Appeal of Tamm

469 A.2d 1291, 124 N.H. 107, 1983 N.H. LEXIS 401
CourtSupreme Court of New Hampshire
DecidedOctober 26, 1983
DocketNo. 82-452
StatusPublished
Cited by7 cases

This text of 469 A.2d 1291 (Appeal of Tamm) 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 Tamm, 469 A.2d 1291, 124 N.H. 107, 1983 N.H. LEXIS 401 (N.H. 1983).

Opinion

King, C.J.

In this case, we are concerned with the alleged wrongful termination of the employment of a State employee during her six-month probation period. We are treating this appeal as a petition for a writ of certiorari, RSA 490:4 (Supp. 1979), by which the plaintiff seeks review of a ruling by the New Hampshire Personnel Commission (commission) which upheld the decision of the New Hampshire Public Utilities Commission (PUC) dismissing the plaintiff from her employment. We reverse and remand.

The plaintiff, Hildegard Tamm, is a former PUC employee who in August 1981 was dismissed during her probationary period, which is defined as a six-month work-test period prior to permanent employment. N.H. Admin. Code § Per 302.23(a). The plaintiff sought a hearing before the commission to overturn her dismissal, alleging that she was terminated from her employment for being “overqualified.” At the first hearing, the commission, without reaching the merits, dismissed the case on the ground that the plaintiff was not entitled to a hearing because she was a probationary employee.

The plaintiff appealed to this court. We ruled that despite the plaintiff’s probationary status, the commission was the appropriate agency to consider the merits of the plaintiff’s claim. We remanded the case to the commission to allow the plaintiff the opportunity to [110]*110prove her claim that her dismissal was “arbitrary, illegal, capricious or made in bad faith.” Appeal of Tamm, 122 N.H. 646, 647, 448 A.2d 1373 (1982) (citation omitted).

On August 27, 1982, the commission conducted a second hearing. At the hearing, the PUC introduced testimony of Bruce B. Ellsworth, who was the plaintiff’s direct supervisor throughout the term of her probationary employment. In response to Mr. Ellsworth’s testimony, the plaintiff submitted requested findings of fact, most of which were granted by the commission. The findings indicated that she had satisfactorily performed the duties of her position during the probationary period.

At the August hearing, the commission affirmed the decision of the PUC to dismiss the plaintiff. The commission concluded that “[n]o evidence of bad faith was introduced,” and that the PUC’s action was “not arbitrary, illegal or capricious in that it was based on valid considerations which are in the record.” The commission subsequently denied a motion for reconsideration.

Certiorari is an extraordinary remedy, which is not granted as a matter of right but rather only when the court deems that “the substantial ends of justice require such relief.” Melton v. Personnel Comm’n, 119 N.H. 272, 277, 401 A.2d 1060, 1063 (1979) (quoting State v. N.H. Retail Grocers Ass’n, Inc., 115 N.H. 623, 625, 348 A.2d 360, 362 (1975)). Nevertheless, this court has not hesitated in certiorari proceedings to confer relief to parties injured by wrongful administrative action. Wood v. General Elec. Co., 119 N.H. 285, 289, 402 A.2d 155, 158 (1979).

While the plaintiff seeks review of the order of the commission under RSA 541:6, the right to appeal under that statute extends only to “permanent” employees by virtue of RSA 98:15. Melton v. Personnel Comm’n, supra at 275, 401 A.2d at 1062; see also RSA 98:15. Where, as here, the plaintiff has mistakenly attempted to appeal under RSA 541:6 rather than to proceed by petition for certiorari, we have held that “‘[a]lthough the plaintiffs have mistaken their remedy, our practice permits consideration of their petition as one for writ of certiorari.’” Melton v. Personnel Comm’n, supra at 276, 401 A.2d at 1062 (quoting Winn v. Jordan, 101 N.H. 65, 67, 133 A.2d 485, 487 (1957)). Accordingly, the plaintiff’s petition for appeal under RSA 541:6 will be treated as a petition for a writ of certiorari. See Appeal of Tamm, 122 N.H. at 647, 448 A.2d at 1373.

The scope of review on a petition for a writ of certiorari is confined to a determination whether the commission “acted illegally in respect to jurisdiction, authority or observance of the law, thereby [111]*111arriving at a conclusion which could not be legally or reasonably made.” George v. N.H. Dep’t of Educ., 122 N.H. 434, 435, 445 A.2d 1131, 1132 (1982) (quoting Tasker v. N.H. Personnel Comm’n, 115 N.H. 204, 206, 338 A.2d 543, 544 (1975)).

The discretionary authority of the commission has sharply defined limits. The dismissal of a probationary employee “must not be arbitrary, illegal, capricious or made in bad faith.” Appeal of Czeslaw Pawlus, 121 N.H. 273, 274, 428 A.2d 487, 488 (1981) (quoting Clark v. Manchester, 113 N.H. at 275, 305 A.2d at 672); see also N.H. Admin. Code § Per 302.23(c). The Code of Administrative Rules of the Department of Personnel prohibits “discrimination against any person” in any personnel action due to “non-merit factors.” N.H. Admin. Code § Per 102.01(f). Further, in cases brought on statutory appeal, we have required the commission to provide basic findings of fact underlying commission decisions in sufficient detail to insure effective judicial review of those decisions. Foote v. State Personnel Comm’n, 116 N.H. 145, 148-49, 355 A.2d 412, 414 (1976).

The commission is not relieved from the obligation to generate basic findings of fact where the petitioner seeks certiorari review. Without specific findings of fact to review, this court can neither adequately prevent or correct errors and abuses of the commission, Melton v. Personnel Comm’n, 119 N.H. at 277, 401 A.2d at 1063, nor determine whether the commission’s “findings could have reasonably been made.” N.H.-Vt. Physician Serv. v. Durkin, 113 N.H. 717, 721, 313 A.2d 416, 419 (1973).

Our inquiry is focused on whether the commission’s specific findings of fact indicate that the dismissal of the plaintiff was based on her failure to pass the probationary period test stipulated by the department of personnel; i.e., whether the plaintiff’s performance met the “required work standard.” N.H. Admin. Code § Per 302.23(c).

As the cornerstone of the State merit system of personnel administration, id. § Per 102.01(a), the department has created a probationary term of six months, during which new employees of the State classified service are evaluated to determine their fitness to perform the duties of their positions. Id. §§ Per 101.27, 302.23(a). During this “work-test” period, the appointing authority enjoys latitude to deny an employee permanent employment if her actual work performance fails to meet required work standards. Id. §§ Per 302.23, 101.26.

The plaintiff argues that she satisfactorily completed her proba[112]

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Bluebook (online)
469 A.2d 1291, 124 N.H. 107, 1983 N.H. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-tamm-nh-1983.