New Hampshire Town and City, May - June, 2018

May/June 2018

TownandCity N E W

H A M P S H I R E

In This Issue:

A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION

Special Judicial Protections for Municipal Officials......... 10 Recreational Immunity....................................................... 15 Municipal Liability and Immunity – Common Law......... 19 Current State of Employee’s Right of Reinstatement...... 23 Be Careful What You Sign: Construction Contracts....... 25

Contents Table of

Volume LXI • Number 3

May/June 2018

3 A Message from the NHMA Executive Director 5 Happenings 9 Upcoming Events 34 Best Practice Series: Discrimination in the Workplace 36 Affiliate Member Spotlight:

Granite State Rural Water Association 37 NLC Report: Future Equity in Cities 38 NHARPC Report: Brownfields Assessments 40 Up Close and Personal on the Board: Katie Gargano 41 This Moment in NHMA History/Name That City or Town 42 Legal Q and A: Municipal Liability and Immunity State Statutes

New Hampshire Town and City Magazine Staff Executive Director

Judy A. Silva

Editor in Chief

Timothy W. Fortier

Co-Editor in Chief

Stephen C. Buckley

Contributing Editors Margaret M.L. Byrnes

Barbara T. Reid Art Director

Scott H. Gagne

Production/Design

Scott H. Gagne

10

Special Judicial Protections for Municipal Officials: Official and Qualified Immunity

15

Recreational Immunity

19

Municipal Liability and Immunity in New Hampshire: Common Law and General Statutes

23

The Current State of Employee’s Right of Reinstatement Under the Workers’ Compensation Act

25

Be Careful What You Sign: Construction Contracts

29

The Need for Ongoing, Nourishing Leadership in our Local Communities

Cover Photo: Croydon Town Hall, photo by Timothy Fortier.

Official Publication of the New Hampshire Municipal Association 25 Triangle Park Drive • Concord, New Hampshire 03301 Phone: 603.224.7447 • Email: nhmainfo@nhmunicipal.org • Website: www.nhmunicipal.org New Hampshire Municipal Association Phone: 800.852.3358 (members only) NEW HAMPSHIRE TOWN AND CITY (USPS 379-620) (ISSN 0545-171X) is published 6 times a year for $25/member, $50/non-member per year, by the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, New Hampshire 03301. Individual copies are $10.00 each. All rights reserved. Advertising rates will be furnished upon application. Periodical postage paid at Concord, NH 03302. POSTMASTER: Send address changes to NEW HAMPSHIRE TOWN AND CITY, 25 Triangle Park Drive, Concord, NH 03301.

NEW HAMPSHIRE TOWN AND CITY serves as a medium for exchanging ideas and information on municipal affairs for officials of New Hampshire municipalities and county governments. Subscriptions are included as part of the annual dues for New Hampshire Municipal Association membership and are based on NHMA’s subscription policy. Nothing included herein is to be construed as having the endorsement of the NHMA unless so specifically stated. Any reproduction or use of contents requires permission from the publisher. POSTMASTER: Address correction requested. © Copyright 2018 New Hampshire Municipal Association

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New Hampshire Municipal Association

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

Donna Nashawaty - Vice Chair Town Manager, Sunapee

Shaun Mulholland - Treasurer Manager, Lebanon

Candace Bouchard - Secretary Councilor, Concord

Scott Myers Immediate Past Chair City Manager, Laconia

Butch Burbank Town Manager, Lincoln

David Caron Town Administrator, Derry

Shelagh Connelly Selectman, Holderness

Phil D’Avanza Planning Board, Goffstown

Lisa Drabik Asst. Town Manager, Londonderry

M. Chris Dwyer Councilor, Portsmouth

Stephen Fournier Town Administrator, Newmarket

Elizabeth Fox Asst. City Manager, HR Director, Keene

Katie Gargano Clerk/Tax Collector, Franklin

Bill Herman Town Administrator, Auburn

Rick Hiland Selectman, Albany

Christopher Herbert Alderman, Manchester

Harold Lynde Selectman, Pelham

Jim Maggiore Selectman, North Hampton

Carolyn McCarley Mayor, Rochester

John Scruton Town Administrator, Barrington

David Stack Town Administrator, Bow

Eric Stohl Selectman, Columbia

David Swenson Selectman, New Durham

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As of January 25, 2018

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A Message from the

NHMA

Executive Director Judy Silva

­— GOODBYE AND HELLO — Many local officials completed their terms of office last year. We thank all of you for the time and energy you have devoted to public service, including your work on behalf of NHMA. For those who have never served in local government, it is difficult to appreciate how much work and time are involved, and how thankless the task can be. We hope you will enjoy your time off.

In turn, we enthusiastically welcome all of the new officials. We look forward to working with you in the coming years. Please be sure to let us know the e-mail addresses of the new officials in your city or town who should receive the Legislative Bulletin, so we can provide them with the latest legislative news. You can e-mail address changes to governmentaffairs@nhmunicipal.org. Some who are new to local government may not fully appreciate the extent to which state legislation affects what happens at the local level—but you will learn quickly. We hope you will read the Legislative Bulletin, get to know your legislators, think about what you can do to influence state policy, and let us know when you have questions or ideas.

— TIME TO UPDATE OFFICIAL ROSTERS — This is also the time of year we ask our members to identify and update all newlyelected and reelected officials from your city or town. By this action, you help us to maintain the 2018-2019 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.

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 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.

Warmest regards,

Judy Silva NHMA Executive Director

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A Guide to Effective Enforcement Workshop:

Investigating and Enforcing Code and Land Use Violations 9:00 am—12: 30 pm Friday, June 1, 2018 NHMA Offices, 25 Triangle Park Drive, Concord Cost is $90, includes workshop and new book

Check out our NEW book!

A Guide to Effective Enforcement: Investigating and Enforcing Code and Land Use Violations.

Municipal officials, specifically code enforcement officers, fire chiefs, health inspectors, and building inspectors, are responsible for the enforcement of a variety of codes, regulations, and ordinances. These codes include the State Building Code, health and safety ordinances; and the municipality’s respective zoning ordinance, site plan review regulations and subdivision regulations. In addition, municipal officials are responsible for ensuring compliance with the conditions of approval that accompany variances, special exceptions, conditional use permits, site plan approvals and subdivision approvals.

Effectively enforcing these various codes and regulations can pose a challenge to municipalities. Join Legal Services Counsel Stephen Buckley, Staff Attorney Margaret Byrnes and Attorney Matt Serge of Drummond Woodsum for this half-day workshop which will provide municipal officials with practical guidance on how to navigate the nuanced procedures associated with code enforcement, as well as practical advice in pursuing an enforcement action against non-compliant property owners. Our legal experts will address some of the most difficult issues under the law, including junkyards, hoarding, dilapidated buildings and junkyards. There will be ample time for questions and answers on all aspects of the law.

For registration information, visit www.nhmunicipal.org under Calendar of Events .

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

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HAPPENINGS NHMA Team “Out and About”

Every year the New England Water Environment Association (NEWEA) recognizes either an engineering firm, a specific project, a municipality, or a specific municipal or industrial facility for their outstanding accomplishments in the field of biosolids management. This year, RMI President Shelagh Connelly was nominated for this Biosolids Management Award. Shelagh along with her partners Charley Hanson and Marty Riehs have been successfully operating RMI throughout the northeast since 1994.

Congratulations to the good folks at RMI for all their successes!

Staff Attorney Margaret Byrnes addressed about 30 elected and appointed Derry officials on the Right-to-Know Law on January 23, 2018.

In January, NHMA’s Finance Advisor Barbara Reid provided the Claremont City Council a status update on retirement and pension issues.

NHMA’s Legal Services Counsel, Stephen Buckley addressed a packed house of building official at NHMA offices on February 14, 2018 to discuss legal issues for building officials.

USDA Launches Webpage Highlighting Resources to Help Rural Communities Address the Opioid Crisis The National Center for Health Statistics estimates that more than 63,000 Americans died from drug overdoses in 2016. More than half of those deaths involved opioids, including prescription drugs and heroin. USDA is playing an important role to help rural communities address this national problem at the local level through program investment, strategic partnerships and best practice implementation.

In April 2017, President Donald J. Trump established the Interagency www.nhmunicipal.org

Task Force on Agriculture and Rural Prosperity to identify legislative, regulatory and policy changes that could promote agriculture and prosperity in rural communities. In January 2018, Secretary Perdue presented the Task Force’s findings to President Trump, which included 31 recommendations to align the federal government with state, local and tribal governments to

take advantage of opportunities that exist in rural America.

In the area of quality of life, the Task Force included a recommendation to modernize health care access. The report highlighted the importance of telemedicine in enhancing access to primary care and specialty providers. The Task Force also found that improved M AY / J U N E 2 0 1 8

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HAPPENINGS from page 5 access to mental and behavioral health care, particularly prevention, treatment and recovery resources, is vital to addressing the opioid crisis and other substance misuse in rural communities.

To view the report in its entirety, please view the Report to the President of the United States from the Task Force on Agriculture and Rural Prosperity (PDF, 5.4 MB). In addition, to view the categories of the recommendations, please view the Rural Prosperity infographic (PDF, 190 KB).

USDA Rural Development provides loans and grants to help expand economic opportunities and create jobs in rural areas. This assistance supports infrastructure improvements; business development; housing; community services such as schools, public safety and health care; and high-speed internet access in rural areas. For more information, visit www.rd.usda.gov.

Check out our New Website Advertiser – GSPCC, LLC. Have you checked out our new website advertiser, Granite State Police Career Counseling, LLC (GSPCC)?

The purpose of GSPCC is to enhance the efficacy, efficiency, energy and professionalism of any public safety agency.

Staff will evaluate your municipal department in a variety of ways, including policy review, leadership and management review, budget review, prosecution review, staff interviews, employee retention, SWOT analysis, communications, public relations/social media review, and more. GSPCC also offers officer hiring assistance, staff augmentation, background investigations and training.

Staff is comprised of experienced New Hampshire law enforcement professionals who are ready to help you. If interested in GSPCC’s consulting services, 6

contact Tim Jones at tjones@gs-pcc.com or call him at 603.247.5071.

Congratulations to the NHTI BIPE Class of 2017

Liaquat Khan – Department Head NHTI, Dennis Page, Matt Cole, Nick Codner, Russ Bookholz, Brad Anderson, Michael Hagan, Steve Caccia – Vice President of Student Affairs NHTI.

The New Hampshire Building Officials Association recently recognized students from the NHTI – Concord Campus as they completed an 18 credit Building Inspector/Plans Examiner Certificate Program. The program was developed to provide instruction in the ICC Codes, plan review and document reading, construction laws and state authority enforcement mechanisms, and generalized Inspector Skills highlighting on the soft skills and department organizational skills. Members of the New Hampshire Building Officials Association provide instruction and mentoring to the students.

To learn more about the Building Inspector/Plans Examiner Certificate program at NHTI visit their website at https:// www.nhti.edu/academics/programs-study/ engineering-technology-programs/building-inspector-and-plans-examiner.

Save the Date: 2018 Governor’s Conference on Volunteerism – Wednesday, May 23, 2018 The Governor’s Conference on Volunteerism’s mission is to educate, enhance skills, and provide professional development that will support and strengthen New Hampshire’s volunteer programs and organizations. Histori-

NEW HAMPSHIRE TOWN AND CITY

cally a volunteer manager conference, it has since expanded to include nonprofit and corporate staff, nonprofit volunteers, and National Service members. This year’s event will take place on Wednesday, May 23rd at NHTI, Concord’s Community College. Alex Freid, Founder and Executive Director of the Post-Landfill Action Network and UNH Trash 2 Treasure will be the keynote. Session topics will include social innovation, executive coaching, volunteer burnout, social media marketing, grant writing, and recruiting/retaining volunteers of all ages. Registration will open April 2nd. For more information, please consult Volunteer NH’s website: www.volunteernh.org.

North Country Water Advocate, David Bernier, Retires from North Conway Water Precinct One of the most effective advocates for sensible water policies in the state, David Bernier, has left the building.

After 14 years of serving as North Conway Water Precinct Superintendent, Bernier has decided to retire. Under Bernier’s leadership, the precinct was able to keep rates down, at one point going 13 straight years without a rate increase. In addition, the precinct reports the 744 solar panels and 16 geothermal wells represents the largest green energy project in New England. Bernier was instrumental, together with consultant Bill Hounsell, in assisting NHMA in its efforts to convince the state to pay its obligations under the State Aid Grant (SAG) program. We will miss seeing you at the State House, David, and we wish you the very best in retirement. Jason Gagnon, former public works director for the Town of Farmington, replaced Bernier in February. www.nhmunicipal.org

Basic Loan Requirements:

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Are you planning a capital project for 2018?

