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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Personnel Appeals Board
No. 2020-0450
APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE
(New Hampshire Personnel Appeals Board)
Argued: September 30, 2021
Opinion Issued: February 11, 2022
John M. Formella, attorney general (Emily C. Goering, assistant attorney
general, and Matthew T. Broadhead, senior assistant attorney general, on the
brief, and Emily C. Goering orally), for the New Hampshire Division of State
Police.
Milner & Krupski, PLLC, of Concord (Marc G. Beaudoin and John S.
Krupski on the brief, and Marc G. Beaudoin orally), for Thomas Owens.
American Civil Liberties Union of New Hampshire Foundation, of
Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the
memorandum of law), as amicus curiae.
BASSETT, J. This appeal arises from the decision of the New Hampshire
Division of State Police (Division), to terminate State Trooper Thomas Owens
(the employee) based upon his adjustment of his timecard and his conduct
during the subsequent investigation. The employee appealed his termination
to the New Hampshire Personnel Appeals Board (PAB), which reinstated him.
The Division appeals, arguing that the PAB’s reinstatement of the employee
was unjust and unreasonable because he is no longer qualified to be a state
trooper. It also argues that the PAB erred as a matter of law when it reinstated
the employee in contravention of public policy. We affirm.
The following facts were found by the PAB or are supported by the
administrative record. The Division hired the employee as a probationary
trooper in April 2016 and elevated him to the rank of trooper a year later. He
typically worked the midnight highway shift and frequently picked up extra-
duty shifts. On Monday, October 29, 2018, the employee accepted an extra-
duty detail assignment, which he believed began at 3:00 p.m. later that same
day. He soon realized, however, that the detail was scheduled for the following
day. Although the employee had firearms training the next morning, he
anticipated that he would have time to complete the training and arrive at the
detail on time. On October 30, he participated in firearms training in the
morning and traveled to his extra-duty detail that afternoon. Before traveling
to the detail, he failed to change out of his training uniform and into his official
uniform.
The employee did not complete his timecard for October 30 until the end
of that week. When doing so, he realized that, between his regular shift and
the extra-duty detail, he would exceed the hourly limitations for time worked in
a 24-hour period and a 28-day period. Consequently, without consulting a
supervisor, he “adjusted the hours” on his timecard to avoid a policy violation
for exceeding the hourly limits and for traveling during his regular shift to an
extra-duty assignment. The adjustments included changing his regular-duty
start time to be approximately thirty minutes earlier than it actually was so
that his regular-duty shift would appear to end before his extra-duty detail
began.
During a routine review of timecards, the employee’s supervisor noticed
that the employee’s October 30 timecard was inconsistent with other records.
Specifically, the computer-aided dispatch records demonstrated that the
employee had actually started and ended his regular shift later than was
indicated by his timecard, and had used approximately sixteen minutes of
regular-duty time to travel to his extra-duty detail. The employee’s supervisor
informally questioned him about these discrepancies. The employee told his
supervisor that, when completing his timecard for October 30, he “realized [he]
had mismanaged [his] hours for that day” and had adjusted the timecard to
“mitigate the policy violation.”
The Division later filed a formal complaint against the employee and
initiated an investigation related to two possible violations of the Division’s
Professional Standards of Conduct: traveling to an extra-duty detail during
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regular-duty time, and wearing an improper uniform during the extra-duty
detail. The employee was interviewed three times as part of the investigation.
During those interviews, he admitted that he had traveled to the extra-duty
detail on regular-duty time, worn the wrong uniform, and adjusted his
timecard to avoid a policy violation. He also stated that he attributed the
issues with his timecard in part to “mismanagement of time[] and poor
planning.”
Following its investigation, the Division terminated his employment. It
found that the employee had violated numerous administrative rules and the
Professional Standards of Conduct by: traveling to an extra-duty detail during
regular-duty time; wearing an improper uniform during extra-duty detail;
intentionally submitting an inaccurate timecard; and making false statements
during the course of the investigation into his conduct.
The Division determined that the employee’s conduct — specifically, the
adjustment of his timecard and his behavior during the investigation — had
compromised his personal and professional integrity, which the Division
described in its dismissal letter as “one of the most fundamental and valuable
qualities that a State Trooper must possess.” It found that the employee had
lied during the investigation because he initially represented to his supervisor
that any errors on his timecard were an accident, but later stated that he had
intentionally made the entries to avoid violating the policy against traveling to
an extra-duty detail during his regular-duty shift. The Division concluded that
the employee had violated several provisions of the Division’s Professional
Standards of Conduct, including the “Integrity” provision, which provides that
no Division member “shall, under any circumstances, make any false official
statement or intentional misrepresentation of facts.” See N.H. Admin. R., Per
1002.08(b)(7), (12) (listing terminable offenses, including violation of agency
rules and falsification of agency records).
