NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by E-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court's home page is:
http://www.courts.state.nh.us/supreme.

                   THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Personnel Appeals Board
No. 2017-0449


          APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE
                 (New Hampshire Personnel Appeals Board)

                            Argued: April 17, 2018
                      Opinion Issued: September 7, 2018

      Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and
orally), for David Appleby.


      Gordon J. MacDonald, attorney general (Karen A. Schlitzer, senior
assistant attorney general, on the brief and orally), for New Hampshire Division
of State Police.

       BASSETT, J. This appeal arises from the respondent’s, the New
Hampshire Division of State Police (Division), termination of the petitioner,
State Trooper David Appleby, based upon the petitioner’s abandonment of his
extra-duty detail escorting an oversized truck and his conduct in the
subsequent investigations of that incident. The petitioner appealed his
termination to the New Hampshire Personnel Appeals Board (PAB), which
reinstated him. The Division now appeals, arguing that the PAB’s decision to
reinstate the petitioner was unjust and unreasonable because: (1) the standard
set forth in RSA 21-I:58, I (2012) does not permit the PAB to substitute its
judgment for that of the appointing authority; and (2) the PAB failed to
consider the factors provided for in the applicable personnel rule and relied
upon by the Division in reaching its termination decision, including the
petitioner’s prior disciplinary history. We affirm.

       The following facts were found by the PAB, or are otherwise derived from
the administrative record. The petitioner was hired by the Division in 1999,
and worked as a trooper for over fifteen years. He was terminated in August
2015. During his employment, he served in a number of capacities in addition
to his regular trooper duties, including working many extra-duty detail hours.
On May 12, 2015, the petitioner worked an extra-duty detail in which he was
assigned to escort an oversized truck from Claremont to the Massachusetts
border in Plaistow. The truck’s departure was delayed due to mechanical
problems, and the petitioner became concerned that he would not be able to
complete the escort and also arrive on time for his regularly scheduled duties
at Troop F, located in northern New Hampshire. After unsuccessfully seeking
substitute coverage, the petitioner escorted the truck to exit 7 on Route 101.
In order to arrive on time for his regular duties, the petitioner abandoned the
detail before the truck reached the Massachusetts border.

      After the Division received a complaint that the petitioner had violated
rules governing extra-duty details, it initiated an internal investigation.
Although the investigating officer found that the petitioner engaged in
misconduct by failing to communicate appropriately with dispatch during the
escort, he concluded that the petitioner’s errors “were based on mitigating
circumstances and . . . that no further action was necessary.”

      Upon review of that report, a superior officer continued to have concerns
about the petitioner’s conduct, and a further investigation ensued. The officer
discovered that the petitioner’s time sheets reflected that he left the escort at
10:30 a.m. and began his regular-duty shift at 11:00 a.m. However, E-Z pass
records demonstrated that the petitioner drove through the tolls at Hooksett at
11:00 a.m., and did not arrive at Troop F headquarters until two hours later.

       During a subsequent interview with the petitioner, the investigating
officers learned for the first time that he had not completed the escort.
Although the petitioner admitted that he left the escort before reaching the
Massachusetts border, he maintained that he left it in Plaistow, not far from
the border.

       After concluding the investigation, the Division terminated the
petitioner’s employment, finding that he had violated numerous administrative
rules and standards of professional conduct by: (1) traveling from an extra-
duty detail on scheduled regular-duty time; (2) failing to properly communicate
with dispatch during his extra-duty detail; (3) absenting himself from duty
without permission by recording that he was on regular duty while traveling



                                        2
back from the extra-duty detail; (4) making a false official statement or
intentional misrepresentation of fact during the investigations; (5) falsifying his
time sheets; (6) obstructing an internal investigation by withholding
information; and (7) endangering the life, health, or safety of another individual
by leaving the escort early. The Division asserted that, under the personnel
rules, some of these violations constituted terminable offenses, including
“[e]ndangering the life, health or safety of another . . . individual.” See N.H.
Admin. R., Per 1002.08(b)(7), (9), (10), (12). The Division also noted in its
termination letter that, in reaching its conclusion, it had “considered the fact
that this [was] not the first time [the petitioner] [had] been disciplined for
similar infractions” of the professional standards of conduct and the extra-duty
detail policy.

