New Hampshire Town and City May-June, 2016

May/June 2016

TownandCity N E W

H A M P S H I R E

In This Issue:

A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION

Volunteer, On-Call, and Employee Fire Departments: Understanding the Law................................................9 Recruiting a More Diverse Fire Service......................13 If You See Something Suspicious, Say Something to Local Law Enforcement..........................................15 Six Steps to Recruiting a Great Police or Fire Chief......17

Contents Table of

Volume LIX • Number 3

May/June 2016

3 A Message from the

NHMA Executive Director

5 Happenings 7 Upcoming Events 26 Up Close and Personal on the Board: Shaun Mulholland 27 Up Close and Personal in the Field: Betsy McClain 28 Tech Insights: Are You Prepared for Disaster?

30 The HR Report: New Hampshire Supreme Court Holds that All Employees Face Individual Liability for Workplace Harassment 32 Legal Q and A: Deploying Police Body Cams – Issues & Limitations

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Volunteer, On-Call, and Employee Fire Departments: Understanding the Law

13

Recruiting a More Diverse Fire Service

15

If You See Something Suspicious, Say Something to Local Law Enforcement

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Six Steps to Recruiting a Great Police or Fire Chief

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The Early Years of the New Hampshire Municipal Association (1975-1984)

Cover Photo: Deering Town Hall, photo supplied by Russell McAllister, Deering’s 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

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 2016 New Hampshire Municipal Association

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New Hampshire Municipal Association

Board of Directors The Board of Directors oversees NHMA’s league services. The board is comprised of 25 local officials elected by NHMA member municipalities.

Seated, left to right: Chris Dwyer (Councilor, Portsmouth), Stephen Fournier (Town Administrator, Newmarket; Immediate Past President), Donna Nashawaty (Town Manager, Sunapee; Treasurer); Scott Myers (City Manager, Laconia; Chairman), Shelagh Connelly (Selectman, Holderness; Vice Chairman), Elizabeth Dragon (City Manager, Franklin), Elizabeth Fox, Assistant City Manager/Human Resource Director, Keene), and Elaine Lauterborn (Councilor, Rochester).

Standing, left to right: Eric Stohl (Selectman, Columbia), Ben Bynum (Clerk/Tax Collector, Canterbury), Bill Herman (Town Administrator, Auburn), Hal Lynde (Selectman, Pelham); Phil D’Avanza (Planning Board, Goffstown), John Scruton (Town Administrator, Barrington), Brent Lemire (Selectman, Litchfield), Teresa Williams (Town Administrator, Wakefield), Patrick Long (Alderman, Manchester), David Caron (Town Administrator, Jaffrey), Shaun Mulholland (Town Administrator, Allenstown) and Jim Maggiore (Selectman, North Hampton).

Missing: Candace Bouchard (Councilor, Concord), Butch Burbank (Town Manager, Lincoln), Priscilla Hodgkins (Clerk/Tax Collector, New Castle), Nancy Rollins (Selectman, New London) and David Stack (Town Manager, Bow).

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THANK YOU TO OUR TOWN & CITY ADVERTISERS HEB Engineers Tighe & Bond, Inc. Vachon Clukay & Company, PC Primex

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PFM Asset Management, LLC Upton & Hatfield, LLP NH Municipal Bond Bank Mitchell Municipal Group, PA NH Correctional Industries TD Bank Soule, Leslie, Kidder HealthTrust, Inc. DuBois & King, Inc. Municipal Resources, Inc. Avitar Associates DTC Lawyers RMON Networks Boutin & Altieri, PLLC

A Message from the

NHMA

Executive Director Judy Silva

I

hope you have noticed that NHMA is celebrating its 75th Anniversary this year! We have been running a series of special anniversary articles in Town and City magazine which illustrate convincingly that history repeats itself!

Tim Fortier, NHMA Communications and Member Services Coordinator, is the work horse behind these special features. In addition to his normal duties, Tim has been poring over old Town and City magazines, old board records, and other historical data to craft these special anniversary articles.

In addition, at the end of March, we went live with our NHMA 75th Anniversary web page. Have you seen it yet? I highly recommend you take a look! Another Tim Fortier production, the special web site contains a time line of events for each decade in NHMA’s history. Included are photos of past board members, executive directors, staff members, and office locations. Tim has pulled snippets from old records, media sources of the time, and legislative history to tell the story of the development of a state municipal league by and for municipal officials.

NHMA staff have laughed (maybe so we wouldn’t cry) at the fact that we deal with virtually the same issues in the legislature in 2016 as we did in the 1960s.

State aid, property taxes, junk cars, economic development, tax exemptions, and regional planning were all issues in the 1960s. It would appear from old records that we did not always have the best relationship with the legislature, and that we have been concerned about the state-local partnership and who has what authority for many years. It was in 1967 that NHMA members first voted to support a constitutional home rule amendment. My quiz for you is when was the second time NHMA supported a home rule amendment? I think you’ll find the answer in this edition of Town and City. Enjoy the historical ride, and be sure to check out the special new 75th Anniversary web page at www.nhmunicipal.org.

Underwood Engineers Melanson Heath Roberts & Greene, PLLC Coppola + Company

Warmest regards,

Drummond Woodsum Preti Flaherty Gardner, Fulton & Waugh Davis + Towle Insurance Group

Judy Silva NHMA Executive Director

Peoples United Bank

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Wednesday, May 4, 2016

5:30 p.m.— 7:30 p.m.

Meredith Community Center, Meeting Room B One Circle Drive, Meredith NH 03253 The Right-to-Know Law 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 should be aware of the law and what their responsibilities are regarding both public meetings and governmental records.

This free session is open to all local officials from NHMA member municipalities. NHMA Legal Services Counsel, Stephen Buckley, will provide an overview of the law and address some of the most difficult issues under the law, including confidential information, electronic records and communication, procedures for non-public session, and communications outside a meeting. There will be ample time for questions and answers on all aspects of the law.

Register online at www.nhmunicipal.org under CALENDAR OF EVENTS

Questions? Please call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org.

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HAPPENINGS Award for Excellence in Financial Reporting The Government Finance Officers Association (GFOA) established the Certificate of Achievement for Excellence in Financial Reporting Program (CAFR Program) in 1945. This award encourages and assists state and local governments to go beyond the minimum requirements of generally accepted accounting principles to prepare comprehensive annual financial reports that evidence the spirit of transparency and full disclosure and then to recognize individual governments that succeed in achieving that goal. The program is not designed to assess the financial health of participating governments, but rather to ensure that users of their financial statements have the information they need to do so themselves. GFOA recently announced the award of this Certificate of Achievement for fiscal years ending in 2014 to the following New Hampshire political subdivisions: Entity

Number of Years Awarded

Town of Bedford City of Concord Town of Derry City of Dover Town of Londonderry City of Nashua City of Portsmouth Strafford County

11 20 18 11 12 10 22 11

Congratulations to the dedicated financial staff at each of these entities! And a special thanks to Melanson Heath & Company, PC for serving as a CAFR reviewer for over 10 years. For more information about the award program including the judging process and how to become a participant, visit the GFOA website at www.gfoa.org/awards. www.nhmunicipal.org

Send Us Your Town and/or City Hall Photo

As NHMA begins “Celebrating 75 Years of Service to Your Hometown,” we need your help. NHMA asks all members to forward to us an updated photograph of your town or city hall. The city and town hall photo boards at our offices are very old.

To help us celebrate this important event, please send your photograph of your town or city hall to Tim Fortier at tfortier@nhmunicipal.org. Please supply your photograph electronically, preferably in one of the following compatible file formats: .eps; .tif; and .pdf.

Manchester Police Chief Nick Willard Named to National Task Force Addressing Heroin and Opioid Abuse The National League of Cities (NLC) and the National Association of Counties (NACo) recently announced the memPolice Chief Nick Willard, City of bers of a new joint Manchester national task force to address our nation’s opioid and heroin abuse crisis. The City-County National Task Force on the Opioid Epidemic is comprised of city and county leaders from across the country who will aim to enhance awareness, facilitate peer exchanges and identify sound policy and partnership solutions. Manchester

Police Chief, Nick Willard has been appointed to serve on this national task force and is the only law enforcement officer on the task force.

Chief Willard has been at the forefront of the opioid epidemic by vocalizing the need to work together with recovery centers, city, state and federal officials. In fact, Chief Willard testified at a United States Senate hearing to stress the need for funding. The opioid crisis in the Queen City took the lives of 96 people in 2015 and has already claimed 20 lives since January 2016.

The task force will take the following actions: (1) Conduct at least two national dialogues where city and county elected leaders will explore the comprehensive issues related to this crisis, growing trends and proven responses; (2) DevelM AY / J U N E 2 0 1 6

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HAPPENINGS from page 5 op educational opportunities for counties and cities through special forums, educational workshops, webinars and other opportunities; and (3) Publish a national summary report of city-county collaboration, focusing on community prevention and overdose response, effective treatment options, public safety enforcement and supply reduction.

Sunshine Week Brings Light to State’s Right-to-Know Law In recognition of Sunshine Week, a national initiative to promote open government, the Nackey S. Loeb School of Communications and the New England First Amendment Coalition hosted a panel discussion concerning the key to open government in New Hampshire – the state’s Right-to-Know law.

(From left to right: Lisa English, Senior Assistant Attorney General; Cordell Johnston, NHMA Government Affairs Counsel; Trent Spiner, President, New England Press Association; and Rick Gagliuso, attorney and board member, New England First Amendment Coalition)

NHMA’s Government Affairs Counsel, Cordell Johnston, served on this panel discussion entitled, “The Right-to-Know in New Hampshire: Where are we, where are we going?” Other participants included news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right-to-know.

Assessing Officials Meet to Discuss Access to Private Property for Assessment Purposes

MEMBER ALERT:

NHMA’s Executive Director, Judy Silva, and Staff Attorney, Margaret Byrnes, addressed roughly 40 members of the New Hampshire Association of Assessing Officials during its monthly meeting in February at NHMA offices.

The topic of discussion was the Fourth Amendment and the legal access to private property for assessment purposes.

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NHMA’s Silva Serves on NLC Board of Directors In her new role as a National League of Cities (NLC) Board of Director, NHMA’s Judy Silva joined over 1,500 other local government leaders from across the country in Washington for NLC’s annual conference known as the Congressional City Conference. The annual event addressed federal policies that affect cities, such as funding opportunities, infrastructure, public safety, federal regulations, among many other issues.

National League of Cities (NLC) Executive Director, Clarence Anthony, addresses NLC Board of Directors at 2016 Congressional City Conference

After every town or city election, please update official roster and member contact information: NHMA depends on its members to keep us up-to-date on changes that occur in municipal positions.

