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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 Nos. 2011-016 2011-018 APPEAL OF TIMOTHY ALEXANDER APPEAL OF NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES (New Hampshire Personnel Appeals Board) Argued: October 19, 2011 Opinion Issued: March 23, 2012 Kristin H. Sheppe and Michael C. Reynolds, of Concord, on the brief, and Mr. Reynolds orally, for Timothy Alexander and William Harris. Michael A. Delaney, attorney general (Rosemary Wiant, assistant attorney general, on the brief and orally), for the State. HICKS, J. In these consolidated appeals from a decision of the New Hampshire Personnel Appeals Board (board), Timothy Alexander appeals the board's affirmance of his dismissal from employment with the New Hampshire Department of Health and Human Services (HHS) and the State appeals the board's reinstatement of William Harris to his employment with HHS. We affirm the board's decision as to Alexander but reverse its decision as to Harris.

The following facts were recited in the board's decision or are supported in the record. The Sununu Youth Services Center (SYSC) is a secure facility that provides detention, treatment and rehabilitation services for serious, chronic and/or violent juvenile offenders. Juveniles committed to SYSC are in the custody of the Commissioner of HHS. SYSC employs youth counselors to staff the facility twenty-four hours a day. Their primary "function is to provide safety and security while supervising and participating in resident activities, monitoring and supervising resident behavior, and monitoring the residents' treatment goals." According to the use of force policy applicable to SYSC staff, the use of force is authorized only for "[j]ustifiable self-defense"; to protect a third party, property, or a client from self-harm; to prevent a crime or escape; or to prevent "resident disturbances and to maintain order within the SYSC." Staff are to use force only "as a last alternative after all other reasonable efforts to resolve a situation have failed." Accordingly, the policy prescribes a "Use of Force Continuum" that progresses from the presence of the staff member through successive stages of intervention described as verbal, directional, physical, serious physical and deadly force intervention. On April 5, 2009, Alexander and Harris were involved in the restraint of a resident at SYSC. Alexander was employed at SYSC as a Youth Counselor III and Harris, a full-time probationary employee, was a Youth Counselor I (Trainee). Youth Counselor Casey Creamer was also involved in the incident, which began, according to Creamer, at breakfast that morning. Creamer's incident report indicated that the resident responded rudely when Creamer questioned whether he had permission to sit somewhere other than his assigned table. Creamer informed the resident that he would have to go to his room when they returned to the residential unit. The resident responded disrespectfully under his breath and later refused to go to his room despite repeated instructions from Creamer. The board's decision notes that a "video clip" of the incident "shows the verbal confrontation between Casey Creamer and [the resident] beginning at approximately 07:00:46 a.m." "[A]t 07:00:49 a.m., while speaking to the resident, Mr. Creamer reached out to [the resident] and made the first physical contact. The resident can be seen stepping back and pulling away from Mr. Creamer." The video . . . [then] shows Mr. Alexander entering the unit at 07:00:58 a.m. . . . By 07:01:01 a.m., three seconds after entering the unit, Mr. Alexander had already closed the distance of approximately 30 feet between the doorway to the unit and the area near the table where Mr. Creamer, Mr. Harris, and [the resident] were standing. A second later, the video shows Mr. Alexander reaching forward and pushing the resident from behind. A second later, the video shows the resident on the floor following

