Laws Governing Removal of Tax Collectors A presentation for the New Hampshire Tax Collectors’ Ass’n. September 22, 2010 Prepared By: Bernard H. Campbell, Esq. NHTCA Legal Counsel Beaumont & Campbell, Prof Ass’n. 1 Stiles Road- Suite 107 Salem, New Hampshire 03079 Tel 603-898-2635 E-mail: Bcampbell@beaumontandcampbell.com
Basic Assumptions - Position • The Tax Collector is considered a "public officer" of the community. See, RSA 41:2. The Tax Collector is, therefore, considered different from, or at least a distinct type of, public "employee". Generally speaking, a public employee is one whose duty it is to render assistance under the direction of the officer or the official. They have no duties to perform other than those directed by an official or head of the department. See, 13 N.H. Practice Series (Loughlin) §343, quoting, McQuillan, Municipal Corp. § 12.29 (3rd. Ed. 1982). The term public official generally refers to a person holding a statutory created public office. Both Tax Collector and Deputy Tax Collector are public officials.
Statutory Removal – Insanity • 41:12 Removal of Collector, Clerk, or Treasurer. – The selectmen may remove from office any collector of taxes, town clerk, or any treasurer, who, in their judgment, has become insane or otherwise incapacitated to discharge the duties of the office. They may proceed without notice in any case arising under this section. • There is authority to say that this removal process is governed by the procedural requirements of RSA Chapter 43. See, 13 N.H. Practice Series (Loughlin) §557. However it appears that the State Supreme Court has ruled out application of RSA Chapter 43 to this particular statutory removal. See, Correia vs Town of Alton, 157 N.H. 716 (2008). Appeals of decisions under this statute would be through a Petition for Certiorari filed with the Superior Court. This is a limited review to determine whether the removal was illegal, based on improper jurisdiction, or was arbitrary or capricious. See, Sinkevich vs.Nashua, 97 N.H. 263 (1952); William vs. Dover, 130 N.H. 527 (1988).
Statutory Removal – “Irregularity or Material Error” • 41:40 Removal of Tax Collector. – The governing body may institute proceedings to remove the tax collector from office whenever, upon examination by the department of revenue administration, a certified public accountant, or a public accountant licensed by the state under RSA 309-B, the accounts are found to contain an irregularity or material error, or show evidence that the timely deposit of funds has not been made in accordance with RSA 41:35. For the purposes of this section, ""irregularity'' means an intentional misstatement of the financial statements or a theft of assets, and ""material error'' means a mistake or omission resulting from gross negligence which results in a material misstatement of the financial statements. The governing body may institute proceedings to remove the tax collector as follows:
I. The governing body shall notify the tax collector by certified mail with return receipt and the commissioner of the department of revenue administration of its intention to proceed under this section by providing a written explanation and justification for the removal, along with a copy of the audit findings. II. (a) Within 20 days of receiving the notification provided in paragraph I, the tax collector shall respond to the alleged irregularities, material error, or failure to timely deposit funds. The response shall be submitted to the governing body and the commissioner of the department of revenue administration and shall include written comment on each audit finding. (b) If the tax collector fails to respond at any step in the process under this section within the prescribed period of time, then the governing body shall be permitted to remove the tax collector from office as provided in paragraph V. III. Within 20 days of receiving the tax collector's written response, the governing body shall provide written notification to the tax collector and commissioner of the department of revenue administration of its decision to proceed or not to proceed to remove the tax collector from office.
IV. Within 10 days of receiving the written notification in paragraph III, the tax collector may request a hearing before the governing body. If a hearing before the governing body is requested, it shall be: (a) Conducted in accordance with RSA 91-A and RSA 43; and (b) Held within 20 days of the date of the request. V. After the tax collector's response and hearing, if any, and if the governing body determines that removal of the tax collector is justified, the governing body may remove the tax collector by written notice to the tax collector and the commissioner of revenue administration. Any vacancy created by such a removal shall be filled by appointment by the governing body as provided in RSA 669:67. VI. The governing body's determination under paragraph V may be appealed de novo to the superior court in the county in which the municipality is located. • Process is technical and complex, with responses due along the way. • Key Difference – Appeal Review is “de novo” (from the beginning) meaning you get to make your case to the Superior Court for a different result, and the Court is not bound by any findings of the governing body.
Statutory Removal - Oath of Office • 42:1-a Manner of Dismissal; Breach of Confidentiality. – I. The manner of dismissing a town officer who violates the oath as set forth in RSA 42:1 shall be by petition to the superior court for the county in which the town is located. II. Without limiting other causes for such a dismissal, it shall be considered a violation of a town officer's oath for the officer to divulge to the public any information which that officer learned by virtue of his official position, or in the course of his official duties, if: ..(information was or was voted to be confidential under RSA 91-A) • Because the “Oath of Office” requires adherence to the Constitution and Laws of the state, the allegations must raise a violation of the state constitution or other action which would render the person ineligible to serve in office.
Other grounds for removal • The previous statutory sections represent the “exclusive” method of removing an elected Tax Collector. • With respect to an appointed collector, there exists a question of whether there are other circumstances in which a Collector may be removed. What if the accounts are in order, the person is not insane, but there is some other good reason, or "good cause"? Good cause has been defined as "some substantial shortcoming which renders continuance in office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and sound public opinion recognize as good cause for his no longer occupying the position." McQuillin, Municipal Corp., Sec. 12.248 (3rd. Ed. 1985). Normally, the power to appoint carries with it the power of removal. American Federation of State, County and Municipal Employees vs.Keene, 108 N.H. 68 (1967). This certainly would support the Selectmen's power to remove an appointed Collector. • There have been no cases which address this issue with respect to appointed Collectors.
Non-appointment vs Removal • In the case of appointed collectors, the statute “suggests” that an appointment be made (and a written contract entered into) annually before April 1st. See, RSA 41:33. Therefore the Selectmen appear to exercise a “non-renewal” power that is likely not challengeable, except perhaps in cases where a party can claim a “wrongful discharge”.