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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Personnel Appeals Board

No. 2018-0296

APPEAL OF STEVEN SILVA

(New Hampshire Personnel Appeals Board)

Argued: April 10, 2019

Opinion Issued: May 10, 2019

Gary Snyder, general counsel, State Employees’ Association of New 

Hampshire, Inc., SEIU, Local 1984, of Concord, on the brief and orally, for the 

petitioner.

Gordon J. MacDonald, attorney general (Jill A. Perlow, senior assistant 

attorney general, on the brief and orally), for the respondent.

HANTZ MARCONI, J. The petitioner, Steven Silva, appeals a decision of 

the New Hampshire Personnel Appeals Board (PAB). The PAB upheld the 

decisions of the respondent, the New Hampshire Department of Health and 

Human Services (DHHS), to suspend and subsequently terminate the 

petitioner’s employment. We affirm.

The following facts were found by the PAB or are otherwise derived from 

the record. The petitioner began working at the New Hampshire Hospital in 

1999. He was terminated from employment in 2015 for violating the hospital’s 

sexual harassment policy. See N.H. Admin. R., Per 1002.08(b)(7) (“An 

appointing authority may dismiss an employee without prior warning for . . . 
2

[v]iolation of a posted or published agency policy or procedure, the text of 

which warns that violation of same may result in dismissal.”). He appealed this 

termination to the PAB. In 2016, the PAB found that the petitioner’s 2015 

termination did not comply with New Hampshire Administrative Rules, Per 

1002.08(d) because DHHS did not provide the petitioner, prior to termination,

with all of the evidence it relied upon to justify his termination, and, 

consequently, he was not given an opportunity to refute the evidence that led 

to his dismissal. See N.H. Admin. R., Per 1002.08(d). For that reason, the PAB 

ordered DHHS to reinstate the petitioner retroactively to the date of his 

termination and award him back pay and benefits.

Following the PAB’s order, DHHS resumed paying the petitioner but

simultaneously placed him on suspension so that it could conduct a new 

investigation into the same sexual harassment allegations that formed the 

basis for the 2015 termination. In 2017, after completing its investigation, 

DHHS terminated the petitioner again. The petitioner appealed his suspension

as well as his 2017 termination to the PAB, arguing that the PAB’s decision 

overturning his prior termination prevents DHHS from terminating or 

suspending him for the same conduct. After a hearing on the merits, the PAB 

upheld the suspension and subsequent termination. The petitioner moved for 

reconsideration; the PAB denied the petitioner’s motion and this appeal 

followed.

RSA chapter 541 governs our review of the PAB’s decision. Appeal of 

Cole, 171 N.H. 403, 411 (2018); RSA 21-I:58, II (2012). We will not set aside 

the PAB’s decision except for errors of law, unless the petitioner demonstrates

by a clear preponderance of the evidence that it is unjust or unreasonable. 

Cole, 171 N.H. at 411-12; RSA 541:13 (2007). The PAB’s findings of fact are 

presumed prima facie lawful and reasonable. RSA 541:13. In reviewing the 

PAB’s findings, our task is not to determine whether we would have found 

differently or to reweigh the evidence, but rather to determine whether its 

findings are supported by competent evidence in the record. Cole, 171 N.H. at 

412. However, we review the PAB’s rulings on issues of law de novo. See id.

The petitioner first argues that his 2017 termination violates RSA 21-

I:58, I (2012) because that statute requires reinstatement after a termination is 

overturned by the PAB due to the violation of an applicable regulation, such as 

Per 1002.08(d). This argument requires that we engage in statutory 

interpretation. The interpretation of a statute is a question of law. Cole, 171 

N.H. at 408. In matters of statutory interpretation, this court is the final 

arbiter of the legislature’s intent as expressed in the words of the statute 

considered as a whole. Id. When construing a statute’s meaning, we first 

examine the language found in the statute, and where possible, we ascribe the 

plain and ordinary meanings to the words used. Id. We do not consider words 

and phrases in isolation, but rather within the context of the statute as a 

whole, and we construe all parts of a statute together to effectuate its overall 
3

purpose and to avoid an absurd or unjust result. Appeal of New England 

Police Benevolent Ass’n, 171 N.H. 490, 493 (2018). We interpret legislative 

intent from the statute as written and will not consider what the legislature 

might have said or add language that the legislature did not see fit to include. 

