Ingersoll v. Williams

• Decision Date: 10 March 1978
• Docket Number: No. 7921,7921
• Citation: 118 N.H. 135,383 A.2d 1119
• Parties: Paul H. INGERSOLL v. Burton W. WILLIAMS et al.
• Court: New Hampshire Supreme Court

Page 1119

383 A.2d 1119

118 N.H. 135

Paul H. INGERSOLL v. Burton W. WILLIAMS et al.

No. 7921.

Supreme Court of New Hampshire.

March 10, 1978.

Joseph F. Wundrok, Bristol, and John J. McCormack, Ashland, for plaintiff.

Upton, Sanders & Smith, Concord (Richard F. Upton, Concord, orally), for defendants.

DOUGLAS, Justice.

The plaintiff, police chief of Bristol, seeks equitable relief to overturn his dismissal without a hearing by the defendants, the selectmen of Bristol. The town of Bristol appoints, rather than elects, its chiefs. Plaintiff's employment was terminated on September 26, 1977, "for cause, namely, poor, inefficient and unprofessional management . . . and conduct detrimental to the good order, reputation and morale of the Department." The plaintiff claims that RSA 41:48 prevents his discharge without a full hearing as governed by RSA ch. 43. Admittedly, those procedures were not followed. Alternatively, he argues that even if RSA 105:2-a (Supp.1975) supersedes RSA 41:48 the contention of the defendants then RSA 105:2-a (Supp.1975) itself requires a full hearing before the selectmen prior to dismissal. Upon recommendation of the Master (Michael L. Slive, Esq.), these questions and a question concerning the burden of proof were transferred without ruling by Johnson, J.

RSA 105:2-a (Supp.1975) concerns only chiefs of police who are appointed rather than elected. It provides that an appointed chief may be dismissed only for cause "after he has been presented with a written specification of the reasons." After his dismissal, he is entitled to a hearing, "on the merits and reasonableness of the action, in superior court . . . ." Thus the plain language of the statute seems to preclude a pretermination hearing before the selectmen. The plaintiff, however, points to the words "for cause" and our decision in Gibbs v. Manchester, 73 N.H. 265, 61 A. 128 (1905). His argument is that when a statute requires cause for dismissal and does not prescribe the mode of procedure, Gibbs requires a full panoply of procedural common-law rights before a discharge can be effectuated.

Such an interpretation of Gibbs is far too broad. The statute in Gibbs restricted removal to " 'good and sufficient cause and after a due hearing.' " Thus the statute itself required a hearing but did not prescribe the form of that hearing. The court reasoned that because a hearing was required and the procedures not specified, the principles of the common law applied. The court presumed that the proceedings authorized by statute were essentially judicial. 73 N.H. at 267, 61 A. at 129. In contrast, the procedure specified in RSA 105:2-a (Supp.1975) does not require a pretermination hearing; it prescribes termination after presentation of a written specification of reasons. A hearing is granted, but in superior court after the dismissal. Cf. RSA 41:48 (hearing for policemen before the selectmen prior to dismissal). The legislature having prescribed the procedure, our interpretation of the statute in Gibbs has no relevance.

Moreover the logic of the plaintiff's argument that dismissal for cause necessarily includes a full common-law pretermination hearing is unavailing. The words "for cause" do not relate to the procedures mandated for a removal. Rather they restrict the scope of the superior authority's power to terminate an employee. That authority can no longer dismiss a subordinate for personal dislike, political disagreement or reasons of that nature. The substance of the reason for dismissal must turn on "some substantial cause, such as corruption or inefficiency in office, infraction of the rules governing the police force, the commission of an infamous crime, or the conviction of a misdemeanor and sentence to imprisonment for a term." Gibbs v. Manchester, supra at 267, 67 A. at 129. Without deciding whether the words "for cause" gives an employee anything more than a subjective expectancy of continued employment, see Desmarais v. Personnel Commission, 117 N.H. ---, 378 A.2d 1361 (1977); McIntosh v. Personnel Commission, 117 N.H. ---, 374 A.2d 436 (1977); cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), we note that a post-termination full judicial hearing is more than adequate to secure the employee's interest. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); cf. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

Because RSA 105:2-a (Supp.1975) does not require a pretermination hearing before a town's selectmen, there is an unavoidable conflict between that provision and RSA 41:48. The latter statute deals with all full-time police officers. All such officers, whether appointed or elected, hold their positions during good behavior "unless sooner removed for cause by the selectmen after notice and hearing . . . ." There is nothing in the statute or our decisions to suggest that chiefs of police were excluded from its coverage. Cf. Gibbs v. Manchester, supra. Hence by its terms, RSA 41:48 affords the plaintiff a pretermination hearing before the Bristol selectmen.

Although repeal by implication is not favored in this State, State v. Miller, 115 N.H. 662, 348 A.2d 345 (1975); Opinion of the Justices, 107 N.H. 325, 221 A.2d 255 (1966), when the natural weight of all the competent evidence demonstrates that the purpose of the latter statute was to supersede the former, the latter statute will control although it does not expressly repeal the former law, Opinion of the Justices, 66 N.H. 629, 33 A. 1076 (1891); see Perkins v. New Hampshire Power Co., 90 N.H. 538, 13 A.2d 475 (1940). Short of express repeal, we fail to see how the legislature could have expressed more clearly that it wanted to remove appointed chiefs of police from the ambit of RSA 41:48. The later statute deals with only one type of police chief one who is appointed. It is clear then that the legislature's mind was focused on one subclass of all police officers. The statutory scheme, as it stands now, makes a clear differentiation between officers who are responsible directly to the selectmen (appointed police chiefs); appointed officers, who are responsible to their chiefs; and elected chiefs, who are responsible to the people of the town.

The plaintiff, however, attempts to use legislative history to preclude that conclusion. Our independent review suggests that legislative record does not support the plaintiff's argument. Essentially the argument consists of three parts: that the legislature knew of RSA 41:48 at the time it enacted RSA 105:2-a (Supp.1975) and would not have abrogated the former provision without saying so explicitly; that there is no reason to afford police chiefs lesser rights than other police officers; and that a supporter of the bill characterized it as an "appeal procedure." However, as we have noted, the statutory language is quite clear. Furthermore, those...