Opinion
No. 7047
Decided February 3, 1978
1. Administrative Law — Orders and Regulations — Validity Administrative agency must follow its own regulations, and discharge of public employee procured in face of substantial violation of those regulations is invalid.
2. Administrative Law — Rules of Procedure — Interpretation Administrative agency's interpretation of its procedural rules is binding on courts when that interpretation involves no error of law.
3. Public Employees — Suspension and Dismissal — Right to Hearing Rules of department of personnel, on their face, did not require that public employee have predischarge meeting or that employee receive hearing on each written warning before another was issued.
4. Public Employees — Suspension and Dismissal — Review On appeal challenging personnel commission's determination upholding public employee's discharge from his job as job counselor, employee failed to show that commission's procedure had no basis in law or that such procedure had been applied inconsistently to him.
5. Public Employees — Suspension and Dismissal — Reinstatement Although rule of department of personnel obligated director of department to respond to public employee's exception to written notice of unsatisfactory work, and as such, afforded employee a right for which there must be a remedy, in absence of showing that procedural error substantially contributed to dismissal without regard to merits underlying director's action, proper remedy was not reinstatement.
6. Public Employees — Suspension and Dismissal — Hearing Where director of department of personnel failed to respond to exceptions taken by public employee to two separate written warnings of unsatisfactory work, but employee was eventually granted full evidentiary hearing, after third warning and notice of discharge, at which he presented numerous witnesses in effort to rebut charges against him, there was no prejudice to merits of employee's case arising from director's inaction.
7. Constitutional Law — Due Process — Notice and Hearing Procedure granted discharged employee by department of personnel in which public employee had full evidentiary hearing at which he presented numerous witnesses in effort to rebut charges against him was more than required by due process clause of United States Constitution.
8. Constitutional Law — Due Process — Public Employment In matters of public employment, due process clause looks to State law to define extent of person's property interest in his job.
9. Constitutional Law — Due Process — Public Employment Since public employee has no protected property right in his job, procedure State chooses to afford him in regard to discharge from employment accords with mandates of due process clause.
10. Administrative Law — Findings — Required Findings Basic findings of fact supported by record are required simply to allow supreme court to understand administrative decisions and to ascertain whether facts and issues considered sustain ultimate result reached.
11. Public Employees — Suspension and Dismissal — Evidence On appeal challenging personnel commission's determination upholding public employee's discharge from employment for unsatisfactory work, basic reasons for his unsatisfactory job performance enumerated in commission's findings provided court with ample basis from which to judge commission's action.
12. Public Employees — Suspension and Dismissal — Evidence Where changes in personnel commission's membership occurred after its decision upholding public employee's discharge, but before findings of fact were entered, and new members reviewed case from record, that all evidence was considered by members of commission was sufficient to support findings and affirmation of original decision.
13. Public Employees — Suspension and Dismissal — Review In absence of finding that personnel commission's decision upholding public employee's dismissal from employment was either unjust or unreasonable, ruling would not be vacated.
14. Public Employees — Suspension and Dismissal — Evidence Where former public employee never earned more than $61.20 per week from date of his discharge in 1974 until September 1975, and in September 1975, he was employed as clerk in State liquor store at annual salary of $6,754.80, commission's finding that employee was capable of paying over one thousand dollars for transcript in this appeal, and must do so, was unreasonable and unsupported by evidence.
Cleveland, Waters Bass, of Concord (Howard J. Zibel orally), for the plaintiff.
David H. Souter, attorney general, and Charles G. Cleaveland, assistant attorney general (David W. Marshall, assistant attorney general, orally), for the State.
This appeal, pursuant to RSA ch. 541, challenges a personnel commission's determination upholding the plaintiff's discharge from his position as a job counselor in the WIN program of the Office of Manpower Affairs. The plaintiff contends that he was denied a procedural right afforded by the Rules of the Department of Personnel (Rules), that the procedure involved deprived him of a property right without due process of law, and that the commission's decision is arbitrary, capricious, and made without proper findings. He also attacks the commission's finding that he was not indigent and was capable of paying for a transcript for this appeal. We affirm the dismissal, but reverse the finding of nonindigency.
On November 6, 1973, the plaintiff received a written warning of unsatisfactory work performance from his supervisor under rule VIII, section 3C(b). The plaintiff took timely exception to this warning, rule VIII, 3C (d), "by initiating action under the appeal procedure," rule VI, 5. The supervisor, after discussions with Mr. Colburn and upon no indication of substantial improvement in job performance, issued a second written warning on January 16, 1974. The plaintiff seasonably excepted to the second notice. The supervisor's further efforts to counsel the plaintiff in improving his performance proved unsuccessful. Plaintiff then received a third written warning and notice of discharge. Rule VIII, 3C (e). He had received no communication from the director of personnel on either of his two requests for hearings dealing with the first two warnings until after he had received the third warning and discharge notice. By letter dated April 3, 1974, the director of personnel informed Mr. Colburn that no hearing date had yet been set "relative to your two letters of warning," citing the commission's substantial "backlog" as the reason for the delay. Plaintiff appealed his discharge on April 10, 1974. Hearings on all matters before the commission were held on May 24, June 21, and July 12, 1974.
An agency must follow its own regulations and a discharge procured in the face of a substantial violation of those regulations is invalid. Hunt v. Personnel Comm'n, 115 N.H. 713, 716-17, 349 A.2d 605, 608 (1975). The plaintiff contends that rule VI, section 5, step IV(4) defines his rights upon exception to a written notice of unsatisfactory work:
[t]he Director will review the entire matter, arrange a meeting between all concerned if practical, and recommend in writing to the employee or his chosen representative and to the agency head concerned within fifteen working days from the date the request is received what further action, if any, in accordance with existing statutes and rules may be justified.
