Appeal of Claudia Cass

II. Whether the Board’s factual findings were supported by sufficient evidence.

This appeal arises from a decision of the New Hampshire Personnel Appeals Board (PAB)—issued June 26, 2024 —affirming the decision of Warden Michelle Edmark and the New Hampshire Department of Corrections (DOC) to terminate Appellant Claudia Cass’s 1 employment as

On December 16, 2021, CO Cass was employed as a correctional officer within the Men’s State Prison. She reported for work at the beginning of the third shift, which ran from 11pm on December 16 to 7am on December 17. NHPAB 0068, Tr. 5/1/24 P.205 -15; 5/8/24 P.61. She claims that u pon arriving she assessed the prison to have what she determined to be an unacceptably low staffing level. Id. She claimed the staffing levels were the worst she had ever seen them and were drastically lower than they had been on previous weekend s. Id. However, this description of the situation on December 16 was starkly different from the description provided by Lt. Rubio, who was serving as shift commander at the Prison at the time. Tr. 5/8/24 P.81, 84. Lt. Rubio explained that the staff he had availab le to work the night of December 16 th was one, or maybe two, people below what was at that time standard on weekend third shift. Id.

At some point during third shift on December 16/17, CO Cass called Lt. Rubio and inquired about moving breakfast service —“chow”—to first shift given that third shift was staffed below minimums. Tr. 5/8/24 P.81-84. Lt. Rubio asked CO Cass why she believed chow needed to be moved. Id. CO Cass offered Lt. Rubio no explanation other than restating the fact that the staffing levels were below minimum. 3 Id. Notably, CO Cass did not communicate to Lt. Rubio any concern that she and her coworkers were unsafe. Id. Given this lack of offered explana tion, Lt. Rubio told CO Cass that he would not be moving chow to first shift. Id. However, Lt. Rubio did offer to come down to the unit in which CO Cass was working when it came time to release inmates for medication and chow if CO Cass felt more staff were needed. Id. CO Cass declined this offer, telling Lt. Rubio she found his regular practice of coming inside the prison to assist while also serving as the shift commander to be inappropriate. 4 Id. Later that morning, CO Cass spoke to Lt. Rubio a second time. Tr. 5/8/24 P.85. This time they discussed staffing issues generally, DOC’s ongoing recruitment efforts, and various ways to improve the staffing situation given that they both agreed it is not ideal to be regularly operating the Prison with less than the minimum number of staff set by policy. 5 Id. A few days later CO Cass sent an email to Warden Edmark, and later Assistant Commissioner Raymond, in which she expressed concerns she now concedes was inaccurate —that “policy dictates when we are below minimum, we are in lockdown.” Id.; Tr. 5/8/24 P.43-44. She then wrote:

staffing. It is not safe, it violates policy, and it is irresponsible.

NHPAB 0073 (emphasis added).

CO Cass clearly testified before the PAB that this statement had not been misinterpreted. Tr. 5/1/24 P.242. It was not a poorly chosen hyperbole. CO Cass stood by this statement and testified that, had she been left on duty in December of 2021 or were she to be placed on duty any time in the future, and the prison staffing levels fall below what she defined as “critical minimum” levels, she would refuse to release the inmates even if directly ordered to do so by fully informed superior officers. Id.; Tr. 5/8/24 P.49-50, 58-60, 68-69. She was also very clear that “critical minimums” were something different than the minimums contained in NHDOC policy. Tr. 5/1/24 P.238 -39, 242, 246 -67; Tr. 5/8/24 P.47 -49. “Critical minimums”—as the phrase was used by CO Cass—reference d some undefined numbers to be determined individually by CO Cass on a case -by- case basis. Id.

After receiving CO Cass’s emailed ultimatum, Warden Edmark sent two members of CO Cass’s direct chain of command —Captain Morin and Lieutenant Carver—to meet with CO Cass and discuss her concerns. Tr. 5/1/24 P.34, 89, 130-31; NHPAB 0068. Captain Morin testified that during this meeting CO Cass made clear her intention to refuse to release residents when the staffing levels were at a point which she independently deemed unacceptably low, i.e. the “critical minimum.” Tr. 5/1/24 P.35-36, 48-49, 76, 78-79. She further refused to commit to calling her shift commander before taking matters into her own hands, thereby preventing the shift commander from having the opportunity to address her concerns in real time. 6 Id.

