Appeal of Theresa Young

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0354, Appeal of Theresa Young, the
court on February 18, 2016, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The petitioner, Theresa Young, the former finance director for
Rockingham County (county), appeals a decision of the county’s personnel
committee (committee) upholding her seven-day suspension, with pay, by the
county’s board of commissioners (board). See RSA 28:10-a (Supp. 2015). She
argues that the evidence did not support findings that she engaged in
actionable misconduct for purposes of RSA 28:10-a. She further argues that
the committee erroneously applied the “good cause” standard of RSA 28:10-a,
III. We assume, without deciding, that this appeal is not moot.

RSA chapter 541 governs our review of the committee’s decision. RSA
28:10-a, III; see Appeal of Strafford County Com’rs, 125 N.H. 287, 288 (1984).
Under RSA 541:13 (2007), we will not set aside the committee’s order except for
errors of law, unless we are satisfied, by a clear preponderance of the evidence,
that it is unjust or unreasonable. The committee’s findings of fact are presumed
prima facie lawful and reasonable. RSA 541:13. In reviewing the committee’s
findings, our task is not to determine whether we would have found differently or
to re-weigh the evidence, but rather, to determine whether the findings are
supported by competent evidence in the record. See In the Matter of Bloomfield,
166 N.H. 475, 478 (2014). We review the committee’s rulings on issues of law de
novo. See id.

We first address whether competent evidence supports findings that the
petitioner engaged in actionable misconduct. RSA 28:10-a, II limits the
circumstances under which county commissioners may discharge, remove, or
suspend a county employee who has been employed for at least one year to
certain enumerated grounds. An employee so disciplined may appeal to the
county’s personnel committee, which must uphold the discipline if it “finds good
cause” for it. RSA 28:10-a, III.

In this case, the committee upheld the board’s findings that the petitioner
engaged in the following courses of conduct, each of which the board determined
warranted her suspension: (1) she refused to follow the board’s instructions to
process a payment to a prior county employee; and (2) she failed to timely apprise
the board of information regarding a New Hampshire Department of Labor (DOL)
audit. The first course of conduct, the board found, constituted “neglect of duty,”
“willful insubordination,” and “lack of cooperation,” three grounds for suspending
an employee under RSA 28:10-a, II. The second course of conduct, according to
the board, amounted to “neglect of duty” and “lack of cooperation.” On appeal,
the petitioner does not argue that the conduct in which the board found that she
had engaged could never satisfy the statutory grounds for discipline. Instead,
she argues that she did not engage in such misconduct under the circumstances
of this case. Accordingly, we examine the record to determine whether competent
evidence supports findings that she engaged in the misconduct.

The first finding that the board relied upon to suspend the petitioner was
that she refused to abide by its instructions to process a payment. The evidence
in the record establishes that on January 22, 2015, the board unanimously
approved a separation agreement with a county employee, which was effective on
that date. The agreement obligated the county to make two payments – a
payment of two weeks’ wages (wages payment), and a payment of “separation
pay.” The agreement also gave the departing employee the right to revoke the
agreement within seven days of executing it, and provided that the two payments
would be made on the next available “regular Employer payroll” after the
departing employee had executed the agreement and the revocation period had
expired. Additionally, the board unanimously approved an “exception request,”
authorizing the wages payment to be made as part of the January 29, 2015
payroll; the petitioner was responsible for processing the wages payment.

On Friday, January 23, 2015, the petitioner sent an e-mail to the board,
noting that although the exception request provided for the wages payment to be
part of the January 29 payroll, the agreement appeared to require that it be made
after January 29. She requested clarification “so that we can process the payroll
correctly this upcoming Monday.” The vice chair of the board, Kevin Coyle,
responded, copying the entire board on his response, by stating that the
departing “employee should be paid the [wages payment] this payroll. The
remaining money’s will be paid later.” Later that same day, the petitioner sent
the board another e-mail explaining that, because the revocation provision
appeared to give the departing employee a right to revoke after January 29, she
believed that the agreement required that the departing employee be paid the
wages payment on the next payday after January 29. Coyle replied, again
copying the entire board, “We expect [the departing employee] to be paid this
payroll as normal, then” to be paid the separation pay on the next payday.

On Saturday, January 24, 2015, the petitioner sent another e-mail to the
board, stating that although she “underst[oo]d and want[ed] to pay the amount
on the payment date [the board] desire[d],” she did not “have authorization from
the board” to pay the departing employee on January 29. She suggested that the
board vote at its next meeting to authorize a payment on Friday, January 30,
2015, the date she believed the revocation period under the agreement would
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expire. The chair of the board, Thomas Tombarello, responded, without copying
the board, by asking whether the petitioner wanted him “to get a vote,” to which
she responded affirmatively. Tombarello then sent the petitioner a second e-mail,
again without copying the board, stating that “[t]he three commissioner[s] want
[the departing employee] paid,” and that “we will deal with the rest.” Later that
day, Coyle sent the petitioner an e-mail, again copied to the entire board, stating
that “[y]ou have been authorized by myself and commissioner Tombarello, please
do as we asked and stop making it more than it has to be.”

