January/February 2018
TownandCity N E W
H A M P S H I R E
In This Issue:
A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION
Voter Registration Law Changes: Senate Bill 3.............. 10 Recovering from Procedural Errors at Town Meeting.... 15 Town Meeting: It’s Not Over Until It’s Over.................... 19 NHMA Relies on Members to Help Shape Legislative Agenda............................................................. 21
Contents Table of
Volume LXI • Number1
January/February 2018
3 A Message from the NHMA Board Chair 5 Happenings 9 Upcoming Events
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Voter Registration Law Changes: Senate Bill 3
15
Recovering from Procedural Errors at Town Meeting
19
Town Meeting: It’s Not Over Until It’s Over
21
Staff Preps for Biennial Legislative Policy Process: NHMA Relies on Members to Help Shape Legislative Agenda
32 HR Report: Poll Workers: Volunteers or Employees? 34 Best Practice Series: Election Worker Best Practices 37 This Moment in NHMA History/Name That City or Town 38 NHARPC Report: Becoming Age-Friendly 40 Up Close and Personal in the Field: Ryan Aylesworth 41 Up Close and Personal in the Field: Robert Williams 42 Legal Q and A: Troubleshooting on Election Day
Cover Photo: Enfield Town Hall (Whitney Building). Photo by former bookkeeper, Wendy Huntley.
New Hampshire Town and City Magazine Staff
Executive Director Editor in Chief
Judy A. Silva Timothy W. Fortier
Contributing Editors Margaret M.L. Byrnes Barbara T. Reid Art Director
Scott H. Gagne
Production/Design
Scott H. Gagne
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 2018 New Hampshire Municipal Association
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JANUARY/FEBRUARY 2018
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New Hampshire Municipal Association
B OA R D O F D I R E C TO R S Brent Lemire - Chair Selectman, Litchfield
Donna Nashawaty - Vice Chair Town Manager, Sunapee
Shaun Mulholland - Treasurer Administrator, Allenstown
Candace Bouchard - Secretary Councilor, Concord
Scott Myers Immediate Past Chair City Manager, Laconia
Butch Burbank Town Manager, Lincoln
Ben Bynum Clerk/Tax Collector, Canterbury
David Caron Town Administrator, Derry
Shelagh Connelly Selectman, Holderness
Phil D’Avanza Planning Board, Goffstown
Elizabeth Dragon City Manager, Keene
M. Chris Dwyer Councilor, Portsmouth
Stephen Fournier Town Administrator, Newmarket
Asst. City Manager, HR Director, Keene
Bill Herman Town Administrator, Auburn
Priscilla Hodgkins Clerk/Tax Collector, New Castle
Patrick Long Alderman, Manchester
Harold Lynde Selectman, Pelham
Jim Maggiore Selectman, North Hampton
Carolyn McCarley Mayor, Rochester
Nancy Rollins Selectman, New London
John Scruton Town Administrator, Barrington
David Stack Town Administrator, Bow
Eric Stohl Selectman, Columbia
Elizabeth Fox
As of December 6, 2017
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www.nhmunicipal.org
Thank you to our 2017 Town & City Advertisers Avitar Associates Angell & Company CMA Engineers Drummond Woodsum Donahue, Tucker + Ciandella Dubois & King Gardner, Fulton & Waugh, PLLC Harriman Architects HEB Engineers, Inc. HealthTrust, Inc. IMCA-RC Melanson, Heath & Co, P.C. Mitchell Municipal Group, PA Municipal Resources, Inc. New Hampshire Municipal Bond Bank OTT Communications Peoples United Bank PFM Asset Management, LLC Preti Flaherty Primary Bank Primex Roberts & Greene, PLLC RPF Environmental Tighe & Bond, Inc. TD Bank Underwood Engineers Upton & Hatfield, LLP Vachon Clukay & Company, PC
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A Message from the
NHMA Board Chair Brent Lemire
A
s we close the books on 2017, we leave another year of significant change behind us. If you attended NHMA’s Annual Conference on November 15 and 16, you already know the theme was The Challenge of Change. Over 500 members and 107 businesses, state and federal agencies participated in this annual two-day education and networking event for member towns and cities. Special thanks to all our sponsors and exhibitors, for without their support and participation, this annual event would be impossible. As we look forward to 2018, I can’t help but reflecting on my years of public service, including stints as a Town Administrator, Selectman (currently serve as chair), Budget Committee member and chair, Firefighter/EMT and Fire Chief, and I can say with confidence that you can never stop learning how to be a better municipal official. Throughout my career, I have counted on the New Hampshire Municipal Association to educate and validate proper courses of action and to refresh and hone my skills in order to best serve our citizens and make the towns I serve great places to live and work. To those recently-elected city councilors, alderman and mayors, may I extend congratulations. You have an awesome opportunity ahead of you to affect change, but with tremendous responsibility. Although the task may seem overwhelming, know that you have outstanding support and resources in the NHMA. The information available and the in-house staff will help you learn how to survive and thrive in your important new roles. We will continue our efforts to work with the Legislature and Governor to promote the financial and legislative well-being of our cities and towns. During this past year we faced some issues that compromised local control and hope to reach amicable resolution to the outstanding concerns. Also, NHMA’s biennial legislative policy process is getting underway. We are now recruiting member volunteers to serve on one of our three legislative policy committees. These committees will review policy proposals submitted by local officials and affiliate groups and make recommendations on those policies, which will go to the NHMA Legislative Policy Conference to be held in September. If you are interested, please contact the Government Affairs staff at 800.852.3358 or governmentaffairs@nhmunicipal.org. Dues renewals for membership in NHMA were sent in late October. Your membership dues account for approximately 70% of the NHMA’s total revenues and are essential for us to continue to support our mission to serve as your unified voice. Thank you to those members who have already submitted payment. Your investment with us is greatly appreciated. Since many members pay their dues from the next fiscal year, we want to take this opportunity to thank you in advance for your commitment. The financial support you provide NHMA is critical to providing advocacy, training and legal guidance to strengthen New Hampshire’s municipalities. I personally want to thank all our members for their continued support and investment with us. In closing, all of us at NHMA remain dedicated to you, our members. I invite you to reach out to NHMA anytime for help. This is your Association and it exists solely to serve you.
