New Hampshire Town and City, July-August, 2018 by New Hampshire Municipal Association

July/August 2018

TownandCity N E W

H A M P S H I R E

In This Issue:

A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION

Pregnancy Discrimination........................................................11 The ADA and People with Disabilities in New Hampshire.....15 Towns and Cities: “YOU, TOO!”..............................................21 Can You Recognize Retaliation?.............................................25

Table of

Volume LXI • Number 4

Contents

July/August 2018

A Message from the NHMA Executive Director

Happenings

Upcoming Events

The HR Report: Do Your Job Titles Reflect Your Brand?

Best Practice Series: Best Practices for Public Sector Recruitment and Hiring

This Moment in NHMA History/Name That City or Town

Affiliate Member Spotlight: New Hampshire Local Welfare Administrators Association NHARPC Report: Approaches to Planning Recreational Trail Networks

Up Close and Personal in the Field: Bob Edwards

Up Close and Personal in the Field: Cheryll Hurteau

Legal Q and A: The Right-toKnow Law: A Year in Review

11 15 19 21 25 27 30

Pregnancy Discrimination The ADA and People with Disabilities in New Hampshire Beyond Parades and Proclamations

Towns and Cities: “YOU, TOO!”

Can You Recognize Retaliation? What You Need to Know About Service Animals Committees Finalize Policy Proposals

Cover Photo: Fremont Town Hall by Heidi Carlson, Town Administrator.

New Hampshire Town and City Magazine Staff Executive Director Editor in Chief

Judy A. Silva Timothy W. Fortier

Contributing Editors Margaret M.L. Byrnes Barbara T. Reid Art Director

Scott H. Gagne

Production/Design

Scott H. Gagne

www.nhmunicipal.org

Ofﬁcial Publication of the New Hampshire Municipal Association 25 Triangle Park Drive • Concord, New Hampshire 03301 Phone: 603.224.7447 • Email: nhmainfo@nhmunicipal.org • Website: www.nhmunicipal.org New Hampshire Municipal Association Phone: 800.852.3358 (members only) NEW HAMPSHIRE TOWN AND CITY (USPS 379-620) (ISSN 0545-171X) is published 6 times a year for $25/member, $50/non-member per year, by the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, New Hampshire 03301. Individual copies are $10.00 each. All rights reserved. Advertising rates will be furnished upon application. Periodical postage paid at Concord, NH 03302. POSTMASTER: Send address changes to NEW HAMPSHIRE TOWN AND CITY, 25 Triangle Park Drive, Concord, NH 03301. NEW HAMPSHIRE TOWN AND CITY serves as a medium for exchanging ideas and information on municipal affairs for officials of New Hampshire municipalities and county governments. Subscriptions are included as part of the annual dues for New Hampshire Municipal Association membership and are based on NHMA’s subscription policy. Nothing included herein is to be construed as having the endorsement of the NHMA unless so specifically stated. Any reproduction or use of contents requires permission from the publisher. POSTMASTER: Address correction requested. © Copyright 2018 New Hampshire Municipal Association

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New Hampshire Municipal Association

B OA R D O F D I R E C TO R S Brent Lemire - Chair Selectman, LitchďŹ eld

Donna Nashawaty - Vice Chair Town Manager, Sunapee

Shaun Mulholland - Treasurer Manager, Lebanon

Candace Bouchard - Secretary Councilor, Concord

Scott Myers Immediate Past Chair City Manager, Laconia

Butch Burbank Town Manager, Lincoln

David Caron Town Administrator, Derry

Shelagh Connelly Selectman, Holderness

Phil Dâ&#x20AC;&#x2122;Avanza Planning Board, Goffstown

Lisa Drabik Asst. Town Manager, Londonderry

M. Chris Dwyer Councilor, Portsmouth

Stephen Fournier Town Administrator, Newmarket

Elizabeth Fox Asst. City Manager, HR Director, Keene

Katie Gargano Clerk/Tax Collector, Franklin

Bill Herman Town Administrator, Auburn

Rick Hiland Selectman, Albany

Christopher Herbert Alderman, Manchester

Harold Lynde Selectman, Pelham

Jim Maggiore Selectman, North Hampton

Carolyn McCarley Mayor, Rochester

John Scruton Town Administrator, Barrington

David Stack Town Administrator, Bow

Eric Stohl Selectman, Columbia

David Swenson Selectman, New Durham

NEW HAMPSHIRE TOWN AND CITY

As of January 25, 2018

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A Message from the

NHMA

Executive Director Summer Homework

Judy Silva

Greetings Town & City readers! It seems like it is finally summer in New Hampshire, although for those of us who lobby or serve in the legislature, summer always begins when the legislative session ends! That was particularly true for us this year, as well as for many legislators we talked to in May. Of course, legislators who wish to return next year must start considering their election campaigns, as there will be a state primary on Tuesday, September 11 and the general election on November 6. You can go to this link (http://sos.nh.gov/2018FilingPeriod. aspx) on the Secretary of State’s web site to see the list of candidates who have filed for the various state and federal races. Be sure to check it out and make a careful choice about who represents your municipality in the state legislature—it is a very important decision which can have a big impact on your life as a municipal official and as a New Hampshire citizen! While legislators are campaigning, NHMA staff are wrapping up the 2018 session by preparing a summary of all the bills of municipal interest which passed and became law. We expect to issue the 2018 Final Legislative Bulletin no later than early August, depending on when final action on all bills takes place. In the meantime, if you have questions about any legislation, please call us. We are also getting ready for the 2019-2020 legislative sessions. We held the first stage of NHMA’s biennial Legislative Policy Process in the spring, with the three policy committees (General Administration and Governance, Finance and Revenue, and Infrastructure, Development and Land Use) each preparing 15 policy recommendations based on submissions from municipal officials as well as suggestions from committee members. Each member municipality will soon receive, if they have not already, the full set of recommendations as well as instructions on how to submit a floor policy for consideration at the policy conference (see related article on page 30). The final stage in the process is the 2019-2020 Legislative Policy Conference, which will take place on Friday, September 14 at the NHMA offices in Concord. Every member municipality is strongly encouraged to send a delegate to vote on the policies which will form NHMA’s “platform” for the coming legislative session. We urge every governing body to review the policies and take a position on each one, to instruct their delegate how to vote at the policy conference. This is a critical activity for members to engage in as it sets the course of NHMA advocacy efforts for the next two years. While that is taking place, NHMA staff are also planning for the NHMA Annual Conference (November 14 and 15), conducting a myriad of workshops (Local Welfare, Local Officials/Knowing the Territory, Code Enforcement, Right-to-Know Law) and getting ready for the Budget and Finance Workshops in September. And yes—it is summer and vacation time! We hope you have a chance to take some time and enjoy the New Hampshire summer. Your summer homework: Get to know the candidates for the fall elections so you can vote wisely, review the legislative policy proposals and designate someone to attend the policy conference, and mark your calendars for all that we have planned for you in the fall! www.nhmunicipal.org

Warmest regards,

Judy Silva, NHMA Executive Director

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Join Us LQ November! i Get inspired, connect with hundreds of town and city colleagues, gain skills and tools to bring back to your municipality, and more during the 2018 Annual Conference.

77th Annual Conference Wednesday, November 14 and Thursday, November 15, 2018 The Manchester Hotel (formerly Radisson), Manchester

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Save Wednesday, November 14 and Thursday, November 15 to be sure you can attend this event planned just for New HampshireÂśs elected and appointed city and town officials. From economic development to nuisance abatement and conflicts of interest to human resources, these program sessions at this annual event are all designed with municipal officials in mind.

The New Hampshire Municipal Association (NHMA) is pleased to announce its 77th Annual Conference, with the theme 6KDULQJ ,GHDVÂ˛6KDSLQJ WKH )XWXUH This is New HampshireÂśs premier conference for municipal officials, featuring over 50 educational sessions on timely and relevant topics, as well as ample opportunities to meet and greet with exhibitors ready to offer you the latest products and services. Registration information will be available end of August Please frequent our website at www.nhmunicipal.org/annualconference to find the most up-to-date information. CHECK OUT OUR KEYNOTE SPEAKER: REBECCA RULE Rebecca Rule literally wrote the book about New Hampshire town meetings. Author of ÂłMoved and Seconded, Town Meeting in New Hampshire, the Present, the Past and the FutureÂ´ Rebecca knows more about New HampshireÂśs town meeting than most local government officials do. Come hear Rebecca at 9:00 am on Wednesday, November 14th where she will share her legendary dry humor as well as down-home wisdom which will inspire you to appreciate this unique institution with a storied past even more. Conference Sessions Include: Legislative and Court Updates Right-to-Know Law Code Enforcement Conflicts of Interest US Communities Purchasing Alliance Sexual Harassment Economic Development

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HAPPENINGS NHMA board of director from 19911994, including a stint on its executive committee and Municipal Advocacy Committee (MAC). We congratulate you, Terry, for a life well served in public service to New Hampshire cities, towns and non-profits.

Seacoast Mayors Form Regional Task Force to Address Homelessness Terry M. Knowles, formerly the Assistant Director of Charitable Trusts at the New Hampshire Attorney General’s Office.

After 37 Years of Public Service, Terry Knowles Retires! After over 37 years, Terry Knowles’ retirement will leave a notable hole in the Attorney General’s Office when continuity and long-term institutional knowledge will be lost with her departure. Terry has held the position of Assistant Director of Charitable Trusts at the New Hampshire Attorney General’s Office for over 37 years. She was a Commissioner on the Southern New Hampshire Planning Commission, a member of Leadership New Hampshire’s Class of 2008, twice past President of the National Association of State Charity Officials, and a member of Independent Sector’s 990-PF Reform Advisory Committee. Terry has written and lectured locally and nationally on the non-profit sector and has several published articles in New Hampshire’s Town and City magazine. Terry is no stranger to local government having served as a selectman and in other various positions, including as a member of the planning board, zoning board of adjustment in the Town of Weare. Terry also served as an www.nhmunicipal.org

This spring the mayors of Dover (Karen Weston), Rochester (Caroline McCarley) and Somersworth (Dana Hilliard) convened a 12-member task force to help address homelessness on a regional basis. In response to the historic cold temperatures in January and February, these cities, local social service agencies, and community partners successfully came together to provide a temporary warming shelter to more than 80 people for a 14 day stretch of very cold weather. Although one of the goals will be to create a permanent overnight shelter that can serve the entire region, this effort has also brought a new focus generally on the issue of homelessness and the complexities involved to address different populations of homelessness. The task force is set to create a regional master plan for homeless by November 1st, with a final report forwarded to the cities for consideration and adoption.

City of Claremont Receives “Municipal Energy Champion Award” New Hampshire Energy Week began on March 12th and on the evening of the 15th the City of Claremont was recognized for all the innovative energy efficiency projects that it has undertaken in the past few years.

Former New Hampshire Senator Kelly Ayotte presented three awards for Municipal, Business, and Legislative Energy Champions. The City of Claremont won the Municipal Energy Champion Award for such projects as: 2005 municipal light conversion, 2010 City energy audit and resulting upgrades in municipal buildings, 2013 City Center zoning changes allowing mixed use, 2017 LED conversions in garage and municipal lights, and the 2018 Solar project at the water treatment plant. Claremont City Planner Michael McCrory attended the event. “I had the pleasure of receiving the Municipal Energy Champion Award on behalf of the City of Claremont. Our fellow nominees had some great energy achievements,” McCrory said. “I announced, when receiving the award, that the award was being received in honor of Kurt Beek, someone who worked so hard on energy projects over the years and whom we lost unexpectedly late last year,” McCrory added.

Sununu Nominates Opportunity Zones in New Hampshire On May 3, 2018, New Hampshire Gov. Chris Sununu nominated 27 census tracts to be designated as Opportunity Zones, a federal program encouraging economic development and investment in low income areas around the country. Investors can defer capital gains on earnings that have been reinvested in the zones through Opportunity Funds. Opportunity Funds are private sector investment vehicles that invest at least 90 percent of their capital in Opportunity Zones. Longterm investments maintained for over 10 years do not have to pay additional capital gains taxes on earnings from Opportunity Zone investments. J U LY / A U G U S T 2 0 1 8

HAPPENINGS from page 5

Communities nominated for federal Opportunity Zones include: Berlin; Claremont; Colebrook, Atkinson and Gilmanton Grant; Conway/North Conway: Derry; Dixville Notch, Columbia, Millsfield, Errol, Dummer, Milan, Cambridge, Success, Erving and Wentworth’s Location, Second College Grant; Dover; Durham; Franklin; Keene; Laconia; Lancaster, Kilkenny; Lincoln, Easton, Waterville Valley, Livermore; Littleton; Manchester; Nashua; Newport; Plymouth; Raymond; Rochester; Seabrook; Somersworth; and Stratford, Groveton (Northumberland), Stark, Odell For more information as it becomes available, go to New Hampshire Economic Development website at www.nheconomy.com.

