Legal
Q and A Town Clerks & Their Offices By Natch Greyes, Municipal Services Counsel
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ne of the most difficult to parse aspects of municipal operations involves the office of the town clerk or town clerk-tax collector. These elected officials often have a statutorily defined “deputy” who works in their office, along with a number of municipal employees. The interaction of various statutes can lead to great confusion about the working relationship between the elected official, deputy, employees, and other boards and bodies in the municipality. This issue’s Legal Q&A will clarify some of those relationships. Q. What is the difference between a town clerk and town clerk-tax collector? A: RSA 41:16 requires that every town elect a town clerk by ballot at every town meeting, but that’s not the end of the story. RSA 41:16-b allows the town meeting to choose to extend the term of office of the town clerk to threeyears. (Or rescind that extension.) In addition, RSA 41:45-a allows the town meeting to choose to combine the positions of town clerk and tax collector. That statute also allows the town meeting to specify whether the term of office shall be one year or three. Q. How are town clerks and town clerk-tax collectors chosen? A: RSA 669:15 (in addition to RSA 41:16) requires the town clerk to be elected, while RSA 669:16 requires the town clerk-tax collector to be elected. Q. What happens if there is a vacancy in the office? A: This is where things get interesting. Town clerks are not required to have a deputy, but town clerk-tax collectors are. Compare RSA 41:18 with 41:45-c. A town clerk may nominate a person to be his/her deputy, with confirmation
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coming from the select board, but there is no requirement to do so. RSA 41:48. In contrast, a town clerk-tax collector “shall” nominate a deputy (with confirmation coming from the select board). In either case, the deputy has the same powers as the principal, and serve for some period of time in the case of a vacancy. With a deputy town clerk, the deputy would serve until the next annual meeting (unless the deputy does not live in the town), at which point a new clerk would be elected to fill the position for the remainder of the term. RSA 669:65. If there is no deputy or the deputy does not live in town, the select board would fill the vacancy, and that person would serve until the next annual meeting. RSA 669:65. In contrast, the deputy town clerk-tax collector serves in the position until such time as the select board fills the vacancy, and the select board must act within 30 days. RSA 669:66. Note, of course, that when the town clerk-tax collector is merely “temporarily incapacitated” the deputy will serve until his/her return. RSA 41:45-c. It may, in some instances, be a challenge to determine whether the principal is merely “temporarily incapacitated” or is vacating the position. Q. What authority do the statutes give the town clerk / town clerk-tax collector over employees in his/her office? A: Well, none really. For the everyday employee (not “deputies”), there is nothing in the statutes regarding the relationship or oversight of employees by the town clerk / town clerk-tax collector unlike, say, provisions in the statutes relating to libraries and library trustees. As a consequence, the default rule applies – the governing body is charged with hiring, firing, management, and oversight of employees, even employees working with or for the town clerk / town clerk-tax collector.
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