Appeal of Vicky Morton

960 A.2d 332, 158 N.H. 76
CourtSupreme Court of New Hampshire
DecidedNovember 7, 2008
Docket2008-105, 2008-107
StatusPublished
Cited by12 cases

This text of 960 A.2d 332 (Appeal of Vicky Morton) 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 Vicky Morton, 960 A.2d 332, 158 N.H. 76 (N.H. 2008).

Opinion

DUGGAN, J.

The petitioner, Vicky Morton, appeals two decisions of the New Hampshire Personnel Appeals Board (PAB) ruling that: (1) the proper remedy for her layoff did not include reinstatement to her previous position; and (2) that she did not meet the minimum qualifications for the position of Associate Wee President of Academic Affairs. We consolidated the two appeals and affirm.

The record supports the following relevant facts. In July 2007, the New Hampshire Community Technical College System (NHCTCS) notified Morton of her layoff from employment with NHCTCS because it had abolished her position of Program Coordinator, classified as Program Specialist II, at the Keene Center. At the time NHCTCS abolished the position of Program Coordinator and laid her off, there were two other full time Program Specialist II positions within NHCTCS. The position in Littleton was held by an individual with more seniority than Morton. The position in Stratham, though held by an individual with less seniority than Morton, was, as determined by NHCTCS, not actually a Program Specialist II position because it involved grant management. NHCTCS did not offer Morton either position in lieu of layoff. Morton appealed her layoff to the PAB, pointing out that seven part-time employees within her classification had not been laid off.

While the PAB appeal was pending, Morton applied for the position of Associate Vice President of Academic Affairs. The position has two sets of qualifications. First, the position is classified as “Administrator III,” which requires seven years of “relevant experience.” Second, a supplemental job description (SJD) for the position requires that four of the required seven years of relevant experience be “in a management level position involving *78 administrative or supervisory duties concerned with program administration, program planning and evaluation or related management experience.”

The NHCTCS Human Resources (HR) Coordinator informed Morton that her application had been disqualified because she did not meet the minimum requirements. Morton asked for her application to be reconsidered. The HR Coordinator, as well as a Classification Specialist within the Division of Personnel, reviewed the application. They both found that Morton’s experience was not the management level experience required for the position. Morton appealed that decision to the PAB as well.

The PAB held one hearing to decide both appeals and issued separate decisions for each. In its first decision, the PAB ruled that Morton should not have been laid off if there were any positions within the same class filled by less senior employees. The PAB ordered NHCTCS to reevaluate the Program Specialist II position in Stratham, and assign it to Morton if she met the minimum requirements because she was more senior than the current holder. In its second decision, the PAB found that Morton did not meet the minimum work experience requirements to qualify as a candidate for the Associate Vice President of Academic Affairs position. Morton filed motions for reconsideration, which the PAB denied. She then appealed to this court.

On appeal, Morton makes two principal arguments. First, she argues that the PAB erred in determining the remedy for her layoff. She argues the proper remedy under RSA 21-1:58, I (2000) is reinstatement to her prior position as opposed to reassignment to a different position. Second, she argues that the PAB erred in finding she was not qualified for the Associate Vice President of Academic Affairs position because NHCTCS is not permitted to create additional minimum requirements in the SJD.

Our review in this case is governed by RSA 541:13 (2007). As the appealing party, Morton has the burden of proof to show that the PAB decision is clearly unreasonable or unlawful. RSA 541:13. The PAB decision will not be set aside or vacated except for errors of law, unless we are satisfied, by a clear preponderance of the evidence before us, that such order is unjust or unreasonable. Id.

We review the PAB’s interpretation of statutes and administrative rules de novo. N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007); State v. Elementis Chem., 152 N.H. 794, 803 (2005). In both instances, we ascribe the plain and ordinary meanings to words used, Appeal of Flynn, 145 N.H. 422, 423 (2000), looking at the rule or statutory scheme as a whole, and not piecemeal. See Appeal of Alley, 137 N.H. 40, 42 (1993). Although we accord deference to the PAB’s interpretation, that deference is not *79 absolute. We still examine its interpretation to determine if it is consistent with the language of the regulation and with the purpose the regulation is intended to serve. Id.

I

As to the proper remedy for her layoff, Morton makes two arguments. First, she argues that NHCTCS could not abolish her position or lay her off while there were seven part time Program Specialist II positions within NHCTCS. Second, she argues that the proper remedy for her layoff is to be reinstated to her prior position rather than reassigned to another.

As to her first argument, although Morton challenged the authority of NHCTCS to lay her off, she did not challenge the authority of NHCTCS to abolish her former position until she filed her motion for reconsideration. Thus, the issue has not been preserved for our review. See Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 654-55 (2000) (party cannot raise an issue for the first time in motion for reconsideration when the issue was readily apparent at the time the party initially filed for relief); Sklar Realty v. Town of Merrimack, 125 N.H. 321, 328 (1984) (a party may not be entitled to judicial review of matters not raised at the earliest possible time). Thus, the only question before us is whether the PAB ascribed the proper remedy for Morton’s layoff.

Morton’s remaining argument breaks into two parts: (1) that the rules do not permit her layoff; and (2) that RSA 21-1:58, I, requires she be reinstated to the abolished position of Program Coordinator. The State responds that even if her layoff was a violation of the personnel rules, the proper remedy is not reinstatement because that position no longer exists. Rather, the State argues, the personnel rules govern only which employee is laid off, not which position is abolished. The State points out that the PAB prescribed the proper remedy in not reinstating Morton to her prior position, but rather ordering a reevaluation of the position in Stratham and whether she could be reassigned there.

We first address the distinction between abolition of a position and the resulting layoff. Layoff is defined as “the complete separation of an employee from the state classified service for an indefinite period by reason of abolition of position, change in organization, lack of work, insufficient funds, or other reasons outside the employee’s control....” N.H. ADMIN. Rules, Per 102.34. Thus, under the Personnel Rules, abolition of a position is an event specifically listed in the rules that in turn necessitates a layoff. See id. 1101.01(a). Once a position is abolished, the agency must then decide which employee will be separated from the state classified service.

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Bluebook (online)
960 A.2d 332, 158 N.H. 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-vicky-morton-nh-2008.