November/December 2019
TownandCity N E W
H A M P S H I R E
In This Issue:
A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION
Prioritizing Your Cybersecurity Efforts During Election Season...... 8 The Top Ten Things You Should Know About Town Meetings......11 Protecting Water Quality with Septic System Rules........................14 The 2020 Census: What You Need to Know.....................................22 Demystifying Municipal Agreements Under RSA Chapter 53-A.......26 I Saw the Sign.........................................................................................28
Safety. Liquidity. Yield. Municipalities and governmental entities need investment options that focus on these objectives. The New Hampshire Public Deposit Investment Pool (NHPDIP or the Pool) features: • Professional Management. Investments in the Pool are managed by investment professionals who are experienced in managing local government investment pools, and follow both general economic and current market conditions affecting interest rates. NHPDIP is rated AAAm* by Standard and Poor’s Ratings Services. • Convenience. NHPDIP provides simple management solutions with 24/7 password-protected account access and a Client Services Group to provide additional support and assistance. • Diversification. NHPDIP has a diversified portfolio of high-quality instruments designed to meet the Pool’s primary objective of safety. Learn more by calling your dedicated NHPDIP Representative at 1.800.477.5258 or the Client Services Group at 1.844.4NH-PDIP (1.844.464.7347) or visiting www.nhpdip.com.
*Standard & Poor’s fund ratings are based on analysis of credit quality, market price exposure, and management. According to Standard & Poor’s rating criteria, the AAAm rating signifies excellent safety of investment principal and a superior capacity to maintain a $1.00 per share net asset value. However, it should be understood that the rating is not a “market” rating nor a recommendation to buy, hold or sell the securities. For a full description on rating methodology, visit Standard & Poor’s website http://www.standardandpoors.com/en_US/ web/guest/ home). This information is for institutional investor use only, not for further distribution to retail investors, and does not represent an offer to sell or a solicitation of an offer to buy or sell any fund or other security. Investors should consider the Pool’s investment objectives, risks, charges and expenses before investing in the Pool. This and other information about the Pool is available in the Pool’s current Information Statement, which should be read carefully before investing. A copy of the Pool’s Information Statement may be obtained by calling 1-844-464-7347 or is available on the NHPDIP website at www.nhpdip.com. While the Pool seeks to maintain a stable net asset value of $1.00 per share, it is possible to lose money investing in the Pool. An investment in the Pool is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Shares of the Pool are distributed by PFM Fund Distributors, Inc., member Financial Industry Regulatory Authority (FINRA) (www.finra.org) and Securities Investor Protection Corporation (SIPC) (www.sipc.org). PFM Fund Distributors, Inc. is a wholly owned subsidiary of PFM Asset Management LLC.
Contents Table of
Volume LXII • Number 6
November/December 2019
3 A Message from NHMA’s Executive Director 5 Happenings 7 Upcoming Events 14 NHARPC Report: Protecting Water Quality with Septic System Rules 30 Up Close and Personal in the Field: Nanci Schofield 32 HR Report: Appeal of Preve: Employer Success at Supreme Court Due to Effective Investigation and Targeted Discipline 34 Legal Q&A: 2019 Election Law Update 38 Court Update 38 Name That City or Town 39 This Moment in History Centerspread: NHMA’s 78th Annual Conference and Exhibition
8 11 14 22 26 28
Prioritizing Your Cybersecurity Efforts During Election Season The Top Ten Things You Should Know About Town Meetings Protecting Water Quality with Septic System Rules The 2020 Census: What You Need to Know Demystifying Municipal Agreements Under RSA Chapter 53-A I Saw the Sign
Cover Photo Credit: Derry Town Offices photo by Doug Rathburn, IT/GIS Manager with the Town of Derry.
New Hampshire Town and City Magazine Staff Executive Director Editor in Chief
Margaret M.L. Byrnes Timothy W. Fortier
Contributing Editor Margaret M.L. Byrnes Barbara T. Reid Production/Design
Evans Printing Co.
Official Publication of the New Hampshire Municipal Association 25 Triangle Park Drive • Concord, New Hampshire 03301 Phone: 603.224.7447 • Email: nhmainfo@nhmunicipal.org • Website: www.nhmunicipal.org New Hampshire Municipal Association Phone: 800.852.3358 (members only) NEW HAMPSHIRE TOWN AND CITY (USPS 379-620) (ISSN 0545-171X) is published 6 times a year for $25/member, $50/non-member per year, by the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, New Hampshire 03301. Individual copies are $10.00 each. All rights reserved. Advertising rates will be furnished upon application. Periodical postage paid at Concord, NH 03302. POSTMASTER: Send address changes to NEW HAMPSHIRE TOWN AND CITY, 25 Triangle Park Drive, Concord, NH 03301. NEW HAMPSHIRE TOWN AND CITY serves as a medium for exchanging ideas and information on municipal affairs for officials of New Hampshire municipalities and county governments. Subscriptions are included as part of the annual dues for New Hampshire Municipal Association membership and are based on NHMA’s subscription policy. Nothing included herein is to be construed as having the endorsement of the NHMA unless so specifically stated. Any reproduction or use of contents requires permission from the publisher. POSTMASTER: Address correction requested. © Copyright 2019 New Hampshire Municipal Association
www.nhmunicipal.org
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New Hampshire Municipal Association
B OA R D O F D I R E C TO R S
As of March, 2019
Shaun Mulholland - Chair City Manager, Lebanon
Jim Maggiore - Vice Chair Selectman, North Hampton
Lisa Drabik - Treasurer Asst. Town Manager, Londonderry
Rick Hiland - Secretary Selectman, Albany
Brent Lemire Immediate Past Chair Selectman, Litchfield
Laura Buono Town Administrator, Hillsborough
Butch Burbank Town Manager, Lincoln
David Caron Town Administrator, Derry
Conservation Commission, Holderness
Shelagh Connelly
Phil D’Avanza Planning Board, Goffstown
M. Chris Dwyer Councilor, Portsmouth
Jeanie Forrester Selectman, Meredith
Stephen Fournier Town Administrator, Newmarket
Elizabeth Fox Asst. City Manager, HR Director, Keene
Katie Gargano Clerk/Tax Collector, Franklin
Christopher Herbert Alderman, Manchester
Bill Herman Town Administrator, Auburn
Neil Irvine Selectman, New Hampton
Harold Lynde Selectman, Pelham
Scott Myers City Manager, Laconia
Donna Nashawaty Town Manager, Sunapee
David Stack Town Manager, Bow
Eric Stohl Selectman, Columbia
David Swenson Selectman, New Durham
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NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
THANK YOU TO OUR 2019 TOWN & CITY ADVERTISERS Harvard Pilgrim Healthcare Charter Trust Company HEB Engineers Tighe & Bond, Inc. Vachon Clukay & Company, PC Primex3 PFM Asset Management, LLC Upton & Hatfield, LLP NH Municipal Bond Bank Mitchell Municipal Group, PA BCM Environmental & Land Law TD Bank, N.A. HealthTrust, Inc. DuBois & King, Inc. Municipal Resources, Inc. Avitar Associates DTC Lawyers CMA Engineers Matt Angel & Company, LLC Underwood Engineers, Inc. Melanson Heath Roberts & Greene, PLLC Peoples United Bank Drummond Woodsum Preti Flaherty
certified public accountants
experience counts We know New Hampshire governments. Your needs come first at Vachon Clukay & Company, PC, so we’ve structured ourselves to fulfill all of your service needs.We provide the following services: Auditing Accounting Support and Training Advising Personalized “Team” Service Expertise in How Your Organization Operates Computerized Forms Operational Management Studies We want to be part of your team. For personal attention contact: Robert L. Vachon, CPA 608 Chestnut St. • Manchester, NH 03104 Phone: (603) 622-7070 Fax: (603) 622-1452 www.vachonclukay.com
www.nhmunicipal.org
A Message from the
NHMA
Executive Director Margaret M.L.Byrnes
T
his issue of Town & City comes across your desk—or your computer screen—just days before the November elections, which is why we’ve chosen to focus some content on municipal elections. Whether you’re on the cusp of your November city election or preparing for your not-so-distant town election in March, April, or May, we hope this issue will serve as a great resource for all municipal officials, particularly election officials. And, as a complement to this issue, Assistant Attorney General Nicholas Chong Yen presented an NHMA webinar on running the polling place in October. Did you miss it? Don’t worry! As a member, you can sign into our website and listen to any NHMA webinar in the “Webinar Archive.”
Articles in this election issue address everything from election cybersecurity, regulation of political signs, and election law changes over the past couple years. While the effects of some laws are still in question—such as the SB 3 litigation—other legislative tempests have blown over, such as the authority to postpone town meeting and city and town elections. This year, SB 104 was passed; it was a compromise and collaboration among many parties to resolve the postponement issue, keep it a local decision, and include city elections. Compromise and collaboration are not always easy—but stalemates do not promote progress or build bridges. That is why the theme of our Annual Conference is Working Better Together. NHMA believes in the benefits of working together, and we hope to drive this message home at our conference, with sessions like How to Run an Effective Meeting, A Little Help from My Friends, Helping Those Who Help Others, Fire House Culture or Bullying?—and even a mock land use board hearing! Take a look at our Annual Conference spread in this issue and visit our website (https://www.nhmunicipal. org/nhmas-78th-annualconference-and-exhibition) to learn more—and to register!
Warmest regards,
Margaret M.L. Byrnes, NHMA Executive Director
We’ll see you in Manchester on November 13th and 14th!
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Harvard Pilgrim Health Care includes Harvard Pilgrim Health Care of New England and HPHC Insurance Company. NHID: Form No:_9154_0819
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NEW HAMPSHIRE TOWN AND CITY
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HAPPENINGS Budget and Finance Workshop A Huge Hit this Year!
National Civic League Accepting Applications for the 2020 All-America City Award!
(Above, NHMA’s Government Finance Advisor Barbara Reid addresses a sold-out crowd at the Mountain Club at Loon in Lincoln).
Residents of the City of Lancaster, Texas celebrate upon hearing they are a 2019 All-American City Finalist.
NHMA’s Budget and Finance Workshops held in Manchester and Lincoln during September provided valuable training to nearly 220 individuals serving their municipalities as selectpersons, finance directors, treasurers, budget committee members, town managers/administrators, town clerks, tax collectors and in other capacities. Workshop attendees benefited from educational sessions presented by NHMA’s Legal Services team (Stephen Buckley and Natch Greyes) and NHMA’s Government Finance Advisor, Barbara Reid. Barbara received special recognition from staff for her “last Budget and Finance Workshop” as she is set to retire in June 2020. Reid did what she has been doing for the last 14 years and provided attendees a comprehensive review of municipal funding in the biennial state operating budget, as well as funding for cities and towns provided in separate legislation outside the budget.
