Appeal of Westwick

546 A.2d 1051, 130 N.H. 618, 1988 N.H. LEXIS 53
CourtSupreme Court of New Hampshire
DecidedJuly 11, 1988
DocketNo. 87-261
StatusPublished
Cited by3 cases

This text of 546 A.2d 1051 (Appeal of Westwick) 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 Westwick, 546 A.2d 1051, 130 N.H. 618, 1988 N.H. LEXIS 53 (N.H. 1988).

Opinion

Batchelder, J.

The commissioner of education (the commissioner) dismissed plaintiff Carmen Westwick from her position as Executive Director of the New Hampshire Board of Nursing Education and Nurse Registration (executive director) in accordance with personnel rules which regulate classified employees. See RSA 21-1:48; RSA 326-B:5 (1984); see generally N.H. Admin. R., Per. (1983). The plaintiff filed an appeal with the personnel appeals board, claiming that the commissioner had no authority to dismiss her because the executive director is an unclassified employee. See RSA 21-1:49; see also RSA 4:1. The personnel appeals board dismissed the appeal, finding that the personnel division properly followed its long-standing practice of treating the executive director as a classified employee and that there was no evidence that the discharge was arbitrary, capricious, illegal or made in bad faith. The executive director appealed. We reverse and remand for proceedings consistent with this opinion.

In September, 1986, Westwick was nominated by the board of nursing education and nurse registration (the board of nursing), and appointed by department of education commissioner John T. McDonald, to be executive director of the board of nursing education and nurse registration. RSA 326-B:5. On her first day of work, September 15, 1986, the plaintiff met with deputy commissioner of education Charles H. Marston and chairwoman of the board of nursing Sophia Antoniou to review the State personnel system as it applied to classified employees. Westwick received an orientation packet containing, among other things, information explaining the State’s leave and benefit policies, as well as information pertaining to the recent reorganization of the department of education pursuant to RSA chapter 21-N, which provided that operations of the board of nursing would be overseen by the chief of the department of education’s division of standards and certification, rather than by the commissioner. See RSA 21-N:7, VII (Supp. 1987). Pertinent to the issue addressed herein, the orientation packet also included a work-week schedule form, which all classified employees were required to complete.

Thereafter, Judith Pillion, the acting chief of the division of standards and certification, informed the plaintiff that all communications with the personnel division should be made through her office, and that the plaintiff should make every effort to complete her work-week schedule form without delay. The plaintiff failed to complete a work-week schedule, despite Fillion’s repeated requests throughout the following month.

[620]*620In December, 1986, Westwick submitted a leave request to the commissioner. In a memo dated December 22, 1986, the commissioner informed the plaintiff that he could not authorize the leave request until she provided him with an approved work-week schedule form. On December 26, 1986, Fillion wrote a memo to the commissioner informing him that the plaintiff took unauthorized leave days on December 23 and 26, by working at home, and on December 24, by taking a floating holiday (a floating holiday is a holiday taken in lieu of a State holiday which falls on either a Saturday or Sunday, or one of three additional holidays each employee is authorized to elect per year). On January 15, 1987, the commissioner wrote a termination letter to Westwick, explaining that “for reasons of willful insubordination and unsatisfactory work performance,” and pursuant to the personnel rules, he was terminating her appointment effective March 12, 1987. N.H. Admin. R., Per. 302.23.

Thereafter, the plaintiff filed a petition for temporary restraining order and injunctive relief with the superior court. The Court (Dalianis, J.) approved the recommendation of the Master (Mayland H. Morse, Jr., Esq.) to deny the petition because, among other reasons, there was an adequate remedy available at law; namely, the appeal process pursuant to personnel rules. See N.H. Admin. R., Per. 306.04(c). On March 18, 1987, the plaintiff filed her appeal with the personnel appeals board. On March 22, 1987, following a prehearing conference, the personnel appeals board issued a decision dismissing the appeal on the ground that the executive director is a classified employee, in keeping with the past' practice of the personnel division.

The sole issue on appeal to this court, as it was before the personnel appeals board, is whether the position of executive director is exempted from the classified employee system under RSA 21-1:49 (Supp. 1987). The statute provides:

“The classified service to which the personnel provisions of this chapter shall apply shall comprise all positions in the state service now existing or hereafter established, except:
I. Those elected by popular vote or by the legislature.
II. Those appointed and commissioned by the governor or the governor and council.
III. The chief executive officer of each department and institution and independent agency.
IV. The deputy of any department head provided for by special statute.
[621]*621V. Those officers whose salary is specified or provided by special statute.
VI. Personnel of the university system of New Hampshire.”

The plaintiff argues that she is exempted under paragraph III because she is the chief executive officer of an independent agency; therefore, only the governor and council have authority to discharge her. See RSA 4:1. The State contends that the board of nursing is not an independent agency and that the exemption would be inconsistent with thirty years of the personnel division’s practice of designating the executive director as a classified employee.

The issue raised in this appeal presents a question of statutory interpretation. Such a question is not properly answered, as it was by the personnel appeals board, by looking solely at the past practices of the personnel division. Rather, the question is answered by first looking at the plain meaning of the language of the statute. Samaha v. Grafton County, 126 N.H. 583, 585, 493 A.2d 1207, 1209 (1985). As we have said, this provides the “touchstone of the legislature’s intention.” State Employees’ Assoc. v. State, 127 N.H. 565, 568, 503 A.2d 829, 831 (1986) (quoting Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040, 453 A.2d 1295, 1296 (1982)). Where the meaning of the statute is clear and unambiguous, we will decide the case accordingly, even if it is contrary to longstanding administrative practice. Id. at 569, 503 A.2d at 833. However, “where a statute is of doubtful meaning, the longstanding practical and plausible interpretation applied by the agency responsible for its implementation, without any interference by the legislature, is evidence that the administrative construction conforms to the legislative intent.” State Employees’ Assoc. v. State, supra at 569, 503 A.2d at 832 (quoting Hamby v. Adams, 117 N.H. 606, 609, 376 A.2d 519, 521 (1971)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Howe
736 F.3d 1 (First Circuit, 2013)
Appeal of the Town of Litchfield
790 A.2d 135 (Supreme Court of New Hampshire, 2002)
Appeal of Higgins-Brodersen
578 A.2d 868 (Supreme Court of New Hampshire, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
546 A.2d 1051, 130 N.H. 618, 1988 N.H. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-westwick-nh-1988.