The Role of the Clerk in Town or City Government C. Christine Fillmore Staff Attorney, NH Municipal Association September 13, 2013 NEW HAMPSHIRE MUNICIPAL.

The Role of the Clerk in Town or City Government

C. Christine FillmoreStaff Attorney, NH Municipal Association

September 13, 2013

NEW HAMPSHIRE MUNICIPAL ASSOCIATION

Agenda

• General principles• Employees v. Officials• Relationship between Clerks and

town or city governing bodies/executive officers• Deputies

General Principles

• Municipalities must look to a statute for authority to act. – It is not enough that there is no law

prohibiting the act.– Town statutes apply to cities, but city statutes

do not apply to towns.

• “Home Rule” in NH means only the ability to change the form of local government via the statutory charter process.

General Principles

• Municipalities “only have such powers as are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto.” – Girard v. Allenstown, 121 NH 268 (1981).

• Example: can’t adopt additional qualifications for local office not required by state law. (term limits)– Hooksett v. Baines, 148 NH 625 (2002).

General Principles

• “Separation of powers” between two required bodies:– “Governing body” means the board of

selectmen or town/city council– “Town” or “legislative body” means the town

meeting or town/city council• RSA 21:47 and RSA 21:48

• Municipality may change its form of organization by Charter Commission – RSA 49-B

General Principles

• “Town Administrator”, not in statute: – Employee appointed by the governing body, • Duties defined by a written contract, a job

description, or a personnel manual.

• “Town Manager”, RSA 37 – Administrative/supervisory head of all

departments• Responsible to the governing body, serves at their

pleasure, or as set forth in written contract• Duties defined in the statute

Employee v. Official

• Not all people who work for a town or city are employees

• Why are you asking?– IRS considers everyone who is paid an

employee for federal tax purposes– State of NH labor laws don’t apply to officials– NH municipal laws distinguish between

employees and officials re: who is in charge

Employee v. Official

• For purposes of today’s discussion:– Elected officials are NOT employees• Town clerks must be elected (RSA 41:16), so they

are not town “employees”

– Some appointed officials are also not employees• City clerks are appointed by city manager/mayor

(depending on structure) but are city officers, not city “employees” (RSA 49-C:18 and :20)

Employee v. Official

• In towns, an employee has a boss• An official acts independently to perform

duties prescribed by statute– Clerks have a variety of duties set by law– Also have optional duties (registering vehicles)

• Not subject to supervision by the governing body (because no statute says so) or by town manager (RSA 37:5)

Employee v. Official

• In cities, the chief administrative officer has the power to appoint and remove all officers, including city clerk, RSA 49-C:18.

• Look to the city charter for specifics on supervision, payment, review and other oversight by chief administrative officer

Relationship with Governing Body

• No interference with duties assigned to others by statute– Elected officials are not “employees” subject

to a personnel policy• Exception – Duty to safeguard municipal

assets under RSA 41:9– Establish internal control procedures– Town clerk, tax collector, treasurer, must

provide information, may be removed for failure to safeguard

Relationship with Governing Body

• As a result of being an “official”:– Personnel policy doesn’t apply– Leave time (sick, personal, vacation, other)

does not apply– Insurance benefits for employees do not apply

(unless legislative body votes to give it to them, or charter says so)

– There is no supervisor, no annual review– No “full time” or “part time” distinction

Relationship with Governing Body

• May the selectmen/administrative officer give the clerk additional duties?

• No– No statute says they may– Non-interference statute says they can’t in

charter towns and cities– Clerk’s duties are set forth in statutes

• May they agree on it? Of course!

Relationship with Governing Body

• May the governing body change the amount that the clerk gets paid?– Towns – NO. Officials “shall be paid” the

amounts town meeting approved. RSA 31:9-b– Cities – It depends on the charter. Chief

administrative officer may have authority to raise or reduce compensation

Relationship with Governing Body

• Does the clerk get merit or step raises?– No – personnel policy does not apply.– They are not paid from the “personnel” line– They receive all of, and only, what the

legislative body approved.

• City clerks – may be eligible for merit raises under the charter

Relationship with Governing Body

• Who determines the clerk’s budget?• Ultimately, the legislative body– Voters at town meeting– Town council in some charter towns– City council or mayor/board of aldermen

• Important to remember that the clerk merely requests; the legislative body decides.