After each town or city election, we ask our members to identify and update all newly-elected and reelected officials from your city or town. By this action, you help us to maintain the 2016-2017 New Hampshire Municipal Officials Directory as a valuable member resource. NHMA relies on this vital contact information to reach municipal officials and staff with timely information regarding available training, programs and services as well as important legal and legislative updates throughout the year. This publication is also used extensively as a valuable reference tool by city, town, school and other local government officials.

Please log onto www.nhmunicipal.org and go to Member Directory Updates in the Member Toolbox. If you don’t know who in your city or town has access or responsibility to do this, please contact Judy Pearson at jpearson@nhmunicipal.org or 230.3355. This is also the time to update who receives a complimentary Town and City magazine subscription as part of your membership with us.

Please update this information by May 31. Thank you in advance for all your help!

NEW HAMPSHIRE TOWN AND CITY

www.nhmunicipal.org

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.

MAY

JUNE

Workshop: Right-to-Know Law: Current Issues Wednesday, May 4 5:30 p.m. - 7:30 p.m.

Meredith Community Center, Meeting Room B, One Circle Drive, Meredith

Local Officials Workshop Saturday, June 4 9:00 a.m. – 4:00 p.m.

NHMA Offices 25 Triangle Park Drive, Concord

Webinar: Right-to-Know or Right to Privacy?

Wednesday, May 11 12:00 p.m. – 1:00 p.m.

Webinar: 2016 Legislative Wrap-up Wednesday, June 8 12:00 p.m. – 1:00 p.m.

Local Officials Workshop Thursday, May 19 9:00 a.m. – 4:00 p.m.

McIntyre Building/Auditorium 16 Highland Street, Whitefield

It’s a Hard Road to Travel Workshop Friday, June 10 9:00 a.m. – 12:00 p.m.

NHMA Offices 25 Triangle Park Drive, Concord

Local Officials Workshop Wednesday, May 25 9:00 a.m. – 4:00 p.m.

Carroll County Complex 95 Water Village Road, Ossipee

Fundamentals of Local Welfare Workshop Thursday, June 16 9:30 a.m. – 2:15 p.m. (Registration at 9:00 a.m.)

NHMA Offices 25 Triangle Park Drive, Concord

29th Annual Mountain of Demonstrations Hosted by the New Hampshire Road Agents Association Thursday, May 26 8:00 a.m. – 1:00 p.m.

Mt. Sunapee Resort, Newbury

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Volunteer, On-Call, and Employees Fire Departments: UNDERSTANDING THE LAW

By Margaret M.L. Byrnes, NHMA Staff Attorney

Did you know there is no law that requires a municipality to establish a fire department? But when a municipality does have a fire department, there are so many aspects to be concerned with that sometimes the “basics” can be forgotten.

For example, it may be easy to overlook some administrative elements, particularly regarding classification and compensation of firefighters.

Because errors in this area can create legal issues for municipalities, let’s review both the relevant New Hampshire and federal law.

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Volunteer, On-Call, or Employee?

The first step is determining what kind of fire department you have. According to the New Hampshire Department of Safety website, there are three basic categories of firefighters in New Hampshire: volunteer, paid on-call, or permanent employees. Call and volunteer firefighters are defined under New Hampshire law as firefighters who are not regularly employed by a fire department of any city, town or precinct in the state but who answer for duty only to fire alarms and who have been appointed by the fire department with which the firefighter serves. RSA 281-A:2, I. In fire departments that designate themselves as “call fire departments,” there are generally no regularly-staffed shifts, and firefighters respond to calls, receiving a level of compensation on a per call basis, or perhaps as a monthly stipend. According to the New Hampshire Department of Safety, about 80% of New Hampshire fire departments operate as volunteer or on-call.

The final category consists of those who are permanent firefighters or career firefighters—i.e., employees. https://www. nh.gov/safety/divisions/fstems/training/becomff.html.

Why Does Classification Matter?

There are requirements for certain permanent or employee firefighters that do not also apply to volunteer and on-call firefighters, and there are other considerations for on-call or volunteer firefighters that municipalities must be aware of.

First, those who qualify as “full-time career firefighters” must satisfactorily complete a preparatory program of fire training consisting of an accredited certification program meeting the objectives of a nationally accepted standard regarding firefighter professional qualifications. RSA 21-P:29 (I). Under the New Hampshire Department of Safety Administrative Regulations, “full-time career fire personnel” means firefighters, fire officers, rescue personnel connected with fire departments, fire prevention officers, inspectors, investigators, fire instructors, public education specialists, fire alarm personnel, or any other personnel who are members of fire departments or fire-related state agencies, whether full or part-time any fire service personnel, who are: (a) Employed as a member of one or more fire departments of the state, political subdivision of the state, or private fire department providing fire services to the general public; and (b) Working in such a capacity for an average of 30 hours per week or more during any consecutive 12-month period. Fire 101.17; Fire 101.16; RSA 21-P:25, II(c).

These regulations, which include the minimum standards and qualifications for proper certification, can be found at

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http://www.gencourt.state.nh.us/rules/state_agencies/fire. html. While other on-call or volunteer firefighters are not subject to these same requirements, there are obvious reasons for a municipality to consider training for all firefighters.

Second, for those municipalities with firefighters who are not employees—volunteer or on-call firefighter departments—payment of firefighters can be a complicated issue.

Both state and federal law allow for some payment of these “non-employees,” but there are significant limitations that must be understood. Under New Hampshire law, individuals who perform services but do not receive “significant remuneration” are exempted from the definition of employee.

RSA 281-A:2, VII(b). Furthermore, RSA 508:17, V(c) defines “volunteer” as “an individual performing services for a nonprofit organization or government entity who does not receive compensation, other than reimbursement for expenses actually incurred for such services.” And, as noted above, call or volunteer firefighters are not “regularly employed” by municipal fire departments. RSA 281-A:2, I. The federal Fair Labor Stands Act (FLSA), which establishes, among other things, a national minimum wage and overtime compensation requirements, similarly provides: The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—(i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (ii) such services are not the same type of services which the individual is employed to perform for such public agency.

29 U.S.C. § 203(e)(4)(A).

The corresponding federal code allows volunteers to be “paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.” 29 C.F.R. §553.106.

The federal code, 29 C.F.R. §553.106, provides a variety of ways in which any volunteer can be paid without converting the individual into an “employee” for the purposes of the FLSA. Things like a uniform allowance, reimbursement for transportation, or a municipality paying for workers’ compensation insurance will not automatically deem someone an “employee” for the purposes of the FLSA. In fact, the federal code specifically allows the “per call” payment of non-employee firefighters, with limitations:

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FIRE DEPARTMENTS from page 9 (e) Individuals do not lose their volunteer status if they receive a nominal fee from a public agency.

A nominal fee is not a substitute for compensation and must not be tied to productivity. However, this does not preclude the payment of a nominal amount on a “per call” or similar basis to volunteer firefighters. The following factors will be among those examined in determining whether a given amount is nominal: The distance traveled and the time and effort expended by the volunteer; whether the volunteer has agreed to be available around-the-clock or only during certain specified time periods; and whether the volunteer provides services as needed or throughout the year. An individual who volunteers to provide periodic services on a year-round basis may receive a nominal monthly or annual stipend or fee without losing volunteer status.

Understanding the limits on compensating non-employee firefighters is crucial because paying an on-call firefighter like an employee could convert him or her to “employee status,” which would trigger additional legal requirements like overtime compensation and minimum wage. For example, in a case from Michigan, decided by the Fed-

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eral Court of Appeals, Sixth Circuit, so-called “volunteer” firefighters who were paid $15.00 per hour when they responded to calls were regarded as “employees” under the FLSA because this hourly pay was more than a nominal fee for this type of work. Mendel v. Gibraltar, 727 F.3rd 565 (6th Cir. 2013). The court, in reaching its decision, applied the following standard: If the hourly wages are compensation, then the firefighters are employees under the FLSA. Conversely, if the wages are merely a nominal fee, then the firefighters are volunteers expressly excluded from the FLSA’s definition of employee. Mendel v. City of Gibraltar, 727 F.3d 565, 570 (6th Cir. 2013).

The court also noted that the federal regulations advise that, to determine whether an individual loses volunteer status due to the type and amount of payment provided, we must examine “the total amount of payments made (expenses, benefits, fees) in the context of the economic realities of the particular situation.” Id. at 570-71; 29 C.F.R. § 553.106(f ). In determining whether a fee is nominal, the United States Department of Labor often uses the so-called “20% rule.” Under this rule, a fee is nominal as long as it does not exceed 20 percent of the amount that otherwise would be required to hire a permanent employee

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for the same services. See Wage and Hour Opinion Letter, FLSA2008-15 (December 18, 2008). The Mendel decision also reminds us that simply calling someone a “volunteer” does not automatically make them one.

The New Hampshire Supreme Court has not yet addressed this issue, but it is reasonable to conclude, based on the federal and state law, as well as this advisory case from the Sixth Circuit, that New Hampshire firefighters may be paid on a per call or stipend basis, without transforming them into employees, as long as the amount is nominal, is not tied to productivity (i.e. compensation or pay based on “hours worked”), and takes into account the factors set out in §553.106(e), cited above.

The “7(k) Exemption”: Overtime Municipalities with career (employee) firefighters must be concerned with overtime work. Under the FLSA, employees are designated as either exempt or non-exempt. As a general proposition, employees designated as “exempt”—falling into the “executive,” “administrative,” or “professional” category—are exempt from overtime requirements, while non-exempt employees are entitled to overtime compensation for hours worked in excess of 40 per week. Firefighters, as well as police officers and similar employees,

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are generally not “executive,” “administrative,” or “professional” employees, even if they supervise coworkers, because “their primary duty is not management of the enterprise.” 29 C.F.R. §541.3(b). Therefore, career firefighters are generally non-exempt and entitled to overtime compensation, unless they head a department or division and qualify for the executive exemption.

However, in recognition of the special scheduling challenges and budgetary pressures that burden virtually all municipal employers, FLSA rules permit public agencies to use a work period longer than one week and to pay public safety employees, including firefighters, at non-overtime rates for a specified number of hours above 40 during that period—the so-called 7(k) exemption. 29 U.S.C. §207(k).

Employees engaged in fire protection or law enforcement may be paid overtime on a “work period” basis. A “work period” may be from seven consecutive days to 28 consecutive days long. For example, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day work period, while law enforcement personnel are due overtime after 171 hours worked in a 28-day period. This calculation is prorated for work periods of more than seven and less than 28 days.

