Judge grants back pay to ex-registers of probate
Two former probate court registers will receive nearly $200,000 in back pay after a judge decided the employees made earnest yet unsuccessful attempts to find comparable work when the state cut their posts in the middle of a two-year term.
Anna Tilton of Cheshire County and Andrew Christie of Rockingham County each will receive about 18 months of salary under the order issued by Merrimack County Superior Court Judge Richard McNamara. The payouts – $114,434.10 for Tilton and $82,735.66 for Christie – amount to roughly what they would have made if their positions hadn’t been effectively eliminated in 2011 under an accelerated court restructuring process.
McNamara’s Jan. 18 order comes about nine months after the judge first ruled in favor of the former registers.
Tilton and Christie’s positions, along with the state’s eight other probate court registers, were intended to be gradually phased out under a 2010 plan to cut costs in the judicial system. The restructuring was scheduled to take between five and 10 years.
But in early 2011, the state legislature required the plan go into effect immediately. In June of that year, the registers’ duties were reduced to essentially nothing and their pay was slashed to a $100 annual stipend.
Tilton and Christie argued the move was a breach of their contract and a violation of state law, which says officials have to show that a register committed misconduct to fire them.
But the state argued it was entitled to create a new job description, with a matching salary, for the registers. And according to the state, Tilton and Christie were still employed, given the $100 stipend.
McNamara sided with the employees, saying they were essentially laid off because their positions were changed so dramatically that a reasonable person would have been forced to resign. But because the parties didn’t agree on how much they were owed, McNamara scheduled a hearing on the matter for last November, resulting in this month’s order.
Since McNamara’s initial decision, five other former registers were added as parties to the lawsuit, according to Chuck Douglas, who worked on the case along with attorney Jason Major. Douglas said four of those registers – Strafford County’s Kimberly Wood, Sullivan County’s Diane Davis, Carroll County’s Gail Monet and Grafton County’s Rebecca Wyman – agreed with the state on how much they were entitled to.
In total, those employees received about $129,000, according to Douglas.
Tilton and Christie disputed their amounts. In granting the two nearly $200,000, McNamara decided they had done enough to find comparable work after their positions were eliminated.
“You can’t just sit back and say ‘Woe is me,’ but you have to try and mitigate,” Douglas said. “But you don’t have to take the night shift at McDonald’s for $7 an hour either.”
The state argued that the employees had been offered the chance to apply for clerk and deputy clerk positions but chose not to. Because they didn’t apply for those positions, Tilton and Christie also weren’t considered for other jobs referred to as Court Assistant III positions, the state argued.
But McNamara found that the registers hadn’t been told the court assistant spots were open. And he said they had valid reasons to not seek the clerk positions: Tilton because she didn’t believe she was qualified and Christie because he felt that the clerical job didn’t suit a 68-year-old man with a background primarily in law enforcement.
Tilton said she wanted to return to working in academia, but wasn’t hired for several spots she applied for, according to McNamara’s order. (She’s since been elected as the Cheshire County Register of Deeds, a position she took over this month.) Christie was hired to work part time as a bailiff in Rockingham County.
Tilton “was not told that there would be the possibility of a (court assistant) position with the court open to her, and could hardly be expected to apply for a position she did not know about,” McNamara wrote in his order. “She provided the court with ample evidence that she diligently sought other employment but was unable to obtain it.”
McNamara said the state also failed to prove Christie hadn’t mitigated his losses.
Former register Karen Brickner of Belknap County also disagreed with the state on how much she was entitled to. But Brickner, unlike Tilton and Christie, did not do enough to mitigate her damages, McNamara said in his order.
When her position was eliminated, Brickner applied for and was offered a deputy clerk position in Concord. But because of the position’s lower pay and travel requirement, she instead retired early and took a part-time court assistant position, according to the order.
McNamara ordered the state to pay Brickner $3,706.92, the difference between what she would have made over 18 months in her position as a register and the clerk job she was offered but turned down. Douglas said he had sought about $36,000 for Brickner, the amount he said she lost in benefits by retiring early. McNamara denied that request, saying Brickner began receiving retirement benefits sooner than she would have if she had finished her term.
On Friday, Douglas said Tilton and Christie are pleased with the outcome after suffering a financial loss due to the restructuring.
“When you go without a paycheck and you were working full time, it does have ripple effects in terms of borrowing money and using credit cards and doing things you wouldn’t do if you continued in your job,” he said. “It was wrong for the state to change this during their term of office. That’s totally uncalled for.”
Assistant Attorney General Laura Lombardi, who represented the state in the case, could not be reached for comment Friday afternoon.