The National Civic League (NCL) is accepting applications for the 2020 All-America City Award, focused on celebrating examples of civic engagement practices that enhance health and well-being in local communities. NCL is looking for community-driven projects that demonstrate inclusive decision-making processes to enhance health and well-being for all, and particularly for populations currently experiencing poorer health outcomes. The All-America City Award (AAC) is given each year by the National Civic League (NCL) to 10 communities in recognition of their outstanding civic accomplishments. The award spurs communities to use innovative approaches to create stronger connections between residents and nonprofit and government leaders. The AAC Award celebrates those efforts and becomes a platform for sharing innovation, inspiration and insight with other communities throughout the country. With the National Civic League’s CoTitle Sponsors, Kaiser Permanente and Well Being Trust, the 2020 Awards reflect the concept that good health for the entire community requires a focus on mental, physical, spiritual, cultural and economic well-being. Addressing disparities and ensuring a thriving environment for all requires work from diverse sectors and stakeholders in a community.
www.nhmunicipal.org
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HAPPENINGS from page 5 The National Civic League views civic engagement as more than presenting information or having people respond to questionnaires (though both are important); instead, we promote efforts that seek to listen to, and learn from, residents in ongoing conversations and leverage those insights to shape the way programs are administered, designed and executed. Started in 1949, the All-America City Award program has recognized 500 communities that excel in collaborating to address pressing problems in the community. Described by George H. Gallup as the “Nobel Prize for constructive citizenship,” the award celebrates exemplary grassroots community problem-solving and honors communities that have united to achieve stunning results. Cities interested in applying for the All-America City Award should submit a letter of intent to apply by November 1st, which saves applicants $100 on the application fee. Please note: a letter of intent is not required to apply. The application can be downloaded at (https://www.nationalcivicleague.org/america-city-award/how-to-apply/) and is due February 19. 2020. Founded in 1894, the NCL (www.nationalcivicleage.org) is a nonpartisan, nonprofit organization whose mission is to advance civic engagement to achieve thriving, equitable communities. For more information, contact NCL’s Rebecca Trout by phone at 303-571-4343 or via email at RebeccaT@ncl.org.
“The costs are staggering, and we don’t want to set municipalities up for failure,” said Margaret Byrnes, executive director of the New Hampshire Municipal Association. With new standards in place, Byrnes said municipalities must address more than just drinking water standards, but also new maintenance costs, upkeep and more. She said the new standards impact wastewater, surface water, biosolids, sludge, soil and more. The nearly $200 million estimated price that it would cost communities to comply with the new standards only addresses water — not the other components that will also need to be remedied, said Byrnes. “We need help with the financial expense,” she said, adding that there needs to be a partnership in the remediation effort corresponding with whatever science supports for the appropriate standards. Byrnes stressed that municipalities and public water system operators are not the polluters, explaining ratepayers and taxpayers also didn’t create the problem even though they will be stuck with the bills to meet compliance. New Hampshire cities and towns “want to comply, but they really need support,” she said.”
NHMA’s Legal Services Team Assist in Training Water and Wastewater Operators
Byrnes Stresses Municipalities Need Federal Support on PFAS Issue
(Above, NHMA’s Stephen Buckley addresses drinking water and wastewater operators at a training session held at the New Hampshire Department of Environmental Services.)
(From left to right: US Representative Chris Pappas, US Representative Annie Kuster, State Representative Wendy Thomas, NHMA’s Executive Director, Margaret Byrnes, and Clark Friese, NHDES Assistant Commissioner.)
This summer U.S. Reps. Annie Kuster and Chris Pappas heard from those affected by per- and polyfluoroalkyl substances, or PFAS, at a field hearing in Litchfield. Among those on the panel were NHMA’s Margaret Byrnes who focused her comments specifically on costs to municipalities. According to the Union Leader online edition (August 13, 2019) Brynes is quoted as follows: 6
NEW HAMPSHIRE TOWN AND CITY
In August, NHMA’s Legal Service Counsel Stephen Buckley and Municipal Services Counsel Natch Greyes presented to a class of nearly 20 drinking and wastewater operators at the offices of the New Hampshire Department of Environmental Services (NHDES). NHMA’s Legal Services team focused on an operator’s responsibilities regarding the state’s Right-to-Know Law, municipal organization, governance, billing and collection procedures, among other issues. NHDES recognizes that owning and operating wastewater treatment facilities (WWTF) and collection systems represents a significant lifelong investment for any city or town. Protecting this investment requires that wastewater treatment plant operators be fully trained and certified to properly do their jobs. NHMA is glad to be part of this important training component for local municipal officials. www.nhmunicipal.org
Upcoming
Events
For more information or to register for an event, visit our online Calendar of Events at www.nhmunicipal.org. If you have any questions, please contact us at nhmaregistrations@nhmunicipal.org or 800.852.3358, ext. 3350.
NOVEMBER NHMA’s 78th Annual Conference & Exhibition Wednesday, November 13 9:00 am – 4:30 pm Doubletree by Hilton Manchester Downtown Hotel, Manchester NHMA’s 78th Annual Conference & Exhibition Thursday, November 14 8:00 am – 4:30 pm Doubletree by Hilton Manchester Downtown Hotel, Manchester NHMA Webinar: Regulating Short-term Rentals in New Hampshire Wednesday, November 20 12:00 noon – 1:00 pm Thanksgiving Day (NHMA Offices Closed) Thursday, November 28 Day After Thanksgiving (NHMA Offices Closed) Friday, November 29
DECEMBER NHMA Webinar: What Municipal Officials Need to Know About TV Franchising Today 12:00 noon – 1:00 pm Wednesday, December 18 Christmas Day (NHMA Offices Closed) Wednesday, December 25
www.nhmunicipal.org
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Prioritizing Your Cybersecurity Efforts During Election Season by Joe Howland, Chief Information Office, VC3
A
s we head into the primary season, culminating with the presidential election in 2020, we are starting to hear more and more chatter on election security. State and local governments are faced with the challenge of assuring voters that elections are secure and free from tampering. However, with nearly daily reports of ransomware attacks on government agencies and phishing attacks becoming more and more sophisticated, the election systems aren’t the only area that needs focus. Voter registration data must be protected and even websites used to post official results can be vulnerable to attack. How can local governments protect their citizens? Whether you are protecting voter registration data or protecting a municipal management system, security best practices remain the same.
The Basics of Prevention Cybersecurity is complex and can be confusing. For many organizations, security consulting is often a new investment and governments are on fixed budgets. As a result, we have seen many government organizations struggling to identify a workable solution for securing county and municipal systems. How can you prioritize investment in security and come up with a cybersecurity plan that meets your organization’s needs? Let’s see if we can begin to answer that question. We’ll start with the cybersecurity basics. At a minimum, it’s a good idea to do the following: • Run a reputable anti-virus package on all systems; • Practice good user controls and avoid giving all users full administrative access to their workstations; • Apply security patches regularly; • Run firewalls at all locations with an Internet connection; and • Leverage some form of anti-spam technology. Does this sound familiar? I hope so. If not, then this is a great place to start. I’d recommend making it a priority to talk to your IT department or IT provider. These are foundational items to your security practice. 8
NEW HAMPSHIRE TOWN AND CITY
Employee Awareness Training Beyond implementing basic infrastructure prevention, executing a strong cybersecurity plan requires more than your IT department or IT provider. Most successful attacks in the past year started with an email to an employee. These emails often trick employees into sharing their credentials, initiating fraudulent wire transfers, and unwittingly launching ransomware attacks. You cannot merely protect your hardware and systems, you must also protect your employees. In order to protect employees, it’s critical to regularly train them. They need to become capable of spotting fraudulent email messages. And the good news is there are two good, low-cost ways to support and train your employees. First, email banners that identify a message as coming from outside your organization are a simple way to raise awareness. A note from a coworker asking for sensitive information with a banner across the top identifying as coming from an external source should immediately raise a red flag. Almost every email system can support this feature at no additional cost. Second, phishing simulation platforms are prevalent and inexpensive. These tools allow you to identify employees that click on suspicious links and provide targeted training to those individuals. When used repetitively, these training platforms shift the culture of the organization to caution. Employees stop clicking on every link and replying to every message. They start questioning the request in the email, asking themselves, “does this message make sense? Is the action I am being asked to take reasonable? Did John really just email me out of the blue and ask me to redirect his paycheck to a new account?”
Response and Recovery After putting some of the basic prevention measures mentioned above in place, it’s then time for an organization to start thinking about how to respond to and recover from www.nhmunicipal.org
a security incident. The reality is that investing in security can dramatically lower the likelihood of an event, but there is no guaranteed way to avoid one. Have you given thought as to how your organization would respond to a security event? There are two items that everyone should consider when it comes to formulating your response - cyber liability insurance and data backups.
Backups are Your Best Friend The importance of data backups to an organization’s ability to recover from a disaster is not new. Most of my career has been spent helping organizations see the value of a solid, tested, backup solution. The value of backups was recently put to the test in the wake of Hurricane Dorian traveling up the east coast. The organizations with properly configured backups are reaping the benefits of faster, easier restoration to normal operations. While a cyber attack is very different from a hurricane, the same principles of disaster recovery apply. The impact of a ransomware attack crippling an organization is no different than losing infrastructure to a hurricane. In either case, backups are critical to recovery. There are a few problems we regularly see with the configuration of data backups. First, it’s common to discover that only a portion of your data is being backed up. This means that you won’t undergo a full recovery. Second, it’s typical to discover the backup data isn’t replicated to a remote location and does not have enough separation from your production network. There have been several instances this year of organizations whose production data and backup data was encrypted in the same ransomware attack. Ask your IT department or IT provider when the last test restore was performed of your data. Testing your restore capability is the only way to know for certain that your backups are functioning properly. Speaking of restores, organizations www.nhmunicipal.org
typically underestimate the amount of time it will take to restore their data. With the right backup solution in place combined with a strong recovery plan, you could be back up in several hours or days. Without proper backups and a tested plan, cities can spend months on recovery efforts. The only way to know for sure how long it takes to restore your environment is to perform a full system restoration test. It is also important to note that not all data is of equal value. You may have some systems that you want to the ability to rapidly restore while others can be down for weeks or months with little impact.
Importance of Cyber Liability Insurance The costs of cyberattacks are increasing. Florida cities have been in the news many times recently regarding fraudulent wire transfers of hundreds of thousands of dollars and ransomware payouts totaling over a million dollars. Cyber liability insurance can protect an organization against these types of attacks. It can protect you from the costs of a ransomware attack, covering the ransom itself or the costs of a recovery effort. An added benefit that is frequently overlooked with
cyber liability insurance is the expertise that your carrier can bring to the table in the event of an incident. They can help provide the forensic expertise to untangle how a breach occurred and even expertise in dealing with a ransomware attacker. They know which attackers are likely to provide the decryption key when paid and which attackers you should not pay.
But Wait, There’s More We’ve covered many of the basics and those are a great place to start. However, there are other technologies and processes to consider for your longterm cybersecurity plan. This includes multi-factor authentication, incident response plan, regular security scans, and more that you and your IT professionals should evaluate. As previously mentioned, cybersecurity is complex and can be confusing. The landscape is constantly changing. New solutions and products are frequently introduced and new types of attacks surface just as often. Cybersecurity is a specialized component of IT and is often outside the skill set of a typical IT department. As a result, it can be unreasonable to ask your IT staff to keep up with their day to day duties and remain current on cybersecurity trends. Even cities NOVEMBER/DECEMBER 2019
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CYBERSECURITY from page 9 that feel they have a robust plan in place should seek outside expertise. The company I work for leverages outside organizations to monitor and test our security. We have the experts on staff but, just like a financial audit, an outside review may find something that we may have missed. It is far more beneficial to resolve an issue uncovered during an audit than to find out about the issue in a successful attack.
What’s the Takeaway? Ask for help. Request a security gap analysis or security assessment from a reputable organization to determine your vulnerabilities. It will be to the benefit of your residents, the business-
es in your community, and your employees. When you select that outside organization, keep in mind you are looking for a long-term relationship. Cybersecurity is not a one-time effort. Cybersecurity plans need to be reviewed, tested, and updated regularly.