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.

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• Bond issue approved by governmental entity • Completed application approved by Bond Bank Board • Audit by CPA firm • Local bond counsel opinion

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

Lebanon Middle School, Lebanon, NH

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

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Workers’ Compensation, opinion and Unemployment 46 Donovan Street Compensation Programs to Concord, NH 03301-2624 To schedule a meeting, obtain debt NH service schedules,schools, or for details about our schedule, fees, Bond municipalities, n 603-225-2841 800-698-2364 Anticipation Note programs, and current interest rates, please contact Tammy J. St. Gelais, Executive special districts.

Director, at tstgelais@nhmbb.com.counties Visit our and website at www.nhmbb.org. www.nhprimex.org

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May 6—12, 2018 Annual Municipal Clerks Week Recognizing the Essential Role Municipal Clerks Play in Local Government

According to the International Institute of Municipal Clerks (IIMC) website, IIMC’s 49th Annual Municipal Clerks Week is May 6-12 this year and will feature a week-long series of activities aimed at increasing the public’s awareness of municipal clerks and the vital services they provide for their local government and community. To learn more, visit IIMC at www.iimc.com.

Regardless the size of your city or town, the knowledge and expertise required to successfully perform the duties of municipal clerk are extensive. It seems that most of what happens in local government is impacted by the city or town clerk and his or her staff. Everything from budgets to elections to maintaining public records is under the control of the clerk. In addition, the clerk must constantly be aware of new requirements placed on the city or town by federal regulations, the state legislature and local ordinances and regulations. The Clerk’s Office is often the first point of contact for many residents and it is essential that clerks remain professional and effective when dealing with people — because we all know that not everyone comes to town/city hall to thank the employees for their public service.

Therefore, for the many hats worn by the clerk, the many hours worked on behalf of their city or town and its citizens, the records kept, meetings attended, elections held, problems researched and resolved, the New Hampshire Municipal Association applauds and commends New Hampshire’s municipal clerks. We thank you for your outstanding service, your dedication, your professional integrity and for embracing your city and town in a way very few people understand and appreciate.

New Hampshire City & Town Clerks’ Association

2017-2018 Executive Board Members being sworn in. 1st Vice President Raymah Simpson-Bristol, 2nd Vice President Jane Cypher-Hampton, Secretary Barbara Clark-East Kingston, Treasurer Betty Ramspott-Sunapee, Webmaster Sue McKinnonNewfields, Past President Mary Reynolds-Laconia

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NEW HAMPSHIRE TOWN AND CITY

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Upcoming

Events

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

MAY 2018 Local Officials Workshop Tuesday, May 8 9:00 am – 4:00 pm (Lunch on your own) Newington Town Hall, Kent Auditorium, Newington 2018 Local Officials Workshop Tuesday, May 15 9:00 am – 4:00 pm (Lunch on your own) Moultonborough Safety Complex, Moultonborough Webinar: The Drinking Water and Groundwater Trust Fund: Renewed Investment in Local and Regional Water Supply Infrastructure and Source Protection Wednesday, May 16 12:00 pm – 1:00 pm Workshop: The First Amendment: Elections, Signs and More Thursday, May 17 1:00 pm – 4:30 pm NHMA Offices, Concord 2018 Local Officials Workshop Tuesday, May 22 9:00 am – 4:00 pm (Lunch on your own) The Meeting House, Sugar Hill Webinar: Controlling Junk: Junkyard Enforcement 101 Wednesday, May 23 12:00 pm – 1:00 pm

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31st Annual Mountain of Demonstrations Hosted by the New Hampshire Road Agents Association Thursday, May 24 8:00 am – 1:00 pm Mt. Sunapee Resort, Newbury Memorial Day (NHMA Offices Closed) Monday, May 28

JUNE Workshop: A Guide to Effective Enforcement: Investigating and Enforcing Code and Land Use Violations Friday, June 1 9:00 am – 12:30 pm NHMA Offices, Concord 2018 Local Officials Workshop Saturday, June 2 9:00 am – 4:00 pm (Lunch on your own) NHMA Offices, Concord Webinar: Legislative Wrap-up Wednesday, June 6 12:00 pm – 1:00 pm Workshop: 2018 Right-to-Know Law Friday, June 8 9:00 am – 4:00 pm Frisbee Memorial Center, Rochester Workshop: The Art of Welfare Administration Thursday, June 14 9:00 am – 2:15 pm NHMA Offices, Concord Workshop: Stranger Streets: A New Hard Road to Travel Tuesday, June 19 8:30 am – 2:30 pm NHMA Offices, Concord

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Special Judicial

Protections for New Hampshire Municipal Officials: Official and Qualified Immunity Introduction Everyone makes mistakes—even the most careful municipal officials. Although municipal officials and the municipalities that employ them are frequently the targets of civil lawsuits, there are several legal defenses under New Hampshire and federal law that may protect them from liability.

Official immunity and qualified immunity are two such legal doctrines that protect public officials from civil lawsuits for honest mistakes made within the scope of their employment. Used properly, official immunity and qualified immunity may block civil proceedings from advancing beyond the early stages of litigation, sparing municipalities and their employees from devoting massive amounts of time, energy, and resources defending these lawsuits at trial.

Official Immunity Under New Hampshire law, official immunity shields state and municipal officials from liability for common law torts. The goal of official immunity is to “protect 10

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public officials from the fear of personal liability, which might deter independent action and impair effective performance of their duties.” Everitt v. General Electric Co., 156 N.H. 202, 214 (2007). Although official immunity limits common law civil recourse for certain individuals who may be injured by errant decisions of government officials, the New Hampshire Supreme Court has held that it is more important for government officials to fulfill their responsibilities “without constant dread of retaliation” because it benefits the “welfare of the citizenry at large.” Id. at 219 (quotation omitted).

Under official immunity, government officials are entitled to immunity for decisions, acts, or omissions that are: (1) made within the scope of their official duties while in the course of their employment; (2) discretionary, rather than ministerial; and (3) not made in a wanton and reckless manner.

Id.

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By Weston R. Sager, Esq. and Matthew V. Burrows, Esq. Determining whether a government official’s conduct falls within the scope of official immunity requires an understanding of the official’s duties and his or her scope of employment. A police officer arresting an individual suspected of committing domestic violence, for example, is an activity that clearly falls within the scope of the police officer’s official duties because police officers are required and authorized to arrest people who are suspected of committing crimes.

A government official’s conduct is protected by official immunity only if the conduct is discretionary, meaning that it “involves the exercise of personal deliberation and individual professional judgment.” Id. at 219. Official immunity does not protect ministerial actions that are “absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Id. at 220. A police officer’s arrest of an individual would almost certainly be considered a discretionary act because the officer had to use her “individual professional judgment” to determine whether the individual committed a crime requiring arrest www.nhmunicipal.org

based on her understanding of the law and her observations of the crime scene. In contrast, the preparation of voting ballots by a municipal employee likely would be considered a ministerial act not entitled to official immunity’s protection because it involves “merely [the] execution of a specific duty.” Restatement (Second) of Torts § 895D cmt. h (Am. Law Inst. 1979).

A government official must also have a “reasonable belief ” that his or her conduct was lawful. This term is something of a misnomer: reasonableness is typically “associated with the absence of negligence,” but in the context of official immunity, a government official who had a “reasonable belief ” in the lawfulness of his or her conduct means that the official did not act in a reckless and wanton manner— a significantly higher standard than negligence. Farrelly v.

City of Concord, 168 N.H. 430, 445–46 (2015). If not for this higher standard of culpability, official immunity would provide no protection at all—a government official who is found to have acted negligently not only may be found to M AY / J U N E 2 0 1 8

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PROTECTIONS from page 11 have committed the underlying tort, but also would be found to have forfeited the protection of official immunity. Therefore, even if a government official acted negligently, he or she still may be entitled to official immunity if he or she did not act in a reckless or wanton manner.

Analyzing whether a governmental official did not have a “reasonable belief,” requires an analysis of the subjective reasonableness and the objective reasonableness of the official’s conduct. Subjective reasonableness means, essentially, that the government official actually believed that his or her conduct was lawful. Objective reasonableness requires an analysis of a reasonable government official “standing in the defendant’s shoes.”

Id. at 446. It is not evaluated from the perspective of a person who is disconnected from the situation. Therefore, when evaluating objective reasonableness, the court must consider the context in which the municipal official’s conduct occurred, and cannot use “the near perfect” vision of hindsight to question the government official’s actions. Id. at 449.

Even though official immunity requires an analysis of the subjective and objective reasonableness of a government official’s conduct, it applies to both negligent and intentional torts.

Therefore, when confronted with a negligence claim, an intentional tort claim (such as false imprisonment), or a combination thereof, the standard for whether official immunity applies is substantially the same.

Official immunity shields not only individually-named government officials, but also may shield the government entity that employs them.

Official immunity that flows upstream from the protected government official 12

to also protect the government entity that employs him or her is called “vicarious official immunity.” A municipality is protected by vicarious official immunity if the policies underlying individual official immunity would otherwise be undermined—that is, if exposing the municipality to liability would focus “stifling attention” on a government official’s job, thereby inhibiting effective performance of his or her official duties. Everitt, 156 N.H. at 221–22.

Official immunity is a bar to a lawsuit, and if it is not raised before trial, its protection is effectively lost. Notably, “bare allegations of malice” are insufficient to defeat official immunity at the summary judgment phase; there must be a genuine issue of material fact that the government officials acted recklessly and wantonly. Farrelly, 168 N.H. at 448.

Qualified Immunity Qualified immunity was the inspiration for official immunity in New Hampshire, and, as such, the two legal doctrines share many similarities.

Under federal law, qualified immunity shields federal, state, and municipal officials from damages claims arising out of discretionary acts made within the scope of their government employment. Harlow v. Fitzgerald, 457 U.S. 800 (1982). Qualified immunity protects government officials from certain constitutional violations, such as claims brought under 42 U.S.C. § 1983 including Fourth Amendment claims for unconstitutional arrests and illegal searches or seizures.

Qualified immunity is designed to protect government officials who have made mistakes that are reasonable and made in good faith. Government officials are entitled to qualified immunity unless (1) they violated a federal statutory or constitutional right, and (2)

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the unlawfulness of their conduct was clearly established at the time. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). An official is not entitled to qualified immunity if a reasonable official would understand what he or she is doing was unlawful at the time, i.e., the legal principle violated was “settled law” and the unlawfulness of the conduct was “beyond debate.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Qualified immunity is a “demanding standard” that protects all but the “plainly incompetent” or those who “knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Whether a government official is afforded qualified immunity requires an analysis of objective reasonableness only. Similar to official immunity, objective reasonableness in the context of qualified immunity requires that the official’s conduct be evaluated in the particular factual context of the case.

In practice, this means that in cases where there is no obvious misconduct, the government official’s actions are deemed reasonable. See Wesby, 138 S. Ct. at 589.

Qualified immunity, like official immunity, can and should be raised early in defending actions brought under 42 U.S.C. § 1983. Doing so may result in such lawsuits getting dismissed before significant amounts of time, energy, and money have been expended in discovery and trial preparation. As such, qualified immunity, along with official immunity, should be raised as a defense whenever possible.

Conclusion When a municipal official makes a mistake in course of employment, all is not lost. If the mistake was not reckless or malicious, it is probable that the government official and the government entity that employs him or her will be afforded protection from www.nhmunicipal.org

the lawsuit pursuant to the doctrines of official immunity (for common law torts under New Hampshire law) or qualified immunity (for 42 U.S.C. § 1983 actions under federal law).

But remember—these protections are most effective if raised early in litiga-

tion. Otherwise, defending an honestto-goodness mistake could become an honest-to-goodness headache.

Weston R. Sager and Matthew V. Burrows are attorneys with Gallagher, Callahan & Gartrell, P.C., a law firm based in Concord. Both work in the fields of

civil litigation, police litigation, and municipal law. Attorney Sager may be reached at 603.545.3663 or by email at sager@gcglaw.com. Attorney Burrows may also be reached at 603.545.3643 or by email at burrows@gcglaw.com.

MEMBER ALERT! Please update official roster and member contact information: NHMA relies on our members to keep 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 newlyelected and reelected officials from your city or town. By this action, you help us to maintain the 2018-2019 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 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!