       The petitioner appealed his termination to the PAB. See RSA 21-I:46, I
(2012); RSA 21-I:58, I. After a three-day evidentiary hearing, the PAB
concluded that the petitioner had violated the applicable rules by traveling
from extra-duty detail on scheduled regular-duty time, failing to properly
communicate with dispatch during the escort, absenting himself from duty by
clocking-in on regular-duty time while traveling from the extra-duty detail, and
by endangering the life, health, or safety of another individual. However, the
PAB also found that the petitioner had not violated the rules prohibiting false
official statements or misrepresentations of fact, falsification of agency records,
or obstruction of an internal investigation. The PAB noted that the petitioner,
in response to the mechanical issues that delayed the escort’s start time,
attempted to contact a supervisor for guidance on two occasions, but no
supervisor was available. It also noted that, although the petitioner contacted
the detail desk requesting that he be removed from the escort detail, he was
not successful. In light of these findings, the PAB concluded that the “decision
to dismiss the [petitioner] was unjust in light of the facts in evidence,” and it
ordered that the petitioner be reinstated, subject to a sixty-day suspension
without pay.

      The Division filed a motion for rehearing and reconsideration, which the
PAB denied. In June 2017, the petitioner was reinstated as a trooper. The
Division filed this appeal the following month. See Sup. Ct. R. 10.

       On appeal, the Division argues that the PAB’s decision to reinstate the
petitioner was unreasonable and unjust because: (1) RSA 21-I:58, I, does not
authorize the PAB to “substitute its own judgment for that of the appointing
authority”; and (2) the PAB failed to consider the factors provided for in the
applicable personnel rule and relied upon by the Division in reaching its
termination decision, including the petitioner’s prior disciplinary history.

     Our review of the PAB’s decision is governed by RSA 541:13 (2007).
Appeal of Morton, 158 N.H. 76, 78 (2008). As the appealing party, the Division



                                         3
has the burden to show that the PAB’s decision “is clearly unreasonable or
unlawful.” RSA 541:13. The PAB’s findings of fact are deemed to be prima
facie lawful and reasonable. Appeal of Alexander, 163 N.H. 397, 401 (2012);
see also RSA 541:13. We will not vacate or set aside the PAB’s decision 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. Appeal of
Alexander, 163 N.H. at 401. However, we review the PAB’s interpretations of
statutes and administrative rules de novo. Id.

       Resolution of the present dispute requires us to interpret statutes and
administrative rules. When interpreting both statutes and administrative
rules, we ascribe the plain and ordinary meanings to the words used, looking
at the rule or statutory scheme as a whole, and not piecemeal. Appeal of
Morton, 158 N.H. at 78.

      RSA 21-I:58, I, provides in part:

      If the [PAB] finds that the action complained of was taken by the
      appointing authority for any reason related to politics, religion,
      age, sex, race, color, ethnic background, marital status, or
      disabling condition, or on account of the person’s sexual
      orientation, or was taken in violation of a statute or of rules
      adopted by the director, the employee shall be reinstated to the
      employee’s former position or a position of like seniority, status,
      and pay. . . . In all cases, the [PAB] may 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 (emphasis added). The statute establishes two categories of
relief a permanent employee may receive from the PAB: one mandatory and one
discretionary. See Appeal of Rowan, 142 N.H. 67, 71 (1997) (stating that the
word “may” is permissive and indicates discretion, while “shall” is mandatory).
First, the statute provides that, if the action complained of was taken by the
appointing authority for an impermissible purpose, or violated a statute or
applicable administrative rule, the PAB “shall” reinstate the employee to his or
her former position, or a like position. RSA 21-I:58, I. Second, the statute
provides that, in all appeals that do not warrant mandatory reinstatement
under the above criteria, the PAB is vested with discretion to determine
whether to grant relief and how to craft that relief. RSA 21-I:58, I; see also
Duffy v. City of Dover, 149 N.H. 178, 181 (2003) (“As a general rule of statutory
construction, the word ‘may’ is permissive and implies the use of discretion.”).
The parties agree that this appeal is governed by the discretionary language in
the statute.




