Municipalities as Employers: Regulating Firearms in the Workplace

C. Christine Fillmore

Private employers are generally free to impose rules regarding the conduct of their employees while on the job.  In recent months, particular attention has been paid to the regulation of firearms in the workplace.  Who should carry them?  Who should not?  Should teachers be armed?  Of course, there are exceptions to any employer’s ability to direct or permit the activities of its employees.

 

A private employer is bound by many of the same state and federal laws as municipalities, such as overtime requirements, protected leave time, and antidiscrimination laws.  However, when a municipality is acting as an employer, it is also required to follow an entirely different set of laws: state and federal laws regulating government action.  This can lead to tension and uncertainty when a municipality’s role as an employer conflicts with its role as a governmental agency.

 

Nowhere has this tension been clearer recently than in the regulation of firearms.  Should municipal employees be permitted, encouraged, or prohibited from carrying firearms on the job if they are otherwise legally permitted to own and carry them?  When a municipality is acting as an employer, it is performing a somewhat different function than when it is acting as an agent of government.  Does this mean that it is bound by the laws regarding employers or the rules regarding governmental action?  The answer is important, because the results may differ depending on which set of laws takes precedence.  Unfortunately, the answer is unclear.

 

The question arising more and more often is whether a municipality may, through its personnel policies, prohibit its employees from carrying a firearm on municipal property or while performing work for the municipality in other locations (except for law enforcement personnel).  The tension arises between one State law prohibiting municipalities from regulating most aspects of firearms possession and the general lack of municipal authority in this area on one side, and the duty of all employers in New Hampshire to provide a safe workplace and to follow state laws regarding employment on the other side.  As this article illustrates, the correct balance between these legal issues has yet to be addressed by a court in New Hampshire.

 

Preemption by State Law

 

One limitation on municipal power is preemption by a higher level of government.  Preemption occurs when one level of government claims regulation of a given field as its own and prohibits other levels of government from regulating that field.  The New Hampshire Constitution is the supreme law of the state and is superior to conflicting provisions of state law.  See N.H. Const. Art. II, pt. 90.  Similarly, state law is superior to any conflicting municipal regulations or ordinances.  Preemption may be express (stated in the law) or implied, and it is often a matter for the courts to determine whether or not the legislature intended to authorize continued or conflicting regulation in a particular area.

 

RSA Chapter 159 sets forth the state’s regulation of firearms.  RSA 159:26 explicitly prohibits municipalities from regulating firearms except in very narrow circumstances.  This section of the law states, in part, that “[t]o the extent consistent with federal law, the state of New Hampshire shall have authority and jurisdiction over the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state.  Except as otherwise specifically provided by statute, no ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state.”  RSA 159:26, I.  There is a narrow exception for zoning ordinances which regulate firearms businesses in the same manner as other businesses.  Id.  The statute goes on to provide that “[u]pon the effective date of this section, all municipal ordinances and regulations not authorized under paragraph I relative to the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies shall be null and void.”  RSA 159:26, II.

 

In other words, this statute expressly preempts any municipal regulation of the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, components, ammunition, or supplies, except for general zoning laws regarding the location and operation of businesses, unless “otherwise specifically provided by statute.”  RSA 159:26, I.

 

If municipalities are preempted by State law from regulating, in particular, the “use and possession” of firearms, does this mean they are prohibited from regulating the conduct of their employees regarding firearms?  Looking strictly at the language of the statute, the answer appears to be “yes.”  On the other hand, reasonable attorneys may disagree with this interpretation, concluding instead that when a municipality acts as an employer, it is not performing a governmental function.  If that is the case, then perhaps towns and cities should not be considered “municipalities” when they are performing activities that are unrelated to governmental functions.

 

For example, municipalities are liable in many of the same ways as private employers are for wrongful termination and civil rights violations.  See Porter v. Manchester, 151 N.H. 30 (2004) (Porter I); Porter v. Manchester, 155 N.H. 149 (2007) (Porter II) (City was liable for the actions of its employee for wrongful termination of another employee as well as First Amendment and civil rights violations).  In addition, if a municipality is engaging in a “non-governmental activity” such as leasing out residential property it owns to a tenant, it would likely be held to the same standards as any other residential landlord regarding the obligation to follow the proper steps when evicting tenants.  See Evans v. J Four Realty, LLC, No. 2012-198, February 13, 2013.  Similarly, when a municipality enters a contract with a private party, it can be liable in the same way anyone else would be when it breaches that contract.  See Signal Aviation Services, Inc. v. Lebanon, 2012-364, February 13, 2013 (City can be held to the same standards as other parties for the purposes of breach of contract in leasing space at airport).

 

The question remains open: is a municipality always a municipality no matter what functions it is performing, or can it be a “municipality” for some purposes and a regular “employer” for other, non-governmental purposes?  The answer may have a great bearing on the ability of towns and cities to regulate firearms in the workplace.

 

Municipal Authority in General

 

Another important consideration is whether municipalities would have the authority to regulate their employee’s conduct relating to firearms even if the prohibition in RSA 159:26 did not exist.

 

Unlike our Federal Constitution and many state constitutions, New Hampshire’s Constitution does not grant any power directly to municipalities.  In New Hampshire, municipalities only have the authority given to them by the legislature, which the legislature is free to retract at any time.  The New Hampshire Supreme Court has said that municipalities “only have such powers as are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto.”  Girard v. Allenstown, 121 N.H. 268 (1981).  This means that when a question arises about whether a municipality has authority to take a certain action, the municipality must look to an enabling statute that grants them the authority to take that action.  It is not enough to conclude that there is no law prohibiting the action.

