Appeal of Derek Holston

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0355, Appeal of Derek Holston, the court
on February 22, 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 appellant, Derek Holston (trooper), appeals a decision of the New
Hampshire Personnel Appeals Board (PAB) upholding his five-day disciplinary
suspension without pay by the New Hampshire Department of Safety – Division
of State Police (NHSP). See RSA 21-I:58, II (2012); N.H. Admin. Rules, Per
1002.06(a)(2). He contends that the PAB erred by: (1) upholding the discipline
imposed upon him by the NHSP “on grounds which were not raised during the
underlying proceedings”; and (2) finding that he violated sections 1.2.C,
2.1.B.3, 2.2.A, 2.3.C.5, and 2.3.C.6 of chapter 41-GA of the NHSP’s
Professional Standards of Conduct, entitled “Pursuit Driving.”

RSA chapter 541 governs our review of PAB decisions. See Appeal of
Waterman, 154 N.H. 437, 439 (2006). Under RSA 541:13 (2007), we will not
set aside the PAB’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
PAB’s findings of fact are presumed prima facie lawful and reasonable. RSA
541:13. In reviewing the PAB’s findings, our task is not to determine whether
we would have found differently or to reweigh the evidence, but rather, to
determine whether the findings are supported by competent evidence in the
record. Appeal of Armaganian, 147 N.H. 158, 168 (2001). We review the PAB’s
rulings on issues of law de novo. Appeal of Murdock, 156 N.H. 732, 735
(2008).

We first address the trooper’s argument that the PAB violated his state
and federal due process rights by upholding his suspension on the basis that
he violated NHSP policies other than those that he was suspended for violating.
He argues that the NHSP did not allege that he violated these sections and, as
a result, he lacked notice. We first address the trooper’s argument under the
State Constitution and rely on federal law only to aid in our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

Because the trooper had no protected property right in his job, the
procedure the State chooses to afford him accords with the mandates of the
Due Process Clause. See Colburn v. Personnel Commission, 118 N.H. 60, 64
(1978). The trooper argues that the State’s regulations required that he receive
notice of the issues to be litigated. The fundamental requisite of due process is
the right to be heard at a meaningful time and in a meaningful manner.
Appeal of Hiscoe, 147 N.H. 223, 227 (2001). To that end, we have held that
adequate notice is that which is reasonably calculated to give the parties actual
notice of the issues to be decided at the hearing. Id.

In this case, the PAB found that the trooper had violated five sections of
the NHSP’s policy governing pursuits: 1.2.C, 2.1.B.3, 2.2.A, 2.3.C.5, and
2.3.C.6. The NHSP’s written suspension notice stated that the trooper had
violated, among other provisions, sections 2.2.A.7.a and 2.3.C.5 of the policy.
Although the suspension notice did not state that he had violated section
1.2.C, it did state that he violated RSA 265:8 (2014), which is set forth
verbatim in Section 1.2.C. Thus, the written suspension notice informed the
trooper that he was suspended for violating the same policy requirements that
the PAB found he had violated, except for sections 2.1.B.3 and 2.3.C.6.

We conclude that section 2.1.B.3 is integrally related to the other
provisions identified in the suspension notice. Section 2.1.B.3 identifies factors
that a trooper must consider when assessing the “[d]egree of risk created by [a]
pursuit,” including the “[v]olume, type, speed and direction of vehicle traffic,”
the “[n]ature of the area,” including whether it is a school zone, and the
“population density.” The suspension notice provided ample notice that the
trooper was suspended as a result of his decision not to terminate his pursuit
of a suspected stolen vehicle.

Furthermore, section 2.2.A.7.a requires a trooper in pursuit of a felon to
give “serious consideration” to “the need to apprehend and the duty to protect
life.” Such consideration would necessarily include an assessment of the
degree of risk created by the pursuit, which would require consideration of the
factors listed in section 2.1.B.3. Similarly, we conclude that sections 2.3.C.5
and 2.3.C.6 are integrally related because they both address information to be
communicated during a pursuit.

Accordingly, we conclude that the trooper had sufficient notice that the
PAB would review his decision not to terminate his pursuit and would look to
the NHSP policy on pursuit driving, including the factors in section 2.1.B.3,
which he should have considered in making that decision, and the factors in
section 2.3.C.6, which identified the information he should have communicated
during the pursuit.

We conclude that the PAB did not violate the trooper’s state due process
right. The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. See Petition of Kilton,
156 N.H. 632, 646 (2007). Accordingly, we reach the same result under the
Federal Constitution as we do under the State Constitution.
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 We next address the trooper’s arguments regarding the PAB’s findings
that he violated specific sections of the NHSP’s policy on pursuit driving. He
contends, first, that “it is impossible to conclude that [he] violated a general
admonition against unsafe driving [contained in section 1.2.C], while
simultaneously finding that he did not violate . . . any specific guidelines
governing operation of a motor vehicle during a vehicle pursuit.” Section 1.2.C
states that a trooper conducting a pursuit must “drive with due regard for the
safety of all persons” and is not protected from “the consequences of his
reckless disregard for the safety of others.” The PAB found that the trooper
was “traveling at a high rate of speed in a residential zone and through a school
zone and in a dangerous manner that posed a risk of injury to him as well as to
others,” that he “engaged in conduct that posed a risk of harm to [himself] as
well as to the public when [he] travelled in the breakdown lane, then on the
sidewalk, then on the other side of the yellow line with oncoming traffic,” and
that he “operated his cruiser in an unsafe manner.” These findings were
supported by the trooper’s testimony and by the video from his dashboard
camera, which we have viewed. Although the PAB did not find that the trooper
violated section 2.4, which imposes absolute restrictions on vehicle pursuits,
based upon these findings, we conclude that the PAB’s decision that the
trooper violated section 1.2.C was not unjust or unreasonable.

Second, the trooper argues that the PAB’s finding that he violated
sections 2.1.B.3 and 2.2.A is unreasonable because he “did consider, multiple
times, the circumstances of the pursuit and whether it should proceed.”
Section 2.1.B.3 identifies factors that a trooper should consider when
determining the “[d]egree of risk created by pursuit.” Section 2.2.A.7.a requires
a trooper conducting a pursuit of a felon that “will take the vehicles into a
downtown area or through an elementary school zone during school hours” to
give “serious consideration” to “the need to apprehend and the duty to protect
life.” Although the trooper testified that he considered terminating the pursuit,
the PAB was not required to credit that testimony. See Armaganian, 147 N.H.
at 163 (stating PAB not required to believe even uncontroverted evidence). We
conclude that the PAB could have reasonably inferred from all the
circumstances, including its view of the video, that the trooper did not
seriously consider terminating the pursuit.

Finally, the trooper argues that the PAB’s finding that he violated
sections 2.3.C.5 and 2.3.C.6 is unreasonable because “[w]ith the exception of
the speed of the pursued vehicle . . . [he] communicated all other information
he was required to convey.” Section 2.3.C.5 requires a trooper engaged in a
pursuit to “provide as much information as is known” regarding the pursued
vehicle’s speed. The trooper testified before the PAB that he did not provide
this information.

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 Section 2.3.C.6 requires a trooper to communicate “[a]ny and all other
information deemed appropriate by the [trooper in pursuit] to assist other
units.” We conclude that the PAB could reasonably determine that the
pursued vehicle’s speed was information vital to other units coming to the
trooper’s assistance.

Accordingly, we conclude that the PAB’s decision affirming the NHSP’s
disciplinary suspension of the trooper was not unjust or unreasonable or
legally erroneous.

Affirmed.

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

Eileen Fox,
Clerk

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