Bovaird v. New Hampshire Dep't of Admin. Servs.

• Decision Date: 30 September 2014
• Docket Number: No. 2013–760,2013–760
• Citation: 166 N.H. 755,103 A.3d 1207
• Parties: William BOVAIRD v. NEW HAMPSHIRE DEPARTMENT OF ADMINISTRATIVE SERVICES
• Court: New Hampshire Supreme Court

166 N.H. 755

103 A.3d 1207

William BOVAIRD

v.NEW HAMPSHIRE DEPARTMENT OF ADMINISTRATIVE SERVICES

No. 2013–760

Supreme Court of New Hampshire.

Argued: June 26, 2014

Opinion Issued: September 30, 2014

Law Offices of Shawn J. Sullivan, PLLC, of Concord (Shawn J. Sullivan, on the brief and orally), for the petitioner.

Joseph A. Foster, attorney general (Richard W. Head, associate attorney general, on the brief and orally), for the State.

DALIANIS, C.J.

The New Hampshire Department of Administrative Services (the Department) appeals an order of the Superior Court (Smukler, J.) granting the cross-motion for summary judgment filed by the petitioner, William Bovaird, and denying the Department's motion. We reverse.

The record establishes the following facts. The New Hampshire Department of Health and Human Services (DHHS) employed the petitioner as an Operations Officer I, Labor Grade 20, until it laid him off on October 29, 2009.

The Department then placed the petitioner on its statewide reduction in force list (RIF List). At the time, Chapter 144:65, Laws 2009 (the 2009 Law) governed the rehiring of laid-off state employees. The Department used the RIF List to place qualified laid-off employees into state positions as they became vacant. The Department asserts that, since 1990, it has not interpreted the 2009 Law, or any of its predecessors, to allow a laid-off employee to be rehired into a promotion. The petitioner does not dispute this assertion on appeal.

After the petitioner was laid off, a Supervisor III, Labor Grade 23 position became available. According to the Department, no laid-off employees on the RIF List were eligible for the Supervisor III position; therefore, the Department released the position back to DHHS to be filled by an open-recruitment process. The petitioner applied for, and was eventually hired to fill, the Supervisor III position. He started working in that position on January 25, 2010. In August 2012, the petitioner requested that the Department restore his previously accumulated and unused sick leave, his prior seniority date, and his leave accrual rates, and that it reinstate his longevity pay.

The Department denied the petitioner's request. The petitioner then filed a petition for declaratory judgment and injunctive relief in superior court. He sought an injunction requiring the Department to recognize him as a "recalled employee," rather than a new hire, and to award him his requested benefits. The parties filed cross-motions for summary judgment.

The trial court first determined that the petitioner was a laid-off employee, and, thus, subject to the terms of the 2009 Law. See Laws 2009, 144:65. According to the trial court, the 2009 Law was "clear and unambiguous" and "required" the Department to place the petitioner into the open Supervisor III position since he met the position's minimum qualifications. The trial court also noted that there was "no limitation [in the 2009 Law] precluding promotions." The court determined that, as an employee required to be rehired into a promotion from the RIF List, the petitioner was also entitled to the benefits he sought pursuant to the applicable personnel rules. See N.H. Admin. Rules, Per 1101.06. Therefore, the court granted the petitioner's motion for summary judgment and denied the Department's motion. This appeal followed.

"In reviewing the trial court's rulings on cross-motions for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 282, 75 A.3d 1112 (2013) (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment." Id. (quotation omitted). "We review the trial court's application of the law to the facts de novo ." Cloutier v. State, 163 N.H. 445, 451, 42 A.3d 816 (2012) (quotation omitted).

On appeal, the parties disagree about whether the petitioner was "recalled" or "rehired" into the Supervisor III position. The petitioner contends that, because he "returned to work performing his prior duties with the same employer," there is "no rational reason to find that he was not" recalled and, thus, entitled to the benefits of a recalled employee. See N.H. Admin. Rules, Per 1101.06. The Department counters that the petitioner was not recalled because there are "no facts in the record regarding recalling" the petitioner and because he was not hired into the same classification. The parties also dispute the trial court's interpretation of the 2009 Law.

