Appeal of Elizabeth Arsenault

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0218, Appeal of Elizabeth Arsenault, the
court on December 23, 2019, 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).
Because we conclude that the appeal is procedurally barred pursuant to RSA
541:4 (2007), we dismiss it.

The plaintiff, Elizabeth Arsenault, appeals a decision of the Public
Employee Labor Relations Board (PELRB) affirming a hearing officer’s decision
denying her unfair labor practice complaint against the defendant, Chester
School District, SAU #82, in which she alleged that the defendant denied her
the right to grieve the termination of her employment. On February 6, 2019,
following a hearing during which the plaintiff, the school principal, and the
superintendent testified, the hearing officer concluded that the defendant did
not prevent the plaintiff from grieving her termination and that, in fact, the
plaintiff never properly initiated a grievance. On March 6, 2019, in a pleading
captioned “Motion for Rehearing Pursuant to RSA 561:3 [sic] and RSA 273-
A:14,” the plaintiff requested the PELRB to reconsider its decision and grant a
rehearing.

On March 22, 2019, the PELRB issued a two-page decision, explaining
that it would evaluate the plaintiff’s “motion for rehearing” as a motion for
review of the hearing officer’s decision. New Hampshire Administrative Rule,
Pub 205.01 provides that “[a]ny party to a hearing . . . may file with the board a
request for review of the decision of the hearing officer.” See also RSA 273-A:6,
VIII (2010) (allowing for PELRB review of hearing officer decision). The PELRB
further noted that all findings of fact contained in the hearing officer’s decision
are presumed to be reasonable and lawful, see Pub 205.01(b), and that,
because the plaintiff did not file a transcript of the hearing, the board would
not consider requests for review based upon objections to the hearing officer’s
findings of fact, see id. (noting that “the board shall not consider requests for
review based upon objections to hearing officer findings of fact unless such
requests for review are supported by a complete transcript of the proceedings
conducted by the hearing officer”). After review, the PELRB approved the
hearing officer’s decision and denied the plaintiff’s motion.

On April 17, 2019, without filing a motion for rehearing of the PELRB’s
March 22 decision, the plaintiff filed a Rule 10 appeal in this court. The
defendant moved to dismiss the appeal based upon the plaintiff’s failure to
move for a rehearing before the PELRB. See Sup. Ct. R. 10(1) (“To appeal to the
supreme court from an administrative agency under RSA 541, the appealing
party must have timely filed for a rehearing with the administrative agency.”).
We denied the defendant’s motion without prejudice to raising the issue in its
brief. In its brief, the defendant again argues that the plaintiff’s appeal must
be dismissed pursuant to Rule 10 and RSA 541:4. The plaintiff responds that
she should not be required to file “an additional motion for rehearing” simply
because the board “chose to treat the motion as a request for review” of the
hearing officer’s decision.

RSA 273-A:14 (2010) provides that a person aggrieved by a final order of
the PELRB “may obtain review of such order in the manner prescribed in RSA
[chapter] 541.” RSA 541:4 precludes an appeal from an administrative agency
decision to this court by a party who has not applied for a rehearing before the
agency. Appeal of SAU #16 Coop. Sch. Bd., 143 N.H. 97, 100 (1998). “This
requirement is grounded in the sound policy that administrative agencies have
a chance to correct their own alleged mistakes before time is spent appealing
from them.” Id. (quotation, brackets, and ellipsis omitted). “[W]hen a party’s
motion for reconsideration of a hearing officer’s decision is denied by the
PELRB, the moving party must still apply for rehearing to satisfy the
requirements of RSA 541:4 because a reconsideration motion relates to errors
of the hearing officer while a rehearing motion relates to errors by the PELRB.”
Id. at 101 (discussing former version of Pub. 205.01(a), which identified a
“motion for review” as a “motion for reconsideration”); see also Pub 205.01(d)
(“The request for review of the hearing officer’s decision shall precede, but shall
not replace, a motion for rehearing of the board’s decision.”).

Although in Appeal of SAU #16 Cooperative School Board we declined to
dismiss the appeal under the circumstances of that case, we advised future
parties that “when a record does not demonstrate that the appealing party has
met the requirements of RSA 541:4 we will refuse the appeal or dismiss it on
our own motion.” Id. at 101-02 (quotations and brackets omitted). Because
the record in this case does not demonstrate that the plaintiff met the
requirements of RSA 541:4, we dismiss the appeal. See id. at 101-02.

Dismissed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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