Town of Enfield Embarks on New Strategic Direction The Town of Enfield has embarked on a comprehensive process to create strategic plans for all its departments and to integrate them with an updated master plan and capital improvements plan. Collectively, this effort will serve as a roadmap for ongoing enhance6

ments to municipal services and overall community development. Enfield’s eight operating departments will complete 10 work activities that will help them to understand their past, envision the future, and manage the present. This work will result in multiyear strategic departmental plans with measurable outcomes along with the strategic initiatives and investments needed to achieve those outcomes. These plans will enable the Enfield Town Manager, Board of Selectmen, Budget Committee and residents to frame broad priorities and make informed financial tradeoffs by looking at such quality-of-life factors as public safety, infrastructure, emergency services, town character, housing, business development, financial health, recreation, environmental quality, etc. Plans will be refreshed annually to reflect real-world changes and to ensure that desired citizen-focused outcomes are being achieved. Enfield is partnering with the AmherstNH-based Center for Strategic Governance, LLC. (www.strat-gov.com) for this initiative. “The role of strategic governance is to help leaders and citizens create a desired future,” explained Center Director Mike Akillian. “It consists of two ongoing efforts: strategic thinking and operational governance. Strategic thinking helps the community decide what to achieve, and operational governance focuses on how to achieve it. Together they constitute applied leadership for municipalities. “

US EPA Issues New Permit for Stormwater Management Efforts In May, the U.S. Environmental Protection Agency (EPA) announced a major step forward for New Hampshire’s water quality with improved stormwater management requirements as well as an array of training and implementa-

NEW HAMPSHIRE TOWN AND CITY

tion tools to assist municipalities with implementation. The new permit (which EPA issued in 2017 but has not yet taken effect) will update stormwater management efforts across the state’s urbanized areas that will better protect rivers, streams, ponds, lakes, and wetlands from harmful pollutants in many communities. While updating ecological protection, the permit also maximizes flexibility for individual municipalities to tailor their efforts to individual needs and local conditions. Stormwater is the leading cause of impaired water quality in New Hampshire and carries a wide range of pollutants to the state’s waterways, including bacteria and viruses that close beaches and shellfish beds; toxic metals; and excessive phosphorus and nitrogen that can stimulate algae blooms in New Hampshire’s ponds, lakes, rivers, and coastal waters. In addition to water quality impacts, changing rain patterns have increased the volume of stormwater that small “Municipal Separate Storm Sewer Systems” (MS4s) must handle, leading to increased flooding risk throughout New Hampshire. To address these problems, EPA has issued an updated permit that will help clean up New Hampshire waters and alleviate flooding by improving stormwater management in municipalities. USEPA has worked closely with NHDES to conduct training and outreach to help municipalities get ready for the new permit. Topics have included permit overview presentations, Notice of Intent preparations, town meeting attendance and GPS training. In addition to the training provided, EPA has also produced tools to assist municipalities in implementing the permit requirements, such as a stormwater management plan template, templates for illicit discharge procedures, and examples of ordinances. www.nhmunicipal.org

The permit will go into effect on July 1 and the first submittal for municipalities will be the Notice of Intent for coverage under the permit, which will be due 90 days later. The following New Hampshire municipalities are covered under the permit: Allenstown* Amherst Atkinson Auburn Bedford Danville Derry Dover Durham Exeter Goffstown Greenland Hampstead Hampton Hollis Hooksett Hudson Kingston Litchfield Londonderry Manchester Merrimack Milford Milton Nashua New Castle Newmarket* Newton North Hampton Pelham Pembroke* Plaistow Portsmouth Raymond* Rochester Rollinsford Rye Salem Sandown Seabrook Somersworth Stratham* Wilton* Windham * Community not previously subject to 2003 MS4 permit www.nhmunicipal.org

For more information regarding the updated MS4 Permit for New Hampshire communities and extensive background materials: https://www.epa.gov/ npdes-permits/new-hampshire-smallms4-general-permit.

edition, Knowing the Territory: A Survey of Municipal Law for New Hampshire Local Officials with supplement.

From left to right, workshop presenters James Kennedy standing, Gilles Bissonnette (middle) and Walter Mitchell (far right) engage with members on issues related to local elections.

NHMA members introduce themselves at the Local Officials Workshop held at Newington Town Offices on May 8th.

Nearly 200 Members Attend Local Official Workshops this Spring NHMA’s 2018 Local Officials Workshops trained 197 local officials, many of them in their first year of service of which most were new selectmen. Legal services attorneys presented at six Local Officials Workshops during the months of April, May, and June at locations in Peterborough, Grantham, Sugar Hill, Moultonborough, Newington and Concord. These sessions were free and open to all local officials but designed to educate newly elected and appointed officials and staff, covering the Rightto-Know Law, dealing with conflicts, town governance, liability, and other municipal issues. Participants received a complimentary copy of NHMA’s 2017

Members Receive Informative Update on First Amendment and Election Laws Recent events have caused all those involved in local government to focus on the conduct and control of local elections, particularly as to the authority for postponing them. That controversy, though, is but a part of an array of concerns that have arisen over the duties and authority of local government with respect to elections. The room was packed to hear presenters James Kennedy, Concord City Solicitor; Gilles Bissonnette, Legal Director of the ACLU of New Hampshire; and Walter Mitchell of Mitchell Municipal Group of Laconia tackle some of the more difficult issues related to local elections, including political advertising, electioneering, the use of governmental websites, governmental speech, and control of areas within or near the polling place.

Sharing Ideas: Shaping the Future 2018 ANNUAL CONFERENCE Wednesday and Thursday, November 14 & 15, 2018 Manchester Hotel, Manchester J U LY / A U G U S T 2 0 1 8

Manchester $2,208,724 Nashua $1,268,541 Portsmouth $815,926 Somersworth $330,029

HAPPENINGS from page 7

Feds Distribute Nearly $8 million for Housing Authority Improvements in New Hampshire Recently the U.S. Department of Housing and Urban Development (HUD) allocated $7,955,679 to New Hampshire housing authorities to build, repair, renovate and/or modernize public housing properties in their communities. Hereâ&#x20AC;&#x2122;s the distribution breakdown by housing authority:

Wish Youâ&#x20AC;&#x2122;d Write Interested in writing for New Hampshire Town and City? NHMA is eager to

spotlight members who would like to write on topics of interest to our membership. If youâ&#x20AC;&#x2122;d like to lend your expertise on a topic, write about your experience as a municipal official or employee, or spotlight something in your city or town, please contact Timothy Fortier at 603.226.1305 or tfortier@ nhmunicipal.org.

Berlin $94,569 Claremont $169,140 Concord $540,472 Dover $990,093 Exeter $206,709 Rochester $441,282 Newmarket $106,646 Salem $278,893 Laconia $194,550 Lebanon $310,105

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0XQLFLSDO /DZ /HFWXUH 6HULHV Planning Board Procedural Basics How to Read a Survey Plan Solar Power & Land Use *Agenda and registration information will be available in July.

NEW HAMPSHIRE TOWN AND CITY

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Upcoming

Events

For more information or to register for an event, visit our online Calendar of Events at www.nhmunicipal.org. If you have any questions, please contact us at nhmaregistrations@nhmunicipal.org or 800.852.3358, ext. 3350.

JULY Independence Day (NHMA Offices Closed) Wednesday, July 4 Webinar: How to Handle Voluminous Records Requests 12:00 noon – 1:00 pm Wednesday, July 25

AUGUST Webinar: Preventing Invasive Species in Your Local Waterbodies 12:00 noon – 1:00 pm Wednesday, August 22 UNH T2 Workshop: Budgeting for Public Works Tuesday, August 21, 2018 8:30 am – 2:30 pm NHMA Offices, 25 Triangle Park Drive, Concord UNH T2 Workshop: A Hard Road to Travel Thursday, August 30, 2018 8:30 am – 2:30 pm NHMA Offices, 25 Triangle Park Drive, Concord

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regnancy discrimination is a violation of both state and federal law. The Federal Pregnancy Discrimination Act was enacted in 1978, finding that discrimination on the basis of pregnancy constitutes illegal sex discrimination in violation of Title VII of the Civil Rights Act. Likewise, New Hampshire’s anti-discrimination law, RSA 354-A:7, VI(a), provides that the word “sex” includes pregnancy and medical conditions which result from pregnancy. An employer may not terminate an employee because she is pregnant.1 An employer also may not refuse to hire a female applicant because she is pregnant. Pregnant women also must be permitted to work as long as they choose to do so prior to having their baby. In other words, an employer cannot tell a pregnant employee that she must begin her maternity leave by a certain date.

How To Bring A Legal Claim for Pregnancy Discrimination If a woman believes she has been discriminated against in New Hampshire on the basis of her pregnancy, her first course of action should be to bring an administrative charge at the New Hampshire Commission for Human Rights (“NHCHR”). The NHCHR is the administrative agency that handles employment discrimination cases in New Hampshire under a work-sharing agreement with the federal Equal Employment Opportunity Commission (“EEOC”). An employee must bring her claim at the NHCHR within 180 days after the alleged act of discrimination. RSA 354-A:21, III. The NHCHR will do a “dual filing” of an employee’s charge of pregnancy discrimination so that the claim is filed both under state and federal law (Title VII).2 After the employee’s charge is filed with the NHCHR, the employer will be required to file a response to the charge, under oath. If the employee’s charge remains at the NHCHR, the NHCHR will assign an investigator to investigate the charge. The investigation may include meeting with witnesses for the employee and the employer, and collecting documents from both parties. At the conclusion of the NHCHR’s investigation, the agency will issue either a “probable cause” finding, or a “no probable cause” finding. RSA 354-A:21, II(a). If a probable cause finding is issued, the NHCHR shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.3 RSA 354-A:21, II(a). If a no probable cause finding is issued, then the employee’s charge shall be dismissed, subject to a right of appeal to the superior court. RSA 354-A:21, II(a). If the discrimination is not resolved following the probable cause finding, then the NHCHR will hold a hearing before a panel of three commissioners of the NHCHR and issue a decision and www.nhmunicipal.org

award damages to a prevailing employee (where appropriate) after the hearing. RSA 354-A:21, II(b)-(d).

Filing Suit in Superior Court or Federal District Court An employee who has filed a charge of pregnancy discrimination at the NHCHR can remove her claim from the NHCHR, after it has been pending at the Commission for a period of 180 days, and file a lawsuit either in a state superior court or the federal district court in Concord, New Hampshire (U.S. District Court for the District of New Hampshire). RSA 354-A:21-a.4 Once a suit is in court, the NHCHR will discontinue its investigation (if any). An employee who files a lawsuit in Court will then be entitled to a jury trial in state or federal court. The damages described below are available to an employee who has taken her case out of the NHCHR and filed in Court.

Damages Available for Pregnancy Discrimination If an employer is found to have discriminated against an employee on the basis of her pregnancy and, in particular, has terminated an employee because of her pregnancy, then under Title VII,5 the employee may recover her lost wages and benefits (“back pay”) and future lost wages and benefits (“front pay”),6 compensatory damages,7 punitive damages,8 and attorneys’ fees and costs. If an employer is found to have terminated an employee because of her pregnancy in violation of New Hampshire’s state anti-discrimination statute, RSA 354-A, then the employee may recover her lost wages and benefits (“back pay”) and future lost wages and benefits (“front pay”), compensatory damages, enhanced compensatory damages,9 and attorneys’ fees and costs.

Pregnancy Discrimination Cases There have been several recent cases of pregnancy discrimination in New Hampshire. The case of Heather A. Taylor v. eCoast Sales Solutions, Ltd., 35 F. Supp. 3d 195 (D.N.H. 2014) was decided by the U.S. District Court for the District of New Hampshire. In that case, the plaintiff worked from home during her pregnancy (based upon doctor’s orders), and then took a maternity leave. While she was working from home, her boss told her that “she needed to be back in the office and [she] shouldn’t be out on leave and working from home due to [her] pregnancy.” Ten days after Ms. Taylor returned from maternity leave, the same boss who had made that statement terminated her. At the close of the discovery phase of the case, the employer moved for summary judgment, seeking to preclude the plainJ U LY / A U G U S T 2 0 1 8

PROTECTIONS from page 11 tiff’s case from proceeding to a jury trial. The Court denied the employer’s motion for summary judgment, holding that there were issues of material fact in dispute as to whether the plaintiff’s working from home and taking leave due to her pregnancy played an impermissible role in the employer’s decision to fire her. In this case, the employer had claimed that its real reason for terminating the plaintiff was that it had learned that the plaintiff engaged in misconduct after she returned from her maternity leave. In denying the employer’s motion for summary judgment in this case, the Court cited to the First Circuit Court of Appeals decision in Travers v. Flight Servs. & Sys. Inc., 737 F.3d 144 (1st Cir. 2013). In its decision, the Court emphasized the fact that the plaintiff was terminated ten days after she returned from her maternity leave. In addition, the Court emphasized the fact that during the ten days between plaintiff ’s return to work and her termination, for the first time since she began her employment with eCoast, she was not given any sales goals or quotas, despite the fact that she had asked her supervisor for them. Finally, the Court noted in its decision denying summary judgment that the company’s CEO (eCoast had stated in discovery that the CEO was the person who made the decision to terminate the plaintiff ) had told the vice president of human resources that he did not like people working from home.

Leave Protections Both federal and state law also contain leave protections related to pregnancy.

New Hampshire RSA 354A:7, VI(b) RSA 354-A:7, VI(b) provides that: An employer shall permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by her employer unless business necessity makes this impossible or unreasonable.10 Case law which has developed shows that an employer in New Hampshire has an uphill battle if it wants to try to show that business necessity made it impossible or unreasonable to return a woman to her position following her maternity leave. It is particularly important for employers to remember the provisions of RSA 354-A, VI(b). Many employers think that 12 weeks is the absolute cap on maternity leave, given the provisions of the federal Family and Medical Leave Act of 1993. However, RSA 354-A:7, VI(b) has no cap on the number of weeks an employee can take off, so long as the leave of absence is for “…the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.” If an employer violates RSA 354-A:7, VII(b), then an employee can bring a charge of pregnancy discrimination (and, ultimately, a lawsuit, as well), as described herein.

The Family and Medical Leave Act of 1993 The Family and Medical Leave Act of 1993 (“FMLA”) provides additional protections to pregnant employees. However, not all employees are eligible for leave under the FMLA. In order

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for an employee to take FMLA leave, she needs to work for an employer that employs 50 or more employees (within a 75-mile radius of her worksite) during 20 or more workweeks in the current or preceding calendar year. 29 C.F.R. §825.104.11 She also needs to have been employed by the employer for one year prior to the leave, and has to have worked 1,250 hours in the year immediately prior to the start of the employee’s leave. 29 C.F.R. §825.110(c)(1).12 If a pregnant employee is an eligible employee under the FMLA, then she may take up to 12 weeks of unpaid leave in the case of the birth of a child. It is possible that an employer may have insurance policies (such as short term disability) that may provide payments to an employee prior to or during her maternity leave; however, under the FMLA, the employee’s time off may be unpaid (but with continuing health insurance benefits, if applicable). If a husband and wife both work for the same employer, the spouses are permitted a combined total of 12 weeks for the birth of their child. 29 C.F.R. §825.120. This rule does not apply, however, in the following circumstances: (a) the leave is for the mother’s pregnancy-related disability; (b) the leave is for the father to care for the mother; and/or (c) if the leave is for either parent to care for a seriously ill baby. 29 C.F.R. §825.120(3-6). It is also noteworthy that a pregnant woman may be able to take FMLA leave time prior to the birth of her baby if she has a serious medical condition associated with her pregnancy, or requires pre-natal care. For example, a pregnant woman can take FMLA leave time for morning sickness (even if she does not see a doctor). 29 C.F.R. §825.115(f ). The FMLA has an important reinstatement provision. When an emwww.nhmunicipal.org

ployee (father or mother) returns from FMLA leave, he/she must be reinstated to the position he/she held when the leave commenced or an “equivalent position.” That position must be “virtually identical to the original position.” The term “virtually identical” means the same pay, benefits, duties, responsibilities, privileges, status, shift, overtime opportunities, and geographically proximate worksite. 29 C.F.R. §§ 825.214 and 825.215.