                                          4
      The legislature has delegated authority to the PAB to promulgate rules
“regarding procedures for the conduct of its business.” RSA 21-I:46, VII (2012);
see Appeal of Mays, 161 N.H. 470, 473 (2011) (if the legislature so delegates,
boards have the authority to promulgate rules “to fill in the details to effectuate
the purpose of the statute,” so long as those rules do not “add to, detract from,
or modify the statute which they are intended to implement” (quotations
omitted)). New Hampshire Administrative Rule, Per-A 207.12(b) provides:

             (b) In disciplinary appeals, including termination,
      disciplinary demotion, suspension without pay, withholding of an
      employee’s annual increment or issuance of a written warning, the
      board shall determine if the appellant proves by a preponderance
      of the evidence that:

            (1) The disciplinary action was unlawful;

            (2) The appointing authority violated the rules of the division
            of personnel by imposing the disciplinary action under
            appeal;

            (3) The disciplinary action was unwarranted by the alleged
            conduct or failure to meet the work standard in light of the
            facts in evidence; or

            (4) The disciplinary action was unjust in light of the facts in
            evidence.

      The Division argues that the PAB’s reinstatement of the petitioner was
unreasonable and unjust because RSA 21-I:58, I, and the applicable
administrative rules do not allow the PAB to “substitute its own judgment for
that of the [Division], particularly when the [Division] has properly followed the
personnel rules, and the [PAB] found that the employee committed a
terminable offense.” Specifically, it argues that, because the PAB agreed with
the Division that the petitioner committed the terminable offense of
endangering the life, health, or safety of another, it was unjust and
unreasonable for the PAB to reinstate the petitioner. The petitioner counters
that RSA 21-I:58, I, gives the PAB the authority to reinstate an employee even if
it concludes that the employee committed a terminable offense. We agree with
the petitioner that the PAB acted within its authority.

      The PAB held a full evidentiary hearing during which it heard live
testimony from the petitioner and several of the investigating officers, and
received documentary evidence. See N.H. Admin. R., Per-A 207.02(d)(1)
(providing that the PAB “shall convene full evidentiary hearings” for
termination appeals). Under the applicable administrative rules, the petitioner



                                        5
had the burden to prove by a preponderance of the evidence that his
termination was “unwarranted” or “unjust in light of the facts in evidence.”
N.H. Admin. R., Per-A 207.12(a), (b)(3)(4). The PAB, after considering the
evidence and arguments presented, found that the petitioner had violated
several rules — some of which were terminable offenses — but unanimously
voted to grant the appeal and reinstate the petitioner.

       Neither RSA 21-I:58, I, nor the applicable administrative rules limit the
authority of the PAB to reinstate only in situations in which the employee did
not commit a terminable offense. Rather, RSA 21-I:58, I, states that “[i]n all
cases, the [PAB] may reinstate an employee or otherwise change or modify any
order of the appointing authority, or make such other order as it may deem
just.” (Emphasis added.) Therefore, the PAB acted within its authority when it
reinstated the petitioner after concluding that “the [Division’s] decision to
dismiss the [petitioner] was unjust in light of the facts in evidence.”
Accordingly, we conclude that the Division has not met its burden of
demonstrating that the PAB’s ruling was unjust or unreasonable in this
respect. See RSA 541:13.

