Legal Q and A: Laws Related to Appointed Officials

Municipal government in New Hampshire requires dedicated volunteers to fill the list of important appointed offices. The duties of these offices are more challenging and require more time, knowledge and judgment than ever. At the same time, many communities are finding it increasingly difficult to recruit and retain candidates for appointive office. It is important for selectmen, in particular, to understand the various legal issues involved in properly appointing people to office and removing appointed officials when necessary. Additional problems may arise when key appointed officials are also paid as employees of the municipality.

Q. What is the definition of an “appointed town official” as opposed to a town
employee or volunteer?

A. As Attorney Peter Loughlin points out in his treatise on municipal law, “public official” is not easy to define, and practically every aspect of the position’s authority, duties, liabilities, method of selection, tenure and removal may be considered in deciding whether a given position is a public “office.” Loughlin, 13 New Hampshire Practice Series: Local Government Law, sec. 342 at p. 13-2. “An office has been defined as a place in a governmental system created, or at least recognized, by the law of the state, to which place certain permanent public duties are assigned, either by the law itself or by regulations adopted under the law by an agency created by it and acting in pursuance of it.” 3 E. McQuillin, Municipal Corporations, sec. 12.29, p. 211 (3d ed. 2001). In most cases a statute will clearly identify an “office” by stating its powers, duties, method of selection, tenure, etc. In the case of optional offices established by town meeting, there may be doubt. In some instances, a public official may also work full time in the position and have many of the characteristics of an employee.

Q. Do appointed town officials have to be residents of town like elected officials?

A. Not always; it depends on the office. Appointed land use board members, for example, must be residents. RSA 673:2 – :4-c. Other officials, such as the town manager (RSA 37:2), the appointed tax collector (RSA 41:33), and the building inspector (RSA 673:1) need not be residents of the municipality. The health officer, RSA 128:2, must be a resident of the state but need not be a town resident.

Q. We have several residents who volunteer in community groups and are eager to serve on town boards, but they are not U.S. citizens. I know they are not eligible for elected office, but can we appoint them to a land use board as a regular member or as an alternate?

A. No. RSA 91:2 provides that no person may hold any municipal office, elective or appointive, who is not a U.S. citizen.

Q. We have a high school student who is interested in a career in professional planning and would like to serve on the planning board. She is 17 years old. Can we appoint her as a member or alternate?

A. There is no generally applicable age standard for public officials. However, there are 19th century New Hampshire Supreme Court cases that rely on a common law rule that “offices where judgment and discretion and experience are essentially necessary to the proper discharge of the duties they impose, are not to be intrusted in the hands of infants. But they may hold offices which are merely ministerial, and which require nothing more than skill and diligence.” Moore v. Graves, 3 N.H. 408, 412 (1826); Golding’s Petition, 57 N.H. 146, 148 (1876). Thus, a minor could serve process as a deputy sheriff, Moore v. Graves, or serve as town hog reeve, Bath v. Haverhill, 2 N.H. 555 (1823). But a minor was not qualified to issue arrest warrants as a justice of the peace. Golding’s Petition. These cases are old but have not been expressly overruled by the Supreme Court or the legislature. A planning board has a variety of duties, including ruling on applications for subdivision and site plan in a quasi-judicial capacity, which are not “merely ministerial,” so it is quite doubtful whether a person less than 18 years of age may be appointed to the board.

Q. Is there any other qualification that applies to all appointed officials?

A. RSA 41:2 provides: “Every town officer shall make and subscribe the oath or declaration as prescribed by part 2, article 84 of the constitution of New Hampshire.” The moderator, town clerk, selectman and justice of the peace are all authorized to administer the oath. RSA 42:2. The oath is important. RSA 92: 2 provides: “No person chosen or appointed to any public office or to any position where an oath is required, under any law, shall exercise such office or position or perform any act therein until he shall make and subscribe the oath….”

Q. I’m not sure all our officials have taken an oath of office. How does that affect the decisions they have already made?

A. Fortunately, the acts of officials who inadvertently have failed to take an oath of office are generally valid as the decisions of “de facto” officials. “It is held here and everywhere that one who assumes a public office under color of an election or appointment illegal in fact is a de facto officer, and his official acts are valid as to third persons when they are not from their nature or by express statutory enactment void.”  State v. Boiselle, 83 N.H. 339, 341 (1928). “To qualify as a de facto officer, the officer’s title need not be good in law but she must be in unobstructed possession of her office and discharging its duties in full view of the public.” State v. Doyle, 156 N.H. 306, 310 (2007). Needless to say, the official should be sworn in as soon as the error is detected.

Q. Usually, when an official has had enough, the official will tell us in advance to find a replacement when the term of office expires. Yet, even with advance notice, we sometimes have trouble finding someone in time. Does that mean there is a vacancy when the term expires?

A. Not usually. RSA 41:3 provides in part: “All 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 cases where the law otherwise directs.” And RSA 41:57-a provides:“Except as otherwise provided, 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.” So, if the incumbent is willing, he or she is entitled to serve on a holdover basis until a replacement is appointed and sworn in.