Warmest regards, Brent Lemire NHMA Board Chair
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2018 Legislative series
Three Webinars and a Final Update The 166th Session of the New Hampshire General Court
Keep Your Finger on the Pulse! 2018 State Legislative Preview:
January Webinar
A 2018 Half-Time Report:
April Webinar
2018 Legislative Wrap-up:
May or June Webinar
The 166th session of the New Hampshire General Court began in January. Help your municipality plan an active and consistent role in NHMA’s efforts by participating in the 2018 Legislative Series Webinars and a Final Legislative Update.
Final Legislative Update: November 14 or 15, 2018 Annual Conference Radisson Hotel, Manchester
Get Involved in NHMA’s 2019-2020 Legislative Policy Process! If you are a local official in an NHMA member municipality and are interested in serving on one of the policy committees that reviews and make recommendations to the Legislative Policy Conference (September 2018), please contact the Government Affairs staff at 800-852-3358, ext. 3408, or governmentaffairs@nhmunicipal.org.
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www.nhmunicipal.org
HAPPENINGS NHMA Elects New Board Members At its recent annual meeting in November, NHMA’s membership elected four new members to its Board of Directors: Lisa Drabik, Assistant Town Manager, Londonderry; Katie Gargano, Clerk/Tax Collector, Franklin; Rick Hiland, Selectman, Albany; and David Swenson, Selectman, New Durham. In addition, six incumbent board members were re-elected including: Alfred “Butch” Burbank, Town Manager, Lincoln; Shelagh Connelly, Selectman, Holderness; Phillip D’Avanza, Planning Board, Goffstown; Elizabeth Fox, Assistant City Manager/HR Director, Keene; Bill Herman, Town Administrator, Auburn; and Harold Lynde, Selectman, Pelham. NHMA would like to give special thanks to outgoing board members, Ben Bynum, Clerk/Tax Collector, Canterbury; Elizabeth Dragon, former City Manager, Franklin (now City Manager in Keene); Priscilla Hodgkins, Clerk/Tax Collector, New Castle; Patrick Long, Alderman, City of Manchester; and Nancy Rollins, Selectman, New London. NHMA would like to give special thanks these individuals for their time and service on our board. Returning board members include: Candace Bouchard, City Councilor, Concord; David Caron, Town Administrator, Derry; Chris Dwyer, City Councilor, Portsmouth; Steve Fournier, Town Administrator, Newmarket; Brent Lemire, Selectman, Litchfield (Chair); Jim Maggiore, Selectman, North Hampton; Caroline McCarley, Mayor, Rochester; Shaun Mulholland, Town Administrator, Allenstown; Scott Myers, City Manager, Laconia; Donna Nashawaty, Town Manager, Sunapee; John Scruton, Town Administrator, Barrington; David Stack, Town Manager, Bow; and Eric Stohl, Selectman, Columbia. NHMA wishes to welcome our new and returning board members. NHMA’s Board of Directors is currently comprised of elected and appointed local officials elected by NHMA member municipalities. Board members oversee all NHMA programs and services to members, including legislative advocacy, legal and financial advisory services, training, publications and more.
NHMA Recognizes Judy Pearson for 10 Years of Service NHMA recognized Judy Pearson for her years of service to NHMA. Judy began her career with the Local Government Center where she worked in the Communications Department for 4½ years as a Program Associate and then as a Training and Events Associate. She then worked as a Risk Pool Information Specialist in the www.nhmunicipal.org
Benefits and Coverage Department at HealthTrust. Judy joined NHMA in 2013 as the Communications and Data Management Coordinator. For the past three years, Judy has been NHMA’s Member Relations Coordinator, where among other things, she works intensively with participating affiliate groups in our Association Management Services program. Judy also puts her creative talents to good use as she manages the layout
From left to right: Brent Lemire, Chairman, NHMA Board of Directors; Judy Silva, Executive Director; and Judy Pearson, Member Relations Coordinator.
and production of most of NHMA’s publications. Judy is also responsible for NHMA’s online shop and handles registrations and logistics for many of our workshops and events. Congratulations Judy. NHMA appreciates all you do for us!
