Municipal Law

N.H. Supreme Court Rules on Procedural Due Process for Police Officer Termination Hearings

December 2008

By Charles P. Bauer*

Attorney Charles P. Bauer, of Gallagher, Callahan & Gartrell, P.C. in Concord, New Hampshire, received a favorable decision from the New Hampshire Supreme Court which declared that New Hampshire R.S.A. 41:8 & 48 set forth the procedural due process requirements for police termination cases, and not New Hampshire R.S.A. 43. This is the first time the New Hampshire Supreme Court has ruled on this important procedural issue.

NH RSA 41:8 & 48 Procedural Process Applies

The New Hampshire Supreme Court held that New Hampshire R.S.A. 43 does not apply to the termination hearings for police officers, and that a Board of Selectmen is not required to appoint alternates for members who had recused themselves so long as there was a majority and quorum of the entire Board of Selectmen (BOS) who heard the evidence and made a decision at the police officer termination hearing.

In the matter of Correia v. Town of Alton, argued on September 17, 2008 and decided on October 8, 2008, the Town Administrator began an investigation regarding alleged misconduct against the police officer. The officer was placed on administrative leave pending the results of the investigation. At its conclusion, the Town Administrator gave the officer the option of resigning or facing possible demotion or termination by the BOS. The officer requested a public hearing. The BOS conducted a three-day hearing on the termination matter. The police officer moved to disqualify all five members of the BOS based on bias. Two of the Board members recused themselves, while the remaining three stayed on as they stated they had not formed any opinion and were not biased.

The officer then requested that the remaining three Board members appoint two alternates to fill the seats of the two disqualified members. The Chair of the BOS replied that although they had tried to find alternates, they could not and that the remaining three selectmen were legally authorized to proceed with the hearing because the three remaining selectmen constituted a quorum under R.S.A. 41:8. At the close of the hearing, the BOS found that the police officer had committed four of the six alleged acts of misconduct and voted 2-1 to terminate his police employment. The officer appealed the BOS's decision to the Superior Court.

The Superior Court ruled that New Hampshire R.S.A. 43:7 applied to police termination hearings and required that the three sitting selectmen to appoint two alternates. Because they had failed to do so, the Superior Court held that the termination proceeding violated the police officer’s procedural due process rights. The termination was vacated by the Superior Court and the matter was remanded to the Town to conduct a new hearing in accordance with New Hampshire R.S.A. 43.The Town appealed the Superior Court's decision to the New Hampshire Supreme Court.

In a unanimous decision, the N.H. Supreme Court agreed with the Town and reversed the Superior Court decision. The Supreme Court held that New Hampshire R.S.A. 43 does not apply to police termination proceedings, and that the three members of the BOS were lawful in conducting the police termination hearing without appointing two alternates to fill the two disqualified members.

The Supreme Court noted that the interpretation of a statute is a question of law, and that they are the final arbitrators of the intent of the legislature as expressed in the words of the statute considered as a whole. The Supreme Court looked at the language of the statute itself and construed the language according to its plain and ordinary meaning. The Supreme Court held that when the language of a statute is clear on face, its meaning is not subject to modification. The Supreme Court ruled that it would neither consider what the legislature might have said nor add words that the legislature did not see fit to include. Further, the Supreme Court interpreted the statute in the context of the overall statutory scheme — and not in isolation.

In construing NH R.S.A. 41 in connection with N. H. R.S.A. 43, the Supreme Court ruled that:

  • R.S.A. 41:8 & 48 are not ambiguous;
  • Had the legislature intended R.S.A. 43 to apply to police termination hearings, it would have expressly stated so;
  • Had the legislature intended for police officers to be afforded R.S.A. 43 due process procedures, it knew what language to use, and by not using such language for police termination hearings, the legislature clearly intended R.S.A. 43 not to apply to police termination proceedings; and
  • R.S.A. 43 applies to "questions affecting the conflicting rights or claims of different persons" and does not apply to police officer termination hearings.

In conclusion, the Supreme Court held that the legislature did not intend the language of R.S.A. 43 to apply to termination hearings of public officials in general, nor to police officers in particular. The Supreme Court held that the Superior Court erred as a matter of law, and reversed and remanded the matter back to the Superior Court for further proceedings consistent with the New Hampshire Supreme Court's decision.

The case of Correia v. Alton is useful to lawyers, Towns, and police officers because it decided an issue of law that had never before been addressed by the New Hampshire Supreme Court. Police Officers, their employers, and attorneys now know what procedural due process requirements apply in police termination proceedings.

* Charles Bauer is licensed to practice in New Hampshire.

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