Appeal of Town of Barnstead

The New Hampshire Public Employee Labor Relations Board (hereinafter “PELRB” or “Board”) did not err in finding that the positions of Police Lieutenant, Police Sergeant, Police Officer, Fire Rescue Captain, Fire Rescue Lieutenant, Firefighter-EMT, and Police Secretary/Clerk share a community of interest within the meaning of RSA 273-A:8, I and PUB 302.02 such that it is reasonable for them to negotiate jointly. In making its decision to certify the bargaining unit, the Board did not misapply the applicable law, nor did it make findings of material fact unsupported by the record.

To succeed on appeal, the Appellant must show that the PELRB decision is unlawful or clearly unreasonable. Appeal of Town of Newport, 140 N.H. 343, 345 (1995). All findings of the Board upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable. Id.; see also RSA 541:13 (1974). It is not the function of this court to engage in a de novo review of the evidence in PELRB determinations, but [it] has consistently required record support for its decisions, and [we] will reverse the PELRB’s decision if the record fails to support findings necessary to the determinations. Id at 346 (citing Appeal of Bow School District, 134 N.H. 64, 71, 588 A.2d 366, 371 (1991)).

The principal consideration in determining an appropriate bargaining unit is whether there exists a community of interest in working conditions such that it is reasonable for the employees to negotiate jointly. Appeal of Town of Newport, 140 N.H. 343, 345 (1995). RSA 273-A:8, I provides the framework for determining a bargaining unit. The Board or its designee shall determine the appropriate bargaining unit and shall certify the exclusive representative thereof when petitioned to do so under RSA 273-A:10. In making a determination the board should take into consideration the principle of community of interest. The community of interest may be exhibited by one or more of the following criteria, although is not limited to such: (a) Employees with the same conditions of employment; (b) Employees with a history of workable and acceptable collective negotiations; (c)Employees in the same historic craft or profession; (d) Employees functioning within the same organizational unit. See RSA 273-A:8, I. The PELRB rules provide the following additional criteria for determining whether a community of interest exists: (1) a common geographic location of the proposed unit; (2) the presence of: (a) Common work rules and personnel practices; and (b) common salary and fringe benefits structures; and (3) the self-felt community of interest among employees. See Pub 302.02(b).

The statutory framework which guides PELRB decisions is flexible and gives much discretion to the PELRB’s expertise. Appeal of University

System of New Hampshire, 131 N.H. 368, 374 (1988). It is important to note that the statute and regulation require only that certain factors may be considered in determining whether a community of interest exists. Id. Under the statute and regulations, the PELRB need not find each criterion satisfied in order to find a community of interest exists. Professional Fire and Police Officers Association of Bedford and Town of Bedford, PELRB Decision No. 2022-068 (citing Appeal of Town of Newport, supra, 140 N.H. at 352 (1995)). Appendix A, pp. 160-177. Moreover, the clear and unambiguous language of RSA 273-A:8 indicates that satisfaction of one of the criteria is sufficient to establish a requisite community of interest. See RSA 273-A:8, I.

In this matter, the Board did not misapply the community of interest analysis used in Appeal of Town of Newport nor did it fail to properly apply the standard as defined by statute RSA 273-A:8, I. There exists a community of interest among the position titles within the certified bargaining unit because these employees function within the same organizational unit and share the same conditions of employment. This is true notwithstanding the fact that the unit consists of positions in different departments.

All employees in the proposed bargaining unit function within the same organizational unit, the Town of Barnstead. See generally Appendix A, pp. 25-47 and pp. 75-151. All employees in the proposed unit are covered by the same personnel rules, policies, and evaluation and grievance procedures. Appendix A, pp. 75-151. Employee benefits are determined by the Board of Selectmen. Appendix A, pp. 75-151 and pp. 32-39. Additionally, pay raises and promotions for all positions in

the unit are approved by the Board of Selectmen. Appendix A, p. 87; p. 124; and pp. 32-39.

Moreover, all employees of the proposed unit work in the same geographic location in Center Barnstead, in two buildings that abut a corner lot of land. Appendix A, pp. 32-47. The police station and "center" fire station are the two buildings where these employees work, and are a stone's throw away from each other. Appendix A, pp. 32-47. The police station has a second (driveway) entrance that goes through the parking lot of the fire station. Appendix A, pp. 32-47. The police station and "center" fire station have different mailing addresses because the buildings face different streets, but nonetheless abut each other on a corner lot. Appendix A, pp. 32-47. The second fire station in town located at 305 Parade Road is not in service, is used to store equipment, and is available for rent as a function hall/community room. Appendix A, pp. 32-41; pp. 45-47.