Current Use Webinar Attracts a Crowd in Newbury Popcorn and drinks were served to a small crowd of about a dozen members who gathered at the Town of Newbury offices to hear their own Normand Benaiche, local assessor and Current Use Board Member, discuss generally current use assessment in New Hampshire during an October 18th webinar. Bernaiche was joined by NHMA’s Barbara Reid, Government Finance Advisor and former Current
Members watching Current Use webinar on October 18th featuring local assessor, Norm Benaiche.
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HAPPENINGS from page 5 Use Board Chair. 2018 marks the 50th anniversary of the constitutional authorization of the Current Use program in New Hampshire.
CLD Consulting Engineer’s Executive Vice President Chris Bean announced in August that CLD has been acquired by Fuss & O’Neill, a Connecticutbased consulting engineering firm. CLD will bring their expertise in highway and bridge design, traffic/ transportation services, municipal engineering and private development to add to Fuss & O’Neill’s 90 plus years of services and facilities engineering. Together, they will produce a company of nearly 350 professionals in eleven offices in New England. Congratulations to our friends at CLD!
From left to right: Brent Lemire, Chairman, NHMA Board of Directors; Judy Silva, NHMA Executive Director; and Maura Carroll, former Executive Director of New Hampshire Local Government Center and now Executive Director of the Vermont League of Cities and Towns.
Silva Recognized for 25 Years of Service At NHMA’s Annual Conference in November, Judy Silva was recognized and honored for her 25 years of service to this organization and local governments in New Hampshire. Silva was appointed Executive Director in October 2013, having served as Interim Executive Director since March 2013. Former Executive Director Maura Carroll trav-
eled from Vermont to share a few kind words in support of her colleague and long-time friend. Said Carroll, “I was fortunate enough to be part of the hiring team, and I knew from the beginning that she would be a great asset to NHMA. Judy is a fierce defender of local government, a thoughtful strategist, and devoted steward of the organization she has come to love.” We agree, Maura! Congratulations Judy for your 25 years of service!
2018 Webinar Series Kicks Off in January The 2018 Webinar Series is starting to take shape and here are some of the topics that NHMA will feature next year: • 2018 Legislative Preview • Preparing for Town Meeting • Municipal Social Media Policies and the First Amendment • Assessory Dwelling Units (ADU’s) Update • Trustees of Trust Funds Webinars are free to members and held on a monthly basis, typically held on a Wednesday from 12 noon to 1:00 pm. About 115 of NHMA member municipalities participated in our 2017 webinar series, which reached over 350 viewers from all corners of the state. The most
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popular webinar was on February 8 and featured a Rightto-Know Law Primer on Public Meetings. All webinars are still available for viewing accessed via the Member Toolbox on NHMA’s website, www.nhmunicipal.org. Back again will be 2018 Legislative Series with a Legislative Preview in January, a Half-time Report in April and a Legislative Wrap-up in June. It NHMA’s commitment to keeping its members informed and encouraging their participation in the legislative process. Please visit www.nhmunicipal.org for additional information about the webinars and the dates they will be available. If you have any suggestions or ideas for a webinar, please contact Tim Fortier at tfortier@nhmunicipal.org.
www.nhmunicipal.org
Town of Raymond, NH Proposed New Police Facility
Town of Hudson, NH New Fire Station
ARCHITECTURE ENGINEERING SUSTAINABLE DESIGN PLANNING INTERIOR DESIGN
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HARRIMAN.COM
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AUBURN
PORTLAND
PORTSMOUTH
BOSTON
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2018 Town & School Moderators Workshops Beginner & Advance Training Available
SB 2 Meeting Saturday, January 13
Snow date: Saturday, January 27
Traditional Meeting Saturday, February 17
Snow date: Saturday, February 24
9:00 a.m.—1:00 p.m. 25 Triangle Park Drive, Concord, NH Cost: $60.00
Registration and continental breakfast begin at 8:30 a.m. Attendees will receive a copy of NHMA’s 2018-2019 edition of Town Meeting and School Meeting Handbook. Topics include: The Basic Law of Town, Village District and School District Meeting Statutes governing the moderator’s duties at town, village district and school district meetings will be discussed along with issues related to warrant articles, the operating budget, secret ballot voting and other town meeting issues. These topics will be addressed in two concurrent sessions tailored for new and experienced moderators. Ample time will be devoted to questions and answers.
Strategies for Running a Smooth Meeting Moderators are faced with a challenging task: keeping meetings focused and fair to all participants, while effectively facilitating the flow of debate. This session will highlight suggested strategies for running respectful and efficient meetings. Sample Scenarios A series of sample scenarios will help attendees prepare for a wide range of meeting challenges. Customized Training for Beginner & Advanced Officials The workshop will be divided into beginner and advanced sections catering to the needs of newlyelected officials as well as seasoned veterans.
