Town responds to suit by former fire chief not reappointed

law

Foster’s Daily Democrat

NEW DURHAM, N.H. — The town of New Durham has filed a response to Peter Varney’s petition with Strafford County Superior Court, which claimed he was wrongly terminated from his position as fire chief in February.

The town’s response, filed by attorney Baron Mayer on April 25, asks that the court deny Varney’s petition in its entirety.

Varney filed the petition in March, after losing his part-time job as fire chief in February. During a Feb. 3 meeting, Selectman Jeff Kratovil made a motion to reappoint Varney as chief, but that motion was denied by the other two selectmen.

Varney was initially appointed as fire chief in 2009 for a three-year term. After his term expired in March 2012, the selectmen never took action to reappoint him, or to appoint a new chief to take his place. According to Varney’s attorney Paul Monzione, by such nonaction, the selectmen effectively reappointed Varney for another three-year term, to expire in 2015.

The town, however, objects to that argument.

According to the town’s response, after his three-year appointment expired in 2012, Varney continued to serve as fire chief as a “holdover” until the Feb. 3 meeting.

Varney being a holdover employee does not represent his automatic reappointment, according to a motion for summary judgment also filed by Mayer on behalf of the town. The motion asks that the court rule in favor of the town.

Mayer, of Upton and Hatfield, LLP, also cited a ruling in the case of Attorney General v. Burnham, which states that holdovers are to be seen as temporary occupants of the offices, liable at any moment to be displaced by appointees of the selectmen. He also cited the ruling in the case of Attorney General v. Bond, which states that “the holding over of an elected or appointed officer is not to advantage the officer, but to benefit the town to prevent confusion which might result from a vacancy in the office.”

The motion for summary judgment also states that by law, the appointment of an officer such as the fire chief ends after that officer’s successor is appointed.

According to an affidavit by Town Administrator Jeremy Bourgeois, also filed with Strafford County Superior Court, a new fire chief was appointed by the Selectmen on Feb. 7. Bourgeois has previously told Foster’s that Varney’s replacement, Kevin MacCaffrie, was hired as an interim fire chief. MacCaffrie has also been tasked with helping the town hire a new, permanent fire chief over the next several months, he said.

Court documents indicate that Varney’s objection to the town’s motion for summary judgment is due by May 29. A structuring order for the case is tentatively scheduled for May 18.

Copyright 2014 Foster’s Daily Democrat
All Rights Reserved

Comments - Add Yours