FMLA, and the fact that one, two, or all of those laws may be applicable to a particular employee, employees and employers should obtain legal advice from a competent employment attorney whenever there are questions about a pregnancy or an issue related to an employee’s pregnancy-related leave of absence. Since women are an integral part every employer’s workforce, and women will continue to bear children, and require leave time

Legal Claims for Alleged Violation of the FMLA

ENDNOTES

Employers are prohibited from discriminating against an employee for asserting FMLA rights, filing charges, or testifying in a matter related to the FMLA. 29 C.F.R. §825.220.

related to their pregnancies and childbirth, employers are well-advised to comply with applicable laws in order to avoid legal claims, but more importantly, to retain valuable women within their workforce. Heather M. Burns in an attorney with Upton & Hatfield, LLP, based in Concord. Heather may be reached by phone at 603.224.7791 or by email at hburns@ uptonhatfield.com.

State law applies to employers with six or more employees; federal law applies to employers with 15 or more employees.

The filing under federal law may be made so long as the employee was employed by an employer employing 15 or more employees.

After a probable cause finding is issued, an employer may remove the charge to the superior court for trial. RSA 354-A:21-a, I.

Employers cannot interfere with an employee’s FMLA leave, and cannot use FMLA leave as a negative factor in employment decisions. 29 C.F.R. §825.220(b). An employee who believes her employer has violated the FMLA may either file a complaint with the U.S. Department of Labor or file a private lawsuit.13 29 U.S.C. §2617.

If the employee files her suit in a state superior court, and also alleges a violation of the federal statute, Title VII, then the employer may remove the suit to the U.S. District Court for the District of New Hampshire.

For an employee to have a claim under Title VII, she has to have worked for an employer who has employed more than 15 employees for 20 or more calendar weeks in the current or preceding calendar year. (42 U.S.C. §2000e-3(b)).

“Back pay” covers the period of time from the employee’s termination to the date of the verdict at trial. “Front pay” is a remedy designed to restore the employee to her rightful place. It compensates the employee for future losses anticipated to be incurred because the plaintiff cannot be placed in the lost position. It is available when reinstatement, immediate hiring, or promotion is inappropriate or impossible. Front pay may be awarded until the employee obtains an equivalent position in the job market paying comparable earnings. (42 U.S.C. §2000e-5(g)).

Compensatory damages are available for “future pecuniary losses, emotional pain, suffering, and inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.” §1977A(b) (3) of the Revised Statutes as added by Civil Rights Act of 1991 §102.

Damages Available for Violation of the FMLA

If an employer is found to have violated the FMLA, the employee is entitled to: (1) the amount of any compensation she was denied or lost because of the violation; (2) interest on that amount; (3) as “liquidated damages,” a doubling of her lost compensation plus interest; and (4) attorneys’ fees and costs. 29 U.S.C. §2617(a)(1), and (3).

Conclusion It is important for both employees and employers to understand their rights and responsibilities regarding pregnancy and pregnancy-related leaves of absence. Given the interplay among Title VII, RSA 354-A, and the www.nhmunicipal.org

Punitive damages are available when acts of discrimination were carried out with “malice or reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. §1981a(b)(1). There are federal caps on the sum of compensatory and punitive damages, depending upon the size of the employer. For an employer that employees up to 100 employees, the cap is $50,000; for an employer that employs between 101 and 200 employees, the cap is $100,000; for an employer that employs between 201 and 500 employees, the cap is $200,000; and for an employer that employs 500 or more employees, the cap is $300,000. Enhanced compensatory damages may be awarded when the Court finds the employer’s discriminatory conduct to have been taken with willful or reckless disregard of the employee’s rights under RSA 354-A, (RSA 354-A:21-a(I)).

The leave may be unpaid unless the employer’s policies provides for paid family/maternity leave or unless the employer allows others with temporary disabilities to use paid benefits such as sick and/ or vacation time. RSA 354-A:7, VI(c). 11

Public employers are covered by the FMLA, regardless of the number of employees. However, an employee must still be employed by public employer that employs 50 or more employees within a 75-mile radius in order to be eligible to take leave. 12

An employee’s time in the military counts toward the 1,250 hours. 29 C.F.R. §825.110(c)(2) and 825.702(g). 13

For an FMLA claim, there is no requirement that an employee first bring that claim to an administrative agency like the NHCHR or the EEOC. A claim for violation of the FMLA can be brought directly in Court. J U LY / A U G U S T 2 0 1 8

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The Americans with Disabilities Act (ADA) and People with Disabilities in New Hampshire By Oce Harrison Ed.D.

Introduction

n 1990, the civil rights law, the Americans with Disabilities Act (ADA) was passed to ensure that people with disabilities could enjoy the same rights and opportunities as everyone else. Shortly after the ADA was passed, Congress asked, “How will people understand this complex law?” The answer was to create 10 ADA Centers regionally located throughout the United States, to explain the law to the public. When you call the New England ADA Center at 1-800-949-4232, a live human being answers your ADA question confidentially and anonymously. The ADA Centers provide information, guidance and training on the ADA to individuals, government and businesses at the state, regional and national levels.

Who has rights under the ADA? You May be Surprised Twenty-eight years after the passage of the ADA, the nature and prevalence rate of people with disabilities have dramatically changed. Today, the ADA protects people with: diabetes, cancer, bi-polar and other impairments such as addiction to alcohol, and people in recovery from substance use and opioid use disorder. The definition of disability under the ADA is very broad and most people are unaware of their civil rights under the ADA. Definition of Disability under the ADA is: a physical or mental impairment that substantially limits one or more major life activities (current); a record of such impairment; (past) or; being regarded as having such an impairment.

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A person must meet only one part of the definition to be considered a person with a disability under the ADA.

Baby Boomers with Disabilities in New Hampshire The changing nature and prevalence of people with disabilities is partly due to the predominance of baby boomers, especially found in New England and in New Hampshire (NH). With a population of 1.3 million people, NH is tied with Maine as the oldest state in the U.S. with a median age of 42.7 years—4.5 years older than the median age for the United States (37.2 years). New Hampshire is also 2.8 years older than the median age for New England (39.9). There is evidence that the incidence of disabilities increases with age. In NH, baby boomers (ages 52-70) make up 31% of the state’s population while people 65 and older comprise 13.5% of the state’s population. It is estimated that in general, 26% of adults in New Hampshire have a disability, while baby boomer disability prevalence is between 21% and 31%, rising with age. Keep in mind this data is based on people self-reporting a functional limitation on a survey from US Census’ American Community survey (U.S. Census Bureau, 2010-2014).

Cities and Towns Have Obligations under the ADA Access to civic life by people with disabilities is a fundamental goal of the Americans with Disabilities Act. State and local governments have obligations under Title II of the ADA to provide people with disabilities an equal opportunity to participate in all services, programs and activities. Twenty-eight years after the passage of the ADA, there J U LY / A U G U S T 2 0 1 8

DISABILITIES from page 15 has been important progress. But the vision of ‘maximum community participation’ is far from met. Cash strapped cities and towns have many challenges to implementing the ADA. To make it easier for State and Local Governments to understand their responsibilities under Title II of the ADA, the New England ADA Center created free on-line tools for municipalities. These tools explain the ADA in plain language and guide municipalities through a process of compliance: ADA Action Guide for State and Local Governments (www. ADAActionGuide.org), and the ADA Checklist for Existing Facilities (www.ADAChecklist.org).

ly Cities movement’s commitment to actively work toward making municipalities a welcoming community for all ages and abilities. It is interesting to note that people with mental health disabilities rank higher (13%), while people using wheelchairs are the lowest percentage of people with disabilities in New Hampshire (1.3%).

This next chart shows types of disabilities by age in Manchester.

A Survey to Identify Challenges to Implementing the ADA in Cities and Towns in New Hampshire and Innovative Solutions To help us understand the challenges to implementing the ADA, a five minute digital survey was sent to cities and towns across New England in June. With your help the New England ADA Center would like to know more about your experiences with the ADA for us to develop ways to make ADA implementation easier.

People with Disabilities Living in Manchester Manchester is the most populated city in New Hampshire with 26% of its population self-reporting a disability (see chart). The data is intended to help inform and educate local officials about the state of disability in their jurisdictions. Leadership can then make decisions to actively work toward creating an accessible community for the people who live in their community. Also, the implementation of the ADA lays the foundation for the Age Friend16

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For people with disabilities, community participation is a critical aspect of continued health and especially for baby boomers as they age. It becomes important to understand the rights afforded to people who experience disabilities to access their communities; and responsibilities of governments to implement the ADA to afford those rights. To learn more about rights and responsibilities under the ADA, contact the New England ADA Center at 1-800-949-4232, or us ADAinfo@ NewEnglandADA.org, or visit www. NewEnglandADA.org.

About The New England ADA Center The New England ADA Center is one of 10 ADA Centers regionally located across the US comprising the ADA National Network. Since 1991, the ADA National Network has provided information, guidance and training on the Americans with Disabilities Act (ADA), tailored to meet the needs of individuals, businesses and government. We explain rights and responsibilities under the ADA via a toll-free (1-800-949-4232). We promote voluntary compliance of the ADA and do not enforce the law, we are educators. The Center subcontracts with an organization in each New England state. In New Hampshire, the ADA Center’s State Affiliate is the New

Hampshire Governor’s Commission on Disability.

Glossary of Terms: American Community Survey

The New England ADA Center is grant funded by US Health and Human Services through the Admiration for Community Living and National Institute on Disability, Independent Living, and Rehabilitation Research. Grant #90DP0087.

Mental Disability: Has a mental, emotional, or neurological condition that impairs functioning. Includes Alzheimer’s disease, intellectual disabilities, autism, cerebral palsy, learning disabilities, trouble with anxiety, concentrating, coping with stress, and getting along with others.

About the Institute for Human Centered Design (IHCD)

Upper body limitations: Has difficulty reaching, lifting, grasping, or pushing/pulling.

The Institute for Human Centered Design (IHCD) is home to the New England ADA Center. IHCD is an international education and design non-profit organization committed to advancing the role of design in expanding opportunity and enhancing experience for people of all ages, abilities and cultures through excellence in design. IHCD works with cities and towns across the United States to develop ADA Self-Assessment and Transition Plans in compliance with Federal standards and state code but also identifying opportunities for inclusive/universal design. We are deep content experts in both accessibility and universal/inclusive design. Call (1-617-695-1225) or visit www. HumanCenteredDesign.org. Oce Harrison is Project Director with IHCD and can be reached at 617.695.1225, x227 or at oharrison@ IHCDesign.org.

Use Canes, crutches, walker: Uses a cane, crutches or walker. Use Wheelchair: Uses a wheelchair, electric scooter, or similar aid for getting around. Significant Disability: Primarily difficulty with at least one task/function such that they cannot perform the task at all. Presence of certain mental conditions also qualifies as a severe disability. Long lasting.

References Brault, MW (2008), Americans with Disabilities: 2010, Current Population Reports P-131, U.S. Census Bureau, Washington, DC. U.S. Census Bureau, 2008 Survey of Income and Program Participation, Public Use Microdata. U.S. Census Bureau, 2010-2014 American Community Survey, Public Use Microdata

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Beyond Parades and Proclamations, Nashua Shows That Supporting Veterans Isn’t Just the Right Thing; It’s the Smart Thing By Elisha Harig-Blaine

wo or three times each year, our attention turns toward our Veterans and the sacrifices they have made for our country. However, beyond remembering and thanking our Veterans on Memorial Day, the 4th of July, and Veterans Day, focusing on Veterans has proven to be an effective way to create meaningful and lasting change. As evidence, in the face of homelessness becoming a seemingly intractable public policy issue, overall Veteran homelessness has dropped by 46 percent since 2010, with the number of Veterans on our streets falling by 50 percent. This progress is the result of planning, dedicated resources, collaboration, and local leadership. In 2010, the U.S. Interagency Council on Homelessness (USICH) released their plan to end homelessness, Opening Doors. For the first time, Opening Doors outlined a strategic approach to addressing homelessness by prioritizing specified subpopulations, starting with Veterans.

Urban Development (HUD) and the U.S. Department of Veterans Affairs (VA), with HUD providing a Housing Choice Voucher (a.k.a. Section 8) for Veterans, and VA providing case management services. In addition to longer-term housing subsidies, like vouchers, VA launched a shorter-term housing subsidy program in 2009, called the Supportive Services for Veteran Families program (SSVF). By 2010, Congress had authorized and appropriated historic levels of funding to support local efforts to end Veteran homelessness. The focused nature and historic levels of federal support were matched in the private sector. Businesses and philanthropies, joined federal partners to accelerate Veteran hiring and fill remaining gaps in services. For example, The Home Depot Foundation, since 2011 has focused on Veterans and built or improved more than 37,000 homes and veteran facilities in nearly 3,800 cities. Earlier this year, the Foun-

Federal officials recognized that an initial focus on Veterans provided numerous advantages. First, Veterans have unique access to services and benefits such as healthcare, education, and employment that are not available to non-Veterans. Beyond access to resources, it was understood that the challenge of homelessness would require the support of public and private partners from all levels. Recognizing the “Sea of Goodwill” that existed for Veterans, federal officials began targeting housing resources to homeless Veterans with the HUD-VA Supportive Housing (HUDVASH) voucher program. The HUD-VASH program is a partnership between the U.S. Department of Housing and www.nhmunicipal.org

Volunteers through the Home Depot Foundation have worked to improve Veteran's lives since 2011.

