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Appeal of New Hampshire Division of State Police

Supreme Court of New Hampshire

September 7, 2018

APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE New Hampshire Personnel Appeals Board

          Argued: April 17, 2018

         Personnel Appeals Board

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

          Gordon J. MacDonald, attorney general (Karen A. Schlitzer, senior assistant attorney general, on the brief and orally), for New Hampshire Division of State Police.

          BASSETT, J.

         This appeal arises from the respondent's, the New Hampshire Division of State Police (Division), termination of the petitioner, State Trooper David Appleby, based upon the petitioner's abandonment of his extra-duty detail escorting an oversized truck and his conduct in the subsequent investigations of that incident. The petitioner appealed his termination to the New Hampshire Personnel Appeals Board (PAB), which reinstated him. The Division now appeals, arguing that the PAB's decision to reinstate the petitioner was unjust and unreasonable because: (1) the standard set forth in RSA 21-I:58, I (2012) does not permit the PAB to substitute its judgment for that of the appointing authority; and (2) the PAB failed to consider the factors provided for in the applicable personnel rule and relied upon by the Division in reaching its termination decision, including the petitioner's prior disciplinary history. We affirm.

         The following facts were found by the PAB, or are otherwise derived from the administrative record. The petitioner was hired by the Division in 1999, and worked as a trooper for over fifteen years. He was terminated in August 2015. During his employment, he served in a number of capacities in addition to his regular trooper duties, including working many extra-duty detail hours. On May 12, 2015, the petitioner worked an extra-duty detail in which he was assigned to escort an oversized truck from Claremont to the Massachusetts border in Plaistow. The truck's departure was delayed due to mechanical problems, and the petitioner became concerned that he would not be able to complete the escort and also arrive on time for his regularly scheduled duties at Troop F, located in northern New Hampshire. After unsuccessfully seeking substitute coverage, the petitioner escorted the truck to exit 7 on Route 101. In order to arrive on time for his regular duties, the petitioner abandoned the detail before the truck reached the Massachusetts border.

         After the Division received a complaint that the petitioner had violated rules governing extra-duty details, it initiated an internal investigation. Although the investigating officer found that the petitioner engaged in misconduct by failing to communicate appropriately with dispatch during the escort, he concluded that the petitioner's errors "were based on mitigating circumstances and . . . that no further action was necessary."

         Upon review of that report, a superior officer continued to have concerns about the petitioner's conduct, and a further investigation ensued. The officer discovered that the petitioner's time sheets reflected that he left the escort at 10:30 a.m. and began his regular-duty shift at 11:00 a.m. However, E-Z pass records demonstrated that the petitioner drove through the tolls at Hooksett at 11:00 a.m., and did not arrive at Troop F headquarters until two hours later.

         During a subsequent interview with the petitioner, the investigating officers learned for the first time that he had not completed the escort. Although the petitioner admitted that he left the escort before reaching the Massachusetts border, he maintained that he left it in Plaistow, not far from the border.

         After concluding the investigation, the Division terminated the petitioner's employment, finding that he had violated numerous administrative rules and standards of professional conduct by: (1) traveling from an extra-duty detail on scheduled regular-duty time; (2) failing to properly communicate with dispatch during his extra-duty detail; (3) absenting himself from duty without permission by recording that he was on regular duty while traveling back from the extra-duty detail; (4) making a false official statement or intentional misrepresentation of fact during the investigations; (5) falsifying his time sheets; (6) obstructing an internal investigation by withholding information; and (7) endangering the life, health, or safety of another individual by leaving the escort early. The Division asserted that, under the personnel rules, some of these violations constituted terminable offenses, including "[e]ndangering the life, health or safety of another . . . individual." See N.H. Admin. R., Per 1002.08(b)(7), (9), (10), (12). The Division also noted in its termination letter that, in reaching its conclusion, it had "considered the fact that this [was] not the first time [the petitioner] [had] been disciplined for similar infractions" of the professional standards of conduct and the extra-duty detail policy.

         The petitioner appealed his termination to the PAB. See RSA 21-I:46, I (2012); RSA 21-I:58, I. After a three-day evidentiary hearing, the PAB concluded that the petitioner had violated the applicable rules by traveling from extra-duty detail on scheduled regular-duty time, failing to properly communicate with dispatch during the escort, absenting himself from duty by clocking-in on regular-duty time while traveling from the extra-duty detail, and by endangering the life, health, or safety of another individual. However, the PAB also found that the petitioner had not violated the rules prohibiting false official statements or misrepresentations of fact, falsification of agency records, or obstruction of an internal investigation. The PAB noted that the petitioner, in response to the mechanical issues that delayed the escort's start time, attempted to contact a supervisor for guidance on two occasions, but no supervisor was available. It also noted that, although the petitioner contacted the detail desk requesting that he be removed from the escort detail, he was not successful. In light of these findings, the PAB concluded that the "decision to dismiss the [petitioner] was unjust in light of the facts in evidence," and it ordered that the petitioner be reinstated, subject to a sixty-day suspension without pay.

         The Division filed a motion for rehearing and reconsideration, which the PAB denied. In June 2017, the petitioner was reinstated as a trooper. The Division filed this appeal the following month. See Sup. Ct. R. 10.

         On appeal, the Division argues that the PAB's decision to reinstate the petitioner was unreasonable and unjust because: (1) RSA 21-I:58, I, does not authorize the PAB to "substitute its own judgment for that of the appointing authority"; and (2) the PAB failed to consider the factors provided for in the applicable personnel rule and relied upon by the Division in ...


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