Register online at www.nhmunicipal.org under CALENDAR OF EVENTS. Online pre-registration required one week prior to each date. Questions? Call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org
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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.
JANUARY New Year’s Day (NHMA Offices Closed) Monday, January 1 Moderator’s Workshop for SB 2 Meeting NHMA Offices, Concord Saturday, January 13 9:00 a.m. – 1:00 p.m. Snow Date: Saturday, January 27 Webinar: 2018 State Legislative Preview Wednesday, January 17, 2018 12:00 p.m. – 1:00 p.m. Martin Luther King, Jr. Civil Rights Day (NHMA Offices Closed) Monday, January 15
www.nhmunicipal.org
Webinar: Preparing for Town Meeting Wednesday, January 24, 2018 12:00 p.m. – 1:00 p.m.
FEBRUARY Moderator’s Workshop for Traditional Town Meeting NHMA Offices, Concord Saturday, February 17 9:00 a.m. – 1:00 p.m. Snow Date: Saturday, February 24 Presidents’ Day (NHMA Offices Closed) Monday, February 19 Webinar: Election Law Changes in 2018 Wednesday, February 21, 2018 12:00 p.m. – 1:00 p.m.
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Voter Registration Law Changes: Senate Bill 3 By Stephen C. Buckley
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www.nhmunicipal.org
S
enate Bill 3 has introduced significant voter registration changes that must be implemented by local election officials. The law became effective on September 17, 2017 and provides additional procedures for voter registration. Through SB 3 the legislature has changed the definition of domicile by requiring that everyone seeking to register to vote must present documentary evidence of “a verifiable act or acts carrying out” their intent to be domiciled in New Hampshire.
Voter Registration Before SB 3 Under the New Hampshire Constitution every inhabitant of the state of who has reached the age of 18 years may vote in any election provided they have domicile in the town, ward, or unincorporated place where they wish to vote. RSA 654:1 defines domicile as “that one place where a person, more than any other place, has established a physical presence and manifests an intent to maintain a single continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government.” Before SB 3 those seeking to register to vote were required to fill out a voter registration form and provide reasonable documentation of identity, citizenship, and age. RSA 654:7 and 654:12, I(a), (b). If they did not have acceptable documentation in their possession when registering, they could attest to their identity, citizenship, and age, by filling out a “Qualified Voter Affidavit” (if they were registering before Election Day) or by executing a “sworn statement” on the voter registration form (if they were registering on Election Day). The applicant also had to provide reasonable documentation of domicile, which included any documentation “which indicates that the applicant has a domicile and intends to maintain a domicile” in New Hampshire. RSA 654:12, I(c). Certain forms of documentation bearing the registrant’s address, such as a New Hampshire driver’s license, resident vehicle registration, or federal photo ID, were presumptive evidence of domicile. RSA 654:12, II(a). In the absence of reasonable documentation, the applicant could complete and sign a “Domicile Affidavit,” or a sworn statement on the voter registration form if registering on Election Day. RSA 654:12, I(c).
SB 3 Requires a “Verifiable Act” to Establish Domicile Through SB 3 the legislature has modified the definition of “domicile” to provide that domicile is not just a question of fact and intention but it must also be demonstrated through a verifiable act or acts to carry out that intent. All persons seeking to register to vote must provide documentation that will verify their intent to claim domicile. A list of nine non-exhaustive acts is provided in SB 3 including: 1) “resiwww.nhmunicipal.org
dency” at an institution of higher learning; (2) renting or leasing an abode; (3) purchasing an abode; (4) obtaining a New Hampshire motor vehicle registration, driver’s license, or ID; (5) enrolling a child in a public school; (6) identifying the domicile address on a tax form or other government-issued ID or form; (7) providing the street address to the U.S. Post Office as their permanent address; (8) obtaining public utility service at the address; or (9) arranging for a homeless shelter or similar service provider to receive mail. Presence in New Hampshire for “temporary purposes” SB 3 adds a new term to the voter registration laws: “temporary purposes.” RSA 654:2, II (a) (b) & (c). Under this provision, those who are present in New Hampshire for temporary purposes do not gain domicile for voting purposes and therefore cannot vote. In addition, it is further provided that those who have been residing in a town or ward for 30 or fewer days are “presumed to be present for temporary purposes,” unless they prove they are domiciled. Temporary purposes include, but are not limited to, being present in New Hampshire for 30 or fewer days for the purposes of tourism, visiting family and friends, performing short term work, or volunteering or working to influence voters in an upcoming election. Voter Registration Divided into Two Categories, more than 30 days before an Election and within 30 days of an Election. Under SB3 the processing of voter registration applications is handled differently, with different forms and verification procedures, depending on when the voter registration applicant applies. Registering more than 30 days in advance of an election: Person who has Qualified Documents: When registering to vote more than 30 days before an election, a person who possesses one of the following Qualified Documents must present that document: a New Hampshire driver’s license, New Hampshire resident vehicle registration, a picture ID issued by the United States government that contains a current address or a government issued check, benefit statement. If the person has such a document, but does not bring it with them when they sought to register, they will not be permitted to register until they return with the required qualified document. RSA 654:12, I (c)(1)(A). Person who does not have Qualified Documents: Persons who attest they do not have any of the Qualified Documents may “present any reasonable documentaJANUARY/FEBRUARY 2018