Following this meeting, Warden Edmark placed CO Cass on paid suspension pending further investigation. NHPAB 0068. When placing her on suspension, Warden Edmark attempted to discuss the situation directly with CO Cass, but CO Cass refused to engage Warden Edmark in conversation. Tr. 5/8/24 P.10-11.

An internal investigation ensued and, d uring that investigation, CO Cass continued to make clear that, had she not been suspended, she would have followed through and refused to release the residents if this vague “critical minimum” number was not reached on any particular shift.

Following the completion of the internal investigation, NHDOC requested a fitness for duty evaluation. Tr. 5/1/24 P.141 -43. Warden

Edmark requested this evaluation because CO Cass’s behavior in issuing this kind of ultimatum seemed notably out of character and the Warden wished to ensure she had all the relevant facts before moving forward with the disciplinary process. Id. CO Cass’s fitness for duty evaluation concluded that CO Cass was fit for duty and had no psychological, emotional, or behavioral impairment which would affect her fitness for duty. NHPAB 0069.

CO Cass was provided a pre -disciplinary meeting which, by her own admission, she only minimally participated in and at which she continued to stick to by her plan to refuse to follow orders if she made an independent determination on any given day that staffing levels were insufficient. Tr. 5/8/24 P.26 -29. As a result, Warden Edmark concluded that she had no choice but to terminate CO Cass’s employment. Tr. 5/1/24 P.143 -45. The letter terminating CO Cass’s employment explained Warden Edmark’s disciplinary decision as follows:

decisions that exceeded your level of authority in your position as a Correctional Officer. You relied on an inaccurate interpretation of polic y and were not willing to accept correction by your supervisors. Throughout the administrative process you were unwilling to participate in any discussion or corrective action. The only outco me you would accept was one that gave you sole authority over operational decisions, eliminating your responsibility to use the chai n of command. Your actions are not reflective of the oath you took as a Corrections Officer to follow the orders of the Commissioner of Corrections and those of her designated representatives.

CO Cass appealed this termination decision to the PAB. The PAB declined to modify the termination decision, concluding: “The Appellant has failed to sustain her burden of proof to show the Appointing authority decision in the August 3, 2023, letter terminating her employment for the indicated reasons were unjust, unfair, or contrary to law.” NHPAB 1038. This PAB order is the subject of the current appeal.

CO Cass claims the PAB made four legal errors and nine factual errors in affirming DOC’s decision to terminate her employment. This brief will address each of these claimed errors separately, in the order in which they are raised, and explain why each fail s. When considering the details of these thirteen claimed errors, it is important to keep the broader picture in mind. The ultimate question before the PAB was whether CO Cass could establish that her termination was unlawful or unjust. CO Cass sought to meet this standard by claiming, as she does in this appeal, that DOC terminated her for raising concerns about safety within the prison and, therefore, her termination was unlawful and retaliatory. Cass Brief P.27. The problem with this argument is that CO Cass was not terminated for voicing her concerns. Speaking up and voicing concerns is not only allowed but encouraged with in DOC. Tr. 5/1/24 P.38, 88-89. Warden Edmark and Captain Morin both testified that they listened to CO Cass’s concerns, found them to make reasonable points, and that leadership took action to respond. Tr. 5/1/24 P.46 -47, 89, 119 -21, 129-31.

CO Cass was terminated because she “repeatedly communicated” her “intent to independently determine operational security decisions that exceeded her level of authority[.]” NHPAB 0080. She was terminated because she was “not willing to accept correction ” regarding her incorrect understanding of DOC policy and was unwilling “to participate in any discussion or corrective action.” Id. As Warden Edmark explained: “The only outcome you would accept was the one that gave you sole authority over operational decisions, eliminating your responsibility to use the chain of command. Your actions are not reflective of the oath you took as a Corrections Officer to follow the orders of the Commissioner of Corrections and those of her designated repres entatives.” Id. CO Cass’s response to Warden Edmark’s articulation of the reasons for her termination has consistently been to claim that it was appropriate, perhaps even obligatory, for her to refuse orders which she believes are unreasonably unsafe. See, e.g., Tr. 5/8/24 P.35. DOC does not now, nor has it ever, contested that law enforcement officers, including correctional officers, should not follow orders which are unlawful, immoral, or unethical. See, e.g., Tr. 5/1/24 P.138 -40. However, this exception is narrow. It does not include an authorization to disobey orders simply because a subordinate officer has determined following the order would, in her opinion, create an ‘unreasonably unsafe’ situation. CO Cass has offered no legal authority for such a proposition, which is unsurprising. Law enforcement and military organizations would cease to function if subordinate officers could disobey any order that brought with it safety risks the officer subjectively felt were ‘unreasonable.’ All law enforcement and military organ izations face some inherent risk to safety in many —if not most—of their day -to-day activities. Leadership is charged with determining the appropriate way to mitigate those inherent risks, and the chain of command is important to follow. The New Hampshire Department of Corrections is no different. See Tr. 5/1/24 P.138 -40; Tr. 5/8/24 P.44-46.