About Joe Howland and VC3 Joe Howland is Chief Information Security Officer for VC3. Joe has been in the IT industry for over 20 years and has extensive IT management experience that spans multiple industries. Joe joined VC3 in 2009 and during his time with VC3, Joe has performed in the role of Virtual CIO for some of VC3’s largest government customers. Joe is currently VC3’s Chief Information Security Officer and is responsible for VC3’s IT se-
curity as well as advising on security for VC3’s customers. Joe can be reached via email at joe.howland@vc3.com or by phone at 803-7335888.
About VC3 VC3 is a leading managed services provider with a focus on municipal government. Founded in 1994 with offices across the East Coast, VC3 forms partnerships with municipalities to achieve their technology goals and harness their data. In addition to providing comprehensive managed IT solutions, VC3 offers cybersecurity, website design, custom application development, and business intelligence services. Visit www. vc3.com to learn more.
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NEW HAMPSHIRE TOWN AND CITY
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The Top Ten Things You Should Know About Town Meetings By Stephen C. Buckley, Legal Services Counsel, NHMA
1.) The Moderator Presides and Can do What it Takes to Maintain Order The town meeting’s business is regulated by the moderator, and under RSA 40:4 he/she has the duty to preside and regulate the meeting and set rules of procedure. No specific form of parliamentary procedure is required. Robert’s Rules of Order is not compulsory. The moderator is merely a facilitator to enable the voters to take orderly joint actions. It is illegal for the moderator to preside in such a way as to make it impossible to overrule his/her rulings. Any moderator or presiding officer who willfully neglects or refuses to follow any rule or proceeding established by RSA Chapter 40 or the vote of the town, including any vote to overrule the moderator, is guilty of a misdemeanor. RSA 40:6. No person may speak during the meeting without permission of the moderator, nor may anyone speak when any person already speaking is in order. RSA 40:7. The moderator may command any constable, police officer or legal voter of the town, to remove such disorderly person from the meeting and detain any person conducting himself or herself in a disorderly manner. RSA 40:8. Everyone “shall be silent at the desire of the moderator, on pain of forfeiting $1 for each offense, for the use of the town.” RSA 40:7. State v. Dominic, 117 N.H. 573 (1977). 2.) Subject Matter Amendments to Warrant Articles are Prohibited RSA 39:2 states that “the subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant, and nothing done at any meeting, . . . , shall be valid unless the subject thereof is so stated.” Voters can change the dollar amount of an appropriation, all the way to zero. Voters cannot change the subject matter of the warrant article such as changing the purchase of a fire truck to buying a backhoe. Warrant article amendments that seek to name agents to expend from a Capital Reserve Fund or Expendable Trust Fund are also prohibited. It is also prohibited to amend an article to make it “special” or “non-lapsing. www.nhmunicipal.org
3.) Petitioned Warrant Articles Have No Special Status Petitioned warrant articles have no special status on the warrant and are subject to amendment, within the bounds of RSA 39:2, just like any other warrant article. Except where the wording of a question is prescribed by law, all warrant articles, including petitioned articles, may be amended. As previously mentioned, however, amendments must relate to the general subject matter of the article and may not eliminate the subject matter entirely. Adding the word “not” to make an article negative is also a risky move and is not advisable. 4.) Voters Can Ask For A Secret Ballot on Any Question There are two ways for the voters to request a secret written ballot at town meeting: (a) Any 5 voters can make the request in writing to the moderator before a vote is taken, (if the town’s population is less than 500, it only takes 3 voters) or (b) After a vote has been taken and declared by the moderator, any seven voters can orally request the vote to be taken again using a secret written ballot, but the request must be made immediately, before the meeting moves on to other business (RSA 40:4-a and 40:4-b). 5.) Any Vote Can be Reconsidered Until the Meeting Adjourns Generally, any vote taken by a town meeting may be reconsidered and/or rescinded later at that same meeting (or at a recessed session of the same meeting). However, a vote that is required to be taken by official ballot cannot be reconsidered on the floor at a later business session. McDonnell v. Town of Derry, 116 N.H. 3 (1976). There are two important exceptions to this ability to reconsider town meeting votes: • Bonds over $100,000 RSA 33:8-a requires that a vote on the issuance of bonds or notes over $100,000 cannot be reconsidered at that same session. If there is a motion to reconsider and it passes, actual reconsideration must take place at an adjourned or recessed session of the meeting held at least seven days later. Notice must be given in a newspaper in circulation in the town at least two days before the NOVEMBER/DECEMBER 2019
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TOP TEN THINGS from page 11 reconsideration vote. • Restricting Reconsideration Under RSA 40:10, the meeting can decide on a vote-by-vote basis, to limit reconsideration of a vote or warrant article in the same manner as bond issue votes are protected under RSA 33:8-a above. After any vote passes at the meeting, the meeting may then vote to restrict reconsideration of that prior vote or article. If the vote to restrict reconsideration passes, the vote or warrant article that is subject to the restriction is, until final adjournment of that meeting, protected as provided by RSA 40:10. If, later in that meeting, there is a motion to reconsider the restricted vote or warrant article, and the motion passes, actual reconsideration cannot take place until an adjourned session held at least seven days later. The time, date and place
at which the reconsideration will occur must be announced before the close of the prior session and must also be published in a newspaper at least two days prior to the reconsideration. The actual vote to restrict reconsideration cannot itself be reconsidered. That would have been an obvious loophole in the scheme. The motion to restrict reconsideration does not have to be made immediately after the original vote. The law provides that “any vote previously taken at that meeting” can be restricted. For example, it is possible to vote “to restrict reconsideration of all votes taken up to now.” However, the voters cannot adopt a rule at the beginning of the meeting to restrict reconsideration of all votes at that meeting. 6.) Town Meeting is Subject to the Right-to-Know Law, RSA Chapter 91-A RSA Chapter 91-A applies to town
meeting. RSA 91-A:1-a defines “Governmental proceedings’’ as “the transaction of any functions affecting any or all citizens of the state by a public body.” A “Public body’’ is defined as any legislative body which of course includes a town meeting. Consequently, when town meeting convenes any members of the public can attend, including non-residents. Any persons attending town meeting are also permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment. 7.) Town Meeting and the First Amendment In Curnin v. Town of Egremont, 510 F.3d 24 (1st Cir. 2007), the Court held that a New England town meeting is not subject to forum analysis at all. ‘’The registered voters who speak and vote at Egremont’s town meeting do so in their capacity as legislators. Since they are not registered voters, the Curnins are not legislators. Non-
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legislators have no First Amendment right to address sessions of deliberating legislative bodies.” It is up to the moderator and the voters to decide whether a nonvoter may speak at town meeting. Those who are permitted to speak may employ symbolic speech, and the regulation of expressive conduct must be content neutral and can only employ reasonable time, place and manner principles. 8.) Voters Can Bar Spending Through Rejected Separate Warrant Articles RSA 32:10, I(e) was amended in 2004 to specify that if a separate appropriation warrant article—a warrant article containing an appropriations separate from the operating budget warrant article —is rejected by the voters, the purpose in the article is deemed “one for which no appropriation is made.” The effect of this law is that no amount of money may be transferred to, or spent for, the purpose of a separate warrant article (including special warrant articles) that has been defeated or reduced to zero. This is often referred to as the “no means no” provision.
a special warrant article.” RSA 32:3, V. In simple terms, this refers to the “big” line items on the DRA form, not “narrow” line items in a municipality’s or school district’s detailed chart of accounts, which is often used by the budget committee to create the budget. If a voter moves to amend the budget to eliminate spending for overtime in the police department budget this would only be deemed to be an amendment of the bottom line of the budget and would not bar spending for overtime for the police department.
9.) Line Item Budget Amendments
10.) Official Ballot v. Official Ballot Referendum
The narrow definition of “purpose” under the no-means-no rule is “a line on the budget form posted with the warrant, or form submitted to the department of revenue administration, or an appropriation contained in
Under RSA 39:2-a, I, towns/districts can adopt the official ballot creating two sessions of town meeting. The first session, or official ballot session, involves voting by official ballot for elected officials, zoning questions and
certain other questions required to be placed on the official ballot. The second session, also known as the business meeting, is where all other warrant articles are addressed and voted on by the town meeting. Under RSA 39:2-a, II, known as SB 2, towns/districts can adopt the official ballot referendum form of government via RSA 40:12 - :15. This also employs two sessions of town meeting, a deliberative session where all warrant articles are discussed, debated and amended, with no final votes taken until the second or voting session where all warrant articles are voting on by official ballot at a polling place. Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org.
Our Municipal Law and Finance Group is rewriting the definition of municipal legal counsel in New Hampshire, integrating comprehensive general counsel experience with trusted municipal finance services. Mark H. Puffer, Director • mpuffer@preti.com 57 North Main Street, Concord, NH 03301 • 603.410.1500
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Protecting Water Quality with Septic System Rules by Susan Slack, Principal Planner, Lakes Region Planning Commission
W
ater quality is a high priority in New Hampshire’s Lakes Region.
Actually, that’s probably the case everywhere, but it has particular resonance in the Lakes Region, which is home to the four largest lakes located entirely within the state’s borders, six of the 10 largest New Hampshire-only lakes, and more than 273 lakes and ponds of all sizes. And, of course, there is Lake Winnipesaukee – at 44,586 acres, it is by far the state’s largest water body.
Lake Winnipesaukee Squam Lakes Newfound Lake Lake Winnisquam Lake Sunapee Ossipee Lake Lake Wentworth First Connecticut Lake Conway Lake Merrymeeting Lake Lakes located in the Lakes Region Lake Umbagog (7,850 acres) and Great East Lake (1,768 acres) straddle the NHMaine border
In the Lakes Region, water quality means quality of life. As people do everywhere, we rely on it to supply our drinking water, but water quality is also the foundation of the Lakes Region’s tourist economy – boating, swimming, fishing, loons, and more. For Moultonborough, a town of 4,089 year-round residents and more than 24,000 summer residents, water quality protection is a guiding principle of its Master Plan and land use regulations. Located in the Lakes Region, Moultonborough has 89 linear miles of shoreline, the most of any municipality in New Hampshire. In addition to portions of Lake Winnipesaukee and Squam Lake, there are numerous ponds, rivers, streams, wetlands, and aquifers. Moultonborough citizens have sought to protect their natural resources through public outreach and education, land conservation, and zoning measures to regulate stormwater and to protect wetlands, groundwater, shorefronts, floodplains, and steep slopes. Moultonborough is also partnering with the Lakes Region Planning Commission (LRPC), the Lake Winnipesaukee Association (LWA), and the NH Department of Environ14
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44,586 6,791 6,791 4,264 4,090 3,245 3,116 3,071 1,316 1,223
mental Services (NHDES) to protect water quality from the public health risks posed by failing septic systems.
With the endorsement of the Moultonborough Planning Board and Conservation Commission, LRPC received grant funding, through NHDES, from the Environmental Protection Agency under Section 604(b) of the Clean Water Act to create a replicable septic system improvement model to address nutrient loading from aging or failing septic systems. Nutrient loading is a nonpoint source of pollution that contributes to water quality impairments. Poorly functioning septic systems can release excessive amounts of nutrients, pathogenic organisms, and pharmaceuticals into a water body. In addition to a septic system risk analysis, the project includes the development of a model ordinance and a toolkit of education and outreach materials for use by other municipalities and property owners. It will include information about nutrient loading from aging septic systems, best practices for maintaining and operating septic systems, and costsharing opportunities for septic system evaluation, repair and replacement programs.
