Date: Mar 20, 2026

“Just” Means Legally Right and Equitable: RSA 273-D:3, V Constitutionally Guides PAB Reinstatement and Permits Modification Even When Misconduct Is Found

1. Introduction

In Appeal of New Hampshire Department of Administrative Services (N.H. Mar. 18, 2026), the New Hampshire Supreme Court reviewed a decision of the Personnel Appeals Board (PAB) that overturned the New Hampshire Department of Administrative Services (DAS)’s termination of a long-tenured maintenance mechanic and ordered reinstatement with back pay and benefits (less mitigating income).

The termination arose from allegations by a lab scientist that the employee engaged in unwanted physical contact on two occasions and regularly used “pet names” for female employees. DAS concluded the employee violated the State’s Sexual Harassment Policy (inappropriate touching) and Respect and Civility in the Workplace Policy (pet names), and terminated him. After hearing testimony, the PAB reversed termination, finding progressive discipline could correct behavior and that termination was “unjust and unwarranted.”

The appeal presented three principal issues: (1) whether RSA 273-D:3, V unconstitutionally delegates legislative authority by allowing the PAB to enter any order it deems “just”; (2) whether the PAB could reinstate despite not overturning DAS’s underlying misconduct determination; and (3) whether the PAB had to specify an alternative disciplinary sanction when reversing termination.

2. Summary of the Opinion

Constitutionality: The Court held RSA 273-D:3, V is not an unconstitutional delegation. “Just” has an established legal meaning (lawful/equitable) and the surrounding statutory framework provides additional standards.
Merits of reinstatement: The Court held the PAB may reinstate (or modify discipline) even if it does not overturn the appointing authority’s determination that policy violations occurred; neither the statute nor the rules restrict reinstatement to cases where no terminable offense was committed.
Alternative discipline argument waived: DAS’s claim that the PAB had to prescribe a specific alternative discipline was not preserved because it was not raised in the motion for rehearing; the Court declined review under RSA chapter 541.

3. Analysis

A. Precedents Cited

1) Standards for constitutional review of statutes

Polonsky v. Town of Bedford, 173 N.H. 226 (2020), supplied the Court’s baseline approach: statutes are presumed constitutional; challengers bear the burden; invalidation requires “inescapable grounds” and a “clear and substantial conflict.” This framing placed DAS in a steep posture, requiring more than policy disagreement with the breadth of PAB remedial discretion.

2) Textual interpretation methodology

State v. Levier, 177 N.H. ___, ___ (2026), 2026 N.H. 7, ¶11, was cited for plain-meaning interpretation and reading a statute as a cohesive scheme. This supported treating “just” not as an empty vessel, but as a term informed by legal usage and the surrounding provisions of RSA 273-D:3.

3) Delegation doctrine under separation of powers

Appeal of Blizzard, 163 N.H. 326 (2012), provided the governing separation-of-powers test under Part I, Article 37: the legislature may not delegate power in “broad terms” that leave “unguided and unrestricted discretion,” and statutes must supply “basic standards and a reasonably definite policy.” The Court also relied on Blizzard’s instruction to construe delegations in light of implied standards in “surrounding statutory provisions.”

Guillou v. State, 127 N.H. 579 (1986), was the key comparator where delegation failed. Guillou invalidated authority to revoke a driver’s license “for any cause which he may deem sufficient,” because it lacked express or implied limiting qualifications and invited arbitrary decision-making. The Court distinguished Guillou: “just” is a term of law tied to fairness and equity, and RSA 273-D:3 supplies contextual guardrails.

4) Prior construction of the PAB’s remedial discretion

Appeal of N.H. Div. of State Police, 171 N.H. 262 (2018), interpreted materially identical language in the predecessor statute (RSA 21-I:58, I, repealed 2024). The Court reaffirmed that the language vests the PAB with discretion to decide whether to grant relief and how to craft it, and that the PAB is not compelled to impose discipline for every proven violation. In the present case, the Court used this precedent to reject DAS’s claim that the PAB’s authority is limited to exoneration scenarios.

5) Appellate review of PAB decisions

Appeal of Cass, 177 N.H. ___, ___ (2025), 2025 N.H. 51, ¶7, was cited for the RSA 541:13 framework: the appellant must show the decision is “clearly unreasonable or unlawful”; factual findings are prima facie reasonable; legal interpretation is reviewed de novo. This standard was central to upholding reinstatement in light of the PAB’s articulated reasons (tenure, record, awareness, and efficacy of progressive discipline).

6) Preservation and rehearing requirements in administrative appeals

Appeal of Walsh, 156 N.H. 347 (2007), enforced the rule that grounds not raised in the motion for rehearing under RSA 541:4 are not reviewable absent good cause. The Court applied Walsh to dispose of DAS’s “alternative discipline must be specified” argument, raised for the first time on appeal.

