Laws Governing Inter-Municipal Regional Cooperation
Regional cooperation among New Hampshire towns does not come naturally. On the contrary, from earliest times, towns have cherished their self-sufficiency. In fact, historically, new towns were formed by partition of established towns, because settlers in one part of town wanted independence from those on the other side of town. Over time, each community developed its own ways of doing things, including local government. The opportunities for cooperation with adjoining municipalities were few, and hard to take advantage of. In recent decades, with larger, more mobile populations demanding more and better services, cooperation among municipal governments is increasingly feasible and desirable.
Since municipalities have only such powers as are granted by the legislature, Girard v. Allenstown, 121 N.H. 268 (1981), enabling legislation is required for intermunicipal cooperation. RSA Chapter 53-A enables any two or more political subdivisions of the state to enter into agreements to exercise any authority that either could exercise individually. Theoretically, this is the only authority necessary for municipal cooperation to provide services, programs and facilities. Nevertheless, the legislature has enacted a good deal of legislation that enables intermunicipal cooperation on specific matters, including a bill in the 2010 session. Therefore, municipalities that are contemplating an intermunicipal agreement should not simply rely on RSA Chapter 53-A, but should also ascertain whether there is a specific statute on the subject. Some of these statutes are quite detailed concerning the contents of an agreement. Some are brief and general. Municipal counsel should be consulted in the drafting of any intermunicipal agreement.
This article will briefly review RSA Chapter 53-A and many of the statutes that enable municipal cooperation for specific sorts of services and facilities. This is not necessarily an exhaustive list. General suggestions to keep in mind whenever contemplating an intermunicipal agreement are provided at the conclusion of this summary.
RSA Chapter 53-A: Intermunicipal Agreements for Any Valid Public Purpose
In 1963, the legislature enacted RSA Chapter 53-A, general legislation to authorize “public agencies” (counties, cities, towns, village districts, school districts and other political subdivisions of the state) to enter agreements to perform governmental functions. At first, the list of functions was somewhat limited, but, since 1977, any two or more public agencies have been authorized to exercise any authority that either could exercise individually.
An RSA Chapter 53-A agreement must be approved by the governing body of each participating public agency. The written agreement must address certain points: duration; purpose; financing; method of termination; and description of any new entity created or joint board responsible to administer the agreement. RSA Chapter 53-A agreements must be approved by the attorney general. It should be noted that an RSA Chapter 53-A agreement does not relieve a public agency of any existing legal duty to the public. The intermunicipal agreement only provides an alternate method to fulfill the duty.
The most familiar form of intermunicipal cooperation is fire department mutual aid. RSA 154:24 – :30. When authorized by the municipality, firefighters may go to the aid of another city, town or district to extinguish fires or render other requested assistance. The fire chief of the assisted municipality controls and directs operations, and the firefighters enjoy the same immunities and privileges as they do in performing their duties in their own municipality. The statute leaves it up to the municipalities to determine whether the assisted municipality will be responsible for compensation of firefighters and reimbursement of costs.
An alternative model is the district fire mutual aid system to coordinate the services of member fire departments. RSA 154:30-a – :30-h. Such a district can be formed upon the request of at least ten municipalities to the state fire marshal. The district is a separate municipal corporation governed by a board of directors. Its functions include planning to coordinate services; dispatch and communications services; training; and group purchasing. The district is funded by municipal appropriations and gifts.
There are also two statutory options for police mutual aid. RSA 105:13 authorizes police chiefs to make written agreements specifying terms and conditions of requesting and/or rendering assistance. In an emergency, upon an oral request for assistance from one authorized officer to another, the authority of the responding police officers extends to their actions in the requesting town. (Under recent amendments to the statute, even in the absence of a written agreement, an officer may exercise temporary police authority in another jurisdiction based upon either an oral request from an officer of that jurisdiction or an instruction from a public safety dispatch center. The temporary authority ends when the responding officer is relieved by an officer of the receiving jurisdiction.)
RSA Chapter 106-C authorizes municipalities to extend assistance in time of emergency to another municipality or county on such terms or conditions as the municipality chooses to establish. “Emergency” is defined as a riot or major natural disaster. As with a number of other mutual aid statutes, officers have the same rights, duties and immunities as they have while performing their regular duties, and the requesting jurisdiction is responsible for salaries and expenses unless otherwise agreed.
Emergency Medical Services
Emergency medical services units, public and private, may enter written mutual aid agreements. RSA 153-A:19. The agreements must specify who shall be responsible for the direction of medical care at the scene and may address responsibility for expenses and other conditions and restrictions. There is no liability imposed for failure to respond.
RSA 21-P:39 requires each municipality to establish a local organization for emergency management. The directors of local organizations may, with the approval of the commissioner of safety, develop mutual aid arrangements for reciprocal emergency management assistance. RSA 21-P:40. The immunity from liability for emergency workers set forth in RSA 21-P:41 applies in the case of mutual aid.
Sewage and Waste Treatment
Municipalities may enter contracts with other municipalities to provide, lease, sell or purchase sewage or waste treatment facilities. RSA 149-I:4. The statute was amended in 2008 to add “stormwater treatment, conveyance, and discharge systems” to the subject matter.
