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 Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Personnel Appeals Board
No. 98-710
APPEAL OF MARK ARMAGANIAN & a.
(New Hampshire Personnel Appeals Board)
November 13, 2001
Donchess & Notinger, P.C., of Nashua (James W. Donchess on the brief and orally), for the petitioners.
Philip T. McLaughlin, attorney general (Walter L. Maroney, senior assistant attorney general, and Sheri J. Kelloway, for the department of safety, on the brief, and Mr. Maroney orally), for the respondent.
Brock, C.J. The petitioners, Troopers Mark Armaganian and Theodore Korontjis (troopers), appeal a decision of the personnel appeals board (PAB). The troopers challenge both the PAB’s conclusion that they conspired to obtain an unauthorized witness fee for Trooper Armaganian and the PAB’s decision to uphold the sanction of major discipline for each trooper. We reverse.
The following facts are not in dispute. Armaganian was scheduled to appear in Hampton District Court to prosecute a speeding case on the morning of January 19, 1995. Because he was off-duty on January 19, 1995, Armaganian hoped to find another trooper to settle the case for him so that he would not need to go to court on his day off. Korontjis, who was on duty that day, spoke with Armaganian by telephone and agreed to handle his speeding case for him.
Korontjis settled Armaganian’s case when he was at Hampton District Court on January 19, 1995, and Armaganian did not need to testify in court. Nevertheless, Korontjis entered Armaganian’s name on the court witness list and, at Armaganian’s request, completed and signed Armaganian’s name to a certification of off-duty court appearance, indicating that Armaganian was entitled to a witness fee for the case which Korontjis had settled. Armaganian later completed a weekly duty report indicating that he was entitled to a witness fee on January 19, 1995, in connection with the disposition of the case scheduled for that day in Hampton District Court.
The New Hampshire Division of State Police conducted an internal investigation to determine if the troopers had conspired to obtain an unauthorized witness fee for Armaganian. In connection with the investigation, the troopers were required to submit to polygraph examinations.
Following a hearing, both troopers were notified that they would be suspended without pay for eleven days on charges that they "conspired . . . to obtain an unauthorized court witness fee [for Armaganian] when both Trooper Armaganian and Trooper Korontjis knew that Trooper Armaganian was not in attendance in court." Under the applicable rules, a suspension in excess of ten days is considered major discipline, rendering both troopers ineligible for promotion for a period of seven years.
The troopers appealed and the PAB held a de novo hearing. At the hearing, the parties offered conflicting evidence about precisely what had transpired on the morning of January 19, 1995. The troopers testified that Armaganian called the station to try to find someone to handle his case at Hampton District Court that morning. He reached Korontjis. According to both troopers, they discussed Korontjis’ handling the case, and Korontjis told Armaganian that he would try to resolve the case by plea and would call Armaganian back if he were unable to do so. However, the troopers denied that they discussed Korontjis’ signing Armaganian in at the courthouse. Armaganian testified that Korontjis agreed to call him back to let him know if the case had been resolved.
According to Armaganian, he began to get nervous around 8:30 a.m. because he had not yet heard from Korontjis. He knew that if Korontjis did not reach a plea with the speeder, and if Armaganian were not there to prosecute the case, he would be disciplined for allowing the case to be dismissed for lack of prosecution. Therefore, according to Armaganian, he drove to Hampton District Court. When he arrived, he saw Korontjis in the parking lot, where Korontjis told him that he had resolved the case. Because he believed he was entitled to be paid for going to the court, he asked that Korontjis sign him up on the court list indicating that he had been present. Korontjis testified that he saw Armaganian in the parking lot, and also believed Armaganian was entitled to be paid. Therefore, he put Armaganian’s name on the list. No other witnesses testified at the PAB hearing that they had seen Armaganian at the courthouse that day.
Trooper Debra Winters offered a conflicting version of the events of the morning of January 19, summarized in the PAB decision as follows:
Trooper Debra Winters testified that on the morning of January 19, 1995, just before 8:00 a.m. at the Troop A barracks, Trooper Korontjis asked her if she had any cases scheduled that day in Hampton District Court. When she replied that she did not, he informed her that he needed to call the court to see if one of his own cases had been continued. He also commented that he had to be at Hampton District Court to ". . . take care of something for Mark because he was too [expletive] lazy to get out of bed." Ms. Winters testified that a short time later, the dispatcher called down to the trooper’s room to say that Trooper Armaganian was on the phone, or that Trooper Korontjis should telephone Trooper Armaganian. Although she was unsure who initiated the call, she was present during the ensuing telephone conversation between Troopers Armaganian and Korontjis. Trooper Winters testified that she overheard Trooper Korontjis say, "Don’t worry about it, brother, I’ll just take care of you," and "I’ll take care of it." She testified that later in that same conversation, she heard Trooper Korontjis tell Trooper Armaganian, "Don’t worry about it. I’ll just sign your name in."
