Appeal of Murdock

943 A.2d 757, 156 N.H. 732, 2008 N.H. LEXIS 9
CourtSupreme Court of New Hampshire
DecidedFebruary 15, 2008
DocketNo. 2007-297
StatusPublished
Cited by10 cases

This text of 943 A.2d 757 (Appeal of Murdock) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Murdock, 943 A.2d 757, 156 N.H. 732, 2008 N.H. LEXIS 9 (N.H. 2008).

Opinion

Galway, J.

The petitioner, Donald W. Murdock, appeals the decision of the New Hampshire Personnel Appeals Board (PAB) affirming his dismissal from employment by the respondent, the New Hampshire Department of Transportation (DOT), following his receipt of three written warnings for the same offense within a five-year period. N.H. ADMIN. Rules, Per 1001.08(b)(1) (current version at 1002.08(c)(1)). We affirm in part, reverse in part, and remand.

We recite the facts as found by the PAB or as presented in the record. The petitioner was hired by the DOT in February 1994. He worked in various positions until the fall of 2002, when he became the Highway Patrol Foreman for one of the fourteen patrol sections in District IV. District IV is one of the six maintenance districts within the State. In this capacity, the petitioner was responsible for planning, scheduling and inspecting the work of his five-man patrol crew in coordination with his immediate supervisor, Maintenance Supervisor George Leel, as well as the District Engineer, Douglas Graham. The petitioner was also responsible for enforcing, among other things, DOT policies and procedures within his section, and producing timely and accurate reports of the work activities of his crew.

On May 12, 2003, District Engineer Graham issued the petitioner his first letter of warning for transporting alcohol in his state vehicle contrary to DOT policy. Specifically, it was alleged that the petitioner, after work hours, purchased beer at a local convenience store and transported the alcohol to his home in his state vehicle. The warning cited the petitioner’s “failure to meet any work standard” under New Hampshire Administrative Rule, Per 1001.03 (a)(1) (current version at 1002.04(b)(1)) as grounds for the warning. The corrective action provided,

As a Highway Patrol Foreman, you are expected to set the standard for your Patrol Section____You must ensure that you follow those rules and standards in your own conduct and enforce those rules and standards among the members of your crew. Your failure to do so will result in further disciplinary action up to, and including, your discharge from employment.

The petitioner did not appeal the issuance of this warning.

On September 20, 2004, District Engineer Graham issued a second letter of warning to the petitioner, again citing Per 1001.03(a)(1) (failure to meet any work standard). This warning resulted from the petitioner having allowed Sports Illustrated swimsuit model calendar pictures to be [734]*734displayed in the workplace after he had been told to remove them. Although the petitioner removed the pictures from display on the wall after being instructed to do so, several were later found “scattered about” on a desk within the office. The warning stated that the petitioner’s “failure to ensure a workplace free from the potential for harassment... constitutes a failure to meet any work standard.” In addition, the warning alleged the petitioner failed to maintain a safe workplace, noting several tripping hazards in the office, as well as the presence of a wash basin without the proper caution warnings, all constituting a failure to meet any work standard. The corrective action for these various infractions, as with the first warning, generally instructed the petitioner that he must follow, and ensure his crew followed, the applicable rules and standards.

The petitioner challenged this warning, seeking review through the informal four-step review process outlined in the personnel rules, rather than a direct appeal to the PAB. N.H. ADMIN. RULES, Per 202.01 (current version at 205.01). At each of the first three review steps, the warning was upheld after the petitioner filed a timely appeal statement. However, at the fourth and final step, the petitioner did not file his appeal statement within the prescribed period of time, and was denied consideration. The petitioner appealed to the PAB, which in November 2005 denied his request as untimely.

On July 15,2005, the petitioner was issued a third warning for failure to meet any work standard. The warning detailed numerous alleged deficiencies in the petitioner’s conduct including exercising poor judgment in parking his state vehicle outside of a restaurant later than the normal lunch hour and for a period longer than thirty minutes. Specifically, District Engineer Graham alleged he had observed the petitioner’s state vehicle parked outside of a restaurant at 1:15 p.m. and observed the petitioner leaving at 1:50 p.m. The warning indicated that the petitioner showed poor judgment in taking a late lunch, and also taking a lunch that was at least thirty-five minutes, five minutes more than the permitted time. The warning also alleged the petitioner had left work early without receiving prior approval from his supervisor and had failed, on at least one occasion, to accurately document the work time of his crew.

The warning also served as a letter of dismissal pursuant to Per 1001.08(b)(1), which permits dismissal of an employee after three written warnings for the same offense within a five-year period. See N.H. ADMIN. Rules, Per 1001.08(b)(1). The letter articulated the two previous written warnings for failure to meet any work standard, in addition to the current warning, as grounds for the petitioner’s dismissal.

The petitioner appealed both the warning and his dismissal directly to the PAB. Following a hearing, the PAB upheld the dismissal, concluding,

[735]*735All three warnings issued to the [petitioner] were issued in accordance with Per 1001.03(a) ... and each was for the “same offense” as contemplated by that rule, as each of the warnings arose from the [petitioner’s] lack of familiarity with, or disregard for, the policies and procedures governing the [petitioner’s] responsibilities as a Highway Patrol Foreman.

The petitioner filed a motion for reconsideration and rehearing, arguing that the PAB’s interpretation of Per 1001.08(b)(1) was unreasonable and violated due process. In addition, the petitioner asserted that the PAB should have waived his failure to meet the filing deadline and considered his appeal of the September 20, 2004 warning. The petitioner also argued that, with respect to the July 15,2005 warning, the evidence presented and the PAB’s findings of fact were insufficient to sustain his dismissal, and further, that the PAB should have reassigned him, rather than affirming his dismissal. The PAB denied the motion.

This is an appeal from a final decision of the PAB pursuant to RSA 21-1:58, II (2000), RSA 541:6 (2007) and Supreme Court Rule 10. The petitioner has the burden of demonstrating that the PAB’s decision was clearly unreasonable or unlawful. RSA 541:13 (2007). The PAB’s findings of fact are deemed prima facie lawful and reasonable. Id. We will affirm the decision unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. See Appeal of Waterman, 154 N.H. 437, 439 (2006).

We review the interpretation of administrative rules de novo. State v. Elementis Chem., 152 N.H. 794, 803 (2005). “In construing rules, as in construing statutes, where possible, we ascribe the plain and ordinary meanings to words used.” Appeal of Flynn, 145 N.H. 422, 423 (2000) (quotations omitted). We look at the rule under consideration as a whole, and not in segments. See Appeal of Alley, 137 N.H. 40, 42 (1993). “While deference is accorded to an agency’s interpretation of its regulations, that deference is not total.

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Bluebook (online)
943 A.2d 757, 156 N.H. 732, 2008 N.H. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-murdock-nh-2008.