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VETERANS from page 19 dation announced they had met their commitment of a quarter of a billion dollars for Veteran-related causes two years early. For the first time since the emergence of modern homelessness, communities had the necessary resources to end Veteran homelessness. The challenge was to develop the systems and sustainable structures needed to effectively and efficiently use those resources. To support the development of the community-based systems, federal partners funded numerous technical assistance initiatives to provide guidance. These efforts worked with stakeholders to implement known best practices such as the development of by-name lists of homeless Veterans and the use of common assessment tools to prioritize Veterans for assistance based on need. A final component to the progress on Veteran homelessness has been the active engagement of local elected officials through the Mayors Challenge to End Veteran Homelessness. Led by federal agencies and supported by national organizations, such as the National League of Cities (NLC), the Mayors Challenge is a network of 518 elected officials, including 451 mayors, 62 county and city officials, and five governors who have made a permanent commitment to ensure homelessness is rare, brief, and nonrecurring, beginning with Veterans. Launched in June 2014, the Mayors Challenge has been a mechanism for local elected officials to illustrate their support for ending Veteran homelessness. In addition, the challenge has provided homeless service providers with a platform for engaging public officials around specific actions they can take to help accelerate community efforts to end Veteran homelessness. 20

Notably, it was not until more than a year after the initiation of the Mayors Challenge that federal officials unveiled the definition of what it means to end Veteran homelessness. (Available at www.usich.gov/resoureces/uploads/asset_ library/Vet_Criteria_Benchmarks_V3_ February2017.pdf)

health center, Harbor Homes not only provides access to healthcare, but they have also developed and manage numerous housing sites to help connect these services to individuals and families, in part with the support of private philanthropies such as The Home Depot Foundation.

The groundswell of support for the goal of ending Veteran homelessness, created by their own prioritization of the Veteran subpopulation, created the necessity that federal officials take this historic step. Since 2015, 62 communities in 32 states, including three entire states have announced the effective end of Veteran homelessness.

Since the announcement, the Nashua region has had an average of one Veteran experiencing homelessness at any given time. In January 2018, their Point in Time Count reflected zero unsheltered homeless Veterans and zero homeless Veterans in emergency shelters. In addition, when a Veteran experiencing homelessness is identified, the community has been able to place them into a permanent housing solution in less than 13 days on average.

In March 2017, the City of Nashua became the 44th community to meet the federally defined criteria and benchmarks for effectively ending Veteran homelessness. This does not mean there are no veteran families experiencing homelessness in the region, but that when identified, the systemic response is built to be accessible, responsive and can quickly house those experiencing homelessness. In announcing the accomplishment, Mayor Jim Donchess said, “We have a long tradition of service here in Nashua and we take care of our own. Thanks to the efforts of community partners like Harbor Homes, and with the support of federal, state and local resources, we are able to celebrate this achievement. This challenge is a commitment that we have made and we will keep. It requires vigilance and dedication.” Harbor Homes, Inc. provides low-income, homeless and disabled community members with affordable housing, primary and behavioral health care, employment and job training, and supportive services. Their holistic approach to care has consistently shown better outcomes for clients and the community. As a federally-qualified

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With less than eight percent of our nation’s adult population being a Veteran and an increasing number of our military personnel serving multiple overseas tours as part of our nation’s longest period of continuous conflict, supporting Veterans and their families is not only a matter of patriotism, but also a matter of national security. While the US Department of Veterans Affairs has a large role to play in meeting these needs, they cannot be the only one working to support our Veterans. More and more, communities are seeing the ancillary benefits that come from focusing on Veterans. In the ever-present environment of limited resources, we must illustrate in both words and deeds that we understand the words of President Lincoln and will “care for him who shall have borne the battle and for his widow, and his orphan.” Elisha Harig-Blaine is Manager of Veterans and Special Needs with the National League of Cities. Elisha can be reached by phone at 202.626.3005 or by email at harig-blaine@nlc.org.

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Towns and Cities: “YOU, TOO!” The Impact of the “ME, TOO! Movement” in Municipal Offices By Nancy Richards-Stower, Esq.

Photo credit: Ricia McMahon of North Sutton

n January 2017, the day after the president’s inauguration, millions of women marched in the streets of America, and many hundreds of thousands of them wore pink hats. They marched to demand respect, to end gender discrimination generally, and specifically in the workplace. Despite the smiles, and energy of those marchers, they were angry! From that anger exploded a new determination to take action by speaking out for equal pay, for equal opportunity, and against sex discrimination and sexual harassment in the workplace. For New Hampshire municipal employers, the United States Constitution has an equal protection clause that can be triggered by gender discrimination, despite the lack of an equal rights amendment. Indeed, the New Hampshire state constitution promises equality from all its governmental entities ([Art.] 2 [Natural Rights].... Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.). For municipal employees seeking equality, more useful is the network of federal, state and municipal laws against gender/sex discrimination. The upshot for municipal leaders: pay closer attention, ask questions, and establish a regular routine of reminding your employees that they have legal (and moral) rights to be free of sexual harassment. Since those marches, the “Me,Too” movement erupted from the publicity generated by revelations of the serial sexual assaults of movie mogul Harvey Weinstein. Women all over America related their own sexual harassment experiences - some for the first time, years and even decades after the events. These experiences live on and continue to bring upset and distress and real suffering. I remember listening to a 70-something employee of a grocery store, in my office on an age discrimination matter, tearing up as she recalled

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her produce manager some 30 years earlier slapping her on the butt when she bent over to pick up a fallen head of broccoli. I was the first person she ever told: not her husband, not her best friend, not her children. Why? She had not been told that she had a right to not be slapped on the butt. The “Me, Too” movement has knocked from power the rich and famous: a U.S. Senator, a Senate candidate, several members of Congress, (and probably, soon a governor), along with television celebrities, news anchors, actors, musicians, artists, famous educators and many other previously “important” men. “Me, Too!” became the chant of women world-wide that they had been held back in their careers just because they were women. Their gender had provided all the permission needed by more powerful males, to grope, ogle, and assault. Their gender relegated them to accept a workplace that would place roadblocks between them and jobs and pay worthy of their talents. It is axiomatic that a diverse workplace, where gender bias is minimized, results in better and more production (and in the corporate setting, a bigger bottom line). LGBT-supportive policies (equal treatment for lesbian, gay, bi-sexual, and transgender) similarly result in increased and measurable benefits. Surveys have proven over and over again that a workplace that respects the realities of its workers will thrive; and those looking backwards to the “good old days” set themselves up for disaster (and lawsuits). Admit it: sexual harassment is underreported among your employees. You know it, but there’s so much on your plate, that you are not about to go looking for violations, right? There is no upside to turning up last year’s bad acts, right? J U LY / A U G U S T 2 0 1 8

ME, TOO! from page 21 If there’s no report, there’s no liability right? And, if she doesn’t come forward, you don’t have to do anything, right? Wrong. Dead wrong.

What is Workplace Sexual Harassment? Sexual harassment is unwanted, unwelcomed sexual advances, requests for sexual favors, or other verbal or physical harassment of a sexual nature, which conduct is severe or pervasive. “What? Even jokes?” Yes. Even jokes. “What? Can’t I even compliment her on her outfit?” It depends. “How will I know?” Here’s a good rule: If your mother, spouse and daughter were watching you right now on a closedcircuit television, would you do it or say it - including with your gestures and tone of voice? No? Then don’t do it or say it. Period. End of story. Statistics should shock: Even before the news reports that Harvey Weinstein sexually harassed and assaulted a long list of actresses over decades, a summer 2017 Pew Research survey found that 42% of women said they had experienced some kind of gender discrimination (which includes sexual harassment) at work. 42%! Almost half. An October 2017 ABC/Washington Post survey found that 33% of all American women suffered sexual harassment at work, and that 85% of those victims remained angry about it. In the financial industry, 62% of all survey respondents said they witnessed or were the victims of sexual harassment, according to a WealthManagement.com survey. Warning: those who witness the sexual harassment of another also can have the same legal claims against the employer as those who were the direct target. That’s a lot of liability, and there is no reason for you to assume that your workplace is any different.

Practice Pointer: You cannot continue to ignore Highway Department Charlie’s crude comments when he comes into the office for his paycheck. A “that’s just Charlie” response will create stress for your workers and liability for your taxpayers. The “Me, too!” movement is transforming the workplace and has catapulted human resource directors and support staff into increased importance, for they exist at the fulcrum of past and future workforce conduct. Practice Pointer: If your top official annually distributes two copies of your sexual harassment policy, one to remain with the employee, the other to be signed and dated and filed in the personnel file, you are sending a clear, provable message that sexual harassment will not be tolerated. The annual notice should include your municipality’s specific steps for reporting the harassment, the anticipated steps after you receive a report and should provide your employees the contact information for the N.H. Commission for Human Rights and the Equal Employment Opportunity Commission, the deadlines for filing at each, how to count dates to meet the deadline, along with a clear statement that retaliation for reports will not be tolerated and is itself illegal and yields the same remedies as the underlying discrimination claims. Wait! Won’t that foment new charges of sexual harassment made to our human resources department? You should hope so! Why? Because then you can deal with and stop the behavior before it further disrupts your workplace and before liability occurs (and, if liability already has been triggered, then before the damages skyrocket). Harassers will be reminded annually of what will happen if they continue to harass. As importantly, your employees will be empowered to reject the harassment before they are

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further harmed and damages are incurred. Under New Hampshire law, both the employer and the harasser are jointly and severally liable for retaliation and actions deemed to interfere with an employee’s filing charges of harassment. Make this clear: retaliate against anyone who reports harassment at the retaliator’s own financial risk. On a cost/benefit analysis, legal and moral: stop the harassment before it starts, protect those who report harassment. Make it clear that sexual harassment is no joke. Embrace the opportunities for the increased worker production and workplace satisfaction that all studies show results from clarity of policy. Make it clear, and make it clear often, that work is for work, that equality of opportunity is the spine of your workplace, and that whatever prejudices are carried into the workplace by your employees, cannot be manifested in conduct. You need not be reminded that sexual harassment litigation against a municipality brings public attention and disruption of the workplace dynamics. (I will share that over my four decades of employee representation, the only front page newspaper articles my lawsuits have yielded --and I do not seek the publicity-- have been sexual harassment claims.) Also keep in mind that New Hampshire juries award large damages in employment discrimination cases, and that is why most municipal sexual harassment claims are settled. Depending on the deductible of a city or town’s insurance policy (if there is an employment policy), the financial hit on the local government for bad management of sexual harassment can be significant, and the “Me,Too!” movement has not only empowered your employees, but the female jurors you will face at trial. Before the “Me, Too!” movement, there was much more angst about the www.nhmunicipal.org

public nature of lawsuits. Not so much, today. In fact, a public announcement of an employee rejecting and reporting sexually harassing conduct along with a corresponding demand for compensation is the new normal.

Recent Changes To NonDisclosure/Confidentiality Provisions in Sexual Harassment Settlement Agreements Publicity can encourage other victims to come forward, which is one reason why confidentiality provisions were routinely inserted into the sexual harassment settlement agreements negotiated by town counsel. But no longer! Why? Because the “Tax Cuts and Job Act of 2017” wiped out all employer deductions for payments paid to settle sexual harassment cases and the attorney fees incurred, when the settlement agreement carries a non-disclosure agreement (NDA’s). What, you don’t have to worry about deductions because municipalities don’t pay income taxes? It’s not always about the employer: your employees pay those taxes, and because the law was poorly written, it snags attorney fee deductions of employees whose counsel fees are awardable in discrimination cases, and are thus often included in settlement agreements Thus, the employee-attorney fee deductions that had enjoyed an “above-the-line deduction status” in 2004, have also been zapped by the 2017 tax act, so no mindful employee will agree to non-disclosure provisions in her settlement agreement (whether or not they are enforceable in light of New Hampshire’s Right To Know statute, RSA 91A) until or unless the new tax law is amended or the IRS issues a guidance limiting the penalty to the employers).

What if, for example, during a layoff, you provide a departing employee with a severance payment along with a simple form severance agreement with a universal release that contains a nondisclosure provision? Unless it specifically exempts sexual harassment-related claims from the release: the employee seeking to deduct any attorney fees that she incurred as the result of her layoff would be well-advised to require an amended severance agreement.

Sexual Harassment is LifeChanging for the Victim I know. I get the employee calls and have gotten these calls for over four decades. They are disturbingly similar, despite the passage of time, except that now I get calls much earlier, and mostly while the victims are still employed. Women are still asked to sleep with their bosses; they continue to slink away from a boss’s “lean-in” at the office copier, and from his hands on her shoulders as he towers above her chair, where she sits, frozen, at her computer. Women continue to attend business meetings and hear corridor conversations replete with sexist comments. BUT NOW, they are less hesitant to reject the harassment, less hesitant to report it and less hesitant to demand that it end. And that is good, for which one of you municipal leaders dreamed of protecting sexual harassers as a career choice? The one constant over my decades advocating for work-

place equality is the penchant of too many supervisors to underestimate the importance and impact of sexual harassment; and an almost knee-jerk response to minimize the conduct, implying the victim is overreacting: “He said he didn’t touch her; he didn’t say anything. He just looked at her. How can that be sexual harassment?” Well, ask the former town administrator of Grafton, Massachusetts after the First Circuit Court of Appeals ruled that staring (a/k/a “leering”) at a woman’s chest can constitute actionable sexual harassment. “But, later, the town ultimately won the case at trial!” Yes, after years of litigation and $400,000 in attorney fees. Nancy Richards-Stower was inducted into the College of Labor and Employment Law Attorneys in 2003, earlier having served as member and then chair of the N.H. Commission for Human Rights 1979-1985. She has operated her solo employee civil rights law firm in Merrimack, New Hampshire since 1988, and is a member of the bars of New Hampshire, Massachusetts and Virginia. She is the inventor and owner of the on-line settlement service, Trytosettle.com®.

