William Bovaird v. New Hampshire Department of Administrative Services, 166 N.H. 755

Background

William Bovaird was laid off from DHHS as an Operations Officer I (Labor Grade 20) on Oct. 29, 2009 and placed on the Department of Administrative Services’ statewide RIF (reduction in force) list.
A Supervisor III (Labor Grade 23) position later opened; no RIF candidate was eligible per the Department’s practice, so the position was released for open recruitment. Bovaird applied and was hired into the Supervisor III position, starting Jan. 25, 2010.
In Aug. 2012 Bovaird sought restoration of his prior sick leave balance, seniority date, leave accruals, and longevity pay, claiming he was a recalled employee entitled to Per 1101.06 benefits. The Department denied the request.
Bovaird sued in superior court; the trial court found the 2009 rehiring statute unambiguous, held Bovaird was rehired from the RIF list (even though promoted), and awarded the Per 1101.06 benefits.
The Supreme Court reviewed statutory and administrative-rule interpretation de novo, considered the longstanding administrative practice, and reversed the trial court: Bovaird was rehired (not recalled) into a higher classification and thus was not entitled to recall benefits.

Issues

Issue	Plaintiff's Argument (Bovaird)	Defendant's Argument (Department)	Held
Whether Bovaird was "recalled" or "rehired"	Bovaird argued he effectively returned to state employment with same employer and therefore was a recalled employee entitled to Per 1101.06 benefits	Dept. argued recall applies only where employee returns to the same classification; Bovaird was hired into a different (higher) classification, so he was rehired	Held: Bovaird was rehired, not recalled — recall requires same classification and class specification under Per rules
Whether the 2009 rehiring statute (Laws 2009, 144:65) unambiguously requires rehiring laid-off employees even when rehiring results in promotion	Bovaird argued statute’s mandatory language (“shall be filled, if possible… if he or she meets the minimum qualifications”) requires rehiring from RIF list regardless of promotion	Dept. argued the statute is ambiguous and must be read with administrative gloss: longstanding Dept. practice excludes rehiring into promotions to preserve merit-based promotion rules	Held: Statute is ambiguous; administrative gloss applies — Dept.’s longstanding interpretation precluding promotions on rehire governs
Whether the Department was required to place Bovaird into the Supervisor III position from the RIF list	Bovaird: since he met minimum qualifications, Dept. was required to place him from RIF list and thus he should receive recall benefits	Dept.: even if on RIF list, rehiring into a promotion is not required and selection for promotions remains governed by merit rules	Held: Dept. was not required to rehire him into a promotion; trial court erred ordering placement and recall benefits
Whether Bovaird was entitled to restoration of sick leave, seniority date, and other recall benefits	Bovaird: as a recalled/rehired RIF employee he was entitled to Per 1101.06 benefits	Dept.: because he was not a recalled employee and was not rehired from RIF for a promotion, he is not entitled to those benefits	Held: Not entitled — because he was rehired into a different classification (promotion), Per 1101.06 benefits do not apply

Key Cases Cited

Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277 (summary judgment standard)
Cloutier v. State, 163 N.H. 445 (de novo review of law applied to facts)
N.H. Resident Ltd. Partners of Lyme Timber Co. v. N.H. Dep’t of Revenue Admin., 162 N.H. 98 (statutory construction; do not add words to statute)
Petition of Kalar, 162 N.H. 314 (administrative gloss doctrine explained)
Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673 (statute ambiguous if more than one reasonable interpretation)
Blue Mountain Forest Ass’n v. Town of Croydon, 119 N.H. 202 (subsequent legislative action can illuminate original intent)