Melton v. Personnel Commission, 78-168

• Decision Date: 09 May 1979
• Docket Number: No. 78-168,78-168
• Citation: 401 A.2d 1060,119 N.H. 272
• Parties: Jack E. MELTON, Superintendent of the Laconia State School and Training Center and Amy Perry v. The PERSONNEL COMMISSION of the State of New Hampshire and the State Employees' Association and Marianne Fields.
• Court: New Hampshire Supreme Court

Page 1060

401 A.2d 1060

119 N.H. 272

Jack E. MELTON, Superintendent of the Laconia State School and Training Center and Amy Perry v. The PERSONNEL COMMISSION of the State of New Hampshire and the State Employees' Association and Marianne Fields.

No. 78-168.

Supreme Court of New Hampshire.

May 9, 1979.

Gallagher, Callahan & Gartrell, P.A., Concord (Edward E. Shumaker, III, Concord, orally), for plaintiffs.

Thomas D. Rath, Atty. Gen. (Steven J. McAuliffe, Concord, attorney, orally), for the defendant Personnel Commission.

Cleveland, Waters & Bass, Concord (Howard J. Zibel, Concord, orally), for the defendants BOIS, Justice.

State Employees' Association and Marianne Fields.

This is a petition for a writ of certiorari, RSA 490:4 (Supp.1977). The plaintiffs seek review of a decision by the Personnel Commission of the State of New Hampshire (commission), which interpreted and applied rules of the department of personnel.

Plaintiff Melton, superintendent of the Laconia State School (school) and an appointing authority, within the meaning of RSA ch. 98 and the department of personnel rules, interviewed several applicants to fill a new position at the school. Plaintiff Perry, who had recently entered State service, and was classified as a probationary employee, was selected over other qualified candidates who were permanent State employees.

The State Employees' Association (SEA), representing the permanent employees, filed grievances with Superintendent Melton, alleging that a qualified permanent employee should have been selected rather than the better qualified probationary employee. The superintendent denied the grievances on the ground that Amy Perry, "having more skills and aptitude for the position than the other applicants," was the best candidate. The SEA appealed the superintendent's decision to the commission.

A hearing was held on May 25, 1978. The SEA argued that the Department of Personnel Rule II, Section 3 mandates that "preference" must be accorded to permanent employees. In pertinent part, the rule reads as follows:

A vacancy shall be filled whenever possible and reasonable by promotion of a qualified permanent employee from within the department or agency.

Selection for such promotion shall be based upon capacity for the vacant position, ability as evidenced by past performance, and length of service with the department.

The aggrieved applicants did not testify and SEA offered no evidence other than the job description for the position in question. The commission declined to hear testimony from the plaintiff Perry concerning her qualifications, stating that "(w)e don't question the qualifications of all the applicants and Mrs. Perry, and we feel it is our job to make a decision on whether or not the personnel rule has been followed in this particular instance."

The school introduced testimony of Dr. Vincent Smith, who had interviewed the applicants and had initiated the selection of Amy Perry. The doctor testified at length concerning the duties and responsibilities of the position, the qualities desired in the person to be hired, and all the attendant factors that he considered in reaching his hiring recommendation. He was aware of Rule II, Section 3, and stated that he had selected the "best candidate for the position." Dr. Smith admitted that all of the applicants were qualified and that if Mrs. Perry had not applied, the position would have been given to one of the other persons who had applied. He agreed that it would not have been unreasonable to hire the other applicants if Amy Perry had not been an applicant and that he thought "it's most reasonable to hire the best qualified candidate for the position and that's the way I interpret that phrase 'possible and reasonable.' "

On May 31, 1978, the commission issued a decision which in pertinent part reads as follows:

The New Hampshire Personnel Commission, having heard and considered the promotion appeal . . . has unanimously voted that the position . . . presently held by Mrs. Amy Perry be vacated by Mrs. Perry as of June 9, 1978 and that it be filled by the promotion of one of the appellants.

In reaching this decision the Commission finds as follows:

1. Section 3, Rule II, "Rules of the Department of Personnel" is quite clear in its statement that "a vacancy shall be filled whenever possible and reasonable by promotion of a qualified permanent employee from within the department or agency."

Testimony clearly indicated that all employees appealing were qualified but that Mrs. Perry, a probationary employee with short term employment, exceeded the minimum qualifications for the position under question. While this may well be the situation, the fact remains that permanent employees were qualified but one was not selected.

