Peter Varney v. Town of New Durham

Fire Chief was “Hold-Over,” not Re-Appointee, Says Superior Court Judge
Strafford Superior Court, Docket No. 219-2014-CV-95
Tuesday, March 24, 2015

This superior court case grappled with the question of what results when an appointed officer’s term expires, but the officer continues to serve, although he was not actually reappointed.

In 2009, the New Durham Select Board appointed Peter Varney as fire chief for a three-year term, consistent with the organizational scheme previously adopted by the town meeting. When Varney’s term ended, the board did not reappoint him or appoint a new chief, and Varney continued to serve in the position under February 2014, when the select board appointed a replacement. Varney was not removed “for cause,” and there was no termination hearing. Varney argued that by allowing him to continue to serve after the expiration of his term, the board tacitly reappointed him to the position and that Varney, therefore, could be removed only “for cause.” The town argued that Varney was a “hold-over” appointee, meaning he was simply holding the position until a new appointment was made.

The judge agreed with the town, citing two statutes in RSA Chapter 41. First, RSA 41:57-a states, in part, that “the term of office of any appointed town officer shall begin upon his or her appointment and qualification for office and shall end upon the appointment and qualification of his or her successor.”  Similarly, the judge reasoned that RSA 41:3 mandates that “[a]ll town officers shall continue in office until the next annual meeting and until others shall be chosen or appointed and qualified in their stead, except in case where the law otherwise directs.” Finally, the judge cited the case of Attorney General v. Bond, 81 N.H. 269 (1974), which stands for the proposition that a vacancy does not occur where there is a failure to elect a successor to a position; instead, the previously-elected officer will continue to hold the position until another is elected and qualified.

Therefore, the judge ruled that when the select board failed to appoint a new chief, the position of fire chief did not become vacant; rather, Varney, as the previously chosen and sworn chief, remained as a hold-over until a successor was appointed, not for another three-year term. As a hold-over, Varney was not entitled to be dismissed for cause because the board was not removing him but was instead appointing a new chief to take over the position for a new term.