Furthermore, under certain prescribed conditions, a State or local government agency may give compensatory time, at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. Employees engaged in police and fire protection work may accrue up to 480 hours of compensatory time. An employee must be permitted to use compensatory time on the date requested unless doing so would “unduly disrupt” the operations of the agency. At the time of termination an employee must be paid the www.nhmunicipal.org

Fire chiefs have authority and responsibility in a variety of areas, including: 1. Control of firefighters, officers, and equipment, RSA 154:2, I 2. Enforcing local and state laws and rules related to hazardous and combustible materials, fire exits, safety measures, RSA 154:2, II(a) 3. Enforcing the state fire code, RSA 154:2, II(b) 4. Inspecting hazardous buildings, RSA 154:2, III 5. Seeing to training and preparation of firefighters, RSA 154:4 6. Ensuring that all fire apparatus is in proper working order and that all water sources are kept in order within the available funds, RSA 154:6 7. Controlling and directing activities at a fire, service call or other emergency, RSA 154:7, :7-a, and :7-b 8. Directing all apparatus, persons, and proceedings relating to any fire or other emergency, RSA 154:8 9. Inspecting school buildings, RSA 153:14, II(b) 10. Deeming buildings hazardous and giving notice of required repairs, RSA 154:20 - :21 11. Ordering buildings that pose a “a clear and imminent danger” to be vacated, RSA 154:21-a higher of (1) his or her final regular rate of pay or (2) the average regular rate during his or her last three years of employment for any compensatory time remaining “on the books” when termination occurs. For more information on state and local governments under the FLSA, see Fact Sheet #7.

Finally, also note that, under the FLSA, 29 U.S.C.A. § 213(b)(20), the overtime requirements do not apply to certain fire departments at all, specifically:

enforcement activities (including security personnel in correctional institutions), if the public agency employs during the workweek less than 5 employees in fire protection or law enforcement activities, as the case may be . . . .

Margaret M.L. Byrnes is Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.

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Recruiting a More Diverse Fire Service

By Candice McDonald, MA

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y grandmother was born in the 1940s, but it wasn’t until the year 2014, at the age of 73, that she was recruited into the fire service as a member of Fire Corps. She will tell you that during her youth, having women in the fire service was something that was not culturally promoted or accepted. Fortunately, we have come a long way since my grandma’s youth. Women are not only serving on the frontlines, but they have also successfully climbed the ranks to leadership positions.

However, we still have a lot of missed opportunity. Women make up just over half of the U.S. population but comprise only a small percentage of the fire service. The International Association of Women in the Fire and Emergency Services reports that there are approximately 6,200 female career firefighters and an estimated 35-40,000 female volunteer firefighters. This is out of a total of 1.1 million firefighters in the U.S. Yet new research by the National Volunteer Fire Council shows that women have just as much interest in becoming a volunteer emergency responder as men. What we find then is what has been a largely untapped market of potential volunteers for departments to reach.

Adding women to the roster comes with benefits. Membership diversity not only creates a team that mirrors the demographics of the organization’s community, but for the volunteer fire service, which often struggles to keep its rosters full, it offers a new group of potential recruits. It is up to each department to be proactive in marketing to unreached groups. Recruitment strategies can include community-based efforts, campus efforts, specialized programs, and social media.

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Community-Based Recruitment Taking a grassroots approach to recruitment has been found to be an effective strategy for recruiting underrepresented groups. Designate and train department members to be recruitment ambassadors. This is the same philosophy that colleges use across the country to boost enrollment. Send recruitment ambassadors into the community to speak/display in natural settings where potential recruits gather. Visit community organizations where they are already volunteering. Set up a table display in shopping areas, fitness centers, and in other high traffic areas.

Before venturing out, be sure recruitment publications reflect the idea of diversity. Avoid using the word “fireman” and stick to the term “firefighter” instead. Ensure photos on print materials show both men and women in action. Steer clear of photos that show women in traditionally accepted roles, such as rehab/canteen service and EMS. While these roles are important, only displaying these types of photos can set limitations in the minds of the potential recruits.

High School and Campus Efforts Fire service recruitment has traditionally been through word-of-mouth efforts. This is why we see multi-generations of families serving as firefighters. We need to expand our efforts and be visible in places where diverse groups of youth are present. Establish relationships with local high schools and colleges. Many students are looking for ways to volunteer in the community, and the fire service may not have been one that crossed their minds. Sending a current female firefighter with a passion for recruitment onto the campuses is also a best practice.

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DIVERSE from page 13 It is your job to get future recruits excited about the fire service. Host fun recruitment events at the school that involve student participation. Offer students the opportunity to crawl through a maze trailer or get some time on the nozzle. One method for ensuring gender inclusion during such events is to require teams of two consisting of one male and one female member.

Apprenticeship and Specialized Programs Mentoring and apprenticeship programs are important for both the recruitment and retention of members.

These types of programs are effective methods for increasing on-the-job confidence and performance.

My first introduction to a mentoring system as a new recruit came from a weekend at the Ohio State Fire Academy. Each year the academy offered a course, Can You Take the Heat?, which was instructed solely by women fire instructors from across the state. This course offered women the opportunity to spend a weekend finding out what it was like to be a firefighter. Participants received both classroom and hands-on experience. Those that participated walked away with the confidence that they could do the job and a support system to turn to when they felt challenged. Offering a similar introduction course at your department is a great way for those on the fence about volunteering to give it a try without worrying about commitment.

Social Media Engagement through social media done well can become the best method for reaching new recruits. Technology is how we communicate, socialize, gather information, and interact with one another. Social media can bridge the gap between someone who may be interested, to someone who actually 14

gets involved. Leveraging social media as a recruitment tool has a greater reach than flyers and newspaper ads. Create compelling content that encourages audience interaction. Post photos and videos that show department diversity.

Share links to volunteer opportunities and create an online event extending an invite to attend an informational meeting about the fire department.

For those departments that are new to the recruitment of underrepresented populations, the International Association of Women in Fire & Emergency Services can provide additional guidance on best practices. Visit https://iwomen.org/challenges/recruitment/.

Candice McDonald is a firefighter/ EMS Officer with the Winona Fire Department and works for NASA in the Office of Protective Services. She is the co-chair of the Cumberland Valley Volunteer Firemen’s Association Reputation Management Committee and an active member of the ResponderSafety.com outreach team, is a trustee for the International Association of Women in Fire and Emergency Services, and has served as the appointed Fire Corps State Advocate for Ohio and in other capacities for the National Volunteer Fire Council since 2009. McDonald is currently pursuing a doctor of business administration with a specialty in homeland security. She holds a master’s degree in organizational leadership, a bachelor’s in business administration, and associate’s in health and human services. She is an instructor at Stark State College, contributing author to numerous publications, and has traveled the country for the past 15 years empowering individuals and organizations. www.CandiceMcDonald.com.

This article reprinted with permission from the National Volunteer Fire Council (NVFC), a leading nonprofit membership association representing the interests of the volunteer fire, EMS, and rescue services.

NEW HAMPSHIRE TOWN AND CITY

www.nhmunicipal.org

Mark your calendars for the

If You See Something Suspicious, Say Something to Local Law Enforcement

2016 Budget & Finance Workshops

New Hampshire Homeland Security and Emergency Management (HSEM) encourages local, state and federal agencies to work together to create safer communities by promoting “If You See Something, Say Something,”™ a campaign Tuesday, September 20 used to raise awareness of what suspicious activity is and how to report it.

Puritan Event & Conference Center,

“It’s up to each of us to do our part to keep our state safe,” HSEM Manchester NHsaid. “The people who know best when Director Perry Plummer something doesn’t seem quite right in a community are the people who live and breathe in that community every day. That’s why we’re asking everyone to report suspicious activity to local law enforcementAttendees or to 911.” will receive the 2015-2016

Tuesday, September 27 Attitash Grand Summit Hotel, Bartlett NH

Edition of The Basic Law It is important to know what to A report, he said.

Suspicious activity is behavior that you have&observed that could indicate of Budgeting: Guide for Towns, Village Districts School terrorism or terrorism-related activity, including unusual items or situations such as an unattended bag, unusual behavior Districts with 2016 Supplement! such as a person asking questions about building security or procedures, or surveillance such as a person paying unusual attention to a building, Plummer *Agendasaid. and registration information will be available in July.

Importantly, the “If You See Something, Say Something™” campaign emphasizes behavior, not appearance, in identifying suspicious activity, he said.

To report suspicious activity, contact your local law enforcement or 911. Tell them who or what you saw, when you saw it, where it occurred, and why it was suspicious.

If you would like printed materials to help promote “If You See Something, Say Something™” in your town or city, please contact HSEM Assistant Director Jennifer Harper at Jennifer.Harper@dos.nh.gov or 223-3615.

Mark your calendars for the

2016 Budget & Finance Workshops Tuesday, September 20

Tuesday, September 27

Puritan Event & Conference Center, Manchester NH

Attitash Grand Summit Hotel, Bartlett NH

Attendees will receive the 2015-2016 Edition of The Basic Law of Budgeting: A Guide for Towns, Village Districts & School Districts with 2016 Supplement! *Agenda and registration information will be available in July.

www.nhmunicipal.org

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NEW HAMPSHIRE TOWN AND CITY

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Six Steps to Recruiting a Great Police or Fire Chief

By Rick Dacri, Dacri & Associates, LLC

P

olice and fire departments help form the fabric of your city or town. From the sounds of the sirens, to the classic blue uniforms, the fire trucks leading the Memorial Day parade, or our first responders’ bravery and strength on the front lines of a tragedy, police and fire represent your municipality’s values, beliefs, and community culture. So, when police or fire leadership must change, a tired recruitment approach and an outdated job description are insufficient to fill such an important role.

Too many personnel searches fail before the recruitment process even begins. In some cases, town managers, eager to quickly fill an opening, begin the process unprepared, without fully thinking through their needs.

Successful recruitment includes six essential elements for hiring the right police or fire chief for your municipality: Know thyself: You must fully understand your city or town before you can picture your ideal candidate.

Know where have you been and what brought you here; where are you going and how you plan to get there; what your short term and long term challenges are and how you will meet them. Remember, a candidate, inexperienced in addressing your challenges, is likely to fail. And a candidate must be able to fit within your community: A police chief who has never seen snow may face serious challenges come January!

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Be a visionary: Develop a clear candidate profile.

What qualities will the successful candidate possess?

The successful candidate will be the right person, not just a job description.

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As an example, I recently assisted a town manager in replacing his police chief.

The town manager realized that, in order to identify the right candidate, he would need to forecast the needs and challenges ahead for the department.