 

In the case of RSA 159:26, the statute plainly prohibits any municipal ordinances or regulations affecting firearms “unless otherwise specifically provided by statute.”  Therefore, if a municipality wishes to regulate the carrying of firearms by its employees in the workplace, it is reasonable to conclude that the municipality must find a statute specifically granting this authority.  If no such statute exists, general principles of municipal law lead to the conclusion that a municipality does not have the authority to take this action.

 

New Hampshire statutes do not specifically grant municipalities the authority to regulate the carrying of firearms by employees within the workplace.  The only statutes that appear to create exceptions to the general limitations of RSA Chapter 159 are RSA 159:19 (restricting the carrying of open or concealed, licensed or unlicensed pistols, revolvers, firearms, or any other deadly weapon in a courthouse and authorizing courthouse personnel to secure such weapons at the courthouse entrance) and RSA 193-D:2 (requiring the state board of education to adopt rules regarding standards and procedures requiring the expulsion of pupils for knowingly possessing a firearm in a safe school zone without written authorization from superintendent).  In addition, although RSA 650-C:1 requires certain actions to secure firearms and ammunition in a way that prevents access by children, “nothing in this section shall be construed…to provide authority to any state or local agency to infringe upon the privacy of any family, home or business, except by lawful warrant.”

 

Therefore, since there is no specific authority granted in any statute for municipalities to regulate the carrying of firearms within the workplace, a reasonable conclusion is that municipalities do not have the legal authority to adopt such regulations.  (Of course, RSA 159:4 already prohibits any person from carrying a loaded pistol or revolver “concealed on his person” unless properly licensed and handled under RSA Chapter 159; therefore, municipal employees are already prohibited from carrying unlicensed, concealed, loaded pistols or revolvers in the workplace.)

 

Safe Workplace Requirements

 

In their role as employers, municipalities are bound by many of the same duties and obligations as private employers.  For instance, all employers (including municipalities) are required to pay employees’ wages according to laws and rules that apply to every employer in the state (RSA Chapter 275), to provide workers’ compensation coverage (RSA Chapter 281-A), and to treat employees in a non-discriminatory manner, both in hiring and in terms of employment (RSA 354-A).

 

Municipalities are generally deemed to have many of the same powers as private employers.  Municipal employers are also generally considered to have the authority to develop, enforce, and amend policies regarding the expectations of employee conduct while at work.  Personnel policies often address such diverse issues as attendance, computer and cell phone use, proper attire, solicitation activities, and attitude.  Private employers might well develop policies that prohibit employees from carrying firearms while at work, and might instead provide a secure location to store such firearms for employees during work hours.

 

Imagine the worst possible situation: an armed citizen enters town hall, irate about something the town has done, and threatens all of the employees at the desk.  They are held hostage for some period of time and eventually one or more of the employees are killed.  Might this situation unfold differently if one of those employees were armed?  It is possible, although we can never know for certain.  Is it possible that employees who are prevented by town policy from carrying a legal weapon could recover damages from the town because they were not allowed to defend themselves in an otherwise legal manner?  Additionally, did the municipality breach its duty under RSA Chapter 275 to provide a safe work environment by failing to install protective equipment such as bulletproof windows and walls?  (Many police stations are now built with bulletproof first floors for just this reason.)  These things are possible, but the law does not answer the questions.

 

Reasonable attorneys can (and do) argue that the blanket prohibition in RSA 159:26 was intended to address the “governing” functions of municipalities but not their “employer” functions.  In other words, an argument can be made that municipalities cannot regulate the use and possession of firearms by the general public, including those members of the public who enter public governmental buildings, but that municipalities as employers do have some authority to regulate the conduct of their employees.  It is odd, and arguably against public policy, to prevent municipal employers from requiring their employees to keep weapons in a secure location while at work, but to allow all other employers in the state to do so.  If this interpretation of the law is correct, then municipalities should be able to regulate the carrying of firearms by municipal employees while at work.  Thus far, however, there are no court opinions to guide our analysis of the issue.

 

What to Do?

 

If a municipality regulates the carrying of firearms by its employees in the workplace, it is unclear how any court might rule on this question.  A court would likely review all of the circumstances surrounding such a regulation, and might be more likely to look favorably upon a policy that provided a secure place to store employees’ firearms during work hours than one which flatly prohibited firearms.

 

The decision of whether or not to create and enforce such a policy is one that each municipality will have to make, working with their local attorney to weigh the risks and benefits.  On one hand, if a municipality did not regulate firearms in the workplace and someone was injured, that would be a tragic outcome.  On the other hand, if a regulation were instituted and then challenged by an employee, the regulation could become the fodder for the current national media sensationalism of all things gun-related and may also be struck down as in violation of RSA 159:26.  Litigation is expensive and diverts municipal resources from other purposes, as well as creating political tension (which can actually be worse).  Neither result is ideal, but it is an issue worth considering carefully.

 

Given the competing risks and the myriad of factual situations that might arise, we encourage any municipality struggling with this question to discuss it with their municipal attorney before instituting such a policy.

 

C. Christine Fillmore is Staff Attorney for the New Hampshire Municipal Association.  She may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.