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Town of Raymond, NH Proposed New Police Facility

Town of Hudson, NH New Fire Station

ARCHITECTURE ENGINEERING SUSTAINABLE DESIGN PLANNING INTERIOR DESIGN

@harrimancreates

HARRIMAN.COM

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AUBURN

PORTLAND

PORTSMOUTH

BOSTON

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Recreational Immunity

By Corey Belobrow, Esquire

R

ecreational immunity bars suits against land owners for allowing recreational use of land without charge.

This immunity is available to all landowners under RSA 212:34 and RSA 508:14, with minimal exceptions, when land is made available to all persons for recreational use without charge. RSA 212:34 provides that a landowner owes no duty to keep premises safe for “outdoor recreational activity...” when there is no charge for use of the premises. RSA 508:14 provides that a landowner “shall not be liable for personal injury or property damage...” when it “permits any person to use land for recreational purposes...” without charge.

These statutes do not provide immunity to municipal government entities only. But government entities provide the lion’s share of free recreational opportunities in most communities. Public parks, playgrounds in those parks and at schools, hiking trails and other facilities are commonly made available to the public by municipalities, at no charge. “Both the statutes [RSA 212:34 and 508:14] and their exceptions are logical because they encourage free and open use of recreational spaces.” Soraghan v. Mt. Cranmore Ski Resort, Inc., 152 N.H. 399, 404 (2005), quoting Hardy v. Loon Mountain Recreation Corp., 276 F.3d 18, 19 (1st Cir. 2002).

RSA 508:14 explicitly applies to the state and its subdivisions/municipal entities. The statute’s grant of immunity applies to “[A]n owner, occupant, or lessee of land, including the state or any political subdivision....” The two statutes have some differences, but they will both be discussed here www.nhmunicipal.org

as “recreational immunity” unless specific reference is made to only one of the statutes.

The New Hampshire Supreme Court has applied recreational immunity to bar claims in or on water, as well as land.

See Coan v. New Hampshire Department of Environmental Services, 161 N.H. 1 (2010). The Court has applied recreational immunity to structures on land, as well as to raw land. See Dolbeare v. City of Laconia, 168 N.H. 52 (2015).

The statutes apply when their two conditions are met: 1) the land/water be used for recreational purposes, and 2) the use be free to any person.

Practical Issues for Governmental Entities The primary practical issue for a governmental entity is whether to charge for recreational activities. Each entity must weigh whether retaining immunity is more or less valuable than retaining a user fee. In plain English, does it make sense not to collect a fee for use, and retain immunity?

Or does it make more sense to collect an access or user fee and lose the immunity which the statutes offer?

Recreational immunity has potentially broad application for a governmental entity. It could apply to ball fields, recreational leagues, a town beach (or lake, or river) after school facility use, parks, or a host of other facilities. Many governmental entities charge a fee for access to at least some of these facilities. Do these small charges mean enough to a town budget to continue applying them or is the risk of a $275,000-$925.000 lawsuit prohibitive?

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RECREATIONAL from page 15 If the revenue from recreational facilities is significant, the government entity must face the question of how it would make up for loss of revenue should it decide to preserve recreational immunity. For a town, or other entity with taxing authority, one solution is merely raising taxes. Another alternative may exist where facilities require many users to park nearby.

Charging for parking, for example, could make up lost revenue and preserves recreational immunity so long as the parking fee is not required for use of the premises. That is, if the user can walk, bicycle, or get dropped off at the facility, the parking fee arguably is not a facility use fee. Some users may decide it is worth walking four hundred yards from the nearest free parking to a town beach while others may decide that it is worth paying a threedollar parking fee to have their car near the town beach or other facility.

Another alternative is to generate the revenue with concession stands where applicable. A snack bar covering much of the cost of the facility may be quite worthwhile for the town (or other governmental entity) to drop a facility use fee and try to retain immunity. Some Supreme Court decisions bring this strategy into question, however. Any profit-making venture increases the likelihood that even a governmental entity might be unable to use a recreational immunity defense.

Another strategy that is probably unavailing is eliminating fees but limiting a town facility for use by town residents and guests only. N.H. Supreme Court decisions require that land owners allow any member of the general public to use their land for recreational immunity to apply. Although Estate of Gordon-Couture v. Brown, 152 N.H. 265 (2005) pertained to a private land owner as defendant, limiting use to town residents very likely risks loss of 16

recreational immunity defenses, based on the reasoning of this case.

A Closer Look at The Recreational Immunity Statutes As noted there are two statutes under which recreational immunity can be sought. RSA 212:34, originally passed in 1961, provides immunity for specifically noted recreational activities, and for activities similar to those listed. RSA 508:14, originally passed in 1975, is more general in its application and therefore potentially more useful.

RSA 212:34 RSA 212:34 provides that an owner, lessee or occupant of premises owes no duty of care to keep the premises safe, for others for certain activities. It also provides that an owner does not assure that the premises are safe nor does the owner assume responsibility for injuries caused to a third person by the person who was allowed use of the property.

The immunity is granted by the language indicating that the owner “owes no duty of care.” The first question in any lawsuit is whether the defendant owed a duty of care to the plaintiff. A person can walk by a lake and refuse to save a drowning person without incurring liability because people generally do not owe a duty to volunteer assistance to others. This is so even if the passerby is an expert swimmer. A passerby has no duty to dial for help on their cell phone, even if they could easily do so. Accordingly, eliminating a duty of care means there is no claim against a person.

The laundry list of activities for which immunity is granted by RSA 212:34 is important because it can limit the statutory immunity. To have immunity under this statute, the activity must be: 1) one of the specific activities listed, 2) fall under the more general categories listed such as water sports or winter sports, or 3) be a simi-

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lar activity (see § I (c) of the statute, which states that the term “outdoor recreational activity” includes “but is not limited to” the activities listed).

The list of activities also includes the “removal of fuelwood.” This is important because this activity probably is not covered under RSA 508:14, the second immunity statute, because it is probably not a recreational use. Note, also, that the inclusion of the category “water sports” is not only general but extends immunity beyond “land” and to activities in or on the water. The statute has exceptions. As with most immunities, willful or malicious acts are not immunized. There is also no immunity if a fee is charged for the activity (“permission ... was granted for a consideration….”).

RSA 508:14 RSA 508:14 is a simpler statute, easier to read, and generally broader in scope than RSA 212:34. It provides that an owner, occupant, or lessee of land “shall not be liable” for injury if they permit a person to use land without charge. However, the Supreme Court has narrowed immunity under this statute by holding that it is not sufficient to allow “any [particular] person” to use the land without charge, but the land owner must allow every person (that is, the general public) to use the land without charge.

RSA 508:14 is the broader of the two statutes because it covers all recreational use. This may seem unimportant until one thinks of the broad range of activities, which might be performed, and the potential dangers. Horseshoes and bocce ball might not be covered under RSA 212:34. They are certainly arguably “outdoor recreational activity,” but they are rather different than hunting and trapping. It should be comforting to those with a horseshoe pit that RSA 508:14 has more generalized language than RSA 212:34, since flinging horseshoes poses dangers to www.nhmunicipal.org

participants and bystanders. It does not take long to think of many activities which can more easily be covered

by RSA 508:14, but which might not be covered by RSA 212:34. RSA 508:14 also specifically includes governmental entities, while RSA 212:34 is silent on that issue. Presumably, governmental entities were meant to be covered by RSA 212:34 as well, as they are not specifically excluded. However, it is that much easier to argue for immunity when governmental entities are specifically named in the statute.

Case Summaries The relevant cases regarding recreational immunity are summarized in order from the newest to the oldest. Please note that these are only summaries, and small differences from case to case may have a very large impact on results.

Kurowski v. Town of Chester, 170N.H. 307 (2017) Suit was brought on behalf of a minor who was injured when another person used a rope swing at a townowned pond to access the water. The Town did not erect the rope swing but had notice of it and of the potential danger to persons using the pond.

The New Hampshire Supreme court found that the Town was immune because use of the pond was recreational, the use qualified as outdoor recreational activity (even though the minor who was injured was not in the water), and the Town did not act willfully (which would prevent immunity under RSA 212:34).

Dolbeare v. City of Laconia, 168 N.H. 52 (2015) Ms. Dolbeare sued Laconia for a trip and fall in a public park. She alleged that she tripped over mats that were placed under swings, where she was pushing her granddaughter. She challenged whether a swing set or the mats under the swings in a city park were covered by the recreational immunity www.nhmunicipal.org

statutes, contending that the immunity applied to raw land only, but not to structures on land. The Supreme Court upheld the dismissal of a negligence claim but the case was sent back to the Superior Court on the issue of whether plaintiff’s so-called “nuisance” claim for personal injury was subject to the recreational immunity statutes’ bar on such claims.

Coan v. New Hampshire Department of Environmental Services, 161 N.H. 1 (2010) This case involved the deaths of boys who were swimming in Silver Lake.

The DES operates a dam on the lake, which can cause difficult currents during the release of water. Plaintiffs argued that the injuries occurred in water, not on land, so that they were not covered by recreational immunity.

They also argued that DES did not actually “permit” use of the land or water because the State lacked the power to prevent the boys from crossing the land to get to the lake.

The Supreme Court ruled that using land to access water means that recreational immunity applies. The Court also found that the State has the authority to excluded persons from State owned waters. Accordingly, the Court upheld the dismissal of the claims.

Kennison v. Dubois, 152 NH 448 (2005) Suit was filed by the estate of a snowmobiler who collided with a snowmobile trail grooming machine operated by a non-profit snowmobile club. The New Hampshire Supreme Court ruled that the non-profit club was not immune from suit because it was not an “occupant” of land. This case result was then modified by legislation in 2005.

a youth ski meet where her daughter’s ski club paid the $2,000 reservation fee to Mt. Cranmore. The daughter paid $55 to participate, but the mother paid no fee as a spectator or volunteer. The mother injured her knee while walking to her car to retrieve her ski equipment. The Court found that Mt. Cranmore was not immune despite the fact that the mother did not pay any charge to be on the property.

Gordon-Couture v. Brown, 152 NH 265 (2005) Here, a young child drowned in a landowner’s pond while attending a private birthday party at the property.

The Court found that recreational immunity statutes do not apply to private land used for private activities.

Collins v. Martella, 17 F. 3rd 1 (1994) The defendants here were owners or managers of a private beach which was held for the benefit of residents who had deeded right of access to the beach. The defendants were found immune from suit where the plaintiff dove off a dock on the private beach and incurred injury. Note: This case would probably be decided differently today, due to the lack of access to the general public and perhaps because of the cost of deeded access to the beach.

Corey Belobrow is an attorney with Maggiotto, Belobrow, Fenney & Frass, PLLC., based in Concord, New Hampshire. Attorney Belobrow may be reached by email at coreyb@mbff-law.com or by phone at 603.225.5152.

Soraghan v. Mt. Cranmore Ski Resort, Inc, 152 NH 399 (2005) A mother attended and volunteered at M AY / J U N E 2 0 1 8

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Municipal Liability and Immunity in New Hampshire: Common Law and General Statutes

By Stephen C. Buckley

1. LIMITED LIABILITY VIA CASE LAW A. Common Law Municipal Immunity Municipal immunity may have originated in the English common law in the case of Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng. Rep. 359 (1789).

At the time that case was decided, the idea of a municipal corporation was in its infancy, and lawsuits were brought against the entire population of a community. Because there were no municipal funds (or insurance) from which to pay a judgment, individual citizens were required to pay out of their own pockets.

Thus, in Russell, the court held that it was better that an injured person be without remedy than to expose the public at large to liability.

The principle remained in the common law through judicial decision for most of the next 200 years.

Courts continued to conclude that since a municipality derived no profit from the exercise of governmental functions performed for the public benefit, moneys raised by taxation for public use should not be diverted to payment of tort claims.

B. Merrill v. Manchester: Abolition of Common Law Immunity with Exceptions In New Hampshire, the common law changed when the Supreme Court issued its decision in Merrill v.

Manchester, 114 N.H. 722 (1974). The Court held that the doctrine of municipal immunity offended “the basic principles of equality of burdens and of elementary justice” and was “foreign to the spirit of our constitutional guarantee that every subject is entitled to a legal remedy for injuries he may receive in www.nhmunicipal.org

his person or property.” For these policy reasons, the Court overturned established precedent and abolished common law municipal immunity effective July 1, 1975, with two exceptions. Municipalities would remain immune from liability for acts and omissions constituting: • the exercise of a legislative or judicial function; and • t he exercise of an executive or planning function involving the making of a basic policy decision characterized by the exercise of a high degree of official judgment or discretion.