So we began the process of objectively assessing and analyzing the department’s current and future needs by consulting with the police department’s leadership and staff, key town department heads, the town council. We then informed community members, giving them an opportunity to provide input on the department and its future direction. The town manager used the unbiased, objective assessment that resulted to develop the ideal candidate profile for the next police chief.

In developing the profile of your ideal police or fire chief, look at six critical elements: 1) job priorities, including the specific education, experiences, and technical knowledge required; 2) professional characteristics; 3) essential personal traits; 4) negative traits--traits that will make the individual unsuccessful; 5) short term challenges the candidate would face immediately upon starting the job; and 6) long term challenges he/she would face in your community and state.

Armed with this profile, you can identify what you need in a candidate, what you do not want, where you should find such a candidate, and what questions you must ask during the interview. You won’t find this depth of information in a job description.

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Location, location, location. Ask yourself, if I were looking for a police chief, where would I find one?

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SIX STEPS from page 17 The answer could be municipalities similar to yours; professional associations; police academies; etc. In other words, it isn’t just the internet. Employ all the best recruitment techniques to ensure you have a steady flow of qualified candidates. In addition, often the best candidate is employed and not looking for a new job (the so-called “passive candidate”). That’s why using recruitment ads alone does not work.

And don’t reshuffle resumes from neighboring communities’ searches.

Take another look: Put your candidates under a microscope.

You need to know everything about the person in front of you. Make sure the individual meets all your needs by conducting multiple interviews with tough questions from all the right people.

And don’t short cut references; ask the hard questions. You should never find that the person you hired is different from the person you interviewed.

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Once you’ve found your candidate, it’s critically important to conduct a thorough job interview. Prepare carefully.

Too many costly mistakes are made during the interview phase. Formulate questions before hand, which explore ability, skill and fit. Make the candidate work. This is not a time to throw softballs like, “What are your strengths and weaknesses?” and “Where do you see yourself in 5 years?”

Use a more meaningful approach: • Ask questions that will show you whether they can solve problems, handle a crisis, cope with a tragedy.

• Ask about trends they see and steps that must be taken to prepare.

• Ask questions that are behavioral in nature, requiring a response based on actual experience.

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• Create scenarios or case studies based on challenges your community faces.

• Require them to analyze issues and provide solutions.

Watch how he/she thinks, problem solves, analyzes and presents. Probe until you are sure that you have all the information you need. Listen to what the candidate says and how he/she says it. Ask the candidate if he/she has any questions; those questions will tell you a lot about the candidate. You want a thinker, a leader, an innovator, and someone who can see around corners.

Finally, hire for fit. You must focus on the person who will fit within your community. He or she is the one who can work with your staff, elected officials, and residents; assimilate within your culture and community; and adopt your town’s belief systems. Find people who best meet the requirements of the job. Critical job skills go beyond the technical and must include personality traits and those “soft skills” such as teamwork, relational competences, and empathy. Finally, select candidates with the right attitude.

Remember, one thing you cannot change in people is their inherent attitudes. Evaluate the impact your new hire will have on your staff, residents, and community. Be uncompromising about hiring the right person. If you make a bad-hiring decision, you will soon have to make the tough decision to terminate.

The end is only the beginning. Your job isn’t over when the hire is made. Provide post-hire coaching and executive coaching for your new hire. You want a smooth transition and many candidates need support to ensure they will hit the ground running. This is a critical element of the entire process, and, unfortunately, one that is commonly not even considered.

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Finding a new police or fire chief is probably the most important responsibility of your town manager and board. Be deliberate in your process.

Take the necessary time to do it right, but don’t make the process so protracted that you lose the candidate. Making great hires requires a planned strategic approach. Recruitment is complicated, but by following these steps, you can ensure you make a great hire. Your town or city depends upon it.

Rick Dacri is a workforce expert, management consultant, and author of the book “Uncomplicating Management: Focus On Your Stars & Your Company Will Soar.” Since 1995 his firm, Dacri & Associates, has helped municipalities achieve dramatic improvements in individual and organizational performance.

He can be reached at rick@dacri.com and www.dacri.com.

Pull no punches: Be clear about expectations. Before extending a job offer, be clear with the candidate about your expectations and goals and know whether your candidate has the ability and the desire to meet them. On the other side, be sure you know what the candidate’s expectations are of you. Remember, it’s a two way street.

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NEW HAMPSHIRE TOWN AND CITY

www.nhmunicipal.org

1975

1976

1978

1980

1982

1983

1984

The Early Years of the New Hampshire Municipal Association (1975-1984) “Mere Tenants-at-Will of their Respective State Legislatures” Did you know the United States Constitution makes no mention of local government? Instead, except as to those powers delegated to the federal government, the Constitution places all government authority onto state governments.

Traditionally, the towns like to think that they get to decide what goes on in their own back yards.

But the notion that home rule means a town can do whatever it pleases is not true; the real power around here often lies within the state.

As a result, in 1868, Judge John Forrest Dillon of Iowa determined that city governments could only act in areas expressly authorized by the state legislature. Dillon is quoted as calling municipalities “mere tenants at will of their respective state legislatures.” Today, 39 states continue to follow that rule, commonly known as “Dillon’s Rule”— which you probably know it as “No Home Rule”—and which provides that municipalities derive their authority from the state.

strong legislative oversight of local government, New Hampshire is not known as a home rule state. All powers of local government in New Hampshire stem from the legislature, and few freedoms have been delegated to units of local government. However, the concept of home rule is philosophically supported by many New Hampshire citizens.

In a Dillon’s Rule state, local governments lack authority to act unless they can show where a state law allows them to take that particular action, such as operating a parks system, maintaining a fire department, or imposing a tax. Dillon’s Rule allows a state legislature to control local government structure, methods of financing its activities, its procedures, and the authority to undertake functions. In a home rule state, local governments have greater autonomy: a local city or town can set up its own system of governance without receiving a charter from the state that comes with certain requirements and limitations.

“Here, by and large, home rule is a political slogan rather than a legal reality,” said Martin Gross, former Concord mayor and legal counsel to NHMA. “The state does what it pleases” is still the legal rule in New Hampshire.

New Hampshire’s Municipal Governments: “Creatures of the State” Consistent with the Northern New England tradition of www.nhmunicipal.org

The absence of constitutional home rule for municipalities, in a state whose people cherish the concept as an integral part of their democratic heritage, places a great deal of responsibility upon the elected state and municipal officials to deal with each other, not as master and servant, but as partners. The people of New Hampshire have a right to demand this partnership relationship between their municipal and state elected leaders.

In fact, in 1963, the legislature did provide a measure of independence for city governments. In that year an optional charter amending process was authorized whereby cities were granted limited permission to revise their basic laws without legislative approval. The overall picture of home rule development in New Hampshire, however, has been one of very little experimentation and progress.

In 1964, the New Hampshire Municipal Association, concerned with the viability of local government in the state, authorized an analytical study of state-local relations, the first critical analysis of New Hampshire local government and its relation to the State in over thirty years. Recommendations from the study included a local option provision for home M AY / J U N E 2 0 1 6

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THE EARLY YEARS from page 19 rule charters for towns of a certain size and fiscal capacity and a local government organizational scheme that would minimize state interference. The study did not result, however, in any renewed legislative consideration of home rule.

All of this is quite surprising when one considers that New England town meeting government historically has been identified with local democracy and a sense of pride and independence.

It is surprising, too, in view of the fact that as far back as revolutionary times, New England local communities claimed inherent local rights against their Colonial and State governments under the social compact theory of constitutional government. It was not until 1951 that Rhode Island became the first of the New England states to act on this important subject.

Attempts to Bring Home Rule to New Hampshire In the last 75 years, there have been numerous attempts to bring home rule to New Hampshire, including some legislative proposals and three resolutions to amend the New Hampshire Constitution introduced in Constitutional Convention.

such standards and requirement as the general court may establish by law in accordance with the provisions of this constitution.”

Records indicate this home rule proposal was defeated by convention delegates based on reasoning that this would completely reverse the existing process of government; that is, municipalities only had those rights and privileges and could only perform such functions as were granted to them by the state legislature. Delegates were concerned that municipalities would be free “to act in any way they see fit.”

Delegates ultimately defeated this proposal generally on the grounds that the status quo should continue.

The next attempt at home rule occurred with the introduction of two resolutions during the 1984 Constitution Convention. Each resolution proposed adding a sentence to Part I, Article 7 of the New Hampshire Constitution.

Resolution 20 added: “The powers not delegated to this state by this constitution, not prohibited by it to the cities and towns, are reserved to the cities and towns, or to the people.”

The first attempt at home rule occurred during the 1974 Constitutional Convention, in which a resolution was proposed to adopt a new Article 40 to Part 1 of the New Hampshire Constitution. The language of the proposed article read as follows:

Resolution 86 added: “Notwithstanding any other provision of this constitution to the contrary, no legislation enacted by the state shall deprive the municipalities of this state of the power to exercise concurrent jurisdiction over the same matter unless that legislation specifically prohibits the municipalities from exercising concurrent jurisdiction.”

“It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm the people of every city and town the right to self-government in local matters, subject to the provisions of this constitution, and so

Supporters argued that the state “was founded on the doctrine of home rule… on the doctrine that the government is best when governs least, which is governed closest to the people.” The home rule amendment, they advocated, would further this tradition and would solve the problem of not being able to act when the statutes were silent on specific issues.

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Opponents argued that this amendment would reverse the existing balance of power and shift too much power to local government. Dissenters were fearful that allowing cities and towns to have concurrent jurisdiction with the State on a variety of issues would erode the power of the State.

Ultimately, both resolutions suffered the same fate as the 1974 amendment.

Fast forward to November 2000, when a question was placed on the state election ballot asking voters of New Hampshire if they would approve a home rule constitutional amendment, which would not go into effect until and unless approved by two thirds of voters at the November 7, 2000 elections. Unfortunately, this question failed to muster that necessary two thirds vote to pass.

There are dozens of bills introduced each legislative session to allow certain municipalities to take specific actions. Often, these bills are not controversial and there is little or no opposition during the process, and yet, New Hampshire law requires them to undergo the legislative process. For example, one town had infrastructure need, and the other had land available for an economic development project.

They want to agree to share the property tax revenues from the project.

With home rule, legislative “permission” would not be required. However, in the absence of home rule, they must wait for the legislature to pass the bill before they can start the project.

As you can see, home rule means cities and towns would have the ability to efficiently adopt policies that best meet the needs of each municipality and its residents. Home rule authority would allow a wide variety of actions by the “local legislative body” without permission from the legislature, and, therefore, provides residents greater control over their town and city affairs. www.nhmunicipal.org

Can you imagine what our municipal leaders of 1941 would think of today’s NHMA? Even without the benefits of home rule, the growth and maturity would undoubtedly not only meet their expectations, but likely exceed it in many ways that were impossible for them to even predict. The one true goal that has certainly been achieved is that cities and towns, working together, have made a difference and improved the lives of New Hampshire residents.

