In re Cole, No. 2017-0295
| Decision Date | 16 October 2018 |
| Docket Number | No. 2017-0295 |
| Citation | 171 N.H. 403,196 A.3d 950 |
| Parties | APPEAL OF James COLE (New Hampshire Personnel Appeals Board) |
| Court | New Hampshire Supreme Court |
Gary Snyder and John S. Krupski, of Concord (Mr. Snyder on the brief, and Mr. Krupski orally) for the petitioner.
Gordon J. MacDonald, attorney general (Scott E. Sakowski, assistant attorney general, on the brief and orally), for the respondent.
This appeal arises from the termination from employment of the petitioner, James Cole, by the respondent, the New Hampshire Department of Information Technology (DOIT). The New Hampshire Personnel Appeals Board (PAB) upheld Cole's termination. On appeal, Cole argues that his termination did not comply with New Hampshire Administrative Rules, Per 1002.08 because he did not receive three written letters of warning in accordance with New Hampshire Administrative Rules, Per 1002.04 for the same or substantially similar conduct or offense. DOIT argues that we lack subject matter jurisdiction to decide this case, and, in the alternative, that Cole's termination complied with Per 1002.08 and Per 1002.04. Finding that we have jurisdiction, we affirm the PAB's decision.
The following facts were found by the PAB or are otherwise derived from the record. Cole had been a DOIT employee for fifteen years as of May 2015. During that month, his position was defunded and he was transferred to a new position within DOIT at the New Hampshire Department of Transportation. Cole's supervisor in his new position was Charles Burns.
One of Cole's initial assignments was overhauling an Account Security Form (ASF). This was intended to be a short-term project. Although some aspects of Cole's work on this project were satisfactory, his incorrect processing of other aspects of the overhaul resulted in audits being conducted on the forms to ensure accuracy. Cole was also initially assigned a "Wireless Access Point" Project (WAP). This project required communication with customers who were requesting installation of a WAP, and coordination with the persons who were to install the WAPs. However, Cole's communications were inadequate. This resulted in customers not knowing how to use the WAPs after they were installed, or even that the WAPs had been installed.
On March 1, 2016, Burns issued Cole a memorandum of counsel to document and address his concerns with Cole's work on the ASF and WAP projects. The memorandum included recommended corrective actions to address the problems with both projects. After the memorandum was issued, however, Cole continued to have problems with the ASF project. Customers continued to complain that there were problems with the form. An audit revealed that 20% of a sample of forms that Cole processed contained errors, the majority of which were serious. Cole ultimately performed eleven major revisions to the ASF, but the revised form was substantially similar to the original one and the project took much longer to complete than intended.
On April 13, 2016, Burns issued Cole a letter of warning. The letter cited Cole's "failure to meet any work standard" and "failure to take corrective action as directed" under Per 1002.04(b)(1) and (2) as grounds for its issuance. The letter also detailed Cole's mishandling of the ASF project, and contained a corrective action plan.
On May 6, 2016, Cole was issued a second letter of warning. This letter also cited Cole's "failure to meet any work standard" and "failure to take corrective action as directed" under Per 1002.04(b)(1) and (2). This letter partially concerned Cole's work on the "IMP" project. Cole was originally assigned this project in December of 2015. Cole was responsible for holding a "kickoff" meeting to discuss the details of the project. Despite being reminded on several occasions by Burns about the need to hold the meeting, Cole did not hold one until April 2016. Even after the kickoff meeting was held, there was no timeline for the project and customers did not have some necessary information. The May 6, 2016 letter of warning also addressed issues with a different project that had been assigned to Cole to establish internet connectivity at a particular location. Cole had problems establishing timelines for this project, communicating with interested parties, and keeping customers satisfied. This letter of warning, like the first letter as well as the memorandum, contained a corrective action plan to address the problems identified in the letter.
On June 7, 2016, Burns conducted a performance evaluation of Cole. Burns noted several ongoing concerns, including Cole's lack of communication, his lack of progress and timelines, and general inaccuracies in his work. Two days later, when Burns spoke to Cole about an overdue project, Cole told Burns that he was not given enough time to complete the project. A short time later, Burns saw Cole doing a crossword puzzle at his desk during work hours. When asked if he was on a break, Cole said he was not.
