APPEAL OF STEVEN SILVA (New Hampshire Personnel Appeals Board)
Argued: April 10, 2019
Snyder, general counsel, State Employees' Association of
New Hampshire, Inc., SEIU, Local 1984, of Concord, on the
brief and orally, for the petitioner.
J. MacDonald, attorney general (Jill A. Perlow, senior
assistant attorney general, on the brief and orally), for the
petitioner, Steven Silva, appeals a decision of the New
Hampshire Personnel Appeals Board (PAB). The PAB upheld the
decisions of the respondent, the New Hampshire Department of
Health and Human Services (DHHS), to suspend and subsequently
terminate the petitioner's employment. We affirm.
following facts were found by the PAB or are otherwise
derived from the record. The petitioner began working at the
New Hampshire Hospital in 1999. He was terminated from
employment in 2015 for violating the hospital's sexual
harassment policy. See N.H. Admin. R., Per
1002.08(b)(7) ("An appointing authority may dismiss an
employee without prior warning for . . . [v]iolation of a
posted or published agency policy or procedure, the text of
which warns that violation of same may result in
dismissal."). He appealed this termination to the PAB.
In 2016, the PAB found that the petitioner's 2015
termination did not comply with New Hampshire Administrative
Rules, Per 1002.08(d) because DHHS did not provide the
petitioner, prior to termination, with all of the evidence it
relied upon to justify his termination, and, consequently, he
was not given an opportunity to refute the evidence that led
to his dismissal. See N.H. Admin. R., Per
1002.08(d). For that reason, the PAB ordered DHHS to
reinstate the petitioner retroactively to the date of his
termination and award him back pay and benefits.
the PAB's order, DHHS resumed paying the petitioner but
simultaneously placed him on suspension so that it could
conduct a new investigation into the same sexual harassment
allegations that formed the basis for the 2015 termination.
In 2017, after completing its investigation, DHHS terminated
the petitioner again. The petitioner appealed his suspension
as well as his 2017 termination to the PAB, arguing that the
PAB's decision overturning his prior termination prevents
DHHS from terminating or suspending him for the same conduct.
After a hearing on the merits, the PAB upheld the suspension
and subsequent termination. The petitioner moved for
reconsideration; the PAB denied the petitioner's motion
and this appeal followed.
chapter 541 governs our review of the PAB's decision.
Appeal of Cole, 171 N.H. 403, 411 (2018); RSA
21-I:58, II (2012). We will not set aside the PAB's
decision except for errors of law, unless the petitioner
demonstrates by a clear preponderance of the evidence that it
is unjust or unreasonable. Cole, 171 N.H. at 411-12;
RSA 541:13 (2007). The PAB's findings of fact are
presumed prima facie lawful and reasonable. RSA
541:13. In reviewing the PAB's findings, our task is not
to determine whether we would have found differently or to
reweigh the evidence, but rather to determine whether its
findings are supported by competent evidence in the record.
Cole, 171 N.H. at 412. However, we review the
PAB's rulings on issues of law de novo. See
petitioner first argues that his 2017 termination violates
RSA 21-I:58, I (2012) because that statute requires
reinstatement after a termination is overturned by the PAB
due to the violation of an applicable regulation, such as Per
1002.08(d). This argument requires that we engage in
statutory interpretation. The interpretation of a statute is
a question of law. Cole, 171 N.H. at 408. In matters
of statutory interpretation, this court is the final arbiter
of the legislature's intent as expressed in the words of
the statute considered as a whole. Id. When
construing a statute's meaning, we first examine the
language found in the statute, and where possible, we ascribe
the plain and ordinary meanings to the words used.
Id. We do not consider words and phrases in
isolation, but rather within the context of the statute as a
whole, and we construe all parts of a statute together to
effectuate its overall purpose and to avoid an absurd or
unjust result. Appeal of New England Police Benevolent
Ass'n, 171 N.H. 490, 493 (2018). We interpret
legislative intent from the statute as written and will not
consider what the legislature might have said or add language
that the legislature did not see fit to include. Id.
petitioner's argument also requires that we interpret Per
1002.08(d). We use the same principles of construction when
interpreting both statutes and regulations. Appeal of
Michele, 168 N.H. 98, 102 (2015). While deference is
accorded to an agency's interpretation of its own
regulations, that deference is not total. Appeal of
Collins, 171 N.H. 61, 63 (2018). A reviewing court must
still examine whether the agency's interpretation is
consistent with the language of the regulation and with the
purpose that the regulation was intended to serve.
21-I:58, I, provides in pertinent part:
Any permanent employee who is affected by any application of
the personnel rules, except for [certain rules not at issue
here], may appeal to the personnel appeals board within 15
calendar days of the action giving rise to the appeal. . . .
If the personnel appeals board 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.