Resolving these issues requires statutory and regulatory interpretation. We review the trial court's interpretation de novo . See In the Matter of Martin & Martin, 160 N.H. 645, 647, 8 A.3d 60 (2010). "We use the same principles of construction in interpreting administrative rules as we use with statutes." Vector Mktg. Corp. v. N.H. Dep't of Revenue Admin., 156 N.H. 781, 783, 942 A.2d 1261 (2008). "When construing statutes and administrative regulations, we first examine the language used, and, where possible, we ascribe the plain and ordinary meanings to words used." N.H. Resident Ltd. Partners of Lyme Timber Co. v. N.H. Dep't of Revenue Admin., 162 N.H. 98, 101, 27 A.3d 829 (2011).

"Words and phrases in a statute are construed according to the common and approved usage of the language unless from the statute it appears that a different meaning was intended." Id. (quotation omitted). "Additionally, we interpret disputed language of a statute or regulation in the context of the overall statutory or regulatory scheme and not in isolation." Id. "We seek to effectuate the overall legislative purpose and to avoid an absurd or unjust result." Id. We "can neither ignore the plain language of the legislation nor add words which the lawmakers did not see fit to include." Id.

When a state employee is laid off, the employee can be re-employed either by being "recalled" or "rehired." Compare N.H. Admin. Rules, Per 1101.06 (governing recalled employees), with Laws 2009, 144:65 (applying to rehired employees). Recall applies "only to laid off employees or employees demoted in lieu of layoff who return to the same classification within the same agency." N.H. Admin. Rules, Per 1101.06(b). Recalled employees are entitled to benefits, including a restoration of their previously accumulated and unused balance of sick leave and an adjustment of their seniority date. N.H. Admin. Rules, Per 1101.06(c)-(e).

By contrast, laid-off state employees can be "rehired" pursuant to the 2009 Law. See Laws 2009, 144:65. Unlike the provisions governing recalled employees, the 2009 Law contains no limitation requiring rehired employees to return to the "same classification within the same agency." Compare N.H. Admin. Rules, Per 1101.06(b), with Laws 2009, 144:65. Thus, state employees may be rehired into a different agency or classification. See N.H. Resident Ltd. Partners of Lyme Timber Co., 162 N.H. at 101, 27 A.3d 829 (stating that we cannot add words to the statute that the legislature did not see fit to include).

We agree with the Department that the petitioner was rehired and was not recalled. To be recalled, the petitioner would have had to return to a position in the same classification as the position he held prior to his lay off. See N.H. Admin. Rules, Per 1101.06(b). Determining the meaning of "classification" requires an interpretation of various interrelated rules.

The term " ‘[c]lassification’ " is defined as "an orderly arrangement of all positions in the state classified service into separate and distinct classes so that each specific class contains those positions which involve similar duties and responsibilities." N.H. Admin. Rules, Per 102.17 (emphases added). A " ‘[c]lass’ " is a "group of positions which have the same class specification and whose duties, responsibilities, and minimum qualifications are sufficiently similar so that the same schedule of compensation and the same tests of fitness can be applied to each position in the group." N.H. Admin. Rules, Per 102.13 (emphases added). " ‘Class specification’ " is defined as the "written document containing the official title, basic purpose, characteristic duties, distinguishing factors, and the minimum qualifications of a specific class." N.H. Admin. Rules, Per 102.16. " ‘Compensation’ " is "a schedule of pay ... consisting of a minimum through maximum rate of pay for each class of positions, so that all positions within a specific class will be paid according to the same labor grade established for that class. " N.H. Admin. Rules, Per 102.19 (emphasis added). Finally, " ‘[l]abor grade’ means salary grade," N.H. Admin. Rules , Per 102.34, and " ‘[p]romotion’ means the assignment of an employee to a position having a higher salary grade," N.H. Admin. Rules, Per 102.44.

Construing the plain language of these rules together, to be in the same classification requires an employee to be in the same class and hold the same class specification, meaning that the two classifications must have similar duties, responsibilities, and minimum qualifications. See N.H. Admin. Rules, Per 102.13, 102.16, 102.17. Additionally, to be considered the same, the two classifications must also contain the same class title and the same compensation based upon the same labor grade. See N.H. Admin. Rules, Per 102.13, 102.16, 102.19, 102.34, 102.44.

Instead of returning to his position as an Operations Officer I, Labor Grade 20, the petitioner was ultimately hired into a promotion as a Supervisor III, Labor Grade 23, at the same agency. Even assuming that the two positions had similar duties, responsibilities, and minimum qualifications, the Supervisor III position had a different...