What about non-disparagement paragraphs in settlement agreements? If they muzzle an employee’s truthful statements about the sexual harassment, the tax law will be triggered. www.nhmunicipal.org

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Can You Recognize Retaliation? By Sarah E. Burke Cohen, Esq.

ally works for Bill’s Button Factory in the position of button maker. Her supervisor, David, sexually harasses her. Wanda witnesses David’s sexual harassment of Sally. Sally and Wanda independently report the sexual harassment to Human Resources. Human Resources takes prompt remedial action by suspending David and conducting an investigation. During the investigation, Sally and Wanda are both interviewed. After the investigation, David is terminated. Joe, who is David’s friend, takes David’s place as supervisor to Sally and Wanda. During Sally’s next performance evaluation two weeks after David is terminated, Joe rates Sally’s performance as poor, even though her performance has consistently been above average for the last five years. Joe transfers Wanda to third shift and demotes her to button collector. Was there retaliation covered under employment discrimination laws? The first question is how retaliation is defined under state and federal employment discrimination laws. New Hampshire’s Laws Against Discrimination (NH RSA 354-A) define retaliation as being “an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to discharge, expel, or otherwise retaliate or discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under this chapter.” The Equal Employment Opportunity Commission (“EEOC”) similarly defines retaliation under federal discrimination laws as occurring “when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO (“Equal Employment Opportunity”) laws the Commission enforces.” See EEOC Enforcement Guidance on Re-

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taliation and Related Issues dated August 25, 2016 (“EEOC Enforcement Guidance”). In simpler terms under state and federal law, an employer cannot take materially adverse action against an individual based on the individual’s engagement in a protected activity. But, what is a “protected activity” and “materially adverse action”? Under state and federal law, an activity is considered “protected” if it is in furtherance of the EEOC laws and/or NH RSA 354-A. Participation as a witness and/or complainant in internal or external investigations of employment discrimination is considered a “protected activity.” It can also include opposing discriminatory practices in the workplace such as sexual harassment or assignment of tasks based on a protected class such as race and/or national origin. Likewise, an employee’s inquiry made in an attempt to determine if wages are discriminatory (i.e. male workers get a higher salary than female workers) is a protected activity. As is an employee’s request for an accommodation for either a disability or religious practice. The protected activity must be based on employee’s reasonable belief that a discriminatory action is or could occur. See EEOC Enforcement Guidance. For example, if an employee is a witness in an EEOC investigation into discriminatory practices at a company, the mere act of serving as a witness is considered a protected activity. As another example, if a female employee requests salary information from a manager because she has a reasonable belief her male counterparts are receiving a higher salary, the request for information is considered a protected activity. A materially adverse action, according to the United States Supreme Court, is something that “might well deter a reasonable employee from complaining about discrimination.” J U LY / A U G U S T 2 0 1 8

RETALIATION from page 25 See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). In its guidance on retaliation, the EEOC asserts the most obvious type of materially adverse actions are “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge.” See EEOC Enforcement Guidance. In addition, materially adverse actions can be less obvious such as increased scrutiny, discipline, transfer to a less desirable position or a lower performance evaluation. Generally, the materially adverse action needs to occur so close in time to the protected activity that a retaliatory motivation may be inferred. Id. Likewise, materially adverse actions can also include harassment, intimidation, abuse, threats or reports to authorities. Id. For example, if a first shift employee requests a reasonable accommodation for a disability, it may be a materially adverse action if a supervisor transfers the employee to the less desirable third shift within days of the accommodation request. Now that we have defined retaliation and its terms under state and federal employment discrimination law, the next question is, whom does the law protect? It protects applicants, current employees, and former employees (applicants/employees include full-time, part-time, seasonal and/or temporary) of employers covered by state and/ or federal employment discrimination law. See EEOC Enforcement Guidance. This means an employer cannot refuse to hire an applicant merely because the applicant has assisted with or is a complainant in an employment discrimination complaint against a former employer. Likewise, an employer cannot give a bad reference to an employee who assisted with or was a complainant in an employment discrimination complaint. For example, an applicant is interviewed for a job. Employer searched the Internet and 26

discovered applicant participated in an employment discrimination complaint against a former employer. It may be retaliatory if the employer declines to hire the applicant based on the employee’s participation in the employment discrimination complaint. Let’s look back at the fact pattern involving Sally and Wanda. Was there retaliation? Sally and Wanda both engaged in a protected activity, specifically, reporting David’s sexual harassment and participating in the subsequent investigation. Two weeks after the outcome of the investigation, Sally is receiving a poor review, in contrast to her general above-average performance, and Wanda is being transferred and demoted. These actions likely would be considered materially adverse actions and retaliatory given the close proximity in time to the protected activity. Most employment discrimination complaints include retaliation as a component. See New Hampshire Commission for Human Rights: Commission Data at www.nh.gov/hrc; See also EEOC Enforcement Guidance. How can an employer avoid retaliation at the workplace? It begins by employers acknowledging that retaliation can occur if an employee engages in a protected activity. To curb the likelihood of an occurrence of retaliation, employers should develop proper policies and procedures

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relative to employment discrimination, which should incorporate an easy to understand policy relative to retaliation. Of course, policies and procedures can only be effective if employees are aware of them. Regular training related to employment discrimination laws and company policies can ensure employees understand the policies and consequences of violating them. This is not to say an employer can never take adverse action against an employee who has engaged in a protected activity. Rather, an employer should be more cognizant about the actions it is taking to ensure decisions are being made based on a legitimate and non-discriminatory reason. Let’s look again at Sally. If Sally’s performance had been consistently poor and Joe’s performance review fell into line with all previous reviews, it likely could not be considered a materially adverse action and retaliatory. The key component for an employer is to document actions against employees to ensure that the legitimate non-discriminatory reasons for the actions are recorded and could be provided as evidence should allegations of retaliation or other employment discrimination be made. Sarah E. Burke Cohen is an attorney and the Assistant Director at the New Hampshire Commission for Human Rights. Sarah may be reached by phone at 603.271.2767 or by email at sarah. burkecohen@nh.gov.

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What You Need to Know About Service Animals By Louise R. McBride

et’s look at the big picture. Pet ownership in U.S. households has reached 85 million families, according to the 2017-18 National Pet Owners Survey, conducted by the American Pet Products Association. That is up from 56 percent of U.S. households since 1988. Broken down further, 60.2 percent of those pets are dogs.

Guide dogs are a type of service animal, used by some individuals who are blind or have poor vision. (See www. education.nh.gov/career/vocational/blind_visu.htm and www. futureinsight.org)

A dog may be a dog—but there’s education involved to speak correctly about a service dog. In fact, according to the Americans with Disabilities Act (ADA), there are differences between a service dog, an emotional support animal, therapy dog, and pet. And it goes from there. (See RSA 167-D:1 for state definitions and 29 CFR parts 35 and 36 for Federal Law).

Comfort or emotional support animals provide aid without performing a specific task or duty. Often times it is said, “My pet gives great service when I’m comforted.” That may be so, but according to the ADA, that kind of assistance is not considered work or task performed by a service animal. A comfort animal under the law is considered a pet and is not afforded the rights of a service animal. The same holds true for therapy dogs. They are great companions and wonderful visitors in a hospital setting or panic-stricken situation to comfort victims of natural disasters. Under the law, however, they are in the category of pets and not service animals.

What is a Service Animal? According to the ADA, by definition, a service animal is a dog that has been trained to provide assistance to an individual living with a disability. The tasks performed by the dog must be directly related to the person’s disability. (See www.ada.gov/service_animals_2010.htm) Service animals specialize in providing some of the work and tasks that individuals with a disability cannot perform on their own. A few examples of the tasks would be: • Alert persons with hearing impairments to sounds. • Halt to signal changes in elevation. • Pull a wheelchair or pickup things for a person with mobility impairments. • Retrieve dropped objects. • Help individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. www.nhmunicipal.org

What about Emotional Support Animals and Therapy Animals

Where are Service Dogs Allowed Under the ADA, businesses and organizations that serve the public must allow people with disabilities to bring their service animals into all areas of the facility where customers are normally allowed to go. This federal law applies to all businesses open to the public, including municipal offices, restaurants, hotels, taxis and shuttles, grocery and department stores, hospitals and medical offices, theaters, health clubs, parks and zoos. In New Hampshire, state law recognizes only dogs as service animals. Here are some things to keep in mind when addressing an individual with a service animal:

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SERVICE ANIMALS from page 27 • A public entity or private business is not responsible for the care and supervision of a service animal. • A public entity or private business shall not ask nor require an individual with a disability to pay a surcharge or deposit even if people accompanied by pets are required to pay such fees. • If a public entity or private business normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

Governor’s Commission on Disability Handles Public Inquiries The Governor’s Commission on Disability (GCD) receives many public inquiries that involve some question or concern regarding service dogs. It’s a topic that impacts the disability community, the business community, builders with accessibility issues, employment and more. Town and city clerks often ask how to proceed in granting exemptions for registration fees and licensing of service animals. (See www.nh.gov/disability)

often blatantly ignores it, as is the situation that has come up frequently and is known as “fake service dogs.” (See RSA 167-D:8, II)

with service dogs through education. Go to www.nh.gov/disability for The Law and Service Animals brochure and other useful information.

According to the ADA, two questions may be asked of an individual with a service animal when it is not obvious what a service dog provides:

Louise R. McBride is the Governor’s Commission on Disability’s Research & Information Specialist. She may be contacted at louise.mcbride@gcd.nh.gov or 603.271-2773.

• Is the dog required because of a disability? • What work or task has the dog been trained to perform? A service dog, remember, is defined by its training. There is no Federal registry nor a government issued certificate or card proving that the animal is a service animal.. The GCD stands ready to partner with groups and organizations seeking to eliminate ignorance and discrimination against individuals

Looking for an employee or a job? NHMA members and municipalities across the country are invited to submit postings to appear on our website. Visit www.nhmunicipal.org for more information or submit your ad by email to classifiedads@nhmunicipal.org.

Identification of a service dog can be a tricky area because the public does not always understand the law or

NEW HAMPSHIRE TOWN AND CITY

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NHMA Policy Committees Finalize Policy Proposals Things are in full swing with over 70 appointed and elected NHMA members participating in this yearâ&#x20AC;&#x2122;s legislative policy process. In the spring before each new legislative biennium, NHMA solicits legislative policy proposals from member municipalities. Three policy committees review these proposals and make recommendations to NHMAâ&#x20AC;&#x2122;s Legislative Policy Conference, held during the fall of the same year. The three policy committees are:

The Finance and Revenue Committee covers, among other things, budgeting, revenue, tax exemptions, current use, assessing, tax collection, retirement issues, and education funding.

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The Infrastructure, Development, and Land Use Committee covers, among other things, solid/ hazardous waste, transportation, land use, environmental regulation, housing, utilities, code enforcement, and economic development.

The General Administration and Governance Committee covers, among other things, elections, Right-to-Know Law matters, labor, town meeting, charters, welfare, and public safety.

NEW HAMPSHIRE TOWN AND CITY

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NHMA’s legislative policies originate with its members and its legislative policy committees. These committees consist of elected and appointed local officials who represent all regions of the state, and all sizes of towns and cities. The Legislative Policy Conference is held in September of even-numbered years at the NHMA offices (25 Triangle Park Drive, Concord). Every NHMA member, regardless of size, is entitled to one vote at the conference. The policy committees have reviewed policy proposals submitted by local officials and affiliate group members, as well as proposals generated by committee members. The committee process allows for in-depth review and discussion of policy suggestions in order that all aspects of the proposal, both positive and negative, are being examined. Each committee may approve two or three “Action Recommendation” items, which would be drafted by staff for introduction in the 2019-2020 session. Each committee may also approve “Priority Recommendations,” which may be developed into legislation depending on staff resources and other factors and Standing Policy Recommendations. The total number of policy recommendations for each committee should not exceed 15. At the Legislative Policy Conference, scheduled for September 14, 2018, each member municipality may cast one vote. All policy recommendations must receive a 2/3 vote of those present and voting to be adopted. The conference will be held at NHMA offices in Concord.

Finance and Revenue Stephen Fournier CH

Town Administrator, Newmarket

Betsy McLain – V CH

Town Clerk/Dir. of Admin. Services, Hanover

Michael Branley

Town Administrator, Swanzey

Scott Bugbee

Selectman, Lee

Michael Capone

Town Administrator, Holderness

Bob Edwards

Selectman, Antrim

Katie Gargano

City Clerk/Tax Collector, Franklin

Lisa Gonyer

Selectman, Newton

Neil Irvine

Infrastructure, Development and Land Use

General Administration & Governance

Shelagh Connelly CH

Selectman, Holderness

Bill Herman - CH

Town Administrator, Auburn

Chris Dwyer – V CH

City Councilor, Portsmouth

Laura Buono – V CH

Town Administrator, Hillsborough

Kurt Blomquist

Public Works Director, Keene

Debra Cornett

Town Clerk/Tax Collector, Gilmanton

Joan Dargie

Town Clerk, Milford

Kelly DearbornLuce

Town Administrator, Epsom

Candance Bouchard

Councilor, Concord

Butch Burbank

Town Manager, Lincoln

Sara Carbonneau

Dir. Planning & Community Dev., Swanzey

Paul Deschaine

Town Administrator, Stratham

Lisa Drabik

Assistant Town Manager, Londonderry

Selectman, New Hampton

Ben Frost, Esq.

Planning Board Chair, Warner

Denise Greig

Welfare Administrator, Deerﬁeld

Dave McMullen

Director of Assessing, Hanover

Laura Gandia

Associate Planner, Londonderry

Chris Herbert

Alderman, Manchester

Assistant Assessor, Hudson

Rick Hiland

Selectmen Chair, Albany

Hal Lynde

Selectman, Pelham

Jim Michaud

City Councilor, Rochester

Jim Maggiore

Med Kopczynski

Dir. Economic Dev., Keene

Selectman, North Hampton

Tyson Miller

Planning Board/ CNHRPC Chair, Canterbury

Sandra Keans Elaine Lauterborn

City Councilor, Rochester

Nancy Marashio

Moderator, Newbury

Jack Sheehy

Dir. of Financial Operations, Milford

Richard Lee

Public Works Dir., New London

Shaun Mulholland

City Manager, Lebanon

Chris Sterndale

Town Administrator, Nottingham

Paula Maville

Deputy City Manager, Lebanon

Dennis Shanahan

City Councilor, Dover

Kathy Temchack

Dir. of Real Estate Assessments, Concord

Tom McCue

Planning Board Chair, Berlin

Judy Strakaliatis

Supervisor of the Checklist, Derry

Pat Tucker

Town Clerk/Tax Collector, Ashland

Jay Minkarah

Exec. Director, Nashua RPC

Swens Swenson

Selectman, New Durham

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2 Right-to-Know Workshops Each $75 and includes breakfast and publication NHMA offices, 25 Triangle Park Drive, Concord The

Right-to-Know Law (RSA Chapter 91-A) affects every aspect of local government in our state. Every board, committee, commission, and advisory committee in every town, city, and village district in New Hampshire must comply with this law, which requires that discussions and actions of these bodies take place in a public meeting, subject to exceptions.

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Join Legal Services Counsel Stephen Buckley and Staff Attorney Margaret Byrnes, who will discuss the requirements for holding a proper public meeting, as well the exceptions to the meeting requirement (the so-called â&#x20AC;&#x153;non-meetingâ&#x20AC;?). Then the attorneys will discuss the purposes for which public bodies may hold a nonpublic session, as well as the procedural requirements for a proper nonpublic session. This workshop will also address difficult â&#x20AC;&#x153;meetingâ&#x20AC;? issues, such as communications outside a meeting and electronic means of communicating. There will be ample time for questions and answers. Who Should Attend?