Although the day-to-day duties of the employees in the proposed unit may differ, all of them are public safety employees serving to protect the lives and property of the residents of the Town of Barnstead. Appendix A, pp. 32-47; pp. 25-31, ¶ 5, 8, 9, 10, 14, 15, 16, and 21. For example, testimony in the record of police and fire employees similarly state that, "police and fire personnel regularly and routinely interact with one another when performing critical duties at accidents, fire scenes, and overall on a regular basis. Employees of both departments respond to calls dispatched for 'emergency medical services' ("EMS"). Appendix A, pp. 32-47.

Additionally, employees of the proposed unit have a strong self-

felt community of interest, as police and fire personnel who work in the same field of public safety and perform critical public safety functions for the Town. Appendix A, pp. 32-47. In Barnstead, employees of both the fire and police departments are involved and required to work town-sponsored events, such as the annual Memorial Day parade, to perform critical public safety functions on behalf of the Town. Appendix A, pp. 32-47. Moreover, not only do employees from both departments routinely respond to emergency calls as a matter of practice, but also regularly work hand in hand to assist due to staffing levels. Appendix A, pp. 32-47.

The terms and conditions of employment of all employees in the proposed bargaining unit are governed by the same Personnel Policies and Procedures Manual for Town of Barnstead, established by the Board of Selectmen, which covers, among other things, common workplace rules and procedures such as pay periods, workweek hours, overtime, breaks and meal periods, time off, including holidays, vacation, sick, personal and other leaves, compensation ranges/wage matrix, medical and dental benefit plans, short/long term disability coverage, performance evaluations, retirement plan, departmental motor vehicle policy, disciplinary process/progressive discipline, and the grievance/dispute resolution procedure. Appendix A, pp. 25-31; pp. 75-151; pp. 32-52. More importantly, these terms and conditions of employment are common subjects of collective bargaining for unionized employees and are generally the topics covered by collective bargaining agreements. Here, the aforementioned personnel practices apply to all employees in the proposed unit.

The Town Administrator, Karen Montgomery, stated in her affidavit that the police and fire departments operate on different shift structures-the fire department operates on a twenty- four (24) hour basis and utilizes full-time, part-time, on-call, and per diem shift structures, while the police department operates on a forty (40) hour week. Appendix A, pp. 32-52. Due to current staffing levels, the police department currently does not operate on a twenty-four (24) hour basis and, instead, has an "on call" shift that covers the hours of 3:00AM to 7:00AM. Appendix A, pp. 42-47. Notwithstanding this, employees of both departments have a self-felt community of interest because they regularly interact on the job and work hand in hand when responding to emergency calls no matter the time of day. Appendix A, pp. 32-47. Unlike the facts in Appeal of Town of Newport wherein the Court found no community of interest between fire lieutenants and other town employees in Newport’s highway, cemetery, recreation, and water & sewer departments, employees of the unit in this case (whether fire or police department and regardless of rank) frequently work together and during the same shift. Appeal of Town of Newport, 140 N.H. 343, 666 A.2d 954 (1995); Appendix A, pp. 32-47. This is true even though fire department personnel generally work two (2) twenty- four (24) hour shifts and police department personnel work four (4) ten (10) hour shifts per week. Appendix A, pp. 32-47. Regardless of rank, with the exception of Police Chief, Fire Chief, and Deputy Fire Chief, employees in the proposed unit physically respond to the calls during their shift. Appendix A, pp. 32-47. In addition, both departments operate outside regular business hours despite the “differing shift

structure.” In contrast with Newport, this is not a situation where fire and police department employees feel they have “little in common” with each other.

In Newport, the Court reversed the PELRB’s finding of community of interest between fire lieutenants and other employees in Newport’s highway, cemetery, recreation, and water & sewer departments because the fire lieutenant’s work schedules differed from those of the public works employees. Id at 354. Moreover, in Newport, the fire lieutenants had worked under a fire department collective bargaining agreement for at least six years prior to the petition and were operating under the status quo at the time of the hearing. Id. Therefore, they were operating under terms and conditions of employment different from those applicable to the rest of the unit. Id.

