Jeannont v. New Hampshire Personnel Commission

• Decision Date: 27 September 1978
• Docket Number: No. 7756,7756
• Citation: 118 N.H. 597,392 A.2d 1193
• Parties: Bruce K. JEANNONT v. NEW HAMPSHIRE PERSONNEL COMMISSION.
• Court: New Hampshire Supreme Court

Page 1193

392 A.2d 1193

118 N.H. 597

Bruce K. JEANNONT v. NEW HAMPSHIRE PERSONNEL COMMISSION.

No. 7756.

Supreme Court of New Hampshire.

Sept. 27, 1978.

Cleveland, Waters & Bass, Concord (Robert T. Clark, Concord, orally), for plaintiff.

David H. Souter, Atty. Gen. (David W. Marshall, Asst. Atty. Gen., orally), for defendant.

PER CURIAM.

Appeal under RSA 541:6 from an order of the State personnel commission (hereinafter the commission) awarding the plaintiff damages resulting from his improper discharge. The issue presented is whether the measure of damages awarded by the commission is by a clear preponderance of the evidence unlawful, unjust, or unreasonable. RSA 541:13.

From January 1973 until his discharge on November 7, 1974, the plaintiff was employed by the New Hampshire Office of Manpower Affairs (hereinafter OMA). In Jeannont v. N. H. Pers. Comm'n, 116 N.H. 376, 359 A.2d 638 (1976), this court held that the plaintiff was a classified employee in the State classified service by virtue of RSA 98:2(e). His employment, compensation, and removal became matters under the jurisdiction of the commission, RSA 98:3, to be regulated according to the State employees personnel system, and he was therefore entitled to "whatever relief RSA ch. 98 and the rules and regulations promulgated thereunder provide to a classified employee who, from the record before us, has been improperly terminated." Jeannont v. N. H. Pers. Comm'n, supra at 378, 359 A.2d at 640.

RSA 98:15 provides, in pertinent part:

If the commission finds that the action complained of was taken by the appointing authority for any political, religious or racial reason, the employee shall be reinstated to his former position or a position of like seniority, status and pay, without loss of pay for the period of his suspension. In all cases, the commission 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.

The commission subsequently offered to reinstate the plaintiff to his former position pursuant to RSA 98:15 if he reported to work on December 17, 1976. The plaintiff objected to the terms of the commission's offer of reinstatement and refused to report to work on that date. The parties were subsequently unable to reach any further agreement concerning the plaintiff's reinstatement.

On January 14, 1977, the commission held a hearing on the plaintiff's claim for monetary damages pursuant to RSA 98:15. On January 17, 1977, the commission issued a decision granting the plaintiff the following relief $35,737.90 in salary at the rate of Labor Grade 27, maximum step, for the period from December 5, 1974 to December 17, 1976, less $31,126.18 earned by plaintiff during that period, for a total of $4,611.72.

The plaintiff moved for a rehearing. On February 11, 1977, the commission granted the plaintiff a limited rehearing, but affirmed its denial of the plaintiff's claims for life insurance, retirement benefits, medical expenses, annual leave benefits, interest, costs and attorney's fees. On March 4, 1977, the commission awarded the plaintiff an additional $1,410 for commuting expenses he incurred in traveling to a job held in Boston from February 1975 to March 1976. The commission denied the plaintiff's request for moving expenses and housing costs incurred in connection with a job in Bridgeport, Connecticut.

RSA ch. 541 appeals are controlled by RSA 541:13, which sets forth the burden of proof and the limits of our review:

Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful, and all findings of the commission upon all questions of fact properly before it shall be deemed to be Prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

See Colburn v. Pers. Comm'n, 118 N.H. ---, 382 A.2d 907 (1978); O'Loughlin v. N. H. Personnel Commission, 117 N.H. ---, 380 A.2d 1094 (1977).

A. The plaintiff argues that the assignment of labor grade 27 to measure his lost salary violates RSA 98:13 XIII, which he contends entitles him to a computation of his lost salary based upon the same salary and classification that those with similar duties and responsibilities received. See Slayton v. Personnel Commission, 117 N.H. 206, 371 A.2d 1159 (1977). The record reveals that some preliminary consideration had been given to the assignment of a salary level and labor grade to the position held by the plaintiff, but that the job had never been classified and that the salaries paid to him (and the higher ones paid to his successors) had not been set or approved by the director of personnel as required by the statute. See RSA 98:13 XIII.

The evaluation of the duties and responsibilities of positions in determining the labor grades to be assigned is executive or administrative rather than judicial. Winn v. Jordan, 101 N.H. 65, 133 A.2d 485 (1957). In Wilson v. Personnel Commission, 118 N.H. ---, 387 A.2d 1160 (1978) because that case was before us on certiorari, we held that the only question for the court was whether the commission had abused its discretion or acted arbitrarily, unreasonably or capriciously. The instant case is before us on an RSA ch. 541 appeal and, therefore, we are governed by the standard of review prescribed by that statute which is less stringent than on certiorari. Nevertheless, although there is evidence in the instant case to support a finding either way, we cannot say that the commission's determination was unjust or unreasonable on this point.

B. The plaintiff's award properly included the actual costs he reasonably incurred in obtaining and continuing in replacement employment, which would not have been incurred but for his discharge. The record shows that the plaintiff spent $20.98 per day to commute to his employment with the department of labor in Boston. These additional expenses were reasonably incurred by the plaintiff to obtain replacement income, which income the commission correctly considered in computing the plaintiff's total award. The plaintiff therefore should be credited with these expenses, less the expenses he would otherwise have incurred had he continued in his employment at OMA. Considering the evidence, we cannot say that the decision of the commission in denying reimbursement to the plaintiff for moving expenses and a capital loss, if any, sustained in the sale of his home was unjust, unreasonable or an error of law.

C. The commission's award of damages may not arbitrarily deny the plaintiff recovery for the full compensation that he would have received had he not been wrongfully terminated. An employee's compensation is not necessarily limited to his salary, but will include any other benefits that are an integral part of the employee's contemplated compensation....