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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Personnel Appeals Board No. 2007-297 APPEAL OF DONALD W. MURDOCK (New Hampshire Personnel Appeals Board) Argued: January 16, 2008 Opinion Issued: February 15, 2008 Vanacore Law Office, of Concord (John G. Vanacore and Natalie J. Friedenthal on the brief, and Mr. Vanacore orally), for the petitioner. Kelly A. Ayotte, attorney general (Lynmarie C. Cusack, assistant attorney general, on the brief and orally), for the respondent. GALWAY, J. The petitioner, Donald W. Murdock, appeals the decision of the New Hampshire Personnel Appeals Board (PAB) affirming his dismissal from employment by the respondent, the New Hampshire Department of Transportation (DOT), following his receipt of three written warnings for the same offense within a five-year period. N.H. Admin. Rules, Per 1001.08(b)(1) (current version at 1002.08(c)(1)). We affirm in part, reverse in part, and remand. We recite the facts as found by the PAB or as presented in the record. The petitioner was hired by the DOT in February 1994. He worked in various positions until the fall of 2002, when he became the Highway Patrol Foreman for one of the fourteen patrol sections in District IV. District IV is one of the six maintenance districts within the State. In this capacity, the petitioner was

responsible for planning, scheduling and inspecting the work of his five-man patrol crew in coordination with his immediate supervisor, Maintenance Supervisor George Leel, as well as the District Engineer, Douglas Graham. The petitioner was also responsible for enforcing, among other things, DOT policies and procedures within his section, and producing timely and accurate reports of the work activities of his crew. On May 12, 2003, District Engineer Graham issued the petitioner his first letter of warning for transporting alcohol in his state vehicle contrary to DOT policy. Specifically, it was alleged that the petitioner, after work hours, purchased beer at a local convenience store and transported the alcohol to his home in his state vehicle. The warning cited the petitioner's "failure to meet any work standard" under New Hampshire Administrative Rule, Per 1001.03 (a)(1) (current version at 1002.04(b)(1)) as grounds for the warning. The corrective action provided, As a Highway Patrol Foreman, you are expected to set the standard for your Patrol Section . . . . You must ensure that you follow those rules and standards in your own conduct and enforce those rules and standards among the members of your crew. Your failure to do so will result in further disciplinary action up to, and including, your discharge from employment. The petitioner did not appeal the issuance of this warning. On September 20, 2004, District Engineer Graham issued a second letter of warning to the petitioner, again citing Per 1001.03(a)(1) (failure to meet any work standard). This warning resulted from the petitioner having allowed Sports Illustrated swimsuit model calendar pictures to be displayed in the workplace after he had been told to remove them. Although the petitioner removed the pictures from display on the wall after being instructed to do so, several were later found "scattered about" on a desk within the office. The warning stated that the petitioner's "failure to ensure a workplace free from the potential for harassment . . . constitutes a failure to meet any work standard." In addition, the warning alleged the petitioner failed to maintain a safe workplace, noting several tripping hazards in the office, as well as the presence of a wash basin without the proper caution warnings, all constituting a failure to meet any work standard. The corrective action for these various infractions, as with the first warning, generally instructed the petitioner that he must follow, and ensure his crew followed, the applicable rules and standards. The petitioner challenged this warning, seeking review through the informal four-step review process outlined in the personnel rules, rather than a

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direct appeal to the PAB. N.H. Admin. Rules, Per 202.01 (current version at 205.01). At each of the first three review steps, the warning was upheld after the petitioner filed a timely appeal statement. However, at the fourth and final step, the petitioner did not file his appeal statement within the prescribed period of time, and was denied consideration. The petitioner appealed to the PAB, which in November 2005 denied his request as untimely. On July 15, 2005, the petitioner was issued a third warning for failure to meet any work standard. The warning detailed numerous alleged deficiencies in the petitioner's conduct including exercising poor judgment in parking his state vehicle outside of a restaurant later than the normal lunch hour and for a period longer than thirty minutes. Specifically, District Engineer Graham alleged he had observed the petitioner's state vehicle parked outside of a restaurant at 1:15 p.m. and observed the petitioner leaving at 1:50 p.m. The warning indicated that the petitioner showed poor judgment in taking a late lunch, and also taking a lunch that was at least thirty-five minutes, five minutes more than the permitted time. The warning also alleged the petitioner had left work early without receiving prior approval from his supervisor and had failed, on at least one occasion, to accurately document the work time of his crew. The warning also served as a letter of dismissal pursuant to Per 1001.08(b)(1), which permits dismissal of an employee after three written warnings for the same offense within a five-year period. See N.H. Admin. Rules, Per 1001.08(b)(1). The letter articulated the two previous written warnings for failure to meet any work standard, in addition to the current warning, as grounds for the petitioner's dismissal. The petitioner appealed both the warning and his dismissal directly to the PAB. Following a hearing, the PAB upheld the dismissal, concluding, All three warnings issued to the [petitioner] were issued in accordance with Per 1001.03(a). . . and each was for the "same offense" as contemplated by that rule, as each of the warnings arose from the [petitioner's] lack of familiarity with, or disregard for, the policies and procedures governing the [petitioner's] responsibilities as a Highway Patrol Foreman. The petitioner filed a motion for reconsideration and rehearing, arguing that the PAB's interpretation of Per 1001.08(b)(1) was unreasonable and violated due process. In addition, the petitioner asserted that the PAB should have waived his failure to meet the filing deadline and considered his appeal of the September 20, 2004 warning. The petitioner also argued that, with respect to