Id.

The petitioner’s argument also requires that we interpret Per 1002.08(d). 

We use the same principles of construction when interpreting both statutes 

and regulations. Appeal of Michele, 168 N.H. 98, 102 (2015). While deference 

is accorded to an agency’s interpretation of its own regulations, that deference 

is not total. Appeal of Collins, 171 N.H. 61, 63 (2018). A reviewing court must 

still examine whether the agency’s interpretation is consistent with the 

language of the regulation and with the purpose that the regulation was 

intended to serve. Id.

RSA 21-I:58, I, provides in pertinent part: 

Any permanent employee who is affected by any application of the 

personnel rules, except for [certain rules not at issue here], may 

appeal to the personnel appeals board within 15 calendar days of 

the action giving rise to the appeal. . . . If the personnel appeals 

board finds that the action complained of was taken by the 

appointing authority . . . in violation of a statute or of rules 

adopted by the director, the employee shall be reinstated to the 

employee’s former position or a position of like seniority, status, 

and pay. 

RSA 21-I:58, I.

Per 1002.08(d) provides:

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 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 

provided, however:

a. An employee’s failure to respond to a request for a 

meeting with the appointing authority shall not bar the 

appointing authority from dismissing an employee 

pursuant to this part; and
4

b. An employee’s refusal to meet with the appointing 

authority shall not bar the appointing authority from 

dismissing an employee pursuant to this part; and

(3) Documents in writing the nature and extent of the 

offense.

N.H. Admin. R., Per 1002.08(d).

The petitioner argues that, because the PAB found that DHHS’s 2015 

termination failed to comply with the requirements of Per 1002.08(d), that

termination was in violation of a rule adopted by the director, and thus DHHS

was required to reinstate him pursuant to RSA 21-I:58, I. He argues that this 

statutory reinstatement requirement precludes DHHS from terminating him 

again for the same conduct which gave rise to his 2015 termination. He 

further asserts that construing the statute to allow for termination in these 

circumstances renders the protections of RSA 21-I:58 and Per 1002.08(d) 

meaningless, is contrary to legislative intent, and produces an absurd result. 

By contrast, DHHS argues that nothing in RSA 21-I:58, I, precludes it from 

terminating the petitioner, and that a contrary interpretation would give the 

petitioner an unfair windfall, “who, because of a technical rule violation, would 

be above reproach from his employer, regardless of how egregious the 

underlying conduct.”

RSA 21-I:58, I, provides that, if the PAB finds that the “action 

complained of” by the employee was taken “in violation of” an applicable 

administrative rule, then the employee must be reinstated to his former 

position or a like one. RSA 21-I:58, I; Appeal of N.H. Div. of State Police, 171 

N.H. 262, 267 (2018). The parties’ dispute boils down to whether DHHS’s 

second termination, after its first was rejected for failure to comply with Per 

1002.08(d), is consistent with this reinstatement requirement. We conclude 

that it is.

The term “reinstated,” as it is used in RSA 21-I:58, I, is not defined by 

statute. See RSA 21-I:1-a (2012) (defining certain terms used in RSA chapter 

21-I). When a term is not defined in a statute, we look to its common usage, 

using the dictionary for guidance. Michele, 168 N.H. at 102. Webster’s Third 

New International Dictionary defines “reinstate” as “to restore to a proper 

condition: replace in an original or equivalent state.” Webster’s Third New 

International Dictionary 1915 (unabridged ed. 2002); see also Black’s Law 

Dictionary 1477 (10th ed. 2014) (defining “reinstate” as “[t]o place again in a 

former state or position; to restore”). Therefore, the statute requires that the 

employee be restored to the same state that he or she occupied prior to the 

action complained of. Here, prior to the petitioner’s 2015 termination, he 

occupied a state in which he was required to comply with his employer’s lawful

policies or else face potential termination. See N.H. Admin. R., Per 
5

1002.08(b)(7). This suggests that, upon the petitioner’s reinstatement, he 

remained subject to potential discipline for the conduct underlying his 2015 

termination. Conversely, construing the statute in the manner suggested by 

the petitioner would, in essence, immunize him from discipline for that 

conduct, which is a wholly different (and more favorable) state from that which 

he enjoyed prior to his 2015 termination. The plain language of the statute 

does not support such a construction.