Relationship with Governing Body

• Towns:– RSA 39:2 – “warrant for town meeting shall be

under the hands of the selectmen…”– If official budget committee, they prepare the

final proposed budget, RSA 32:5– Selectmen may still insert their own articles,

RSA 31:131, even if not recommended by BC– Result: clerk makes request but is not in

control of the proposed budget

Relationship with Governing Body

• Does this mean that the town clerk has no recourse at all?

• No – even if the appropriation initially requested doesn’t make it to the final proposed budget, clerk can still make a case at town meeting/deliberative session to restore what was asked for originally.

Relationship with Governing Body

• May the governing body control the hours that the clerk’s office is open?– No. It is up to the clerk to get the job done.– A few statutes require the clerk to be available

(election statutes re: registering voters, town meeting statutes re: taking minutes)

– No statute grants authority for anyone to set hours beyond that.

– City clerks – possibly different under charter.

Relationship with Governing Body

• May the governing body impose internal controls on the clerk and other officials?– Yes.– Statutory authority for it– RSA 41:9, VI: selectmen shall be responsible for

establishing appropriate internal control procedures to ensure the safeguarding of all town assets and properties. (Remember, town statutes apply to cities…)

Relationship with Governing Body

• Cont’d…– RSA 41:9, VIII: Selectmen shall be responsible

for establishing procedures to ensure all funds paid to any town department are given to treasurer at least once a week/$1,500.

Relationship with Governing Body

• What are “internal controls”?– Processes to ensure reliable financial

reporting, effective and efficient operations, and compliance with laws and regulations

– System of checks and balances to prevent fraud, theft or other irregularity

– Segregation of duties is important (no one person can authorize a transaction, record it, and maintain custody of the asset)

Relationship with Governing Body

• Examples:– Computer software, systems, password

protocols. Selectmen may put these in place and require frequent password changes, redundancy in case of emergency.

– Equipment (computers, locks, etc.)– Who has access – Keys? Selectmen probably

can require access to the extent necessary to implement internal controls

Relationship with Governing Body

• May the governing body make decisions about which office the clerk is in, where they are set up, security measures?– Yes – this goes along with safeguarding the

assets of the town.– Authority to manage town real property and

its use, RSA 41:11-a.– Management of the budget – what can the

municipality afford?

Deputies

• Appointed by clerk in towns, with approval of governing body (veto power) RSA 41:18

• Appointed by chief administrative officer or according to charter in cities, RSA 48:6, RSA 49-C:18, :20, :21.

• No term specified for deputies in the law

Deputies

• Deputies are employees, not officials– In re Town of Litchfield, 147 N.H. 415 (2002)– They work for the clerk– Clerk supervises and assigns duties– May specify hours of work

• Deputies are important – do you have one? Every municipality should.

Deputies

• Deputy is qualified in the same manner as the clerk (i.e., the deputy must be eligible to hold the clerk’s position)

• Deputy performs all the duties of the clerk if the clerk is absent or the clerk’s position is vacant

• RSA 41:18

Deputies

• Does the deputy have be a resident?– City – no. Clerk doesn’t have to live there, so

neither does deputy.– Towns: inconsistent statutes• RSA 41:18 says deputy is “qualified in the same

manner as the town clerk,” who must be elected and thus must be a resident• RSA 669:65 says vacancies in office of clerk are

initially filled by deputy until selectmen fill it, unless the deputy doesn’t live in town

Deputies

• Who sets the deputy’s compensation?• Depends on how the legislative body has

structured the budget.– Is there a separate personnel line that is

supposed to include the deputy?– Or is there simply a clerk line?

• If no separate compensation provided in budget, it probably comes out of clerk line.

Deputies

• Who removes the clerk? Good question.– Selectmen remove town clerk– Chief administrative officer removes city clerk– Deputy statutes don’t say anything

• Compare with deputy tax collector, who “may be removed at the pleasure of the tax collector” RSA 41:38

• Implication is it isn’t the clerk who removes

Final Thoughts

• Neither governing body nor clerk has ultimate authority over everything

• There is a balance of powers• Cooperation on both sides is the most

productive way to go

• Why are you all there? To serve.

Questions?

• Thank you for attending!

• New Hampshire Municipal Association– 603-224-7447 x3408– 1-800-852-3358 x3408– [email protected]