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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Personnel Appeals Board
No. 2017-0515


                         APPEAL OF NICOLE COLLINS
                   (New Hampshire Personnel Appeals Board)

                             Argued: April 19, 2018
                          Opinion Issued: June 8, 2018

      State Employees’ Association of New Hampshire, Inc., of Concord (Glenn
R. Milner on the brief, and John Krupski orally), for the petitioner.


      Gordon J. MacDonald, attorney general (Jill A. Perlow, assistant attorney
general, on the brief and orally), for the New Hampshire Department of Health
and Human Services.

      LYNN, C.J. The petitioner, Nicole Collins, appeals the decision of the
New Hampshire Personnel Appeals Board (board) upholding the New
Hampshire Department of Health and Human Services’ (HHS) decision to
dismiss her from employment. We affirm.

      The petitioner began working at HHS in June 2007. She was employed
as an administrative supervisor at the time of her dismissal. Prior to her
termination, she was given letters of warning in April, October, and November
2015, for failing to meet various work standards and working unauthorized
overtime. On April 7, 2016, pursuant to New Hampshire Administrative Rules,
Per 1002.08(d) (Per 1002.08(d)), the petitioner attended an “intent to discipline”
meeting (meeting) with her regional manager and the chief of operations. At
this meeting, the regional manager read from prepared notes outlining
evidence, including the precise case files, dates, and instances, that she
believed supported a decision to dismiss the petitioner. The petitioner had an
opportunity to refute this evidence at the meeting. According to the petitioner,
at the meeting, she also requested the documentation that HHS was relying
upon in making its decision to terminate her, but HHS did not provide her with
the documents at that time. On April 20, HHS issued a letter of dismissal,
which included over 100 pages of evidence supporting the decision. The
petitioner appealed this decision to the board.

      In her appeal to the board, the petitioner argued that HHS violated Per
1002.08(d) and our decision in Appeal of Boulay, 142 N.H. 626 (1998), when
HHS did not provide her with the documents to support its dismissal decision
at the meeting. The board conducted a hearing and found that the petitioner’s
dismissal was lawful. The petitioner filed a motion for rehearing, which the
board denied. This appeal followed.

       RSA chapter 541 (2007) governs our review of the board’s decisions.
Appeal of Alexander, 163 N.H. 397, 400 (2012). Under RSA 541:13, we will not
set aside the board’s order except for errors of law, unless we are satisfied, by a
clear preponderance of the evidence, that it is unjust or unreasonable. RSA
541:13. The board’s findings of fact are presumed prima facie lawful and
reasonable. Id. In reviewing the board’s findings, our task is not to determine
whether we would have found differently or to reweigh the evidence, but rather,
to determine whether the findings are supported by competent evidence in the
record. See In the Matter of Bloomfield, 166 N.H. 475, 478 (2014). We review
de novo the board’s rulings on issues of law. See Appeal of Alexander, 163
N.H. at 401.

      On appeal, the petitioner argues that HHS failed to comply with Per
1002.08(d) and Appeal of Boulay when it did not give her the documentation,
at the meeting, that it relied upon in terminating her employment. Per
1002.08(d) states:

           No appointing authority shall dismiss a classified employee
      under this section until the appointing authority:

      (1) Offers to meet with the employee to discuss whatever evidence
          which the appointing authority believes supports the decision to
          dismiss the employee;

      (2) Offers to provide the employee with an opportunity to refute the
          evidence presented by the appointing authority provided,
          however:


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               a. An employee’s failure to respond to a request for a
                  meeting with the appointing authority shall not bar the
                  appointing authority from dismissing an employee
                  pursuant to this part; and

               b. An employee’s refusal to meet with the appointing
                  authority shall not bar the appointing authority from
                  dismissing an employee pursuant to this part; and

       (3) Documents in writing the nature and extent of the offense.

N.H. Admin. R., Per 1002.08(d). In exercising its discretion, an administrative
agency must follow its own rules and regulations. Appeal of Morin, 140 N.H.
515, 518 (1995). While deference is accorded to an agency’s interpretation of
its regulations, that deference is not total. Id. A reviewing court must still
examine whether the agency’s interpretation is consistent with the language of
the regulation and with the purpose which the regulation was intended to
serve. Id.