Septic System Risk Analysis A septic system risk analysis was undertaken as part of the grant project. The analysis focused on properties within 250 feet of the shoreline of Moultonborough Bay Inlet, a densely developed shorefront area that has exhibited the highest levels of in-lake total phosphorus of the eight sub-basins that comprise Lake Winnipesaukee. The goal was to determine how many old (older than 25 years) and potentially failing septic systems there were within 250 feet of the shoreline. www.nhmunicipal.org
For the purposes of the analysis, 25 years was determined to be the average life span of a septic system. The analysis eventually focused on 230 parcels under a half acre with buildings constructed prior to 1992. As of June 2018, only nine of those septic systems had been replaced. Nutrient loading (phosphorus) was estimated using the LLRM Septic System Nutrient Model, which bases estimates on factors such as age of the septic system, seasonal or year-round use, and average number of occupants. Because there is high seasonal use of Lake Winnipesaukee shorefront properties, it was assumed that the number of people per dwelling was 3.5 instead of the 2.5 value normally used in the LLRM. The nutrient load for parcels under a half acre (280) was estimated to be 44 kg/ yr. For all parcels within 250 feet of the shoreline (680) the nutrient load was estimated to be 91.3 kg/yr.
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Though it is an estimate, the nutrient load model can be used to support the need for septic system regulations.
Public Health Regulation Because failing septic systems release excessive amounts of nutrients, pathogenic organisms, and pharmaceuticals into surface water and groundwater, they are a public health risk, and the municipal authority to regulate them is based, not in the zoning power (land use regulations are generally prospective in nature), but in RSA Chapter 147, which governs nuisances. RSA 147:10 prohibits septic systems that are injurious to the public health, and RSA 147:1 grants authority to municipalities to enact regulations to prevent and remove public health nuisances. The process for enacting health regulations involves approval of the municipal health officer and the governing
body (Board of Selectmen/town or city council) after publication of the regulation in a local newspaper or posting in two or more public places in the town. Although RSA 147:1 doesn’t expressly require a public hearing, opportunities for public comment are important, and a significant public education and awareness effort is highly recommended before final adoption. Once a septic system has failed, RSA 128:5 authorizes the municipal health officer to require a remedy, and NHDES rules require failed septic systems to be remedied within 90 days. But what requirements should a health regulation include to prevent septic system failure? In 2013, Meredith, another Lakes Region town located on the shores of Lake Winnipesaukee, enacted a health ordinance that requires evaluation of all septic systems within 250 feet
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SEPTIC RULES from page 15 of Lake Waukewan that do not have on file an approved operational permit. Lake Waukewan is the source of Meredith’s public water supply system and is a regional recreational resource. The Meredith health ordinance requires septic systems to be replaced under the following circumstances: 1. In instances where there is a valid subsurface system design approval on file with the NHDES and when a Building Permit Application includes a proposal to increase the number of bedrooms (either by adding bedrooms or converting rooms to additional bedrooms) that exceeds the number of bedrooms included in the NHDES subsurface system approval: 2. In instances where there is no valid subsurface system design approval on file with the NHDES and when a Building Permit Application includes a proposed expansion of the building that would either horizontally or vertically create or increase the area of living space, 3. In instances where there is no valid subsurface system design
approval on file with the NHDES and when a Building Permit Application includes a proposed expansion of a building or new structure that would increase the area of lot coverage (e.g. new garage). In the first two instances, the Building Permit Application must include a valid NHDES Construction Approval and, before the town will issue an Occupancy Permit, a valid NHDES Operational Approval must be obtained. In the third instance, the Building Permit Application must include a valid NHDES Construction Approval. It can be difficult to gain public support for regulations that require replacement of septic systems because of the cost burden involved for the property owners, but Meredith partnered with Lake Winnepesaukee Association (LWA) to implement a program to help fix failing septic systems. LWA was awarded a Source Water Protection grant by NHDES to reimburse property owners half the cost of a professional evaluation of their septic systems. Seven septic systems were found to be in failure (44%), and nine passed the evaluation (56%). Eight Meredith properties had their septic system evaluations done outside of the program, and half were found to be either in failure or passing with intermittent use only.
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A second cost-share program was offered for the installation of new septic systems. It provided property owners with $4,000 toward the overall cost of replacement. By the end of 2015, 14 septic systems were upgraded and replaced, resulting in a reduction of 5.3 kg of phosphorus to Lake Waukewan, in addition to a reduction in other pollutants, such as bacteria, nitrates, and pharmaceuticals. The Meredith Zoning Ordinance was also amended to establish the Lake Waukewan Watershed Overlay District in which the minimum lot size is either 2 acres or the minimum lot size of the underlying zoning district if it is more restrictive than 2 acres. Where lots are not created but dwelling units are created (duplexes, multi-family, condominiums), the 2-acre minimum or the more restrictive minimum of the underlying zoning district is the required density per dwelling unit. On the Seacoast, a different approach toward septic system regulation was taken by the Town of Rye. The town’s health ordinance requires septic tanks to be pumped out once every three years and applies only within the boundaries of the Parsons Creek Watershed. Owners of residential properties occupied by two or fewer people and owners of properties used only seasonally can apply to the building inspector for a waiver of the three-year pumping requirement. Waivers are prohibited for non-residential properties, or for any property in the designated Impaired Surface Water Quality Zone. Back in Moultonborough, a committee made up of planning board, conservation commission, and selectboard members, along with town administrators and representatives from LRPC and LWA, has been hard at work to determine the best approach for regulating septic systems in their town. They are discussing a health regulation that www.nhmunicipal.org
would phase in its requirements over time, perhaps including evaluation and replacement, if warranted, prior to closing on real estate transactions involving existing residential or commercial property, and/or, when a building permit is sought for expansion in the number of bedrooms or bathrooms in a residential or commercial building.
Hurdles for Municipalities One of the hurdles municipalities face when seeking to craft a health ordinance regulating septic system pumping, repair, or replacement is the availability of data on existing systems. Prior to 1967, New Hampshire did not require permits to construct and operate septic systems. As of 2015, the NHDES approval and permitting process is electronic. Municipal property tax cards and the NHDES Subsurface One Stop electronic database, which now includes permit data dating back to 1986, can provide information on construction and operational approval dates for septic systems, but municipal tax map and parcel numbers have changed over the years and often don’t match the information in the NHDES One Stop database. In Moultonborough, prior map and lot numbers had to be researched. To obtain information from NHDES’s paper archives (1967 to 1986) a form is required for each individual property. Information gathering is time consuming and can be impractical. Another hurdle for Moultonborough’s consideration of linking septic system evaluation and possible replacement to real estate transactions is that New Hampshire municipalities don’t have authority to change the state’s real estate closing or deed recording laws to require septic system evaluation prior to closing. Without a change in state law, this aspect of the local health regulation will need to rely on the town’s education and awareness programs, as well as administrative tracking of real www.nhmunicipal.org
GET PUMPED! NEW HAMPSHIRE: What Every City and Town Should Know about Keeping Drinking Water Clean By: Darlene Johnson, Best Septic & NHASH My name is Darlene Johnson, I am the Outreach Coordinator for a trade association of Septic Pumpers known as NHASH - the New Hampshire Association of Septage Haulers. NHASH members have been working with customers throughout the State of New Hampshire for over 40 years, educating them about protecting the ground and surface waters in their own back yards and neighborhoods. Even after all of these years and thousands of customer interactions, there’s always been the nagging feeling we could be doing more. A few years back, I heard of GET PUMPED! Similar programs in Rhode Island and New York were formed to educate the public about protecting their great bodies of water such as Narragansett Bay and the Long Island Sound. Where they’ve succeeded in their efforts is to heighten the importance of how each individual can do their part to assist in protecting our clean water resources. Recently, in conjunction with several divisions of New Hampshire’s Department of Environmental Services (NHDES), NHASH and NHDES launched a program called Get Pumped! New Hampshire. Get Pumped! New Hampshire is an educational program that promotes septic pumping. Routine septic pumping extends the life span of properly operational leaching systems, thus preventing ground water and surface water contamination as a result of a failing leaching system. It’s a proven fact that failed leaching systems contaminate water sources. It is also proven that maintaining a septic tank prolongs the proper function of the leaching system. Get Pumped! New Hampshire offers a $10.00 rebate to participating homeowners who hire a septage hauler that is a NHASH member. After you’ve had your septic tank pumped by a NHASH hauler, simply visit Get Pumped! NH’s website: GETPUMPEDNH.com, follow the rebate steps and mail in your rebate form – it’s as easy as that! You’ll receive your $10.00 check in return within days. Throughout New Hampshire, we have many of bodies of water that rely on our citizens to keep them clean. In some cases, homes are on bodies of water such as ponds and lakes and in other cases, homes are located on hill or mountain sides where water runs into streams and rivers, then into ponds or the “Great Bay” on New Hampshire’s pristine coastline. Remember: Just because you may not be able to see the runoff, doesn’t mean it’s not present. It may happen above or below ground. It is NHASH’s intent to brand the phrase “GET PUMPED! NH”, a phrase we would like to hear mentioned in every municipality. GET PUMPED! NH can educate those who may be new to our rural communities, or those who didn’t know their responsibilities of septage system ownership, and how it can affect their neighborhood or beyond. Get Pumped! New Hampshire is a limited funded program. It is our hope that by sharing this information with you, municipalities might take interest in this program, recognize the importance and perhaps be able to lend a helping hand. We’d love to have the support of municipalities, especially those under a MS4 mandate, to help us promote this campaign. Promotion of this program via municipal offices, websites, newsletters, etc. would be greatly appreciated! Any additional funding support would allow us to promote this program further, perhaps by offering a larger rebate and/or paying more rebates statewide. Please join us in getting NEW HAMPSHIRE PUMPED!
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Other states have enacted laws to regulate septic system inspection or to enable municipal regulation. For example, the Massachusetts Environmental Code (310 CMR 15) requires what is commonly known as a Title V septic system inspection whenever a property is sold, divided, or combined, or when there is a change in use or expansion of the facility. Rhode Island adopted a Septic System Maintenance Act (RIGL Title 45) that enables municipalities to require septic system inspection.
regulating septic system installers (RSA 485-A:36), requiring property owners to properly operate and maintain septic systems (RSA 485-A:37), requiring property owners to receive septic system approval before building expansion or conversion to full-time occupancy if the load on the system would increase (RSA 485-A:38); requiring owners of developed shorefront property with septic systems to obtain a site assessment by a septic designer to determine if the site meets the current standards for septic disposal systems. This latter statute requires the site assessment study form to become part of the purchase and sale agreement, but it doesn’t require either the seller or purchaser to repair or replace a failing or failed septic system.
New Hampshire is not without septic system regulation. There are statutes
New Hampshire law could be more effective in preventing the health
SEPTIC RULES from page 17 estate closings and a grace period for after-the-fact evaluations.
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risks from failing septic systems. Legislation creating a Shoreland Septic System Study Commission was enacted during the last session of the New Hampshire legislature (House Bill 475). The commission was directed to find ways to solve the problem of inadequate septic systems and identify non-state approved septic systems located within 75 feet of surface waters. The study commission’s final report to the legislature is due before November 1, 2020. Susan Slack is Principal Planner with the Lakes Region Planning Commission. Susan can be reach via email at sslack@lakesrpc.org or by phone at 603.279.5337. For those who may remember, Susan was a member of NHMA’s legal staff for 10 years.
We represent towns and ci�es throughout the state and bring value to our clients through decades of experience and adhering to the budgetary constraints under which municipali�es operate. We emphasize preven�ve and �mely legal counsel to our clients with a view toward avoiding problems that result in li�ga�on.