Barnstead’s Town Administrator stated in her affidavit that while the Town has adopted a common set of personnel policies that apply to all Town employees, the Police Chief and Fire Chief have separately implemented standard operating procedures (“SOPs”) that are department specific and apply only to personnel of that department. Appendix A, pp. 48-52. However, the existence of SOPs and separate SOPs for the police and fire departments have no bearing on the community of interest determination. The PELRB has opined that the fact that police and fire departments have separate SOPs is of no consequence because SOPs are usually established unilaterally by an employer and are not a mandatory subject of collective bargaining. Professional Fire and Police Officers Association of Bedford and Town of Bedford, PELRB Decision No. 2022-

068 (citing RSA 273-A:8, I and Pub 302.02(b)); 1 Appendix A, pp. 160- 177. The Town Administrator also noted in her affidavit that education, training, certification, and physical fitness requirements among police officers, firefighters, and paramedics differ and are "profession specific." Appendix A, pp. 48-52. However, employees of the proposed unit offered testimony of similarities in training for both Barnstead police and fire department personnel.

For example, there was a “wound packing” training as well as a tourniquet training that police and fire attended. Appendix A, pp. 32-41 and pp. 45-47. The Town requires employees of the police and fire departments to have basic skills to treat wounds and all are expected to act accordingly when responding to EMS calls. Appendix A, pp. 32-41 and pp. 45-47. The Town offered an active shooter training exercise for the police department and invited employees of the fire department. The parties stipulated to the fact that all employees in the petitioned for unit are required to undergo specialized training, either in law enforcement, fire suppression or emergency rescue capacities. Appendix A, pp. 25-31. Regardless, when determining a community of interest, the focus must necessarily be on similarities, not the differences, between the positions in a proposed bargaining unit. Professional Fire and Police Officers Association of Bedford and Town of Bedford, PELRB

Decision No. 2022-068 (citing RSA 273-A:8, I and Pub 302.02(b)). See also State Employees’ Association of NH, Inc., SEIU Local 1984 and Plymouth State University, PELRB Decision No. 2020-107; Appendix A, pp. 160-177 and pp. 196-209. The fact that there may be differences in bargaining unit positions’ training requirements or specific job duties do not preclude the formation of a cohesive bargaining unit that is otherwise appropriate under RSA 273-A:8, I and Pub 302.02(b). Appendix A, pp. 160-177 and pp. 196-209.

Unlike the fire lieutenants in Newport, the fire and police employees in this case, among other things, operate under the same terms and conditions of employment, regularly interact with each other, have the same salary and fringe benefit structures and personnel practices, and work in the same geographic location. It is clear that the facts and evidence in the present case significantly differ from Newport. As such, the Board properly found a community of interest between positions in the bargaining unit, as there is ample evidence in the record to make such a determination and to support a community of interest finding. II. The Board’s Prior Decision in the 2006 Town of Barnstead Case Is Not Analogous to The Current Barnstead Case and Holds No Precedential or Probative Value Because The 2006 Petition Was Dismissed for Insufficient Evidence in The Record to Make a Community of Interest Determination.

The Board’s 2006 decision in the matter of AFSCME Council 93, Barnstead Police and Fire Employees v. Town of Barnstead (PELRB Decision No. 2006-227) has no bearing on the current case, nor did it preclude the Union from filing the current petition for certification with

the PELRB last year. Appendix A, pp. 152-159. The dismissal of AFSCME’s petition in 2006, which sought to create a new bargaining unit comprised of certain positions in Barnstead’s police and fire departments, is not determinative of all subsequent petitions for certification of a unit consisting of similar positions in Barnstead. This is especially true given that evidence in the record from the 2006 petition differs significantly from the current record. The Board was unable to make a community of interest determination in 2006 and dismissed the petition accordingly. Therefore, the Appellant’s reliance on AFSCME Council 93, Barnstead Police and Fire Employees v. Town of Barnstead (PELRB Decision No. 2006-227) is misplaced. Likewise, the Appellant’s assertion that the PELRB decision in the current case is unlawful solely because the Board previously dismissed a similar petition for virtually the same positions filed by the Union 17 years ago is baseless.

