George C. Conkey, II v. Town of Dorchester

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0343, George C. Conkey, II v. Town of
Dorchester, the court on March 16, 2015, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in the case. The
petitioner, George C. Conkey, II, appeals an order of the Superior Court
(Bornstein, J.) granting summary judgment to the respondent, the Town of
Dorchester (Town). We affirm.

Viewed in the light most favorable to the petitioner, the record supports
the following facts. The petitioner is a resident of the Town, a municipality
governed by a board of selectmen (Board). The petitioner has served as the
Town’s highway agent for many years and most recently, in March 2012, was
elected to the position for a two-year term.

In April 2012, the petitioner supervised various projects on Jackson
Drive, a private Town road with emergency lane status. At a meeting in June
2012, the Board rescinded the emergency lane status of Jackson Drive, at
which point it became a private road. The petitioner was present at the
meeting. In October 2012, a resident of Jackson Drive spoke with the
petitioner about constructing a “pull-off” adjacent to the road on which to park
his vehicles because his driveway was difficult to navigate in the winter. The
petitioner delivered six yards of “ditch fill” to Jackson Drive to assist the
resident with the project. The pile of fill sat untouched for one to two weeks
until the petitioner returned to level it during Hurricane Sandy because he
considered it “an impediment to surface water drainage” and he “was
concerned about public safety.” The petitioner had delivered ditch fill to private
properties on other occasions with no repercussions or comments from the
Board.

On November 12, 2012, Board member Sherman Hallock complained to
the New Hampshire State Police that the petitioner had fraudulently used Town
resources, by dumping gravel and using town equipment for work on a private
road that was not maintained by the Town. New Hampshire State Police
Trooper Victor Muzzey investigated the complaint, but found that the alleged
conduct did not rise to the level of a violation of the criminal law. The Board
and the petitioner discussed the complaint at the Board’s November 20
meeting. The petitioner stated that he had dumped a load of ditch fill along the
edge of Jackson Drive and that he later pushed the pile over because it was
blocking water from running into a diversion ditch. The Board questioned the
petitioner about his conduct, and then decided to consult legal counsel about
the incident.

At its December 6, 2012 meeting, the Board voted to go into a nonpublic
session. When back in public session, Hallock directed the Board’s
administrative assistant to terminate the petitioner’s health benefits and stated
that the petitioner’s position would remain vacant until the following March,
when the Town would elect a new highway agent. The petitioner was present
during the public session of that meeting. On December 7, 2012, the petitioner
received a letter stating that the Board had removed him as highway agent
pursuant to RSA 231:65 (2009) because he had “provided materials to a
property owner on Jackson Drive and performed work on that property owner’s
property despite the fact that [he] had been informed, and acknowledged, that
no town materials or equipment were to be used on that private road.” The
letter also informed the petitioner that he could appeal his removal to the
Board.

On December 17, 2012, the petitioner submitted a Right-to-Know
request to the Board, pursuant to RSA chapter 91-A (2013 & Supp. 2014), in
which he sought ten categories of documents. The Board’s response, on
January 3, 2013, included documents that were responsive to six of the
categories of requested documents. As to the other four categories, the Board
responded “Not Applicable.”

On January 7, 2013, the petitioner filed suit against the Town in
superior court, asserting three claims for relief: (1) that the court conduct a de
novo hearing to determine whether his termination was arbitrary, illegal, or
done in bad faith and, if so, to reinstate him; (2) in the alternative, that the
court award him damages for wrongful discharge; and (3) that the court find
that the Board violated the Right-to-Know Law by not producing all documents
responsive to his request. The Town filed a motion for summary judgment as
to all of the claims, to which the petitioner objected. The superior court held a
hearing on the motion on January 30, 2014, after which the Town filed a
supplemental affidavit regarding its response to the petitioner’s Right-to-Know
request. Thereafter, the court granted the Town’s motion for summary
judgment, and this appeal followed. On appeal, the petitioner challenges the
court’s entry of summary judgment in favor of the Town on each of his claims.
We address his arguments in turn.

“In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party.” Camire v. Gunstock Area
Comm’n, 166 N.H. 374, 376 (2014) (quotation omitted). “If our review of that
evidence discloses no genuine issue of material fact, and if the moving party is

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entitled to judgment as a matter of law, we will affirm the grant of summary
judgment.” Id. (quotation omitted). We review the superior court’s application
of the law to the facts de novo. Id. Likewise, “[t]he interpretation of a statute is
a question of law, which we decide de novo.” State v. Etienne, 163 N.H. 57, 71
(2011) (quotation omitted).