      The petitioner relies upon our decision in Appeal of Boulay to argue that
Per 1002.08(d) required HHS to provide her with the documentation, at the
meeting, that supported its decision to terminate her employment. The State
counters that “[t]here is no such requirement stemming from the holding in
Boulay and [HHS’s] actions were consistent with the requirements of Boulay.”
We agree with the State.

      In Appeal of Boulay, the petitioner was terminated from his employment
at the New Hampshire Technical Institute (NHTI) for violating New Hampshire’s
sexual harassment policy. Appeal of Boulay, 142 N.H. at 627. Prior to his
termination, NHTI officials met with the petitioner on various occasions, but
only provided him with “a statement of misconduct and a short summary of
[NHTI’s] investigation.” Id. at 628. The board overturned his termination and
conditionally reinstated him, but denied him back pay and benefits. Id. at 627.
The petitioner appealed the denial of back pay and benefits to this court,
arguing that NHTI violated the administrative rule, Per 1001.08(f),1 by failing to
provide him with all of the evidence it relied upon in terminating his
employment. Id. at 628. We agreed with the petitioner and found that the
information provided was insufficient because NHTI failed to provide
“important details of the investigation, including names of complainants, dates,
and specific details of the alleged misconduct.” Id.
1 This is the prior version of Per 1002.08(d) that was in place when Appeal of Boulay was decided.
We note that the language of Per 1002.08(d) does not precisely mirror the language of former Per
1001.08(f). However, the parties appear to agree that Appeal of Boulay should guide our
interpretation of Per 1002.08(d), and they only dispute whether HHS’s actions complied with our
decision in that case. Accordingly, we assume without deciding that our decision in Appeal of
Boulay controls our interpretation of Per 1002.08(d).


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      As illustrated by Appeal of Boulay, the purpose of Per 1002.08(d) is to
provide adequate notice to the petitioner regarding the reasons why dismissal
is warranted. Id. In Appeal of Boulay it was not NHTI’s failure to produce the
physical documents that violated Per 1001.08(f); rather, it was NHTI’s failure to
produce the specific information contained within those documents. See id.
Thus, neither Appeal of Boulay nor the New Hampshire Administrative Rules
required HHS to provide supporting documentation to the petitioner at the
meeting, so long as HHS provided adequate notice regarding the reasons for its
decision.

       In this case, although the petitioner was not given documents at the
meeting, her regional manager read verbatim from five pages of notes to provide
specific details supporting the dismissal decision. Unlike in Appeal of Boulay,
the petitioner’s manager provided precise details ― including names and dates
― pertaining to instances when the petitioner failed to meet a deadline, follow
specific directives, obtain approval for overtime, and act appropriately and
professionally. The petitioner contends that, because she was not given copies
of the documents at the meeting, she did not have a “meaningful opportunity to
refute” the evidence presented. However, the petitioner acknowledged before
the board that the evidence contained in the dismissal letter included the
evidence discussed with her at the meeting. Thus, the petitioner here had
specific evidence regarding the reasons she was being terminated and could
attempt to refute this evidence, which, based upon our review of the record,
she made some effort to do. The meeting was detailed, thorough, and complied
with Appeal of Boulay and the requirement of Per 1002.08(d) to “meet with the
employee to discuss whatever evidence which the appointing authority believes
supports the decision to dismiss the employee.” N.H. Admin. R., Per
1002.08(d)(1). Accordingly, the petitioner has failed to demonstrate that the
board’s affirmation of HHS’ dismissal decision was unreasonable or unlawful.

       To the extent the petitioner also argues that the board failed to analyze
Per 1002.08(d) “as applied to the facts of this case,” we disagree. The board’s
decision on the petitioner’s motion for rehearing stated that “[d]uring
thoughtful and thorough deliberations, the [b]oard considered the parties’
pleadings, evidence, the testimony of the parties and witnesses, and
arguments, including the [petitioner’s] argument relative to a violation of Per
1002.08(d)(1) & (2).” Thus, the board analyzed Per 1002.08(d) as applied to the
facts of the case.

                                                  Affirmed.

      HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.




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