        The Division next argues that RSA 21-I:58, I, and the applicable
administrative rule require that, in modifying the discipline imposed by the
appointing authority, the PAB consider those factors set forth in the personnel
rule and relied upon by the appointing authority. See N.H. Admin. R., Per
1002.03 (listing factors an appointing authority may consider in determining
appropriate discipline, including, but not limited to, the impact of the conduct
on the functions of the agency, the nature and severity of the conduct in
relation to the employee’s position and responsibilities, and the employee’s
disciplinary record). Specifically, relying on New Hampshire Administrative
Rule Per 1002.03, the Division argues that the decision was unjust and
unreasonable because the PAB overlooked the following relevant factors: (1) the
petitioner’s conduct undermined public trust in the Division and left it open to
civil liability; (2) the severity of the petitioner’s endangerment of public safety in
relation to his position as a trooper; and (3) the petitioner’s disciplinary history,
including prior violations of the extra-duty detail policy. The petitioner
counters that Per 1002.03 applies only to the appointing authority, not to the
PAB, and that its language is permissive, not mandatory. We agree with the
petitioner.

       Neither RSA 21-I:58, I, nor Per 1002.03 requires that the PAB consider
specific evidence or factors as a precondition for modifying the order of the
appointing authority. See RSA 21-I:58, I; N.H. Admin. R., Per 1002.03. Even
assuming that Per 1002.03 applies to the PAB, the rule states that “an
appointing authority may consider” a non-exhaustive list of factors in
determining the appropriate form of discipline — thereby granting discretion
over what factors to consider. N.H. Admin. R., Per 1002.03 (emphasis added).



                                          6
Additionally, we observe that, for the most part, the PAB considered the same
factors as the Division — it merely reached a different conclusion. The PAB
methodically addressed each violation of the rules found by the Division: it
identified the allegations against the petitioner, assessed the evidence
presented before it, and reached a conclusion as to each alleged violation. In
doing so, it considered and assessed the evidence regarding the petitioner’s
endangerment of public safety, and made extensive factual findings regarding
the petitioner’s disciplinary history. Accordingly, we conclude that the Division
has not carried its burden of showing that the PAB’s decision was unjust or
unreasonable in this regard.

       The Division also argues that “if the [PAB] were not required to consider
the reason for the appointing authority’s decision, then the appeal process
would lead to an unjust and absurd result” because it “would eviscerate the
discretion and authority of the appointing authority granted by the rules.” It
further asserts that the personnel system will be undermined if we construe
the statute as not requiring the PAB to consider the factors relied upon by the
appointing authority. We are not persuaded.

      The purpose of the personnel rules is to implement the statutes
governing the Division of Personnel and the PAB, see RSA 21-I:42-:58 (2012 &
Supp. 2017), and “to establish a statewide system of personnel administration
based on . . . sound management techniques.” N.H. Admin. R., Per 101.01.
Under the personnel rules, the appointing authority retains discretion to
discipline its employees. See, e.g., N.H. Admin. R., Per 1002.03. The statutory
and regulatory scheme, as described above, does not eliminate the discretion of
the Division, nor undermine the uniformity or integrity of the personnel
system; rather, it provides a mechanism for review of the appointing authority’s
exercise of discretion. See RSA 21-I:58, I.

       Finally, to the extent that the Division also argues that the PAB’s order
was unjust and unreasonable because it did not impose any discipline for the
petitioner’s two violations of the extra-duty detail rules, we also disagree. The
statute does not require the PAB to impose discipline for every violation of the
administrative rules or standards of professional conduct. See RSA 21-I:58, I.
Here, the PAB did not impose specific sanctions because of the petitioner’s
violations of the extra-duty detail rules. However, the record is clear that the
PAB considered restricting the number of extra-duty details the petitioner
could perform as discipline for those violations, but ultimately deferred to the
Division, stating that the decision about sanctions “should be made by the
[Division].” Therefore, we conclude that the PAB’s decision was not unjust or
unreasonable in this respect.
                                                           Affirmed.

      LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred.



                                        7