1

The petitioner argues that construing the statute to allow for termination

in these circumstances renders the protections of both Per 1002.08(d) and RSA 

21-I:58 meaningless because the State would not have to “follow the procedural 

requirements for termination . . . [or] abide by the requirement to reinstate an 

employee under RSA 21-I:58 for violation of the Personnel Rules.” We disagree

on both counts. As to Per 1002.08(d), we have explained that one of the rule’s 

purposes is to provide adequate notice regarding the reasons why the employer 

believes termination is warranted. Collins, 171 N.H. at 64; see also Appeal of 

Boulay, 142 N.H. 626, 628 (1998) (construing predecessor to Per 1002.08(d)). 

Such notice helps the employee prepare a defense. See Boulay, 142 N.H. at 

628 (“The dates and nature of the alleged misconduct must be sufficiently 

precise, when considered with information available to the [employee], to allow 

the presentation of an intelligent defense.” (quotation omitted)); cf. Appeal of 

Blizzard 163 N.H. 326, 336 (2012) (explaining the purpose of constitutionally 

required notice). We fail to see how the employee’s notice of the evidence 

against him, as well as his ability to refute that evidence, is hindered solely by 

the bringing of a second termination proceeding. So long as Per 1002.08(d) is 

complied with in carrying out the second termination, the protections of the 

rule are afforded.

To the extent the petitioner argues that allowing the State to begin anew 

after reinstatement gives it insufficient incentive to abide by the requirements 

of Per 1002.08(d) in the first instance, we are unpersuaded. In addition to 

reinstatement, RSA 21-I:58, I, provides that “[t]he employee shall be reinstated 

without loss of pay, provided that the sum shall be equal to the salary loss 

suffered during the period of denied compensation less any amount of 

compensation earned or benefits received from any other source during the 

period.” RSA 21-I:58, I (emphasis added). Having to pay an employee for time 

during which he or she was not working is not an insignificant incentive for the 

State to comply with Per 1002.08(d). There is also the fact that the State must 

expend additional resources to carry out a second, duplicative termination, 

especially when, as here, that termination is appealed to the PAB. See N.H. 

Admin. R., Per-A 207.01(b) (“In appeals involving disciplinary action . . . the 

 

1 The common usage of the word “reinstate” also leads us to reject the petitioner’s argument that 

his subsequent termination, in addition to violating RSA 21-I:58, I, violated the PAB’s original

order requiring that he be reinstated.
6

appointing authority shall have the burden of producing evidence supporting 

the action under appeal.”).

As to RSA 21-I:58, nothing we say today alters the statute’s requirement 

that, when the PAB finds that a challenged action was taken in violation of an 

applicable rule, such as Per 1002.08(d), reinstatement is required. See N.H.

Div. of State Police, 171 N.H. at 267. The issue in this case concerns whether, 

when the rule violated is Per 1002.08(d), which provides not substantive but 

procedural protections, see Collins, 171 N.H. at 64, allowing the State to start 

over with a new termination process after it has reinstated the employee is 

consistent with RSA 21-I:58. See Gomez v. Stout, 918 N.E.2d 99, 101-02 (N.Y. 

2009) (concluding that petitioner was entitled to reinstatement and back pay 

because termination was overturned due to procedural error, but also affirming 

intermediate appellate court’s decision to remand to agency to allow it “to 

render a determination on the same hearing record” in compliance with 

procedural rule). For these reasons, we reject the petitioner’s arguments that 

Per 1002.08(d) and RSA 21-I:58 preclude his 2017 termination.