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the July 15, 2005 warning, the evidence presented and the PAB's findings of fact were insufficient to sustain his dismissal, and further, that the PAB should have reassigned him, rather than affirming his dismissal. The PAB denied the motion. This is an appeal from a final decision of the PAB pursuant to RSA 21I:58, II (2000), RSA 541:6 (2007) and Supreme Court Rule 10. The petitioner has the burden of demonstrating that the PAB's decision was clearly unreasonable or unlawful. RSA 541:13 (2007). The PAB's findings of fact are deemed prima facie lawful and reasonable. Id. We will affirm the decision unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. See Appeal of Waterman, 154 N.H. 437, 439 (2006). We review the interpretation of administrative rules de novo. State v. Elementis Chem., 152 N.H. 794, 803 (2005). "In construing rules, as in construing statutes, where possible, we ascribe the plain and ordinary meanings to words used." Appeal of Flynn, 145 N.H. 422, 423 (2000) (quotations omitted). We look at the rule under consideration as a whole, and not in segments. See Appeal of Alley, 137 N.H. 40, 42 (1993). "While deference is accorded to an agency's interpretation of its regulations, that deference is not total. We still must examine the agency's interpretation to determine if it is consistent with the language of the regulation and with the purpose which the regulation is intended to serve." Id. (quotation omitted). The petitioner first argues that the PAB misinterpreted Per 1001.08(b)(1) when it concluded that his three written warnings were for the same offense. Per 1001.08(b)(1) provides, "An appointing authority shall be authorized to dismiss an employee pursuant to Per 1001.03 by issuance of a third written warning for the same offense within a period of 5 years." The petitioner asserts that, although each warning is categorized as a failure to meet any work standard under Per 1001.03(a)(1), the actual conduct underlying each warning is of such a different character that they cannot reasonably be considered the same offense. The State counters that the petitioner's three warnings all constitute the same offense because, as found by the PAB, the warnings "arose from his lack of familiarity with, or disregard for, the policies and procedures governing [his] responsibility as a highway patrol foreman." The State thus contends that it is not the actual behavior underlying the warning, but the more generalized type of violation, here, the violation of policies and procedures, which must be considered for purposes of dismissal under Per 1001.08(b)(1). The State also suggests that the critical part of a letter of warning is its advised corrective action, and, therefore, that should be the primary consideration for purposes of Per 1001.08(b)(1). The State's interpretation is flawed in several respects.

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First, to read Per 1001.08(b)(1) as the State suggests requires us to ignore several other provisions within the rules, and "[w]e will not interpret the rule in such a way as to render a significant portion of it meaningless." Appeal of City of Manchester, 149 N.H. 283, 287 (2003). Per 1001.03(a) provides, An appointing authority shall be authorized to use the written warning as the least severe form of discipline to correct an employee's unsatisfactory work performance or misconduct for offenses including, but not limited to: (1) Failure to meet any work standard; (2) Unauthorized absences from work; (3) Excessive unscheduled absences even if payment or approval for the leave is authorized; (4) Sexual harassment; (5) Exhibiting physically or verbally abusive behavior in the workplace . . .; (6) Working unauthorized overtime; (7) Failure to report immediately to the appointing authority the expiration of a license or certificate required by the class specification or supplemental job description for performance of the duties of a position; and (8) Unauthorized use or misuse of information or communications systems. N.H. Admin. Rules, Per 1001.03(a)(1)-(8). Under the State's interpretation, every violation of any DOT policy, regulation, procedure, or class specification responsibility amounts to a failure to meet any work standard under Per 1001.03(a)(1). It necessarily follows that the remaining listed categories are merely superfluous, as, under the State's interpretation, any behavior these categories embody would also fall under the failure to meet any work standard provision. This problem is exemplified by the alleged conduct at issue in this case

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