As a result of the Court’s decision, cities and towns became responsible for most injuries negligently caused by their agents and employees in the course of their employment or official duties.

C. Immunity for Legislative and Judicial Functions Merrill v. Manchester cited Hurley v. Hudson, 112 N.H. 365 (1972) in preserving immunity for legislative and judicial functions. Hurley held that a town is not liable for property damage caused by the planning board’s negligent approval of a subdivision with a defective drainage plan. Since then, the Court has frequently cited the rule of Hurley that “judicial, quasi-judicial, legislative, or quasi-legislative acts of a town ordinarily do not subject it to claims for damages.” Torromeo v.

Fremont, 148 N.H. 640, 644 (2002). The exceptions are where officials have acted in bad faith, Win-Tasch Corp. v. Merrimack, 120 N.H. 6 (1980), or where an ordinance or decision constitutes an unconstitutional taking of property, Torromeo, 148 N.H. at 644.

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LIABILITY from page 19 D. Immunity for Discretionary Functions Municipalities and municipal officials continue to enjoy immunity for the “exercise of an executive or planning function involving the making of a basic policy decision characterized by the exercise of a high degree of official judgment or discretion.”

(This common law protection is also afforded by statute by RSA 31:104.) The rationale behind this partial immunity is the constitutional principle of separation of powers. The courts give great deference to the decisions entrusted by law to the other separate, but co-equal branches of government. However, there is no immunity for negligent implementation of a policy or plan.

These concepts are illustrated in a couple of cases decided by the New Hampshire Supreme Court, as described below.

Robinson v. Hillsborough County, New Hampshire Supreme Court, No. 2014-0648, (April 28, 2015).

The plaintiff alleged that he reported a frayed cable on the equipment to a corrections officer, who determined that the equipment was usable. The next day, the cable snapped, injuring the plaintiff. A governmental entity is immune from liability for injuries arising from planning or discretionary functions.

Purely ministerial functions are not protected. For immunity to apply, the conduct that caused the injury must involve a “high degree of discretion and judgment . . . in weighing alternatives and making choices with respect to public policy and planning.”

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However, a governmental entity may be subject to liability “when its employees negligently follow or fail to follow an established plan or standards.

Tarbell Adm’r, Inc. v. Concord, 157 N.H. 678 (2008) A property owner sued the city for damage to its building caused by water overflowing an emergency spillway from a pond maintained for the city water supply. The city had studied the risks and benefits of maintaining the water at the level that rose and overflowed in a heavy rainstorm.

The Court held that there was discretionary immunity for the decision to maintain the water level but no immunity for alleged failure to clear brush and otherwise maintain the outlet.

E. ‘Official Immunity’ for Police Officers In the case of Everitt v. General Electric Co., 156 N.H. 202 (2007), the Supreme Court afforded “official immunity” to police officers to protect them from personal liability for the exercise of judgment and discretion in the performance of their duties. This extends the doctrine of “municipal immunity” to protect operational decisions that do not qualify as discretionary executive or policy decisions but, nevertheless, are deemed worthy of immunity protection. The question of whether municipalities themselves are entitled to immunity for police officers’ decisions of this type remains open, as does the question of what other categories of officials and employees may be entitled to this sort of immunity.

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There are limits to “official immunity.” In Huckins v. McSweeney, 166 N.H. 176 (2014), the New Hampshire Supreme Court rejected an attempt to declare portions of the municipal liability statute, RSA Chapter 507-B, unconstitutional. The decision reaffirmed that municipal employees, and the municipal employer, cannot be held liable for intentionally caused injuries so long as the employee was acting under a reasonable belief that the offending conduct was authorized by law. The Court reaffirmed its prior decisions that there is no violation of the New Hampshire Constitution when the State immunizes itself and its municipalities from liability for intentional torts by governmental employees acting under a reasonable belief that the offending conduct was authorized by law. See also Hansen v. Town of Ossipee and Police Officer Shane Emerson, 2014 D.N.H. 072 (April 11, 2014).

In 2015, the New Hampshire Supreme Court held that a police officer must engage in reckless or wanton conduct in order to lose immunity. Farrelly v. City of Concord, 168 N.H. 430 (2015). The Court had to reconcile the standards for immunity articulated in both Huckins (“immunity applies to intentional torts committed by government officials or employees who act under a reasonable belief in the lawfulness of their conduct”) and in Everitt (“municipal police officers are immune from personal liability for decisions, acts or omissions that are . . . not made in a wanton or reckless manner”). The Court determined that the “reasonable belief” an officer is required to have for immunity to apply must www.nhmunicipal.org

both be a subjective belief that the conduct was lawful and must be objectively reasonable. However, the objective reasonableness is viewed “from the perspective of the actor in question,” asking whether the unlawfulness of the conduct “would have been apparent to an objectively reasonable officer standing in the defendant’s shoes.” Importantly, the Court went on to say that, in order to determine that an officer had not acted “reasonably,” the plaintiff must prove more than negligence—it must be established that the officer acted recklessly or wantonly as to the lawfulness of their conduct.

F. Limited Scope of Legal Duty “Cities and towns have not been, and are not now, guarantors of public peace, safety and welfare.” Doucette v. Bristol, 138 N.H. 205 (1993). Some municipal governmental activities are deemed not to create a duty that people are entitled to rely on to protect them from injury. Here are some examples: Dichiara v. Sanborn Regional School District, 165 NH 694 (2013)Stephen Dichiara was injured while trying out for the Sanborn Regional High School basketball team and he brought

a lawsuit against the basketball coach and the Sanborn Regional School District, alleging negligence. The trial court granted the defendants’ Motion for Summary Judgment on the grounds that defendant was entitled to governmental immunity under RSA 507-B. The Supreme Court affirmed. RSA 507-B limits governmental liability to claims of negligence “arising out of the ownership, occupation, maintenance or operation of all motor vehicles, and all premises.”

Dichiara argued that the statute should be read to allow a plaintiff to recover against a governmental entity for all fault-based claims, regardless of whether the conduct was related to the ownership, occupation, maintenance, or operation motor vehicles or premises.

The Court disagreed and held that upon the plain reading of RSA 507-B, the only exception to fault-based claims is triggered when there is a nexus between the claim and the governmental unit’s ownership, occupation, maintenance, or operation of a motor vehicle or premises.

a fiduciary obligation to the fee payors or was negligent per se in the administration of collected impact fees. The Court ruled that the impact fee statute, RSA 674:21, V, does not designate the Town as an escrow agent to hold collected impact fees for the benefit of fee payors and therefore does not impose fiduciary duties upon the Town. Concerning the argument by the fee payors that the Town’s maladministration of the collected impact fees amounted to negligence per se allowing the fee payors to recover damages, the Court found no articulated common law duty of care. The Court reiterated that municipalities do not assume a duty of care merely by virtue of having enacted regulations, citing to Stillwater Condo. Assoc. v. Town of Salem, 140 N.H. 505 (1995) (above). Similarly, the Court found that the fee payors failed to articulate any form of a common law duty of care owed by the Town such that the alleged mismanagement of the collected impact fees entitled them to recover money damages.

Town of Londonderry v. Mesiti Development, 168 N.H. 377 (2012) Several developers alleged that the Town had either breached

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org.

Our Municipal Law and Finance Group is rewriting the definition of municipal legal counsel in New Hampshire, integrating comprehensive general counsel experience with trusted municipal finance services.

Mark H. Puffer, Director • mpuffer@preti.com 57 North Main Street, Concord, NH 03301 • 603.410.1500

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The Current State of an Employee’s Right of Reinstatement Under the Workers’ Compensation Act

By Paul Salafia

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ffective February 8th, 1994, employers with five or more employees are required to reinstate injured employees to their former position upon request, assuming that the position exists and is available, and that the employee is not disabled from performing the duties of the position with reasonable accommodations for the employee’s limitations. A certificate from the employee’s attending physician is considered to be prima facie evidence that the employee is capable of performing the duties. An employee does not waive his or her right of reinstatement by refusing to return to work without the approval of his or her attending physician.

The statute indicated that the employee’s right of reinstatement terminates if there is a medical determination by the attending physician that the employee cannot return to his or her former position, if the employee accepts employment with another employer, or if 18 months have passed since the date of the injury.

This statute, while felt to be a boon to employees, is rarely utilized by injured workers and the issue is infrequently litigated at the New Hampshire Department of Labor or New Hampshire Supreme Court.

Department of Labor Rule 504.05 had also indicated that the employer wasn’t obligated to provide the former position to an injured employee of a construction contractor if the project is completed, unless another project is ongoing, to a seasonal or temporary employee, to a part-time employee as defined by the employer’s personnel policy, to an employee whose department is targeted for a reduction in force or layoff in a formal company plan, to an employee who had been given permanent restrictions by his or her www.nhmunicipal.org

treating physician, or an employee unable to return to work within 18 months from the date of the injury.

The main concern of employers, carriers, and self-insureds was the fact that there was not a provision for the cessation of the right of reinstatement based on a good faith personnel action or termination. The Department of Labor has applied such an exception to the right of reinstatement. However, the New Hampshire Supreme Court has historically read the Workers’ Compensation Act in a manner that liberally construes the provisions of the Act in favor of the injured worker. Therefore, there was substantial concern that the Court would not “read in” an exception which is not even hinted at in the Department of Labor regulations or the statute itself.

No cases on the right of reinstatement went to the Supreme Court for seven years after enactment until Appeal of Halloran, 147 N.H. 177 (2001), a case which involved a very limited, fact specific ruling. The Supreme Court held that the injured worker could take a direct action against the insurance carrier for the employer’s violation of the right of reinstatement when the employer has subsequently become insolvent and is unable to pay the weekly wage benefits which the employer should be paying to the injured worker.

This was a surprising result as the statute itself specifically indicates that if the employer does not reinstate the worker, and the Labor Department finds that reinstatement should have taken place, that the employer, not the carrier or trust is responsible for average weekly wage benefits. However, rather than find the injured worker to have no recourse, the Court interpreted the statute in a manner inconsistent with the actual language of the statute to come to this result.

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WORKERS’ COMP from page 23 Thereafter, there were no additional reinstatement cases taken to the Supreme Court for 15 years. In 2016 the Court addressed two separate cases, the first being the Appeal of Raymond Cover, 168 N.H. 614 (2016). In this case the claimant was a part-time employee of the New Hampshire Liquor Commission. He filed a workers’ compensation claim and was aware that he needed to provide documentation to justify his absence from work by a date certain, or he would be terminated. He did not provide the documentation and was terminated. Thereafter a hearing was requested and the injury was found compensable. Wage benefits and medical benefits were paid. Reinstatement was also requested but was denied by the hearing officer who noted that parttime employees were not eligible for reinstatement pursuant to the Department of Labor regulations, as they existed at that point in time.

The Appeals Board found that the Department of Labor regulations specifically excluded part-time employees from eligibility for reinstatement. The Supreme Court found that while the statute does not specifically extend protection to part-time employees, the statute did not specifically exempt part-time employees from protection either. Therefore, they found that the Labor Department regulation added language to the statute which the legislature did not see fit to include. On that basis, they remanded the case for further findings consistent with the determination that the status of a part-time worker does not exclude the claimant from having a right of reinstatement. The Department of Labor regulations have removed the exception for “part-time employees”.

In the case of Appeal of Carlos Marti, 169 N.H.185 (2016), the claimant suffered a work related injury and sought permission to go to the local emer24

gency room. The employer refused the request and referred the claimant to an occupational health clinic pursuant to company policy. The claimant was informed that if he left to go to the emergency room it would constitute insubordination and he would be fired. He did so, and was terminated. He did not grieve his termination under the collective bargaining agreement.

The claim was accepted and benefits were paid. The claimant then requested a hearing on his claim for reinstatement. The employer took the position that the claimant’s right of reinstatement was severed by a good faith personnel action. The Court noted that while a good faith personnel action is not delineated in the statute as a reason for cessation of a right of reinstatement, the Court could “think of various other termination scenarios under which the legislature could not have intended the terminated worker to be entitled to reinstatement”. Therefore, it concluded that the term “employee” in the right of reinstatement statute “cannot be read to include a worker who has been legitimately terminated from employment for cause”. The Court also remanded this case to the Appeals Board for a determination as to whether the claimant’s failure to grieve his termination foreclosed a challenge to the termination under the relevant collective bargaining agreement.

