McIntosh v. Personnel Commission

374 A.2d 436, 117 N.H. 334, 1977 N.H. LEXIS 332
CourtSupreme Court of New Hampshire
DecidedApril 29, 1977
DocketNo. 7596
StatusPublished
Cited by8 cases

This text of 374 A.2d 436 (McIntosh v. Personnel Commission) 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
McIntosh v. Personnel Commission, 374 A.2d 436, 117 N.H. 334, 1977 N.H. LEXIS 332 (N.H. 1977).

Opinions

Douglas, J.

We are asked herein to review, pursuant to the standard of RSA 541:13, the ruling of the personnel commission that the plaintiff’s removal from his position as director of the office of manpower affairs was a valid layoff for reasons of economy and efficiency and not, as alleged, a retaliatory discharge inspired by political motives. For the reasons which follow herein, we affirm the commission’s finding.

On January 2, 1976, the plaintiff received a letter from James J. Barry, commissioner of the office of manpower affairs [hereinafter OMA], informing him that effective January 19, 1976, Mr. McIntosh would be laid off from his position. The letter stated that the layoff was motivated by a desire to streamline the agency, in that there were too many top level administrators in OMA.

Prior to the layoff the plaintiff, then third in the office chain of command after the commissioner and the deputy commissioner, had worked in the manpower area for two separate periods total-ling something over three years. The layoff came approximately two months after Mr. McIntosh gave testimony at a hearing before the Senate Select Committee to Study the Operation of State Government. Both before the personnel commission and again in the instant action, the plaintiff maintained that the underlying reason for his separation was not his superior’s stated desire for efficiency, [336]*336but rather the commissioner’s dissatisfaction with Mr. McIntosh’s testimony before the Senate Select Committee.

The plaintiff’s first argument deals with the allocation of the burden of proof at the personnel commission hearing. Pursuant to RSA 98:15, which authorizes the commission to establish “such reasonable rules of procedure ... as it deems advisable,” the commission promulgated rule VIII, section 4, providing: “Nothing in this section shall be interpreted as preventing the Commission from upholding the recommendation of the appointing authority since the burden of proof is upon the appellant.” The plaintiff bases his argument on the premise that his expectation of continued employment, arising from his status as a permanent employee, qualified as a property right protected by the due process clause of the fourteenth amendment to the Federal Constitution. He contends that the allocation to him of the burden of proof is inconsistent with the dictates of due process applicable in this case.

This argument is disposed of by our decision in Nason v. Personnel Commission, 117 N.H. 140, 370 A.2d 634 (1977), wherein it was held that the extent of an employee’s property interest in his employment, and consequently the degree of due process attendant upon his separation therefrom, is determined by applicable state law. See Bishop v. Wood, 426 U.S. 341, 344-45 (1976); Arnett v. Kennedy, 416 U.S. 134, 151 (1974); Board of Regents v. Roth, 408 U.S. 564, 577 (1972). In this instance, the personnel commission has determined that the burden of proof in a personnel commission removal hearing shall be upon the employee challenging the layoff, rule VIII, § 4, and under the circumstances of this case, due process considerations do not dictate otherwise. Bishop v. Wood supra. Indeed, the rule’s allocation of the burden is consistent with common law principles pertaining to the placement of the burden of proof in civil litigation, see Jodoin v. Baroody, 95 N.H. 154, 59 A.2d 343 (1948), and usual administrative practice. K. Davis, Administrative Law Text § 14.12 (3d ed. 1972); 1 F. Cooper, State Administrative Law 355 (1965); 4 E. McQuillin, Municipal Corporations § 12.246, at 280 (3d ed. 1968); see Greco v. Smith, 40 N.J. Super. 182, 122 A.2d 513 (1956); Schnipper v. Township of North Bergen, 13 N.J. Super. 11, 80 A.2d 118 (1951); Gaul v. Philadelphia, 384 Pa. 494, 121 A.2d 103 (1956).

The plaintiff next takes issue with the adequacy of the notice of layoff received by him, which he contends failed to satisfy [337]*337the requirement set forth in Hunt v. Personnel Commission, 115 N.H. 713, 349 A.2d 605 (1975), that such notices be “somewhat definite and detailed,” providing a “full and fair answer to the reason why the layoff was made.” The plaintiff’s reliance herein on Hunt is misplaced, however, for in that case the notice of layoff failed to provide the employee with any reason whatsoever for his separation. In the instant case, to the contrary, the notice of layoff informed Mr. McIntosh (1) that the commissioner was concerned about the organizational structure of OMA; (2) that in his opinion the agency had too many top level supervisors for one of its size; (3) that his view was shared by members of the Senate Select Committee to Study Operations of State Government; (4) that he desired to streamline the agency and increase its efficiency; (5) that he and the deputy commissioner would absorb the plaintiff’s workload; and (6) that the layoff was made without prejudice and was not for disciplinary purposes. Such notice fully apprised the plaintiff of the reasons for the commissioner’s action, and accordingly is sufficient under the standard set forth in Hunt.

Plaintiff’s next argument, concerning the adequacy of the personnel commission’s findings of fact, generates similar analysis. We held in Foote v. State Personnel Commission, 116 N.H. 145, 355 A.2d 412 (1976), wherein the commission denied a state employee’s appeal without making any specific findings of fact at all, that such findings were necessary in order to enable this court to review the commission’s action. That holding has no bearing herein, however, for the findings in the instant case, consisting of eight paragraphs, provide us with an ample basis from which to judge the commission’s action.

The plaintiff next maintains that Commissioner Barry had no power to lay him off, in that the commissioner was not properly constituted as the plaintiff’s “appointing authority” within the meaning of rule VIII, section 5 of the personnel rules. This argument rests upon the circumstances under which the office of manpower affairs was established. Effective July 6,1973, the legislature authorized the Governor alone to “participate” in the federal manpower program. Laws 1973, 589:12.

On November 2, 1973, the Governor, acting alone, issued Executive Order No. 73-24, by which all previous instructions or orders relating to the office of manpower affairs were terminated, and the OMA was designated “as the single State agency” to administer [338]*338designated manpower related programs. The Executive Order further established that a commissioner appointed by the Governor, to serve at his pleasure, was to head the agency. See Jeannont v. N.H. Personnel Comm’n, 116 N.H.

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Bluebook (online)
374 A.2d 436, 117 N.H. 334, 1977 N.H. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-personnel-commission-nh-1977.