Articles Posted in Government & Administrative Law

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This case presented two questions arising out of the operation of the Suncook Wastewater Treatment Facility (the “Facility”) in Allenstown, New Hampshire, for the New Hampshire Supreme Court's review. First, under an intermunicipal agreement, must defendant Town of Allenstown, share any of the profits generated from septage haulers who discharge their waste at the Facility with the plaintiff, Town of Pembroke? And second, after Allenstown used a portion of those profits to increase the Facility’s wastewater treatment capacity, must Allenstown allocate any of that increased capacity to Pembroke? Because the Supreme Court, as did the Superior Court, answered both questions “no,” the Supreme Court affirmed. View "Town of Pembroke v. Town of Allenstown" on Justia Law

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Petitioner Nicole Collins appealed a New Hampshire Personnel Appeals Board (board) decision upholding the New Hampshire Department of Health and Human Services’ (HHS) decision to dismiss her from employment. Prior to her termination, she was given letters of warning in April, October, and November 2015, for failing to meet various work standards and working unauthorized overtime. On April 7, 2016, pursuant to New Hampshire Administrative Rules, petitioner attended an “intent to discipline” meeting with her regional manager and the chief of operations. At this meeting, the regional manager read from prepared notes outlining evidence, including the precise case files, dates, and instances, that she believed supported a decision to dismiss petitioner. Petitioner had an opportunity to refute this evidence at the meeting. According to petitioner, at the meeting, she also requested the documentation that HHS was relying upon in making its decision to terminate her, but HHS did not provide her with the documents at that time. On April 20, HHS issued a letter of dismissal, which included over 100 pages of evidence supporting the decision. Petitioner appealed this decision to the board. In her appeal to the board, petitioner argued HHS violated Per 1002.08(d) and the New Hampshire Supreme Court's decision in Appeal of Boulay, 142 N.H. 626 (1998), when HHS did not provide her with the documents to support its dismissal decision at the meeting. The board conducted a hearing and found that petitioner’s dismissal was lawful. The Supreme Court, after its review, determined petitioner failed to demonstrate that the board’s affirmation of HHS’ dismissal decision was unreasonable or unlawful, and affirmed. View "Appeal of Nicole Collins" on Justia Law

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Appellants, Algonquin Gas Transmission, LLC (Algonquin) and Public Service Company of New Hampshire d/b/a Eversource Energy (Eversource), appealed a New Hampshire Public Utilities Commission (PUC) order dismissing Eversource’s petition for approval of a proposed contract for natural gas capacity, as well as a program to set parameters for the release of capacity and the sale of liquefied natural gas made available to electric generators, and/or an associated tariff. Appellees, NextEra Energy Resources, LLC (NextEra), Conservation Law Foundation (CLF), and the Office of the Consumer Advocate (OCA), appeared in opposition to this appeal. In denying Eversource’s petition, the PUC first ruled “that the overriding purpose of the Restructuring Statute is to introduce competition to the generation of electricity” with the “long-term results [to] be lower prices and a more productive economy.” The PUC then further ruled that “[t]o achieve that purpose, RSA 374-F:3, III directs the restructuring of the industry, separating generation activities from transmission and distribution activities, and unbundling the rates associated with each of the separate services.” Given these rulings, the PUC concluded that “the basic premise of Eversource’s proposal — having an EDC purchase long-term gas capacity to be used by electric generators — runs afoul of the Restructuring Statute’s functional separation requirement.” The NEw Hampshire Supreme Court disagreed. Pursuant to its plain language, and reading the statute as a whole, the Court discerned the primary intent of the legislature in enacting RSA chapter 374- F was to reduce electricity costs to consumers. The Court disagreed with the PUC’s ruling that the legislature’s “overriding purpose” was “to introduce competition to the generation of electricity.” Rather, as the statute provides, the legislature intended to “harness[ ] the power of competitive markets,” as a means to reduce costs to consumers, not as an end in itself. Likewise, the Court disagreed with the PUC’s ruling that RSA 374-F:3, III directed the “functional separation” of generation services from transmission and distribution services and elevates that single policy principle over the others identified in the statute. Therefore, the Supreme Court held the PUC erred in dismissing Eversource’s petition as a matter of law. In light of its decision, the Court did not address the appellant’s remaining arguments. View "Appeal of Algonquin Gas Transmission, LLC" on Justia Law

