Legal
Q and A Municipal Official vs Municipal Employees: What is the Difference & Does it Matter for Compensation & Personal Policies? By Natch Greyes, Municipal Services Counsel
A
t its core, the purpose of electing officials is to allow the voters to hold those they elect accountable for their actions while in office. If the voters do not like the job the elected representative is doing, they can choose to vote for someone else in the next election. If the voters are generally satisfied with the job performed, they will, presumably, reelect the incumbent. That theory underpins the relationship between municipal officials and employees. Whether select board member, town clerk, tax collector, moderator, or any number of other local officials, the voters have a choice in who serves. That’s not the case with employees. Employees are hired by the governing body (unless otherwise specified in the statutes) and their employment is governed by the municipality’s personnel rules.. The division between municipal official and employee can be confusing, especially for those municipal officials just coming into office, and we find that the relationship between the two position is the subject of many of our legal inquiries at this time of year. Here are some of the common questions that we field. Q. Under New Hampshire law, what is the difference between a municipal official and a public employee? A: Although RSA chapter 41 is helpfully titled “Choice and Duties of Town Officers” and lists a number of required and optional municipal officers (also known as municipal officials), that chapter does not actually distinguish between officials and employees of the municipality. That distinction is found in the New Hampshire Public Employee Labor Re-
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NEW HAMPSHIRE TOWN AND CITY
lations Law (RSA 273-A:1). It states, in relevant part, that a “public employee” is “any person employed by a public employer except: (a) Persons elected by popular vote; (b) Persons appointed to office by the chief executive or legislative body of the public employer; (c) Persons whose duties imply a confidential relationship to the public employer; or (d) Persons in a probationary or temporary status, or employed seasonally, irregularly or on call. For the purposes of this chapter, however, no employee shall be determined to be in a probationary status who shall have been employed for more than 12 months or who has an individual contract with his employer, nor shall any employee be determined to be in a temporary status solely by reason of the source of funding of the position in which he is employed. The first two categories are, really, the key distinction for municipalities. Elected and appointed officials – largely those listed under RSA chapter 41 – are distinct and separate from the ordinary duties and responsibilities required of “employees.” Q. Is there some sort of ‘at-a-glance’ test we can use to determine whether someone may qualify as an “employee” or “municipal official”? A: Yes. Municipal employees, just like all other employees, are hired based upon the job description and qualifications that the employer – the governing body – has decided are appropriate for that particular job. While those qualifications must comply with any relevant non-discrimination
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