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NHMA’s 78th Annu
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2019 Program Sessions
A Little Help from My Friends Is Facebook Killing Your Municipality? The Road Ahead – Attracting Public Works Talent How We Fund Public Services in New Hampshire Negotiation Strategies for Next Generation Health Plans The Future with Medical Advocacy – Grand Rounds Economic Development Tools 101 Driving Downtown-Revitalization Through Creative Placemaking Helping Those Who Help Others Marijuana Legalization and Commercialization in New Hampshire Enfield NH – Shaping its Future Through Strategic Governance The State of Local Land Use Regulations in New Hampshire Local Road Management: What’s in Your Toolbox? Architectural Styles – History and Identification Running an Effective Meeting The Right-to-Know Law – Hot Topics and Q & A, part 1 Recycling in New Hampshire: Is it Still Worthwhile? Adventures in the Land of Public Meetings: A Mock Municipal Meeting Bridge Preservation at the Local Level State and Regional Planning Resources – Hear How We Can Assist You The Changing Landscape of New Hampshire’s Building Inspections Fire Department Culture or Bullying? Empowering your Municipality with Clean Energy Volunteer Risk Management Special Events Risks – Fairs, Festivals, Functions and Parades Wage and Hour Compliance for Local Governments – Federal and State Get Ready for the New Wetlands Rules Cybersecurity Checklist: How Do you Rate? Why is the 2020 Census Important for your Community? Your Employees’ Role in Cybersecurity Protection The Value of the Cloud Computing: Is It Right for You?
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Meet, socialize and network with municipal officials from New Hampshire cities and towns • Explore best practices and and inform • Speakers includes expert, leaders and professionals from a range of public and private sector organiza
For registration information, visit www.nhmun Questions? Call 800.852.3358, ext. 3350, or ema
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tter Together 2019 Conference Schedule Wednesday, November 13 7:30am
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st practices and innovative solutions, products and services • Choose from nearly 55 program sessions designed to educate sector organizations providing knowledge on topics that matter most • Explore state-of-the-art products and services
ww.nhmunicipal.org under Calendar of Events. 50, or email NHMAregistrations@nhmunicipal.org.
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The 2020 Census: What You Need to Know by Ken Gallager, Principal Planner, NHOSI
M
aybe you’ve heard: the next decennial census is coming in 2020! And while those of us who track population and economic statistics are naturally very excited about this once-every-ten-year opportunity to count every person in the United States, it should be of equally great interest to anyone who lives here in New Hampshire. Consider the things that depend upon an accurate census count: • Apportionment. This is calculating the number of persons each state sends to the U.S. House of Representatives. • Redistricting. The shape and size of every political district, from the U.S. House of Representatives down to a city voting ward, is determined based on numbers provided by the census. • Allocation of dollars. In fiscal year 2016 over 3.75 billion dollars were distributed to New Hampshire through 55 federal spending programs. Where these dollars go
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depends on where the people are. • Planning for growth. Governments and businesses alike rely on census data to know where the population is growing in the nation and in our state so as to inform infrastructure development. • Accurate estimates and projections. The count of population every 10 years serves as a baseline that informs how estimates of population are calculated. With all of this riding on the census, how do we ensure that every person in the country is counted once, only once, and in the right place? The Census Bureau breaks the process up into four major phases. The first is establishing where to count, a phase that is currently underway. In early 2020, the process will shift to motivating people to respond, followed by actually counting the population in the spring of 2020, and finally releasing the results starting in December 2020.
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Planning the Count The Census Bureau has to know where people live in order to count them. They maintain a Master Address File for every mailing address in the nation, and in the summer of 2019 they are conducting a massive review of the file. This can mostly be done in the office, using mapping software and aerial photography, but you may see Census Bureau staff doing field checking in some areas of the state, if they need to clear up any questions that arise about addresses. The Census Bureau has also worked with some towns and cities in our state which have compared their own address databases with the Master Address File, in a process called “Local Update of Census Addresses”, or LUCA.
Raising Awareness When the new year begins, it becomes time to make people aware of the upcoming census. While the Census Bureau will be conducting a thorough
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advertising campaign in early 2020, New Hampshire will be taking many steps of its own to raise awareness. The state has formed a Complete Count Committee that is developing ways to reach all segments of the state’s population to be aware of the census, to understand its importance, and to be assured that all personal information one submits to the Census Bureau is kept confidential and is not shared with anyone. Individual cities and towns are also encouraged to form local complete count committees, as members will be best aware of the challenges residents in their communities would be facing when asked to fill out the census. Local community members will also be the most trusted voices that will help their neighbors be confident when responding to the census.
their census form online. (There will still be paper forms available for who prefer that option or who lack internet access.) In March 2020, people will receive postcards informing them of the census and directing them to the online option. Areas with low rates of Internet penetration will also receive paper census forms, and anyone who has not replied online by mid-April will also receive a paper form to complete. If you still do not respond, you will be greeted by a Census Bureau staff person at your home. Going to peoples’ homes to ask them to fill out their forms, known as “non-response follow-up”, is the most costly part of the census, so the Census Bureau will be encouraging as many people as possible to respond using Internet, mailback, or phone-based methods.
Filling Out the Census On-line
Reporting the Results
This decade will be the first time that people will be able to fill out
The final phase of the census, reporting the data, begins at the end of Decem-
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ber 2020, at which time the Census Bureau must deliver the population counts of every state to the President, in order for apportionment of congressional seats to be done. By March 31, 2021, the Census Bureau will publish their redistricting summary files, detailed population tables that will enable each state to draw their new political districts.
Challenges How do we ensure that everyone in New Hampshire is counted once, only once, and in the right place? To begin with, we need to know what groups of people are harder to count than others. Analyses of past censuses tell us that populations in communities with higher poverty rates, with more recent immigrants, or with more people who rent their homes, are less likely to fill out their forms by themselves. Certain age groups stand out: statisticians have found that children under 5 years of age
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2020 CENSUS from page 23 tend to be undercounted, while the very elderly population might have concerns about completing an online form. There can be confusion about where someone should be counted. What if you own two homes, or what if you are a college student? The guiding concept for this type of question is that you are counted where you live most of the time. If you are a full-time college student, you are counted at your college residence, as that is where you live most of the time, not where your parents live (even if they are paying your tuition!). If you live in New Hampshire eight months of the year and in Florida for four months, you are counted at your New Hampshire residence, and so on. Many people have concerns about
giving their personal information to a government survey. While distrust of the census has been a fact for many decades now, recent trends show a growing fear of specific repercussions for filling out the census. However, all responses to the census are protected by federal law (Title 13 of the U.S. Code), and personal data has never been released by the Census Bureau to anyone, including law enforcement or other federal agencies. It might be an uphill battle convincing some people that their personal information is safe, but the Census Bureau’s track record with the census is clear: your personal data will never be shared, not with law enforcement, not with businesses, not with anyone. On the other hand, your collective data (the data about your town, or your neighborhood -- how many people, what ages, what races and ethnicities, what type of living situation) is what is used to guide how and where federal and state benefits
are distributed.
Participate Consider forming a local Complete Count Committee to raise awareness in your community about the 2020 Census. Visit the New Hampshire Office of Strategic Initiatives 2020 Census web page (https://www. nh.gov/osi/data-center/2020-census) to find more resources for participating. And especially, be sure to look for your postcard in March 2020 that will invite you to answer the 2020 Census! It is safe, easy, and important because you will be doing your part to “Shape Your Future—Start Here.” Ken Gallager is the New Hampshire State Data Center Director/Principal Planner at the New Hampshire Office of Strategic Initiatives. Ken be reached by email at ken.gallagher@osi.nh.gov or by phone at 603.271.2155.
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NOVEMBER/DECEMBER 2019
25
Demystifying Municipal Agreements Under RSA Chapter 53-A By Natch Greyes, Municipal Services Counsel, NHMA
D
uring the 2019 legislative session, the New Hampshire Municipal Association saw two of its policy bills amending RSA Chapter 53-A enacted into law. The first, Senate Bill 103, authorizes two or more municipalities (or other “public agencies”) to enter into an agreement under RSA Chapter 53-A to issue bonds for any purpose permitted under RSA Chapter 33. The second, Senate Bill 285, which largely focused on municipal cooperation and actions in response to climate change, clarified that municipalities may enter into an agreement under RSA Chapter 53-A to jointly establish a tax increment financing district under RSA Chapter 162-K (regardless of a climate emergency). These important changes to an important avenue of municipal cooperation give rise to some more basic question for many municipal officials. What is RSA Chapter 53-A? The purpose of Chapter 53-A is to permit municipalities (and counties) to cooperate with other municipalities and counties to provide services and facilities in a manner that will be more efficient than if they provided those services and facilities individually. RSA 53-A:1. What type of agreements can municipalities enter under RSA Chapter 53-A? The current iteration of RSA 53-A:3 states “[a]ny power or posers, privileges or authorized exercised or capable of exercise . . . may be exercised jointly.” That broad language stems from the history of the Chapter. Back in 1963, when RSA Chapter 53-A was born, it was a much simpler statute and RSA 53-A:3 was simply a list of agreements into which municipalities could enter. Those included, mostly, construction purposes at first.: building and maintaining parks, highways, sidewalks, sewers, buildings for recreational purposes, and lighting plants. It also included services, such as fire departments, light and sprinkling streets, planting and caring for shade and ornamental trees, appointing and the employing watchmen and police officers. As time went on, the list got longer. Eventually, in 1977, the legislature had 26
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enough of adding items to the list and passed a bill which reformed RSA 53-A:3 to create an iteration which is very similar to the one that we have today. What else changed from 1963 to today? Back in 1963, there weren’t any requirements for what went into the agreements, as in current RSA 53-A:3, II. Now, all agreements between municipalities must specify their duration, precise organization, composition and nature of any separate legal or administrative entity created by the agreement and the powers delegated to it, the purpose of the agreement, the manner of financing the joint or cooperative undertaking and establishment and maintenance of a budget, how the agreement is terminated and the disposal of any property obtained under it, and “any other necessary and proper matters.” Instead, the only requirements were that any agreements had to be in writing, written by lawyers representing each municipality, and approved by the office of the attorney general under former RSA 53-A:2. Now, the agreements don’t have to be written by lawyers, but the statute is complicated enough that it would be a good idea to make sure municipality counsel is drafting and reviewing them. And, there’s still the requirement of obtaining approval from the Attorney General. In addition, there was nothing akin to RSA 53-A:3-a, pertaining to public works mutual aid agreements. Now, there’s a specific statute, RSA 53-A:3-a, which allows municipalities (and other “public agencies”) to enter into agreements for reciprocal emergency management aid and assistance and other public works programs. Those agreements allow for the furnishing and exchanging of supplies, equipment, facilities, personnel, and services. There have also been a few curiosities. 1977 was a busy year for RSA Chapter 53-A. It saw the introduction of a new item on the list, the appointment and compensation of municipal prosecutors pursuant to the provision in RSA 41:10-a, but also the deletion of that and every other item on the list in exchange for the near-current version. www.nhmunicipal.org
Let’s say two municipalities want to enter into an agreement under RSA 53-A:3, is there anything tricky about that statute? Yes, in addition to the list of specified items in RSA 53-A:3, II, municipalities need to be aware that there appears to be a presumption in the law that a separate legal entity will be created. There is the option, under RSA 53-A:3, III to appoint an administrator or joint-board, but that statute specifies that there must be representation from all involved municipalities for any joint-board. That requirement goes to the heart of municipal expenditures, which require that public funds be spent only for public purposes. Clapp v. Jaffrey, 97 N.H. 456 (1952). It would be improper it would be improper for one municipality to fund an activity which may only benefit the citizens of another municipality. In order to
prevent that from occurring, there is built into the statute a presumption of independence for the joint venture from either municipality, or, at the minimum, a sharing of responsibilities in governance. That’s why the original RSA Chapter 53-A probably required that both municipalities entering into an agreement retain their own lawyers. Now that an agreement has been hammered out, what’s the approval process from the office of the attorney general? RSA 53-A:3, V requires that every agreement made pursuant to RSA 53-A:3 “be submitted to the attorney general who shall determine whether the agreement is in proper form and compatible with the laws of this state.” That section also provides that the failure of the attorney general to disapprove an agreement within 30
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days shall constitute an approval. As a practical matter, a former NHMA intern studied RSA 53-A agreements as part of a project and discovered that, at that time, there was no real review process at the attorney general’s office. As such, we recommend municipalities assume that they will have to wait 30 days for any such agreement to be approved. Are there any other requirements once we receive attorney general approval? Yes, RSA 53-A:4 requires every agreement made pursuant to RSA Chapter 53-A to be filed with the clerk of each municipality which is a party to the agreement and with the secretary of state. Those filings must take place prior to the agreement’s entry into force. Presumably, they should also be done after approval by the attorney general. In addition, in the unlikely event that any agreement is made with a state agency and causes the state agency to provide a service or facility, the agreement must be submitted to the state officer in charge of that agency and that officer must approve (or disapprove) the agreement in addition to the approval (or disapproval) by the attorney general. RSA 53-A:5. Each of these additional steps will add time, probably several days, to the contracting timeline. Therefore, municipalities must be careful to ensure that they are crafting agreements which go into force at least 30 days after signing by the respective, authorized municipal officials. Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
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I Saw the Sign By Natch Greyes, Municipal Services Counsel, NHMA
S
igns are a form of expression protected by the First Amendment, but ones that pose distinctive problems because they take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common knowledge that governments may regulate the physical characteristics of signs -- just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise. However, because regulation of a medium inevitably affects communication itself, it is not surprising that municipal sign ordinances must be regularly reviewed to ensure that they comply with the latest First Amendment case law. This short guide is designed to help municipalities updating their sign ordinances in 2019.