B. Legal Reasoning

1) Why “just” is a sufficiently definite standard (no unconstitutional delegation)

The Court anchored its delegation analysis in (i) the legal meaning of “just” and (ii) the statutory context. It defined “just” as “[l]egally right; lawful; equitable” (contrasted with “unjust” as not fair or reasonable), concluding this term incorporates recognizable legal constraints. Unlike Guillou’s “any cause which he may deem sufficient,” “just” points to adjudicative norms (lawfulness, equity, reasonableness) rather than unfettered preference.

Context reinforced those limits. Although RSA 273-D:3, V uses broad remedial language (“may reinstate… or make such order as it may deem just”), the Court read it within RSA 273-D:3 as a whole—especially RSA 273-D:3, III, which specifies the kinds of deficiencies that warrant relief (unlawful action, rule violations, unwarranted discipline, or unjust discipline “in light of the facts in evidence”). Even if subsection V is not textually limited to subsection III’s list, subsection III functions as an implied guidepost that reduces arbitrariness.

The Court also noted the broader legal ecosystem uses “just” as a standard in other statutes, underscoring that it is a familiar limiting concept rather than a void. It further analogized to appellate review constraints in RSA 541:13 (“unjust or unreasonable”), illustrating that “justice” language is operationally meaningful in New Hampshire law.

2) Addressing the “personal experiences” concern

DAS argued the PAB’s discretion was effectively unguided because deliberations included “extraneous discussion” of board members’ personal experiences. The Court’s response was functional: the written order demonstrated the PAB relied on record-based, job-related considerations—particularly the likelihood that progressive discipline would change behavior—bringing the decision within permissible statutory discretion even if deliberations were imperfect.

3) Reinstatement is permissible even if misconduct occurred

On the merits, DAS asserted a logical inconsistency: the PAB reinstated while not overturning DAS’s conclusion that sexual harassment occurred. The Court rejected the premise that reinstatement requires exoneration. Relying on Appeal of N.H. Div. of State Police, the Court emphasized that neither RSA 273-D:3, V nor the personnel rules restrict PAB relief to “no terminable offense” cases.

The Court also highlighted the permissive nature of the appointing authority’s disciplinary-factor rule, N.H. Admin. R., Per 1003.03 (“may consider” factors), and recognized the PAB’s reliance on factors congruent with that rule: long service and positive history, lack of prior violations, claimed lack of awareness, and the corrective potential of progressive discipline. Under RSA 541:13 and Appeal of Cass, DAS failed to demonstrate the reinstatement order was clearly unreasonable, unjust, or unlawful.

4) Issue preservation: failure to raise alternative-discipline argument

The Court enforced administrative finality and efficiency: because DAS did not raise the “PAB must specify alternative discipline” claim in its rehearing motion, it was barred on appeal under RSA 541:4, as explained in Appeal of Walsh. The Court found no “good cause” to excuse the omission and declined review.

C. Impact

Delegation challenges narrowed: The decision strengthens the constitutionality of broadly worded remedial grants to administrative adjudicators when (a) the key term has a settled legal meaning (here, “just”) and (b) surrounding provisions provide implied standards (here, RSA 273-D:3, III and the overall PAB appeal framework).
PAB remedial discretion reaffirmed: Agencies should expect that a proven policy violation does not automatically sustain termination on appeal; the PAB may substitute or reduce discipline if it deems that outcome “just,” particularly where progressive discipline is supported by record factors (tenure, prior record, proportionality).
Litigation practice consequence: The ruling underscores strict preservation requirements in RSA chapter 541 appeals; parties must raise all intended appellate grounds in the rehearing motion or risk waiver.

4. Complex Concepts Simplified

Unconstitutional delegation (separation of powers): The legislature can authorize agencies to apply laws, but it must provide enough standards so the agency is not making policy from scratch. A delegation fails when it gives officials essentially unlimited discretion without meaningful criteria.
“Just” as a legal standard: “Just” is not merely what a decision-maker personally prefers. It is a legal term tied to lawfulness, fairness, equity, and reasonableness—concepts courts can review and constrain.
Progressive discipline: A disciplinary approach that uses escalating steps (e.g., warning, suspension, last-chance agreement) before termination, especially when behavior is potentially correctable.
RSA 541:13 (“clearly unreasonable or unlawful” review): A deferential standard: factual findings of an agency are presumed reasonable, and the challenger must show clear error. Courts are more searching only on pure questions of law (statute/rule interpretation).
Rehearing preservation (RSA 541:4): Before appealing, the party must ask the agency to reconsider and must list the alleged errors. If an argument is not raised then, it is generally waived on appeal.

5. Conclusion

The Court affirmed the PAB and, in doing so, crystallized three practical rules: (1) RSA 273-D:3, V’s authorization for the PAB to enter orders it deems “just” is a constitutional delegation because “just” is a constraining legal standard informed by the broader statutory scheme; (2) the PAB may modify termination to reinstatement even when it does not overturn the agency’s underlying finding of misconduct, so long as the remedy is “just” in light of the record; and (3) parties must preserve arguments in an RSA 541 rehearing motion or forfeit appellate review.