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SENATE BILL 3 from page 11 tion of having established a physical presence at the place claimed as domicile, having an intent to make that place his or her domicile, and having taken a verifiable act to carry out that intent.” Presumably, but this is not clear in the statute, if the person must provide other reasonable documentation that person is not permitted to register until they return with the required reasonable documentation. RSA 654:12, (c) (1) (B). Official Voter Registration Forms: For persons registering to vote 30 days in advance of an election the NH Secretary of State has prepared a New Hampshire Voter Registration Form A that must be used. In addition, where the voter must return with reasonable documentation of presence in New Hampshire, the Secretary of State has provided a Verifiable Action of Domicile Form A. Registering within 30 days before an Election and on Election Day: Person who does not have Qualified Documents: Persons who seek to register within 30 days of an election, or on election day, who do not have Qualified Documents or other reasonable documentation of domicile in their possession may execute a sworn statement on the voter registration form where they acknowledge their duty to provide the missing documentation within a prescribed period of time. That sworn statement, which is page 2 of the new Voter Registration Form B provided by the Secretary of State provides as follows. The voter affirms under oath that they will return the missing domicile documentation within 10 days, or within 30 days if the town 12
clerk’s office is open fewer than 20 hours per week. The missing documentation can be either mailed or hand delivered to the town clerk. The voter should also be provided the Verifiable Action of Domicile Form B which has also been provided by the Secretary of State. Effect of Executing Voter Registration Form B for those who did not present Qualified Documents: Where the voter executed Voter Registration Form B, including page 2, that person is deemed registered to vote. However, if the voter does not provide the required Qualified Documents, or, other reasonable documentation of domicile, as they agreed to do, their name is subject to potential removal from the voter checklist by the Supervisors of the Checklist as provided in RSA 654:44. Person without Qualified Documents who does not have other reasonable documentation of domicile: A person who does not possess reasonable documentation of establishing domicile at the address claimed on the voter registration application may nonetheless register to vote by initialing the paragraph on the registration form acknowledging that domicile may be verified. The supervisors of the checklist shall attempt to verify that the person was domiciled at the address claimed on election day by of the following means: (i) Examining public records held by the town or city clerk, municipal assessing and planning offices, tax collector, or other municipal office that may house public records containing domicile confirmation; or (ii) Requesting 2 or more municipal officers or their agents
NEW HAMPSHIRE TOWN AND CITY
or state election officers or their agents to visit the address and verify that the individual was domiciled there on election day. In unincorporated places that have not organized for the purposes of conducting elections, county officers may be asked to perform this function; or (iii) Referring the registrant’s information to the secretary of state, who shall cause such further investigation as is warranted.
Pending litigation seeking to have SB 3 be declared unconstitutional under the New Hampshire Constitution: The League of Women Voters along with six voters have brought suit against the Secretary of State and the Attorney General seeking to have SB 3 declared to be contrary to the New Hampshire Constitution and enjoining the implementation of these election law changes. That case is pending in the Hillsborough County Superior Court – Southern District, Docket No. 226-2017-CV-0043. On September 12, 2017 the Court issued an order that left SB 3 intact except for the new voter fraud penalties. SB 3 imposes penalties of up to $5,000 and a year in jail for a voter who fails to provide Qualified Documentation or other reasonable documentation of domicile. The Court has enjoined the Secretary of State and the Attorney General from seeking civil or criminal penalties as required by RSA 654:12, I (c)(2)(A). The Court will not issue a final ruling on the constitutionality of SB 3 until after a full trial on the merits. That trial is presently scheduled to take place in April. Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be reached at 603.224.7447 or at legalinquiries@nhmunicipal.org. www.nhmunicipal.org
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Recovering from Procedural Errors at Town Meeting By Margaret M.L. Byrnes
O
ne of those things that will keep a municipal official or administrator awake at night is the fear of a procedural mistake during the time leading up to, during or immediately after a town meeting. Such a mistake could undo months or even years of work in preparing an important local ordinance, zoning change, collective bargaining agreement or bonded capital project for the voters. If the mistake requires going back to the voters again, there is always a possibility that the result once obtained could be reversed. With any large project, there are many different local officials who must work together to draft the initial request, and then perform a bewildering array of tasks in order to place the issue in final form before the voters. For example, assume the request is for a municipal bond issue to buy a piece of fire apparatus. This matter might involve the fire department, town administrative staff, the board of selectmen and the official budget committee, to get to the point where the town clerk prepares a ballot, the supervisors of the checklist update the voting list, and the moderator prepares for a written ballot. There will be professional advice from the equipment vendor, town counsel, bond counsel, Department of Revenue Administration, and perhaps the banking institution used by the town. If there has been a capital reserve fund used to save for a portion of the cost, the treasurer and/or trustees of trust fund will be involved. The local newspaper will have to publish various notices at the right time, and in the correct format. With all of these people involved, it is small wonder that errors occur. Thus, think of these projects as a team effort, and not the task of the single department that is most affected. www.nhmunicipal.org