United States Supreme Court was very clear in Reed v. Gilbert, 135 S. Ct. 2218 (2015), that applying different rules to different kinds of signs due to content is unconstitutional. Permissible regulations do not require code enforcement officers to read the sign in order to determine whether the regulation applies (except in the case of signs purporting to be Traffic Control Devices). These permissible, contentneutral regulations may include distinctions between “temporary” and “permanent” signs, but those regulations must be very clear on what characteristics qualifies as “temporary” versus “permanent.” Further, those regulations cannot distinguish between types of temporary or permanent sign. If the farmer’s market can have a temporary sign at an intersection, so can a political candidate.
Here are some questions you should be asking upon review:
What about Traffic Control Devices?
Is the Regulation Content Based?
RSA 47:17, VIII (a) gives municipalities the authority to regulate all traffic control devices – commonly understood to be “street signs” and “signals” – within its boundaries. Furthermore, RSA 265:14 prohibits the display of any unauthorized sign that mimics or resembles and official traffic control device. In Reed, the Supreme Court did carve out a narrow exception for traffic control devices, stating “a sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers – such as
If your code enforcement officer must read the sign in order to determine whether a regulation applies, the ordinance provision is content based. Virtually any content-based regulation is unconstitutional. For example, if your ordinance applies different rules to political signs and real estate signs, it is content based. The
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warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses – well might survive strict scrutiny.” Thus, the authority given to municipalities by RSA 265:14 is likely constitutional and it may be enforced.
Does the Regulation Control Duration of Display? Many current ordinances restrict the number of days that a temporary sign may be installed and maintained. Similarly, RSA 664:17 regulates how long political advertising may be displayed. Municipalities should be very cautious about enforcing these ordinances (or RSA 664:17). Why? Such regulations require the code enforcement officer to read the sign in order to determine whether the regulation applies. Thus, the regulation is actually focused on the content of the sign, not an unrelated aspect, such as the size or placement. This is not an unfounded fear. Federal and other states’ courts which have looked at duration ordinances have found that they are content-based regulations because they demonstrate a preference for the likely content that signs would have at those times, e.g. businesses promoting special events or winners of political contests. www.RicardoPacheco.com v. City of Baldwin Park, No. 2:16-CV-09167CAS(GJSx), (Cen. Dist. Cal. May 10, 2017); Bell v. Baltimore County, Maryland, 550 F. Supp. 2d 590 (2008).
Does the Ordinance Overregulate (or Underregulate) Certain Signs? Many zoning ordinances and sign ordinances define different types of signs, but then only apply regulations to some of those types of signs. The concern, of course, is that such regulations may be designed to target a parwww.nhmunicipal.org
ticular content. For example, in Reed, the municipality defined 23 exemptions to sign types that had to be permitted, with political signs “designed to influence the outcome of an election” being in one class and temporary direction signs “that direct the public to a church or other qualifying event” as another class. One of those classes was regulated more stringently than the other. That demonstrated preferential treatment to the type of content likely to be displayed on the less regulated signage.
Does the Ordinance have All the ‘Required’ Elements? Check to be sure your sign code has all the ‘required’ elements of a sign code: The code should contain a purpose statement that, at the very minimum, references traffic safety and aesthetics as purposes for sign regulation. The code should contain a message substitution clause that allows the copy on any sign to be substituted with noncommercial copy. The code should contain a severability clause to increase the likelihood that the code will be upheld in litigation, even if certain provisions of the code are not upheld.
Does the Ordinance Continue to Properly Regulate Municipal Property?
In preparing the purpose statement, it is always best to link regulatory purposes to data, both quantitative and qualitative. For example, linking a regulatory purpose statement to goals of the local master plan, such as community beautification, increases the likelihood that the code will survive a challenge.
Municipalities may still regulate signage on their own property. Members of City Council v Taxpayers for Vincent, 466 U.S. 789 (1984), which saw the United States Supreme Court upheld a city ordinance that prohibited the posting of signs on public property, is still good law. Just remember that the ordinance prohibiting such posting must contain all of the required elements, including the legitimate interest served by the ordinance, such as eliminating visual blight, in order to ensure that the ordinance is constitutional.
If traffic safety is one of the purposes of the sign code (it should be), consult studies on signage and traffic safety to draw the connection between sign clutter and vehicle accidents.
Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org. NOVEMBER/DECEMBER 2019
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UP CLOSE & In the Field
PERSONAL
W
elcome to Up Close and Personal – In the Field, a regular column in New Hampshire Town and City dedicated to giving readers a closer look at staff from New Hampshire municipalities. In this issue, we hope you enjoy meeting Nanci Schofield, chair of the Town of Webster’s Select Board.
Nanci Schofield
Do you know someone who deserves to be profiled in a future edition of New Hampshire Town and City magazine? If so, please contact the New Hampshire Municipal Association at 800.852.3358 ext. 3408 or tfortier@nhmunicipal.org.
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TC: What are your duties and responsibilities as Select Board Chair? NS: As Chairwoman of the Select Board, I share responsibilities with the other Select Board members in managing projects, reviewing the budget, addressing comments and complaints from constituents as well as reviewing and endorsing legal contracts. These are just a few of the responsibilities we have. As Chairwoman, I work closely with the Town Administrator in scheduling guests, public hearings, and setting agendas. TC: What is your biggest challenge in performing your duties? NS: The biggest challenge has been balancing projects and not dropping the ball while reprioritizing. A recent example is the current closure of a red-listed bridge. We had been focusing our efforts on another red-listed bridge which is part of the State Aid Bridge Program. Now we must make the closed bridge our priority while also moving forward with the original bridge project. TC: How has NHMA helped you to do your job? NS: I frequently use NHMA for legal advice as well as searching the NHMA website while researching common processes and procedures. And the trainings are invaluable! We are currently working on updating ordinances and enforcements. NHMA has provided resources and guidance in moving forward with these updates. TC: Give us an example of a problem you solved or a dilemma you faced and overcame in the line of duty? NS: I think the most difficult thing is keeping meetings moving in a productive manner for the board while respecting the public audience’s desire to take part in discussions. NHMA provides tips to managing meetings. Our board has tried to incorporate many of these tips. Recently I had to ask an audience member to dismiss himself from the meeting. TC: What is the public perception about your job and how does it differ from the reality of your job? NS: In my opinion, the public doesn’t really understand how much time Select Board members contribute. TC: Has your job changed the way you look at the role of government? NS: In many ways, small town government parallels big government but it is also bound by some laws in what it can and cannot do often leaving me feeling like I am unable to give full resolution to some problems. (i.e. junky yards) TC: What lessons about human nature have you learned in your role? NS: People are not all one sided. Although frequently, people will erroneously judge others to be so. It is difficult to get those who have been jaded to open up to second chances or compromises. TC: What advice would you give someone who would like to follow in your footsteps into this job? NS: Don’t take judgements personally. Have a lot of time available to give. Delegate and share duties. TC: Do you dislike any aspects of your job? Which ones? Why? NS: I hate confrontations and disagreements. Doesn’t everyone? TC: Given the opportunity, what changes would you make to the position? NS: I don’t think there are changes to be made to the position but perhaps to the board as a whole. It would be helpful to have more frequent meetings.
NEW HAMPSHIRE TOWN AND CITY
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New Final Overtime Rule Workshop For Cities and Towns 1:30 pm—3:00 pm
(Registration starts at 1:00 pm)
Friday, December 13, 2019 NHMA Offices 25 Triangle Park Drive, Concord On September 24, 2019, the U.S. Department of Labor (USDOL) announced a final rule issued under the Fair Labor Standards Act (FLSA) to allow 1.3 million workers to become newly entitled to overtime by updating the earnings thresholds necessary to exempt executive, administrative or professional employees from the FLSA’s minimum wage and overtime pay requirements. The new final rule becomes effective January 1, 2020, less than three months away! Join Steven McKinney, the Community Outreach Specialist for the Northern New England District Office of the United States Department of Labor, Wage and Hour Division (USDOL) who will discuss, among other requirements, the salary and compensation levels needed for workers to be exempt and review how nondiscretionary bonuses and incentive payments factor into the new rule.
Only $35.00 Registration Open! To register online, please visit www.nhmunicipal.org and click on the Calendar of Events.