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what was described [by Alexander and Creamer] as a "one-arm takedown" [performed] by Casey Creamer. Following an investigation of the incident, Alexander and Harris were terminated from employment at SYSC. Alexander's termination letter stated the grounds for dismissal as endangering "the safety of [a] resident . . . by using excessive force, said force constituting Class II Abuse . . . , in that [he] abruptly and without warning, approached [the] resident . . . and forcefully pushed him from behind causing him to fall to the ground." The letter noted that Alexander's "actions also violated posted or published agency policies, the text of which warns that violation of same may result in dismissal." Harris, in turn, was dismissed for: "failure to meet the work standard as a probationary employee" in that he: (1) failed "to immediately report to [his] supervisor, Bureau Chief, or designee, the Class II abuse" of the resident by Alexander; (2) failed to complete a written incident report; and (3) during the investigation of the incident, he "did not conduct [himself] with honesty and [was] not truthful in [his] account of the incident." Alexander and Harris appealed their dismissals to the board. The board denied Alexander's appeal and granted Harris's appeal in part. These appeals followed. Our standard of review of the board's decision as to Alexander, a permanent employee, is governed by RSA 541:13 (2007). Appeal of Morton, 158 N.H. 76, 78 (2008). As the appealing party, Alexander "has the burden of proof to show that the [board's] decision is clearly unreasonable or unlawful." Id. We will not vacate or set aside the board's decision "except for errors of law, unless we are satisfied, by a clear preponderance of the evidence before us, that such order is unjust or unreasonable." Id. The board's "findings of fact are deemed prima facie lawful and reasonable." Appeal of Murdock, 156 N.H. 732, 735 (2008). Its interpretations of statutes and administrative rules, however, are reviewed de novo. Morton, 158 N.H. at 78. We treat the State's appeal of the board's decision as to Harris, a probationary employee, as a petition for a writ of certiorari. Cf. Appeal of Tamm, 124 N.H. 107, 110 (1983) (appeal by probationary employee). "The scope of review on a petition for a writ of certiorari is confined to a determination whether the [board] acted illegally in respect to jurisdiction, authority or observance of the law, thereby arriving at a conclusion which could not be legally or reasonably made." Id. at 110-11 (quotation omitted). We will first address Alexander's appeal. He argues that: (1) the board unlawfully upheld his dismissal on a different factual basis from that stated in his termination letter; (2) the facts found by the board do not warrant termination; (3) he should be reinstated because SYSC failed to comply with

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the personnel rules; and (4) he is at least entitled to a new hearing because the board violated several statutes and, along with SYSC, violated his rights to due process. Alexander first argues that the board erred by upholding his dismissal on a different factual basis from that relied upon by SYSC in his letter of termination. As previously noted, Alexander's termination letter, written by John F. Duffy, Bureau Chief of Residential Services at SYSC, stated that he used excessive force "in that [he] abruptly and without warning, approached [the] resident . . . and forcefully pushed him from behind causing him to fall to the ground." (Emphasis added.) Alexander asserts that the board "did not agree with Duffy's version of the facts" and that the board found "that [he] did not push the resident to the ground." It is not entirely clear whether the board made a finding that the resident was taken down, thereby rejecting the assertion that he fell as a result of Alexander's shove, or whether the board merely recounted witness testimony to that effect. Nevertheless, we will assume, arguendo, that the board made such a finding. Alexander argues that under the personnel rules, only the appointing authority, not the board, had the power to terminate him. He contends that "[b]y upholding [his] dismissal on alternative grounds, the Board essentially made its own determination about [his] actions and decided to terminate [him]. The Board is not permitted to take that action." The State, citing New Hampshire Administrative Rule, Per-A 207.12(b), counters that the board's review is not limited to the information stated in the termination letter. Rule 207.12(b) provides: (b) In disciplinary appeals, including termination, . . . the board shall determine if the appellant proves by a preponderance of the evidence that: (1) The disciplinary action was unlawful; (2) The appointing authority violated the rules of the division of personnel by imposing the disciplinary action under appeal; (3) The disciplinary action was unwarranted by the alleged conduct or failure to meet the work standard in light of the facts in evidence; or (4) The disciplinary action was unjust in light of the facts in evidence.