The members of this team will often have years of experience with past projects—and the scars to prove it. However, past experience does not substitute for carefully researching and verifying the procedural steps specifically required for the current project. Not only is every project somewhat unique, it seems that every year brings some change in a federal or state statute, administrative rule, accounting standard or tax law that could impact the project. Do not assume that what worked for a similar project in the past will work in every instance. To help officials stay informed of changes, each year New Hampshire Municipal Association (NHMA) publishes a municipal calendar to alert municipal officials to the dates for notice and posting that pertain in that particular year, and the Legislative Bulletin and Court Update to highlight changes in applicable law. Even a team that is well prepared can be set back by an error or situation that is beyond their control. A notice properly delivered to a newspaper well in advance can still fail to make it to publication on the correct day. Inclement weather can force postponement of meetings, as occurred in 2017 with heavy snow on town voting day. During the meeting, the citizens can take an action that can’t be legally implemented, or a local official may in good faith give an incorrect opinion on a legal issue, or make a procedural mistake. How can these problems be corrected? Fortunately, in some instances, time does by itself heal all things. RSA 31:126 through 131 creates a “presumption of procedural validity.” For all forms of municipal legislation, whether it be a police power ordinance, zoning ordinance, JANUARY/FEBRUARY 2018
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ERRORS from page 15 or warrant article vote at town meeting, once five years have passed from the time of enactment, the legislation is conclusively presumed to have been validly enacted. No challenge to the enactment based on a procedural defect can be asserted after that time, although the ordinance may still be challenged for other reasons, such as its constitutionality. This is important to know at the research stage, because it means that officials currently in office may rely on the validity of past enactments, which often provide a basis for current projects. Five years can be a long time to wait and worry that a challenge might be made, especially if the enactment in question requires local officials to take some action in reliance upon the enactment. For example, if the enactment changes the method of choosing a local official, such as requiring the election of zoning board of adjustment members who were previously appointed, or changes the amount of a property tax exemption for the elderly, these are items that must be implemented within the next cycle of elections or collection of the property tax. In these cases, municipalities are supervised by state agencies that have statutory powers to oversee these local activities and direct local officials to take action. The secretary of state will direct local officials on questions relating to elections and ballots, and the Department of Revenue Administration will supervise the implementation of property tax exemptions. In issues such as these, local officials will not face the procedural dilemmas alone, and state officials may counsel local officials to proceed with their duties as set forth in the questionable enactment on the theory that a municipal enactment is presumed to be valid until it has been challenged. Local and state officials are willing to proceed in these cases because the courts have not always required technical perfection in the enactment of municipal 16
ordinances in instances where challenges to these enactments have been litigated. As Peter Loughlin, Esquire, explains in his work, Land Use Planning and Zoning, 15 New Hampshire Practice, section 5.15, the New Hampshire Supreme Court has adopted the “substantial compliance doctrine” which holds that minor deviations from the procedure required by an enabling statute will not invalidate an enactment if there was “substantial compliance” with that legislation. There are limits to this rule. If the defect serves to deprive the voters of meaningful notice of a proposed enactment or meaningful opportunity to be heard in debate, the enactment will be declared invalid. Each situation must be evaluated upon its own facts, but in general, if the defect is minor and technical, the enactment will probably survive. However, if the defect is such that the voters did not know they would be considering the issue due to lack of notice, or if required public hearings were never held, the ordinance will probably be invalidated. The notion of “probably will survive” still means that there is substantial risk of challenge if a defect is found, so the state legislature has provided other procedures to permit defects to be cured and enactments validated. Because municipalities in New Hampshire have only such powers as are granted to them by the legislature, the legislature has the power to correct or “legalize” certain types of defects arising out of a town meeting. There are limits to this power, both legal and practical. The legal limits arise when a procedure has been so deficient that constitutional requirements of due process, including adequate notice and the opportunity to be heard, are not met. Thus, even the legislature cannot validate a zoning enactment that was not properly noticed to the voters. Calawa v. Litchfield, 112 N.H. 263 (1972). The practical limits arise from the legislative process itself. Even though the
NEW HAMPSHIRE TOWN AND CITY