One of the most frequently most asked questions by employers is whether they have the ability to terminate an injured worker, who has a compensable claim, prior to the lapse of 18 months from the date of the injury. For workers’ compensation purposes only, an injured worker can almost always be terminated. If the right of reinstatement has not lapsed, or terminated, this departure from the workplace would be “conditional”. In other words, if the injured worker subsequently claimed a right of reinstatement, and was entitled to reinstatement, the termination would be voided and

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the claimant would return to the job.

Please note that there may be employment law ramifications to a termination and employment law counsel should always be consulted prior to the termination. The indirect effect on the workers’ compensation claim may be to increase the indemnity exposure of the claim.

For example, if the employer accepts the claimant back at the prior job, or a similar job with reasonable accommodation, there may be no indemnity exposure whatsoever. However, if reinstatement is not granted, claimants frequently request hearings on both extent of disability (to be paid indemnity benefits by the carrier) and right of reinstatement (to be paid wage benefits by the employer). These arguments usually tend to be somewhat mutually exclusive. In order to receive indemnity benefits they must be disabled from the job. In order to receive reinstatement they must be able to do the job. However, claimant’s counsel usually argues in the alternative and adds both issues. Therefore, the lack of a reinstatement may increase indemnity exposure both to the carrier, and wage benefit exposure to the employer.

The current state of the workers’ compensation law is that a good faith termination does end the claimant’s right of reinstatement. Please note that neither case sets forth any true analysis of what would constitute a “good faith termination”. Also please note that the Labor Department hearing officers on the workers’ compensation side, are not in the normal habit of assessing whether a termination is made in good faith. Due to the small number of reinstatement cases actually litigated, there is not a clear understanding as to what standards the Labor Department will apply in order to come to the conclusion of whether the termination was made in good faith.

Paul L. Salafia is an attorney with the Devine Millimet Law firm in Concord.

Paul may be reached by phone at 603.226.1000 x1706 or by email at psalafia@devinemillimet.com. www.nhmunicipal.org

Be Careful What You Sign: Construction Contracts

By Mike Ricker

I. How The Issues Emerge New construction, renovation and systems upgrade projects designed to improve operations and service delivery are critically important investments for local government entities and their taxpayers. Establishing need, options, support, funding and a team of reliable contractors takes an appreciable commitment of time and energy by both elected officials and staff. Reputable architects, engineers, environmental consultants and general contractors provide critical professional support and are very helpful to their clients. In the vast majority of projects, the parties are enthusiastic and aligned to complete the job successfully. Construction, however, is not without its difficult moments.

Awkwardly at some point, the form construction contract will beg the owner’s hurried endorsement. Various iterations of the form contract are used by architects, engineers and general contractors, and none are fully protective of the owner’s interests. On closer inspection, these agreements suggest competing interests and require the owner’s acquiescence to certain disadvantageous terms residing within the main document and its attachments, which may be incorporated by reference and obtainable only by request. Lawyers, when they observe the prejudicial terms, will object and edit the proposed documents. So begins an uncomfortable period of debate and disagreement over contract “boilerplate.” A common question arises, “Why can’t we just sign this contract so everyone can get back on track with the project?” www.nhmunicipal.org

II. Risk Transfer Local government officials have a duty of care in signing a legal instrument that defines the parties’ respective rights, remedies and liabilities in a construction project. Signing a construction contract without careful review and revision will likely place the owner at legal and financial peril if liability issues arise from some aspect of the project.

A contract can easily transfer limitless financial risk to an unsuspecting or disinterested party. Risk transfer clauses have become ubiquitous and are utilized extensively in the construction industry. Litigation experience informs us that the construction contract, because of its tendency to carefully structure and transfer financial risk, is the document that all interested parties, their attorneys and insurance carriers will study carefully and invoke against one another in the aftermath of a loss. In order to manage this exposure, it’s imperative for the owner to anticipate the risk and participate in the drafting and revision of the construction contract prior to the commencement of services.

The primary risk transfer devices used in these contracts include indemnification clauses (commitments to pay for another party’s legal fees, expenses and settlement/ verdict costs), additional insured requirements (adding another party to your liability insurance even though they are already insured), waivers of subrogation (eliminating your insurer’s legal right to recoup losses caused M AY / J U N E 2 0 1 8

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CONTRACTS from page 25

by another party), and property coverage requirements (identifying who insures the work in progress and any existing structure). Particularly problematic are clauses that require the owner to indemnify and insure architects, engineers and surveyors because there is no coverage for these obligations. Similarly, any promise to indemnify and insure a party regarding pollution or hazardous waste liability is not supported by coverage and should be avoided.

Subrogation waivers are equally troublesome. Primex3, through subrogation, pursues parties responsible for covered losses to recoup as much of the loss payment as possible. The recovery is applied dollar for dollar to the covered member’s loss run to reduce its claim history and premium impact. Because of the importance of subrogation, Primex3 members may waive it only with Primex3’s written consent.

Secondary clauses that bear indirectly on risk transfer include limitations on the owner’s remedies, jury trial rights and time in which to file claims. These provisions minimize the contractors’ financial exposure and effectively leave that exposure with the owner.

Owners should not only play good defense against adverse risk transfer, but they should also go on offense and use their leverage to impose risk transfer on their contractors.

For example, contractors should agree to indemnify and additionally insure owners for claims arising from the contractors’ operations, acts or omissions. Mutual indemnification and reciprocal additional 26

insured are sometimes proposed but are never truly advisable concepts because they defeat the purpose of risk transfer and cancel out the protection. These techniques are used as blocking maneuvers by parties reluctant to indemnify or additionally insure.

III. Insurance and Financial Responsibility All contractors should carry appropriate insurance coverage. General liability, umbrella, business auto, professional liability/errors & omissions, workers compensation and employer’s liability are standard requirements. Amounts of coverage may vary with the project’s level of risk but are generally substantial for most projects. In some cases, pollution or other specialty lines of coverage may be warranted. The construction contract should require the general contractor to impose the same or similar insurance requirements on the subcontractors.

Uninsured subcontractors pose a very serious and inadvisable risk to the owner’s interests.

New Hampshire law requires local government entities to secure a payment bond on all projects with a value of $125,000 or greater. RSA 447:16. For projects below this threshold, the bond is optional. The obligation to procure the payment bond should be passed off to the general contractor in the construction contract. A performance bond is usually sold with the payment bond and is recommended. In addition to the financial protection the bonds afford the owner relative to the project, the underwriting process is relatively rigorous and will screen out a contractor whose

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past or present circumstances make them ineligible for bonding. iV. Tips for Managing Contracts Developing a simple contract management process is a great place to start. Identify who is authorized to receive, review, negotiate, approve and sign contracts. A very limited number of people should be given authority to approve and execute contracts, and they should be trained and given access to legal counsel. Primex3 offers training and insurance consulting on contract matters and is happy to help in these regards. Local legal counsel should always review the entire contract and should be involved from the outset with construction projects to help ensure compliance with municipal and regulatory laws. Primex3 members should submit the insurance, indemnification and subrogation waiver sections to Primex3 for review and editing to avoid unintended coverage issues.

It’s critical to negotiate the terms of construction contracts early on when the owner has more leverage. Trying to resolve terms several days before breaking ground invites resistance because the prospect of a last-minute delay increases the contractor’s leverage. It’s often effective to put expectations regarding important contract language issues in the RFP, or to make contract negotiation the first order of business after the selection of the general contractor.

Before signing the contract, legal counsel and the owner should carefully review it again to make sure all revisions have been correctly made.

Often, one or more edits may be www.nhmunicipal.org

inadvertently omitted or jumbled in the rush to move forward.

The contracts and proofs of coverage related to the project should be maintained permanently. Litigation unfortunately can arise from a project many years down the road, and these documents will be cen-

tral to the outcome.

By treating the construction contract and related documents as items of importance early in the process, the owner can more effectively consult advisors, work through issues and ensure it’s interests are adequately protected.

 Telecommunica�ons  Tax Assessment  Eminent Domain

Mike Ricker is General Counsel with Primex3. Mike can be reached by email at mricker@nhprimex.org or by phone at 603.225.2841. Founded in 1979, the New Hampshire Public Risk Management Exchange (Primex 3) is a public entity risk pool organized and operating as a trust on behalf of member municipalities, schools, counties and other governmental entities.

We represent towns and ci�es throughout the state and bring value to our clients through decades of experience and adhering to the budgetary constraints under which municipali�es operate. We emphasize preven�ve and �mely legal counsel to our clients with a view toward avoiding problems that result in li�ga�on.

Special counsel services include:

 Appellate  Water  Labor & Employment  Growth Control  Li�ga�on  Land Use & Planning

Also available for conict counsel services

 U�lity & Infrastructure  Police  Environmental

OFFICES IN EXETER, PORTSMOUTH, MEREDITH & CONCORD, NEW HAMPSHIRE

WWW.DTCLAWYERS.COM

DONAHUE, TUCKER & CIANDELLA, PLLC E‐mail: info@DTCLawyers.com

www.nhmunicipal.org

Toll Free: (800) 566‐0506

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2018 Local Officials Workshops FREE workshops

for seasoned and new municipal officials and employees of NHMA member municipalities.

Presented by NHMA’s Legal Services attorneys, these workshops provide municipal officials with tools and information to effectively serve their communities. Topics will include the Right-to-Know Law, ethics and conflicts, town governance, municipal roads, and more. Ample time allowed for questions, answers, and discussion.

9:00 am— 4:00 pm Registration begins at 8:30 am

12:00 noon —1:00 pm

Workshop is free, but lunch is on your own!

LUNCH ON YOUR OWN! Continental breakfast will be provided.

New this year—bring your own lunch.

Time provided for attendees to get lunch!

FREE Workshop! No Registration Fee.

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

Cancellation must be received 48 hours in advance. If cancellation is not received 48 hours in advance.

NHMA will charge you $20 to cover workshop costs, including meals.

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

DATES AND LOCATIONS Tuesday, May 8—Newington Town Hall, Newington Tuesday, May 15—Moultonborough Safety Complex, Moultonborough Tuesday, May 22—The Meeting House, Sugar Hill Saturday, June 2—NHMA Offices, Concord *These workshop dates and locations subject to change. Please check our website regularly.

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www.nhmunicipal.org

The Need for Ongoing, Nourishing Leadership in Our Local Communities

by Todd Selig

H

arry Truman once wrote, “Men make history and not the other way around. In periods where there is no leadership, society stands still. Progress occurs when courageous, skillful leaders seize the opportunity to change things for the better.”

Our collective challenge then as selectpersons, councilors, trustees, town clerk/tax collectors, municipal managers, department heads, and staff with opportunities for leadership in serving New Hampshire’s 234 towns and cities is to identify those qualities and characteristics we might want to emulate in order to most effectively help our local governments move forward in a productive way. To that end, what follows are some observations I’ve gleaned over the last two plus decades working within in the local government profession in our state.

The very best leaders lead with their values. They possess integrity and effectively articulate what they believe to be important and right so that citizens and staff may understand their vision and view of the world.

Leaders listen. They consider differing perspectives and weigh the merits of these in crafting policies and solutions to address local challenges.

Leaders build trust, and trust and honor others. They develop meaningful relationships allowing them to accomplish important initiatives and productively work through conflict when inevitable disagreement arises.

Leaders work hard and are committed. Being in the right place at the right time is good, but success on behalf of local www.nhmunicipal.org

residents takes work! Consistent with their values, leaders do what it takes with integrity to reach desired ends.

Leaders are data driven. They use relevant facts to help inform their recommended solutions and to evaluate whether or not a policy is actually having the desired impact over time. They offer objective information to substantiate their views.

Leaders define success. They establish goals and continuously work to improve external and internal policies and processes to attain them.

Leaders practice tough love. They talk about what is needed to improve the lives of the citizens they serve and the municipal organizations in which they work. They hold people (and themselves) accountable to clearly established goals.

They don’t blame others. They offer a path to the future and build consensus around it.

Leaders possess mental toughness and resilience during difficult times. They remain calm, composed, and committed to their values. Crises and emotional issues come and go, yet thoughtful leaders take these in stride and keep a cool head.

Leaders have the courage to show weakness and admit mistakes. “I’m sorry, I was wrong.” are five powerful, yet important words! Once an error in course is acknowledged, a new path is chartered utilizing lessons learned.

Leaders keep their eye on the bottom line on behalf of taxpayers. Yet even under difficult financial pressures, they make strategic investments to improve upon the effectiveness of the organization.