1975 • In February 1975, John B. Andrews began his duties as executive director of NHMA. Andrews came to New Hampshire after a three and one-half years stint serving as assistant executive director of the Maine Municipal Association, specializing in policy development, affiliate group relations, legislative representation, and association management.

• NHMA hosted a series of lectures in 1975 on land use and planning called the Municipal Law Lecture Series. Typically three to six lectures, this series was designed to provide local officials in New Hampshire with information and basic legal guidance to enable them to function more effectively in their official positions in the local planning process. Today, NHMA continues to host these lectures during the fall for the benefit of its members.

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• NHMA installed its first “Wats” telephone line in 1975. “Wats,” Wide Area Telephone Service, is a special telephone line for long distance calls, and served as a toll free line for members calling from within New Hampshire.

• Computers were not commonplace in most New Hampshire municipalities in 1975, although, strange as it may seem, not only did most cities use computers, but also some smaller New Hampshire towns like Sugar Hill, Hill, Northumberland, Hinsdale and Conway, did as well.

• NHMA instituted a new service program, the Ordinance Review and Locating Service, in response to increasing requests for ordinances adopted by other New Hampshire towns and cities on a variety of subjects.

• Based on results of a Regional Goals Study conducted with members by NHMA, the Associa- NHMA’s First Staff tion added the Attorney, Dan Crean position of staff attorney. Daniel D. Crean of Pembroke, a graduate of Yale University, filled this position. Attorney Crean continues to collaborate with NHMA today on providing educational presentations to our members.

• Membership strength in NHMA reached an all-time high with 211 of New Hampshire’s 234 cities and towns joining.

• At a meeting of municipal and legislative officials with the topic of discussion being “establishing a state-municipal partnership,” State Representative Mary Chambers of Hanover empathized with the local officials saying “If the State imposed the same restrictions upon ourselves, as we do on municipalities, we (State) would be closed down.”

1976 • The town or city manager form of government grew with popularity in these days of increasing complexity of local government.

Maine had a large number of professional town and city managers (157) whereas New Hampshire had only 20.

• NHMA’s legislative policy process, generally as it is known today, was initiated in 1976. The new comprehensive committee process brought together for the first time 84 members from 41 municipalities in six policy committees. This new policy development process sought to bring together members, and representatives from affiliate groups, who had the everyday, working knowledge of the problems cities and towns faced that could be addressed by legislative change.

1977 • NHMA was instrumental in achieving passage of legislation creating the New Hampshire Municipal Bond Bank as a mechanism for reducing borrowM AY / J U N E 2 0 1 6

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THE EARLY YEARS from page 21

ing costs of long-term money to political subdivisions.

• Due to increasing professional responsibilities, in addition to being mayor of Concord, Attorney Martin Gross resigns from his position as legal counsel to the Association. After serving 7 years in this position, Gross opined in his resignation letter, “If I have contributed one tenth of what I have learned, then I can retire with a clear conscience.”

• In April, NHMA moved its offices to 193 North Main Street, also known as the Abbott House, in Concord. These quarters were much more conducive to staff morale and efficiency than was the old, third floor walk-up offices located on Depot Street.

The building today is occupied

by Plodzik and Sanderson, PA, a full-service accounting firm who have performed financial and compliance audits for municipal governments since 1975.

annual conference with its affiliate groups. On October 6 and 7, about 400 members including a number of affiliate groups met in Durham where there were concurrent sessions, keynote speakers, educational programming, entertainment and over 20 exhibitors.

1978 • The legislature enacted a law extending unemployment compensation benefits to public employees in 1978. In response, the Association established the NHMA Unemployment Compensation Fund. The Fund operated as a pooling of monies to pay benefits and offer claims challenges, statistical analysis and training services. There were 171 jurisdictions participating in this Fund, including 8 counties, 5 housing authorities, 4 regional planning commissions, 14 village districts and 140 cities and towns.

• The Administrative Procedures Act (RSA Chapter 541) was enacted in New Hampshire, although it will be several years before full implementation.

Since rules have the force of law if validly adopted and filed, municipal officials were intent to participate in state administrative policy formulation.

• Computers, or more precisely, the technology of Electronic Data Processing (EDP), was fast becoming essential office equipment for municipal governments to address increasing workloads to meet growing demands of its residents. Through NHMA, a Government Computer Users Group was formed.

1979 • The Town of Derry was the first municipality in New Hampshire to utilize the new Home Rule law when voters established a charter commission by a vote of 433-271. The Commission was charged with holding public hearings, studying town options and forms of government, and drafting a town charter for presentation to the voters.

• NHMA surveyed its members and found that 117 cities and towns held evening city and town clerk’s office hours (after 5 pm), including three cities. Of this total, 39 municipalities also had Saturday clerks’ office hours.

• NHMA is now moving cautiously from passive endorsements of insurance programs to program origination and development.

• The 1977 legislature enacted substantial revisions to the state’s Right-to-Know Law (RSA 91-A).

• NHMA’s professional recruitment service becomes a major member benefit for our members seeking to fill administrative, technical and professional vacancies.

• Promoted as a family reunion, NHMA holds its first joint

• In May, the toll-free WATS telephone number connecting

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NHMA offices with members was changed to 800-852-3358.

This telephone number remains the toll free number today for members to contact the NHMA.

NEW HAMPSHIRE TOWN AND CITY

• Governor Hugh Gallen said it was important for him to meet “the people who face the public www.nhmunicipal.org

every day.” Accordingly, two meetings were held at the Governor’s Bridges House in East Concord which focused on the need for caution in dealing with the state budget and the Governor’s keen interest in developing stronger lines of communications with local officials.

• In the 1979 legislative session, NHMA mailed 21 weekly bulletins to 515 local officials describing over 502 bills, and bringing notice to about 750 hearings. It was a good legislative year for NHMA where there was a net gain over the biennium of about $8.5 million in municipal aid. Members were credited as the key ingredient to this success for appearing at public hearings and making contact with their legislators.

• Each legislative session typically results in an appointment of a municipal official to a study committee, state board, commission or other special group. In 1979, there were six study committees that required member appointment and another eight appointments were sent to the Governor for subsequent review and consideration. NHMA continues to work with both the legislative and executive branches today in making these municipal appointments when they arise.

1980 • For the first time, information gathered from members for the 1980-1981 Directory of New Hampshire Municipal Officials was put on computer, in an effort to build a municipal database.

The projected municipal database was invaluable to NHMA in its role as an advocate for New Hampshire local government. www.nhmunicipal.org

• NHMA staff and municipal members were fully engaged with our national partner, the National League of Cities (NLC), in 1980, founded in 1924 and

of Paul Genovese, Director of Group Services, the Unemployment Compensation Trust Fund, also begun in 1979, grew to represent 167 entities, embracing some 10,400 employers and representing a fund of nearly $800,000.

1981

originally known as the American Municipal Association. Members would travel to Washington each year to meet with New Hampshire’s congressional delegation on municipal matters and intergovernmental relations. Today it represents a network of more than 19,000 cities, villages and towns of all sizes, either directly or through state municipal leagues.

• NHMA issued a new newsletter, the Town Crier, in 1980. It was designed to make key officials aware of available training or conference opportunities, notices of public hearings or meeting of interest to cities and towns, and other information of a short time-span nature. Today, NHMA communicates in a similar manner with members through our bi-weekly, electronic newsletter, NewsLink.

• Begun in 1979, the NHMA’s Workers’ Compensation Trust Fund grew to a level of 125 participating jurisdictions representing over $2.3 million of fund dollars. Under the direction

• Despite the gradual disappearance of cows and dirt roads from much of southern New Hampshire, state and local planners focused on ways to preserve some of the rural qualities that exist in New Hampshire despite the state’s population increasing by 160,000 over the past decade.

New Hampshire was then the fastest growing state in New England and the second fastest east of the Mississippi.

• As of January 1, 1981, the Workers’ and Unemployment Compensation Trust Funds were established as two separate and independently-managed funds.

Each trust was created as a separate legal entity from each other and from NHMA, although NHMA provided some services to the trusts under contract.

Each trust was governed by 13member board of trustees composed of elected and appointed officials of NHMA members participating in the trusts.

• Barton Mayer was hired as NHMA’s new staff attorney when Dan Crean resigned this post to enter full-time private practice in Concord. Mayer had previously worked with the New Hampshire Bureau of Solid Waste Management on hazardous waste issues.

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THE EARLY YEARS from page 23 • In 1981, NHMA mailed 23 weekly Legislative Bulletins to 660 local officials and legislators. The Bulletins covered activity of over 425 bills of interest to municipalities and notices of over 800 hearings. The 1981 legislative session experience highlighted the direction in which the state-municipal financial relationship appeared to be heading, that is, a trend toward having the local property tax assume larger and larger portions of the state’s financial burden.

• 1981 saw the initiation of a new Public Officials Liability program by NHMA. This plan offered a comprehensive coverage with premiums considerably lower than other non-group plans. Four cities and 26 towns elected to have this plan.

1982 • The price of a yearly subscription to New Hampshire Town & City increased from $5 to $8 to meet rising postage and printing costs.

• 93 moderators and local officials attended the first NHMA-sponsored Moderators Workshop in Concord. Topics addressed included the statutory powers of the moderator, town meeting appropriations, the moderator’s role in elections and appointments, and conducting the town meeting.

• At his own request, Governor Hugh Gallen met with the NHMA board for over an hour to discuss details and the extent of his commitment to balance the state budget without further burdening the 1982 property taxpayer. Eventually, the NHMA executive committee voted to endorse Gallen’s proposed budget plan.

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• Over 80 building inspectors and local officials gathered for the first NHMA-sponsored building inspector workshop. In cooperation with the New Hampshire Building Officials Association, participants heard speakers address current inspection and building code issues. NHMA was pleased with the support this program enjoyed, and began exploring cosponsoring more workshops with its affiliate groups.

1983 • NHMA’s Executive Director, John Andrews, was elected to serve a two-year term on the National League of Cities (NLC) board of directors composed of municipal officials and state municipal association directors from across the country. In 2016, Judy Silva, NHMA’s current Executive Director, was elected to serve on NLC’s board in guiding the nation’s largest and most representative membership and advocacy organization for municipal officials.

• Billed as a new NHMA staff member, the Televideo TS 806/20 computer system began services to New Hampshire municipalities in mid-November. The newly acquired computer systems accommodated up to six user stations and significant storage capacity.