Section I of Appellant Cass’s brief raises four allegations of legal error. 8 However, as will be explained in detail below, the actions of the PAB with which CO Cass takes issue did not constitute legal errors.

The DOC understands the reasoning of CO Cass’s first claim to go as follows: ➢ In its ruling and order, the PAB wrote: “The Appellant, through counsel, in her written Closing Argument, raises issues under N.H. RSA Chapter 273 -E [sic], the Whistle Blower law, and under N.H. RSA 98 -E Public Employee Freedom of Expression,

➢ Because of this conclusion, we can assume that the PAB “failed to apply RSA 275 -E and RSA 98-E:2” in determining whether her termination was unlawful. Appellant’s Brief, P. 29-31. ➢ Failing to apply these provisions amounts to a misapplication of the PAB’s governing rules, which require the PAB to consider whether termination actions were unlawful and reinstate employees unlawfully terminated.

CO Cass’s claim fails because the PAB did not fail to consider the general legality of CO Cass’s termination as required by the PAB’s governing statute. Instead, the PAB simply declined to make any specific, enforceable finding under RSA 275-E and RSA 98-E:2. The parties agree that the PAB’s governing statute empowers the Board to determine whether an employee’s termination “was taken in violation of a statute or of rules adopted by the director, ” and, if so, the employee is to be reinstated. RSA 21-I:58. 10 The relevant administrative rules echo this authority and provide that the PAB may reverse a termination decision it determines to be “unlawful.” N.H. Admin. R. Per -A 207.12(b)(1).

Contrary to CO Cass’s claims, the PAB understood this authority and fulfilled it. The PAB concluded: “The Appellant has failed to sustain her burden of proof to show the Appointing authority decision in the August 3, 2023, letter terminating her employment for the indicated reasons were unjust, unfair, or contrary to law.” NHPAB 1038 (emphasis added). Those “indicated reasons” as outlined in the fact section above, included CO Cass’s repeatedly stated “intent to independently determine operational security decisions that exceeded [her] level of authority in [her] position as a Correctional Officer.” NHPAB 0080.

When the PAB wrote that claims “under N.H. RSA Chapter 273 -E [sic], the Whistle Blower law, and under N.H. RSA 98 -E Public Employee Freedom of Expression” fell “beyond the jurisdiction of this Board to consider and make any such determinations, ” the Board was not abdicating its duty to determine the lawfulness of CO Cass’s termination. NHPAB 1038. We know this for two reasons.

First, CO Cass argued in her motion to reconsider that this language represented an abrogation of the PAB’s duty. NHPAB 1041-43. The PAB denied th at motion, endorsing an explanation of their previous order as considering all relevant factual claims made by CO Cass to determine whether her termination was unlawful or unjust, but finding the PAB lacked jurisdiction to formally adjudicate claims und RSA 275-E and RSA 98-E. NHPAB 1072. 11 Such formal adjudications must be made through the filing of a civil suit. See RSA 275-E:2, II & RSA 98-E:4. Second, it is clear from the totality of the PAB’s order that the PAB did engage with the substantive arguments about the legality of CO Cass’s termination. These issues were largely raised by the PAB in the first instance when, in the context of ruling on DOC’s motion for summary judgment, the PAB expressed a belief that the allegations in CO Cass’s pleading “would, prima facie, arguably implicate concerns under RSA 275 - E: 2 and the common law of wrongful termination.” NHPAB 0289. Given this belief, the PAB directed the parties to focus their presentations at the upcoming hearing “on the tension between the expectation that public employees should follow established policies and procedures as established by the agencies they work for, and the countervailing rights of employees to object to practices which create legitimate safety concerns or questions of violations of law.” NHPAB 0289-90.