The board next met on Wednesday, January 28, 2015; approval of the
January 29 payroll was an agenda item. The board learned at the meeting that
the petitioner had not included the wages payment in the payroll. The petitioner
testified that, based upon her communications with Tombarello on the prior
Saturday, she thought that the board would be voting to authorize the payment
at the meeting. She further testified that a text message she had received from
Tombarello on Monday, January 26, 2015, that his hope was that the departing
employee would be “paid on or before Friday,” confirmed her belief that the board
would vote on Wednesday to authorize a separate Friday payment. Finally, the
petitioner testified that she had consulted with the county’s outside counsel on
the morning of January 28, and that based upon that consultation, she had
suggested to Tombarello that the county could issue the wages payment check
on January 29 as “a whole separate [payroll] run by itself out of the ordinary,”
and mail the check at the end of the day on Friday. However, she also conceded
that by the end of the prior weekend, she understood that the board wanted the
wages payment to be “paid in the first run of the [January 29] payroll.”

In suspending the petitioner, the board unanimously found that she had
“refused” and “deliberately failed to follow the Board’s instructions” to process the
wages payment as part of the regular payroll of January 29, 2015. On appeal,
she argues that the committee erred by upholding those findings because it
“failed to consider her reasons and motives for acting as she did when faced with
unclear and conflicting instructions from the Commissioners.” Thus, the
petitioner asserts that it was unjust, unreasonable, and unlawful for the
committee to find that her “intentions and actions . . . amount[ed] to neglect of
duty, failure to cooperate and willful insubordination.” We disagree.

Coyle sent the petitioner three separate e-mails, each copied to the entire
board, directing her to process the wages payment as part of the January 29
payroll. Coyle’s final e-mail, after the petitioner’s unilateral discussions with
Tombarello concerning a board vote to authorize a January 30 payment,
unequivocally told her that both he and Tombarello had authorized the wages
payment, and directed her to proceed as she had been instructed. Indeed, the
petitioner conceded that, by the end of that weekend, she knew that the board
wanted the wages payment to be “paid in the first run of the [January 29]
payroll.” We conclude that competent evidence in the record reasonably supports
findings that the petitioner engaged in neglect of duty, willful insubordination,
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and lack of cooperation for purposes of RSA 28:10-a, II by refusing and failing to
follow the board’s instructions to process the wages payment.

The second finding that the board relied upon to suspend the petitioner
was that she failed to timely apprise it of important information regarding the
DOL audit. Evidence in the record establishes that the DOL was conducting an
audit of the county throughout much of 2014, and that the petitioner was tasked
with providing the DOL with information in connection with the audit. Although
the board was generally aware of the audit, it found that the petitioner had not
timely advised it that: (1) the DOL had issued a preliminary report to the
petitioner on October 31, 2014; (2) the DOL had proposed civil penalties of
$17,900, and had provided options for resolving those penalties, in
correspondence to the petitioner dated December 5, 2014; and (3) the petitioner
would be attending an informal conference with the DOL on February 4, 2015 to
resolve the penalties. The board found that it first learned of these developments
after the petitioner, on January 29, 2015, requested that the board grant her
settlement authority in connection with the February 4 conference.

At the hearing, the petitioner testified that: (1) on October 23, 2014, she
told her liaison on the board, Commissioner Katharin Pratt, that she was going to
meet with the DOL on October 31 to receive the report; (2) on October 29, 2014,
she advised the board of the October 31 meeting, asked whether anyone wanted
to attend, and was informed that no commissioner would attend; (3) after she
received the report, she notified Pratt; (4) on November 5, 2014, she advised the
board that the report was confidential and that if it accepted it, the report would
become public; (5) the board decided not to accept the report; (6) on or about
December 11, 2014, she received the DOL’s December 5, 2014 correspondence
and notified Pratt; (7) on December 23, 2014, she notified Pratt that the DOL had
scheduled the February 4, 2015 hearing ; (8) on December 31, 2014, Tombarello
was in the petitioner’s office with Pratt, saw the report, and asked what it was, to
which she responded, “Well, that’s the DOL report. Remember, the one that we
decided not to accept?”; and (9) on January 29, 2015, she learned that she would
need settlement authority at the February 4 meeting, and advised the board.
Pratt, who was no longer a commissioner as of January 6 or 7, 2015, generally
corroborated the petitioner’s testimony concerning their communications, the
petitioner’s communications to the board on October 29, and November 5, 2014,
and the December 31 meeting with Tombarello.

