NH Chief Fired on TV Files Suit

A New Hampshire fire chief who found out he was terminated because he happened to be watching a televised board of selectmen meeting from his home, has filed a wrongful termination suit.

Fire Chief Peter Varney claims he was given no notice that the Selectmen of the Town of New Durham intended to discuss his employment status when they met on February 3, 2014. He was home and happened to be watching the meeting when he learned his continued employment was being deliberated and ultimately decided without his input.

Chief Varney’s attorney Paul Monzione was quoted by WMUR as saying “As far as I’m concerned, there was a lack of professionalism of governmental protocol in the manner of Chief Varney was terminated from his position.”

The Board of Selectmen appointed Chief Varney to a three-year term in 2009. When that term expired in 2012, the Chief continued working without the board formally agreeing to extend his employment agreement.

News reports from last February characterize the board’s actions as “not reappointing” Chief Varney. WMUR is also reporting that the board considers him to have been an “at will” employee, and thus not entitled to notice and a hearing prior to being terminated.

However, the lawsuit claims that under New Hampshire state law, Chief Varney can only be removed for cause. The suit also alleges that the board harbored personal animosity toward the chief, particularly board member Theresa Jarvis who Chief Varney claims has had a long standing vendetta against him. The suit claims the termination was “done intentionally and maliciously in that one of the members of the BOS has a predisposition against Chief Varney due to a personal dislike and vengeful motive.” The vote to terminate him was 2 selectmen for, 1 opposed.

In terms of identifying the applicable state law referenced in the complaint that requires a hearing for the chief, there are several state laws that could apply… and without benefit of reviewing the complaint I can only speculate. First, there is a law that governs hearings held by selectman and requires that they provide notice to parties whose rights “may be directly affected by the proceeding”. Whether you take Chief Varney’s side and argue he was fired without cause OR whether you take the town’s side and argue the selectmen simply decided not to renew his employment (or perhaps they terminated an “at will” employee) it would still appear to qualify for some sort of notice under such a law because his “property or rights” were affected. Here is the provision:

NHRS § 43:2. Notice of Hearing

[Selectmen] shall appoint a time and place of hearing, and order notice thereof to be given to all persons whose property or rights may be directly affected by the proceeding, by giving to them or leaving at their abode an attested copy of the petition and order 14 days at least before such hearing, or, if such persons are nonresidents, by publication.

Then there is NHRS § 154:5 that governs fire chiefs who are appointed by a town’s selectman:

§ 154:5. Chief Fireward, Engineer, or Fire Chief

I. The chief fireward, engineer or fire chief who is appointed, rather than elected in any town, village district, precinct, city or area shall be appointed for an indefinite period of time or for a definite term, as determined by the legislative body, and the tenure of office shall depend upon good conduct and efficiency. The chief fireward, engineer or fire chief shall be technically qualified by training or experience and shall have ability to command firefighters and hold their respect and confidence.

II. Subject to such written formal policies as may be adopted by the appointing authority, each chief fireward, engineer, or fire chief of any city or town who is appointed rather than elected, shall have authority to direct and control all employees of his or her department in their normal course of duty and shall be responsible for the efficient and economical use of all department equipment. Such chief fireward, engineer, or fire chief shall be subject to suspension without pay or dismissal only for cause, and after he or she has been presented with a written specification of the reasons. Upon such suspension or dismissal, the chief fireward, engineer, or fire chief shall be entitled to a hearing, on the merits and reasonableness of the action, in superior court in the county in which the municipality is located, provided that the chief fireward, engineer, or fire chief petitions the clerk of the superior court for such a hearing within 45 days of suspension or dismissal. The court shall have the power to affirm, modify or negate such suspension or dismissal, based upon its findings.

One can argue that while Chief Varney may have been appointed for a definite term back in 2009, the Selectmen’s opportunity to prevent him from becoming a chief appointed for an indefinite period ENDED in 2012 when the three years expired. Now he can only be dismissed for cause… after being presented with “written specification of the reasons”.

Then there is the issue of 45 days to file with superior court… From the new reports it is unclear if the suit was filed within the 45 days or not. And lastly there’s an issue of compliance with the public notice requirement in the state open meetings law, something that may or may not have been done in this case. New Hampshire’s public meetings law (§91-A:2)  does not appear to limit a public body to discussing agenda items listed on the notice… which is rather strange. In most states discussing the termination of the fire chief would have had to have been listed on the meeting agenda to be legally discussed. If anyone has any details on the NH public records notice requirement – let us know. And if anyone has a copy of the complaint – get it to me and I’ll post it.

Here is a link to a news video on the suit. Unfortunately I was not able to embed the video.

UPDATE: 4/14/14 at 7:15pm Phoenix time

I must say, Chief Varney indeed has many supporters who have reached out to me. Here is what I have in terms of answers to my questions:

First: Chief Varney’s suit was indeed filed within the 45 days as required by NHRS § 154:5… March 17, 2014.

Here is a copy of the complaint: Varney Petition

Second: NH’s public records law – known as the Right To Know law – does not require that a governmental body such as a board of selectmen post notice of its agenda. The following is from guidance from the New Hampshire Attorney General:

The Right-to-Know law explicitly requires that a notice of the meeting of a public body include the time and place of the meeting. While not required under the Right-to-Know law, it is generally appropriate that the notice include or be accompanied with a brief list of the planned agenda items and a general notice that other matters within the public body’s jurisdiction may be considered. Other law may impose requirements that notices of certain hearings and meetings where particular actions may be taken include specific additional information. Members of a public body should maintain familiarity with these additional notice requirements and consult with legal counsel as to the proper form of a meeting notice when uncertainty exists.

According to folks who wrote in, New Durham requires it’s board of selectmen to post an agenda. According to one person who wrote in, the original agenda for February 3, 2014 did not include any fire department related matters on it, nor anything related to the reappointment or non-reappointment of the fire chief. According to the source – a discussion of the fire chief’s status was added to the agenda some 3 hours into the February 3, 2014 meeting following a 15 minute recess at which point members of the public had left.

Incidentally, deliberations by a quorum of board members outside the context of a meeting would be a violation of the Right To Know law.

Thanks to those who reach out. Keep the info coming!!!!