In responding to this directive, DOC put forward a case designed to establish that DOC did not act illegally, in bad faith, or in any way retaliate against CO Cass for her actions in raising safety concerns. See Tr. 5/1 P.8- 10. DOC presented evidence to the Board that Warden Edmark had a legitimate, lawful reason for terminating CO Cass. Id. DOC explained that the tension with which the PAB was concerned simply did not exist in this case, where CO Cass was terminated not for raising objections or concerns but for attempting to dictate how DOC manages the risks inherent in working within a correctional facility. NHPAB 0990-91. “Correctional officers are expected to follow established policies and procedures, but that expectation in no way limits their ability or freedom to object to practices they believe create safety concerns. ” Id.

The PAB generally agreed with these arguments, writing:

assignments, and/or notify and consult with the Warden on whether lockdown or other actions were advisable. The power and auth ority to institute lockdowns is not delegated to C Os. The Appellant, when asked by investigators how she’d handle future, similar low staffing levels, wouldn’t confirm her willingness to follow PPDs, her oath to adhere to prison procedures and/or orders. She maintained throughout the termination process her intent to lockdown her unit, even if prison commanders did not give permission should staffing levels become critically low, including during testimony to the Board.

NHPAB 1037 -38. The PAB found that Warden Edmark proceeded with terminating CO Cass’s employment because she and Commissioner Hanks “felt that they could not wait for Ms. Cass to take the action of l ocking down her unit on her own volition, which could jeopardize the safety of the entire prison[.]” NHPAB 1037.

The PAB did not, as CO Cass claims, “fail[] to address the Appellant’s retaliation claims” nor “disregard[]” her presentation of evidence regarding the low staffing levels of December 16/17. Cass Brief P.31. Instead, the PAB simply concluded DOC terminated CO Cass for legitimate, non -retaliatory reasons and those reasons did not include CO Cass’s choice to raise reasonable safety concerns. Tr. 5/1/24 P.119 -21. It was not, as CO Cass suggests, “incumbent on the PAB to determine whether the State proved th at the conditions on the 16th of December were safe and whether that was explained to the Appellant before termination took place.” Cass Brief P.32. CO Cass has a right to report when she sees concerning conditions and to express her object ion to practices which create legitimate safety concerns. What she does not have the right to do is dictate how DOC manages the risks inherent in working in a correctional facility.

The PAB did not commit legal error through any misapplication of their governing statutes. They simply did not find CO Cass’s allegations of retaliation credible and instead found credible DOC’s stated reasons for and the nature of CO Cass’s termination. 12

CO Cass claims that once the PAB determined that she did not violate PPD 1276’s requirement that employees obey oral orders of persistently refused to follow the legitimate directives of a supervisor in violation Per 1003.08(b)(13) 14 or that she was in dereliction of duty and failed to perform her assigned duties in violation of PPD 1276. 15 CO Cass claims: “The finding that the Appellant did not disobey an order precluded the other legal findings as a finding of disobedience to orders is a condition precedent to the other violations.” Cass Brief P.33. This is not correct. Whether or not an officer within a paramilitary organization has been issued and has failed to comply with a direct oral order is a fundamentally different question than whether a state employee has persistently refused to follow a legitimate directive. It is also a different question than whether a DOC employee has “willfully or negligently failed to perform” their duties. See NHPAB 0574 (defining Dereliction of Duty). DOC regulation s are clear that, while duties can be imposed by o rder, they also can be imposed by “regulation” or even by “custom.” Id. DOC regulations are also clear that dereliction of duty includes both a direct failure to perform assigned duties as directed but also

CO Cass’s third claim is that the PAB erred when it “failed to address whether the punishment of termination was a justifiable sanction for an anticipatory act of failing to follow orders that had not yet been given to the Appellant.” Cass Brief P.34. This claim is without merit. The PAB did not fail to address CO Cass’s claims. To the contrary, the PAB expressly found CO Cass’s termination —for failing to “follow the established chain of command, and repeatedly communicat[ing] verbally, and in writing, her intent to independently determine operational security decisions that exceeded her CO level of authority” —was not “unjust, unfair, or contrary to law.” NHPAB 1035, 1038. The PAB did not agree with CO Cass’s theory of the case, but it did not fail to rule on her claims.