Everyone in Municipal Government

me vewrn go Know La opreâ&#x20AC;&#x2122;es n Right-toto e shi mp id New Ha gu

Includes Top Ten Compliance Tips Public Meeting & Governmental Records Posters Is it a Meeting Flow Chart Remote Participation Checklist And More!

Join NHMAâ&#x20AC;&#x2122;s Legal Services Counsel Stephen Buckley and Staff Attorney Margaret Byrnes who will share strategies to assist municipalities in handling governmental record matters arising under the Right-to-Know Law. Guidance will be provided on determining what is a governmental record, where records must be stored, and when and how access and copies of public records must be provided. This workshop will also address what records are exempt from disclosure, along with whether a record request that would require a search for multiple documents must be fulfilled or whether a request impermissibly seeks to create a record that does not exist. In addition, guidance will be provided on the retention of governmental records and how claims under the Right-to -Know Law are enforced.

RSA 91-A Impacts Every Aspect of Municipal Government in our State.

For registration information, visit www.nhmunicipal.org under Calendar of EventsÍ&#x2DC; Questions? Call 800.852.3358 or email NHMAregistrations@nhmunicipal.org.

Attendees receive the NHMA publication, A Guide to Open Government: New Hampshire's Right-to-Know Law.

NEW HAMPSHIRE TOWN AND CITY

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The

REPORT

Do Your Job Titles Reflect Your Brand? By Mark T. Broth

e are all somewhat familiar with the concept of “branding.” While it can be defined in different ways, branding generally refers to the attempt to generate an emotional response towards a particular product or business. That emotional response is usually the result of some combination of advertising, marketing, customer service and product quality. It is the consistency of those forms of messaging that build the brand identity. McDonald’s, Apple, and Harley-Davidson are classic examples of businesses who, through consistency of message, service and quality, have created strong brand identities. Consider the current advertising by Subaru, whose branding seeks to elicit the emotion of adventure, and Corona, which seeks to emote a beach vacation in every bottle. Some companies have renamed themselves in an effort to rebrand their product to create a more positive (or to avoid a negative) identity. For example, Phillip Morris rebranded as Altria because of the negative perception of cigarette manufacturers. Branding can also be useful within an organization. By changing the name of an operating division, a business can change both its internal and external perception. Consider the different public perception that may exist for a “Complaint Department” and a “Customer Satisfaction Department,” which seems more likely to be interested in solving a customer’s problems? Now consider the employees working in those departments. Even with essentially the same job description, which seems like the more rewarding job: “Customer Satisfaction Manager” or “Complaint Department Manager”? By branding the job title consistent with the brand of the department and the entire organization, the business can evoke a particular response from its customers, as well as its employees. Other examples include car dealerships, which have rebranded car salespersons as “product specialists” and customers as “guests” in order to bring a different attitude to the car buying experience. There is no reason that these same strategies cannot work in municipal government. The role of local government is to provide essential services to the community in a safe and efficient manner. But many municipal department and job titles are not branded in a way that furthers these values. Some 34

NEW HAMPSHIRE TOWN AND CITY

communities have begun to explore a branding approach by rebranding Public Works Departments as “Community Services Departments” and Welfare Departments as “Human Services” – new titles that are both more user friendly and rewarding for employees. But there are many other opportunities. For example, students relate better to “school resource officers” than to “police officers.” Would a community also relate better to “peace officers” and “emergency responders” than to “police officers” and “firefighters”? Consider public schools. Should the head of a school system have the same job title (Superintendent) as the person who runs a correctional facility or waste water treatment facility? If a school district’s goal is to provide education, then perhaps the head of that organization should be the “Chief Education Officer.” Even without a change in job duties, the change in title could result in positive movement in both external and internal perceptions of the position. (And perhaps the head of a correctional facility should be the “Director of Correctional Services”). Should school principals be “Education Directors”? And by the way, doesn’t “Student Facilities Support Staff ” suggest a more holistic and positive attitude towards building maintenance than “custodian” or “janitor”? Public resentment and distrust of local government is a function of a lack of understanding of the crucial services that government employees provide. Updating titles to more clearly reflect the mission and purpose of local government may be a useful first step towards improving the relationships between local governments and the communities that they serve. Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2018 Drummond Woodsum. These materials may not be reproduced without prior written permission.” www.nhmunicipal.org

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BEST PRACTICES +

New Hampshire Municipal Association

Best Practices Series

PRACTICES

Best Practices for Public Sector Recruitment and Hiring

nder the laws enforced by U.S. Equal Employment Opportunity Commission (EEOC), it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law forbids discrimination in every aspect of employment. The laws enforced by EEOC prohibit an employer from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not jobrelated and necessary to the operation of the business. The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age. 36

Job Advertisements It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, a help-wanted ad that seeks “females” or “recent college graduates” may discourage men and people over 40 from applying and may violate the law.

Recruitment It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer’s reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.

Application & Hiring It is illegal for an employer to dis-

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criminate against a job applicant because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not refuse to give employment applications to people of a certain race. If an employer requires job applicants to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, or individuals with disabilities. In addition, the employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age. If a job applicant with a disability needs an accommodation (such as a sign language interpreter) to apply for a job, the employer is required to provide the accommodation, so long as the accommodation does not cause the employer significant difficulty or expense.

Job Assignments & Promotions It is illegal for an employer to make decisions about job assignments and promotions based on an employee’s race, color, religion, sex (including gender identity, sexual orientation, and www.nhmunicipal.org

pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers. If an employer requires employees to take a test before making decisions about assignments or promotions, the test may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or individuals with disabilities, unless the employer can show that the test is necessary and related to the job. In addition, the employer may not use a test that excludes employees age 40 or older if the test is not based on a reasonable factor other than age.

Pay And Benefits It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the bases of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. Employee benefits include sick and vacation leave, insurance, access to overtime as well as overtime pay, and retirement programs. For example, an employer many not pay Hispanic workers less than African-American workers because of their national origin, and men and women in the same workplace must be given equal pay for equal work. In some situations, an employer may be allowed to reduce some employee benefits for older workers, but only if the cost of providing the reduced benefits is the same as the cost of providing benefits to younger workers.

Discipline & Discharge An employer may not take into account www.nhmunicipal.org

a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about discipline or discharge. For example, if two employees commit a similar offense, an employer many not discipline them differently because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. When deciding which employees will be laid off, an employer may not choose the oldest workers because of their age. Employers also may not discriminate when deciding which workers to recall after a layoff.

Employment References It is illegal for an employer to give a negative or false employment reference (or refuse to give a reference) because of a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

Reasonable Accommodation & Religion The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause difficulty or expense for the employer. This means an employer may have to make reasonable adjustments at work that will allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a co- worker so that he or she can attend religious services.

Training & Apprenticeship Programs It is illegal for a training or apprenticeship program to discriminate on the bases of race, color, religion, sex

(including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not deny training opportunities to African-American employees because of their race. In some situations, an employer may be allowed to set age limits for participation in an apprenticeship program.

Terms & Conditions of Employment The law makes it illegal for an employer to make any employment decision because of a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment - however small.

Pre-Employment Inquiries (General) As a general rule, the information obtained and requested through the preemployment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations. Employers are explicitly prohibited from making pre-offer inquiries about disability. Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries J U LY / A U G U S T 2 0 1 8

Dress Code

BEST PRACTICES from page 37 may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose. Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided. Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.

In general, an employer may establish a dress code which applies to all employees or employees within certain job categories. However, there are a few possible exceptions. While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers’ ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin. Moreover, if

the dress code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship. Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship. Source: US Equal Employment Opportunity Commission, Laws & Guidance, (https://www.eeoc.gov/laws/index.cfm), April 25, 2018.

REPRESENTING MUNICIPALITIES Land Use

Labor & Employment

Administration & Finance

Environmental Law

Assessment, Abatement and Tax Collection

Bankruptcy

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— This Moment in NHMA History — 33 years ago…. In 1985, NHMA’s Annual Conference drew about 400 municipal officials representing 106 member cities and towns. A total of 60 exhibitors also participated and Stephen Merrill, then New Hampshire’s Attorney General, was a guest speaker at the Center of New Hampshire (formerly The Radisson Hotel, now The Manchester Hotel) in Manchester.

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Name the New Hampshire town in which this town hall resides. According to Wikipedia, like many other New Hampshire towns, this one went through name changes before its incorporation in 1781: “Saville” in 1768, “Corey’s Town”, and then “Wendell,” for one of the Masonian Proprietors, John Wendell. The Algonquian Indians called the area “Lake of the Wild Goose” because it is shaped like a goose. This town will be celebrating its 250th anniversary in 2018. When you have figured out the answer, email it to tfortier@nhmunicipal.org. The answer will appear in the September/October 2018 issue. ANSWER TO PHOTO IN MAY/JUNE 2018 ISSUE: The photo on page 41 in the last issue of New Hampshire Town and City magazine was the town offices in the Town of Chesterfield. Thanks to all our members who responded with the correct response, including Carol Porter (Gorham); Scott Wiggin (Bedford); Richard Kreissle (Walpole); Jenna Fraunfelder (Swanzey); and Bill Herman (Auburn).

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A F F I L I AT E M E M B E R

Sp tlight

The Affiliate Group Spotlight is a column designed to give readers a closer look at NHMA’s Affiliate Groups. There are over 30 such groups affiliated with NHMA comprised primarily of municipal officials, usually professional organizations, serving a particular position, such as city and town clerks, assessors, health officers, road agents, etc. In this issue, we introduce and spotlight the New Hampshire Welfare Administrators Association.

Mission Statement The mission of the New Hampshire Local Welfare Administrators’ Association (NHLWAA) is to provide and maintain support to its membership through leadership and education to assure the uniform, humane, equitable and ethical administration of RSA 165 – municipal assistance.

Values Statement The NHLWAA instills an empathic and empowering approach in providing assistance to those in need. The needs of those requesting assistance shall be met in the most beneficial and cost-efficient manner possible, while respecting the confidentiality of the applicants. This is accomplished through fair and uniform application of the law and guidelines, while providing support and direction in necessary life skills for applicants by trained and educated welfare administrators.

History of Local Welfare: “Whenever a person in any town is poor and unable to support himself, he shall be relieved and maintained by the overseers of public welfare of such town, whether or not he has residence there.” –RSA 165, Aid to Assisted Person. This statute has been for over 200 years. Each New Hampshire municipality is required to provide general assistance under this statute and develop and adopt guidelines to administer said assistance per RSA 165:1(II).

Challenges: New Hampshire municipalities are legally required to provide funding for local welfare assistance to their residents. Our biggest challenge in meeting the needs of our municipal members are providing them knowledge

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of general uniform applications and practices that abide by state law and their municipality’s guidelines. The NHMA and NHLWAA have worked in collaboration to publish for members “Model Welfare Guidelines” to provide some standards and guidelines. NHLWAA is currently working on updating its’ adopted “Ethics Resolution of Responsibility for Person Who Change Their Residence While, or as a Result of, Apply for Local Welfare.”

Governing Body: NHLWAA has an Executive Board of fourteen members voted in by the general membership who meet regularly at NHMA offices. We have committees covering training, legislative, technology and other ad hoc committees as needed.

Partnership with NHMA: We have a close working collaboration with NHMA as an Affiliate Group in which they provide meeting rooms and legal and legislative support. We collaborate on an annual training in June to provide a basic training called the “Art of Welfare” with some in-depth training for more seasoned welfare officials. NHLWAA provides sessions for the NHMA November Conference.

Membership and Benefits: NHLWAA provides trainings and education in September, February and April for NHLWAA members at a discounted rate of $15 and for nonmembers at $30. Our membership is based on population size ranging from $50 to $30 per municipality based on a July to June fiscal year. Currently we have 192 members from 146 municipalities from across New Hampshire.

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NHLWAA members receive communication about trainings, legislative news, social service updates and other information that may affect municipalities and their assistance requirements. Most members relate that NHLWAA provides a supportive resource and network due to itsâ&#x20AC;&#x2122; unique municipal function. The NHLWAA initially funded and contracted with developers to create NH GAP (General Assistance Program), a web-based program to aid in the delivery of general assistance.Â More information about this software can be found at our website. If you would like more information about NHLWAA and how to become a member, please refer to our website at www.nhlwaa.org.

(NHWWAâ&#x20AC;&#x2122;s Executive Board; Front row sitting left to right: Charleen Michaud, Vice President;Â Pat Murphy, President;Â Liz Sayre, Secretary;Â Bob Mack, Past President. Back row standing left to right: Todd Marsh, Dana Brien, Jill Jamro, Marilyn Ceriello Bresaw, Lena Nichols, Denise Greig, Ellen Tully and Karen Emis-Williams. Executive Board members not in picture: Sue Benoit, Treasurer and Suzanne Carr).

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To schedule a meeting, obtain debt service schedules, or for details about our schedule, fees, Bond Anticipation Note programs, and current interest rates, please contact Tammy J. St. Gelais, Executive Director, at tstgelais@nhmbb.com. Visit our website at www.nhmbb.org. Lebanon Middle School, Lebanon, NH

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NEW HAMPSHIRE ASSOCIATION OF REGIONAL PLANNING COMMISSIONS

This segment is another in a series highlighting NHARPC’s efforts to provide education on planning-related topics.

Approaches to Planning Recreational Trail Networks By Nick Altonaga, Planner, North Country Council, and Rachael Mack, GIS Planner, Strafford Regional Planning Commission

rom the beaches of the Seacoast north to the Lakes Region, the White Mountains, and beyond, New Hampshire offers residents and visitors alike myriad opportunities for outdoor recreation and for connecting with nature. Trails—used by hikers, bicyclists, snowmobilers, and other nature lovers—are a direct route to the outdoor experience. Regional planning agencies such as the North Country Council and the Strafford Regional Planning Commission are using planning best practices to identify, map, grow, and publicize trail networks in their areas to benefit their communities, residents, and tourists.

