This case makes clear that proceedings to consider removal of full-time police officers, whether appointed or elected, require notice and hearing, but do not require the procedures of RSA Chapter 43.
The Board of Selectmen held a three-day hearing to consider demotion or termination of one of the town’s police lieutenants. Because the town had recently discharged the police chief and accepted the resignation of a police captain, the lieutenant, believing that the selectmen had already made up their minds, requested that all five be disqualified. Two selectmen recused themselves, and the remaining three stated that they had not yet formed an opinion and remained seated. The chair announced that he tried to find two alternates to serve in place of the recused members, but he was unable to do so and thus the matter would be heard by the three remaining members, a quorum of the Board under RSA 41:8. The three selectmen voted 2-1 to terminate the employment of the lieutenant.
The lieutenant appealed to superior court arguing that the selectmen failed to follow the procedures outlined in RSA Chapter 43, which apply to highway layouts and “deciding any question affecting the conflicting rights or claims of different persons….” RSA 43:1. Those procedures include a requirement that, in the case of disqualified selectmen, the remaining selectmen appoint former selectmen to serve in the place of the disqualified members. The superior court agreed that the selectmen were required to hold the hearing pursuant to RSA Chapter 43 and reversed the Board’s decision because it failed to appoint two alternates. The town appealed.
The Supreme Court reversed. RSA 41:48 (tenure of office for full-time police officers) requires removal only for cause, after notice and hearing—but does not refer to the procedures of RSA Chapter 43. The Court found it compelling that, in contrast, removal procedures for certain other officials under RSA Chapter 41, town clerks, treasurers and tax collectors, must be conducted in accordance with RSA Chapter 43. The Court reasoned that “had the legislature intended for police officers to be afforded RSA [C]hapter 43 procedures, it knew what language to use.”
The most significant difference between removal procedures conducted in accordance with RSA Chapter 43 and those that are not is the requirement for a full board. Under RSA 43:8, any selectman disqualified from hearing the case must be replaced by a former selectman. In other removal proceedings, an official may or may not get a hearing by the full board. So long as a quorum of the board is present, the removal hearing can be held, and those members sitting will decide the fate of the town official facing removal.