CO Cass made extensive pretrial discovery requests, one of which sought incident reports, command logs, and housing unit logs from the Men’s State Prison in December of 2022. NHPAB 0288. This request was denied by the PAB after it unanimously concluded she “had not satisfied the requirements of Rule 206.09(F)(2)(a).” Id.

N.H. Admin. R. Per -A 206.09 provides the procedures for discovery before the PAB and prohibits the Board from ordering discovery unless the requester establishes: (a) “That he or she would be unable to sustain his or her burden … or establish his or her specific defense to a relevan t allegation without the additional formal discovery identified; and” (b) “That there exist exceptional circumstances beyond the control of the party, such as the unavailability of a witness.” CO Cass does not explain within her appellate brief how she met this standard.

What CO Cass does claim is that the PAB, in observing that DOC “does not appear to contest that staffing levels were unacceptable low, ” effectively established “a presumption of unreasonably unsafe conditions in the absence of evidence to the contrary by the State.” C ass Brief, P.35. No such presumption was created by the PAB’s ruling. The PAB’s order did nothing more than accurately observe that DOC did not seek to defend against CO Cass’s claims by contesting the fact that staffing levels within the prison were low in December of 2022. 16 At no point during this litigation has DOC claimed the prison was not understaffed in December of 2022. This is an objectively true and well -known fact. Whether staffing levels were low and whether conditions within the prison were “unreasonably unsafe” are two different questions. The former was uncontested and the later was irrelevant. As DOC explained in its closing argument:

prison]. How those risks are managed in the face of staffing shortages is not for a correctional officer like Ms. Cass to decide. NHDOC does the best they can with the resources available. Is the situation alw ays ideal? No. But the situation would be made far worse if commanding officers had to contend with correctional officers under their command making independent judgment calls about what orders they are and are not going to follow. …

This Board heard extensive testimony detailing NHDOC’s institutional responses to and strategies for management of l ow staffing situations. The situation within the prison is carefully managed by experienced law enforcement officers including Warden Edmark, her shift commanders, and her entire command team. There is no one size fits all plan of action or institutional modification which can be used to address the ever-changing environment within the Men’s Prison. That is why NHDOC has shift commanders an d a chain of command. Officers pass information up the chain and orders about how the mission will be completed in the safest way feasible given the totality of the circumstances come back down the chain of command. In this case CO Cass made clear that she was no longer willing to abide by the informed decisions of her superior officers. As a result, she was appropriately terminated.

CO Cass’s appeal to the PAB did not fail because she did not have access to documents which would establish the exact staffing levels within the prison in December of 2022. In fact, CO Cass put in evidence of estimated staffing levels on the relevant night, NHPAB 0562, and the PAB accepted them to establish that staffing levels were below “critical minimum, ” NHPAB 1036. CO Cass’s appeal failed, and this evidence became irrelevant, because the PAB determined DOC properly terminated CO Cass based u pon her stated “unwillingness to follow standard prison procedures … when she determined the level of staffing was below minimum and could endanger staff, or inmates.” NHPAB 1037 -38.

CO Cass claims that nine specific factual findings made by the PAB were made “in error, or otherwise unsupported by the record, or otherwise unreasonable.” Cass Brief, P.36 -44. As to all the claimed errors, CO Cass fails to articulate how or why the claims entitle her to reversal of the PAB’s ultimate conclusion. The PAB’s ultimate conclusion —that her termination was not unjust, unfair, or contrary to the law —was supported by sufficient evidence as articulated in the fact section and summary of argument above. So, any minor error with relation to the PAB’s factual findings would be harmless and would not justify reversal of the PAB’s order.

The PAB’s original ruling finds occurrences to have happened on December 20, 2022, when it should have said December 16/17, 2022. NHPAB 1036 -37. The evidence establishing the date as December 16/17 was clear and not contested. However, the date was not material to the outcome and was subsequently corrected by the PAB. CO Cass argues that the incorrect date constitutes a “material error” but fails to explain how that is so. Cass Brief, P.36. It does not appear that the PAB placed events in the wrong order, and this is not a case where the exact date is material to the elements of something the petitioner is attempting to prove.

CO Cass pointed out this error in her motion to reconsider, NHPAB 1046-47, and the PAB responded by amending its decision to “reflect a correction in dates[.]” NHPAB 1076. While the PAB failed to expressly direct that this correction be made in each and every place the erroneous date appeared within their original order, their intention to correct the error was clear and certainly does not render their factual findings so deficient as to justify reversal.

