New Hampshire Municipal Association
New Hampshire Municipal Association

New Hampshire Town And City

Town Clerks: What do they do—and do they have a boss?

New Hampshire Town and City, October 2006

By

By Kimberly Hallquist, Esq.

The duties and responsibilities of a town clerk are numerous and varied. There is no one place in the statutes to find a list of the duties for this position; rather, the duties can be found throughout many statutes such as motor vehicle laws, election laws, vital statistics, planning and land use laws, libraries and the budget law. This article will review some of those duties and responsibilities of the town clerk as well as oversight of the position.

Town Official
Unlike the tax collector, there is no provision in the law to allow a town clerk to be appointed. Thus, all town clerks must be elected and thereby must also be residents in the town they serve. City clerks, however, are appointed by the city council and are subject to the provisions of the city charter. These distinctions aside, most of the duties described below apply to city clerks as well as town clerks.

The compensation of the town clerk is set by the legislative body (the town meeting) and can be statutory fees collected, a set salary in lieu of fees or a combination of both. The legislative body may also include insurance benefits as part of the compensation package. The town clerk submits his or her budget request to the selectmen for their consideration who then submit it the budget committee, if there is one. Within the budget request, the town clerk may include compensation, monies to attend trainings, and other items necessary to run the office. The legislative body has ultimate decision-making power over all budget requests presented at the annual meeting. Thus, if the selectmen or budget committee recommend a budget for the town clerk’s office that the clerk disagrees with, he or she can take the issue up with the voters at the annual meeting.

In order for a municipality to pay their clerk in a manner other than statutory fees, there must be a vote at town meeting. Regardless of whether the clerk is paid by statutory fees, or a combination of salary and fees, all fees collected by the clerk must be deposited with the treasurer at least monthly, or more often as directed by the selectmen, for use of the town. If the clerk is paid by way of statutory fees, he or she then submits an invoice to the treasurer for payment of the fees. The town meeting may also vote to have the town clerk elected every three years instead of every year, and may vote to combine the position of town clerk and tax collector. If the position is combined, it must be an elected position, regardless of whether the tax collector had previously been an appointed position.

The town clerk may appoint a deputy town clerk, and the appointment is subject to the approval of the selectmen. Like the town clerk, the deputy must be a resident of the town and will perform all of the duties of the town clerk in the case of his or her absence by sickness or resignation. In the event that there is a vacancy in the office of town clerk, the deputy town clerk assumes the position of town clerk until the next annual meeting. If no deputy has been appointed, the selectmen fill the vacancy by appointment. A town clerk may not hold the office of treasurer, supervisor of the checklist or town auditor.

As a town official, the town clerk is not an employee of the town. Thus, the town clerk is not subject to the personnel policies of the town with respect to vacation time, sick time, or hours of work per week. The clerk may set his or her own office hours and take what vacation and sick time they feel they can, while still providing the service their constituents expect. However, this does not mean that there is no oversight of the position by the selectmen. There are some instances where other town officials may have input into the way the town clerk runs his or her office. For example, the selectmen are responsible for establishing and maintaining appropriate internal control procedures to ensure the safeguarding of all town assets and properties pursuant to RSA 41:9. Thus, the selectmen can institute procedures for the clerk to follow with regard to safeguarding the financial assets that he or she collects for the town and well as decisions regarding the physical space the town clerk office occupies, to the extent that the selectmen need to properly manage town property. The clerk is also bound by the limitations on expenditures provisions contained in the Municipal Budget Law. Although it is possible to have a clerk removed from office, as described below, the most likely way for a town clerk to lose his or her job is when the voters decide they no longer want the person to serve as their clerk and they elect someone else.

The selectmen may institute proceedings to remove a clerk whenever the accounts, as examined by the Department of Revenue, a certified public accountant, or an accountant registered by the state, are found to contain irregularities or material error, or show evidence that the timely deposit of funds has not been made in accordance with RSA 261:165. The clerk is entitled to notice, an opportunity for a written response and a public hearing. The governing body’s determination may be appealed de novo to the superior court. The clerk may also be removed by the selectmen if, in their judgment, the clerk has become insane or otherwise incapacitated to discharge the duties of the office.

While there is no direct supervision of the town clerk by the selectmen in the way that town employees are supervised, cooperation and a spirit of teamwork on the part of all town officials is essential. Only by working together will the goal of serving the town to the best of their abilities be achieved.

Public Records
A vital role of the town clerk is as keeper of all of the town’s public records. Many statutes require that in order to be effective certain documents, such as ordinances, by-laws, regulations, and warrants must be on file with the town clerk. Additionally, RSA 41:58 requires that all books, records, papers, vouchers, and documents which shall be in the possession of any officers, committee, or board of officers of the town, and which are not needed elsewhere by them in the discharge of their official duty, shall be deposited in the office of the town clerk. The clerk also serves on the municipal records committee pursuant to RSA 33-A:3 that governs the disposition of municipal records.

As a keeper of public records, it is important that clerks are well versed in RSA 91-A, the Right to Know Law, so that records that should be disclosed to the public are made easily accessible to the public, and those that must be kept from public view pursuant to RSA 91-A:5, are not released.

Licenses and Registrations
Probably the most familiar to the general public is the clerk’s responsibility with regard to registering of motor vehicles. Any resident of this state who intends to own and operate a motor vehicle must first go to the town or city clerk’s office to register the vehicle. The clerk must be aware of several laws with regard to motor vehicle registration such as certificates of titles, which vehicles are exempted from the law, when transfer credits must be given, and what registration fee must be charged.