The computer assisted greatly in reducing staff efforts regarding the Directory, surveys, publications and manuals, mailing lists, lobbying and budget analysis.

• As a result of a legislative study committee, the creation of “one stop” auto registration system was slowly implemented by the state Department of Safety. The first six municipalities to implement

NEW HAMPSHIRE TOWN AND CITY

the system in 1982 were Laconia, Hooksett, Amherst, Kingston, Conway and Dover. In order to set up as registration stations, towns had to: be open at least 30 hours a week; be willing to accept registrants from other towns; have a typewriter; have a secure, fireproof file; and have the consent of the governing body.

• The Highway Block Grant Program, support by both NHMA and Governor Sununu, was enacted giving cities and towns 12% of gasoline taxes and motor vehicle fees as aid; distributing this aid on a quarterly basis, half by population and half by road mileage; and eliminated the categorical aid accounts giving more local flexibility in the use of the funds.

• NHMA did act in 1983 on the insurance programming priority by creating a voluntary insurance development fund to retain a consultant to work on health, life and disability coverage. With the financial support of 103 municipalities and 7 counties, a firm was selected to begin its study in November.

This study was entered into due to high and growing costs of employee coverage and NHMA’s extremely successful experience with its workers compensation and unemployment compensation programs, which returned several millions of premium dollars to participants since 1979.

1984 • Current use taxation was a hot issue with some members in 1984. Several towns, especially those towns with large amounts of privatelyowned open space land, were unhappy with the current use tax scheme that encouraged the preservation of forest and open space by discouraging its conversions to more intensive development. www.nhmunicipal.org

NHMA Creates Webpage to Celebrate 75th Anniversary

• On November 7-9, 1984, NHMA held its annual conference at the Center of New Hampshire in Manchester. This marked the time the NHMA continued to hold its conference at this facility, today known as The Radisson Hotel, since the facility was large enough to host expanding workshop programming and exhibitor participation.

• Resulting from an 18-month insurance study commissioned by members, NHMA announced its self-funded, pooled plan called CostPlus. Blue Cross/Blue Shield of New Hampshire served as the claims administrator of the new plan which officially began on November 1, 1984, with over 125 participating entities, including cities, towns, village districts and regional planning commissions.

• [Art.] 28-a. [Mandated Programs.] The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the

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NHMA celebrates its 75th anniversary in 2016. This celebration will culminate at our Annual Conference at The Radisson Hotel in Manchester on Wednesday, November 16, with a gala 75th dinner celebration. We hope that you will join us at this celebratory event in November.

NHMA is also celebrating our leadership role in the development of local government in New Hampshire by creating this webpage devoted to the growth and development of this Association and municipal governments in New Hampshire over the past 75 years. So check it out. Learn about NHMA milestone events, historical accounts, and a wealth of other information that we hope you will find interesting, fun and educational. Explore our first 75 years at www.nhmunicipal.org. Please note this is a “work in progress” so members are encouraged to frequent this webpage. political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision. November 28, 1984 With the strong support of municipal officials, the 1984 Constitutional Convention voted overwhelmingly for a resolution to prohibit additional mandated costs on the property tax. The 272-62 vote represented a clear

understanding of the frustration experienced by citizens as well as local officials at mandated increases imposed on town, city, county and school property tax bills. Ultimately, the ballot question, appearing as Question #2, went before voters on November 6th and received the necessary two-thirds vote for final passage.

STAY TUNED. Look for more discussion of Article 28-a and state mandates in the next installment retracing our history in the upcoming issue of New Hampshire Town & City.

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UP CLOSE AND PERSONAL T

he Up Close and Personal column is designed to give readers a closer look at NHMA Board members. In this issue, we introduce Shaun Mulholland, town administrator for the Town of Allenstown. Shaun just began volunteering his time on the NHMA board in January. Shaun was awarded the 2015 Russ Marcoux Municipal Advocate of the Year Award recognizing him for his contributions toward the advancement of NHMA legislative policy goals and for the advocacy of municipal interests generally.

TC: What are your duties and responsibilities as town administrator?

SM: I am responsible for managing the administrative functions of the town such as the prudential affairs of the board of selectmen and on their behalf the following functions: assessing, finance, human resources, parks & recreation facilities, emergency management director, and management of town owned lands. I supervise the building inspector, health officer, tax collector, municipal agent and finance director.

TC: How has NHMA helped you to do your job?

SM: NHMA is critical to providing advocacy at the legislature for local government needs. No town or city has the staff able to commit to covering all of the issues before the legislature which affect local government.

Shaun Mulholland

TC: Give us an example of a problem you solved or a dilemma you faced and overcame in the line of duty?

SM: The biggest challenge I faced when I assumed my role as town administrator was to modernize town government. The processes we had in place were byzantine.

Using the LEAN process to transition our processes to electronic platforms that were integrated was essential.

TC: What is the public perception about your job and how does it differ from the reality of your job?

SM: The general public thinks that I run the town. The town administrator (TA) is a position which is not defined by statute. Town managers have statutory authority to manage department heads as well as hire and fire personnel independent of the board of selectmen. The authority and responsibilities of the TA position differ from town to town. In some communities, the TA simply carries out the orders of the board. In other communities, the TA has a more active role in the management of the town.

TC: What lessons about human nature have you learned in your municipal role?

SM: I think most people are drawn to government for the right reasons. They want to contribute in a positive way to ensuring the services we provide are effective and efficient.

TC: What advice would you give someone who would like to follow in your footsteps into this job?

SM: It is critically important to listen to what others have to say. Don’t fear issues you are not comfortable with or know little about. Make a point of discovering more about them. The more you know the more effective you will be in your position.

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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 local government officials from New Hampshire municipalities. In this issue, we hope you enjoy meeting Betsy McClain, Director of Administrative Services and Town Clerk for the Town of Hanover.

TC: What are your duties and responsibilities as Town of Hanover Director of Administrative Services and Town Clerk?

BM: As the staff person responsible for Hanover’s day-to-day financial operations, I oversee accounting, payroll, accounts payable, revenue collections, and tax and utility billing. I’m responsible for the preparation of the annual budget, financial audit preparation, and all financial reporting requirements. Several years ago, the town was struggling to generate interest in the town clerk position. Due to my Hanover residency, I was called into service, and, as a result, I am also the elected town clerk. With ever-changing election laws, and a local college participating enthusiastically in our elections, my role as town clerk provides a very different host of challenges beyond making sure my spreadsheets balance. I like to think of the unique combination of these responsibilities exercising both the left and the right sides of my brain; as such, I do find my head aching at times.

Betsy McClain

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 townandcity@nhmunicipal.org.

www.nhmunicipal.org

TC: What is your biggest challenge in performing your duties?

BM: My biggest frustration in performing my duties has been some of the recent actions by our State Legislature. There seems to be a real disconnect from the lawmakers making decisions and the local citizenry. I’m befuddled over the recent opposition to several local option bills which would have provided municipalities the optional authority for additional revenue sources (such as the option to increase the maximum local transportation vehicle registration fee from $5 to $10 to provide additional funds for bike, pedestrian and roadway improvements; and the option for a municipality to levy a local room tax to help fund some of the local infrastructure necessary to accommodate tourist and visitor activity). As the State has downshifted some of its budget challenges onto municipalities, I am surprised that the legislature isn’t proactively supportive of local government’s need to be creative and resourceful in meeting its funding obligations.

TC: Tell us a story about an unusual experience you have had while doing your job.

BM: My children got a lot of mileage from the time the local police showed up on a weekend to borrow our pop-up tent to keep evidence dry while they seized some of the belongings of a chemistry graduate student who was cooking up contraband in his boarding house. Because I live close to the center of town, my tent had also been called into service to keep dry more than one charitable pie sale in front of town hall. My family now refers to this as our baking tent – and we still think it’s funny several years later.

TC: Has your public position changed you personally?

BM: Before working in local government, I always figured that “fighting city hall” was a job for somebody else; my position has made me see that we all have a responsibility—perhaps not so much in “fighting,”—but, certainly, in participating in the process of moving local policies forward. My public position has made me more assertive and more willing to take risks, as I have seen up close the power of a single individual to guide and influence local policy issues TC: What lessons about human nature have you learned in your role?

BM: There’s nothing like talking folks down out of a tirade against high property taxes or unfair parking ticket fines to provide a unique peek into human nature. My role has shown me that if you listen – truly listen – and respond respectfully and knowledgeably to their feedback, folks generally see past their immediate disappointment to the greater good.

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Tech

Insights

By Tim Howard

Are You Prepared for Disaster? A Hard Drive Failure,

Corrupt Files, a Nasty Virus, or a Lost or Stolen Laptop?

P

eople have been creating backups since the 18th century. Of course, back then the backups were written on paper, but people valued the idea of business continuity. Organizations have been calling our help desk recently asking to utilize their backup for a variety of reasons: accidentally deleted files, ransomware viruses, server or laptop completely died, and more. Would you believe me if I told you that it is only a matter of time before one or all of these scenarios happen to you? Well, according to statistics, it is only a matter of time. So the question is: are you prepared? Do you have a reliable backup solution? But more importantly, do you review or test your backups to make sure they are valid?

If there is a loss, are you prepared or equipped to handle the restoration?

With more and more valuable data being created, the importance of data backup can’t be emphasized enough. It’s important to know that there is a backup solution that fits every budget. Solutions can range from simple and reliable file and folder, to robust solutions like image based backup. Which solution is right for you? Let’s review how to establish your cost of downtime (COD), which will then reveal the proper solution.

What is YOUR cost of downtime (COD)?

When choosing a backup solution, it’s smart to know what downtime actually costs your organization. First, set a recovery time objective (RTO), which is the amount of time your organization can be down without it affecting revenue, or in this case, the budgeted amount of the tax payer’s dollars.

Is that seconds, days, never? Consider for a moment what the costs are when all internal processes stop: lost revenue with no access to data, lost employee productivity, no email/ communication, cost to restore IT systems, financial loss due to customer dissatisfaction, potential compliance violations, and the list goes on. Next establish a recovery point objective (RPO) – RPO is focused on data and your loss tolerance in relation to your data. RPO is determined by looking at the time between data backups and the amount of data that could be lost in between backups. You RTO and RPO combined with recovery process times, and employee costs = your TRUE cost of downtime. While all of this info 28

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can seem overwhelming, you can try doing an internet search for an RTO calculator, or use our free one at RMONnetworks.com/rtocalc. You may be very surprised to learn that downtime can cost more than a quality backup solution.

What Solution is Best for Your Organization?

The two most prominent backup solutions today are imagebased backup and file and folder.

What is an Image Based Backup Solution? Initially, full backup images are taken which include the operating system, applications, databases, user data, and all configuration data.

