In this case, a former employee of the City of Manchester sued both the City and his former supervisor, the elected welfare commissioner of the City, for wrongful termination. This opinion was the second by the New Hampshire Supreme Court in this case; the first, Porter v. City of Manchester, 151 N.H. 30 (2004) addressed questions of personal liability of the welfare commissioner. This second opinion focuses on whether or not the City should be held liable for the actions of its elected welfare commissioner under the doctrine of “respondeat superior” (a Latin term meaning “let the master answer”).
Under this theory, an employer may be held vicariously responsible for the tortious acts of its employee if the employee was acting within the scope of his or her employment when his or her tortious act injured the plaintiff. In this case, the commissioner’s conduct would be deemed within the scope of her employment if it (1) was the kind she was employed to perform, (2) occurred substantially within the authorized time and space limits, and (3) was actuated, at least in part, by a purpose to serve the employer.
As to the first factor, the Court stated that even if the City had forbidden the commissioner to retaliate against an employee, that action was not enough to eliminate possible liability. The Court also found that even if conduct is of mixed motive (partially to serve the employer and partially for other purposes), it can still meet the third factor. Therefore, even if the commissioner acted partially to serve her own interests, those actions could still be considered “within the scope of her employment” so long as there was some purpose to serve the City.
The City also argued that the jury could not reasonably have found that the commissioner’s acts were the kind she was employed to perform and that she was motivated by some purpose to serve the City, and therefore she couldn’t have acted within the scope of her employment. The Court rejected this argument, finding that a rational jury could have reached that conclusion, and thus the City could be liable for her actions. First, because she had authority to supervise and discipline employees in her department, with “extensive leeway … for the exercise of independent judgment and initiative,” the commissioner’s actions could be of a kind she was employed to perform, even if her own statements contradicted this conclusion and even if the acts were “willful or malicious, forbidden by the employer, or indeed consciously criminal or tortuous….” Second, because the acts took place in the course of disciplining and supervising a department employee, the jury could have found that the commissioner was performing the work she was expected to perform and was, at least in part, serving the City rather than herself. Finally, once again rejecting the argument that the commissioner was not in a master/servant relationship with the City, the Court found sufficient evidence that the City exercised control over the commissioner because the City required the commissioner to work in a different office for a time and also directed the manner in which she had suspended the former employee.
What is surprising about this decision is the Court’s acceptance of the concept that an elected official was an employee of the City for purposes of liability under the respondeat superior doctrine. The City argued that the general rule in New Hampshire is that a municipality is not liable for the intentional torts of its officers. However, the Court declined to review this assertion because the City had not properly developed this legal argument. Instead, the Court considered whether or not the elected welfare commissioner met a “totality of the circumstances” test and could be considered an employee. The criteria to consider include: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business. Restatement (Second) of Agency §220.
The Court noted evidence that under the City’s charter, the mayor could tell the commissioner what to do as a department head, regardless of whether that department head was elected or appointed (factor a). The commissioner worked out of an office that the City owned (factor e), was employed for more than a short length of time (factor f), was paid by a regular paycheck (factor g), and ran a city department (factor h). Although there was testimony that the City could not fire or discipline the commissioner, the Court upheld the jury’s determination that the commissioner was an employee of the City.
It is unclear how this opinion affects the definition of “public employee” in RSA 273-A:1, XI as “any person employed by a public employer except: (a) persons elected by popular vote….” It is also unclear how significant it is that, in this case, the municipality was a city with a charter granting the mayor a certain amount of control over elected department heads, or if the result may have been different if a non-charter town was involved. Finally, since the Court declined to address the statement that “a municipality is not liable for the intentional torts of its officers,” it remains to be seen how this legal argument may affect future decisions if it is fully developed.