2025 N.H. 51, Appeal of Cass

inconsistent or unsupported findings in its order. We vacate and remand. whether her termination violated certain statutes; and (2) made logically corrections officer. The petitioner argues that the PAB: (1) failed to consider Hampshire Department of Corrections (DOC) to terminate her employment as a Hampshire Personnel Appeals Board (PAB) upholding a decision of the New [¶1] The petitioner, Claudia Cass, appeals a decision of the New

orally), for the New Hampshire Department of Corrections. general (Mary A. Triick, senior assistant attorney general, on the brief and John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

orally), for the petitioner. Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and

Citation: Appeal of Cass, 2025 N.H. 51 Case No. 2024 - 0511 Personnel Appeals Board

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

raised under RSA chapter p. 2 275 - E and RSA chapter 98 - E, and that the petitioner [¶6] The PAB concluded that it lacked jurisdiction to consider issues

the petitioner’s termination. public employees’ rights to freedom of speech and expression. The PAB upheld Whistleblowers’ Protection Act, and RSA chapter 98 - E ( p. 2 2023), which protects unreasonable, and in violation of RSA chapter 275 - E (2023), New Hampshire’s petitioner argued, among other things, that her termination was unlawful and [¶5] The petitioner appealed the termination decision to the PAB. The

terminated. pending the outcome of the investigation, and her employment was later be unsafe or a violation of policy. The petitioner was suspended with pay food, and she said that she would not follow such an order if she believed it to she planned to do if given a direct order to send residents to get medication or needed to make those decisions. The officers then asked the petitione r what unilateral decisions to lock down units and that higher levels of leadership the petitioner that, as a corrections officer, she was not authorized to make the residents’ doors and would lockdown the uni t.” The officers explained to weekend as they were during the December shift, “she would not be opening that meeting that, if the staffing levels were the same on the upcoming officers to discuss the co ntents of her email. The petitioner told the officers at situation arose. As part of the investigation, the petitioner met with two DOC including the petitioner’s intent to follow certain procedures if a low staffing [¶4] The warden initiated an investigation into the petitioner’s actions,

irresponsible. min imum staffing. It is not safe, it violates policy, and it is I will not be releasing them when we cannot meet the critical chow and medication schedule before the weekend. Going forward recommend they are informed that there will be a change in the Residents adjust better to change when they know it is coming. I

when we are below minimum, we are in lockdown,” and that: the minimum required by policy. She told the warden that “policy dictates that she believed the staff ing levels at the prison had consistently been below [¶3] The petitioner emailed the prison warden on December p. 2 20, reporting

minimum.’” Concord (the prison), and she believed that the staffing levels were at a “‘critical shift (the December shift) at the New Hampshire State Prison for Men in levels. On December 16 to December 17, p. 2 2022, the petitioner was working a the DOC as a corrections officer in 2006. In 2022, the DOC had low staffing [¶2] The record supports the following facts. The petitioner was hired by

I. Background p. 3 3

adopted by the director, the employee shall be reinstated to the orientation, or was taken in violation of a statute or of rules status, or disabling condition, or on account of the per son’s sexual age, sex, gender identity, race, color, ethnic background, marital appointing authority for any reason related to politics, religion, If the [PAB] finds that the action complained of was taken by the

termination decisions to the PAB, and: I:58 (2020) provided that any full - time non - probationary employee could appeal any such determinations.” At the time the PAB rendered its decision, RSA 21 those statutes, it “is beyond the jurisdiction of this Board to consider and make [¶9] The PAB concluded that, although the petitioner raised issues under

[under] RSA 275 - E and RSA 98 - E.” We agree with the petitioner. finding under RSA 275 - E and RSA 98 - E:2” or to “formally adjudicate claims petitioner’s termination, but “si mply declined to make any specific, enforceable The DOC counters that the PAB did not fail to consider the legality of the whether her termination violated RSA chapter 275 - E and/or RSA chapter 98 - E. [¶8] The petitioner argues that the PAB erred because it failed to consider

rule or statutory scheme as a whole. Id. we ascribe the plain and ordinary meanings to the words used, looking at the rules de novo. Id. When interpreting both statutes and administrative rules, However, we review the PAB’s interpretations of statutes and administrative is unjust or unreasonable. See N.H. Div. of State Police, 175 N.H. at 2 p. 3 34. unless we are satisfied, by a clear preponderance of the evide nce, that its order We will not vacate or set aside the PAB’s decision except for errors of law, findings of fact “shall be deemed to be prima facie lawful and reasonable.” Id. decision “is clearly unreasonable or unlawful.” RSA 541:13. The PAB’s petitioner, as the appealing party, has the burden to show that the PAB’s See Appeal of N.H. Div. of State Police, 175 N.H. 229, 234 (2022). The [¶7] Our review of the PAB’s decision is governed by RSA 541:13 (2021).

