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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 ___________________________

State Board of Education No. 2010-161

APPEAL OF SCHOOL ADMINISTRATIVE UNIT #44 (New Hampshire State Board of Education) Argued: March 17, 2011 Opinion Issued: May 26, 2011 Sulloway & Hollis, P.L.L.C., of Concord (Edward M. Kaplan and Beth G. Catenza on the brief, and Mr. Kaplan orally), for the petitioner.

Bernstein Shur, P.A., of Manchester (Andru H. Volinsky and Christopher G. Aslin on the brief, and Mr. Volinsky orally), for the respondent.

Theodore E. Comstock and Barrett M. Christina, of Concord, by brief, for the New Hampshire School Boards Association, as amicus curiae.

DUGGAN, J. This case concerns the termination of the respondent, Judith McGann, as superintendent of the petitioner, School Administrative Unit #44 (SAU). The SAU seeks review of the State Board of Education's decision that its failure to provide pre-hearing discovery with respect to its expert witness denied McGann a meaningful right to cross-examine that witness. McGann cross-appeals, alleging numerous violations of her procedural due process rights under both the State and Federal Constitutions. We affirm in part, reverse in part, and remand.

I The record supports the following facts. In 2004, following the resignation of the former superintendent, McGann was selected by the SAU to serve as interim superintendent. She subsequently entered into an employment contract with the SAU for the term of July 1, 2007, through June 30, 2009. On September 3, 2008, the SAU Board notified McGann of its intention to terminate her employment. The letter identified eight issues as the basis for her termination and informed her of her right to request a hearing before the SAU Board. On October 9, 2008, the SAU notified McGann of three additional grounds for termination that had been uncovered during the SAU's investigation. The gist of the allegations was that McGann improperly used federal grant money in the form of stipend contracts to give raises to her staff, circumvented the SAU Board by granting the raises after it had denied her request for them, failed to ensure that "time and effort" requirements for the federal grants were followed, and intentionally failed to provide the SAU Board with an auditing company's management letter that raised significant concerns about accounting records and systems. McGann requested a public hearing before the SAU Board, which was held over three evenings for the evidentiary portion and an additional evening for deliberation. Both McGann and the SAU were permitted to call witnesses, present evidence, and cross-examine the other party's witnesses. During the evidentiary portion of the hearing, the SAU called a forensic auditor, John Sullivan, whom it had hired to review its financial records. Following direct examination, McGann requested access to Sullivan's file. The SAU responded that it had never seen a file from Sullivan and thus did not have anything to turn over. The SAU further responded that it had informed McGann of exactly what Sullivan would testify about and that his direct testimony had conformed to these representations. The moderator hired to facilitate the hearing ruled that it was not within the province of the SAU Board "to engage in discovery orders" and declined to order the SAU to produce Sullivan's work file. On the second day of the hearing, McGann unsuccessfully renewed her request for access to Sullivan's file. Following the hearing, the SAU Board voted to terminate McGann. McGann appealed to the State Board of Education, asserting that the SAU Board had violated her right to due process. In addition, she argued that she was denied the opportunity to review Sullivan's work file and was thus denied a meaningful opportunity to cross-examine him. The State Board referred the appeal to a hearing officer, who ordered the SAU to produce Sullivan's work file for McGann to review. The hearing officer thereafter issued a proposed decision allowing McGann to supplement the record with items from Sullivan's file to demonstrate prejudice from being denied access to the 2

file. The proposed decision ruled that the State Board of Education's administrative rules required the SAU to provide McGann with Sullivan's work file. The decision rejected McGann's remaining arguments and recommended that the State Board vacate and remand the SAU Board's decision for a new hearing. Both parties objected to the proposed decision, but the State Board adopted it in its entirety. This appeal and cross-appeal followed. II We begin with the SAU's challenge to the State Board's discovery ruling. The State Board determined that by not turning over documents from the expert's file prior to the hearing before the SAU Board, the SAU violated its rules, particularly New Hampshire Administrative Rules, Ed 204.01(b)(4). In determining that the failure to turn over Sullivan's work file required a new hearing, the State Board found that the prejudice was "obvious." We review the interpretation of administrative rules de novo. Appeal of Murdock, 156 N.H. 732, 735 (2008). "In construing rules, as in construing statutes, where possible, we ascribe the plain and ordinary meaning to the words used." Id. (quotation omitted). We consider the rule as a whole, and not in segments. Id. "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). Part 204 of the rules provides procedural requirements for certain actions by local school boards. It differentiates between "Proceedings at the School Board Level to Resolve Disputes Between Individuals and the School System," see N.H. Admin. Rules, Ed 204.01, and "Hearing Procedure For Teacher Nonrenewal," see N.H. Admin. Rules, Ed 204.02. Even though the State Board's order refers to Rule 204.02, because these proceedings did not involve a teacher nonrenewal, only the procedures in Rule 204.01 apply to this case. Rule 204.01(b)(4) provides that "[t]he local board shall provide an opportunity for a hearing if requested at which the following procedures shall apply: . . . [d]uring the hearing, the school board shall allow a party, or a designated representative of the party, to examine any and all witnesses." N.H. Admin. Rules, Ed 204.01(b)(4). The State Board determined that this rule required the SAU to provide access to Sullivan's work file in order to provide McGann with a "meaningful right to cross-examine" the expert witness. "We will not permit an agency to add or delete requirements through the mere expedient of interpreting a rule that is clear and unambiguous on its face." Doe v. N.H. Dep't of Safety, 160 N.H. 474, 477 (2010) (quotation, 3

brackets, and ellipsis omitted). Here, the rule requires that the school board allow a party or a representative to examine any and all witnesses. The record shows that at the hearing, McGann extensively cross-examined the SAU's expert witness. While the State Board may have believed that access to Sullivan's file would have allowed for a more "meaningful" cross-examination, nothing in the administrative rules authorized the State Board to require the SAU to provide discovery to a party prior to an administrative hearing. Because an agency may not "add . . . requirements through the mere expedient of interpreting a rule that is clear and unambiguous on its face," Doe, 160 N.H. at 477 (quotation and brackets omitted), we reverse the State Board's ruling that pursuant to Rule 204.01(b)(4) the SAU was required to provide access to its expert's file. III We next turn to McGann's arguments on cross-appeal. McGann argues that her federal and state constitutional rights to due process were violated because: (1) she was not provided with pre-hearing discovery of Sullivan's file; (2) the SAU Board terminated her based upon adverse findings that were substantially different from the grounds of which she had been given notice; (3) the SAU Board relied upon facts not in the record; and (4) she was not given an "opportunity to cure" prior to her termination. We first address McGann's claims under the State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 233 (1983). "This court is the final arbiter of the due process requirements of the State Constitution." In re Father 2006360, 155 N.H. 93, 95 (2007) (quotation omitted). A We begin with McGann's argument that due process required the SAU to provide access to Sullivan's file prior to the termination hearing. To determine whether particular procedures satisfy the requirements of due process, we typically employ a two-prong analysis. Appeal of Town of Bethlehem, 154 N.H. 314, 328 (2006). Initially, we ascertain whether a legally protected interest has been implicated. Id.; see also Mathews v. Eldridge, 424 U.S. 319, 332 (1976). We then determine whether the procedures provided afford adequate safeguards against a wrongful deprivation of the protected interest. Appeal of Town of Bethlehem, 154 N.H. at 328. McGann argues that two legally protected interests are implicated here

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