The petitioner first argues that because the Board did not grant him a
pre-termination hearing, he is entitled to a de novo hearing in superior court to
review his claim that he was improperly dismissed. RSA 231:65 governs the
petitioner’s employment as highway agent. It states, in pertinent part:

If any highway agent shall intentionally or deliberately refuse or
neglect to comply with lawful instructions of the selectmen, or
shall intentionally or deliberately refuse or neglect to carry out the
duties prescribed by law for highway agents after written request
by the selectmen, the selectmen may remove such agent from
office. The selectmen shall file a copy of any such order of removal,
under their hands, with the town clerk.

RSA 231:65. By its plain language, RSA 231:65 does not provide for either a
pre-termination hearing before the Board or a de novo hearing in superior
court to review the Board’s termination decisions. See Appeal of Doherty, 123
N.H. 508, 509 (1983) (“[I]f the legislature desires a full de novo hearing on
appeal, it knows how to require it by using those words.”) (quotation omitted).
“When the language of a statute is clear on its face, its meaning is not subject
to modification.” Correia v. Town of Alton, 157 N.H. 716, 718 (2008). As there
is thus no genuine issue of material fact as to whether the petitioner has a
statutory right to a de novo hearing in superior court, we conclude that the
court did not err in granting summary judgment in favor of the Town on this
claim.

To the extent that the petitioner argues that he would have no avenue for
relief absent a de novo hearing in superior court, we note that the Board’s
removal letter specifically informed him that he could appeal his removal to the
Board. Because the statute, in effect, restricts the Board from discharging a
highway agent except for “cause,” we recognize that it would be strange if an
individual claiming he was discharged without cause were afforded no
mechanism of redress through which to obtain relief. Cf. Marquay v. Eno, 139
N.H. 708, 721-22 (1995) (“Where no established remedy exists . . . we will not


We will not address the petitioner’s due process argument – mentioned only in passing in his
brief – for which he provided neither developed legal argument, nor citation to legal authority. See
Appeal of Omega Entm’t, 156 N.H. 282, 287 (2007) (“Judicial review is not warranted for
complaints regarding adverse rulings without developed legal argument, and neither passing
reference to constitutional claims nor off-hand invocations of constitutional rights without support
by legal argument or authority warrants extended consideration.”).

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hesitate to exercise our authority to create an appropriate remedy.”). However,
we need not decide what, if any, judicial relief the petitioner would have been
entitled to had he been denied any procedural mechanism to challenge his
discharge because he was afforded such a mechanism in this case — an appeal
to the Board — but did not avail himself of it.

The petitioner next argues that the superior court erroneously granted
summary judgment in favor of the Town on his wrongful termination claim.
We disagree. “We have consistently recognized that the prevailing rule in
employment law is that in the absence of an employment contract, both parties
are free at any time to terminate the employment relationship, with or without
cause.” Porter v. City of Manchester, 151 N.H. 30, 37 (2004) (quotations and
brackets omitted). “This is commonly referred to as the ‘at-will’ rule.” Id.
Wrongful termination is an exception to the at-will rule. See id. at 37-38. In
order to prove wrongful termination, the petitioner must satisfy a two-part test:
first, he “must show that the defendant was motivated by bad faith, malice, or
retaliation in terminating [his] employment,” and second, he must show “that
he was discharged because he performed an act that public policy would
encourage, or refused to do something that public policy would condemn.” Id.
at 38. Employment is presumed to be at-will “absent an agreement to the
contrary,” Leeds v. BAE Sys., 165 N.H. 376, 379 (2013), or when the
employment contract “is for an indefinite period of time and is terminable at
will,” J & M Lumber & Constr. Co. v. Smyjunas, 161 N.H. 714, 725 (2011).