The position of the Laconia State School and Training Center is one of reasonableness . . . . However, . . . all appealing candidates seeking the promotion are qualified, . . . . In addition, no testimony was brought forward indicating that any of the appellants could not perform the functions of Assistant Resident Case Manager.

2. The School, by agreeing that a Probationary employee exceeded the qualifications, actually was superimposing additional minimum qualifications upon those contained in the specification established January 22, 1976 for the classification. . .

3. The spirit and intent of the Rules were not followed. Under General Statement of Policy, Section I E, Purpose of Rules reads "That state service, as far as practicable, be made attractive as a career, encouraging each employee to render his best services to the state." This tenet is one of the cornerstones of a sound merit system of personnel administration and must be adhered to.

The commission denied requests to stay the implementation of its order. In compliance with the decision, the position was vacated and plaintiff Perry was replaced by the defendant Fields, one of the original qualified permanent employees who had applied.

Review was sought by writ of certiorari because the appeal provisions of RSA 98:15, which refer to any "permanent" employee, do not apply to promotions and therefore the parties are not entitled to the appellate procedures under RSA ch. 541. See Wilson v. Personnel Comm'n, 117 N.H. 783, 378 A.2d 1375 (1977); Tasker v. Personnel Comm'n, 115 N.H. 204, 206, 338 A.2d 543, 544 (1975).

Motions filed in this court have raised procedural issues that we elect to consider. First, we decide whether Superintendent Melton, an appointing authority of a State agency, has standing to petition for a writ of certiorari in this court challenging the commission's reversal of his hiring decision. Second, we decide whether the commission, as a quasi-judicial entity seeking to vindicate its administrative decision, is a proper party defendant in a certiorari proceeding. When examining procedural aspects of certiorari petitions, we will look to analogous statutory administrative appeals processes and the case law that has concerned them to provide a "fair guideline." Wilson v. Personnel Comm'n, 117 N.H. 783, 785, 378 A.2d 1375, 1377 (1977).

MELTON'S STANDING

We first review the statutory rights of appeal under RSA 98:14, :15 and RSA ch. 541. The legislature, in creating the personnel system, has provided for review of the commission's actions by permitting liberal appellate rights. RSA 98:14 (hearings) allows "(a)ny employee affected by the allocation of a position in a classification" to be heard by the director and, if dissatisfied, to appeal to the commission. No further statutory right of appeal is granted. However, in an attempted appeal under this section we have held that "(a)lthough the plaintiffs have mistaken their remedy, our practice permits consideration of their petition as one for writ of certiorari." Winn v. Jordan, 101 N.H. 65, 67, 133 A.2d 485, 487 (1957). RSA 98:15 (appeal) permits permanent employees "who are dismissed or suspended" an appeal to the commission for review. "(T)he appealing employee and the appointing authority . . . shall have a right to be heard . . . . Any action or decision (of the commission) shall be subject to . . . appeal as provided in RSA 541." RSA 98:15.

A uniform statutory right of appeal was provided by the legislative enactment of RSA ch. 541 entitled "Certain rehearings and appeals." Section 3 (motion for a The choice of general all inclusive language in the designation of parties, coupled with the statutory scheme of appeal, shows a legislative intent to provide for judicial review of rulemaking orders and adjudicatory decisions of commissions and administrative agencies. This appellate procedure conforms to "the constitutional mandate that questions of law belong to the judiciary for final determination, as a necessary deduction of the required separation of the legislative, executive and judicial powers of government, Const., Part 1, Art. 37." Cloutier v. State Milk Control Board, 92 N.H. 199, 201-02, 28 A.2d 554, 556 (1942). Determining whether an administrative action is reasonable " 'is a question of law which the (plaintiff is) entitled to have judicially determined. Individual rights should not be overridden without judicial review.' " H. P. Hood & Sons, Inc. v. Boucher, 98 N.H. 399, 402, 101 A.2d 466, 468 (1953), Quoting Richardson v. Beattie, 98 N.H. 71, 75, 95 A.2d 122, 125 (1953).

rehearing) permits any party to the action or "any person directly affected" by an order of the commission to apply for a rehearing. Section 6 (appeal) then permits an applicant to appeal to this court after such a rehearing. Section 8 (parties) provides that "(a)ny person or corporation whose rights may be directly affected . . . may appear and become a party, or the court may order such persons and corporations to be joined as parties as justice may require." "The word 'person' may . . . be applied to bodies corporate and politic as well as to individuals." RSA 21:9. See also City of Keene...