After the initial backup, efficient incremental snapshots are taken, and the images can then be stored locally on the Business Disaster Recovery (BDR) Appliance and/or stored in the Cloud. An image based solution will provide you with a fast recovery.

What is a File & Folder Backup Solution? A file and folder backup solution protects only the files and folders that you specify. It typically gives you the option of preserving one or more older versions every time it backs up the latest set of updated files. File and folder is generally more cost effective because you are only backing up selected files and/or folders that you consider important – creating less data for storage.

Although it can take more time to restore when using this method, it is a proven and reliable solution. You can also perform this type of backup on premise or off site.

Should I Choose Onsite, Offsite, or Hybrid?

Again that depends on how much downtime you can withstand.

Onsite: In the event of a downed server, the affected server can be virtualized and hosted via the appliance. Onsite enables a quick and efficient recovery. It is faster because you do not have to worry about the speed or bandwidth restrictions you may encounter working across an internet connection.

Offsite: In the event of a disaster or site-wide outage, users are re-routed to offsite data centers and can continue to work by accessing the protected infrastructure. www.nhmunicipal.org

Hybrid:Â Of course a combination of both creates an even better solution. It combines the speed of onsite, and the reliability of offsite to create the best solution possible.

The right solution will be different for everyone. However, one thing will remain the same for all: Protecting your data is essential! Backup is like having a business insurance plan, but the odds of you needing your data backup are far higher than you actually needing your insurance.

Tim Howard is the President and CEO of RMON Networks, a Managed IT Service Provider specializing in services for Municipalities. RMON is located in Plaistow and Laconia, NH. For FREE resources like the RTO calculator, and more visit RMONnetworks.com/takecontrol.

www.nhmunicipal.org

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The

HR

REPORT

New Hampshire Supreme Court Holds that All Employees Face Individual Liability for Workplace Harassment

By Mark Broth The New Hampshire Supreme Court’s recent decision in E.E.O.C. v. Fred Fuller Oil Co. could have significant implications for public employers, as elected officials and governmental employees can now be held personally liable for aspects of workplace discrimination and harassment.

Legal Background New Hampshire’s nondiscrimination statute, RSA 354-A, provides that it shall be an “unlawful discriminatory practice” for an employer with at least six (6) employees to “refus[e] to hire or employ or to bar or discharge from employment . . . or to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment, unless based upon bona fide occupational qualification” if such refusal to hire/employ and/or discrimination is based upon the individual’s age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability, or national origin. Unlawful discrimination includes harassment of employees because of their status as a member of a protected class. The law also prohibits “any person, employer, labor organization, employment agency, or public accommodation” from “[a]iding, abetting, inciting, compelling or coercing another or attempting to aid, abet, incite, compel or coerce another to commit an unlawful discriminatory practice or obstructing or preventing any person from complying with th[e statute] or any order issued under the authority of th[e statute].” The law also prohibits “any person engaged in any activity to which th[e statute] applies” from retaliating against an individual who opposes workplace discrimination or who participates in any complaint proceeding opposing workplace discrimination.

The Fred Fuller Decision RSA 354-A has long prohibited “any person” from aiding and abetting discrimination and from retaliating against those who oppose workplace discrimination. However, due 30

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to the way in which the statute is worded, it remained unclear as to whether the Legislature intended to put individuals at risk of liability. The Commission for Human Rights has interpreted the statute as creating individual liability, but in 2005, the New Hampshire Federal District Court issued a decision which reached the opposite result.

The Fred Fuller Oil Co. is a discrimination case pending in the federal court. Rather than rely on the earlier federal court ruling that the statute did not provide for individual liability, the federal court “certified the question” to the New Hampshire Supreme Court. This is a process by which the federal court decides that it would be more appropriate for the highest state court to interpret a state statute.

In its decision, the New Hampshire Supreme Court held that the statutory references to “person” must be read in the context of the statutory definitions section, which defines “person” broadly to include “one or more individuals.” The Court determined that it was reasonable to assume that the Legislature intended that individual employees who aid and abet workplace discrimination, or who retaliate against another employee in the workplace because he or she has engaged in protected conduct, should be held personally liable for that unlawful discriminatory practice.

Discussion The Fred Fuller decision broadly expands the scope of potential named defendants in a complaint of discrimination or harassment filed under RSA 354-A and in any resulting lawsuit. Although the alleged harasser has always been potentially liable for his or her conduct under other legal theories (such as assault, battery, intentional infliction of emotional distress, invasion of privacy, etc.), the Fred Fuller decision establishes that harassers may also be subject to liability under New Hampshire’s Law Against Discrimination. This effectively means that plaintiffs may now seek to hold the alleged harasser liable for a broader array of claimed damages, including lost earnings, attorney’s fees, and compensatory damages. www.nhmunicipal.org

Additionally, and likely of greater import, the Fred Fuller decision now opens employees who actively or passively “assist” discrimination or harassment to potential liability. For example, the employee who helps a coworker with a prank later deemed to be harassment; the department head or principal who observes or receives an employee complaint of discrimination or harassment; the Human Resources Director who processes the complaint; and the Town Manager or Superintendent who has overall responsibility for administering the employer’s antidiscrimination policies, may all face individual liability if a jury were to determine that their actions, or inactions, allowed unlawful harassment or discrimination to occur or continue.

Whether certain defenses usually available to governmental officials, such as statutory and common law immuni-

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ties, will be applicable under the newly expanded Law Against Discrimination remains to be seen. At a minimum, it would be prudent for public employers to determine whether they have adequate insurance coverage for discrimination and harassment claims. Employers should further determine whether their insurance policies provide sufficient coverage for individual employees who may now be named as party defendants.

As always, the best way to avoid liability to is avoid claims. Prudent employers will take this opportunity to review their anti-harassment and discrimination efforts. Employers should assure that their anti-discrimination policies are legally compliant and provide all employees with an accessible process for reporting misconduct. Employers may also need to intensify their training programs, with particular emphasis on the role of supervisors in the handling

of harassment and discrimination complaints. In order to protect the interests of all employees, employers may need to take steps to ensure a shift in workplace culture to make clear that harassment and discrimination conduct is simply not tolerable to any degree.

Mark Broth is a member of the DrummondWoodsum’s Labor and Employment Group and 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 2016 Drummond Woodsum.

These materials may not be reproduced without prior written permission.”

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Legal

Q and A

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

Deploying Police Body Cams – Issues & Limitations Under NH Law And Suggestions for Police Department Policies Part 1: Issues Under the Wiretapping and Eavesdropping Statute RSA Chapter 570-A Q: In what ways would New Hampshire’s statute on Wiretapping and Eavesdropping, RSA Chapter 570-A, control the use of wearable video and audio recording equipment (a/k/a Body Cam) by police officers?

A: RSA 570-A:2 (I-a) prohibits the recording of a person’s verbal communication without their consent under circumstances where they have a reasonable expectation of privacy, subject to certain exceptions. The statute does not contain a blanket exception for law enforcement’s use of an audio recording device such as a body cam. However, when a police officer prominently displays a body cam on his person, and announces to persons in his presence that their words and actions are being recorded, it is less likely a person could claim they had an expectation their spoken words would not be recorded.

Q: Would a person who is being questioned by a police officer have a reasonable expectation of privacy in that verbal communication would not be recorded?

A: If the police officer was using a body cam it could be argued the person being questioned did not have an expectation of privacy and thus audio recording would not be prohibited. However, New Hampshire case law makes clear that even when a person consents to a conversation with another person, this does not mean the individual consents to the recording of that conversation. Fischer v. Hooper, 143 32

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N.H. 585 (1999). Therefore it is much safer to assume that anytime a police officer has a one-on-one conversation with a person, that conversation should not be recorded by audio means unless the person was told the conversation was being recorded and the individual did not object to that recording or consented.

Q: How would a police officer determine whether a person has consented to an audio recording of conversation?

A: Unlike the kind of consent necessary to demonstrate submission to a physical search, it will normally suffice for the police officer to capture on video and audio that the person was asked for her consent to have the conversation recorded and she either agreed verbally or did not object.

Compare, State of NH v. Locke, 144 N.H. 348, 355 (1999) (the fact that an informer consented to have his conversation recorded could be inferred from the fact he was aware the police were listening and he went ahead with the phone call anyway). The safest practice would have the police officer turn off the body cam, ask the person’s consent to record, turn back on the body cam and memorialize/reaffirm the consent on tape.

Q: So does this mean that a police officer could make a video-only recording of a conversation with a person without that person’s consent?

A: Yes, video-only recording is permitted. RSA Chapter 570-A only prohibits the non-consensual recording of oral communication.

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Q: Does NH RSA 570-A directly address the nonconsensual video and audio recording by a police officer?

A: There is a provision in RSA Chapter 570-A that permits a uniformed law enforcement officer to make an audio recording without the consent of the person being recorded provided: 1. The audio recording is done in conjunction with a video recording; 2. The recording is done as part of a routine stop; 3. The routine stop is performed in the ordinary course of patrol duties; 4. The routine stop is done on any “way” as defined by RSA 259:125; and 5. Provided that the police officer shall first give notification of such recording to the party to the communication. RSA 570A:2 (II) (j).

Q: What would be considered a routine stop in the ordinary course of patrol duties?

A: These terms are not defined in RSA Chapter 570-A. The word “routine” is defined as an activity that is a regular procedure, customary or prescribed.

One possible interpretation of the terms “ordinary course of patrol duties” would be that the use of a body cam by a police officer during a regularly scheduled patrol of the municipality in a motor vehicle, on a bicycle or on foot, would be permitted, but if the officer was on a special detail, such as directing traffic at a construction site, use of body cam would not be permitted.

Q: What streets and other locations are defined as “ways” in RSA 259:125?

A: Generally speaking “ways” are the entire width of a public highway, road or alley. Any such “way” must satisfy each of the following requirements: (1) the “way” must be provided by a www.nhmunicipal.org

public institution; (2) it must be maintained by a public institution; and (3) the public institution must be the beneficiary of state funds, appropriated for public use. State v. Gagnon, 155 N.H. 418 (2007). A “way” would also include a street that became a public road through 20 years’ public use, and public or private parking lots maintained primarily for the benefit of paying customers.

Q: What would happen if a police officer began a nonconsensual video and audio recording in compliance with RSA 570-A:2 (II) (j) on the side of a public street where there is no reasonable expectation of privacy, but then left the side of the public street and entered private property?

A: Unless the third parties who are seen and heard on the recording consent to the recording of their voices, or the recording is done under circumstances where the third parties did have an expectation their voices would be recorded, the audio portion of the recording would have to be stopped.