Q. One of our appointed officials is really not working out, and we can’t wait for his term to expire. He holds an important position, but has a personal agenda and cannot seem to control himself at meetings. We’re afraid he’ll get the town sued and don’t want to wait for his term to expire. Can we simply remove someone we’ve appointed?

A. There is a general rule, cited in Marsh v. Hanover, 113 N.H. 667, 670 (1973), that “[t]he power to appoint officers or employees of a municipal corporation carries with it the power of removal of such employees at the municipality’s pleasure unless the power of removal is restricted by statutory law.”  However, many of the important offices in municipal government have statutes that prevent removal without following prescribed procedures and a showing of just cause. Examples: health officer, RSA 128:4 (removal by commissioner of the Department of Health and Human Services); police chief, RSA 105:2-a; fire chief, RSA 154:5; road agent, RSA 231:65; and land use board member, RSA 673:13. Moreover, the New Hampshire Supreme Court has held that an official who successfully resists unjustified removal efforts confers a “substantial benefit” on the municipality and is thus entitled to an award of attorney’s fees for the effort. Silva v. Botsch, 121 N.H. 1041, 1043 (1981) (attempt to remove selectman as ex officio member of planning board); Foster v. Hudson, 122 N.H. 150 (1982) (attempt to remove appointed police chief). Check the statutes before deciding to remove an appointed official.

Q. Well, then, if we want to get rid of somebody, I assume there’s no risk if we simply wait for the person’s term to expire and then appoint someone else.

A. In general, that is a safe way to proceed. However, it can be more complicated. In Foote v. Bedford, 642 F.3d 80 (1st Cir. 2011), the First Circuit Court of Appeals indicated that it can be a violation of an appointed official’s First Amendment right to speak out on matters of public concern if a decision not to reappoint the official is based on the official’s public opposition to, and criticism of, municipal policies. Foote was a member of the recreation committee, which advised the town council on town recreation policy. Foote publicly opposed the town council’s program for a certain park project. When he was not reappointed, Foote filed a suit in federal court for violation of his civil rights. The Court applied the U.S. Supreme Court’s three-part test applicable to employee First Amendment rights:

The first step is to determine whether the employee spoke as a citizen on a matter of public concern…. The second step is to balance the employee’s First Amendment interests against the interests of the government, as an employer, in providing effective and efficient services…. At the third and final step, the employee must “show that the protected expression was a substantial or motivating factor in the adverse employment decision.” [citations omitted]

Focusing on the second step, the Court found that the balance favored the town council’s decision. The Court upheld the non-reappointment of Foote because it found that the council was within its rights not to reappoint an outright foe of its recreation policy to the committee charged with giving advice on recreation issues. However, the Foote decision certainly leaves the door open for claims of unconstitutional refusal to reappoint an official in cases where the advisory policymaking element is not present.

Q. If we have an office with an official who is also paid as a full time employee, is there any problem if the town simply abolishes the office?

A. Assuming that the office is optional, not required by law, it is possible to discontinue it. “With a municipal corporation’s power to create an office comes the power to change or abolish it.” Simonds v. Manchester, 141 N.H. 742, 744 (1997). Check the statutes for proper procedures. Upon abolishment of the office, the official would have no recourse, unless there was an employment contract to provide the official with additional rights. Id.

Q. We think it is important for our appointed officials who are also employees, like the town manager, police chief, road agent, tax collector, health officer and building inspector, to reside in town so they have to pay the same taxes we do. Can we require our appointed officials who are paid officials to live in the town?

A. The New Hampshire Supreme Court has held that residency requirements for municipal employees infringe on the fundamental constitutional right to travel. Such a restriction is lawful only if the municipality can show that the “restriction is necessary to achieve a compelling state interest” and is narrowly drawn to achieve its purpose. Seabrook Police Assoc. v. Seabrook, 138 N.H. 177, 179 (1993). In Donnelly v. Manchester, 111 N.H. 50 (1971), and Angwin v. Manchester, 118 N.H. 336 (1978), residency requirements for school employees were held invalid. In the Seabrook case the Court upheld a residency restriction for police officers. The Town demonstrated that Seabrook needs especially prompt emergency response because of its nuclear plant, greyhound track and limited beach access. The Court was particularly impressed with the unique role of police, compared to other town employees who have roles in emergency management. “[T]he totality of the police officers’ job differentiates them from these others who might on rare occasion need to respond to a major emergency…. [P]olice officers alone have the necessary police power to protect persons and property during an emergency situation.” 138 N.H. at 182. Under the “compelling state interest” standard of the Seabrook case, the town would have the burden to justify the residency requirement in terms of the person’s unique and crucial role during emergency responses and why this role requires their continuous presence in the community in anticipation of an emergency.

It is not clear whether this analysis would apply in exactly the same way to an employee who is also a public official.

Local officials in NHMA-member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest; attorneys are available Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.