Municipal Employee and Municipal Official – Is There a Difference?

By C. Christine Fillmore, Esq.

Generally, when someone performs work with an expectation of compensation, an employment relationship is created. However, not everyone who “works" for a municipality is an employee. It can be difficult to distinguish between the employees, officials, volunteers and independent contractors who all perform work for a municipality. This article deals with the differences between municipal officials and municipal employees—and there are differences. As a general rule, elected and appointed officials are not employees of the municipality. This is an important distinction to understand because of the significant differences in the way officials and employees are chosen, compensated, supervised and terminated.

Q: Who is considered a municipal official?
A: People who are considered “municipal officials" include the town clerk, tax collector, town clerk/tax collector, and their deputies; treasurer and deputy treasurer; selectmen, town/city councilors, and mayor; planning and zoning board members, budget committee, and conservation commission members. Other examples are moderators, trustees of trust funds, library trustees, cemetery trustees, highway/road agent, assessors, auditors, permanent constables or police officers elected or appointed under RSA 41:47, fire chiefs or firewards if elected under RSA 154:1 through 154:1-c, inspectors of elections, supervisors of the checklist, building inspectors, sewer commissioners, welfare officers, and health officers. In addition to any required official, municipalities may also choose to elect or appoint any other official they decide is necessary. RSA 41:2.

Q: Who is considered a municipal employee?
A: The New Hampshire Public Employee Labor Relations Act (RSA Ch. 273-A:1) defines public employees as those persons employed by a public employer except (a) those who are elected, (b) those appointed by the chief executive or legislative body, (c) those whose duties imply a confidential relationship to the public employer, and (d) those in probationary or temporary status, or employed seasonally, irregularly, or on call. Municipalities may have varying numbers and categories of employees, depending on the particular needs, budget, and size of the community. Employees might include office staff in the town or city hall (such as secretaries, clerks, and other similar assistants), highway and public works employees, sanitation workers, librarians, firefighters, police officers, emergency medical personnel, and planning and zoning staff such as clerks, planners and engineers.

Q: Are the qualifications different for municipal officials and municipal employees?
A: Yes. Municipal employees, just like all other employees, are hired based upon the job description and qualifications that the employer has decided are appropriate for that particular job. Of course, municipalities must comply with the same laws as other employers regarding non-discrimination in the hiring process, so for example, a town could not refuse to hire someone just because he or she is not a citizen. In other respects, however, the municipality is free to require whatever qualifications it wishes. The law does not require that employees reside within the municipality they serve, and in fact municipalities generally cannot require it unless there is a compelling reason. See, for example, Seabrook Police Association v. Town of Seabrook, 138 N.H. 177 (1993). Thus far, only one municipality has been able to demonstrate this to the satisfaction of the New Hampshire Supreme Court. Id.

Municipal officials, on the other hand, are only required to meet a few basic statutory qualifications that the municipality cannot alter. All municipal officials, whether elected or appointed, must take an oath of office. RSA 669:9. They must also be U.S. citizens. RSA 91:2. All elected municipal officials must be domiciled in that municipality. RSA 669:6. A municipality with a charter may require up to a one-year residency requirement before a person runs for elective office. RSA 49-C:9 and RSA 49-D:3, I(d). If an elected official moves out of the municipality during his or her term, the official will be deemed to have resigned at the time they moved. RSA 654:1, II.

Only a few municipal offices require any additional qualifications beyond citizenship and residency. Town managers, for instance, are selected “with special reference to education, training, and experience" for the position. RSA 37:3. For the most part, however, there are no additional qualifications for elected office, and municipalities do not have the power to add qualifications. See, for example, Hooksett v. Baines, 148 N.H. 625 (2002) (municipal charters cannot set term limits for elected office).

Q: How are officials and employees chosen and how long do they serve?
A: Officials may be elected or appointed, depending upon the position, and in some cases, the legislative body can choose between these two methods. The terms of office for officials are often set by statute (such as the three-year term for selectmen under RSA 41:8), although the terms of some officials may be altered. For example, the terms of the tax collector, town clerk, and treasurer can all be changed from one year to three years by vote of the local legislative body. RSA 41:2-b, 41:16-b, 41:26-b.

Employees are usually hired by the town or city manager, town administrator, selectmen or town or city council, depending upon what form of government the municipality uses. Employees might also be hired by the heads of various departments if they have been given that authority. For example, a planning board or zoning board of adjustment may hire its own employees as it requires (RSA 673:16) and a highway agent may employ public works employees (RSA 231:62). Unless there is an employment contract or collective bargaining agreement in place, municipal employment has no set term and is “at will." This means that either the employer or the employee may terminate the relationship at any time and for any reason, so long as there is no discrimination or other violation of the employee’s civil rights.

