Posted By: Professor Patricia E. Salkin
I often field phone calls asking whether planning and zoning members can be removed from office by the local legislative body. Usually, the context involves board members who are allegedly “out of touch” with community desires and goals, or who “blatantly ignore” the urging of the appointing official or board. Most of the time, however, state statutes and local laws provide that board members can only be removed “for cause,” yet the laws rarely define this phrase. I typically try to engage in a conversation over what might be examples of “for cause.” For instance, whether the board member missed a lot of meetings; whether the board member attended a number of meeting visibly (and perhaps verbally) unprepared; whether the board member failed to follow the by-laws or rules of procedure; and whether the board member consistently demonstrates a refusal to follow the applicable law. Oftentimes, the answer to these questions is no, but the desire for removal seems more closely aligned with political motivations. In these cases, I typically advise that the public relations nightmare and accompanying lawsuit that will follow, may not be worth the removal action.
A recent federal district court case from Connecticut is instructive as to the legal analysis regarding the question of whether a federally protected property interest attaches to the position of planning and zoning board member.
Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman. He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission. In 2008, the Board sent Closson a letter informing him that the Board intended to remove Closson for cause citing various alleged failures to amend the plan of conservation and development. About 10 days later, the Board held a hearing on the removal, and Closson presented evidence in his defense and argued that his performance was satisfactory. Two weeks later, the Board voted to remove Closson, and a week later Closson filed a lawsuit in state court alleging a violation of his due process. The suit was removed to federal court.
On a motion to dismiss, the Town argued that Closson has no property interest in an voluntary, unpaid position as a commission member, and that he did receive due process regarding his removal. The District Court concluded that Closson did have a property interest in the appointed position, citing Connecticut state case law holding that an appointed fire marshall who received $70 per month and could only be removed for cause, had a continuing property interest in the appointment, the Court noted that under the Town Charter, Closson could only be removed for cause. The Court said, “it seems unlikely that Closson’s position as an unpaid, rather than minimally paid, appointee would change the Connecticut Supreme Court’s determination that such positions are property under Connecticut law.” The Court then considered whether Closson’s property interest rises to the level of a federally protected interest. While the Second Circuit has held that municipal board members do not enjoy federal constitutional protections of their positions, Closson argued that his position was appointed and not elected and therefore should be held to a different standard. The District Court held, however, concluded that there is no federal due process protection for an unpaid, volunteer position on a municipal board, whether elected or appointed.
Closson v. Board of Selectmen, Town of Winchester, 2009 WL 1538138 (D. Conn. 6/1/2009).
Posted By: Dan Crean, Crean Law Office, Pembroke, New Hampshire
As the Holiday season begins to arrive in full swing, a number of local government concerns become increasingly evident. Recently, a letter to the editor of our local newspaper questioned why the city had put up “Happy Holiday,” “Season’s Greetings,” and “Happy Hanukkha” banners, but no “Merry Christmas” banners.
As times have changed, holiday workplace trappings and celebrations have changed as well – witness the replacement of Christmas parties with Holiday celebrations. Individual work stations and individual apparel choice seem to be areas where individual religious celebration might continue. Even in such “personal” areas, though, displays and apparel that indicate a preference for a single religion or sect can be viewed through different prisms. Overtly religious displays in private sector workplaces may raise concerns, but those concerns generally would not extend to Constitutional concerns involving the First Amendment. (Of course, discrimination based on religion might run afoul of equal employment laws, but that is a matter for another discussion.)
In the context of the public workplace, what, if anything, should local governments do when public employees seek to celebrate the holiday season through actions such as religious posters, screen savers, “emoticons” or other religious symbols used in emails, or wearing of religious apparel in the office?
Simplistic solutions lie at either end of the spectrum: impose no control or regulation and let the workplace and work apparel be determined by individual choice or impose controls so that no form of holiday expression is permitted. Office morale in the latter situation might plummet with no garlands, trees, or lights. Is it permissible, though, to allow non-religious holiday decorations (even a Santa Claus) while banning Nativity scenes – or is that content-based regulation?
Where should lines be drawn? How does a local government respond to citizen complaints or those raised by co-workers?
Posted By: Dan Crean, Crean Law Office, Pembroke, New Hampshire
Elections often bring about change – some major, some minor. The 2008 election is no exception and raises the prospect that 2009 might see enactment of federal and state legislation seeking to abolish “at-will” employment status among public sector employees, if not across both public and private sector employment. Most studies conclude that today the vast majority of states provide only limited exceptions to at-will employment. Exceptions may be based on generally applicable concepts such as state anti-discrimination laws that limit employer discretion which is tied to prohibited criteria. Other laws may require “cause” for imposition of discipline or discharge against selected occupations or positions. Most states also ban retaliation in the form of discharge or discipline for at least some employees who engage in whistleblowing.
Given the traditional labor and union backing for Democratic candidates, it is conceivable that legislative proposals barring or limiting at-will status will find greater support in upcoming legislative sessions in both Congress and State Legislatures.
In what is now generally described as a “global economy,” one might posit the notion that legislative bodies in this country will seek to join countries such as Canada, France, Germany, England, Italy, Japan, and Sweden in requiring that employers demonstrate “good cause” before terminating an employee.
Indeed, in 1991, the National Conference of Commissioners on Uniform State Laws crafted the “Model Employment Termination Act” which requires, inter alia, that any qualified employee may not have his or here employment terminated without “good cause.” The model law contains certain exceptions based on number of employees and employees must have been employed for a minimum period to come under its protections. The model act allows states to determine applicability to local governments. To this author’s knowledge, it has not been adopted by any state as of this date. For more information, go to www.nccusl.org.
Even if legislatures resist pressure to enact modifications of at-will status, secondary approaches may include actions, such as that which occurred in New Hampshire to facilitate public employee unions and collective bargaining. Though the New Hampshire General Court (its Legislature) retained the minimum required number of employees necessary to certify a bargaining unit at ten, it amended the law to allow a governing board to recognize, voluntarily, units consisting of fewer than ten employees. Given past legislative failures to reduce that threshold and the reluctance of the State Legislature to “mandate” collective bargaining, this new law seeks a back door to promoting unionization of the public workforce by raising the potential for electing governing board members based on their support for collective bargaining (and its virtually inevitable result of substituting “for cause” employment for “at-will” status).
Municipal lawyers should consider how to respond to the possibility of changing from “at-will” to “for-cause” status.