Cancellation must be received 48 hours in advance. If cancellation is not received 48 hours in advance, NHMA will charge you $20 to cover workshop costs, including any meals. Questions? Please call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org www.nhmunicipal.org
NOVEMBER/DECEMBER 2019
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The
HR
REPORT
Appeal of Preve: Employer Success at Supreme Court Due to Effective Investigation and Targeted Discipline By Anna B. Cole
A
lways perform an effective investigation and impose only reasonable, supportable discipline – these are oft-repeated maxims of HR professionals and employment attorneys alike. While investigations and targeted discipline take time (and often cost money), they are essential if an employee challenges an employer decision. We often find examples in case law of the negative consequences that can result when employers fail to live up to these HR principles. However, the New Hampshire Supreme Court’s recent decision in Appeal of Preve effectively demonstrates the defensive value of spending time and money early in a disciplinary process. In Preve, the employer’s effective investigation and appropriately focused discipline was used to undermine the disgruntled employee’s assertion that the employer’s actions were the result of unlawful retaliatory animus. In October 2017, after an incident at the Circuit Court in Concord, the Epsom Police Chief believed that a particular attorney posed a risk to his officers and determined that a complaint should be filed against the attorney. The Court found that the Chief searched the police department’s database for any reports that referenced the attorney or his family, regardless of whether the attorney or his family members were included in the report as a witness, victim, or accused. The Court further found that the Chief prepared a letter of complaint and attached all of the information from the database search without redacting sensitive information, such as social security numbers, addresses, or dates of birth, and filed it with the Judicial Conduct Committee. (Note: The complaint should have been filed with the Professional Conduct Committee, which oversees attorneys, not the Judicial Conduct Committee, which oversees judges). On October 24, 2017, after learning of the complaint, the involved attorney threatened to sue the Town alleging that the Chief ’s conduct, including his disclosure of the attorney’s and his family’s sensitive information, was criminal. The Town 32
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immediately hired Municipal Resources Inc (MRI) to investigate whether the Chief ’s conduct violated any criminal statutes and instructed him not to refile the complaint with the Professional Conduct Committee. In its investigation report, MRI concluded that some of the Chief ’s actions were improper and may have violated certain statutes. Based on MRI’s findings, the Town disciplined the Chief and directed him to attend training. In its disciplinary letter, the Town focused on the Chief ’s decision to use the police department’s database to gather the information and his failure to redact the information before including it in his complaint. The Town further stated that the Chief ’s conduct potentially violated certain criminal statutes, as well as the Town’s Code of Ethics, and potentially exposed the Town to civil liability. After exhausting his appeal rights before the Town, the Chief filed a complaint with the New Hampshire Department of Labor (DOL) asserting that the Town disciplinary action violated the New Hampshire Whistleblowers Protection Act (Act). After a hearing, the DOL determined that, although the Chief ’s report constituted protected activity under the Act, the Chief failed to present evidence that “suggests animus on the part of the [Town] or retaliation based on the [Chief ’s] protected reporting.” Instead, the DOL noted that, The [Town], from the very beginning of this issue, focused on the potential impropriety and/or criminality of the [Chief ’s] actions. [The Town] made no reprimand or discipline simply because the [Chief ] reported [the attorney] to the JCC . . .. [The Town] hired a third party to investigate the [Chief ’s] actions. As a result of the report issued by MRI for improper actions and potential criminal conduct on the part of the [Chief ], the [Town] disciplined the [Chief ]. On appeal, the New Hampshire Supreme Court upheld the DOL’s decision and found that it was supported by sufficient evidence to conclude that the “Town’s concerns regardwww.nhmunicipal.org
ing the potential impropriety of the [Chief ’s] inclusion of private information obtained from the Town’s confidential database with the complaint were the primary motivation for the discipline,” not retaliation for engaging in protected activity under the Act.
sulting in discipline. As in the Preve case, regardless of the motives that a disgruntled employee may attribute to the employer, these steps will help the employer ensure that, if called upon, they can demonstrate the discipline has a legitimate basis.
As the decision makes clear, the Town’s careful and thoughtful handling of the incident ultimately paid off. The Town was patient and measured in responding to the attorney’s complaint and expended resources to obtain an independent investigation. This leads us to the final HR maxim – Never be in a hurry to discipline. Take the time necessary to get the right investigator involved, allow the investigator the time required to timely and effectively complete the investigation, make your disciplinary determination base on the investigator’s findings, and then be clear in your communication with employees about what conduct is re-
Anna Cole is a member of DrummondWoodsum’s Labor and Employment Group. Her practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2019 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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Legal
Q and A 2019 Election Law Update By Steve Buckley and Natch Greyes, NHMA's Legal Services Team The 2019 legislative session saw the resolution of the issues surrounding the process for postponing town meeting and newly adopted SB 104 clarifies how that process works. In addition, several other important changes to the state election laws were signed into law. These changes affect how local election officials run their contests and give a preview for changes on the horizon. Let’s talk about the changes. Q. Let’s say that the recent trend of March snowstorms continues. How do we postpone town meeting? A. This year’s SB 104, an NHMA Policy Bill, clarified the process for a moderator to postpone either the deliberative/ business session or the official ballot voting (election) session of a town meeting. SB 104 modified RSA 40:4, 40:13, 669:1, and several other statutes. The moderator may postpone either session if the National Weather Service has issued a weather event warning and the moderator believes the event may cause the roads to be hazardous or unsafe, or if an accident, fire, natural disaster, or other emergency renders use of the meeting location unsafe. The moderator must consult, to the extent practical, with certain other town officials before deciding to postpone; and in the case of postponement of an official ballot voting session, the moderator must notify the secretary of state within two hours of the decision to postpone. If the official ballot voting session is postponed, it must be rescheduled to the Tuesday two weeks following the originally scheduled date. In the case of a school district or village district election that is coordinated with town elections in two or more towns, the moderators of the towns involved must consult with each other, and the election may be postponed only if a majority of the moderators vote to postpone. The new law defines the terms “business session,” “deliberative session,” and “official ballot voting day,” and contains special provisions for the use of absentee ballots at 34
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postponed elections. It also allows for the postponement of city elections in the same manner as town elections. Q. What about absentee ballots? Were any laws involving them changed? A. Yes, the list of persons who may deliver an executed absentee ballot to the town or city clerk was expanded by HB 531, modifying RSA 657:17 and :24. In addition to the voter’s spouse, parent, sibling, or child, an absentee ballot may now be delivered by a grandchild, father- or motherin-law, son- or daughter-in-law, stepparent, or stepchild. It may also be delivered by the administrator or a designated staff member of a nursing home or residential care facility where the voter resides, or by a person assisting a blind or disabled voter who has signed a statement on the affidavit acknowledging the assistance. Q. Has the legislature given any thought to making ballots more accessible to the blind or disabled? A. In light of the settlement agreement between the U.S. Department of Justice and the City of Concord under the American’s with Disabilities Act, the legislature passed HB 539 which established a legislative committee to study the potential use of the Accessible Ballots technology in municipal elections, the availability of and access to appropriate hardware and software, municipal administration of the technology, municipal interest in using the technology, legal conflicts to the use of the technology, and other appropriate issues. The committee is also charged with preparing generic implementation and application procedures for municipalities to follow if it determines that the technology can be used efficiently and effectively. The committee is to report its findings and recommendations by November 1, 2019. The U.S. Department of Justice initiated an investigation in www.nhmunicipal.org
2015 in response to a voter complaint that the City of Concord failed to provide a blind person with an accessible voting system that offered privacy and independence in local elections and, instead, offered only a paper ballot and assistance in completing the ballot. The U.S. DOJ maintained that the City’s failure to provide an accessible ballot to a person who is blind or vision impaired denied qualified individuals with disabilities equal access to participate in the City’s Election, in violation of Title II of the ADA and its implementing regulation. 42 U.S.C. § 12132; 28 C.F.R. §§ 35.130, 35.160. Although the settlement is only binding on Concord, presumably U.S. DOJ would apply the same standard to every municipality. If the U.S. DOJ were to sue a New Hampshire municipality in U.S. District Court and a judgment was rendered in favor of U.S. DOJ, that standard would be binding on all municipalities in New Hampshire.
www.nhmunicipal.org
Q. Speaking of voting and balloting issues, how do election officials determine the intent of the voter when the voter did not follow instructions relative to marking the ballot? A. The law now states that for any vote cast at a town meeting, every ballot must be counted if the intent of the voter can be determined, regardless of whether the voter followed instructions relative to marking the ballot provided before the vote thanks to HB 146, which added RSA 40:4-g. Q. I understand that changes have been made on how a town votes to adopt SB 2, the Official Ballot Referendum Form of Town Meeting? A. SB 2 is no longer adopted on the official ballot. Thanks to HB 415, modifying RSA 40:14, the question to
adopt SB 2 is placed on the warrant for action at the business session of the annual meeting. It must be voted on by ballot (but not official ballot), and polls must remain open and ballots accepted for at least one hour following the completion of discussion on the question. A three-fifths majority is still required to adopt the proposal. The process for rescinding SB 2 has not changed—it still must be voted on by official ballot. Q. Is there anything else that we should be aware of regarding election law legislation? A. Yes, we are still waiting (as of this writing) for a court ruling on the implementation of 2018’s HB 1264 which is being challenged in U.S. District Court by the New Hampshire Chapter of the American Civil Liberties Union and the New Hampshire Chapter of the Democratic Party.
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LEGAL Q&A from page 35 HB 1264 removed the phrase “for the indefinite future” from the definition of both “Resident; Inhabitant” and “Resident” under RSA Chapter 21. At the time of its passage it was described it as an attempt to clear up confusion about who’s eligible to vote here and to bring New Hampshire’s laws more in line with other states. However, recent press reports have indicated that this change has caused some confusion among voters, election officials and other political groups as they prepare for upcoming elections. In addition, attorneys representing the state on behalf of the New Hampshire Department of Justice have represented to the U.S. District Court that the change does not have an impact on any election law. It is hoped that the federal courts will clear up any confusion well in advance of the presidential primary
although trial is not scheduled to commence until mid-January. In addition, the court order that blocked the enforcement of the civil and criminal penalty provisions of 2017’s SB 3, Laws 2017, Chapter 205, remains in effect. SB 3 added additional language to RSA 654:2 and related statutes governing domicile for the purposes of voter registration. In October 2018, after suit was brought to block its implementation, the NH Supreme Court determined that SB 3 would be effective for the 2018 elections, but a stay was issued post November 6, 2018. Trial in that matter is now scheduled for December 2019 in Hillsborough Superior Court’s Northern District.
NH Aug. 14, 2018) effectively deleted Paragraph III of RSA 659:50, containing a signature match requirement for absentee ballots. Unfortunately, the legislature did not amend RSA 659:50, III this session to reflect that decision. As such, moderators need to be aware that RSA 659:50, III is unconstitutional and cannot be enforced. Stephen Buckley is Legal Services Counsel and Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association. They may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
Lastly, the decision in Mary Saucedo et al. v. William Gardner, Secretary of State, No. 2018 DNH 160 (Dist. Ct.
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NEW HAMPSHIRE TOWN AND CITY
12/10/18 3:43 PM
www.nhmunicipal.org
Regulating Short-term Rentals in New Hampshire Wednesday, November 20, 2019 12:00 pm—1:00 pm
Upcoming Webinars NHMA will be hosting two webinars in November and December for members of the New Hampshire Municipal Association.
How to regulate home-sharing and short-term rentals has become one of the hottest topics among city and town officials across New Hampshire. Many municipalities continue to grapple with the positive and negative consequences of increased “tourism” in their residential settings. Join NHMA’s Government Affairs Counsel Cordell Johnston and Municipal Services Counsel Natch Greyes as they discuss the legal bases for regulating short-term rentals and different approaches to regulation. These may include zoning, site plan review, building and fire code enforcement, parking and noise ordinances, and nuisance actions. This webinar is open to members of NHMA and will be of interest to governing bodies, land use board members, planners, building inspectors, code enforcement officers, and anyone else involved in land use regulation.
What Municipal Officials Need to Know About Cable TV Franchising Today! Wednesday, December 18, 2019 12:00 pm—1:00 pm This summer the Federal Communications Commission (FCC) voted to make dramatic changes to cable franchise agreements, many of which are managed by municipal governments. These changes may have serious negative impacts of cities and towns that collect franchise fees from cable operators.
For details and registration information, visit www.nhmunicipal.org under Calendar of Events Questions? Call 800.852.3358, ext. 3350, or email NHMAregistrations@nhmunicipal.org.
www.nhmunicipal.org
This webinar will cover the basics of what you need to know for negotiating a franchise agreement with your local cable TV company. This includes a review of key features of cable television franchise agreement, how your cable television franchise may affect broadband in your community, as well as how the FCC’s recent order on cable television franchising may reduce franchise fees and formerly “free” services in New Hampshire communities. Join DTC Lawyers Katharine B. Miller and Brendan A. O’Donnell who will review these and other key issues including guidance on legal considerations when negotiating cable franchise agreements or renewals.