In 2006, the PELRB denied the Union’s petition for certification of a unit consisting of police and fire department employees in Barnstead due to lack of evidence in the record. AFSCME Council 93, Barnstead Police and Fire Employees v. Town of Barnstead (PELRB Decision No. 2006- 227); Appendix A, pp. 152-159. In its decision, the Board made it abundantly clear that the petition was dismissed because there was insufficient evidence in the record to make a community of interest determination. In the 2006 decision, the Barnstead hearing officer did not dismiss the petition to form the proposed bargaining unit because municipal police and fire employees cannot, as a matter of law, have a sufficient community of interest. Rather, the hearing officer dismissed the 2006 petition because of the union’s failure to present adequate evidence

on community of interest. Professional Fire and Police Officers Association of Bedford and Town of Bedford (PELRB Decision No. 2022- 068); Appendix A, pp. 160-177.

Notably, the 2006 Barnstead decision indicated that the statute does not authorize the PELRB to employ a different or lower community of interest standard in situations where the overall number of employees in particular departments is low and banding together employees from different departments is necessary in order to meet the ten employee requirement imposed by RSA 273-A:8, I(d). On the other hand, neither the statute, nor PELRB decisions, nor New Hampshire Supreme Court decisions bar, as a matter of law, the combination of employees from different departments (such as police and fire) provided the other requirements of the statute are met. AFSCME Council 93, Barnstead Police and Fire Employees v. Town of Barnstead (PELRB Decision No. 2006-227); Appendix A, pp. 152-159. Barnstead resolved the petition in that specific case, not the issue of community of interest in all subsequent petitions involving police and fire employees. Professional Fire and Police Officers Association of Bedford and Town of Bedford, supra (PELRB Decision No. 2022-155); Appendix A, pp. 160-177.

Community of interest determinations are a fact intensive process, and such determinations must be made on a case by case basis. AFSCME Council 93, Barnstead Police and Fire Employees v. Town of Barnstead (PELRB Decision No. 2006-227); Appendix A, pp. 152-159. In 2006, the evidence in the record to support a community of interest finding consisted of the parties’ joint stipulation of facts and affidavits of the then police and fire chiefs. The 2006 petition sought certification of several

positions in the police and fire departments, however there is a difference in titles and a few additional positions compared to those positions sought in the 2023 petition. The hearing officer opined that the stipulation in 2006 was, for the most part, a recitation of job duties, responsibilities, activities, and structure of the police and fire departments. More specifically, the hearing officer found that a stipulation stating, “on occasion, police department employees take meal breaks at a fire station” and “police and fire personnel regularly interact in performing their respective duties, ” standing alone, or in conjunction with the rest of the stipulations in that record, were not enough to establish the requisite community of interest. In 2006, there was no testimony in the record of employees holding positions in the petitioned-for unit. Also, the 2006 joint stipulation of facts differs significantly from the parties’ joint stipulation of facts in the current record. More importantly, today however, unlike the record in 2006, the PELRB had testimony (affidavits) to consider from actual Barnstead employees working in the various job classifications in the petitioned-for unit. The current record includes testimony (affidavits) of five (5) employees, the Town Administrator, the 2023 Personnel Policies and Procedures Manual for the Town of Barnstead, joint stipulation of facts, job descriptions, and standard operating procedures for the police and fire departments. The parties also submitted briefs on the matter containing their respective legal arguments. The employee affidavits contain information that addresses the statutory framework that guides PELRB decisions for determining bargaining units. The employee affidavits address the “self-felt” community of interest among employees of the proposed unit and contain information regarding various work

functions and working conditions of employees in the unit. The policies and procedures manual likewise evidences a great deal of information considered when making a community of interest determination. The current record undoubtedly contains sufficient evidence needed to make a community of interest finding consistent with RSA 273-A:8, I; N.H. Admin. Rules, Pub 302.02(b); and the New Hampshire Supreme Court decision in Appeal of Town of Newport.

For the foregoing reasons, the record in the current case contains evidence that was not otherwise before the PELRB in 2006. In deciding the current case, the Board properly found there to be no precedential or probative value in its 2006 decision.

III. The Board’s Prior Decisions Certifying Mixed Units (Including Positions in Police and Fire Departments) Do Hold Precedential Value, Whether Contested by The Employer or Not.

