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.
It can be confusing trying to understand who has the authority to manage town property. These questions can range from managing the actual building or property, to managing the employees who work in those spaces, to managing the behavior of the members of the public allowed to access those spaces. This article will explain some of the tools at the disposal of the municipality for managing public spaces.
Q. Who has the authority to manage town property and town employees?
A. RSA 41:11-a gives authority to the governing body, in most cases the select board or city council, the authority to manage town property. The governing body is also the manager of town employees. However, RSA 41:11-a carves out several exceptions. The most notable is the public library. That is governed by the library trustees pursuant to RSA 202-A:6. The library trustees manage library property, as well as library personnel and employees. Town forests, conserved lands, and recreation areas are the other exceptions listed in RSA 41:11-a where there can be a different managing authority.
Q. What are the most common methods used to manage town property and employees?
A. There are three main categories of regulatory authority; ordinances or bylaws which are generally adopted by a vote of town meeting and govern the town as a whole; town policies which are guidelines set by the governing body; and personnel policies which set rules and standards for town employees.
Ordinances, sometimes called bylaws, are rules or regulations that govern the municipality as a whole. These are established, in most cases, by a vote of the legislative body at town meeting, or by city councils, however larger towns may have granted the select board the authority to enact ordinances. Ordinances can regulate activities throughout the entire municipality such as noise or waste disposal or be directed towards the care, protection, preservation and use of public parks, libraries, etc. They are enforced by officers appointed to enforce local ordinances and through fines.
Town policies are more like guidelines that the governing body sets for managing certain activities, behaviors or use of property. For example, the library trustees could establish an unattended minor policy at the local library to prevent parents from leaving small children alone for extended periods of time. Policies are more guidelines than strictly enforceable bylaws, but they can play an important role in establishing when someone has crossed the line by repeatedly violating the rules. In these instances, it is generally the local police department that helps enforce these policies.
Finally, personnel policies are used to set the rules and expectations for town employees. The terms of these policies are agreed to as part of a person’s employment or position with the municipality and are enforced through the employer/employee relationship.
Q. How can municipalities manage the behavior of the public within public spaces?
A. Members of the public are expected to abide by town ordinances and policies, as well as the criminal code. All of these can work together in managing public use of town property. For example, the town could set a policy that the town hall is closed to the public at 6pm every night. If someone tried to enter the building after closing hours, they would be committing a criminal trespass which could be enforced by the police department.
Obviously, it isn’t always as straightforward as the above example. One area where we have seen town policies come into play is in dealing with 1st Amendment Auditors. A 1st Amendment Auditor is someone who enters a public space, usually recording, and seeks to agitate local officials and town employees. Many municipalities have struggled handling these situations since members of the public are allowed to enter public spaces and are also allowed to record. However, there are many policies which could be enacted to help handle a situation like this. For example, towns are allowed to establish portions of a public space or building that are marked “employees only” where members of the public are not allowed to freely access. Town employees can be provided with guidance and procedures on how to interact with disruptive individuals through personnel policies to help them know who to report to and how to interact with these individuals. Also, having a policy in place which establishes grounds for removal from a public space if someone becomes belligerent, obtrusive, argumentative, or prevents employees from doing their work can be a useful tool.
Finally, public boards and bodies have the ability to set their own policies or rules of procedure for handling public comment or interactions during public meetings. This can include setting rules for how someone signs up or gets recognized to speak, setting time limits for comments and rules preventing disruptive and out of turn behavior.
Q. Can towns regulate firearms on public property?
A. This is a complicated question because it must be considered under the facts of the specific situation. Generally speaking, if the patron is in lawful possession of the gun and is not using it in an unlawful manner, then the patron should be allowed to remain on public property with the gun.
While the select board does have the ability to manage town property, this authority is subject to state laws. With regard to guns, RSA 159:26 provides that "[e]xcept as otherwise specifically provided by statute, no ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession … or other matter pertaining to firearms, …." However, this is not to say that a patron who is using a gun to intimidate or threaten other patrons or staff must be ignored. Such a patron will likely be in violation of the criminal code as well as a town policy.
It is possible that other members of the public may be disturbed at the mere sight of a weapon and, on those grounds alone, demand that the person be removed. Caution should be used when removing someone from a public space solely on the request of others when the patron in question is not breaking any town policies or state laws regarding gun possession. Of course, town staff who reasonably believe that a patron in possession of a gun is behaving in a threatening or erratic manner should contact their local police for assistance.