The employee appealed his termination to the PAB. See RSA 21-I:46, I
(2020), :58, I (2020). Following an evidentiary hearing, the PAB ruled that the
employee had violated rules by using regular-duty time to travel to an extra-
duty detail, wearing the wrong uniform while on extra duty, engaging in “poor
record keeping,” and failing to communicate his timekeeping issues to his
superiors in a timely manner. The PAB found that the employee had “recited
the same consistent story” throughout the investigation and deemed him
“credible,” explaining that, although the employee “exercised poor judgment”
and exhibited “inattention to detail and poor time management,” it determined
that those “deficiencies [did] not rise to the level of a termination.” The PAB
concluded that the employee had carried his burden of proving that “his
dismissal was unwarranted by the alleged conduct and unjust in light of the
facts in evidence,” and ordered that he be reinstated subject to a twenty-day
suspension without pay.
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The Division filed a motion for rehearing, which the PAB denied. The
Division then filed this appeal. See Sup. Ct. R. 10. While this appeal was
pending, we granted the Division’s motion to stay the employee’s
reinstatement.
The PAB has discretion to “reinstate an employee or otherwise change or
modify any order of the appointing authority, or make such other order as it
may deem just.” RSA 21-I:58, I; Appeal of N.H. Div. of State Police, 171 N.H.
262, 267 (2018) (“[T]he PAB is vested with discretion to determine whether to
grant relief and how to craft that relief.”). Our review of the PAB’s decision is
governed by RSA 541:13. Appeal of N.H. Div. of State Police, 171 N.H. at 266.
We treat the PAB’s findings of fact as prima facie lawful and reasonable. RSA
541:13 (2021). We will not vacate or set aside the PAB’s decision except for
errors of law, unless we are satisfied, by a preponderance of evidence before us,
that such order is unjust or unreasonable. Appeal of N.H. Div. of State Police,
171 N.H. at 266; see RSA 541:13. In reviewing the PAB’s findings, our task is
not to determine whether we would have found differently or to reweigh the
evidence, but rather to determine whether its findings are supported by
competent evidence in the record. Appeal of Silva, 172 N.H. 183, 186 (2019).
As the appealing party, the Division has the burden to show that the PAB’s
decision is “clearly unreasonable or unlawful.” RSA 541:13.
On appeal, the Division raises two arguments: first, that the PAB’s
decision was unjust or unreasonable because it reinstated a state trooper with
integrity issues; and second, that the PAB erred as a matter of law when it
reinstated the employee contrary to the public policy supporting dismissal of
dishonest troopers. Both of the Division’s arguments are based on the premise
that the PAB found that the employee engaged in dishonest conduct and
violated the Integrity provision of the Professional Standards of Conduct. The
Division asserts that, although the PAB made no explicit finding that the
employee behaved dishonestly or violated the Integrity provision, it made
implicit findings to that effect because it could not have found the employee’s
adjustment of his timecard and his statements during the investigation to be
anything other than dishonest and an Integrity violation. We disagree.
The Division does not argue in the alternative that, if the PAB found
neither an Integrity violation nor dishonest behavior, that determination was
unsupported by the record or erroneous. Nor does it contend that, even if the
PAB found no violation of the Integrity provision and no dishonest conduct, its
reinstatement order was, nevertheless, unjust, unreasonable, or unlawful.
Because both of the Division’s appellate challenges are premised on its
interpretation of the PAB order as finding that the employee engaged in
dishonest conduct and violated the Integrity provision, we first turn to
construing the PAB order itself.
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The interpretation of the PAB’s order presents a question of law for us to
decide. See State v. Surrell, 171 N.H. 82, 88 (2018); Guy v. Town of Temple,
157 N.H. 642, 649 (2008). The PAB expressly found that the employee violated
policies warranting a twenty-day suspension without pay based on “failing to
communicate [his timekeeping] problem to his superiors in a timely manner,
poor record keeping[,] and travelling . . . on state time on the way to a detail
wearing the wrong uniform.” Noticeably absent from this list is conduct rising
to the level of a violation of the Integrity provision or any characterization by
the PAB of the employee’s behavior as dishonest.
The Division points to two actions by the employee that it asserts
demonstrate his dishonesty and his violation of the Integrity provision —
adjusting his timecard, and his statements during the investigation. The PAB,
however, did not view the employee’s behavior regarding those incidents as
dishonest or contrary to the Integrity provision. With regard to the timecard,
although the PAB agreed with the Division’s factual findings — observing that
the employee intentionally “adjusted the hours for October 30 . . . to avoid a
policy violation” — it disagreed with the conclusion that this conduct violated
the Integrity provision. It construed this conduct as a failure of
communication, time management, and attention to detail, rather than an
intentional falsification or misrepresentation of facts.
With respect to the employee’s statements during the investigation, the
PAB disagreed with the Division’s factual determinations. Contrary to the
Division’s finding that the employee lied, the PAB found that, during the
interviews, the employee had “recited the same consistent story,” admitting
“that he paid little attention to detail and that he adjusted the hours . . . to
avoid a policy violation,” and denying “that he ever harbored any intention of
hiding any information.” The PAB also found the employee’s testimony before
it “credible.”
Considering these findings in conjunction with the PAB’s ultimate
conclusion to overturn the employee’s dismissal and instead impose a twenty-
day suspension without pay, we interpret the PAB’s order as finding no
violation of the Integrity provision and as making no finding that the employee
acted dishonestly. Because we reject the premise underlying both of the
Division’s appellate arguments, we conclude that the Division has not met its
burden of demonstrating that the PAB’s decision was “clearly unreasonable or
unlawful.” RSA 541:13.
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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