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LEADERSHIP from page 29 Finally, I have found the very best leaders at the local level keep it simple. They know they succeed when the citizens and organizations they serve succeed.

Our New Hampshire communities require ongoing, nourishing leadership at every level of the organization to navigate complex economic and social challenges. Individuals at the local level with the capacity for leadership -- elected or appointed, department head or line staffer -- can help communities weather challenging economic and social times for the benefit of our residents.

Originally from Laconia, Todd Selig has been the Administrator for the Town of Durham since 2001. He lives with his wife and two daughters in Durham.

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www.nhmunicipal.org

Learn More about U.S. Communities Government Purchasing Alliance

T

he New Hampshire Municipal Association is a proud sponsor of the U.S. Communities Government Purchasing Alliance.

U.S. Communities is the only accredited national government purchasing cooperative providing world-class government procurement resources and solutions to local and state government agencies, school districts (K-12), higher education institutions, and nonprofits at the best overall government pricing. More than 55,000 registered counties, municipalities, education institutions and nonprofits utilize U.S. Communities contracts to procure more than 2 billion dollars in products and services.

In 2017, there were 72 New Hampshire municipal entities that took advantage of the time and cost saving benefits associated with the U.S. Communities Government Purchasing Alliance.

Municipalities have discovered savings by utilizing many different U.S. Communities cooperative contracts covering leading suppliers such as Cintas, Advance Auto Parts, Home Depot, Ricoh and more! There are no fees to participate and no purchasing minimums, allowing maximum flexibility for participating agencies.

Municipalities in New Hampshire have a tremendous opportunity to take the lead in utilizing innovative, cost-saving best practices. As they look ahead and develop strategies for the rest of the year, it would be beneficial to consider the use of cooperative purchasing, an effective tool to help save www.nhmunicipal.org

time and money. In an uncertain economic climate where municipalities are pushed to do more with less, cooperatives can easily assist with purchasing needs.

Benefits of Cooperative Purchasing Cooperative purchasing provides resources and solutions to local and state government agencies looking for the best overall government pricing. In accordance with state procurement laws and regulations, contracts are competitively solicited and allow participating agencies to avoid the bid process, saving valuable time and resources by lowering the effort and cost associated with traditional procurement.

Cost-saving purchasing cooperatives benefit agencies and institutions by exposing them to quick and efficient sources to procure supplies and services by leveraging the volume of participating agencies from across the country.

The use of a cooperative ultimately reduces the total acquisition cost through economies of a scale. There are no fees to participate and no purchasing minimums, allowing maximum flexibility for participating agencies.

Cooperative Purchasing: • Reduces the administrative burden saving valuable time and resources • Utilizes nationally leveraged pricing from the most competitive contracts • Is available at no cost to participating agencies • Quickly and efficiently sources and procures supplies and services • Reduces the total acquisition cost through economies of scale M AY / J U N E 2 0 1 8

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U.S. COMMUNITIES from page 31 • Places purchasing power in the hands of agencies • Benefits suppliers by reducing the need to respond to multiple bids and solicitations • Provides access to lower pricing on higher quality items • Contracts are non-exclusive and discretionary

What’s New? U.S. Communities recently launched a multi-year contract that gives municipalities access to a variety of quality goods and services on the Amazon Business online marketplace. Through this contract, purchasing teams can access 10 categories across Amazon’s selection, including books, office supplies, classroom and art supplies, home

and kitchen, musical instruments, audio visual and electronics, clothing, animal supplies, scientific equipment and lab supplies.

The award of this contract represents U.S. Communities’ commitment to providing relevant and suitable solutions for municipalities. The partnership’s tagline, “everything you love about Amazon for the public sector,” genuinely conveys Amazon’s commitment to serve all public agencies nationwide.

Addressing A Problem Addiction to opioids continues to challenge the social and economic well-being of municipalities big and small. Usage has increased dramatically in the past five years, and subsequently, overdose-related deaths have more than doubled from 2011

to 2014. In an effort to provide assistance with this national epidemic, U.S. Communities and its supplier partner, Premier Medical, are offering NARCAN® Nasal Spray to public agencies across the country at a $37.50 per dose—a 40% discount.

The Bottom Line Each month, more than 600 new participants register their organization with U.S. Communities in the interest of simplifying their procurement process. This continuing growth is fueled by the program’s proven track record of delivering excellence in procurement solutions. As you assess the programs available to your city, be sure to include U.S. Communities on your list.

For more information on U.S. Communities, please visit www.uscommunities.org.

REPRESENTING MUNICIPALITIES Land Use

Labor & Employment

Administration & Finance

Environmental Law

Assessment, Abatement and Tax Collection

Bankruptcy

WE ARE THE GRANITE STATE’S LAW FIRM™ Concord 603.224.7791

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Hillsborough 603.464.5578

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NEW HAMPSHIRE TOWN AND CITY

10 Centre Street Concord, NH 03302-1090 law@uptonhatfield.com www.uptonhatfield.com

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Controlling Junk: Junkyard Enforcement 101 Wednesday, May 23, 2018 12:00 pm—1:00 pm

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

Controlling Junk:

Junkyard Enforcement 101

Since 1965, all municipalities in New Hampshire have had the responsibility to regulate junkyards at the local level. The term “junk," however, is not well defined and means different things to different people. The issue is complex, and municipalities must deal with accumulations as small as an individual property owner with unsightly piles in the yard to large commercial junkyard operations that are many acres in size.

Municipal officials, specifically code enforcement officers, fire chiefs, health inspectors, and building inspectors, are responsible for the regulation and enforcement of junk and junkyards.

“Junk" regulations are intended to preserve public safety by preventing a fire; to protect public health by preventing the spread of disease; or to serve the general welfare by preventing harm to the environment.

Join NHMA’s Staff Attorney Margaret Byrnes and Attorney Matt Serge of Drummond Woodsum in Manchester who will discuss the approaches available to local officials to prevent the creation of nuisances, enforce licensing requirements, and otherwise take effective enforcement action to protect public health and safety.

Legislative Wrap-up Wednesday, June 6, 2018

Legislative Wrap-up

12:00 pm—1:00 pm

Join Government Affairs Counsel Cordell Johnston and Government Finance Advisor Barbara Reid for a review of the highlights of the 2018 legislative session. This will be after the legislative session ends, so except for possible vetoes, all legislative action is expected to be final.

This webinar will discuss the most significant bills of municipal interest that made it through the legislature this year, as well as a few that failed but may be back in the future. It will begin with a status update on the postponement of town meeting. Other subjects will include water quality standards, assessing issues, planning and zoning, the Rightto-Know Law, the New Hampshire Retirement System, election laws, and various other changes affecting municipal governance and administration.

For details and registration information, visit www.nhmunicipal.org under Calendar of Events .

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

www.nhmunicipal.org

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★

BEST PRACTICES ★

New Hampshire Municipal Association

Best Practices Series

★

BEST PRACTICES ★

How to Prevent Race and Color Discrimination in the Workplace General • Respect cultural and racial differences in the workplace.

• Be professional in conduct and speech.

• Refuse to initiate, participate, or condone discrimination and harassment.

• Avoid race-based or culturally offensive humor or pranks.

When in doubt, leave it outside the workplace.

• Familiarize yourself with the company’s workplace policies and act responsibly.

• Attend training on EEO principles and learn about your legal rights and responsibilities under the anti-discrimination laws. Also visit www.eeoc.gov for information on discrimination and harassment.

• Be pro-active. Report incidents of inappropriate, discriminatory, harassing or abusive behavior to your supervisor, Human Resources department, union, or management.

If you experience or witness discrimination or harassment contact EEOC or your local human rights commission • Train Human Resources managers and all employees on EEO laws. Implement a strong EEO policy that is embraced at the top levels of the organization.

Train managers, supervisors and 34

employees on its contents, enforce it, and hold them accountable.

• Promote an inclusive culture in the workplace by fostering an environment of professionalism and respect for personal differences.

• Foster open communication and early dispute resolution. This may minimize the chance of misunderstandings escalating into legally actionable EEO problems.

An alternative dispute-resolution (ADR) program can help resolve EEO problems without the acrimony associated with an adversarial process.

• Establish neutral and objective criteria to avoid subjective employment decisions based on personal stereotypes or hidden biases.

Recruitment, Hiring, and Promotion • Recruit, hire, and promote with EEO principles in mind, by implementing practices designed to widen and diversify the pool of candidates considered for employment openings, including openings in upper level management.

NEW HAMPSHIRE TOWN AND CITY

• Monitor for EEO compliance by conducting self-analyses to determine whether current employment practices disadvantage people of color, treat them differently, or leave uncorrected the effects of historical discrimination in the company.

• Analyze the duties, functions, and competencies relevant to jobs.

Then create objective, job-related qualification standards related to those duties, functions, and competencies. Make sure they are consistently applied when choosing among candidates.

• Ensure selection criteria do not disproportionately exclude certain racial groups unless the criteria are valid predictors of successful job performance and meet the employer’s business needs. For example, if educational requirements disproportionately exclude certain minority or racial groups, they may be illegal if not important for job performance or business needs.

• Make sure promotion criteria are made known, and that job openings are communicated to all eligible employees.

• When using an outside agency for recruitment, make sure the agency does not search for candidates of a particular race or color. Both the employer that made the request and the emwww.nhmunicipal.org

ployment agency that honored it would be liable.

Terms, Conditions, and Privileges of Employment • Monitor compensation practices and performance appraisal systems for patterns of potential discrimination. Make sure performance appraisals are based on employees’ actual job performance. Ensure consistency, i.e., that comparable job performances receive comparable ratings regardless of the evaluator, and that appraisals are neither artificially low nor artificially high.

• Develop the potential of employees, supervisors, and managers with EEO in mind, by providing training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs. In addition, employees of all backgrounds should have equal access to workplace networks.

• Protect against retaliation. Provide clear and credible assurances that if employees make complaints or provide information related to complaints, the employer will protect employees from retaliation, and consistently follow through on this guarantee.

• A clearly described complaint process that provides multiple, accessible avenues of complaint; • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; • A complaint process that provides a prompt, thorough, and impartial investigation; and • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

General Information: www.eeoc.gov Technical Assistance: www.eeotraining.eeoc.gov

for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases).

Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

Overview of USEEOC The U.S. Equal Employment Opportunity Commission (EEOC) is responsible

Harassment Adopt a strong anti-harassment policy, periodically train each employee on its contents, and vigorously follow and enforce it. The policy should include: • A clear explanation of prohibited conduct, including examples; • Clear assurance that employees who make complaints or provide information related to complaints will be protected against retaliation; www.nhmunicipal.org

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

Sp tlight

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

Background Granite State Rural Water Association (GSRWA) is a trade association for New Hampshire’s water and wastewater utilities. Our mission is “to provide its water and wastewater members with professional technical assistance, training, legislative representation, and liaison with agencies through its state and national programs.”

GSRWA is a 501c (6) tax exempt corporation. For over 20 years GSRWA has provided on-site technical assistance and training programs for the public water and wastewater industry in New Hampshire. GSRWA is the only nonprofit organization in New Hampshire that provides all of the following services to both public drinking water and wastewater systems and operators: on-site technical assistance, training classes, access to specialized equipment, and legislative representation at both the federal and state levels.

Who do we serve?

We serve New Hampshire’s drinking water and wastewater utilities and their personnel. We work with municipalities, schools, coops, and other entities that have public drinking water and/or wastewater systems.

GSRWA collaborates with many agencies including New Hampshire Department of Environmental Services, New Hampshire Community Loan Foundation, USDA Rural Development, New Hampshire Municipal Association, US Environmental Protection Agency, Region 1, and other state organizations. We have also worked closely with a range of organizations including New Hampshire Association of Campgrounds, watershed associations, regional planning commissions, and conservation organi-

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zations, such as Trust for Public Land or Lake Sunapee Protective Association.

What services do we provide?

We help these utilities by providing on-site technical assistance in the form of operational and managerial support. Specific examples include helping systems conduct rate studies, finding leaks in drinking water systems, proactively protecting sources of drinking water from contamination, trouble-shooting treatment options, mapping distribution lines and applying for grants. We provide professional training classes around the state so that water and wastewater operators can maintain their licenses. These classes are notably affordable, convenient, and have great information. GSRWA also advocates on behalf of drinking water and wastewater systems at the state and federal levels. In New Hampshire we have recently been following with interest the development of the Drinking Water Trust Fund as New Hampshire’s newest source of funding for drinking water utilities.