Part 2: Issues Arising Under 91-A and Public Records Retention Q: Would police body cam recordings be considered public records subject to disclosure under the Rightto-Know law, RSA 91-A? A: Yes, any information created, accepted or obtained by a public agency in furtherance of its official function would be a public record potentially subject to disclosure as a public record under RSA 91-A:4. Police video and audio recordings would potentially be subject to a public record disclosure requirement unless exempt from disclosure under RSA 91-A:5.

Q: When would a police video and audio recording be exempt from disclosure under RSA 91-A:5?

A: If the body cam recording was part of a police investigation, and included recordings of victims, witnesses and/ or suspects, then the recording would satisfy one of the Lodge v. Knowlton, 118 N.H. 574 (1978) tests and be exempt from disclosure.

Q: What are the tests for determining when a body cam recording would be exempt from disclosure under RSA Chapter 91-A under Lodge v. Knowlton?

A: The recording must be a police “investigatory record” compiled for law enforcement purposes. In addition, it would have to satisfy one of the following tests: • Contains details such as interviews with victims, witnesses and subjects and there must be a reasonable belief that the recording will lead to criminal charges at some point in the future; or • Disclosure of the recording will interfere with a fair trial such as the existence or absence of confessions and anything regarding prospective witnesses; or • The recording would invade the privacy of persons in the recording where that privacy interest would outweigh the public interest in disclosing the operations of government. N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437 (2003); or • The recording would identify or lead to the identification of a confidential source; or • The recording would disclose police investigative techniques and procedures where such information could reasonably be expected to make it easier for others to circumvent the law by providing those who wish to engage in M AY / J U N E 2 0 1 6

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LEGAL Q & A from page 33 criminal activity with the ability to adjust their behaviors in an effort to avoid detection. Montenegro v. City of Dover, 162 N.H. 641 (2011).

Q: Would a police department be required to retain body cam recordings and for how long?

A: Under the Disposition of Municipal records statute, RSA 33-A:3-a a body cam recording would have to be retained depending on its purpose and function as follows: • Body cam of an accident involving arrests: 6 years.

• Body cam of an accident involving a municipality: 6 years.

• Body cam of an accident involving property damage: 6 years.

• Body cams that are component of arrest reports: permanently.

• Body cam involving calls for service/general service reports: 5 years.

• Body cam involving a closed criminal cases: statute of limitations plus 5 years.

• Body cam involving open criminal cases: statute of limitations plus 5 years.

• Body cam involving motor vehicle violation paperwork: 3 years.

• Body cam of non-criminal matters, file closure plus 3 years.

Part 3: Recommended Procedures for Implementing a Body Work Camera Program For Police In 2014 the United States Department of Justice, Office of Community Oriented Policing Services, published Implementing a Body-Worn Camera 34

Program: Recommendations and Lessons Learned. The following is a synopsis of some of the findings and recommendations from that publication.

Q: What subjects should be covered in any written policies for a police department implementing a wearable video and audio recording device for police officers?

A: The following subjects are recommended to be addressed in a police department written policy when deploying wearable video and audio recording devices: • Basic camera usage, including who will be assigned to wear the cameras and where on the body the cameras are authorized to be placed.

• The designated staff member(s) responsible for ensuring cameras are charged and in proper working order, for reporting and documenting problems with cameras, and for reissuing working cameras to avert malfunction claims if critical footage is not captured.

• Recording protocols, including when to activate the camera, when to turn it off, and the types of circumstances in which recording is required, allowed, or prohibited.

• The process for downloading recorded data from the camera, including who is responsible for downloading, when data must be downloaded, where data will be stored, and how to safeguard against data tampering or deletion.

• The method for documenting chain of custody.

• The length of time recorded data will be retained by the agency in various circumstances.

• The process and policies for accessing and reviewing recorded data, including the persons authorized to access data and the circumstances in which recorded data can be reviewed.

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• Policies for releasing recorded data to the public, including protocols regarding redactions and responding to public disclosure requests.

• Policies requiring that any contracts with a third-party vendor for cloud storage explicitly state that the videos are owned by the police agency and that its use and access are governed by agency policy.

Q: What are the generally recommended recording protocols a police officer should follow?

A: As a general recording policy, officers should be required to activate their body-worn cameras when responding to all calls for service and during all law enforcement-related encounters and activities that occur while the officer is on duty.

Q: Should police officers be required to inform subjects when they are being recorded?

A: Yes, police officers should seek prior consent and inform subjects when they are being recorded, except when doing so would be unsafe, impractical or impossible.

Q: What about recording crime victims?

A: Police officers should try to obtain consent prior to recording interviews with crime victims.

Q: When should police officers have discretion when deciding to record persons they encounter?

A: When determining whether to record interviews with witnesses and members of the community who wish to share information, officers should always consider both the evidentiary value of recording and the subject’s comfort with speaking on camera. If a person will not talk unless the camera is turned off, officers may decide that obtaining the www.nhmunicipal.org

information is more important than recording. It is recommended that policies allow officers that discretion.

Keep an eye on proposed HB 617, which would make changes to the current law relative to body cams.

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.

Court

Update

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: One Bite At the Apple Applies to Planning Board Decisions CBDA Development, LLC v. Town of Thornton, New Hampshire Supreme Court, No. 2014-0775, 4/7/2016 Officer on Laurie List Provided Adequate Procedural Due Process Gantert v. City of Rochester, New Hampshire Supreme Court, No. 2015-0062, 3/18/2016 Employee Can Be Personally Liable for Workplace Discrimination EEOC v. Fred Fuller, Co., New Hampshire Supreme Court, No. 2015-0258, 2/23/2016

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Workshops for seasoned and new municipal officials and employees of New Hampshire Municipal Association member towns.

Dates and Locations Saturday, April 9 Jaffrey Civic Center 40 Main Street, Jaffrey

Agenda 9:00 a.m.— 4:00 p.m.

Continental breakfast and lunch will be provided.

Registration and breakfast begins at 8:30 a.m.

Wednesday, April 13 Grantham Town Hall 300 Route 10 South, Grantham *Sponsored by Primex3

Wednesday, April 27 Hudson Community Center 12 Lions Ave., Hudson *Sponsored by Davis & Towle

Thursday, May 19 McIntyre Building, Auditorium, 16 Highland Street, Whitefield

Wednesday, May 25 Carroll County Complex, Delegation/Commissioner Conference Rm

95 Water Village Rd., Ossipee *Sponsored by Primex3

Overview Presented by NHMA’s Legal Services attorneys, the workshops provide newly elected and appointed municipal officials with tools and information to effectively serve their communities. Topics will include the Right-to-Know Law, ethics and conflicts, town governance, public employment, liability and more.

Interactive discussions will offer an opportunity to test scenarios, discuss concerns, ask questions and share ideas.

Attendees will receive a complimentary copy of NHMA’s 2016 edition of publication, Knowing the Territory.

Saturday, June 4 25 Triangle Park Drive, Concord *Sponsored by Davis & Towle

No Fee, On-line Registration Required!

To register online, please visit www.nhmunicipal.org and click on the Calendar of Events. Space is limited!

Cancellation must be received 48 hours in advance. If cancellation is not received 48 hours in advance, NHMA will invoice you for $20 to cover workshop costs, including meals.

Questions? Please call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org.

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N E W

H A M P S H I R E

M U N I C I P A L

• Bond issue approved by governmental entity

• Audit by CPA Firm • Local bond counsel opinion

NEW HAMPSHIRE MUNICIPAL BOND BANK

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B A N K

The Bond Bank’s Bond Sale Schedule

Basic Loan Requirements:

• Completed application approved by Bond Bank Board

B O N D

Bond Sale Date:

Application Deadline:

June 8, 2016

April 8, 2016

January 2016 Bond Sale Results - True Interest Cost for: 9 year loans 2.07% 15 year loans 2.11% 20 year loans 2.45% Are you planning a capital project for 2016?

We can assist you with your planning by providing various scenarios based on level debt or level principal payments for different terms. Contact us now for your estimated debt schedules.

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 Sheila M. St. Germain, Executive Director, at info@nhmbb.com or call (603) 271-2595 or toll-free in NH at (800) 393-6422. For more information, visit our website at www.nhmbb.org.

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www.nhmunicipal.org

Thursday June 16, 2016

Fundamentals of

25 Triangle Park Drive, Concord NH

9:30 a.m. to 2:15 p.m.

Local Welfare

Registration begins at 9 a.m.

Continental breakfast and lunch will be provided

Presented by: the NH Municipal Association and the NH Local Welfare Administrators Association

Agenda

Agenda 9:00 A.M.

REGISTRATION & CONTINENTAL BREAKFAST

9:30 A.M.

THE ART OF WELFARE

This session provides a basic overview of New Hampshire law governing local welfare administration, including why guidelines are important, how assistance is provided, and anticipated legislative changes. This session will also address fair hearings, suspension of assistance, and more.

Margaret Byrnes, Staff Attorney, NH Municipal Association Stephen Buckley, Legal Services Counsel, NH Municipal Association 11:00 A.M. BREAK 11:10 A.M. CASE SCENARIOS 12:00 P.M. LUNCH 12:45 P.M. THE ART OF WELFARE PANEL DISCUSSION

Members of the New Hampshire Local Welfare Administrators Association will respond to questions, share practical tips, and provide guidance in the “art� of managing a sound welfare program.

Bob Mack, Welfare Officer, City of Nashua Charleen Michaud, Welfare Specialist III, City of Manchester Dana Brien, Welfare Administrator, Town of Hillsborough Jackie Whatmough, Welfare Officer, City of Concord Pat Murphy, Welfare Administrator, Town of Merrimack 2:15 P.M.

ADJOURN

Register online today at www.nhmunicipal.org & look for the workshop under Calendar of Events Online pre-registration required by June 9.

Space is limited.* *This workshop was sold out in 2015; be sure to reserve your space today!

Questions? Call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org. www.nhmunicipal.org

Cost: $40 (includes meals and materials) Make checks payable to: NH Municipal Association Mail to: 25 Triangle Park Drive Concord, NH 03301 M AY / J U N E 2 0 1 6

41

Periodical Postage Paid at Concord, NH

25 Triangle Park Drive Concord, NH 03301

What’s the Real Value of Membership? + COMPREHENSIVE

FUTURE-READY BENEFIT PLANS

=

+ EDUCATION

& ENGAGEMENT

CONSULTATION

& LIVE SUPPORT

SAVINGS OVER THE

LONG TERM

You Do The Math.

Please contact our Member Relations Advisor, Darlene Simmons at dsimmons@healthtrustnh.org or call 603.230.3327 today. www.healthtrustnh.org 800.527.5001