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(Emphases added). We agree with the State that the board may consider all of the evidence before it. We note, however, that the board's task, in a review pursuant to Rule 207.12(b)(3), is to determine whether "[t]he disciplinary action was unwarranted by the alleged conduct or failure to meet the work standard." (Emphases added.) Alexander's termination letter alleges that he "endangered the safety of a Sununu Youth Services (SYSC) resident . . . , by using excessive force in pushing him and causing him to fall to the ground." The letter reiterates four more times that Alexander's use of force caused the resident to fall. In addition, the letter states that Alexander "also failed to determine, prior to pushing [the resident], whether the two staff members standing beside him needed [his] assistance and failed to attempt to de-escalate the situation prior to using force. Failure to adhere to this policy is also grounds for dismissal." (Emphasis added.) Thus, the agency cited alternative grounds for Alexander's dismissal, either of which was alone sufficient. The board acknowledged the dual grounds for termination, and sustained both. Since the latter ground did not depend upon the finding, allegedly rejected by the board, that Alexander pushed the resident to the ground, we conclude that the board did not independently terminate Alexander on an "alternative theory" not stated in his letter of dismissal. Alexander next argues that the facts found by the board "do not represent a scenario which would permit termination." In particular, he challenges the board's conclusions relating to the use of force continuum. The board stated: The use of force policy (State's Exhibit 1) clearly describes the steps staff are required to take, including physical presence, verbal intervention, directional intervention, and physical intervention before the staff person can engage in "serious physical intervention" or "deadly force." By his own admission, Mr. Alexander did not attempt to use any of the lesser forms of intervention before engaging in what the Board would consider an excessive use of force. It is important to note that there were two trained staff members on the floor talking face to face with the resident when Mr. Alexander burst into the room, approached the resident from behind and shoved the resident without warning. Mr. Alexander described his actions as "positional movement" of the resident, asserting that it was the next reasonable step when presence and verbal intervention failed. According to the policy, however, the next step in the force continuum is "directional intervention,"

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which the policy defines as "a physical cue to follow staff directions. Touching the client and moving with them in an escort position is intended to move them away from the situation and engage the client in defusing questions." The evidence reflects that Mr. Alexander did not use any physical cue, escort the resident or engage in defusing questions. He simply shoved the resident without warning. Alexander asserts he saw that "Mr. Creamer had already used a `physical cue' in an unsuccessful attempt to make the resident comply." He argues: The Board emphasizes that the appellant did not himself use the lower-level interventions, but it cannot possibly be the case that each staff member must individually perform each step on the continuum. If that were the case, a staff member approaching a clearly impending assault (as the appellant perceived in this case) would be able to resort only to "presence" before even talking to the resident. We do not share Alexander's interpretation of the board's decision. The board noted Alexander's claim that his actions were an attempt to move the resident away from the conflict and found that claim unsupported by the evidence. "As a fact-finding tribunal, the [board] was at liberty to resolve any conflict in the evidence and to accept or reject such portions of the testimony as it saw fit. The [board's] findings and conclusions are entitled to great weight and cannot be set aside lightly." Desmarais v. State Personnel Comm'n, 117 N.H. 582, 586 (1977) (quotation omitted). Having reviewed "the record before us, we cannot say that the [denial] of [Alexander's] appeal was unjust or unreasonable." Id. (quotations omitted). Alexander next argues that pursuant to RSA 21-I:58, I (2000), he is entitled to reinstatement without loss of pay because his termination was in violation of New Hampshire Administrative Rule, Per 1002.08(d), which provides, in pertinent part: (d) No appointing authority shall dismiss a classified employee under this section until the appointing authority: (1) Offers to meet with the employee to discuss whatever evidence which the appointing authority believes supports the decision to dismiss the employee; (2) Offers to provide the employee with an opportunity to refute the evidence presented by the appointing authority . . . .

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N.H. Admin. Rules, Per 1002.08(d). Prior to his termination, Alexander received a letter of intention to dismiss, signed by Duffy, requesting a meeting between them "to discuss and view the evidence that supports my belief that you meet the criteria for dismissal from State service as set forth in this letter and to give you the opportunity to refute the evidence." Alexander argues that this offer did not comply with Rule 1002.08(d) because Duffy was not the appointing authority. Testimony before the board revealed that Director William W. Fenniman, Jr. had final authority with respect to hiring and firing at SYSC and Alexander therefore contends that Fenniman was the appointing authority. Alexander asserts that he "was misled about the identity of the decision-maker and was never given the opportunity to meet with the actual decision-maker

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