Membership GSRWA has three types of membership classifications: System Members, Individual Members, and Associate Members. System Members are drinking water or waste water utilities, Individuals are drinking water professionals, and Associate Members are companies that provide products and services. GSRWA has approximately 270 members. Benefits of membership include vehicle fleet discounts, discounts on insurance products through Davis and Towle Insurance, and discounts on training classes and conferences to name a few. If you would like more information about GSRWA, please give us a call at (603) 756-3670. We look forward to hearing from you!

www.nhmunicipal.org

The Future of Equity in Cities

A

s cities embrace a future permeated by technology, local leaders must continually reassert and revisit community values, while ensuring these values are the foundation of new plans, policies, and programs. This is particularly true in the areas of infrastructure, public safety and economic development, which are consistently identified as top issues of concern for city officials.

NLC’s latest report, “The Future of Equity in Cities” takes these core issues and forecasts the opportunities and challenges to come in the near-term, and further out in 2030.

Economic Development - Equitable Growth Cities are becoming more diverse, but simultaneously more segregated and inequitable. Ninety-eight percent of growth in the one hundred largest cities since 2000 was from growth in minority populations. A Brookings Institution analysis of the 2011- 2015 American Community Survey found that despite this increased diversity in cities, racial segregation has only moderately declined. Dominantly white neighborhoods in cities were 79 percent white in 2000 and 72 percent white in 2015, despite the overall white population in cities having dropped from 64 percent to 56 percent during the same period. For neighborhoods outside of large metropolitan areas, this reduction was even smaller, from 84 percent to 80 percent. As a nation, higher birth rates for racial minorities are projected to make the aggregate minority population a majority of the country by 2043.2 In the majority of cities, the fastest growing employment sectors are high-skill and high wage, but unfortunately these sectors are not likely to add the same number of aggregate jobs as much larger and lower-skilled sectors like retail, food service, and office and administration. This spatial mismatch of employment and wages will only be amplified by future growth trends in cities and will reinforce inequities. It

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is imperative that cities work to counteract these trends now.

As cities take advantage of new, disruptive technologies, they also need to get serious about equity. This means comprehensively defining it, determining what it means and how it might benefit the community, and ensuring it is a priority in every facet of their administrations, including partnerships with other sectors and outside organizations. New technological interventions can offer significant value to cities. There is always an opportunity to channel the forces of new tech to solve challenges for the most vulnerable populations. Solving problems for these populations often improves life for everyone in a community, as public problems tend to be collective. Furthermore, technological forces are not inherently neutral, and that sometimes their reliance on market forces means that they impact different communities in different ways. An autonomous vehicle might be groundbreaking and exciting in a dense urban area and simultaneously wipe out a prominent sector of the economy in a remote, rural area. For this reason, an acknowledgement of values and priorities must precede adoption. Finally, cities should begin with an honest evaluation of how their city is performing across all departments, programs and policies. As they adopt new technologies and smart city systems, they should think about whether those new interventions might improve or hinder existing inequities and biases.

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NEW HAMPSHIRE ASSOCIATION OF REGIONAL PLANNING COMMISSIONS

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

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Brownfields Assessment: A Path Toward Revitalization

By J.B. Mack, Principal Planner with the Southwest Regional Planning Commission, and Matthew Monahan, Senior Planner with the Central New Hampshire Regional Planning Commission Does your community serve host to a Brownfield? A brownfield is any property where expansion or redevelopment is complicated or stymied by real or perceived environmental contamination. The US Environmental Protection Agency (EPA) estimates that there are at least 450,000 Brownfields properties nationwide.

While traditionally seen as an urban issue, Brownfields exist in suburban and rural areas as well. Consider the former gas station, an old rail yard or abandoned junk yard. Soil, water and air contamination can be caused by many different land use activities.

Many people equate Brownfields with Superfund sites. But Brownfields pose less of a serious health or environmental threat than Superfund sites. A Superfund site is land that is severely contaminated and has high concentrations of hazardous waste or pollution leading to its designation on the EPA’s National Priorities List; Brownfields are not. Brownfields may still pose health or environmental threats, but typically at a smaller scale. The idea is that with a good redevelopment plan and some relatively modest investments diagnosing a property’s environmental concerns, Brownfields properties are easier to redevelop.

Since its beginning in 1995, EPA’s Brownfields Program has changed the way contaminated property is perceived, addressed, and managed. EPA’s Brownfields Program is designed to empower states, communities, and other stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely cleanup, and sustainably reuse brownfields. The process unfolds in phases starting with an environmental assessment of the property. If contamination is discovered, then assessment can lead to remediation planning, cleanup, and redevelopment. The EPA has grants and loan programs available to help along the way from the assessment phase to the cleanup phase.

The first step is the environmental assessment, is

NEW HAMPSHIRE TOWN AND CITY

itself a phased, methodical process. Typically, assessment work begins with a Phase I environmental site assessment, the goal of which is to determine if there are any recognized environmental conditions –contamination red flags--associated with the property. The Phase I assessment involves a public record check of the property, interviews with people that know the property’s history, and a site walk. Sometimes a Brownfield assessment ends at the Phase I when it’s been determined that there are no recognized environmental conditions. Other times, it can lead to a Phase II environmental site assessment. Typically Phase II assessments involve the collection of new data—sometimes groundwater, soil or even indoor air quality data. Depending on data results, a site may or may not need a remedial action plan or analysis of Brownfields cleanup alternatives. All of these activities are eligible for EPA assessment funding.

Over the past 15 years, several of New Hampshire’s regional planning commissions (RPCs) have become active in sponsoring Brownfields assessment programs to benefit their member communities. These programs are conducted in partnership with EPA and the NH Department of Environmental Services and, due to their regional scope, can be used to assess Brownfield properties in a number of communities simultaneously.

What are the benefits of participating in RPC Brownfield assessment programs?

For the property owner, the benefits stem from the fact that anyone in the chain of title may be liable for a contaminated site – even if they sell it. Through assessment activities, it can be determined whether, and the extent to which, a particular property may be contaminated. Due diligence is required when purchasing a contaminated site and the RPC brownfields assessment program can help with that process. Another benefit to the land owner is that there are several www.nhmunicipal.org

programs at the federal and state levels that have been created to aid property owners in the cleanup and redevelopment of Brownfields sites. Some of this assistance includes federal and state tax incentives, grants and low interest loans, and liability protection.

For a community, benefits can include economic growth and development as a formerly under-used site has new economic value. Some developers actively seek out Brownfield sites to develop.

The assessment process sets the stage for this. Results can include an increase in property taxes, costs to the town for the development can be less due to use of existing infrastructure, and with new business growth comes new jobs and economic activity. Also, assessment can lead to both environmental and community revitalization. In addition, clean water and soil that result protect our natural resources, and removing blight and replacing it with a park, business or much-needed housing can be a catalyst for community re-birth.

Over recent years, most of New Hampshire’s RPCs have been active in hosting Brownfield assessment programs.

There are five key aspects of any RPC brownfields assessment program: 1) RPCs apply for EPA brownfield funding for use throughout their entire service area; 2) Interested property owners, in conjunction with municipal officials, can utilize the RPC assessment program as opposed to the undertaking the complex process of applying directly to EPA; 3) A Brownfields Advisory Committee comprised of representatives from RPC member communities and other stakeholders provides policy guidance and makes decisions relative to the expenditure of program funds; 4) An environmental engineering firm or firms is retained by the RPC to conduct assessment activities; 5) Participation in the program is voluntary. www.nhmunicipal.org

RPC Brownfields programs represent an efficient way of delivering Brownfields assessment services and are therefore viewed favorably by EPA. Through this model, Brownfields funding is made available to towns and cities as opposed to making funding available for a single community grant recipient. At the same time, this regional approach allows for local decision-making, encourages local control of the process, and accommodates local opinions in how program funds are best spent. By localizing the funding it makes it more likely that the most worthy properties will be assessed. Furthermore, the involvement of professional environmental consultants and engineers ensures that assessments will be done correctly and in compliance with state and federal standards. Finally, as participation is voluntary, the RPC assessment programs are designed to work only with property owners who are interested in environmental assessment, potential cleanup and redevelopment of their property. Funding is set aside to provide local technical assistance including answering owner’s questions and helping communities understand the benefits of nominating properties into the program.

A Closer Look: Two RPC Brownfields Programs The Central New Hampshire Regional Planning Commission’s (CNHRPC) assessment program began in 2015 with its first grant and recently was awarded a second grant that will take the program through 2020. Despite being a relatively new assessment program, it has been ambitious in tackling a former landfill, two large mills, a town garage and a former cannery during its first two years. One example from the CNHRPC region captures a few aspects of the assessment program in particular.

In this case, two abutting properties, one under private ownership and one town-owned were assessed. Both properties are part of a downtown area that has been included in a redevelopment study that includes both park spaces and new economic development. Phase

I Assessments were conducted for each parcel. Phase II Assessment work will begin in spring 2018 for both properties at the same time with an eye toward efficiency. These assessments may facilitate assessment activities for the abutting properties within the study area serving as a catalyst for redeveloping the area and implementing the community’s vision.

CNHRPC has retained the services of three environmental engineering firms, which allows CNHRPC to assess more properties in less time by dividing up the work. In addition, CNHRPC can draw on each individual firm’s particular area of expertise, as needed. This strategy has enabled CNHRPC to work quickly through several complex sites with its first grant. Moving into the second grant this year CNHRPC will be able to build upon this effort by completing reuse plans for existing sites and incorporating new sites.

Southwest Region Planning Commission’s (SWRPC) Brownfields assessment program, which has been operating continually since 2002, has developed an excellent track record using the program to assist its member communities. SWRPC’s investments to-date have resulted in five brand new community institutions (a community theatre, a municipal community center, a county courthouse facility, a new headquarters for social services agency, and a Headstart facility), over 40 housing units, office space, a senior housing development, a hotel, restaurants, a community food coop, an auto repair and sales shop and a landscaping business. Over 160 jobs have been created on former Brownfields to-date. In addition, the SWRPC program has created three green space sites totaling 33 acres, helped facilitate closure and removal of 12 above- and underground storage tanks totaling 104,700 gallon capacity, and provided assessment work that successfully led to the removal of contaminated soil from eight sites.

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UP CLOSE & On the Board

PERSONAL W

elcome to Up Close and Personal, a regular column in New Hampshire Town and City designed to give readers a closer look at NHMA Board members. In this issue, we introduce Katie Gargano, City Clerk/Tax Collector with the City of Franklin. Katie joined the NHMA board in 2017.

TC: What are your duties and responsibilities as a City Clerk/ Tax Collector?

KG: In my office we work as a team; I oversee and supervise two full time employees who process car registrations, dog licensing, vital records and marriage licenses, issue hunting and fishing licenses, OHRV and snowmobile registrations, business licensing, water sewer billing and collections, property tax billing and collections, tax liens and deeding of parcels. We organize and plan for all city and state elections. We maintain all oaths for City boards and commissions and keep all council meeting minutes, ordinances and resolutions easily accessible. We also keep track of parcels that are in bankruptcy and file appropriate paperwork for proofs of claim. We track property tax payment arrangements and calculate all repurchase figures for tax deeded parcels. We also answer questions from tax payers via telephone, email and in person; and much more!

Katie Gargano

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

KG: Unfortunately, I don’t think it’s a good perception. Let’s face it, people have their own things and/or problems in life that they are dealing with and the last thing they want to do is come in and see us to give us their money. The majority of our job is dictated by state statute and our City Charter. We have rules for a reason and we have to follow them but people don’t like rules and don’t like it when they get turned away for having the wrong paperwork or when they have to pay because we shut their water off because they didn’t pay their bill. “Water comes from the ground, it should be free”. We hear that all the time; they just don’t understand the processes of testing and maintenance, and none of that is free. We do our best to provide timely and professional service to all of our customers and I think we do a good job at it.

Do you know someone who deserves to be profiled in a future edition of New Hampshire Town and City magazine?

TC: Has your public position changed you personally?

KG: Absolutely, and I think it has changed me for the better. Not saying that I wasn’t before but I am more polite and courteous while out and about because most likely people have seen my face in the office and I want them to remember it in a good way.

If so, please contact the New Hampshire Municipal Association at 800.852.3358 ext. 3408 or tfortier@nhmunicipal.org.

TC: Has your job changed the way you look at the role of government?

KG: Definitely! When I first started here in Franklin I came from a neighboring community but I wasn’t as involved in the processes or informed on how the roles of the council, mayor and city manager intermingle. It was a whole new experience to attend council meetings and department head meetings to know what was going on in the city as a whole rather than what was just going on in my office. Something I have learned is how important communication is and how to be supportive to my colleagues.

