He contends that the court could not grant the motion to dismiss as to seven of the counts, while denying it as to the remaining counts. He claims that if any count withstood a motion to dismiss, none of the counts should have been dismissed, citing Blake v. State, 115 N.H. 431, 343 A.2d 223 (1975). In Blake, the plaintiff's writ alleged that he had been illegally discharged from his employment with the State. His writ contained three counts.
Under current doctrine, the existence or non-existence of such an interest depends on state law. The district court in its brief memorandum rescinding its prior order made no reference to such cases as Blake v. New Hampshire, 115 N.H. 431, 343 A.2d 223 (1975), which recognizes tenure for "good behavior" as a protected interest (citing Justice White's concurring and dissenting opinion in Arnett v. Kennedy, 416 U.S. 134, 181, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974)). The University's Support Staff Handbook not only states that non-probationary employees shall have a right to due process procedures, but adds that "it is expected that employment will be permanent following the probationary period", and that discharge will be for inadequate performance and other listed causes.
Downing ( supra) at p. 690. The Supreme Court of New Hampshire has addressed the question adversely to plaintiff's position. Blake v. New Hampshire, 115 N.H. 431, 343 A.2d 223 (1975). In such a situation federal courts ought be concerned only with the constitutional aspect of due process i.e., the availability of a procedure which comports with traditional notions of due process requiring notice and fair hearing.
Thus, an official appointed while RSA 4:1 remains effective is entitled to rely on the rights conferred by that statute and may not be discharged or removed except in accordance with its strictures. See Blake v. State, 115 N.H. 431, 434, 343 A.2d 223, 225 (1975); compare King v. Thomson, 119 N.H. at 221, 400 A.2d at 1171 (RSA 4:1 confers protected property right on State officials) with Dodge v. Board of Education, 302 U.S. 74, 78-79 (1937) (where law merely fixes salaries of officers, no contract is created and compensation named may be altered at will of legislature). As the power to furlough State officials is the power to remove them from their positions piecemeal, we conclude that the bill violates RSA 4:1.
[1, 2] In determining whether the defendant's motion to dismiss should be granted, all facts properly pleaded are assumed to be true and the reasonable inferences therefrom are construed most favorably to the plaintiff. Blake v. State, 115 N.H. 431, 433, 343 A.2d 223, 225 (1975); Green v. Shaw, 114 N.H. 289, 292, 319 A.2d 284, 285 (1974). If the plaintiff is entitled to recover upon any state of the facts findable under the pleadings, the motion to dismiss must be denied. Aldrich v. Beauregard Sons, 105 N.H. 330, 331, 200 A.2d 14, 15 (1964); Nashua Iron and Steel Co. v. Worcester N.R. Railroad Co., 62 N.H. 159, 161 (1882).
If the facts as alleged would constitute a basis for legal relief, the motion to dismiss should be denied. Blake v. State, 115 N.H. 431, 433, 343 A.2d 223, 225 (1975). We hold that the third-party complaint fails to state a claim upon which legal relief may be granted.