legislature meets in annual sessions, it has a great deal of other work to do, and these “special acts” filed to cure a local procedural defect may not be dealt with quickly in the legislative process. There is always the risk that either the House or the Senate will refuse to pass the bill, or the governor will refuse to sign the legislation. In order to avoid requests for validation bills, the legislature has enabled municipalities to correct minor procedural defects themselves by calling a special town meeting to ratify their action pursuant to RSA 31:5-b. (RSA 40:16 clarifies that SB2 municipalities may also use this option for legalizing procedural errors.) The authority is limited to correcting “minor procedural irregularities,” which specifically include failure to comply with statutory requirements regarding time or place of notice, vote, hearing or wording, or with any procedural act not contrary to the spirit or intent of the law. Presumably, this authority would be used most often in the first year after the enactment, since that is when the defects are usually detected, and the risk of challenge is greatest. Theoretically, it could be used in years two through four after enactment if that is when the problem is detected, but after the fifth anniversary of the enactment, a procedural challenge is barred by RSA 31:126 and the need to validate the enactment disappears. If the enactment in question does not result in the appropriation of money, then it is clear that the selectmen can call a special town meeting for the purpose of ratifying the action using the procedure found in RSA 31:5-b. If an appropriation was involved, then the issue arises whether the meeting is a special meeting for the purpose of appropriating money, which would require the prior approval of the superior court under RSA 31:5. There is no reported decision on this point, although in the case of Bedford Chapter– Citizens for a Sound Economy v. SAU #25, Bedford School District, 151 N.H. www.nhmunicipal.org
612 (2004), the New Hampshire Supreme Court made it clear that an article at a special school district meeting that had the effect of raising and appropriating money would be treated as a request for an appropriation, even if such words were not contained in the article. The language of RSA 31:5-b suggests that the procedure can be used to validate a minor procedural defect, even on an article involving an appropriation. However, as there is no clear case law to serve as a guide, NHMA suggests that you proceed with caution in such a situation. If you have the type of defect that is expressly covered in the language of RSA 31:5-b, the argument that superior court approval is not required is quite strong. As you move to other types of defects, especially defects in notice to the voters, the argument becomes considerably weaker. We suggest that you review the situation with town counsel, and if a bond is involved, then with bond counsel as well. If there is a major problem with notice to the voters, or other constitutionally based requirement, a special town meeting called under RSA 31:5-b will not serve to overcome the defect. If the issue can wait until the next annual town meeting, the best solution may be to regard the matter as a lesson learned, and wait to place the matter before the voters at the next meeting using the correct and required procedure. There are times when waiting is not an option. Examples include: a significant
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land use project may be proceeding in reliance upon a change in a zoning ordinance that could be invalidated; a capital project has commenced, and the defect is found after contracts are signed and work is underway; a piece of equipment has been ordered and received, and now payment must be made; or an article has passed, officials have acted in reliance upon it, and the Department of Revenue Administration has now invalidated the article. As noted previously, the selectmen have the authority to call a special town meeting to deal with any issue that does not involve an appropriation at any time during the year up to 60 days prior to the date of the next annual meeting. If an appropriation is required, the matter becomes more complex. Pursuant to RSA 31:5, the burden is placed upon the selectmen to petition the superior court and document that an emergency exists of sufficient importance to warrant the call of a special town meeting. Part of that proof is evidence that the situation was not foreseeable or avoidable. Notice must be provided to the Department of Revenue Administration, and copies of the petition for a special town meeting must be posted locally and published in a newspaper.
notes, it can take five to seven weeks to complete the steps and hold the meeting. The procedure involves the superior court, and virtually every elected official in the town, and involves a fair amount of work and expense to the town. It should be clear that local officials do not want to get to the point of petitioning for a special meeting in the absence of a true emergency or a truly unexpected circumstance. Therefore, we will close as we began, with a suggestion of careful research well in advance of presenting an issue to the voters, all in the hope that a good night’s sleep may be restored to the local official. Original article, written by Paul Sanderson, first appeared in the March 2006 issue of New Hampshire Town and City. This article has been revised and updated by Margaret M.L. Byrnes, Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
If the petition to hold the meeting is granted, there remain many steps to successfully calling and holding the special meeting. Peter Loughlin has provided a timetable and checklist of these items at Local Government Law, 13 New Hampshire Practice, section 230. As he
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Town Meeting: It’s Not Over Until It’s Over By Margaret M.L. Byrnes
D
espite the best preparation, things may go wrong at a town meeting. Notices were not posted in time, hearings were not held properly, critical articles necessary for the operation of municipal business did not pass. What to do now? Helpfully, there are a few options built into town meeting laws to address just this sort of situation.
Official Ballot Referendum (SB 2) Special Budget Meeting If the operating budget fails in an official ballot referendum (SB 2) municipality, the governing body has two options. One is to do nothing and allow the default budget to take effect as the new operating budget. The other is for the governing body to call a special meeting to consider a revised operating budget. RSA 40:13, X. This meeting does not require superior court permission but may not be used to address any issue other than a failed operating budget.
Collective Bargaining Agreement Special Meeting If the voters do not approve the cost items in a collective bargaining agreement, the governing body may call one special meeting to try again without obtaining superior court permission. In order to do this, however, the governing body must be sure to include the following language on the original article: “Shall (the municipality), if article ___ is defeated, authorize the governing body to call one special meeting, at its option, to address article ___ cost items only?” RSA 31:5, III. If a special meeting is being held on both an SB 2 revised operating budget and a collective bargaining agreement, those meetings must be combined.