In contrast to the testimony of the petitioner and Pratt, Coyle testified that
he first learned of the report, that the DOL was seeking to assess a $17,900 fine,
and that the February 4, 2015 hearing had been scheduled with the DOL, only
when the petitioner requested settlement authority in late January 2015. Coyle
testified that he found it “very disconcerting” to learn that the DOL was assessing
a fine in excess of $17,000 because the DOL “just doesn’t make a telephone call
and say, Hey, you owe $17,000. There’s got to be some kind of document that
assesses a $17,000 fine.” At that point, Coyle testified that he called the county’s
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legal counsel and learned that the DOL had in fact issued its report. According
to Coyle, he attended the November 5, 2014 board meeting. He contested the
assertion of the petitioner and Pratt that the board voted at that meeting not to
receive the DOL report so as to maintain its confidentiality, explaining:

I believe if there was a report and I had known about a report, I
would have wanted to have seen it. Because I want to know – you
know, I’m not afraid of documents being made public. If there’s a
report we did something wrong, then everybody should know. And
that’s always been my philosophy.

If there had been a report, I would have wanted to see it. I
would not have . . . wanted to be held in the dark on it.

In addition to the testimony, the committee had before it the meeting
minutes from October 29, and November 5, 2014. Although the minutes from
the October 29 meeting, which Coyle did not attend, reflect that the petitioner
“provided an update on the DOL audit,” the minutes provide no information
concerning the substance of the “update.” With respect to the November 5
meeting, the minutes are silent as to any discussion concerning the DOL audit.

The committee also had before it e-mails that the petitioner exchanged
with Tombarello in early February 2015 after she had learned that the board
was “entirely unhappy” with her concerning the DOL audit. In her e-mail to
Tombarello, the petitioner purported to remind him of informal conversations
they had shared concerning the DOL audit over the course of it, that at one
point, the DOL had used his office, and that one of their informal conversations
concerned her disappointment that the DOL report “included things we had
shown were not an issue.” Tombarello disputed that the petitioner had ever
briefed him about such matters, and told her to “check [her] notes!” Nowhere
in the e-mail exchange did the petitioner: (1) state that she had briefed the
board on October 29, 2014 that she would be receiving the preliminary report;
(2) claim that the board then voted on November 5, 2014 not to accept the
report so as to maintain its confidentiality; or (3) assert that she had, prior to
her request for settlement authority, advised any member of the board of the
report, the fine assessment, or the February 4, 2015 DOL conference.

On appeal, the petitioner argues that the committee’s approval of her
paid suspension based upon her failure to timely apprise the board of
information concerning the DOL audit is unjust, unlawful, and unreasonable
because she “followed the [board’s] liaison policy, which was the official way
that she was instructed to bring information to the Board,” by routinely
notifying Pratt of such matters. However, whether the petitioner in fact timely
advised Pratt of the relevant developments turns upon the credibility of the
petitioner and Pratt. See Bloomfield, 166 N.H. at 479.

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 The record contains no contemporaneous documents establishing that
the petitioner in fact notified any member of the board of the DOL report, the
fine assessment, or the February 4, 2015 DOL informal conference at any time
prior to January 29, 2015. Moreover, despite the petitioner’s testimony that
the board voted not to accept the DOL preliminary report on November 5, 2014,
the minutes from that meeting are silent as to the DOL audit, and Coyle
unequivocally testified that he would not have voted not to accept the report.
Finally, at no point in her e-mail exchange with Tombarello did the petitioner
assert that she had notified the board of these matters prior to requesting
settlement authority in late January 2015. Under these circumstances, we will
not second-guess the committee’s credibility determinations. See id. We
conclude that competent evidence in the record reasonably supports findings
that the petitioner engaged in neglect of duty and lack of cooperation for
purposes of RSA 28:10-a, II, by failing to timely notify the board of important
information concerning the DOL audit.

Finally, we address whether the committee erroneously applied the “good
cause” standard of RSA 28:10-a, III. The petitioner asserts that this court has
never construed “good cause,” which the statute does not define, within the
context of RSA 28:10-a, and that our review of the committee’s interpretation of
“good cause” is de novo. The petitioner does not, however, argue that the
committee applied an erroneous interpretation of “good cause” in upholding her
suspension. Instead, she assumes the accuracy of the construction of “good
cause” advocated by the board – that it means a legally sufficient reason for the
suspension as articulated in the suspension letter – and argues that “because
the record fails to support any conduct which amounts to neglect of duty,
failure to cooperate and willful insubordination,” the committee erred in
applying that standard. Because we have concluded that the record in fact
contains competent evidence supporting findings that the petitioner engaged in
neglect of duty, willful insubordination, and lack of cooperation for the reasons
articulated by the board in its suspension letter, we reject this argument.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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