The petitioner’s next argument is that the PAB erred by failing to 

conclude that res judicata barred DHHS from litigating whether he could be 

suspended and subsequently terminated for the same conduct upon which his 

2015 termination was based. The doctrine of res judicata prevents parties 

from relitigating matters actually litigated and matters that could have been 

litigated in a previous action. 412 S. Broadway Realty v. Wolters, 169 N.H. 

304, 313 (2016). It can apply to decisions of administrative bodies made in an 

adjudicative context. See Cook v. Sullivan, 149 N.H. 774, 777-78 (2003). The

doctrine applies if three elements are met: (1) the parties in the instant action 

must be the same as the parties in the previous action (or must be in privity 

with them); (2) the “cause of action” must be the same; and (3) the previous 

action must have resulted in a “final judgment on the merits.” Wolters, 169 

N.H. at 313 (quotation omitted). The applicability of res judicata is a question 

of law, which we review de novo. Id. The petitioner argues that the PAB’s order 

overturning his 2015 termination constitutes a final judgment on the merits for 

res judicata purposes. We disagree.

As noted above, the PAB overturned the petitioner’s 2015 termination on 

the grounds that DHHS failed to satisfy the requirements of Per 1002.08(d) 

prior to termination. That regulation obligates the appointing authority, prior 

to termination, to provide the employee with notice of the evidence against him 

and an opportunity to refute that evidence. N.H. Admin. R., Per 1002.08(d)(1)-

(2); see also Collins, 171 N.H. at 64; Boulay, 142 N.H. at 627-28 (affirming 

PAB’s decision to conditionally reinstate employee because employer failed to 

comply with predecessor to Per 1002.08(d)). In essence, Per 1002.08(d) makes 

the provision of notice and an opportunity to be heard a requirement for, or

precondition to, termination. See N.H. Admin. R., Per 1002.08(d) (“No 

appointing authority shall dismiss a classified employee under this section 
7

until the appointing authority [complies with subsections (1)-(3)].”). We have 

previously stated that a “judgment based upon a ‘plaintiff’s failure to satisfy a 

precondition to suit[ ] does not bar another action by the plaintiff instituted 

after . . . the precondition has been satisfied,’” regardless of whether the failure 

to comply with the precondition is apparent “‘on the face of the pleadings, as a 

result of pretrial discovery, or from the evidence at trial.’” So. Willow Properties 

v. Burlington Coat Factory of N.H., 159 N.H. 494, 499 (2009) (quoting 

Restatement (Second) of Judgments § 20(2) & cmt. k at 170, 175 (1982)). 

Because the PAB’s decision overturning the 2015 termination was based upon 

DHHS’s failure to satisfy the requirements of Per 1002.08(d) prior to 

termination, we conclude that it is not a final judgment on the merits for res 

judicata purposes. See id. at 498-99 (concluding that dismissal of eviction 

proceeding due to defective notice to quit was not a final judgment on the 

merits; thus, second eviction proceeding not barred by res judicata). Since at 

least one of the elements of res judicata is not met, the doctrine does not apply. 

See Wolters, 169 N.H. at 313.

We next consider the petitioner’s argument that the PAB erred by failing 

to conclude that the doctrine of collateral estoppel barred DHHS from 

relitigating whether he could be suspended and subsequently terminated for 

the same conduct that gave rise to his 2015 termination. Collateral estoppel 

may preclude the relitigation of findings by an administrative board, provided 

that the following requirements are satisfied: (1) the issue subject to estoppel 

must be identical in each action; (2) the first action must have resolved the 

issue finally on the merits; (3) the party to be estopped must have appeared in 

the first action or have been in privity with someone who did; (4) the party to be 

estopped must have had a full and fair opportunity to litigate the issue; and (5) 

the finding must have been essential to the first judgment. Barry v. N.H. Dep’t 

of Health and Human Servs., 170 N.H. 364, 367 (2017). In order for the 

doctrine to apply, all five prerequisites must be satisfied, including the 

requirement that the issue subject to estoppel was essential to the first 

judgment. Tyler v. Hannaford Bros., 161 N.H. 242, 247 (2010). The party 

asserting the doctrine bears the burden of proving that it applies. Barry, 170 

N.H. at 367. The applicability of collateral estoppel is a question of law that we 

review de novo. Id.