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Petitioners Mary Allen, Fred Ward, and other interested parties, appealed the decision of the New Hampshire Site Evaluation Committee (Committee) authorizing respondent Antrim Wind Energy, LLC (Antrim Wind), to construct and operate nine wind turbines in the town of Antrim. Antrim Wind originally filed an application (Antrim I) with the Committee in 2012, seeking authorization to construct ten wind turbines. Six of the turbines would be equipped with red flashing aviation obstruction lights. The project also included four miles of new gravel surfaced roads, a joint electrical system, an interconnection substation, and a maintenance building. Antrim Wind further proposed to construct a meteorological tower between turbines three and four to obtain wind data, dedicate 800 acres of land to conservation easements, and install a radar activated lighting system. Antrim I was initially denied; a few years later, Antrim II was filed and ultimately approved by the Committee, finding the second application reflected a “substantial change” from the first application, and as such, would not “have an unreasonable adverse effect on the health, safety, or aesthetics of the region. On appeal, petitioners argued the Committee’s ultimate decision was unreasonable, unlawful, and unjust because: (1) the subcommittee was unlawfully constituted; (2) the denial of Antrim I barred Antrim Wind’s Antrim II application under the doctrine of res judicata as well as the subsequent application doctrine as set forth in Fisher v. City of Dover, 120 N.H. 187 (1980); and (3) there was insufficient evidence in the record to support the subcommittee’s finding that the project proposed in Antrim II would not have an unreasonable adverse impact on aesthetics, public health, and safety. After review of the record, the New Hampshire Supreme Court concluded there was competent evidence to support all of the subcommittee’s factual findings. The subcommittee deliberated about each of these assessments and impacts and determined which experts it found to be more credible. The subcommittee also imposed certain mitigation measures and conditions to address remaining concerns and to ensure regulatory compliance. Accordingly, the Court concluded petitioners failed to show reversible error. View "Appeal of Allen et al." on Justia Law

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Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

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Petitioner, the State Employees’ Association of New Hampshire/Service Employees’ International Union, Local 1984 (Union), appealed a New Hampshire Public Employee Labor Relations Board (PELRB) order dismissing its unfair labor practice complaint against respondent, the Community College System of New Hampshire (CCSNH). The Union argued the PELRB erred in ruling that CCSNH was not obligated to: (1) bargain over wages for on-campus tutoring services performed by adjunct faculty; and (2) compensate an adjunct faculty member for lost tutoring income resulting from his participation in collective bargaining negotiations. The New Hampshire Supreme Court concluded that the tutoring services at issue here were, if anything, more closely related to the normal adjunct faculty members’ duties than the extracurricular activities in Appeal of Berlin Education Association, 125 N.H. 779 (1984) were related to the teachers’ regular duties. "Thus, the result reached in Berlin applies a fortiori to control the outcome here. Either way, the PELRB erred as a matter of law." Because the plain language of RSA 273-A:11, II obligated CCSNH to afford “[a] reasonable number of employees who act as representatives of the bargaining unit . . . a reasonable opportunity to meet” for collective bargaining negotiations “during working hours without loss of compensation or benefits,” the Supreme Court agreed with the Union that CCSNH had to compensate the adjunct faculty for the tutoring hours he missed while attending such negotiations. View "Appeal of State Employees Association/Service Employees International Union, Local 1984" on Justia Law

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Plaintiff XTL-NH, Inc. (XTL), appealed a superior court order that defendant New Hampshire State Liquor Commission (Commission) did not breach its obligation to provide a competitive bidding process that complied with New Hampshire law. The Commission cross-appealed the trial court’s ruling that sovereign immunity did not bar XTL’s promissory estoppel claim. In March 2012, the Commission issued a Request for Proposal (RFP) soliciting 20-year contract proposals for liquor warehousing services from private vendors. An Evaluation Committee (EC) reviewed five proposals and solicited “Best and Final Offers” from four of the vendors, including XTL. Thereafter, the Commission authorized the EC to negotiate a contract with defendant Exel Inc. (Exel), who was ultimately awarded the contract in November 2012. XTL sued the Commission, seeking preliminary and permanent injunctive relief and attorney’s fees and costs. Because the New Hampshire Supreme Court agreed with the Commission, it vacated and remanded to the trial court with instructions to dismiss this case for lack of subject matter jurisdiction. View "XTL-NH, Inc. v. New Hampshire State Liquor Com'n" on Justia Law

