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Bar News - June 18, 2014


Municipal & Governmental Law: Managing Municipal Records: Minimize Risk and Stay Within the Law

By:

Municipal departments, employees, boards and officials generate and receive thousands of records per year. Records management is a struggle for many towns, but municipal attorneys can help keep their clients on track with a few simple tips and references.
Records should be in municipal offices
“At home” is not one of the many acceptable places for municipal records to be kept, but you’d be surprised how often it happens.

Municipal officials are prohibited from loaning records out or removing them from the place where they are usually kept except when necessary for municipal business. RSA 41:59 requires that the governing body provide suitable storage for municipal records. RSA 41:58 requires municipal records to be deposited with the clerk unless they are needed elsewhere. If the clerk’s office is not equipped for storage or it doesn’t make sense to keep certain records there, the Municipal Records Committee shall agree on another place to store them.

In addition, governmental records must be kept in a place “accessible to the public” for inspection and copying, under RSA 91-A:4, III. If records are kept at someone’s home, it is impossible to meet these requirements (not to mention unreasonably risky). Which offices?

Not every record must be kept by the clerk. This would be unwieldy and make it less efficient for employees and officials to conduct business. Under RSA 91-A:4, III, each public body must keep all of its governmental records in its “regular office or place of business” in an accessible place, or if there is no such office, in a municipal office. Records should be maintained in a place where those who need them can find them, where they are safe, and where there is room. Some records, like welfare records, are confidential and should be kept in a secure place where only the officials and employees who need to use them may have access.

The right combination depends on the size of the municipality, the number of municipal offices and buildings, and who needs access to the records. A small town may have only one major municipal building, and it makes sense to keep all of the records in various offices there. In contrast, if there are separate police, fire, public works, library and recreation buildings, some records may be kept in those other buildings. If there are questions, the governing body and Municipal Records Committee should find a solution. The committee should also track where everything is kept and share the list with all municipal officers and employees (especially the clerk’s and the main municipal offices).
Organizing ordinances and regulations
Municipal ordinances are enacted, amended and repealed often. Without some centralized system, it can be very difficult for officials, employees or the public to find them or to know whether a certain provision has been changed or repealed.

Some municipalities find it helpful to keep a central index of all ordinances and regulations. An index might be separated into subject matter sections, such as road regulations, land use and building codes, ordinances adopted by both the legislative and governing bodies, and public safety ordinances and regulations. An index won’t contain the text of all the ordinances, but should include the subject matter, the dates of adoption, amendments or repeal, the enabling legislation, and the location of the full text of the ordinance. It operates as a “card catalog” of sorts for municipal government.

Other municipalities prefer organizing the full text of all ordinances and regulations into one master municipal code. It might be compiled by or for the town or city administrator or manager, and might also be placed online using templates and services offered by companies such as MuniCode (See related story). Physically, they are often stored in a series of three-ring binders, so new material can be added easily.

A combination of these methods could be used, depending on the office involved. For example, the selectmen’s office may need only an index of land use ordinances and regulations, but should keep the full text of all ordinances and regulations passed by the selectmen and all votes of town meeting granting the selectmen certain authority. Common examples include:
  • Town meeting authorization for the board of selectmen to set fees for permits or revenue-producing facilities, and a record of all such fees adopted (RSA 41:9);
  • Town meeting authorization for the board of selectmen to buy and sell real estate (RSA 41:14-a);
  • Town meeting authorization for selectmen to apply for, accept and spend unanticipated revenue (RSA 31:95-b);
  • Road regulations adopted by the selectmen (RSA 41:11); and
  • Leases and regulation of municipal property by the selectmen and authorization from the legislative body for the board of selectmen to lease town property for up to five years (RSA 41:11-a).
Superseded, amended and repealed versions of all ordinances and regulations should be kept, and the effective dates of any new versions should be clearly stated. Old versions are important when there is a question about adoption or amendment dates, authority for enforcement under a prior version, proper enactment of the initial version or any amendments or repeals, and enabling legislation.

Note that every municipal ordinance and regulation should include a notation of the enabling statute under which it was adopted. This serves two purposes: (a) ensuring the municipality has the necessary authority; and (b) providing a reference in the future when enforcement or amendment is required.
Electronic records
Electronic records need to be properly maintained and kept accessible under both RSA 91-A and RSA 33-A, but ordinances and regulations do not present the same problem. They must be maintained forever, and thus the official copy must be kept in paper or microfilm form. As a result, while electronic copies may be maintained, they are not the official record and can be handled in any way the municipality chooses (although electronic version should be updated promptly when changes are made).


C. Christine Fillmore is a municipal attorney in Concord, most recently as a long-time Staff Attorney with the NH Municipal Association. She can be reached at 856-1166 or christine.fillmore@yahoo.com.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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