II. Analysis

unsuccessfully moved for reconsideration. This appeal followed. determined that the staffing level was dangerously low. The petitioner unwill ingness to follow standard prison procedures in the future if she her safety concerns during the December shift; and (2) demonstrated an (1) failed to follow proper prison procedures and notify the shift commander of PAB explained that the petitioner violated these policies and rules because she: procedures and administrative rules. See N.H. Admin. R., Per 100 p. 3 3.08. The also found, however, that the petitioner violated numerous DOC policies and attempt, aid, or conspire to commit an offense in violation of the DOC’s rules. It The PAB found that the petitioner did not fail to obey an oral order, nor did she failed to prove that her termination was “unjust, unfair, or contrary to law.” p. 4 4

98 - E:1). Because the PAB incorrectly concluded that it lacked jurisdiction to erroneously concluded that an employee’s actions were unprotected under RSA Booker, 139 N.H. 337, 3 p. 4 43 (1995) (reversing a decision of the PAB because it purpose of determining whether to reinstate an employee. See id.; cf. Appeal of whether the personnel action on appeal violated those statutes for the limited determinations, the PAB had authority and was therefore required to consider Thus, contrary to its conclusion that it lacked jurisdiction to make such Neither of the PAB’s orders addressed the petitioner’s arguments on that point. violation would require the PAB to reinstate her employment. See RSA 21 - I:58. consider whether her termination violated thos e statutes because any such adjudicate claims” under those statutes; instead, she asked the PAB to petitioner never filed a civil suit with the PAB or asked the PAB to “formally [¶13] The flaw with the DOC’s and the PAB’s reasoning is that the

reasoning in its order denying the petitioner’s motion for reconsideration. must file a civil suit to make such determinations. The PAB adopted this formally adjudicate claims under RSA 275 - E and RSA 98 - E” and the petitioner petitioner’s] termination was unlawful or unjust,” the PAB “lacks jurisdiction to consider all the relevant underlying factual claims when determining if [the chapter 98 - E. The DOC objected, arguing that while the PAB “can certainly whether her termination was in violation of RSA chapter 275 - E and RSA reconsideration, arguing in part that the PAB erred by failing to consider [¶12] After the PAB issued its order, the petitioner filed a motion for

is to be construed with reference to the issues it was meant to decide. See id. purpose of the agency’s decree. See id. As a general matter, an agency’s order See id. We construe subsidiary clauses so as not to conflict with the primary construing an agency’s order, we look to the plain meaning of the words used. we review de novo. See Appeal of Langenfeld, 160 N.H. 85, 89 (2010). In [¶11] The interpretation of an agency’s order is a question of law, which

reconsideration to support this position. actions. The DOC points to the PAB’s order denying the petitioner’s motion for simply saying in its order that it did not have jurisdiction to adjudicate civil petitioner’s termination was in violation of those statutes, and that it was the PAB’s order is “confusing on its face” — the PAB did consider whether the [¶10] The DOC nonetheless asserted at oral argument that — although

RSA chapter 98 - E. as to whether the DOC’s personnel action violated RSA chapter 275 - E and/or of a statute.” Id. Therefore, the PAB has statutory authority to make a finding reinstate an employee if it finds that the action complained of was “in violation (Emphasis added.) Under the plain language of the statute, the PAB “shall”

and pay. employee’s former position or a position of like seniority, status, p. 5 5

DONOVAN, COUNTWAY, and GOULD, JJ., concurred.

discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993); Sup. Ct. R. 2 p. 5 5(8). parties’ remaining arguments and conclude that they do not warrant further for further proceedings consistent with this o pinion. We have considered the insufficiently explained. Accordingly, we vacate the PAB’s order and remand applying RSA 21 - I:58. We also conclude that the PAB’s findings were [¶15] In sum, we conclude that the PAB erred as a matter of law in

and “therefore failed to satisfy the requirements of RSA p. 5 541 - A:35”). provide [this court] with an adequate basis upon which to review its decision,” Officers, 147 N.H. 1, 10 (2001) (vacating PAB’s decision when it “failed to PAB to reconsider and clarify its order. See Petition of Support Enforcement sufficiently explain its reasoning, and we vacate its findings and remand for the Panaggio, 172 N.H. at 19. Accordingly, we conclude that the PAB has failed to reasoning as to how the petitioner violated each of those policies and rules. the PAB relied upon in support of each policy and rule violation and its it found were violated. Thus, “we are left to speculate” as to both which facts the investigation and then lists numerous policies, procedures, and rules that narrative summary of the petitioner’s conduct during the December shift and violated those policies, the PAB’s order, without any analysis, provides only a conduct gave rise to each policy violation and how the petitioner’s conduct which it relied [to support its] determination”). Rather than explaining what findings” because we could not “discern from the board’s order the facts upon conclusions,” and remanding for the board to make “appropriate factual [a board’s] decision when it does not provide an adequate basis for its 144 N.H. 181, 184 (1999) (explaining that “we are unable to intelligently review it relied upon in support of each of its determinations. See Appeal of Walker, RSA 541 - A:35 (2021). However, it is unclear from the PAB’s order which facts render meaningful review. Appeal of Panaggio, 17 2 N.H. 13, 18 (2019); see provide an adequate record of its reasoning sufficient for a reviewing court to review of a board’s decision presupposes that the board has made findings that and administrative rules. See N.H. Admin. R., Per 1003.08. Our standard of PAB found that the petitioner violated numerous DOC policies and procedures policy and rule violations were inconsistent or unsupported by the record. The [¶14] The petitioner also argues that the PAB’s findings regarding her

violation of either or both of those statutes. and remand for the PAB to consider whether the petitioner’s termination was in RSA chapter 98 - E, it erred as a matter of law. Accordingly, we vacate its order consider whether the petitioner’s termination violated RSA chapter 27 p. 5 5 - E or