In the present case, the Board appropriately referenced other Board decisions in the “discussion” section of PELRB Decision No. 2023-242 to note the existence of other certified units in the State of New Hampshire that include police and fire employees in the same bargaining unit. Appendix A, pp. 3-18. In deciding this case, the Board did not merely certify the current unit based solely on the fact that other police and fire bargaining units exist throughout the State. Rather, the Board referenced other decisions as examples of police and fire employees in the same unit to support its assertion that, “differences in bargaining unit positions’ training requirements or specific job duties do not preclude a formation of a cohesive bargaining unit that is otherwise appropriate under RSA 273-

A:8, I and Pub 302.02(b).” AFSCME Council 93 and Town of Barnstead, PELRB Decision No. 2023-242; Appendix A, pp. 3-18. The Board went on to say, “there are numerous examples of public safety, as well as general municipal bargaining units containing police, fire, and clerical employees with diverse training/certifications and job duties, that have been bargaining collectively over a number of years which resulted in numerous successive agreements on terms and conditions of employment.” Id. Making such reference to other Board decisions is probative of whether or not it is reasonable for police and fire employees to negotiate jointly. Appeal of Town of Newport, 140 N.H. 343, 352 (1995).

Contrary to the Appellant’s assertion that the Board’s decision in the present matter on appeal, “cites a series of Board orders approving uncontested petitions to certify bargaining units without analysis of community of interest factors, ” at least one of the decisions cited was contested by the employer and includes a community of interest analysis. Londonderry Executive Employee Association and Town of Londonderry, PELRB Decision Nos. 2001-118 and 2004-086 (approving unit containing police chief, fire chief, police prosecutor, and department heads of various Town departments); Appendix A, pp. 178-191.

It is important to note that a sufficient community of interest among employees is statutorily required even in situations where the certification of a proposed bargaining unit is agreed upon by the affected employer and no objection to the petition is filed. See RSA 273-A:8; N.H. Admin. Rules, Pub 302.01 (a). In order to certify any proposed bargaining unit, the PELRB must ensure the unit is consistent with the purposes of

RSA 273-A regardless of whether the proposed unit is contested by the employer or not. AFSCME Council 93, Local 3657 and Town of Merrimack, PELRB Decision Nos. 2010-014 and 1994-48 (containing, among others, police lieutenants, police captains, fire deputy chief, fire captain, communications supervisor, and administrative officer); Appendix A, pp. 192-195.

As such, for the Appellant to say that prior Board decisions certifying mixed bargaining units hold limited precedential value is without merit.

IV. The Board’s Findings of Fact in This Matter Are All Supported by Evidence in The Record.

The Board’s findings of fact are clearly supported by the evidence in the record, despite what the Appellant has alleged. In its decision, the PELRB found, upon thorough review of the Town’s and Union’s evidence, the Town’s arguments to be unpersuasive and insufficient to outweigh the evidence that proves the existence of a community of interest in this case, such that it is reasonable for employees in the unit to negotiate jointly. AFSCME Council 93 and Town of Barnstead, PELRB Decision No. 2023-242; Appendix A, pp. 3-18. The Appellant’s claim that the Board did not place enough emphasis on the existence of different standard operating procedures (SOPs) for the police and fire departments is without merit. The very fact that the decision mentions the SOPs throughout the “findings of fact” and “discussion” sections means that such evidence was not disregarded by the hearing officer, as alleged.

The Appellant is mistaken to assert that separate SOPs for Barnstead’s police and fire departments “outweigh” the significance of the Personnel Policies and Procedures Manual that is applicable to all Town employees, including those in the bargaining unit. In fact, the Board correctly found that the terms and conditions of employment of all employees in the unit are governed by the Manual, established by the Town Board of Selectmen, which covers, among other things, compensation, hours, of work, reimbursable expenses, overtime, compensatory time, break periods, holiday, vacation, sick, and other leaves, medical and dental benefit plans, disability coverage, personal dress, personnel records, discipline procedure, promotions, transfers, performance appraisals, and dispute resolution procedure. AFSCME Council 93 and Town of Barnstead, PELRB Decision No. 2023-242; Appendix A, pp. 3-18. With that, the Board determined that employees of the proposed unit have the same conditions of employment. Id. The Board further stated that these terms and conditions of employment are common subjects of collective bargaining for unionized employees and are usually covered by collective bargaining agreements. Common personnel practices and salary and fringe benefit structures, set for in the Manual, apply to all employees in the unit. See Admin R. Pub 302.02(b)(2). In addition, employees in the proposed unit work in virtually the same geographic location, frequently interact with each other at work, including when attending the scene of incidents and training, and have a self-felt community of interest. It was based on these findings that the Board determined employees in the unit share a community of interest in working conditions such that it is reasonable for them to negotiate jointly.