The PAB found: (1) “On December [16/17], 17 2022, the Appellant failed to notify the shift commander of her security concerns for officers’ safety due to low staffing levels, ” and (2) “On that day, the Appellant failed to follow the chain of command and PPDs to report her concerns due to low staffing levels.” NHPAB 1037. These findings were supported by the record.

CO Cass attempted through her testimony to paint a dire picture of the state of staffing within the prison on third shift the night of December 16-17. Tr. 5/1/24 P.205 -18. CO Cass claimed that when she got the radio call directing her to open the cells and let the inmates out for medication that morning, she “lock ed eyes” with another guard and: I could see that [the other guard] was scared too. I mean, we knew that anything could happen that day. And so I was in the control room. I popped [the inmates] out anyway. It was the worst feeling I think I’ve ever had in my entire career, was just putting [the other guard] in jeopardy like that. I knew that it was the wrong thing to do. I knew that he was trying to protect me. And I – I did the – I did the wrong thing. I put him in jeopardy, and I should never have done it. If I’m guilty of anythi ng, if they ever should have fired me for anything, it should have been for that. It should have been for releasing him from 16 th, knowing that I was jeopardizing my own coworkers and everybody in that unit. If ever you should have fired me for anything, it should have been for that.

Tr. 5/1/24 P.215 -16. Despite this dire description, CO Cass unambiguously testified that she did not call her superior officers to report her safety concerns despite the low staffing levels and, what she claimed was, a particularly dangerous mix of inmates in her unit that night. Tr. 5/1/24 P.244-45; 253 -54. CO Cass claimed she only spoke to her shift commander, Lt. Rubio, about her concerns after the end of third shift. Tr. 5/1/24 P.217 -18, Tr. 5/8/24 P.63.

If the PAB chose to credit this testimony, then it had sufficient evidence to conclude that on the night of December 16 -17, CO Cass had knowledge of on -the-ground facts —including staffing levels and the dynamics of the inmates in her housing unit that night —which led her to believe she was unable to safely complete her duties, and she failed to share this knowledge with her superiors at a time when mitigating actions could be taken.

Furthermore, this was not the end of the testimony as Lt. Rubio testified as a rebuttal witness. Lt. Rubio’s testimony flatly contradicted CO Cass’s testimony. He explained that CO Cass had contacted him during third shift on December 16 -17 prior to the release of the inmates and in that communication, she asked him if he planned to modify operations such that inmates would not be released during th ird shift. Tr. 5/8/24 P.81 -84. Lt. Rubio told CO Cass he had not planned to and asked her why she thought operations should be modified. Id. CO Cass offered no specific reason to Lt. Rubio other than to say that staffing was below minimum. Id. (At the time in question, staffing being below minimum was a regular occurrence. See Tr. 5/1/24 P.180.) Lt. Rubio told CO Cass that he would not be modifying the schedule of operations that morning to leave the inmates in their cells during the entirety of third shift, but that he would come down to her unit when it was time to open the cells if she felt they needed another guard present. Tr. 5/8/24 P.81 -84. CO Cass declined this offer. Id. Lt. Rubio’s testimony was clear that at no point in the conversation did CO Cass say she felt unsafe and that, had she expressed such a sentiment, he would have gon e down to her unit before inmates were released irrespective of CO Cass’s opinion on the matter. Id.

If the PAB chose to credit this testimony over CO Cass’s testimony, the evidence would still lead to a conclusion that CO Cass “failed to notify the shift commander of her security concerns for officers’ safety due to low staffing levels [.]” NHPAB 1037. In fact, the only way the PAB could not reach this conclusion is if they found CO Cass’s claims of feeling unsafe on the evening in question to be itself untruthful.

CO Cass’s third claim is that the PAB erred when it “ignored the imperative nature of the cry for help” and “misapprehended or overlooked that the Appellant was seeking and following the chain of command in obtaining direction as what to do if” the events of Decemb er 16/17 repeated themselves the following weekend. Cass Brief P.37. The PAB did not misapprehend or overlook anything. The PAB, like the DOC before it, determined that it was appropriate to terminate CO Cass after she told Warden Edmark that “[g]oing forward I will not be releasing them when we cannot meet critical minimum staffing[, ]” and then consistently confirmed her intent to follow through with this ultimatum. NHPAB 0068, 0073; Tr. 5/1/24 P.144 -45.