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www.nhmunicipal.org

— This Moment in NHMA History —

59 years ago…..Meter maids were first introduced by Mayor Melvin F. Morrison to address clogged parking spaces along the business section in the City of Dover. The program was deemed a success as drivers became more “meter conscious” and meter revenues increased.

?

?

NAME

THAT

TOWN OR

CITY

?

? ?

www.nhmunicipal.org

Name the New Hampshire town in which this town office resides.

The town website reports it was established in 1735 while New Hampshire was still under governance of Massachusetts. This town was the site of Fort Number 1 in the line of protective trading forts bordering the Connecticut River. After New Hampshire became an independent province under Governor Benning Wentworth, the town was incorporated in 1752. This town was the birthplace of Harlan Fiske Stone, Chief Justice of the Supreme Court from 1941 to 1946.

When you have figured out the answer, email it to tfortier@nhmunicipal.org. The answer will appear in the July/August 2018 issue.

ANSWER TO PHOTO IN MARCH/APRIL 2018 ISSUE: The photos on page 35 in the last issue of Town and City magazine were that of the current town offices and the Old Meeting House in the Town of Sandown. Thanks to all our members who responded with the correct response, including: Chief John Drury (Farmington); Kristina Ostman (Hampton); Scott Wiggin (Bedford); Tammy Martin (Bow); Linda Naughton (Goffstown); John Scruton (Barrington); Katherine Dawson (Tilton); and Jim Rice (Durham).

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JOIN US FOR OUR 77TH ANNUAL CONFERENCE

Wednesday, November 14, 14, 2018 2018 Thursday, November November 15, 15, 2018 2018 The Radisson Hotel, Hotel, Manchester Manchester

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NEW HAMPSHIRE TOWN AND CITY

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www.nhmunicipal.org

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Legal

Q and A

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

Municipal Liability and Immunity: State Statutes This article summarizes the principal statutes that limit municipal liability and that also afford legal protections for public officials, employees and volunteers.

General Municipal Liability- RSA Chapter 507-B In 1975 the Legislature enacted RSA Chapter 507-B regulating the liability of governmental units. The statute limits the amount of money damages a municipality can be required to pay for claims for bodily injury, personal injury or property damage, arising out of the municipality’s ownership, occupation, maintenance or operation of motor vehicles and premises. “Property damage” has been held not to include real property. Cannata v. Deerfield, 132 N.H. 235 (1989). A fire department does not “occupy” premises when it is fighting a fire. Farm Family Cas. Ins. Co. v. Rollinsford, 155 N.H. 669 (2007). The plaintiff must establish a causal nexus between the injury and the municipality’s ownership, occupation, maintenance or operation of a motor vehicle of premises.

Crosby v. Strafford County Correctional, U.S. District Court for New Hampshire, No. 2014 DNH 100 (June 2, 2015).

The statutory limits for damages are $275,000 per person and $925,000 per occurrence. These limits of liability, however, do not apply if the insurance coverage applicable to any particular claim exceeds the statutory liability limits.

This principle was established in Marcotte v. Timberlane Regional School Dist., 143 N.H. 331 (1999). In that case, an improperly secured metal soccer goal located on school property tipped over and killed a second-grade pupil. The school district’s liability insurance policy had a limit in excess of the statutory cap. The Court held that the policy limit, not the statutory cap, was applicable. This principle is now codified in RSA 507-B:7-a. The statute affords the same limits, and principles of coverage apply to individual officials so long as they act within the scope of their office and in good faith. See, RSA 507-B:4, III. Municipal officials should discuss with their legal and risk management advisors the advantages and disadvantages of liability insurance 44

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versus pooled risk management programs as they relate to RSA Chapter 507-B. A municipality is not liable, in the absence of gross negligence, for hazards on its premises caused solely by snow, ice or other inclement weather if the municipality is acting under a policy or set of priorities for responding to the weather hazards. RSA 507-B:2-b.

Highways and Sidewalks, RSA 231:90 – :92-a RSA 231:90 – :92-a establishes the scope of a municipality’s legal duty to travelers using public highways and sidewalks.

A municipality’s sole legal duty is to correct “insufficiencies.” An “insufficiency” exists when a highway or sidewalk is either not safely passable by those persons or vehicles permitted to use such highway or sidewalk, or there exists a safety hazard not reasonably discoverable or reasonably avoidable by a person when using the highway or sidewalk in a reasonable, prudent and lawful manner. Even if an insufficiency does cause damage, there will be no liability (that is, no breach of duty) on the part of the municipality unless: • The municipality had received a written notice of the insufficiency, warning it of the defect prior to the injury and failed to post warning signs about the hazard; or • Municipal officials had actual notice or knowledge of the insufficiency and were grossly negligent or exercised bad faith in responding or failing to respond; or • The insufficiency was created by an intentional act of a municipal officer or employee acting in the scope of his official duty while in the course of his employment, acting with gross negligence, or with reckless disregard of the hazard.

In the case of Bowden v. N.H. Dep’t of Transportation, 144 N.H. 491 (1999), the plaintiffs sued the state for negligence under a theory that their motorcycle accident was caused by a road surface defect. The Court concluded that notice of the defect alleged to cause an injury is required www.nhmunicipal.org

in advance of the accident in order to trigger a potential duty on the part of the defendant and that allegations of constructive notice will not suffice.

Bad Weather: Even if the injury was caused by an insufficiency and even if the town had knowledge of the insufficiency in advance, the town will not be liable if the insufficiency was caused by bad weather, so long as the town had a written bad weather policy adopted in good faith prior to the storm and was following that policy without gross negligence or recklessness. This statutory protection, found at RSA 231:92-a, applies to public highways, bridges and sidewalks, but does not apply to public parking lots or driveways. See Johnson v. Laconia, 141 N.H. 379 (1996).

In Cloutier v. Berlin, 154 N.H. 13 (2006), the court held that the insufficiency law does not mean that the municipality can never be liable for injuries resulting from defects in a highway, whether in good weather or bad, but it does create a special standard of care that is different from the standard expected of private corporations. The court also clarified that the presence or absence of liability insurance does not change the legal duty owed to users of the highway, but instead changes the amount of monetary damages that may be recovered from a municipality if it is found liable for the injuries caused by a highway defect.

In Ford v. N.H. Dep’t of Transportation, 163 N.H. 284 (2012), the severe power outage following the 2008 ice storm rendered a traffic signal at the intersection of two state highways inoperable.

Local police notified the NH DOT of the problem, but it had not been repaired some 18 hours later when a crash occurred. A person injured in the crash sued both the municipality and the state for negligence. The municipality was found not liable, since it had no duty to maintain the signals on a state highway, and no duty to provide traffic control on a state highway. The state was found not www.nhmunicipal.org

liable because it was following its bad weather policy in good faith and had no additional duty under either state or federal law to provide alternative traffic direction during the period the signal remained in failure.

Good Faith Immunity for Officials, RSA 31:104 Municipal officials, acting in their official capacity and in good faith, are immune from personal liability for claims arising out of discretionary functions. The officials protected include, but are not limited to, members of governing bodies, planning boards and zoning boards of adjustment; city and town managers; county commissioners; regional planning commissioners; school superintendents; welfare officials; and town and city health officers.

Note also that this section provides no protection to officials or employees who engage in an intentional tort.

Indemnification for Negligence, RSA 31:105 The governing body of a municipality may vote to indemnify from loss any municipal official or employee against whom a claim is brought after such vote. Indemnification in the context of this statute means to reimburse the official or employee for any financial loss or expense, including legal fees and costs, arising out of a claim brought against an official or employee in his or her personal capacity. Minutes of the meeting during which the vote is taken should clearly reflect the action. The vote need not be reaffirmed in subsequent years.

Once adopted, the decision to indemnify is applicable only to actions constituting negligence and within the scope of the person’s employment or office.

Indemnification will not be available for intentional or malicious acts.

Indemnification for Civil Rights Violations, RSA 31:106 All municipalities, without the need for local approval, must indemnify officers and employees from damages and

awards of attorney’s fees for civil rights violations arising their employment or office unless the act or omission was committed with malice.

Protection from Attachment, RSA 31:108 Attachment of an official’s or employee’s personal assets to secure a judgment is not permissible in those cases where immunity has been granted (RSA 31:104) or indemnification is available (RSA 31:105 and 31:106).

Show Cause Hearing, RSA 491:24 Any time a local official is sued and bad faith is alleged, the trial court must hold a preliminary hearing within 90 days to determine whether there is any basis for the claim. If there is not, and if the judge thinks the suit was filed only to harass the local official, the official may receive his or her costs and attorney’s fees incurred in defending the matter.

Immunity for Volunteers, RSA 508:17 Municipal volunteers are immune from liability for negligent acts. In order to be entitled to immunity, there must be a written record indicating that the person is, in fact, recognized by the municipality as a volunteer. The volunteer must have acted in good faith and within the scope of his or her recognized functions and the damage or injury must not have been caused by willful, wanton or grossly negligent misconduct. Be cautious of the definition of “volunteer.” “Volunteer’’ means 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. In the case of volunteer athletic coaches or sports officials, such volunteers shall possess proper certification or validation of competence in the rules, procedures, practices, and programs of the athletic activity.

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LEGAL Q&A from page 45 written approval to act, NHMA recommends that cities and towns continue to require such written authorization for volunteer work. The written authorization should include, at a minimum: (a) the scope of work the volunteer is authorized to do, including the applicable time period, (b) any specific limitations on the scope of work and (c) to whom the volunteer should report.

Immunity for Fire and Rescue Members, RSA 508:12-b Volunteer, “part paid” and “call” members of municipal fire departments and rescue squads are immune from personal liability for personal injury or property damage “arising out of any act performed or occurring in the furtherance of his [or her] official duties.” Immunity is not available for damages arising out of willful misconduct, gross negligence or operation under the influence of drugs or alcohol. This statute does not affect the liability of the municipality served by these volunteers. “Call’’ member means any member other than a full-time paid employee who receives payment for each emergency response. “Official duties’’ mean emergency duties only. “Part paid’’ member means any member other

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than a full-time paid employee who receives an annual retainer or stipend of less than $5,000 for his services as a member.

Limited Duty for Fire Departments and Firefighting, RSA 154:1-d RSA 154:1-d establishes that firefighting or other emergency services provided by a fire department shall not create a duty to any person affected by the response or nonresponse to a call, and the tactics used in firefighting. It also provides that the decisions of fire chiefs shall be entitled to discretionary immunity and that firefighters, paid and unpaid, are covered by RSA 31:105 and :106.

Limited Liability for Skateboarding Facilities, RSA 507-B:11 In the absence of gross negligence, municipalities are immune from injuries caused by operation of a facility, without charge, for skateboarding, rollerblading, stunt biking or rollerskiing.

Immunity for Emergency Management Activities, RSA 21-P:41 Municipalities and emergency management workers are immune from liability for bodily injury and property

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damage arising out of activities relating to emergency management.

Frivolous Lawsuits RSA 507:15-a Relief is provided for municipalities (and any other defendant in a civil lawsuit) when they are being sued repeatedly by a vexatious litigant. A “vexatious litigant” is defined as an individual who has been found by a judge to have filed three or more frivolous lawsuits which the judge finds, by clear and convincing evidence, were initiated for the primary purpose of harassment. SA 507:15-a, I. The court may require a vexatious litigant to (1) retain an attorney or other person of good character to represent him or her in all actions; or (2) post a cash or surety bond sufficient to cover all attorneys’ fees and anticipated damages.

This statute can provide some relief to a municipality which is being harassed by repeated lawsuits by ensuring the plaintiff will be able to pay the municipality its attorneys’ fees and damages if the plaintiff loses and the court orders the plaintiff to pay the municipality those costs.

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org.

www.nhmunicipal.org

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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: City Charter Tax Cap Provision Must Provide for an Override of the Tax Cap Fred S. Teeboom v. City of Nashua, Hillsborough County Superior Court – South No. 226-2017-CV-00160; No. 2262017-CV-00221, 2/13/18.

Cumulative Effect of a Use Relevant When Judging Spirit of Zoning Ordinance W. Robert Foley, Trustee v. Town of Enfield, New Hampshire Supreme Court No. 2017-0294, February 2, 2018.

Ambiguous Town Meeting Vote Did Not Completely Discontinue Town Road Town of Goshen v. Carl N. Casagrande, No. 2017-0137, 1/26/18

Looking for an employee or a job?

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

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