On June 16, 2016, the DOIT Commissioner, Denis Goulet, issued Cole a third letter of warning. This letter stated that the quality of Cole's work continued to be below expectations, as detailed in the June 7 performance evaluation and the previous letters of warning and memorandum of counsel.
The letter also referenced the crossword puzzle incident. Cole was dismissed from employment on July 29, 2016, as detailed in a final notice of dismissal dated August 1, 2016.
Cole appealed his dismissal to the PAB. He was represented by the State Employees' Association/Service Employees' International Union (SEA/SEIU) at the PAB hearing. The PAB heard testimony from Burns, Burns' supervisor, a human resources administrator, and Cole, and received into evidence the memorandum of counsel, the three letters of warning, the June 7 performance evaluation, and the August 1 notice of dismissal. The PAB concluded that the letters of warning were issued for the "same or substantially similar conduct or offenses," thus satisfying the requirements of Per 1002.08(c)(1) for dismissal. The PAB found that "all three ... [letters] were issued to specifically address [Cole's] poor quality of work," and therefore all three letters were issued for "failure to meet any work standard" under Per 1002.04(b)(1). Specifically addressing the third letter and the crossword puzzle incident, the PAB noted that Cole stated he did not have enough time to complete a project, but was then found working on a crossword puzzle shortly afterwards during work hours. The PAB concluded that "[t]he fact [Cole] did not complete the project on time demonstrates that this, too, fits only into the category of failure to meet any work standard [in Per 1002.04(b)(1) ]."
Cole filed a motion for reconsideration and/or rehearing, which the PAB denied. SEA/SEIU filed this appeal thirty days later. DOIT then filed a motion to dismiss the appeal, arguing that we lack jurisdiction because SEA/SEIU named itself as the petitioner in the notice of appeal. A motion to amend the petition for appellate review to include Cole as the captioned petitioner was then filed, as well as an objection to DOIT's motion to dismiss. We denied DOIT's motion without prejudice, with the understanding that the parties would be allowed to brief the issues raised in DOIT's motion in their respective briefs. We granted the motion to amend the appeal document to include Cole as the captioned petitioner. Prior to oral argument, we asked the parties to address the implications of Atwater v. Town of Plainfield, 156 N.H. 265, 931 A.2d 1220 (2007), on the jurisdictional issue raised by DOIT. Both parties submitted memoranda of law on the matter.
On appeal, Cole argues that the PAB misapplied our holding in Appeal of Murdock, 156 N.H. 732, 943 A.2d 757 (2008), as well as Per 1002.08 and Per 1002.04, in reaching its conclusion that the three letters of warning concerned the same or substantially similar conduct. DOIT argues that we lack subject matter jurisdiction to answer this question because the SEA/SEIU initially listed itself, not Cole, as the petitioner in this case, and did not move to amend the appeal document with Cole's name until after the 30-day jurisdictional deadline of RSA 541:6 had passed. See RSA 541:6 (2007).
Because the existence or absence of jurisdiction determines whether we may proceed to the merits of the appeal, we turn first to the jurisdictional issue.
Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought: the extent to which a court can rule on the conduct of persons or the status of things. Gordon v. Town of Rye, 162 N.H. 144, 149, 27 A.3d 644 (2011). In other words, it is a tribunal's authority to adjudicate the type of controversy involved in the action. Id. A court lacks power to hear or determine a case concerning subject matter over which it has no jurisdiction. Id. A party may challenge subject matter jurisdiction at any time during the proceeding, including on appeal, and may not waive subject matter jurisdiction. Id.
Because the scope of our power to hear appeals from the PAB is governed by statute, see RSA 21-I:58, II (2012), a determination of our jurisdiction in this case requires statutory interpretation, see Gordon, 162 N.H. at 150, 27 A.3d 644. The interpretation of a statute is a question of law. STIHL, Inc. v. State of N.H., 168 N.H. 332, 334, 126 A.3d 1192 (2015). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. When construing a statute's meaning, we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to the words used. Id. We interpret statutory provisions in the context of the overall statutory scheme. Id. at 335, 126 A.3d 1192.
Adjudicative decisions made by the PAB are subject to appeals to this court within...
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