Solid Waste Management
To carry out their mandate to provide or assure access to a solid waste facility for their residents, municipalities are encouraged to form solid waste management districts. RSA Chapter 53-B. Districts are established by vote of municipal legislative bodies to approve the terms of a proposed agreement drafted by a planning committee. A solid waste management district is a separate political subdivision of the state with all powers necessary to establish and operate solid waste management programs and facilities and to assess the member municipalities annually for their proportional shares of operating costs.
RSA 38:2-a authorizes establishment of regional water districts to provide adequate and sustainable supplies of clean water. Regional water districts are formed under the procedures of RSA Chapter 53-A and enjoy the powers of municipal water utilities under RSA Chapter 38, except eminent domain.
Pooled Risk Management
The most extensive form of intermunicipal cooperation is pooled risk management under RSA Chapter 5-B. Political subdivisions have formed associations, including the LGC Property-Liability Trust, Health Trust and Workers’ Compensation Program, to provide the types of risk management programs for member political subdivisions listed in RSA 5-B:3. The programs are governed by a board composed mostly of elected or appointed public officials, officers or employees.
In order “to make it practical or economical to engage full-time, trained, and certified assessing professionals,” any two or more municipalities may form a cooperative assessing district under RSA 21-J:14-h –:14-j. The intergovernmental agreement must substantially conform to RSA Chapter 53-A and also include a cost allocation formula; a governing board for the district; a duration of at least five years; certain provisions concerning withdrawal; an obligation to provide the members’ annual share of the costs; and certain provisions for handling staffing and oversight.
Two or more municipalities may, by contract, form a district to administer general assistance on behalf of the member municipalities. RSA 165:33. The district establishes written welfare guidelines to administer the program and determines the rates to be paid to the district by the member municipalities.
Public libraries may join library cooperatives, which may include other public libraries, school, college and university libraries and special libraries. RSA 202-A:4-a. Towns are authorized to raise and appropriate money for participation in cooperatives.
Any municipality may contract with another municipality or other institution for library service by meeting of the legislative body, which shall then raise and appropriate sufficient money to carry out the contract. RSA 202-A:4-b.
Upon recommendation of the selectmen of each of several towns, the commissioner of the State Department of Health and Human Services may appoint a single person as health officer of all the towns, who shall be paid by each town as the selectmen of that town determine. RSA 128:6.
Under RSA 35-B:7, any two or more municipalities may vote to establish cooperative arrangements for park and recreation programs. The statute requires any such agreement to specify its duration; the details of any administrative entity; its purpose; financing and budget mechanism; and procedure for termination.
New: Public Works
Senate Bill 378, passed by both the Senate and House in the 2010 session, would expressly authorize public works mutual aid agreements under a new section, RSA 53-A:3-a. Participating “public agencies” and private water and waste water utilities may agree to exchange supplies, equipment, facilities, personnel and services in emergencies. SB 378 ratifies the existing agreement creating the New Hampshire Public Works Mutual Aid Program and actions taken pursuant to that agreement. The immunity of RSA 21-P:41 applies.
Obviously, an intermunicipal agreement makes sense only if it promises to deliver superior and/or more efficient service, programs or facilities to the municipality and its residents. Once officials determine that a particular type of agreement is worth pursuing, certain issues must be addressed in the process:
Is there an applicable enabling statute for the agreement, or is RSA Chapter 53-A the sole source of authority? It may be that the agreement should reflect the requirements both of RSA Chapter 53-A and the particular enabling statute.
Is it required or advisable to create a new legal entity to administer the agreement? In most cases, it would probably be quite expensive to establish and operate a new political subdivision, so this would not be feasible except for an operation on the scale of a solid waste management district.
Who has the authority to enter the agreement under the applicable statute, the legislative body, the governing body or some other board or official? If the statute refers only to the “town” or “city” or “municipality,” the conservative interpretation is that approval of the legislative body is called for. (See, also, the next question.)
Even if approval by the legislative body is not required by the statute, is it, nevertheless, required because the agreement commits the municipality to make future appropriations? Only the legislative body can approve a multi-year contract that obligates the municipality to make future appropriations. (See “Multi-Year Contracts: When and How Are They Authorized?”, New Hampshire Town and City, February 2009.)
If the agreement deals with emergency assistance, who will bear the personnel and other expenses, the sending or the receiving community? This should be spelled out in detail.
Who will bear the loss from liability to a third party, the sending or the receiving municipality, or will it be shared somehow? This should be addressed in advance in consultation with all liability insurers.
If the agreement concerns services, is it more efficient to obtain the services by hiring an independent contractor or by hiring additional staff? This, of course, will vary from case to case.
If hiring staff is desirable, which municipality will be the actual employer for purposes of federal and state employment law? This can be worked out fairly so that the other municipal parties to the agreement reimburse the employer municipality according to an agreed formula.
Finally, if staff increases would create a group of at least 10 employees with a “community of interest,” the employer municipality may be faced with a new collective bargaining unit under the Public Employee Labor Relations Act, RSA Chapter 273-A. Be sure to take this into account.
David Connell is legal services counsel with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department. For more information on this and other topics of interest to local officials, LGC’s legal services attorneys can be reached Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384.