We assume that the [petitioner’s] susceptible of a construction that would permit recovery.” England v. Brianas, whether the allegations in the [petitioner’s] pleadings are reasonably “In reviewing the trial court ’ s grant of a motion to dismiss, we consider

motion for reconsideration. This appeal followed. constitute a ‘dismissal’ under the statute.” The court denied the petitioner’s the Town exercised its right not to renew that contractual relationship did not his employ ment relationship with the Town was for a set term. The fact that pertinent part, that the petitioner “entered into a contract which provided that decision not to renew the empl oyment contract.” Specifically, it found, in the basis that “the provisions of RSA 105: p. 2 2 - a are inapplicable to the [Town’s] he fails to state a claim for relief.” The trial court granted the Town’s motion on “[b]ecause the Petitioner was not dismissed, RSA 105:2 - a does not apply, and “dismiss[ed].” RSA 10 5:2 - a (2013). The Town moved to dismiss, arguing that, which provides procedural protections to appointed chiefs of polic e who are and attorney’s fees, for the Town’s alleged fa ilu re to comply with RSA 105:2 - a, seeking, among other things, re instatement as Chief of Police, damages, costs, On May 15, 2013, the petitioner filed a complaint against the Town

two year term of employment and non - renewal of the contract. your employment with the Town will end due to expiration of the employment with the Town will be April 1, p. 2 2013, at which point not to renew [t he contract]. Accordingly, your last day of This will confirm that the Board of Selectmen has decided

provided a second notice stating, in pertinent part: By letter dated April 1, p. 2 2013, the contract’s expiration date, the Selectmen current intention of t he town to terminate your employment at this time.” we do not wish to continue your employment with the town. It is not the notice further provided: “[T]his notice should not be construed to imply that not intend to negotiate a renewal of the contract.” The November 1, 2012, [contract], and in accordance with Section 14. Length of Contract,. . . we do (Selectmen) provided the petitioner with notice that, “u nder the terms of the By letter dated Novem ber 1, 2012, the Board of Selectmen of the T own

its expiration.” negotiate a renewal of the contract within one hundred and fifty (150) days of agreed upon unless one party notifies the other party of its intent not to force and effect fr om its expiration date until a new contract has been mutually ending April 1, p. 2 201 p. 3 3. The contract provided that it would “continue in full 3

Townsend, 164 N.H. 241, 246 (2012). Black’s Law Dictionary defines N.H. 757, 761 (201 p. 3 3) (quotation omitted); see also Town of Barrington v. Bartlett Bd. of Selectmen v. Town of Bartlett Zoning Bd. of Adjustment, 164 construe the term according to its “common and approved usage.” Town of RSA 105:2 - a. Because the statute does not define “dismissal,” id., we will

di smissal, based upon its findings. have the power to affirm, modify, or negate such suspension or 45 days of his or her suspension or dismissal. The court shall petitions the clerk of the superior court for such a hearing within in which the municipality is located, provided that he or she and reasonableness of the action, in superior court in the county or dismissal, he or she shall be entitled to a hearing, on the merits with a written specification of the reasons. Upon such suspension or dismissal only for cause, and after he or she has been presented rather than elected . . . shall be subject to suspension without pay [E]ach chief of police . . . of any city or town who is appointed

RSA 105:2 - a provides, in pertinent part:

omitted). “We review issues of statutory interpretation de novo.” Id. the context of the overall statutory scheme and not in isolation.” Id. (quotation not see fit to include.” Id. (quotation omitted). “We also interpret a statute in w hat the legislature might have said or add language that the legislature did “We interpret legislative intent from the statute as written and will not consider the plain and ordinary meaning to the words used.” Id. (quotation omitted). (quotation omitted). “When examining the language of the statute, we ascribe Town of Newbury v. N.H. Fish & Game Dep’t, 165 N.H. 142, 144 (201 p. 3 3) legislature as expressed in the words of the statute considered as a whole.” language of RSA 105:2 - a. “We are the final arbiter of the intent of the A determination of whether the court erred requires that we examine the

chief. of [the contract] must be disregarded” and he “should be reinstated” as police from effective ‘ dismissal ’ by use of ‘ set term ’ contracts,” that “the two year term 105:2 - a” and “s ound public policy regarding protecting appointed police chiefs significant statutory protections afforded appointed police chiefs under RSA Kassotis’ ‘ dismissal ’ under the statute.” He also argues, based upon “the therefore wrongly conclude s that the Selectmen did not effectuate Chief “wrongly holds that RSA 105:2 - a. . . is inapplicable to th e case . . . and On appeal, the petitioner argues that the trial court ’s dismissal order

relief.” Id. (quotation omitted). of a motion to dismiss if the facts pleaded do not constitute a basis for legal applicable law.” Id. (quotation omitted). “We will uphold the trial court ’ s grant p. 4 4

