Desmarais v. State Personnel Commission

• Decision Date: 11 July 1977
• Docket Number: No. 7602,7602
• Citation: 378 A.2d 1361,117 N.H. 582
• Parties: Wilfred DESMARAIS v. STATE of New Hampshire PERSONNEL COMMISSION.
• Court: New Hampshire Supreme Court

Page 1361

378 A.2d 1361

117 N.H. 582

Wilfred DESMARAIS v.STATE of New Hampshire PERSONNEL COMMISSION.

No. 7602.

Supreme Court of New Hampshire.

July 11, 1977.

Cleveland, Waters & Bass, Concord (Michael C. Moyers, Concord, orally), for plaintiff.

David H. Souter, Atty. Gen., and Wilbur A. Glahn, III, Asst. Atty. Gen., for defendant.

BOIS, Justice.

On March 12, 1976, the plaintiff, formerly head chef of the New Hampshire Hospital, was charged by Major Wheelock, the hospital superintendent, with eleven specific allegations of misconduct.Major Wheelock, noting that under the rules of the department of personnel any one of the alleged instances of misconduct would justify plaintiff's discharge, ordered plaintiff discharged from his position.On appeal to the defendant personnel commission (the "commission"), five of the charges were upheld and relief accordingly denied.One of the commission members, characterizing the evidence against the plaintiff as "flimsy and unreliable," dissented from this decision.Plaintiff now appeals to this court under RSA ch. 541, alleging the evidence to be insufficient to support the charges and, additionally, that his hearing was marked by numerous procedural errors.

We consider first the charges.The commission found substantiation for the following allegations:

"1.In connection with a picnic of the Hospital Security Staff in August 1975, you participated in the stealing of Hospital property namely, paper goods, eating utensils, and food.

"2.In connection with the same picnic, you participated in the stealing of Hospital services namely, food preparation by Hospital employees at the Hospital kitchen.

"5.In connection with weddings of two of Arnold Paradis' sons, you participated in the stealing of Hospital property namely, food.

"6.In connection with the same weddings, you participated in the stealing of Hospital services namely, food preparation by Hospital employees at the Hospital kitchen.

"9.Over an extended period, you have perverted the authority of your office by unfairly discriminating among your subordinates:

(c) You have taken administrative retribution against a subordinate who had cooperated with the State Police in their investigation of the Hospital kitchen."

Obviously these five allegations essentially involve three situations of misconduct: plaintiff's role in a 1975 picnic for the security staff, in certain wedding preparations and in administrative retribution against subordinates cooperating in an official investigation of plaintiff's conduct.

In connection with the "picnic" charges, the commission listed the following findings of fact:

"a.State Police DetectiveThomas Winn testified that Mr. Desmarais admitted to him that hospital services had been used to prepare food for the August, 1975 Security Officers' picnic.

"b.Chief Robert Knapp and Cook Joseph Bigwood testified that New Hampshire Hospital hamburg and potato salad as well as chicken that may have been purchased by the Security Officers were prepared in the Main Kitchen by hospital employees on hospital time.

"c.Chief Bruce Fornia testified that hospital hamburg, hospital rolls, hospital potatoes and hospital paper goods were loaded into a truck at the Main Kitchen to be taken to the Security Officers' picnic.

"d.It is the judgment of the Personnel Commission that the above three acts were done with Mr. Desmarais' knowledge and approval."

Plaintiff concedes the validity of finding "a" respecting the use of hospital services (plaintiff acknowledges that the commission did not have to resort to testimony of a witness as the plaintiff himself testified to the use of such services in the preparation of the food).However, plaintiff points to certain respects in which the findings are allegedly in error.For example, in reference to finding "b", plaintiff notes that it was only witness Bigwood, and not witness Knapp, who characterized certain of the food as hospital food.Plaintiff's essential arguments against the commission's finding of guilt on the picnic charges are: (1) that the evidence relied upon was "puny," and (2) that, even if he did provide hospital food and services, this conduct cannot be considered wrongful in view of the undisputed evidence that the hospital on numerous occasions sanctioned the provision of food and food services to nonpatients.

Plaintiff's characterization of the evidence as "puny" is based on the contrary testimony of plaintiff and other witnesses and the fact that certain of the evidence cited by the commission is circumstantial and allegedly "weak."Plaintiff notes that the proof that the picnic hamburger was in fact hospital hamburger consisted principally of testimony that it was wrapped like hospital hamburger (as opposed to a commercial wrapping), and that there was evidence by plaintiff's witnesses indicating the hamburger had been commercially purchased.

We do not sit as a trier of fact in these matters.Administrative findings of fact are deemed to be "prima facie lawful and reasonable."We may not vacate the decision of the commission unless we find that it is "unjust or unreasonable."RSA 541:13."(I)t is not the function of this court or any member of it to substitute its judgment on factual matters for the findings of the personnel commission . . . ."McIntosh v. Personnel Comm'n, 117 N.H. ---, ---, 374 A.2d 436, 440(1977)(Kenison, C. J., concurring)."As a fact-finding tribunal, the Commission was at liberty to resolve any conflict in the evidence and to accept or reject such portions of the testimony as it saw fit.The Commission's findings and conclusions are entitled to great weight and cannot be set aside lightly.On the record before us, we cannot say that the dismissal of plaintiff's appeal was 'unjust or unreasonable.' "Peabody v. State Personnel Comm'n, 109 N.H. 152, 155, 245 A.2d 77, 79(1968).(Citations omitted.)

Because we might give more or less weight to the inferences arising from certain facts is not a proper basis for overturning the commission's decision.We cannot second-guess the commission's implicit decision discrediting plaintiff's testimony and the testimony of those testifying in his favor.During closing argument before the commission, plaintiff's attorney summarized the picnic dispute as follows:

"(R)egarding the security staff picnic . . . this boils down to the question of 'who do you believe.' "

We agree and accordingly hold the evidence relied upon to be sufficient.

Plaintiff in the alternative argues that the alleged provision of food and services for the picnic should not in any event be considered wrongful since the hospital provided such amenities for many types of nonpatient gatherings.The evidence shows that food and services were regularly provided for all manner of staff meetings and for many "special occasions."However, it was generally not shown whether these various affairs had official sanction of some sort or whether the beneficiaries paid for them in some manner.

The hospital had no clear written guidelines as to when the provision of nonpatient food and services was proper, and over the course of the years the control of this matter by hospital authorities has been lax and susceptible to abuse.Notwithstanding these observations, it is evident that the conduct alleged here was wrongful.Employees worked under a system in which meals eaten at the hospital cafeteria were to be paid for.The planned picnic, to the extent that it drew without charge upon the hospital's food and services, constituted a meal "on the state."No such employee benefit had been officially approved or sanctioned, and those involved in preparing the picnic had no basis for concluding that the participants were somehow removed from the...