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The New Hampshire Division for Children, Youth and Families (DCYF) sought to challenge a circuit court order closing a child protection case. In November 2014, DCYF filed a petition for neglect under RSA chapter 169-C against the respondent-mother alleging that she neglected her child by engaging in drug use and exposing the child to domestic violence in the home. The child was found to be neglected; in January 2015, the trial court held a dispositional hearing and issued orders requiring, among other things, that the mother: attend and meaningfully participate in substance abuse and/or mental health counseling; attend and meaningfully participate in visits with the child; follow the terms of her release from incarceration and remain free from incarceration; and obtain and maintain a home free from untreated substance abuse, mental health issues, and/or domestic violence. At a three-month review hearing in April, the mother was found to be in “partial compliance.” At a six-month review hearing in August, the mother failed to appear and was found to be “not in compliance.” At a permanency hearing in December, the mother was again found to be “not in compliance,” at which time DCYF recommended and the court ordered a change in the permanency plan from reunification to adoption and that DCYF file a termination of parental rights petition under RSA chapter 170-C to enable adoption to occur. In October 2016, a hearing was held on DCYF’s petition for termination of parental rights, but the court denied it, finding DCYF did not present evidence of the mother’s failure to correct the conditions that led to the finding of neglect despite DCYF’s provision of reasonable efforts. In February, however, the court, sua sponte, issued an order concluding that “the New Hampshire legislature has determined that guardianship should be awarded for a child, pursuant to RSA 170-C:11, IV, when a termination proceeding fails, but the Court nonetheless believes that the child’s parental care requires substitution or supplementation.” The court found the language of the statute mandatory, and that “[n]o discretion is provided in this context, assuming that the Court finds a need for substitution or supplementation.” The New Hampshire Supreme Court held the circuit court erred as a matter of law in ruling that RSA 170-C:11, IV mandated closure of the child’s RSA chapter 169-C child protection case and guardianship with DHHS as the child’s permanency plan. Accordingly, the case was remanded for further proceedings. View "Petition of New Hampshire Division for Children, Youth & Families" on Justia Law

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The New Hampshire Banking Department (Department) initiated an adjudicative proceeding against CashCall, Inc. (CashCall), WS Funding, LLC (WS Funding), and John Paul Reddam, for violations of RSA chapter 399-A (2006 & Supp. 2012) (repealed and reenacted 2015). Reddam is the president and chief executive officer of CashCall, a lending and loan services corporation headquartered and incorporated in California. Reddam owned all of CashCall’s corporate stock. Reddam was also the president of WS Funding, a wholly owned subsidiary of CashCall. WS Funding was a Delaware limited liability company with a principal place of business in California. CashCall appeared to be engaged in the business of purchasing and servicing small loans or “payday loans” in association with Western Sky Financial. Neither Reddam, CashCall, nor WS Funding was licensed under RSA chapter 399-A to issue small loans in New Hampshire. In June 2013, after analyzing and reviewing CashCall’s responses to an administrative subpoena duces tecum and reviewing the business relationships among CashCall, WS Funding, and Western Sky Financial, the Department issued a cease and desist order to CashCall, WS Funding, and Reddam. In the cease and desist order, the Department found that either CashCall, or WS Funding, was the “actual” or “de facto” lender for the payday and small loans, and that Western Sky Financial was a front for the respondents’ unlicensed activities. Reddam challenged the Department’s denial of his motion to dismiss for lack of personal jurisdiction. The New Hampshire Supreme Court determined the Department made a prima facie showings that: (1) Reddam’s contacts related to the Department’s cause of action; (2) he purposefully availed himself of the protection of New Hampshire law; and (3) it was fair and reasonable to require him to defend suit in New Hampshire. The Court therefore found no due process violation in the Department’s exercise of specific personal jurisdiction over Reddam. View "Petition of John Paul Reddam" on Justia Law

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The Town of Bow (town) appealed a superior court order granting plaintiff Public Service Company of New Hampshire (PSNH) an abatement of taxes on its property in the town for tax years 2012 and 2013. PSNH owns certain special-purpose utility property in the town, including Merrimack Station, two combustion turbines, and a high-voltage regional electric transmission and distribution network. Merrimack Station consists of two coal-fired units that produce steam to rotate turbines and generators to produce electricity. The combustion turbines cannot be remotely turned on and, instead, must be physically turned on in a control room at the Merrimack Station site. At trial, the sole issue was the determination of the proper value of this special-purpose utility property for the tax years in question. Following a six-day bench trial, the trial court found PSNH's expert “testimony [to be] more credible than” the town's and, therefore, ruled that PSNH had met its burden of demonstrating that it was entitled to an abatement for tax years 2012 and 2013 with respect to the disputed property. The town moved for reconsideration, which the court denied, and this appeal followed. Finding no reversible error, the New Hampshire Supreme Court affirmed the superior court's judgment. View "Public Service Company of New Hampshire v. Town of Bow" on Justia Law