Runde v. City of Concord, 85-261
| Decision Date | 05 June 1986 |
| Docket Number | No. 85-261,85-261 |
| Citation | 128 N.H. 175,512 A.2d 408 |
| Parties | Warren N. RUNDE v. CITY OF CONCORD. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass & Green P.A., Manchester (W. Michael Dunn, on brief, and Charles C. Cornelio, on brief, and orally), for plaintiff.
Paul F. Cavanaugh, City Solicitor, Concord, on brief and orally, for defendant.
The plaintiff sought a writ of certiorari in the superior court, to review a decision of the personnel advisory board of the City of Concord imposing disciplinary sanctions against him. The Superior Court (DiClerico, J., acting upon the recommendation of a Master, Robert A. Carignan, Esq.) denied relief. We affirm.
In early November 1982, some firefighters in the Concord Fire Department indicated to one of the department's battalion chiefs that they wished to take a pay telephone station from a fire damaged building. Despite his warning not to do so, the firefighters removed the telephone along with several other fixtures of limited value. When the battalion chief later noticed that the fixtures were missing from the building he suspected that the firefighters had taken them. He so informed the plaintiff, who was then a probationary captain and the superior officer of the suspects. The plaintiff knew nothing about the thefts at that point, but after his own investigation had confirmed the battalion chief's suspicions, the plaintiff ordered his men to return the fixtures.
Ten days later the battalion chief reported the incident to the department chief, who ordered him to investigate and file a report. On the strength of the report, the department chief suspended the firefighters without pay for thirty days, declared them ineligible for promotion for one year and issued letters of reprimand to remain in the firefighters' files for two years. He imposed the same suspension and issued the same reprimand to the plaintiff, but also demoted him to the rank of firefighter subject to performance evaluations for the following six months, and declared him ineligible for promotion or for service in an "acting" capacity at a higher rank for two years.
When the plaintiff appealed, the city personnel advisory board found that the plaintiff "should have known of the activities of the men under his control under [the] circumstances" and concluded that the "episode demonstrates a lack of judgment and adequate attention to responsibility sufficient to justify imposition of discipline, but of a lesser magnitude than that imposed." The board accordingly limited the demotion to the rank of lieutenant and shortened the period of ineligibility for promotion or for service in an "acting" position to one year.
Since the law makes no provision for appeal from the board, the plaintiff petitioned the superior court for review on writ of certiorari. See Sinkevich v. Nashua, 97 N.H. 262, 86 A.2d 562 (1952). After hearing, the trial court denied relief and thereafter denied the plaintiff's motion to introduce further evidence. The plaintiff then appealed to this court.
Although the plaintiff in this case claims that the superior court erred in failing to vacate the determination of ineligibility for promotion and the order of demotion, time had effectively mooted the first claim by the date of the argument before us. We will accordingly confine the appeal to the superior court's refusal to vacate the order of demotion.
On petition for writ of certiorari the jurisdiction of a reviewing court is limited. It has no authority to provide de novo relitigation of the original issues or to substitute its judicial discretion for the administrative judgment below. Sinkevich v. Nashua, supra at 265, 86 A.2d at 564. Rather, a court may grant relief only if the administrative body has exceeded its jurisdiction or authority, has otherwise acted illegally, has abused its discretion, or has acted arbitrarily, unreasonably or capriciously. Appeal of Hollingworth, 122 N.H. 1028, 1032, 453 A.2d 1288, 1290-291 (1982). When, as here, the original certiorari proceeding is in the superior court, the scope of inquiry on appeal to this court is limited further, to determining whether the trial court could reasonably have concluded as it did. Hardy v. State, 122 N.H. 587, 589, 448 A.2d 382, 384 (1982).
The plaintiff claims that the superior court erroneously reached two unreasonable conclusions, in failing to rule that the demotion exceeded the limits of authorized disciplinary action and in failing to find that the demotion was, in any case, unreasonably harsh. He argues that it exceeded the city's authority because the personnel regulations of the fire department make no mention of demotion as a penalty. This argument...
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