The PAB found Trooper Winters’ testimony credible and concluded that there was sufficient credible evidence that Troopers Armaganian and Korontjis agreed to have Korontjis enter Armaganian’s name on the witness list at Hampton District Court when both troopers knew that Armaganian did not intend to appear for court that day. The PAB also concluded that "the requisite acts in furtherance of the agreement occurred when Trooper Korontjis entered Trooper Armaganian’s name onto the Hampton District Court witness list, and when he later completed the off-duty certification of court appearance form for Armaganian."
The troopers moved for a rehearing arguing, in pertinent part, that the board had misapplied the law of conspiracy. According to the troopers, the board erred because it "ignored the undisputed evidence that Trooper Armaganian traveled to the Hampton District Court prepared to testify." According to the troopers, under the "portal to portal rule" regarding overtime compensation, if Trooper Armaganian traveled to the Hampton District Court prepared to testify, then the allegations against him should have been dismissed because he did not receive an unauthorized witness fee. Furthermore, even if there had been a "conspiracy" to obtain unauthorized fees, the conspiracy had been abandoned because Armaganian had traveled to the court to testify, and any subsequent acts undertaken by Trooper Korontjis could not have been in furtherance of the conspiracy.
The PAB affirmed its decision. In addressing the appellant’s argument regarding the finding of conspiracy, the PAB stated:
The evidence does not support a finding that Trooper Armaganian "appeared" at the Hampton District Court, nor does it weigh in favor of the Appellant’s claim that Trooper Armaganian’s appearance at the courthouse terminated or aborted the conspiracy. The Appellants failed to offer any plausible explanation why Trooper Armaganian did not enter the courthouse and sign himself in if, in fact, he had traveled to the Hampton District Court for the purpose of prosecuting his case. Similarly, the Appellants failed to offer a plausible explanation why Trooper Armaganian failed to request reimbursement for travel that day in his personal vehicle, which both parties agreed he would have been entitled to receive if he were entitled to "portal to portal" compensation.
. . .
The appellants argued that the Board’s decision ignored the testimony of [a number of witnesses] that state troopers required to appear in court on their days off are entitled to overtime compensation from the moment they leave their homes. There is no dispute how compensation is calculated when an officer is entitled to receive such compensation. However, the evidence does not reflect that Trooper Armaganian was entitled to receive any compensation.
Following the denial of their motion for rehearing, the troopers appealed to this court. We accepted the appeal and ordered the PAB to prepare a record within sixty days. The PAB failed to timely file a certified copy of the record, filing it over twenty months late. We therefore requested that the parties brief the issue of whether the prejudice caused by the board’s delay in filing a certified copy of the record warrants granting the relief the petitioners seek.
The troopers argue on appeal that: (1) the board’s decision was unjust and unreasonable because the board incorrectly applied the law of conspiracy to determine that the appellant’s conduct warranted the discipline imposed by the division of State police; (2) the PAB erred as a matter of law in admitting into evidence the result of polygraph examinations; and (3) the court should vacate the PAB’s decision because of the PAB’s lengthy delay in preparing the record in this case. Because we agree, for the reasons that follow, that the board’s decision that the troopers had conspired to obtain an unauthorized witness fee was unjust and unreasonable, we do not reach the troopers’ remaining arguments.
This is an appeal from a final decision of the New Hampshire Personnel Appeals Board pursuant to RSA 21-I:58, II, RSA 541:6 and New Hampshire Supreme Court Rule 10. We will therefore affirm the decision unless we are satisfied, by a clear preponderance of the evidence before us, that the order is unjust or unreasonable. See RSA 541:13 (1997); Appeal of Boulay, 142 N.H. 626, 627-28 (1998).
While we recognize that what is at issue here is not an action for civil conspiracy, but rather a personnel decision made by the division of State police, existing conspiracy law, and the principles underlying it, inform our judgment about whether the PAB’s decision in this case was unjust or unreasonable. "The gist of a civil action for conspiracy is not conspiracy as such, without more, but the damage caused by the acts committed pursuant to the formed conspiracy. There must be something done pursuant to the conspiracy which harms the plaintiff." Gov. Grove Condo. Ass’n v. Hill Dev. Corp., 414 A.2d 1177, 1182 (Conn. Super. 1980) (citations omitted); see also Durant Software v. Herman, 257 Cal. Rptr. 200, 206 (Cal. Ct. App. 1989). Thus, under New Hampshire law, the elements of a civil conspiracy are: "(1) two or more persons . . .; (2) an object to be accomplished (i.e., an unlawful object to be achieved by lawful or unlawful means or a lawful object to be achieved by unlawful means); (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof." Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987). A conspirator may avoid liability for the conspiracy by withdrawing from, or abandoning the conspiracy. Cf. 16 Am. Jur. 2d Conspiracy