Trail Planning in the North Country The scenic natural beauty of Northern New Hampshire has drawn visitors since the late 19th century. North Country communities, once tightly tied together through the paper industry, are now learning to strengthen partnerships with trail groups and the many trail networks to stabilize and grow their local economies. The North Country Council’s Coos County trails project began in late 2016. Its origins lie in the North Country Council Regional Plan, which highlighted the opportunities that regional trail networks provide to increase the resiliency of the economy and create healthy outdoor activities for residents and visitors. A comprehensive trails project is a long-term undertaking that involves research, outreach to stakeholders, data collection, and technical writing. To date the project has focused on developing a scope of work and a planning framework for a future comprehensive Coos County Trails Plan. The North Country Council staff has used extant research, institutional reports and plans, field work, and working group sessions to paint a complete picture of the Coos trails’

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many impacts on people and place. The project has offered a means to understand how local communities have been affected by trail use and to identify how best to create a resilient, sustainable trail network. Among the elements vital to the trails planning process are the following: • Ensuring the public is informed and engaged. • Fielding effective questions. • Triangulating data between research, collected data, and organizational expertise. • Connecting with local communities and stakeholders to create positive buy-in. North Country Council has undertaken an on-road all-terrain vehicle safety study, drafted and administered a survey to 56 stakeholders, hosted a public meeting to present preliminary results, convened a series of working group sessions, and drafted a report of findings and a draft scope of work. Each stage of the process built on the proceeding stages to better develop the final products. Stakeholder involvement has been a major focus throughout the process. Engaging with stakeholders yielded first-hand experience and robust data. Discussions with the public and with stakeholders provided insights and critiques that improved the planning process. Obtaining buy-in from the communities and the active user groups was also crucial. Involving the working group members in discussions and critiques of the results of the research and data gathering was vital to drafting the scope of work. The working group included OHVers, snowmobilers, hikers, mountain bikers, mushers, equestrians, www.nhmunicipal.org

and conservationists. Many were well-known and outspoken members of their groups with many years of experience. Members of the various user groups had many divisive opinions and different views on the level of impacts on communities, on the compatibility of uses, and on how local resources should be managed. Their involvement meant they could have direct input into the goals and principles of a plan that would directly affect their communities in the future. Despite sometimes tense discussions, stakeholders from the different user groups had many shared experiences and opinions towards trails. For example, they generally agreed that trail networks can help do the following: • Create a connection to nature and scenic beauty. • Boost local quality of life. • Provide economic benefits. • Improve connectivity to communities. Planning a framework and scope of work for a long-term trails plan is a multifaceted, collective effort to improve trails for all to use. As this project and ones like it move forward, it is important for those working on the plan to understand that, while tensions and opinions can run high between outdoor users, they are all seeking to improve the trails to have a positive impact on their communities.

Trail Planning in the Strafford Region About the time the North Country Council’s Coos County trails project was getting underway, the Strafford Regional Planning Commission (SRPC) began collecting data on recreational trails in its region. The goal was to develop a consistent, centralized inventory of new and improved trails in order to improve the transportation network and help www.nhmunicipal.org

increase public awareness and use of the trails. The SRPC region is characterized by a rich natural landscape with several major rivers, conserved forests and wetlands, and the Great Bay tidal estuary in Strafford and Rockingham counties. This diverse environment is populated by a variety of trail types for many uses—all a stone’s throw from several densely populated urban communities. SRPC wanted to ensure that users as disparate as snowmobilers and hikers would benefit from a centralized source of information. SRPC staffers formed an internal working group to develop goals and objectives for the project and to solicit input from stakeholders in the region—including conservation commissions, local recreation departments, and planning departments—and from state agencies. They wanted to be sure the data collected would not only promote the creation of effective maps for trail users and communities but also identify opportunities to connect the region’s trails. After numerous work sessions and a review by stakeholders, a list of 21 attributes for which data would be collected was agreed to by the working group. To be on the final list, an attribute had to be practical for hikers or other data users, such as planners and land owners, and reasonably easy to collect data for. The final list included such categories as name, permitted uses, restrictions, property, type, and trail surface material. The location and description of amenities—restrooms, parking, benches, etc.—were added as supplementary information to help trail users plan their trips. Field tests at the Hanson Pines trails in Rochester confirmed that data on all 21 attributes could be readily collected by a single staffer and helped refine the physical data-collection process.

The working group next developed a prioritized list of unmapped trails for which data would be collected. SRPC already had a plethora of trail data from numerous sources and, as much as possible, incorporated this data into the trail-mapping database. SRPC staffers fully mapped nine trail systems, including amenities, during the first data collection season. This information, along with data for 16 additional trail systems gathered from other sources, was published on multiple public online platforms. It can be viewed through SRPC’s ArcGIS Online map gallery at http://arcg.is/1bPWyT. Publication of the data has already spurred interest in mapping additional trails and adding them to the online sites. The collected data has proved to be a valuable resource for SRPC staffers considering local assets for transportation and land use plans and projects. It has also begun to serve as a comprehensive source of information about recreational trails for all users. Trails offer opportunities for exercise and for exploring local environments. They also provide greater access to sites through alternative transportation modes, and they enhance the quality and character of place. SRPC will continue to promote and support the enhancement of these resources throughout the region. Nick Altonaga is a Planner with North Country Council. Nick may be reached be phone at 603.444.6303 (ext. 2021) or by email at naltonaga@nccouccil.org. Rachael Mack is a GIS Planner with the Strafford Regional Planning Commission. Rachael may be reached by phone at 603.994.3500 or by email at rmack@strafford.org.

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UP CLOSE & In the Field

PERSONAL W

elcome to Up Close and Personal - In the Field, a regular column in New Hampshire Town and City dedicated to giving readers a closer look at staff from New Hampshire cities and towns. In this issue, we hope you enjoy meeting Bob Edwards, Selectboard member in the Town of Antrim.

TC: What are your duties and responsibilities as Selectboard member? BE: I am currently completing my third year as a select board member on a three-person board. In addition to my primary responsibilities as a select board member, I have or am currently serving in an ex-officio position on the town’s planning board, water and sewer district commission, and Selectmen’s Advisory Board (SAC) which has advisory input to our Cooperative District School Board. My position has also exposed me to other opportunities affecting our town. I am a volunteer member to the NHMA’s Finance and Revenue Committee and as a member of the ASB sub-committee charged with developing and recommending a new methodology for the ASB Board to consider that relates to how certain NH PUC regulated utilities may be assessed under certain classifications. In addition, my contact with the school district has resulted in my being elected as SAU 1 District Moderator and Chair of the Building Committee that oversees the District’s science lab renovation project at ConVal High School.

Bob Edwards

Do you know someone who deserves to be profiled in a future edition of New Hampshire Town and City magazine? If so, please contact the New Hampshire Municipal Association at 800.852.3358 ext. 3408 or tfortier@nhmunicipal.org.

TC: What is your biggest challenge in performing your duties? BE: My biggest challenge as a newly elected member of the select board was learning the position. There was no orientation book to follow and even though I had a limited understanding of town operations from serving on other town boards and elected positions, the learning curve was and remains a bit of a challenge. The Right-to-Know Law I learned quickly, but I probably will never commit all the applicable RSA’s to memory, but through self-learning, and learning from our town administrator and other select board members it has allowed my learning process to improve. I truly believe that the select board position has evolved tremendously in complexity and that the qualifications required for the position today due to 21st century challenges are much greater than existed 30 years ago. TC: How has NHMA helped you to do your job? BE: My initial experience with the NHMA was through your Town and City publication which alerted me to several state-wide important issues facing NH municipalities and it allowed me a great educational opportunity to learn about them and discuss them with my town administrator and other select board members. Since that time, I have taken the opportunity to attend annual educational presentations by the NHMA that has helped me keep current on many key matters that affect us currently or most likely may in the future. NHMA has also afforded me the opportunity to develop new relationships with other municipal and legislative officials who have become a valuable resource. TC: Give us an example of a problem you solved or a dilemma you faced and overcame in the line of duty? BE: I think the largest dilemma I’ve faced is trying to work through a 10-year community initiative that has and to some extent still divides our town. I was viewed by many as against the initiative when in reality I was attempting to strengthen the town’s position. Although not all will agree, I think by our select board being transparent, fair, and working collaboratively with those of differing opinions, an acceptable solution was reached in several key areas of the initiative. There always will be those who benefit and those who don’t on every initiative that has contrary public opinion and where it may impact people differently. Most times a resolution requires a compromise although it’s never perfect or necessarily fair to all parties.

NEW HAMPSHIRE TOWN AND CITY

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UP CLOSE & In the Field

PERSONAL W

elcome to Up Close and Personal - In the Field, a regular column in New Hampshire Town and City dedicated to giving readers a closer look at staff from New Hampshire cities and towns. In this issue, we hope you enjoy meeting Cheryll Hurteau, Office Manager in the Town of East Kingston.

TC: What are your duties and responsibilities as Town Office Manager? CH: As the town office manager, I work directly for the board of selectmen as well as interact with town department heads, elected officials and employees. As East Kingston is a small town, my responsibilities cover anything from answering the questions of residents and employees, to research, problem solving, preparing my board as needed for selectmenâ&#x20AC;&#x2122;s Meetings, attending Selectmenâ&#x20AC;&#x2122;s Meetings, taking and preparing the minutes and completion of the resulting directives by the board, working with the assessing company, accounts payable, payroll and all finance work, tax rate setting and reporting to the NH Department of Revenue Administration, human resources, welfare officer, working with legal counsel, maintaining town files plus whatever is needed to get the job done.

Cheryll Hurteau

TC: What is your biggest challenge in performing your duties? CH: While the broad array of duties make my job incredibly interesting, my greatest challenge is trying to take time off to spend with my husband, sons and grandchildren without falling behind in my day to day duties and responsibilities. I never want to look back and realize I missed important family events and watching my grandchildren grow. TC: How has NHMA helped you to do your job? CH: NHMA has been such a valuable resource in providing webinars, informational materials as well as legislative bulletins to keep me up to date on the latest proposed legislation and recently enacted legislation. Their legal assistance allows me to receive expert legal guidance from their outstanding staff at a nominal cost to the town. TC: What is the public perception about your job and how does it differ from the reality of your job? CH: In a small town, there is sometimes the misconception that there is less work to be done when in reality in larger towns or cities it takes several employees to do the work of one in a smaller town with a more limited budget and staff.

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TC: Has your job changed the way you look at the role of government? CH: This job has certainly opened my eyes to the inner workings of town government, especially in terms of taxation. Department heads and elected officials must work diligently with the board of selectmen to produce a budget that will adequately cover ever rising fixed expenses and critical needs at the lowest possible cost to the taxpayers. In the end, we are all taxpayers and must do our best to approach budgeting from the point of view of the residents we serve while weighing want vs. need. TC: What advice would you give someone who would like to follow in your footsteps into this job? CH: I plan to retire within the next few years and would encourage my replacement to always strive to be honest, professional, dependable and kind, and as helpful as possible to fellow employees as well as town residents. They entrust each of us with representing and serving them honestly and fairly and to make the best use possible of their hard-earned tax dollars. J U LY / A U G U S T 2 0 1 8

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NHMA and Drummond Woodsum Announce EĞǁ &ƌĞĞ DĞŵďĞƌ ĞŶĞĮƚ