He also contends that he should have been given a predischarge hearing. The commission responds that the director has discretion to refer the matter to the personnel commission, id., step IV(5), which it contends is the usual practice. It also alleges that when the commission is faced with a backlog, warning and discharge appeals are normally consolidated.
[2-4] An administrative agency's interpretation of its procedural rules is binding on courts, FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 n. 6 (1940), when that interpretation involves no error of law. On their face, the commission's rules do not require that an employee have a predischarge hearing. Nor do they provide that an employee receive a hearing on each written warning before another is issued. The plaintiff has failed to show that the commission's procedure has no basis in law or that that procedure has been applied inconsistently to him.
[5, 6] Thus, if the plaintiff's discharge is to be reversed, such an action must be predicated on the director's disregard of rule VI, section 5, step IV(4) per se. Admittedly, this rule obligates the director to respond to the plaintiff's exception. As such, it affords him a right for which there must be a remedy. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). However, in the absence of a showing that the procedural error substantially contributed to the dismissal without regard to the merits underlying the director's action, the proper remedy is not reinstatement. See Pascal v. United States, 543 F.2d 1284 (Ct.Cl. 1976). We can discern no prejudice to the merits of the plaintiff's case arising from the director's inaction. He was eventually granted a full evidentiary hearing at which he presented numerous witnesses in an effort to rebut the charges against him. The plaintiff's failure to reverse his firing resulted in no way from the lack of an adequate response to his exceptions.
[7-9] Furthermore, the procedure that the plaintiff received is more than is required by the due process clause of the United States Constitution. In matters of public employment, the due process clause looks to State law to define the extent of a person's property interest in his job. Bishop v. Wood, 426 U.S. 341 (1976); Perry v. Sindermann, 408 U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564 (1972). We have defined that interest. Desmarais v. Personnel Comm'n, 117 N.H. 582, 378 A.2d 1361 (1977); McIntosh v. Personnel Comm'n, 117 N.H. 334, 374 A.2d 436 (1977); Nason v. Personnel Comm'n, 117 N.H. 140, 370 A.2d 634 (1977) (per curiam). "None of our decisions have held as a matter of state law that public employment per se becomes a protected property right of the employee." Desmarais v. Personnel Comm'n, 117 N.H. at 582, 378 A.2d at 1364. Because the plaintiff has no protected property right in his job, the procedure the State chooses to afford him accords with the mandates of the due process clause.
[10, 11] Plaintiff attacks various aspects of the commission's decision-making as against State law. His first contention is that the commission's findings of fact are insufficient to meet the standards set forth by this court in Foote v. State Personnel Commission, 116 N.H. 145, 355 A.2d 412 (1976). Basic findings of fact supported by the record are required simply to allow this court to understand administrative decisions and to ascertain whether the facts and issues considered sustain the ultimate result reached. Society for the Protection of N.H. Forests v. Site Evaluation Comm., 115 N.H. 163, 172-73, 337 A.2d 778, 786 (1975); see Foote v. State Personnel Comm'n, 116 N.H. at 148-49, 355 A.2d at 414. The plaintiff was discharged for unsatisfactory work. The basic reasons for his unsatisfactory job performance enumerated in the commission's findings provide this court with an ample basis from which to judge the commission's action.
[12, 13] Another challenge concerns changes in the commission's membership after its decision but before findings of fact were entered. The new members reviewed the case from the record. That all evidence was considered by the members of the commission is sufficient to support the findings and the affirmation of the original decision. See Opinion of the Justices, 117 N.H. 390, 392, 373 A.2d 642, 644 (1977); Browning-Ferris Indus. v. State, 115 N.H. 190, 191, 339 A.2d 1, 2 (1975) (per curiam); K. Davis, Administrative Law Text 11.01-07 (3d ed. 1972). Finally, the plaintiff's contention that he was dismissed on "flimsy" evidence is not one that this court must accept; the commission's decision may not be vacated unless it is found to be "unjust or unreasonable." RSA 541:13; Peabody v. State Personnel Comm'n, 109 N.H. 152, 155, 245 A.2d 77, 79 (1968). On the record before us, we cannot say that ruling was either unjust or unreasonable.
An interlocutory action in this case dealt with the cost of preparation of the transcript. This court remanded the case to the commission to determine whether the plaintiff was indigent, holding that "[i]f the plaintiff was found to be indigent, he should not be prevented from perfecting his appeal because of his inability to pay the cost of a full transcript." Colburn v. State, 115 N.H. 366, 367, 341 A.2d 270 (1975) (per curiam). Despite suggestions by this court, counsel for the parties were unable to agree on a partial transcript. Further motions by the plaintiff to remand to the commission for additions to the record and to enter findings of fact as required by Foote were thereafter received. Defendant complied with those requests. Defendant then learned that plaintiff's counsel intended to argue that the plaintiff was unable to pay the transcription costs. A summary of the commission's proceedings, which determined that the plaintiff was able to pay the transcription costs, was drawn up by counsel and filed with this court.
From the date of his discharge in 1974 until September 1975, the plaintiff never earned more than $61.20 per week. In September 1975, he was employed as a clerk in a State liquor store at an annual salary of $6,754.80. The commission's finding that the plaintiff can and should pay over one thousand dollars for the transcript in this appeal is unreasonable and unsupported by the evidence.
Exception as to transcript sustained; other exceptions overruled.
LAMPRON, J., did not participate in the decision of this case; the others concurred.