2026 N.H. 21, Appeal of N.H. Div. of State Police

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by email at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: https://www.courts.nh.gov/our-courts/supreme-court. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Personnel Appeals Board Case No. 2025-0344 Citation: Appeal of N.H. Div. of State Police, 2026 N.H. 21 APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE (New Hampshire Personnel Appeals Board) Argued: March 10, 2026 Opinion Issued: May 15, 2026 John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Meaghan A. Jepsen, attorney, on the brief and orally), for the New Hampshire Division of State Police. Krupski & Beaudoin, PLLC, of Concord (Marc G. Beaudoin on the brief and orally), for the respondent, Thomas Owens. DONOVAN, J. [¶1] The New Hampshire Department of Safety, Division of State Police (Division) appeals an order of the Personnel Appeals Board (PAB) awarding the respondent, Thomas Owens (employee), “his expected and anticipated overtime back pay” following the PAB’s earlier reversal of the employee’s termination. See RSA 273-D:3, V (Supp. 2025); RSA 21-I:58, I (2020) (repealed 2024).1 On appeal, the Division argues that overtime wages cannot be awarded as “salary loss suffered” under RSA 273-D:3, V. We agree and, accordingly, reverse and remand. I. Facts [¶2] The PAB found, or the record supports, the following facts. In 2016, the Division hired the employee as a state trooper. In 2018, the Division began investigating him for adjusting his timecard to accommodate an additional extra-duty detail shift in violation of the Division’s policies. The Division terminated the employee in 2019, citing both the timecard alteration and the employee’s conduct during the investigation. [¶3] The employee appealed to the PAB, which reversed his termination as “unwarranted by the alleged conduct and unjust in light of the facts in evidence.” See N.H. Admin. R., Per-A 207.12(b)(3), (4). The PAB found that although the employee had violated the Division’s rules, he was “credible” and merely displayed “poor judgment,” “inattention to detail,” and “poor time management.” It therefore reinstated his employment and imposed a twenty- day suspension without pay. After the Division appealed to this court, we affirmed the PAB’s reinstatement order. Appeal of N.H. Div. of State Police, 175 N.H. 1, 4, 5-6 (2022). [¶4] The parties subsequently disagreed as to whether the PAB’s reinstatement order entitled the employee to receive back pay and benefits.2 After the employee moved for clarification before the PAB, the PAB issued an order explaining that it intended “that the reinstatement of the [employee] include back pay less any mitigation and less the 20-day suspension without pay.” The PAB therefore directed the Division to provide back pay and benefits. [¶5] The parties then disputed, among other things, whether the calculation of the employee’s back pay should include pay for extra-duty detail and other overtime work. The Division moved for a hearing on back pay compensation before the PAB. Following a hearing, the PAB awarded the employee “his expected and anticipated overtime back pay during his period of termination.” The PAB estimated this figure using the average of the employee’s overtime earnings in 2017 and 2018. The Division moved for a rehearing, which the PAB denied. This appeal followed. 1 In 2024 — after the PAB’s initial reinstatement of the employee, but before its subsequent order awarding him overtime pay — the legislature repealed RSA 21-I:58 and reenacted the language at issue in this case as RSA 273-D:3, V. This language remains substantively unchanged. Therefore, this opinion refers to the statute’s current version. See N.H. Municipal Workers’ Comp. Fund v. Smith, 124 N.H. 526, 529 (1984). 2 The employee moved out of state following his initial dismissal and did not rejoin the Division after his reinstatement. II. Analysis [¶6] On appeal, the Division argues that the PAB erred by determining that under RSA 273-D:3, V, the employee could receive overtime wages as part of his back pay award. RSA 541:13 (2021) governs our review of the PAB’s decision. See RSA 273-D:3, VI (Supp. 2025); Appeal of N.H. Div. of State Police, 175 N.H. 229, 234 (2022). “The Division, as the appealing party, has the burden to show that the PAB’s decision ‘is clearly unreasonable or unlawful.’” Appeal of N.H. Div. of State Police, 175 N.H. at 234 (quoting RSA 541:13). “The PAB’s findings of fact are deemed prima facie lawful and reasonable.” Id. “We will not vacate or set aside the PAB’s decision except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that its order is unjust or unreasonable.” Id. “However, we review the PAB’s interpretations of statutes and administrative rules de novo.” Id. [¶7] “When interpreting both statutes and administrative rules, we ascribe the plain and ordinary meanings to the words used.” Id. In addition, “we give effect to all words in a statute and presume that the legislature did not enact superfluous or redundant words.” Appeal of Vasquez, 175 N.H. 450, 453 (2022). “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Appeal of Port City Air Leasing, Inc., 177 N.H. 149, 152 (2024), 2024 N.H. 71, ¶6. “Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole.” Id. [¶8] We first consider whether RSA 273-D:3, V confines the PAB’s authority to calculate a back pay award. RSA 273-D:3, V provides, in relevant part: If the [PAB] finds that the action complained of was taken by the appointing authority . . . in violation of a statute or of rules adopted by the director, the employee shall be reinstated to the employee ’s former position or a position of like seniority, status, and pay. The employee shall be reinstated without loss of pay, provided that the sum shall be equal to the salary loss suffered during the period of denied compensation less any amount of compensation earned or benefits received from any other source during the period. . . . In all cases, the [PAB] may reinstate an employee or otherwise change or modify any order of the appointing authority, or make such order as it may deem just. (Emphasis added.) [¶9] We have previously construed nearly identical language appearing in this provision’s predecessor statute, RSA 21-I:58, I. See Appeal of N.H. Div. of State Police, 171 N.H. 262, 267 (2018) (interpreting RSA 21-I:58, I (2012)). In doing so, we explained: “The statute establishes two categories of relief a permanent employee may receive from the PAB: one mandatory and one discretionary.” Id. The PAB must reinstate an employee “if the action complained of was taken by the appointing authority for an impermissible purpose, or violated a statute or applicable administrative rule.” Id. In all other cases, the PAB retains discretion …