The petitioner argues that collateral estoppel applies because, in part, 

the PAB made factual findings in its first order regarding DHHS’s evidence of 

sexual harassment. Any such findings made by the PAB, however, would not 

have been essential to its judgment that the petitioner’s termination should be 

overturned due to DHHS’s failure to comply with Per 1002.08(d). Any 

discussion of DHHS’s evidence of sexual harassment in the PAB’s first order

had no bearing on whether DHHS provided the petitioner with adequate notice 

of that evidence and an opportunity to refute it prior to his 2015 termination. 

See Petition of Gilpatric, 138 N.H. 360, 363 (1994) (explaining that any finding 

made by trial court as to petitioner’s specific medical diagnosis would not have 
8

been essential to its judgment as to her work capacity because “her work 

capacity did not depend on the precise nature of her injuries, nor the exact 

scope of her medical diagnosis”). “‘If issues are determined but the judgment is 

not dependent upon the determinations, relitigation of those issues in a 

subsequent action between the parties is not precluded.’” Tyler, 161 N.H. at 

247 (quoting Restatement (Second) of Judgments § 27 cmt. h at 258 (1982)). 

Thus, since the petitioner has not demonstrated that all five prerequisites for 

collateral estoppel are satisfied, we conclude that the doctrine does not apply. 

Id.; Barry, 170 N.H. at 367-68.

The petitioner’s remaining arguments bear only brief mention. He argues 

that the PAB erred because the law of the case doctrine precluded the State 

from re-terminating him. See Saunders v. Town of Kingston, 160 N.H. 560, 

566 (2010). The petitioner never raised this argument before the PAB. 

Accordingly, we decline to consider it. See RSA 541:4 (2007) (“No appeal from 

any order or decision of the [PAB] shall be taken unless the appellant shall 

have made application for rehearing as herein provided, and . . . no ground not 

set forth therein shall be urged, relied on, or given any consideration by the 

court, unless the court for good cause shown shall allow the appellant to 

specify additional grounds.”); Appeal of Northern New England Tele. 

Operations, LLC, 165 N.H. 267, 271-72 (2013).

The petitioner also argues that the PAB’s decision violates his due 

process rights under the Fourteenth Amendment to the United States 

Constitution.2 See U.S. CONST. amend. XIV, § 1. He argues that he has a 

property interest in his continued employment, and that DHHS’s 2015 

termination deprived him of this interest without adequate procedural 

protections. Therefore, the petitioner argues, his 2015 termination violated his 

due process rights. He further contends that, as a result of this constitutional 

violation, he is “entitled to reinstatement . . . and re-termination is not an 

option.” However, even assuming, without deciding, that the petitioner’s 2015 

termination violated his due process rights under the Federal Constitution, and 

further assuming that he is constitutionally entitled to reinstatement as a 

remedy for that violation, the petitioner’s argument that he is immunized from 

termination upon reinstatement is nothing more than a re-packaging of his 

argument as to the proper interpretation of RSA 21-I:58, I. Accordingly, we 

reject the petitioner’s due process claim for the same reasons we reject his 

construction of RSA 21-I:58, I.

The petitioner’s final arguments are that the PAB erred when it failed to 

address, in the instant proceeding, DHHS’s failure to provide him with a 

“breakdown” of the back pay owed to him from the time of his 2015 

termination to his 2016 reinstatement, and further erred when it failed to 

 

2 The petitioner does not argue that his rights under the New Hampshire Constitution were 

violated.
9

address, in the instant proceeding, DHHS’s failure to pay him from the time of 

the PAB’s 2016 order overturning his 2015 termination until the point at which 

he was placed on paid suspension one month later. These arguments concern 

DHHS’s compliance with the PAB’s 2016 order. The 2016 order is not before 

us in this appeal; therefore, we decline to comment on the existence or scope of 

DHHS’s continuing obligations under that order. See State v. Bent, 163 N.H. 

237, 240-41 (2012).

Affirmed.

LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.