A clerk, with the approval of the governing body, may apply to the state to become a municipal agent. In this way, the clerk can process the municipal portion of a vehicle registration, as well as the state portion, allowing “one-stop shopping" for the resident wishing to register a vehicle. The clerk may charge the applicant not more than $2.50 in addition to the regular registration fees. If the clerk is paid on a salary basis, the municipality will retain the $2.50 fee in the same manner as all other fees collected by the clerk. If the clerk is paid on a fee basis, the $2.50 fee is paid over to the clerk by the municipality. Those clerks that are appointed municipal agents must attend training sessions, they must agree to the rules as enacted by the Department of Motor Vehicles and they must secure a bond in favor of the state.

The clerk is also responsible for keeping a chronological record of births, marriages and deaths reported to his or her office and of transmitting a copy of such records to the state registrar on a timely basis. The clerk must issue to any applicant a certified copy of any record in the office relative to births, marriages and deaths and may charge a fee as permitted by statute. However, the clerk shall not permit the inspection of vital statistics records, unless satisfied that the applicant has a direct and tangible interest in the record, and in no circumstances shall information concerning adoption be given out by the clerk to any individual except pursuant to RSA 170-B:19, II.

A couple wishing to marry in this state must first file the marriage application worksheet with a town clerk. The clerk completes statistical and legal information on the marriage application worksheet and then transfers all of the information supplied by the bride and groom onto a marriage license. The clerk must also review various documents such as identification, divorce decrees if either or both of the applicants has been married before, or death certificates if either had a marriage end because of a death of a spouse. The marriage will not be registered until the marriage license is returned to the clerk, signed by the person who performed the ceremony, and then signed by the clerk and forwarded to the state.

The clerk also has the responsibility for the licensing of dogs, and cats if the municipality licenses cats. Before issuing the license, the clerk must be satisfied that the animal is properly vaccinated against rabies. Since veterinarians are required to send copies of rabies certificates to town clerks pursuant to RSA 436:102, town clerks have an idea of who owns animals in town that should be licensed. The clerk may decide to authorize local law enforcement to issue licenses and collect license fees as well.

Elections
The town clerk’s role in the election process is also quite visible to the community. A clerk is an election officer, as is any moderator, deputy moderator, assistant moderator, city clerk, deputy city clerk, ward clerk, selectman, supervisor of the checklist, registrar or deputy registrar. The selectmen select the location for the voting and make sure it is suitable, and the moderator has overall control on the day of the election. (Note: In cities, it is the clerk, not the moderator, who establishes procedures for the conduct of elections at all polling places within the city.) The clerk has many responsibilities before, during and after the election or town meeting. The following descriptions provide an overview of the clerk’s role in the election process.

The clerk is involved at the very start of the election process: the filing of a candidacy. A person who intends to run for a town office must file his or her declaration of candidacy with the town clerk. The clerk must make a decision whether the person filing meets the requirements for office with respect to residency and filing dates and may have to explain why a declaration of candidacy cannot be accepted. Once the filing period has expired, the town clerk may not accept withdrawals of candidacy unless the candidate dies or makes oath that he or she does not qualify because of age, domicile or incapacitating physical disability acquired subsequent to his or her filing. The clerk is also responsible for the preparation of the ballots for town elections. Ballots for state elections are sent to the clerk by the secretary of state and must be inspected by the clerk, in the presence of at least one other person, to verify that they are the correct ballots for that town.

The clerk must also process requests for absentee ballots. The clerk must maintain a list of absentee ballots and a notation made of those people who actually return their ballot. The absentee ballots are received by the clerk and are turned over by the clerk to the moderator for processing. Once all ballots are counted, the ballots are placed in a container by the moderator, in the presence of the selectmen, sealed, and are then delivered to the town clerk. The clerk shall preserve the ballots for the time specified by statute. The moderator announces the final count for each office and the clerk certifies the results.

Requests for recounts must be made to the town clerk, in writing, no later than the Friday following the election. The clerk is responsible for setting up the time for the recount which must be no earlier than five days nor later than ten days after receipt of the application for recount. The clerk notifies all candidates for the office that is subject to the recount and publicly breaks the seal on the box containing the ballots to be recounted.

After each town meeting, the town clerk must record in the official records of the town, all votes of the town meeting and certify the meeting minutes. Town clerks generally prepare minutes of the meeting, summarizing discussion from the floor of each article. Once the period for recount has expired, the clerk notifies the people who have been declared winners of the various contests to inform them that they must appear to take the required oath of office. The clerk may administer the oath, as can the moderator, a town selectman or justice of the peace.

Reporting
The town clerk has reporting duties to various entities. For example, after the annual meeting, the town clerk must report the names and addresses of all town officers to the department of revenue and must send two copies of the town report to the State Library. The clerk must also forward to the selectmen and treasurer a certified copy of any vote to transfer surplus funds to capital reserve accounts with- in 10 days of the vote. For a detailed list of the clerk’s reporting responsibilities and the applicable due dates, refer to the Important Dates for Towns calendar published annually by the New Hampshire Local Government Center.

To summarize, town and city clerks serve a vital role by securing and preserving the public documents of the municipality, thereby ensuring the historical records for future generations. The position is also complex, requiring the clerk to understand many different laws, to review and understand many documents that are presented to him or her by citizens to show eligibility for various licenses and registrations. Town clerks should avail themselves of the many training opportunities that are offered each year by the State of New Hampshire, the New Hampshire Town Clerk’s Association and the New Hampshire Local Government Center to make sure they are apprised of the many—and often changing—laws relating to their jobs. In this way, they can best serve their municipalities.

Kimberly Hallquist is Staff Attorney with New Hampshire Local Government Center’s Legal Services and Government Affairs Department.

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