Petition of New Hampshire Div. of State Police

• Decision Date: 13 February 1985
• Docket Number: No. 84-024,84-024
• Citation: 126 N.H. 72,489 A.2d 103
• Parties: Petition of NEW HAMPSHIRE DIVISION OF STATE POLICE (New Hampshire Personnel Commission).
• Court: New Hampshire Supreme Court

Page 103

489 A.2d 103

126 N.H. 72

Petition of NEW HAMPSHIRE DIVISION OF STATE POLICE (New Hampshire Personnel Commission).

No. 84-024.

Supreme Court of New Hampshire.

Feb. 13, 1985.

Gregory H. Smith, Atty. Gen. (Douglas L. Patch, Asst. Atty. Gen., on brief and orally), for Div. of State Police.

The State Employees' Ass'n of New Hampshire, Inc.(William P. Briggs, Concord, on brief and orally), for Trooper Carl Erickson.

KING, Chief Justice.

The New Hampshire Division of State Police petitioned that a writ of certiorari issue to the New Hampshire Personnel Commission, Promotion Appeal Tribunal, concerning a decision by the appeal tribunal on December 16, 1983.The appeal tribunal issued findings and ordered that New Hampshire State Trooper First ClassCarl Erickson be awarded a promotion to the next available corporal vacancy within the division of State police.On January 6, 1984, the appeal tribunal denied the petition by the division of State police for a rehearing of the appeal tribunal's decision.We reverse the appeal tribunal's order.

On April 19, 1983, ninety-four New Hampshire State Troopers took a written examination administered through the New Hampshire Personnel Department for promotion to the position of corporal.At the time he took that examination, Trooper Erickson had approximately ten years experience with the division of State police.Trooper Erickson tied for second highest score on the written examination and, based on the examination scores, was selected as one of the top eleven candidates.He and the other ten candidates were interviewed by a board of three officers selected by the director of the division of State police to interview the candidates for the five available corporal positions.Trooper Erickson's name was not among the five posted as receiving a promotion to corporal.

On September 19, 1983, the Director of Field Operations of the New Hampshire State Employees Association, on behalf of Trooper Erickson, made a written request for the reasons that Trooper Erickson was not selected for a corporal's position.Colonel Paul F. O'Leary, Director of the division of State police, replied by letter to Trooper Erickson on October 14, 1983, stating that Trooper Erickson was not selected because his "capacity for the position was not at the level of those selected."

Trooper Erickson next appealed to the appeal tribunal, the division's decision not to promote him, pursuant to New Hampshire Personnel CommissionRules, Per. 302.03(f).On December 14, 1983, a hearing was held before the appeal tribunal.Major Campbell testified on behalf of the division at that hearing.He stated that based upon an interview with Trooper Erickson and also upon discussions with Trooper Erickson's superiors, the three-member board concluded that Trooper Erickson lacked tact in dealing with people and that he did not command the respect of his peers.Testimony was also presented by Major Campbell indicating that Trooper Erickson had had eighteen complimentary letters and sixteen letters of complaint during the course of his career with the division.This was a higher ratio of complaints to compliments than that of the five candidates selected for promotion to corporal.Although none of the complaints had led to any formal or written discipline of Trooper Erickson and none was ever substantiated, the fact that a number of people had complained was a factor considered by the board.

The division of State police objects on two grounds to the appeal tribunal's decision to order the promotion of Trooper Erickson.The division claims: (1) that the tribunal's factual findings were erroneous and unsupported by the record; and (2) that the tribunal acted contrary to the law when it ordered Trooper Erickson's promotion.

Following the December 14, 1983 hearing the appeal tribunal made five factual findings: (1) since Trooper Erickson was never apprised of his deficiencies he had every reason to expect a promotion; (2) there were no letters of warning or reprimands from the division in his personnel file; (3)he was unable to adjust or eliminate any of the issues raised by the appointing authority; (4)the State police failed to provide the appeal tribunal with specific examples of his alleged deficiencies; and (5) based on a November, 1982, letter from Major Campbell to Trooper Erickson, the trooper had reason to believe there were no "blackmarks" against him.

In reviewing the appeal tribunal's factual findings on petition for writ of certiorari, this court must determine whether the findings "were unreasonable or unsupported by the evidence."Appeal of Golding, 121 N.H. 1055, 1058, 438 A.2d 292, 294(1981);Melton v. Personnel Comm'n, 119 N.H. 272, 280, 401 A.2d 1060, 1065(1979).We are mindful that in reviewing such findings we must not "substitute our judgment for that of the commission or make findings de novo."Wilson v. State Personnel Comm'n, 118 N.H. 424, 426, 387 A.2d 1160, 1161(1978).After a review of the record before the appeal tribunal in this case, however, we are forced to set aside one of the five findings because it is not supported by the record.

The appeal tribunal's fourth finding was that the division "failed to provide the tribunal with any specific examples of Trooper Erickson's alleged deficiencies."Testimony was presented at the December 14, 1983, hearing by Major Campbell indicating that the three-member board had found, based upon the interview and conversations with his supervisors, that Trooper Erickson lacked tact in dealing with people and did not command the respect of his peers.

Although the appeal tribunal was entitled to determine the credibility of the witness testifying, Appeal of Batchelder, 122 N.H. 362, 364, 444 A.2d 562, 564(1982);Nason v. N.H. Personnel Comm'n, 117 N.H. 140, 143, 370 A.2d 634, 637(1977), a finding that no evidence had been submitted is erroneous.Therefore, we hold that the appeal tribunal's fourth finding, that no evidence was provided by the division, is unsupported by the record and must be set aside.

The division of State police also argues that the tribunal acted unlawfully when it ordered that Trooper Erickson be awarded the next available corporal's position.In order to determine whether the appeal tribunal's action was proper, we must examine the criteria applied by the division when selecting troopers for promotion to the corporal position, as well as the New Hampshire Personnel Commission's regulations governing promotions from within State departments.

The three-member board, designated by the director of the division to assess the relative capacities of the candidates...