LEGAL Q&A: Town Clerks & Their Office
The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
One of the most difficult to parse aspects of municipal operations involves the office of the town clerk or town clerk-tax collector. These elected officials often have a statutorily defined “deputy” who works in their office, along with a number of municipal employees. The interaction of various statutes can lead to great confusion about the working relationship between the elected official, deputy, employees, and other boards and bodies in the municipality. This issue’s Legal Q&A will clarify some of those relationships.
Q; What is the difference between a town clerk and town clerk-tax collector?
A: RSA 41:16 requires that every town elect a town clerk by ballot at every town meeting, but that’s not the end of the story. RSA 41:16-b allows the town meeting to choose to extend the term of office of the town clerk to three-years. (Or rescind that extension.) In addition, RSA 41:45-a allows the town meeting to choose to combine the positions of town clerk and tax collector. That statute also allows the town meeting to specify whether the term of office shall be one year or three.
Q: How are town clerks and town clerk-tax collectors chosen?
A: RSA 669:15 (in addition to RSA 41:16) requires the town clerk to be elected, while RSA 669:16 requires the town clerk-tax collector to be elected.
Q: What happens if there is a vacancy in the office?
A: This is where things get interesting. Town clerks are not required to have a deputy, but town clerk-tax collectors are. Compare RSA 41:18 with 41:45-c. A town clerk may nominate a person to be his/her deputy, with confirmation coming from the select board, but there is no requirement to do so. RSA 41:48. In contrast, a town clerk-tax collector “shall” nominate a deputy (with confirmation coming from the select board). In either case, the deputy has the same powers as the principal, and serve for some period of time in the case of a vacancy.
With a deputy town clerk, the deputy would serve until the next annual meeting (unless the deputy does not live in the town), at which point a new clerk would be elected to fill the position for the remainder of the term. RSA 669:65. If there is no deputy or the deputy does not live in town, the select board would fill the vacancy, and that person would serve until the next annual meeting. RSA 669:65.
In contrast, the deputy town clerk-tax collector serves in the position until such time as the select board fills the vacancy, and the select board must act within 30 days. RSA 669:66. Note, of course, that when the town clerk-tax collector is merely “temporarily incapacitated” the deputy will serve until his/her return. RSA 41:45-c. It may, in some instances, be a challenge to determine whether the principal is merely “temporarily incapacitated” or is vacating the position.
Q: What authority do the statutes give the town clerk / town clerk-tax collector over employees in his/her office?
A: Well, none really. For the everyday employee (not “deputies”), there is nothing in the statutes regarding the relationship or oversight of employees by the town clerk / town clerk-tax collector unlike, say, provisions in the statutes relating to libraries and library trustees. As a consequence, the default rule applies – the governing body is charged with hiring, firing, management, and oversight of employees, even employees working with or for the town clerk / town clerk-tax collector.
Q: What about “deputies”?
A: Again, this is where things get interesting. RSA 41:45-c provides that the deputy town clerk-tax collector “may be removed at the pleasure of the town clerk-tax collector” and “perform such duties as are assigned to him by the town clerk-tax collector.” In contrast, RSA 41:18 provides that deputy town clerks “shall perform all the duties of the town clerk in case of his or her absence.”
Q: How do the different roles for principal, deputy, and regular employee impact their relationship between one another and with other town officials and employees?
A: It’s important to keep in mind that there is a difference between elected officials and employees. Elected officials are not subject to the personnel policy and other rules pertaining to employees. Generally, if they aren’t doing their job or aren’t doing it well, the law assumes that citizens will get fed up and the official will be voted out of office at the end of their term. (There is an exception for malfeasance under RSA 41:12, 41:16-c (and for the combined position RSA 41:40), but that’s hard to prove, generally requires purposeful bad acts, and definitely requires a consultation with town counsel.)
In addition, it is town meeting – not a personnel policy or governing body – that determines the compensation for town clerks. RSA 41:25. Whatever amount is set by town meeting in lieu of statutory fees is the amount owed. That’s different for employees who are paid based on the hours worked, and accumulate benefits such as vacation time. As an elected official, the town clerk / town clerk-tax collector can take off to the Bahamas whenever he/she wants and for as long as he/she wants, and if the townspeople don’t like it, presumably they will elect someone else at the next meeting.
Q: Where does that leave a deputy?
A: Perhaps the best way to characterize the title of “deputy” is as a special title. It does not necessarily confer any benefit, as there is nothing in the statutes regarding compensation of a deputy. In most cases, however, the “deputy” title will go to an employee who works at the town clerk / town clerk-tax collector’s office.
Those deputies, if employees of the town, still work at the discretion of the select board, although deputies of town clerk-tax collectors are subject to the control of the principal. And it is here where town officials should routinely make an effort to come to a consensus about operations within the town clerk / town clerk-tax collector’s office.
While employment in that office could be conceptualized in a civil service type model, where staff employees operate within parameters set by the elected head of the office and managed in accordance with a typical civil service platform, realistically, in most towns, the number of employees, if any, is one or two. There is a certain flexibility that needs to be built into such situations in order to maximize the availability of service for the townspeople – which makes for both a happy electorate and is a good indicator of an effective government – and one that accounts for town budgets and statutory limits on what non-deputy employees can do without authorization of the principal.
Q: Any tips for building and maintaining effective practices?
A: It is always a good idea to schedule occasional meetings between relevant authorities to explore how they can assist one another in the exercise of their duties. Issues arise during the course of the year and without the opportunity to address them with community partners, these issues can fester and boil over into crisis.
As a practical matter, it may make sense to give the town clerk/ town clerk-tax collector managerial authority over employees, like a department head, simply because it might be difficult to manage the office otherwise. The ability of that official to set work hours, for example, might help alleviate situations where there is a sudden demand upon the office, such as occurs on important due dates – dog license renewals, last day-of-the-month for car registrations, etc. – and provide flexibility that is necessary for the effective delivery of governmental services without necessitating shifting other employees, particularly employees unfamiliar with processes, to that office to assist when a foreseen issue has become a crisis.
Good communication between relevant municipal officials about wants and needs, and the ability of government to flex to accommodate those is key to not only providing good service to the public, but also fostering good relationships between officials.
Natch Greyes is the Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at firstname.lastname@example.org.