As such, for the Appellant to say that the “dissimilarities” between police and fire department employees will essentially require the Town to bargain separately with each group over their “distinctly different” terms and conditions of employment is nothing more than an inaccurate, baseless assertion.

In its decision, the Board specifically stated that the evidence in [the] record is insufficient to prove that the creation of the unit will have a negative effect on government operations. AFSCME Council 93 and Town of Barnstead, PELRB Decision No. 2023-242; Appendix A, pp. 3- 18. It has long been recognized that the PELRB rules provide that the PELRB may take [such] factor into account but is not required to. Appeal of University System of New Hampshire, 131 N.H. 368, 375 (1988) citing N.H. Admin. Rule, Pub 302.02. Nothing in RSA 273-A:8 or PELRB rules requires that the employees in the bargaining unit have the same duties/responsibilities or the same workload. State Employees’ Association of NH, Inc., SEIU Local 1984 and Plymouth State University, PELRB Decision No. 2020-107 (citing UNH Law Faculty Union and University of New Hampshire, supra, PELRB Decision No. 2015-027); Appendix A, pp. 196-209. Here, although day-to-day duties of the employees in the bargaining unit may differ, all are public safety employees serving to protect the lives and property of the residents of the Town of Barnstead. This is also true notwithstanding the fact that certain aspects of the job for police and fire personnel are defined by State statute. That does not have any bearing on the self-felt community of interest here, or the similar terms and conditions of employment among employees in the bargaining unit. As evidenced by the record, employees from both

departments can absolutely bargain collectively over wages, hours, and other terms and conditions of employment.

The Appellant has failed to articulate how the Board’s ruling in the present matter was erroneous or constituted a clear abuse of discretion. Likewise, the Appellant has failed to demonstrate how this group of employees is so different that they are unable to negotiate jointly for purposes of collective bargaining. The PELRB has long recognized that the basic premise of RSA Chapter 273-A is to permit public employees to organize, and all doubts raised concerning the propriety of organization should be resolved consistently with a presumption in favor of collective bargaining. AFSCME, AFL-CIO, Council 68 (Police and Fire Dept. Employees) and Town of Plymouth, NH, PELRB Decision No. 82-13 (containing Secretary, Patrolmen, Investigative Officer, Sergeants, Firefighters, and Deputy Fire Chief); Appendix A, pp. 210-212.

The decision of the PELRB approving the proposed unit “because all employees in the bargaining unit share a community of interest in working conditions such that it is reasonable for them to negotiate jointly” is based on evidence in the record and constitutes a reasonable interpretation and application of RSA 273-A:8 and Rule 302.02. The Board’s ruling was not erroneous, nor did it constitute a clear abuse of discretion.

WHEREFORE, the Appellee, AFSCME Council 93, respectfully requests that this Honorable Court not substitute its judgment for that of the PELRB, affirm the PELRB’s determination that the proposed bargaining unit of employees from Barnstead’s police and fire departments is an appropriate unit, and uphold the certification.

The Union respectfully requests that Abigail M. Geier, Esq. be allowed to present oral argument before the Court.

I hereby certify that on this 9th day of September, 2024, I filed the foregoing Opposing Brief of Appellee, AFSCME Council 93, with the New Hampshire Supreme Court by using the Supreme Court’s electronic filing system and caused a true copy of the foregoing to be served on Matthew H. Upton, Esq. and Nicholas J. Blei, Esq., counsel for the Town of Barnstead, by means of the Court’s electronic filing system.

I hereby certify that the foregoing Opposing Brief of Appellee, AFSCME Council 93, complies with the word limitation prescribed by the New Hampshire Supreme Court Rule 16(11) and contains approximately 7, 851 words. This brief also complies with the typeface and type style requires of Supreme Court Rule 16(11) and has been prepared in font size 13, type style Times New Roman, with a line space setting of 1.5.