Transcript Document

N E W H A M P S H I R E M U N I C I P A L A S S O C I AT I O N
The Role of the Clerk in Town
or City Government
C. Christine Fillmore
Staff Attorney, NH Municipal Association
September 13, 2013
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]