ŵƉůŽǇŵĞŶƚ >Ăǁ ,ŽƚůŝŶĞ E,D ĂŶĚ ƌƵŵŵŽŶĚ tŽŽĚƐƵŵ ĂƌĞ ƉůĞĂƐĞĚ ƚŽ ĂŶͲ ŶŽƵŶĐĞ ƚŚĞ ĨŽƌŵĂƟŽŶ ŽĨ ƚŚĞ ŵƉůŽǇŵĞŶƚ >Ăǁ ,ŽƚůŝŶĞ, a ĨƌĞĞ ƐĞƌǀŝĐĞ ŶŽǁ ĂǀĂŝůĂďůĞ ƚŽ ĐŝƚǇ ĂŶĚ ƚŽǁŶ ŵĞŵďĞƌƐ ŽĨ E,D ͊͘ dŚĞ ,ŽƚůŝŶĞ ŝƐ ĂǀĂŝůĂďůĞ Ăƚ ŶŽ ĐŚĂƌŐĞ ĂŶĚ ƌƵŵŵŽŶĚ tŽŽĚƐƵŵ ůĂďŽƌ ůĂǁ ĂƩŽƌŶĞǇƐ ǁŝůů ƉƌŽǀŝĚĞ ƵƉ ƚŽ ϭͬϮ ŚŽƵƌ ŽĨ FREE ůĞŐĂů ĂĚǀŝĐĞ ƉĞƌ ĞŵƉůŽǇŵĞŶƚ ŝƐƐƵĞ͘ ƌƵŵŵŽŶĚ tŽŽĚƐƵŵ ůĂďŽƌ ůĂǁ ĂƩŽƌŶĞǇƐ ĂƌĞ ĂǀĂŝůĂďůĞ ƚŽ ƉƌŽǀŝĚĞ ůĞŐĂů ĂĚǀŝĐĞ ŽŶ ŵĂƩĞƌƐ ŝŶĐůƵĚŝŶŐ dŝƚůĞ VII, &ĂŵŝůǇ DĞĚŝĐĂů >ĞĂǀĞ Đƚ͕ ŵĞƌŝĐĂŶƐ ǁŝƚŚ ŝƐĂďŝůŝƟĞƐ Đƚ͕ &Ăŝƌ >ĂďŽƌ ^ƚĂŶĚĂƌĚƐ Đƚ͕ ĞŵͲ ƉůŽǇĞĞ ĚŝƐĐŝƉůŝŶĞ͕ ƐĞǆƵĂů ŚĂƌĂƐƐŵĞŶƚ͕ ǁƌŽŶŐĨƵů ƚĞƌŵŝŶĂƟŽŶ ĂŶĚ ĂŐĞ͕ ƐĞǆ ĂŶĚ ƌĂĐĞ-ďĂƐĞĚ ĚŝƐĐƌŝŵŝŶĂͲ ƟŽŶ͘ What Can You Expect? Drummond Woodsum ,ŽƚůŝŶĞ ĂƩŽƌŶĞǇƐ ǁŝůů ďĞ ĂǀĂŝůĂďůĞ ƚŽ ĂŶƐǁĞƌ ĞŵƉůŽǇŵĞŶƚ-ƌĞůĂƚĞĚ ƋƵĞƐƟŽŶƐ -ďĞĨŽƌĞ ǇŽƵ ĂĐƚ ͲͲ ĂŶĚ ǁŝůů ŵĂŬĞ ĞǀĞƌǇ ĞīŽƌƚ ƚŽ ŚĂǀĞ ĞǀĞƌǇ ĐĂůů ƌĞƐƉŽŶĚĞĚ ƚŽ ǁŝƚŚŝŶ Ϯϰ ŚŽƵƌƐ ďǇ ĂŶ ĞŵƉůŽǇŵĞŶƚ ůĂǁǇĞƌ͘ dŚĞ ,ŽƚůŝŶĞ ĂƩŽƌŶĞǇƐ ǁŝůů ůĞƚ ǇŽƵ ŬŶŽǁ ŝĨ ǇŽƵ ĂƌĞ ĨĂĐŝŶŐ Ă ƉŽƚĞŶƟĂů ůŝĂďŝůŝƚǇ ĂŶĚ ŚŽǁ ƚŽ ďĞƐƚ ƉƌŽĐĞĞĚ͘ ^ŚŽƵůĚ a NHMA ŵĞŵďĞr ƵƐŝŶŐ ƚŚĞ ,ŽƚůŝŶĞ ƐĞĞŬ ĂĚǀŝĐĞ ŽŶ a ƐƉĞĐŝĮĐ ŵĂƩĞƌ͕ Žr sŚŽƵůĚ ƚŚĞ ƋƵĞƐƟŽŶ ƉŽƐĞĚ ƐƵŐŐĞƐƚ ĐŝƌĐƵŵƐƚĂŶĐĞƐ ƚŚĂƚ ŵŝŐŚƚ ŐŝǀĞ ƌŝƐĞ ƚŽ ůŝĂďŝůŝƚǇ͕ ƚŚĞǇ ǁŝůů ďĞ ĂĚǀŝƐĞĚ ƚŽ ĐŽŶƐƵůƚ ŽŶ ƚŚĂƚ ŵĂƩĞr wŝƚŚ ůĞŐĂů ĐŽƵŶƐĞl oĨ ƚŚĞŝƌ ŽǁŶ ĐŚŽŽƐŝŶŐ͘ ƌƵŵŵŽŶĚ tŽŽĚͲ sum ǁŝůů ŬĞĞƉ ĐŽŶĮĚĞŶƟĂů ĂŶǇ ŝŶĨŽƌŵĂƟŽŶ ǁŚŝĐŚ ŝƚ ƌĞĐĞŝǀĞƐ ƌĞůĂƟǀĞ ƚŽ ƚŚĞ ĞŵƉůŽǇŵĞŶƚ ŵĂƩĞƌ͘ Who Can Call the Hotline? dŚĞ ,ŽƚůŝŶĞ ŝƐ a ƐĞƌǀŝĐĞ ĂǀĂŝůĂďůĞ ƚŽ ŽŶůǇ ĂĚŵŝŶŝƐƚƌĂƚŽƌƐ͕ ŵĂŶĂŐĞƌƐ͕ ĚĞƉĂƌƚŵĞŶƚ ŚĞĂĚƐ ĂŶĚ ĞůĞĐƚĞĚ ŽĸĐŝĂůƐ ĨƌŽŵ E,D ĐŝƚǇ ĂŶĚ ƚŽǁŶ ŵĞŵďĞƌƐ͕ ĂŶĚ ŽŶůǇ ĐŽŶĐĞƌŶŝŶŐ ƋƵĞƐƟŽŶƐ ƌĞŐĂƌĚŝŶŐ ĞŵƉůŽǇĞĞƐ ƐƵďŽƌĚŝŶĂƚĞ ƚŽ ƚŚĞ ĐĂůůĞƌ͘ &Žƌ ĞǆĂŵƉůĞ͕ ƚŚĞ ,ŽƚůŝŶĞ ǁŝůů ŶŽƚ ƌĞƐƉŽŶĚ ƚŽ ŝŶƋƵŝƌŝĞƐ ĨƌŽŵ a ĚĞƉĂƌƚŵĞŶƚ ŚĞĂĚ ƌĞŐĂƌĚŝŶŐ ƚŚĞ ĂƵƚŚŽƌŝƚǇ ŽĨ a ƚŽǁŶ ŵĂŶĂŐĞƌ͕ or ĨƌŽŵ a ƚŽǁŶ ŵĂŶĂŐĞƌ ƌĞŐĂƌĚŝŶŐ ƚŚĞ ĂƵƚŚŽƌŝƚǇ ŽĨ ĞůĞĐƚĞĚ ŽĸĐŝĂůƐ͘ Is There a Fee? dŚĞ ,ŽƚůŝŶĞ ŝƐ FREE, aǀĂŝůĂďůĞ Ăƚ no ĐŚĂƌŐĞ͕ ƚo NHMA ĐŝƚǇ and ƚown mĞŵďĞƌƐ͕ and ǁŝůů ƉƌŽǀŝĚĞ uƉ ƚo Ъ ŚŽƵr ŽĨ ůĞŐĂů ĂĚǀŝĐĞ ƉĞr ĞŵƉůŽǇŵĞŶƚ ŝƐƐƵĞ͘ /ƚ ŝƐ ĂŶƟĐŝƉĂƚĞĚ ƚŚĂƚ ŵŽƐƚ ŐĞŶĞƌĂů ĞŵƉůŽǇŵĞŶƚ ůĂw ƋƵĞƐƟŽŶƐ ĐaŶ ďĞ ĂŶƐǁĞƌĞĚ ŝn lĞƐs ƟŵĞ͘

Got an employment issue? Before you act, call 603.623.2500 or email at ehotline@dwmlaw.com.

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J U LY / A U G U S T 2 0 1 8

Legal

Q and A

By Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association

The New Hampshire Right-to-Know Law: A Year in Review The Right-to-Know Law, RSA Chapter 91-A, imposes constitutional and statutory duties on all government officials to ensure access to governmental proceedings and records. N.H. Const. pt. 1, art. 8. This review covers cases issued and legislation adopted touching upon compliance with the Right-to-Know law since June 2017.

Taylor v. SAU #55, 170 N.H. 322 (2017) The New Hampshire Supreme Court held that the School Administrative Unit’s policy requiring use of a thumb drive to produce electronic records was valid under The Right-toKnow Law. The plaintiff, Taylor, requested school board minutes be sent to him by email. He was instead informed of the SAU’s policy that required electronic records to be produced on a thumb drive—either supplied by the requester or supplied by the SAU, in which case the requester must pay the actual cost of the thumb drive, which is $7.49. The plaintiff filed a lawsuit, alleging that the SAU’s refusal to send the minutes by email was a violation of 91-A. The trial court determined that the thumb drive policy did not violate the law. The New Hampshire Supreme Court agreed with the trial court. The Court said that the SAU was properly charging the “actual cost” of copying as permitted under RSA 91A:4, IV, since $7.49 was the actual cost of a thumb drive. The Court reasoned that there is nothing to suggest that statute was only meant to apply to paper copies. A thumb drive is just one permissible medium to which a record can be copied. The Court also noted that there is nothing in RSA Chapter 91-A that requires actual delivery of records, nor does the law require delivery of electronic records in the manner requested here—email. The Court determined that copying records to a thumb drive satisfied the plaintiff ’s request to 48

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provide the records in electronic form and did not limit his ability to review the requested records. Finally, the Court shared the SAU’s concerns about the unreliability of sending records via email and the potential cybersecurity threats that may be increased by sending attachments to emails. Even though the SAU and its staff may use email regularly for other purposes, due to the importance of documenting compliance with The Right-to-Know Law, it is proper for the SAU to use a more formalized process for responding to records’ requests. Therefore, because the thumb drive policy did not diminish the use of governmental records, and served the important purposes of protecting public bodies’ and public agencies’ information technology systems, the Court held the policy was reasonable and did not violate RSA Chapter 91-A. Practice Pointer: This case reaffirms two important provisions of The Right-to-Know Law. First, there is no requirement that records be delivered to a requester, just that they be made available. Second, neither the Court’s decision in Green v. SAU #55, 168 N.H. 796 (2016) nor RSA 91-A:4, V requires a public body or public agency to send electronic records via email. Legislative Changes from 2018 Legislative Session: Content of Meeting Minutes. An amendment to RSA 91A:2, II (HB 1347) will now require that minutes of public meetings include the names of the public body members who made or seconded each motion considered at a public meeting. Effective Date: January 1, 2019. Court Procedures Governing Right-to-Know Complaints: An amendment to RSA 91-A:7 (HB 252) provides that all documents filed with the Court as part of a Rightto-Know petition shall be considered as evidence by the Court, subject to any objections by either party. All such documents must be provided to the opposing party prior www.nhmunicipal.org

to a hearing on the merits. Effective Date: January 1, 2019. Legislative Changes From 2017 Legislative Session: Retention of Electronic Records and Disposal of Paper Records. An amendment to RSA 33-A:5-a, clarifies that any municipal records in paper form that are listed in the disposition and retention schedule under RSA 33A:3-a may be transferred to electronic form, and the original paper records may be disposed of as the municipality chooses (subject to other limitations in law). Electronic records with a retention period of 10 years or less may be retained solely electronically in their original format; those with a retention period longer than 10 years must be transferred to paper or microfilm or stored in portable document format/archival (PDF/A). The mu-

nicipal committee established under RSA 33-A:3 must review documents and procedures at least once every five years for compliance with guidelines issued by the Secretary of State and the municipal records board. Statute effective date: August 7, 2017. Commission on Processes for Resolving Right-to-Know Complaints. An amendment to RSA Chapter 91-A, adopting RSA 91-A:8-a, established a commission to study alternative processes to resolve complaints under the Right-to-Know Law. The work of the commission brought about the introduction of SB 555 that would have created a right-to-know appeals commission and a right-to-know law ombudsman establishing an alternative process to resolve Right-to-Know complaints. SB 555 was voted inexpedient to legislate on April 26, 2018.

Court

Update

Recording Objection to Discussion by Public Body. An amendment to RSA 91-A:2 added RSA 91-A:2, II-a. This new provision states that if a member of a public body believes that any discussion in a meeting of the body violates the Right-to-Know Law, the member may object to the discussion; if the discussion continues, the objecting member may request that his or her objection be recorded in the minutes and may then continue to participate without being subject to penalties under the Right-to-Know Law. The public body must record the memberâ&#x20AC;&#x2122;s objection in the meeting minutes. Effective Date: January 1, 2018. Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org.

By Stephen C. Buckley, Legal Services Counsel and Margaret M.L. Byrnes, Staff Attorney

Court Update, previously a regular column in New Hampshire Town and City magazine, has moved to the New Hampshire Municipal Association web site to provide more timely information to NHMA members. Opinions will be posted after they are released, and a reminder will be included here and sent in Newslink. To read previous Court Update columns, please visit www.nhmunicipal.org.

Now available online: City Charter Tax Cap Provision Must Provide for an Override of the Tax Cap Fred S. Teeboom v. City of Nashua, Hillsborough County Superior Court â&#x20AC;&#x201C; South No. 226-2017-CV-00160; No. 2262017-CV-00221, 2/13/18. Cumulative Effect of a Use Relevant When Judging Spirit of Zoning Ordinance W. Robert Foley, Trustee v. Town of Enfield, New Hampshire Supreme Court No. 2017-0294, February 2, 2018. Ambiguous Town Meeting Vote Did Not Completely Discontinue Town Road Town of Goshen v. Carl N. Casagrande, No. 2017-0137, 1/26/18

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Has Your City or Town Ordered NHMA¶s Right-to -Know Law Book Yet? Order Today

If not, it’s time to order NHMA’s new reference guide for public officials when confronted with the numerous legal issues surrounding New Hampshire’s Right-to-Know Law.

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Includes Top Ten Compliance Tips Public Meeting & Governmental Records Posters Is it a Meeting Flow Chart Remote Participation Checklist And More!

The Right-to-Know Law (RSA Chapter 91-A) affects every aspect of local government in our state. Every board, committee, commission, and sub-committee in every town, city and village district in New Hampshire must comply with this law. As a result, all local officials and employees must understand the law and their responsibilities regarding both public meetings and governmental records.

Go to NHMA’s online store at www.nhmunicipal.org/shop to order your reference copy today!

NEW HAMPSHIRE TOWN AND CITY

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NEW HAMPSHIRE TOWN AND CITY

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How to Handle Voluminous Records Requests

Wednesday, July 25, 2018 12:00 pm—1:00 pm

Upcoming Webinars NHMA will be hosting two webinars in July and August for members of the New Hampshire Municipal Association.

How to Handle Voluminous Records Requests

At times, record requests submitted to cities and towns under RSA 91-A, New Hampshire’s Right-to-Know Law, involve hundreds, sometimes thousands of records, or pages of records. There is no question that there are costs – time, effort, money – associated with complying with these, at times, burdensome governmental records requests. The Legislature, however, has decided that the benefits of open government outweigh any inconveniences posed by the Right-to-Know Law. Join Auburn Town Administrator Bill Herman and NHMA’s Legal Services Counsel Stephen C. Buckley who will share strategies to assist municipalities in processing voluminous records requests. Guidance will be provided on determining whether a record request would require a search for multiple documents to be contrasted with a request that impermissibly seeks to create a record that does not exist. Handling voluminous requests requires a comprehensive understanding of all aspects of request processing, including: the requirements for availability, storage, electronic records, redaction, cost estimates, appointments and other statutory obligations. While not all these suggestions can be applied in the context of every voluminous request, they are intended to provide some strategies that may be of assistance in varying circumstances.

Alien Invasion: Preventing Aquatic Invasive Species in Your Local Waterbodies Wednesday, August 22, 2018 12:00 pm—1:00 pm

New Hampshire has been fighting exotic aquatic plants, such as milfoil and fanwort, since the mid-1960’s and from there it has spread to infest more than 60 waterbodies. Once in the waterbody, continuous management and control practices are the only cost-effective tools to control the nuisance plant growth which research has shown reduces shoreline property values. With over 800 lakes and ponds in the state, the efforts of volunteers in monitoring these waterbodies for new infestations become critical.

Alien Invasion: Preventing Aquatic Invasive Species in Your Local Waterbodies

Join Amy Smagula, Exotic Species Program Coordinator with the New Hampshire Department of Environmental Services, John Arruda, Selectboard member in the Town of Madison and Kelly Ainslee Buchanan, Advocacy Coordinator with the New Hampshire Lakes Association, who will discuss what cities and towns can do through the adoption of a local ordinance, education and volunteer training to prevent exotic plant infestations in your local waterbodies.

For details and registration information, visit www.nhmunicipal.org under Calendar of Events. Questions? Call 800.852.3358, ext. 3350, or email NHMAregistrations@nhmunicipal.org.

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