The PAB’s last numbered finding of fact was: “The Appellant wouldn’t agree nor confirm she would follow PPDs and prison policies, and not order future lockdowns, independent of the shift commander’s or Warden’s orders.” NHPAB 1037. CO Cass takes issue with this finding, claiming the PAB erred in concluding she believed she could “order” a lockdown. CO Cass’s argument is premised on a hyper -technical interpretation of the word “order” and assumes the PAB is using the term in the way it would be used by members of a paramilitary organization. Such an interpretation is not reasonable within the broader context of the PAB’s written order.

The PAB’s finding, when read within the context of the entire PAB order, clearly communicates a conclusion that CO Cass’s terminable offense was her refusal to agree that going forward she needed to abide by the decisions and orders of her superior officers and her insisten ce that she would instead determine the need for a lockdown based on her own assessment of prison staffing and independent of her superior officers’ decisions. The PAB’s factual findings include a finding that CO Cass “sent an email to Warden Edmark insisting that CO Cass would initiate a lockdown of her unit without leadership permission should prison staffing levels remain dangerously low.” NHPAB 1036. The PAB found that “[t]hroughout the investigative process, CO Cass remained insistent that should staffing levels become ‘critically low, ’ she would initiate a lockdown of her unit without supervisory permission. ” Id. Finally, in describing its final decision, the PAB wrote: “The Appellant … indicated an unwillingnes s to follow standard prison procedures, as set forth in various PPDs on lockdown and other matters when she determined the level of staffing was below minimum and could endanger staff, or inmates.” NHPAB1037.

DOC understands CO Cass’s fifth factual argument to claim that, because the PAB did not point to specific provision of the DOC PPDs entered into evidence which were violated by CO Cass, they were unable to reasonable conclude that her actions violated DOC policies and procedures. This argument is unpersuasive as the record had sufficient evidence to support th e PAB’s finding.

CO Cass herself testified that DOC policy does not call for automatic lockdowns when prison staffing falls below minimums. Tr. 5/1/24 P.238 -39; Tr. 5/8/24 P.43-44. And, despite knowing this, she consistently confirmed that she would not open the doors and release the inmates if prison staffing was below some critical minimum number which she determined based on her own subjective assessment of the situation. See NHPAB 0068 -73; Tr. 5/1/24 P.202 -05, 242. Furthermore, multiple DOC witnesses provided testimon y confirming CO Cass’s actions were in violation of policy. For example, Captain Morin testified that CO Cass told him she was going to keep inmates locked in, that she said she did not trust her shift commander to make reasonable decisions, 18 and that DOC policy does not allow correction officers to just lock inmates in their cells. Tr. 5/1/24 P.35-36, 76. Warden Edmark explained to the PAB that, while DOC has a policy related to minimum staffing, it does not require specific actions to be taken if staffing falls below that number. Tr. 5/1/24 P.134. Not only did CO Cass credibly commit to future violations of DOC policy, but these actions were in violation of CO Cass’s correctional officer oath and amounted to violations of PPD 1276’s dereliction of duty and performance of assigned duties as outlined in DOC’s termination letter.

The PAB’s order includes a finding that: “Given CO Cass’ [s] long hours, [Warden Edmark] also requested an Independent Medical Evaluation be conducted to determine CO Cass’ [s] continued fitness for duty.” This finding was supported by sufficient evidence within the record. Warden Edmark was asked why she requested the fitness for duty exam, and she explained that she had reviewed the totality of the investigation, from which it was apparent that CO Cass was repeatedly saying that she was going to make independent decisions going forward and not going to consult with the shift commander. Tr. 5/1/24 P.141 -42. Warden Edmark went on, testifying:

passionate and she has an opinion about a lot of things, I would never discourage those things, but I did find that it fe lt uncharacteristic of her. And she did work five, six, sometimes seven days a week. And she would come in on her days off to work.

And I was having a hard time reconciling myself with why she would take this strong – like, she’s familiar with the chain of command. She’s had [16 or 17] years of the chain of command. She knew what resources that she was supposed to utilize. She knew that the shift commander could aid her in making a good decision, and or getting a good outcome, I should say.

And the only reason that I requested the fitness for duty was because I was unclear if her 16 years of employment and the amount of time that she was working and whatever she had been exposed to had impacted her in some other way. And I felt that I needed to have that answered, because I always want to preserve my employees, and I always want to find a path forward. And at every stage of the investigation, and even my meeting with her, she stood strong that she would only, like, individually make that dec ision.

