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Bar News - June 15, 2012


Municipal & Governmental Law: Issues Unique to Municipal and other Government Employers

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As employers, municipalities and other government entities face the same legal requirements and litigation risks as private sector employers. Government employers must also satisfy a number of additional statutory and constitutional requirements. These unique requirements fall under the broad themes of Employee Privacy, Employee Speech and Due Process.

Employee Privacy

The privacy rights of municipal employees in New Hampshire are generally governed by RSA. 91-A, the Fourth Amendment of the United States Constitution and Article 19 of the New Hampshire Constitution.

RSA. 91-A does not, by its plain language, mandate protection of employee privacy. It does, however, allow municipalities to consider the dismissal, promotion, compensation or discipline of a public employee in a nonpublic meeting, unless the employee has a right to a meeting (per statute) and requests an open meeting. RSA. 91-A:3(II)(a).

The statute also exempts from public disclosure records pertaining to internal personnel practices, as well as personnel files "whose disclosure would constitute an invasion of privacy." RSA. 91-A:5(IV). The New Hampshire Supreme Court has recently reiterated that "records related to employee misconduct and discipline" are exempt from disclosure under RSA. 91-A as are records related to "hiring and firing, work rules, and discipline."See Montenegro v. City of Dover, 162 N.H. 641 (2011). Individual employee salaries and job descriptions, however, are not exempt from the right-to-know. Id.; Professional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699 (2010). Although RSA. 91-A does not phrase its employee privacy provisions as requirements, government entities would be wise to engage in all employee privacy protections permitted so as to forestall common law claims of "invasion of privacy."

Government employers are also bound by state and federal constitutional prohibitions against "unreasonable searches and seizures." The governing standard is whether the employee has a "reasonable expectation of privacy." The best way to preempt such constitutional claims by employees is to create and abide by clear policies defining the degree of privacy an employee can expect during the work day, in the workspace, and on employer-owned communications systems, such as cell phones and email systems.

Although government employees generally have more privacy protections than private sector employees, federal, state, and local government employers are exempt from the federal Employee Privacy Protection Act of 1988. Unlike private employers, municipalities and other government entities are therefore not subject to federal law prohibiting the polygraphing of employees either during hiring or employment. That said, however, any polygraphing of employees must comport with constitutional protections.

Employee Speech

Government employees also enjoy special statutory and constitutional protections of their freedom of speech. Freedom of speech from government intrusion is enshrined in the First Amendment of the United States Constitution and Section 1, Article 22 of the New Hampshire Constitution. Constitutional protections of employee freedom of speech are far from absolute. The First Amendment protects employee speech only if he or she is speaking as a citizen on a matter of public concern. Snelling v. City of Claremont, 155 N.H. 674 (2007)citing Garcetti v. Ceballos, 547 U.S. 410 (2006).In addition, the employee must demonstrate that his or her "interest in the speech outweighs the state’s countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees."Id. citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

For example, the First Amendment did not protect a police chief’s statement of discomfort with a town administrator’s request that he drop a leash law summons against a prominent citizen. Tripp v. Cole, 425 F.3d 5 (1st Cir. 2005). Because the police chief’s statement related to an isolated case, rather than a general concern with the impartial administration of justice, the court found that the statement did not implicate "a matter of public concern" and therefore was not protected by the First Amendment. Id. In contrast, the New Hampshire Supreme Court upheld a verdict in favor of a city tax assessor who was terminated in violation of his First Amendment rights after he suggested in public interviews that the city’s tax system was flawed and that city council members were taking advantage of city tax abatement procedures. Snelling v. City of Claremont, 155 N.H. 674 (2007).

RSA 98-E provides much broader freedom of speech protections for New Hampshire government employees at all levels of government. RSA. 98-E:2 prohibits interference with an employee’s right of freedom of speech, full criticism or disclosure. It permits an employee whose rights to free speech have been violated to seek injunctive relief and to pursue a civil action to recover damages, costs and attorney’s fees. The statute limits this right, however, in that public employees are still bound by laws relating to confidential and privileged records or communications. RSA. 98-E:3.RSA. 98-E rights are much broader than constitutional rights to free speech because RSA. 98-E protects speech even if the employee is speaking as an individual employee rather than as a citizen, as long as he or she is not speaking as a spokesperson for the government. Appeal of Booker, 139 N.H. 337 (1995).In addition, the First Amendment balancing test does not apply under RSA. 98-E.Id.

Due Process in Employment Matters

As government entities, public employers must follow appropriate procedure in disciplining or terminating employees. Appropriate procedure is mandated in both New Hampshire statutes and in constitutional due process provisions.

As established above, RSA. 91-A permits consideration of the dismissal, promotion, compensation or discipline of a public employee in a nonpublic meeting, unless the employee has a right to a meeting and requests an open meeting. RSA. 91-A:3(II)(a). However, "a governmental body may not move to go into executive session for the purpose of considering the termination of a public employee unless it has previously put that employee on notice that such a motion would be made." Johnson v. Nash, 135 N.H. 534, 538 (1992).

It is also crucial to determine whether there is a statute governing the employee’s position. For example, there are statutes governing the termination of public library employees, highway agents, firefighters and fire chiefs, police chiefs, elected officials, town clerks, and tax collectors. These statutes indicate whether the employee has a right to a hearing, the grounds for termination, and other specific requirements as to hiring or managing the employee.

Another procedural issue that often arises is whether the requirements of RSA. 43 apply. RSA. 43 governs adversarial proceedings before town boards of selectmen and other local boards. It includes requirements as to the posting of a notice of the hearing, recording the hearing, and disqualification of hearings officers. The requirements of RSA. 43, however, only apply to employment related hearings of certain town employees. The New Hampshire Supreme Court has held that RSA. 43 procedures do not apply where the statute governing a particular position (such as police officer) does not specifically state that RSA. 43 applies. Correia v. Town of Alton, 157 N.H. 716 (2008).

In addition to the state statutory requirements, the Fourteenth Amendment of the U.S. Constitution protects certain public employees who have a constitutionally protected property interest in continued employment such that termination cannot occur without "due process." However, the mere fact of public employment does not by itself create a protected property interest entitling an employee to due process prior to termination. Burrage v.New Hampshire Police Standards and Training Council, 127 N.H. 742 (1986). Constitutional due process applies to those employees who can only be fired for cause, under statute or contract. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). Constitutional due process requires notice and a pre-termination hearing that provides the employee an opportunity to respond. Id.at 542.The pre-termination hearing "though necessary, need not be elaborate." Id. at 545.In general, "something less" than a full evidentiary hearing is sufficient prior to adverse administrative action.Id.

In sum, the key to advising municipal and other governmental employers is to remember the additional legal requirements they face in managing their employees under both statutes and applicable constitutional provisions. It is wise to be particularly mindful of employee rights to privacy and freedom of expression, and to consider all applicable statutes, employee handbooks, and constitutional requirements before termination.

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