Here, the petitioner’s employment as highway agent was not terminable
at will. To the contrary, under RSA 231:65 the petitioner could be terminated
only if he “intentionally or deliberately refuse[d] or neglect[ed] to comply with
lawful instructions of the selectmen,” or “intentionally or deliberately refuse[d]
or neglect[ed] to carry out the duties prescribed by law for highway agents after
written request by the selectmen.” As explained above, under the statute, the
Board could remove the petitioner only for cause. Furthermore, the petitioner’s
employment was not for an indefinite period of time, as he was elected as
highway agent for a two-year term ending in March 2014. See also RSA
231:62-a(I) (2009) (establishing a two or three-year term for highway agents).
Because the petitioner’s employment was for a fixed term and could be
terminated only for cause, he had significantly greater protection and job
security than an at-will employee.

We have never specifically addressed the question of whether a person
who is not an at-will employee may maintain an action for wrongful
termination, and we find it unnecessary to do so here. The petitioner does not
argue generally that a non-at-will employee can properly maintain a wrongful
termination action. Rather, he bases his argument in support of his right to
maintain a wrongful termination action upon the theory that, without such a
claim, he has no other remedy. However, as explained above, the petitioner did

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have an alternative remedy — an appeal to the Board — of which he failed to
avail himself. Thus, the petitioner’s challenge is based upon a faulty premise.
See Petition of George, 160 N.H. 699, 707 (2010) (rejecting plaintiff’s
constitutional arguments because they “rest[ed] upon a faulty premise”). For
this reason, and because he makes no developed argument that he is entitled
to maintain a wrongful termination action regardless of the availability of other
avenues of relief, we conclude that the superior court did not err in granting
summary judgment for the Town on this claim. Cf. Quinlan v. City of Dover,
136 N.H. 226, 230 (1992) (stating that where the trial court reaches the correct
result but on mistaken grounds, this court will sustain its judgment if there
are valid alternative grounds on which to do so).

Finally, the petitioner argues that the superior court erred in granting
summary judgment to the Town on his Right-to-Know Law claim because the
Town, by improperly determining that certain documents were “not applicable,”
did not respond to his request. Again, we disagree.

The Right-to-Know Law ensures “both the greatest possible public access
to the actions, discussions and records of all public bodies, and their
accountability to the people.” RSA 91-A:1 (2013). To effectuate this purpose,
the law guarantees “every citizen . . . the right to inspect . . . and copy” all
public records, with limited exceptions. RSA 91-A:4 (2013); see 38 Endicott St.
N. v. State Fire Marshal, 163 N.H. 656, 660 (2012). “We review the trial court’s
interpretation of the Right-to-Know Law and its application of the law to
undisputed facts de novo.” 38 Endicott St. N., 163 N.H. at 660.

Although we agree with the petitioner that the Town’s response of “not
applicable” is not a model of clarity — a response that the petitioner did not,
however, seek to clarify prior to filing suit — we do not believe that this
response amounted to a violation of the Right-to-Know Law. In a supplemental
affidavit, Hallock clarified that “any response of ‘Not Applicable’ to the requests
should be construed to mean that the Town is not in possession of any
documents responsive to the requests.” Also, at the January 2014 hearing on
the motion for summary judgment, the Town’s counsel stated that he
personally had checked the Town’s files and had found nothing responsive to
the subject requests.

The affidavit and statement make clear that the Town did not withhold
any responsive documents. See ATV Watch v. N.H. Dep’t of Transp., 161 N.H.
746, 753 (2011) (discussing that the adequacy of an agency’s search for
documents is measured by “reasonableness”; that a search need not be
exhaustive; and that the agency can meet its burden by producing detailed,
non-conclusory affidavits that are submitted in good faith). Instead, the Town
simply did not possess documents responsive to the petitioner’s request under
RSA chapter 91-A. The petitioner does not allege that the above-mentioned

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affidavit or the statement was not made in good faith or that the Town’s efforts
to comply with the Right-to-Know Law were unreasonable, despite his burden
to do so. See id. (“Once the agency meets its burden to show that its search
was reasonable, the burden shifts to the requester to rebut the agency’s
evidence by showing that the search was not reasonable or was not conducted
in good faith.”) (quotations omitted); see also RSA 491:8-a, IV (2010) (stating
that, in a motion for summary judgment, the opposing party “may not rest
upon mere allegations or denials . . . [but instead] must set forth specific facts
showing that there is a genuine issue for trial.”). As there is no genuine issue
of material fact as to whether the Town adequately complied with the
petitioner’s Right-to-Know request, we conclude that the superior court’s grant
of summary judgment in favor of the Town was not improper.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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