NOVEMBER/DECEMBER 2019
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Court
Update
By Stephen C. Buckley, Legal Services Counsel and Natch Greyes, Municipal Services Counsel
Now available online: August Wetland Regulation May be Included in Natural Resource Protection Rules; Local Wetland Protection Rules not Preempted; Board Procedures not Subject to Strict Scrutiny Denis Girard v. Town of Plymouth, New Hampshire Supreme Court No. 2018-0495, 08/30/2019 Direct Evidence that Retaliation Played a Substantial Role in the Challenged Employment Decision Needed Before Court Review of Whistleblower Claim Switches from “Pretext” to “Mixed Movtive” Appeal of Wayne Preve, New Hampshire Supreme Court No. 2018-0675, 08/22/2019
?
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NAME
THAT
TOWN OR
CITY
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? ?
Name the city or town that is the only town incorporated in New Hampshire to be owned by one person, John Tufton Mason. It houses Federal Corner, Melvin Village, Mirror Lake, Union Wharf, and Abenaki Tower. John Mason was heir to the Masonian Claim, the undivided lands of northern New Hampshire, which he sold to a group of Portsmouth merchants in 1746. These merchants were thereafter known as the Masonian Proprietors. They disposed of the land via grants to prospective settlers prior to the Revolution. When you have figured out the answer, email it to tfortier@nhmunicipal.org. The answer will appear in the January/February 2020 issue. ANSWER TO PHOTO IN SEPTEMBER/OCTOBER 2019 ISSUE: The photo on page 38 in the last issue of New Hampshire Town and City magazine is of the town offices serving the Town of Holderness. Thanks to all our members who responded with the correct response, including Marjorie Roy (Andover); Sharon Davis (Campton); Marshall Buttrick (Greenville); Boyd Chivers (Candia); and Bill Herman (Auburn).
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
— This Moment in NHMA History — 31 years ago…. A 1987 NHMA survey found many municipal leaders frustrated by burnout and harassment. In response to this problem, NHMA instituted the Municipal Volunteer Awards in 1988. Hundreds of local officials have subsequently been recognized by this annual recognition for the contributions they had made to their cities or towns. Unfortunately, this awards program was discontinued in 2014.
In 1988, NHMA instituted an Annual Report Contest and participating municipalities were grouped into five categories, based on population, for judging and the top three reports in each category received awards. Basic information and statistics accounted for 65% of the points given for annual reports, while 35% went for creativity and reader appeal. This contest was also discontinued in 2014.
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TD Bank, N.A.
www.nhmunicipal.org
NOVEMBER/DECEMBER 2019
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New Hampshire Town and City
2019 Index of Featured Articles Affiliate Member Spotlight New Hampshire Building Officials Association............................................................................................................................................................................Jan/Feb....................... 47 New Hampshire Government Finance Officers Association.........................................................................................................................................................Mar/Apr...................... 35 New Hampshire Associaton of Conservation Commissions.........................................................................................................................................................July/Aug...................... 29 New Hampshire Association of Regional Planning Commissions................................................................................................................................................Sept/Oct..................... 41 New Hampshire Planners Association..........................................................................................................................................................................................Sept/Oct..................... 40 Budget and Finance State Aid to Municipalities: Understanding Where We’ve Been and Where We’re Heading.........................................................................................................Jan/Feb....................... 10 Warrant Article 101: The Basics of Warrant Article Origin, Content, Legality and Amendment.................................................................................................Jan/Feb....................... 15 Financial Planning for Elected Offiicals........................................................................................................................................................................................Jan/Feb....................... 21 Governance Excellence ini Local Government: Building on Commitment, Civility and Cooperation/Riggins Rules......................................................................................Mar/Apr........................ 8 Crafting Rules of Procedure for Your Public Body........................................................................................................................................................................Mar/Apr...................... 13 How to Really Listen to Others....................................................................................................................................................................................................Mar/Apr...................... 17 25 Tips for Newly Elected Local Government Officials................................................................................................................................................................Mar/Apr...................... 18 15 Tips to Being an Active and Effective Municipal Advocie in the Legislature............................................................................................................................Mar/Apr...................... 20 What is Your Community’s Capacity to Solve Problems and Thrive?...........................................................................................................................................May/June.................... 24 Top 10 Things You Should Know About Town Meeting..............................................................................................................................................................Nov/Dec..................... 11 HR Report Local Governments Deserve Our Support....................................................................................................................................................................................Jan/Feb....................... 36 A Cautionary Tale: Public Employee Free Speech Rights Under New Hampshire Law................................................................................................................May/June.................... 26 Workplace Violence......................................................................................................................................................................................................................July/Aug...................... 31 RSA 159:26 Re-Revisted: Court Opinion Finds Public Employer May Prohibit Employees from Possessing Firearms in Workplace..........................................Sept/Oct..................... 33 Appeal of Preve: Employer Success at Supreme Court Due to Effective Investigation and Targeted Discipline............................................................................Nov/Dec..................... 32 Internet Technology Cybersecurity: Best Practices for Municipalities............................................................................................................................................................................July/Aug...................... 16 Prioritizing Your Cybersecurity Efforts During Election Season...................................................................................................................................................Nov/Dec....................... 8 Land Use and Environment The State Perspective: Drinking Water and Groundwater Standards for PFAS in New Hampshire.............................................................................................May/June...................... 8 NHDES Rolls Out New Wetlands Permit Mapping Tool............................................................................................................................................................May/June.................... 12 An Update on the Volkswagen Settlement....................................................................................................................................................................................May/June.................... 14 “Recycling Still Rules!” But the Rules “They are a Changing”.....................................................................................................................................................May/June.................... 16 Protecting Water Quality with Septic System Rules......................................................................................................................................................................Nov/Dec..................... 14 Legal Questions and Answers Annual Town Meeting - How Do We Educate the Voters?...........................................................................................................................................................Jan/Feb....................... 44 Legal Services Department: 2018 Year-in-Review.........................................................................................................................................................................Mar/Apr...................... 36 What is the Role fo Municipal Conservation Commissions in Wetlands Permitting?..................................................................................................................May/June.................... 32 The Rockets’ Red Glare................................................................................................................................................................................................................July/Aug...................... 34 What Municipalities Need to Know About “Workforce Housing”...............................................................................................................................................Sept/Oct..................... 34 2019 Election Law Update...........................................................................................................................................................................................................Nov/Dec..................... 34 Legislative Bills That Are Not Going Away....................................................................................................................................................................................................Sept/Oct..................... 26 Miscellaneous A Special Tribute to Judy Silva......................................................................................................................................................................................................Jan/Feb....................... 24 Delivering Critical Resources to New Hampshire Communities..................................................................................................................................................May/June.................... 20 I Saw the Sign...............................................................................................................................................................................................................................Nov/Dec..................... 28 Planning and Local Land Use The NH Office of Strategic Initiatives: Planning Division - Where We Came From and What We Do......................................................................................Sept/Oct..................... 12 The State of Local Land Use Regulations.....................................................................................................................................................................................Sept/Oct..................... 15 Is New Hampshire Ready for Complete Streets............................................................................................................................................................................Sept/Oct..................... 18 The NH Flood Hazards Handbook for Municipalities: A New Resource to Help Your Community Prepare for, Respond to, and Recover from Floods...........Sept/Oct..................... 20 When is a House a Hotel..............................................................................................................................................................................................................Sept/Oct..................... 22 Demystifying Municipal Agreements Under RSA 53-A...............................................................................................................................................................Nov/Dec..................... 26 Public Safety How it Works: The Mechanics of Firefighter Cancer Presumption in New Hampshire...............................................................................................................July/Aug........................ 8 Best Practices: Are You Protecting Your Firefighters?.....................................................................................................................................................................July/Aug...................... 11 NHARPCs Report Bike Share in New Hampshire: Pedal-Powered Progress is Afoot..................................................................................................................................................Jan/Feb....................... 32 How GIS is Transforming Data in Actionable Solutions..............................................................................................................................................................Mar/Apr...................... 26 Local Regulation of Agriculture Toolkit........................................................................................................................................................................................May/June.................... 31 Growing Younger: What are Communities Doing to Reverse the Aging Population Trend?........................................................................................................July/Aug...................... 33 Public Health Planning - A Sign of the Times..............................................................................................................................................................................Sept/Oct..................... 42 NLC Report US Census and Talking Points......................................................................................................................................................................................................Jan/Feb....................... 40 Dillon’s Law versus Home Rule....................................................................................................................................................................................................Mar/Apr...................... 32 Rethinking Recycling: How Cities Can Adapt to Evolving Markets.............................................................................................................................................May/June.................... 30 Micromobility in Cities: A History and Policy Overview.............................................................................................................................................................July/Aug...................... 26 New NLC Report Reveals Solutions to National Housing Crisis.................................................................................................................................................Sept/Oct..................... 46
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NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
Statement of Ownership Management, and Circulation (Required by 39 U.S.C. 2685)
New Hampshire Town and City (Publication Number: 379-620) is published bi-monthly (Jan/Feb, Mar/Apr, May/Jun, July/Aug, Sept/Oct, Nov/Dec) at the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, NH 03301. The editor/managing editor of New Hampshire Town and City is Timothy Fortier and the publisher is the New Hampshire Municipal Association. Annual subscription price is $25.00 for members, $50.00 for nonmembers. Date of filing: September 30, 2019. Statement of Ownership is published in the November/December issue. Extent and Nature of Circulation:
Average No. Copies Each Issue During Preceding 12 Months
Actual No. Copies of Single Issue Published Nearest to Filing Date
a. Total number of copies (Net press run) 2,520 b. Paid Circulation (By Mail and Outside the Mail) 1. Mailed Outside-County Paid Subscriptions Stated 2,048.0 on Form 3541 (Include paid distribution above nominal rate, advertiser's proof copies, and exchange copies) 2. Mailed In-County Paid Subscriptions Stated on PS Form 306.0 3541(Include paid distributioon above nominal rate, advertiser's proof copies, and exchange copies) 3. Paid Distribution Outside the Mails Including Sales -------Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPSÂŽ 4. Paid Distribution by Other Class of Mail Through the -------USPS (e.g. First-Class MailÂŽ) c. Total Paid Distribution (Sum of 15b, (1), (2), (3), and (4)) 2,354 d. Free or Nominal Rate Distribution (By Mail and Outside the Mail) 1. Free or Nominal Rate Outside-County 90.0 included on PS Form 3541 2. Free or Nominal Rate In-County Copies 30.0 included on PS Form 3541 3. Free or Nominal Rate Copies Mailed at Other Classes -------Through the USPS (e.g. First-Class Mail) 4. Free or Nominal Rate Distribution Outside the Mail -------(Carriers or other means) e. Total Free or Nominal Rate Distribution 120
2,525
(Sum of 15d (1), (2), (3) and (4))
f. Total Distribution (Sum of 15c, and 15e.) g. Copies not distributed h. Total (Sum of 15f and g) i. Percent paid and/or requested circulation (15c/15f x 100) I certify that all information shown above is true and complete.
2,474 25 2,499 95.150%
2,050 238 --------------2,288 90 30 --------------120 2,408 50 2,458 95.017%
Timothy Fortier Editor www.nhmunicipal.org
NOVEMBER/DECEMBER 2019
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Periodical Postage Paid at Concord, NH
25 Triangle Park Drive Concord, NH 03301
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