Q: Who determines how officials and employees are compensated?
A: In general, town meeting votes to determine the compensation for municipal officials as part of its annual budget process. Once compensation is set by town meeting, the official “earns" that compensation regardless of the number of hours actually worked. By statute, town meeting has the option with both the town clerk and the tax collector to choose to compensate either or both of them by statutory fees that they collect as part of their duties, or by straight compensation, or a combination of both. RSA 41:33, RSA 41:25. City officials are generally compensated according to the city’s charter, local ordinance, or promotion and compensation plan.

The compensation of municipal employees may be set in several different ways. In towns using the town meeting form of government, town meeting approves the operating budget, which ordinarily includes an authorization to pay employees, but the exact amount of employee compensation within the overall budget is usually set by the employing authority (selectmen, town manager, etc.). Cities, larger towns and those using the town council form of government often vote to adopt a salary ordinance or merit system. The body that determines compensation may also grant additional employee benefits such as vacation time, sick leave, and health insurance, although these are not required by statute. When a collective bargaining or employment contract is in place, compensation, bonuses and other benefits will be governed by the terms of the contract.

Municipal employees are also protected by a number of state and federal laws that do not apply to municipal officials. For example, the minimum wage and overtime compensation requirements of the federal Fair Labor Standards Act apply to most municipal employees but do not apply to officials. 29 U.S.C. §203. Municipal employers must comply with New Hampshire’s Minimum Wage Law (RSA Ch. 279), and the Protective Legislation statute (RSA Ch. 275), which covers a wide variety of subjects including hours of work, payment of wages and discrimination. Other protections that apply to employees but not officials include worker’s compensation (RSA Ch. 281), unemployment compensation (RSA Ch. 282-A), maternity leave (RSA Ch. 354-A), the federal Americans with Disabilities Act (42 U.S.C. §12101), and the federal Family and Medical Leave Act (29 U.S.C. §2611).

Q: How are officials and employees supervised?
A:Unlike employees, municipal officials generally are not “supervised" and are not subject to municipal personnel policies. Statutes provide that a few specific officials will be supervised by the selectmen, such as highway agents. RSA 231:62. In general, however, the duties of municipal officials are set forth in the statutes and the officials themselves are responsible for making sure those duties are accomplished. This means the legislative body cannot force an official to serve part-time or full-time; the official works as many hours as he or she decides is appropriate. For example, the town clerk is elected, compensation is set by the voters, and the clerk’s duties are explained in the statutes. The clerk will decide what his or her hours will be, when to take time off and how to run the office. If the voters are dissatisfied with the clerk’s performance, the remedy is to turn the clerk out of office at the next election by voting for someone else.

Employees, on the other hand, are usually supervised by department heads and/or the governing body, and are subject to the municipality’s personnel policies regarding discipline and termination.

Q: How are issues of discipline and termination handled?
A: Municipal officials are not subject to personnel policies and may only be removed by the governing body in very narrow circumstances as set forth in the statutes. For example, a town clerk may only be removed for insanity or incapacity (RSA 41:12), or for irregular accounting (RSA 41:16-c). Land use board members may only be removed by the appointing authority (if appointed) or the selectmen (if elected) for inefficiency, neglect of duty, or malfeasance in office. RSA 672:13. Police and fire chiefs may only be removed for cause (RSA 105:2-a, RSA 154:5). There are also several other statutes setting forth specific conditions for removal of other officials.

In contrast, employees are subject to municipal personnel policies regarding progressive discipline and termination. The governing body that hired an employee generally has the power to terminate him or her as well. Under New Hampshire’s at-will doctrine, unless there is a protective statute or a collective bargaining or employment contract involved, an employer may terminate an employee at any time so long as the reason is not illegal. Likewise, an employee may quit at any time without owing any duty to the employer. Cloutier v. Great Atlantic and Pacific Tea Co., Inc., 121 N.H. 915 (1981). Despite an employee’s at-will status, if an employer’s termination action is motivated by bad faith, malice, retaliation for reporting an unlawful act, or is otherwise contrary to public policy, then the employee may be able to sustain a claim of wrongful discharge. Certain employees, including some police officers, may only be removed “for cause." RSA 105-C:1. If an employee is not covered by any specific agreement or protective legislation such as that covering police officers (RSA 41:48, 105:2-a), tenured teachers (RSA 189:14-a), or fire wards (RSA 154:5), that employee does not have the right to a hearing before being terminated.