And I had difficulty finding a path forward because I need to be able to trust that there’s going to be sound decision making and that the chain of command is going to be used. So I did send her for fitness for duty so that I had all the information avail able to me prior to making any decision on discipline.

Tr. 5/1/24 P.142 -43. The PAB was permitted to credit this testimony, and their factual finding was not unreasonable or unsupported by the record.

CO Cass claims that the PAB erred in finding she intended to “lockdown” her unit because DOC’s lockdown policy does not classify something as a formal lockdown until it has lasted at least an hour. Cass Brief P.41. This argument is unpersuasive on its face. As has been extensively discussed above, CO Cass’s clear intent was to keep the inmates locked in their cells from the call to release them around 4 or 5 a.m. until the end of third shift at 7 a.m. See Tr. 5/1/24 P.84. However, irrespective of that point, the substance of CO Cass’s argument was also directly addressed and explained by Warden Edmark’s testimony. Warden Edmark explained that the word lockdown had both a strict, technical meaning as well as a more colloquial common usage. She testified:

Tr. 5/1/24 P.90. The PAB’s order does not reach unreasonable findings of fact but rather simply uses the word lockdown as it would be used by DOC staff to refer to situations w here inmates are locked down and unable to move about freely.

DOC understands CO Cass’s penultimate factual argument to basically reassert her general claim that, because she only refused to follow orders if she believed they would result in “unreasonably unsafe conditions[, ]” she was not threatening to do anything she is not fully entitled to do. Cass Brief P.42. This argument has been addressed above and was countered by the clear, credible testimony of Warden Edmark that—while certified law enforcement officers should not follow orders which are unlawful, immoral, or unethical —they must follow orders even if in so doing th ey will face safety risks.

DOC understands CO Cass’s final argument to be that the PAB lacked sufficient evidence to find: “Ultimately, Warden Edmark and Commissioner Hanks felt that they could not wait for CO Cass to take the action of locking down her unit on her own volition, which could jeopardize the safety of the entire prison, and proceeded with termination.” NHPAB 1037. This finding was supported by the record.

Warden Edmark credibly testified that she felt she had no choice but to terminate CO Cass’s employment due to her unwillingness to commit to using the chain of command going forward. Tr. 5/1/24 P.143 -45. The Warden explained that it would be unsafe to have a staff member within the prison making unilateral decisions about whether to release i nmates or not. Id. She explained that if an employee locked down a unit in violation of orders, that would create an emergency situation necessitating the employment of resources and people, taking those resources and people away from other duties within the prison. Id. Captain Morin echoed this sentiment, noting that having an officer refusing to follow direct orders created an emergency in and of itself. Tr. 5/1/24 P.78. Commissioner Hanks agreed as well. Tr. 5/1/24 P.175 -76. This testimony was clearly sufficient to support the PAB’s factual finding.

DOC presented extensive testimony detailing DOC’s institutional responses to and strategies for management of the low staffing situation. The situation within the prison was and is carefully managed by experienced law enforcement officers including Warden Edmark, her shift commanders, and her entire command team. There is no one size fits all plan of action or institutional modification which can be used to address the ever-changing environment within the Prison. That is why DOC has shift commanders and a chain of command. Officers pass information up the chain of command and orders about how the mission will be completed in the safest way feasible given the totality of the circumstances come back down the chain of command. CO Cass made clear that she was no longer willing to abide by the informed decisions of her superior officers. As a result, she was terminated. As the PAB reasonably found, this termination decision was not unjust, unfair, or contrary to the law. DOC therefore respectfully requests that this Honorable Court affirm the PAB’s order and uphold CO Cass’s termination from her employment as a correctional officer.

DOC does not request oral argument. Should argument be held, Senior Assistant Attorney General Mary A. Triick will present on behalf of the Department of Corrections.

I, Mary A. Triick, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 8, 412 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

May 5, 2025 /s/ Mary A. Triick Mary A. Triick

I, Mary A. Triick, hereby certify that I am filing this brief electronically and that a copy is being served on all other parties or their counsel, in accordance with the rules of the Supreme Court, as follows: I am serving registered e -filers through the court’s electronic filing system; I am serving or have served all other parties by mailing or hand -delivering a copy to them..

May 5, 2025 /s/ Mary A. Triick Mary A. Triick