convert the non - renewal into a dismissal for cause”); Hicks v. KNTV Television, cause,” and that internal communication regarding the nonrenewal “[did] not non renewal of plaintiff’ s year - to - year contract did not constitute “fir[ing] her for Manilaq Ass’n of Kotzebue, 972 P.2d 167, 172 (Alaska 1999) (holding that equivalent of an affirmative act of termination.” Id. at 12 p. 4 40. Accord Chijide v. that, “i n the context of the language of [the statute], failure to renew is not the whose annual contracts were not renewed, the court held, as a matter of law, determining whether the statute’s protections applied to covered employees termination only for cause.” Brown, 974 F.2d at 1239 (quotation omitted). In mandating that certain employees of boards of education be “subject to . . . Appeals for the Tenth Circuit interpreted an analogous Oklahoma statute District No. I - 06, 974 F.2d 1237 (10th Cir. 1992), the United States Court of jurisdictions are in accord. For example, in Brown v. Independent School word.” State v. Thiel, 160 N.H. 462, 466 (2010). We note that courts in other term contract “is not consistent with the plain and ordinary meaning of the definition e ncompassing the Town’ s non renewal of the petitioner’s expiring parameters of “dismissal” as used in RSA 105:2 - a, we conclude that a We agree with the Town. While we need not here define the precise

during his or her term of employment.”). his or h er term of employment cannot be equated to dismissal of a teacher (quotation omitted) (“The decision not to rehire a teacher on the expiration of Superintendent Schools of Saugus, 9 p. 4 45 N.E.2d 933, 934 (Mass. 2011) “[a] dismissal is not the same as a nonrenewal of a contract.” Lauran o v. jurisdictions holding, in the context of employment contract nonrenewal, that a new contract.” As support for this argument, it cites cases from other exercised its right — plainly provided in the Contract — to elect not to negotiate The Town argues that it did not dism iss the petitioner, but “[i]nstead . . .

of the common dictionary definition of the term.” (Citation omitted.) his ‘ employment, ’” thereby constituting a dismissal under the statute, “in light 0 p. 4 4/01/2013 lette r) was to ‘ remove ’ or to ‘ discharge ’ [him] from his ‘ service ’ or argues that “[t]he effect of the latter notice from the Selectmen (the would have continued to serve as Fitzwilliam Police Chief.” In particular, he given by the S electmen [on November 1, 2012, and on April 1, 2013], [he] procedural protections” of the statute. He argues that, “[b]ut for the notices ‘ dismissal ’ under RSA 105:2 - a. . . [,] thereby affording [him] the substantial, to renew the Chief Contract nor to negotiate a new contract constituted a The petitioner argues that “[t]he Fit zwilliam Selectmen’s decision neither

(unabridged ed. 2002). from employment.” Webster’s Third New International Dictionary 6 p. 5 52 Dictionary similarly defines “dismiss,” in relevant part, as “to send or remove Black’s Law Dictionary 537 (9th ed. 2009). Webster’s Third New International “dismissal,” in relevant part, as “[a] release or discharge from employment.” 5

DA LIA NIS, C. J., and CONBOY and LYNN, JJ., concurred.

Town of Newbury, 16 p. 5 5 N.H. at 144 (quotation omitted). might have said or add language that the legislature did not see fit to include.” the enforceability of term contracts — in order to “consider what the legislature would requ ire us to look beyond the tex t of the statute — which does not limit arguments. . . based upon legislative intent or public policy.”). Such analysis statute is clear on its face, we decline to address the [petitioner’s] further County Comm ’rs, 166 N.H. ___, ___ (decided June 18, 2014) (“Because the warrant us to “disregard[]” the contract’s two - year term. Cf. Appeal of Coos intent and public policy, that RSA 105:2 - a ’s “significant statutory protections” decline to address the petitioner’s further arguments, based upon legislative Finally, because we conclude that RSA 105:2 - a is clear on its face, we

Atwood v. Owens, 142 N.H. 396, 399 (1997). apply to the Town ’s nonrenewal of the petitioner’s employment contract. See Accordingly, we conclude, as a matter of law, that RSA 10 p. 5 5:2 - a does not

its term, and those rules apply to employment contracts.”). between a failure to renew a contract and a termination of that contract during termination or dismissal. Gene rally applicable rules of contract law distinguish renewal of an untenured teacher ’ s contract is not . . . the same as a CV, 2008 WL 3069466, at *10 n.14 (Tenn. Ct. App. July 31, 2008) (“The non contract.”); Cannon County Bd. of Educ. v. Wade, No. M2006 - 02001 - COA - R3 mean that he was discharged. His employment ended by operatio n of the expired. Plaintiff's expectation that the contract would be renewed does not terminated in the generally understood sense of that word. Plaintiff's contract Inc., 73 Cal. Rptr. 3d 240, 249 n.4 (Ct. App. 2008) (“[P]laintiff was not