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Tax Collectors and Their Deputies “Not always Andy & Barney” A presentation for the New Hampshire Tax Collectors’ Ass’n. September 22, 2010 Prepared By:

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Presentation on theme: "Tax Collectors and Their Deputies “Not always Andy & Barney” A presentation for the New Hampshire Tax Collectors’ Ass’n. September 22, 2010 Prepared By:"— Presentation transcript:

1 Tax Collectors and Their Deputies “Not always Andy & Barney” A presentation for the New Hampshire Tax Collectors’ Ass’n. September 22, 2010 Prepared By: Bernard H. Campbell, Esq. NHTCA Legal Counsel Beaumont & Campbell, Prof Ass’n. 1 Stiles Road- Suite 107 Salem, New Hampshire 03079 Tel 603-898-2635 E-mail: Bcampbell@beaumontandcampbell.com Bcampbell@beaumontandcampbell.com

2 What the law says: 41:38 Deputy; Temporary Incapacity of Tax Collector. – I. The tax collector shall appoint a deputy, with the approval of the selectmen, who shall be sworn, give bond, have the powers of tax collectors and may be removed at the pleasure of the tax collector. The deputy shall perform such duties as are assigned to him by the tax collector. II. Provided, however, if the tax collector is temporarily incapacitated before completing the collection of the taxes committed to him, or if any necessity may arise for such action, the deputy tax collector shall serve during such incapacity. Said deputy shall possess the powers, perform the duties and be paid as the selectmen or town meeting shall decide.

3 What the key words mean: “Generally the use of the word ‘shall’ in a statutory provision is a command requiring mandatory enforcement.” Schiavi vs City of Rochester, 152 N.H. 487 (2005). “It is the general rule that in statutes, the word ‘may’ is permissive only and the word ‘shall’ is mandatory”. In Re: Liquidation of Home Insurance Co, 157 N.H. 543 (2008). Selectmen constitute the governing body of a Town (unless Town Charter creates a Town Council). RSA 21:48. In cities, the mayor and aldermen “shall have the powers, and do and perform all the duties, which Selectmen of towns have…” RSA 47:13

4 Sworn is reference to the statute – RSA 42:1 – which mandates that every town officer shall take the oath as set forth in the New Hampshire Constitution. Give bond is a reference to the requirement that they come under the “blanket surety bond” required under RSA 41:6. This implies that if they cannot be bonded, they cannot serve as deputy. Removed at the pleasure of the tax collector - This phrase is relatively uncommon in state statutes (deputy tax collector, deputy town-clerk- tax collector, deputy school district treasurer, and Court clerks). The more common form of this language is “serve at the pleasure of”.

5 Generally, when serving “at the pleasure” of an appointing officer, the person can be removed by the appointing officer “without cause”. Tice vs Thomson, 120 N.H. 313 (1980). This is generally distinguished from removal “for cause” or “for good cause.” Good cause has been defined as "some substantial shortcoming which renders continuance in office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and sound public opinion recognize as good cause for his no longer occupying the position." McQuillin, Municipal Corp., Sec. 12.248 (3rd. Ed. 1985). Termination of an “at the pleasure employee” simply requires notice to the person in question. There is no “hearing” or other procedural requirements.

6 What the statute does not tell you: The qualifications required to serve as a deputy. They would generally be: Legal age – 18 years old or older Residency is not required to be Deputy Tax Collector. The Deputy Town Clerk statute (RSA 41:18) requires that the Deputy Town Clerk “be qualified in the same manner as the Town Clerk.” Id. This means that the deputy must be a resident and qualified to be elected. See, AFSCME vs Town of Windham, Rockingham County Supreme Court. By contrast, the deputy tax collector statute has no such language, so residency is not required.

7 The person would need to be qualified to be bonded under the blanket bond required by RSA 41:6. Recall that there is a 2004 law that requires that any person in a bonded position who has previously been removed from office must advise the governing body of their intent to run for an office requiring bonding. See, RSA 669:17-c. The implication is that if they cannot be bonded, they cannot serve. There may be limits based on Statutory or common law “incompatibility of office”. This subject is covered by Attorney Paul Sanderson in his materials.

8 What the statute does not tell you: Although you have the right to “appoint a deputy”, you do not have right to “hire an employee” on behalf of a municipality. In most Towns, the Selectmen are charged with the hiring and supervision of all Town employees, subject to budget constraints. See, 13 N.H. Prac. (Loughlin) Sec. 383, citing, RSA 41:8. If there is a Town Manager, the power rests with the manager. RSA 37:6. While it is a matter of custom and practice, subordinate employees in the Tax Collector's office are not technically under the direction of the Tax Collector. The collector must request the Manager/Selectmen to set work hours, set policies, enforce discipline, etc.

9 What the statute does not tell you: New Hampshire law recognizes the concept of “wrongful discharge”. To support a claim of wrongful discharge, a plaintiff must establish that (1) the termination was motivated by bad faith, retaliation or malice, and (2) that the termination was for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. MacKenzie vs Linehan, 158 N.H. 476 (2009), citing, Lacasse vs Spaulding youth Center, 154 N.H. 246 (2006). See also, Monge vs Beebe Rubber Company, 114 N.H. 130 (1974).

10 BUT – The Supreme Court has made a passing mention that the wrongful discharge claims possibly may not be applicable under Monge if a person is employed as a public employee serving “at the pleasure” of a governmental official. Tice vs Thomson, 120 N.H. 313 (1980). See also, Bennett vs Thomson, 116 N.H. 453 (1976). In the 2009 MacKenzie case, the Court said: “ Because we conclude that the trial court (properly found insufficient evidence of wrongful discharge), we need not address (the Defendant’s) contention that the public policy exception to the general rule that employees are employed at will does not apply to the Plaintiff because he was a public employee… appointed to serve at (the Defendant’s) pleasure.”

11 (con’t) –In addition there are limits on discharge under federal law which fall in the general category of “civil rights” for which suit can be brought under 42 U.S.C. §1983. Examples of this might be: “I heard you went to church with those Moslems” “I saw you at dinner with those Asian folks” “I can’t believe you registered as a Republican” Removal from office for any of these reasons would be actionable under state/federal law.

12 So What Does This Mean to Me? As a newly elected collector, you have the right to “remove” the prior deputy, because the deputy serves at your pleasure, but, You probably cannot remove them if you express the reasons and those reasons could be construed as wrongful discharge or civil rights violation. “Safe” reasons could be “I want to select my own deputy”; “I want someone available different hours to match times I want to provide services”; “I want someone with different skills/talents”.

13 You cannot “fire” them from their “job” with the municipality. The Selectmen must “dismiss/layoff/terminate” the employee (assuming that the deputy was an employee before you came into office). It is possible that the employee who is the Deputy could also be within a labor union subject to a collective bargaining agreement. The “removal” process for the deputy may be excluded from the operation of the contract, even though other facets of the job may be covered by a CBA. See, Appeal of Town of Litchfield, 147 N.H. 415 (2002). In a department with more than one additional employee, it is possible that the “former deputy” could remain in the Tax Collector’s office in a “non-deputy” role.

14 Without cooperation, you may not get the approval of the Selectmen for the deputy, or they may tell you that you can appoint a Deputy, but that person will not become an employee The Selectmen cannot “tell” you who will be your Deputy. That is statutorily a right given to you as Collector. Unless you are “sharing” your salary with the deputy, the compensation of the deputy will be fixed by the Selectmen/Town Manager (collective bargaining agreement).


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