Time If the mistake involved a procedural error, time may actually www.nhmunicipal.org
solve the problem. Under RSA 31:126 - :131, once five years have passed from the time of the vote, all forms of municipal legislation (ordinances and other articles passed by town meeting) are presumed to be “procedurally valid.” In other words, no challenge may be raised after that time based on an error in the procedure followed to pass it, although it may still be challenged for other reasons, such as its constitutionality.
Procedural Defect Meetings Of course, five years can be a long time to wait. RSA 31:5-b was enacted to allow towns to correct minor defects in town meeting procedure without having to seek court permission or special legislative validation. (RSA 40:16 clarifies that SB 2 municipalities may also use this option for legalizing procedural errors.) Under this statute, towns may call a special meeting without court permission to ratify the action that was taken by the original meeting. This tool may only be used to correct “minor procedural irregularities,” including the failure to comply with statutory requirements for time or place of notice, vote, hearing or wording, or with any procedural act not contrary to the spirit or intent of the law. So, for example, if the public hearing on zoning amendments was held a day or two late, or if the budget and warrant were posted a day or two late, the selectmen could call a special town meeting for the purpose of ratifying those items.
Special Town Meeting with Court Permission If the error involved an appropriation of money and was anything other than a minor procedural defect, the governing body will have to obtain superior court permission to hold a special meeting to address it. Under RSA 31:5, a special town meeting to appropriate money may only be held in two circumstances. Either 50 percent of all voters on the JANUARY/FEBRUARY 2018
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TOWN MEETING from page 19 checklist must attend the special meeting (which is not likely to occur), or the superior court must grant permission for the meeting in advance. The court cannot grant this permission unless it finds that an “emergency” exists. An “emergency” is “a sudden or unexpected situation or occurrence … of a serious and urgent nature, that
demands prompt or immediate action, including an immediate expenditure of money.” This might, for instance, include the failure of an article for the operation of a transfer station or solid waste compact (leading to a health and safety emergency), or the deletion of an appropriation for a statutorilyrequired function, such as the town clerk’s or tax collector’s operations.
Thank you for your support!
Original article, written by C. Christine Fillmore, first appeared in the March 2011 issue of New Hampshire Town and City. This article has been revised and updated by Margaret M.L. Byrnes, Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
Dues renewals for membership in the New Hampshire Municipal Association were sent in mid-October. Your membership dues account for approximately 70% of the Association’s total revenues and are essential for NHMA to continue to support our mission to serve as your unified voice. Thank you to those member municipalities who have already submitted payment. Your investment with us is much appreciated. Since many members pay their dues from the next fiscal year, we want to take this opportunity to thank you in advance for your commitment. The financial support you provide NHMA is critical to the Association’s mission of serving as the unified voice of cities and towns, providing advocacy, training and legal guidance to strengthen New Hampshire’s municipalities. NHMA thanks all its members for their continued support.
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Staff Preps for Biennial Legislative Policy Process NHMA Relies on Members to Help Shape Legislative Agenda
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s many municipal officials already know, legislative work takes place year-round. It is an ongoing process and staff members have already been working on laying the foundation for the next legislative biennium. The success of NHMA’s legislative efforts, in large part, depends on you. You work at the level of government that is closest to the citizen and you are uniquely situated to help legislators understand how pending legislation affects your city or town. As a first step, we are recruiting volunteers to serve on our three legislative policy committees. These committees will review legislative policy proposals submitted by local officials and NHMA affiliate groups and make recommendations on those policies, which will go to the NHMA Legislative Policy Conference in September. If you are a local official in an NHMA member municipality and are interested in serving on one of the policy committees, please contact the Government Affairs staff at 603-224-7447, or governmentaffairs@nhmunicipal.org. Each of the committees deals with a different set of municipal issues. The committees and their subject areas are as follows: • Finance and Revenue – budgeting, revenue, tax exemptions, current use, assessing, tax collection, retirement issues, education funding. • General Administration and Governance – elections, Right-to-Know Law, labor, town meeting, charters, welfare, public safety.
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• Infrastructure, Development, and Land Use – solid/ hazardous waste, transportation, land use, environmental regulation, housing, utilities, code enforcement, economic development. When you contact us, please indicate your first and second choices for a committee assignment. We will do our best to accommodate everyone’s first choice, but we do need to achieve approximately equal membership among the committees. We hope to have 15-20 members on each committee. There will be an organizational meeting for all committees on April 6. After that, each committee will meet separately as many times as necessary to review the policy proposals assigned to it—typically three to five meetings, all held on either a Monday or Friday, between early April and the end of May. The committee process will allow for in-depth review and discussion of policy suggestions so all aspects of each proposal, both positive and negative, will be examined. Based on that review, each committee will make recommendations for the adoption of legislative policies. Once the committees complete their work, their policy recommendations will be printed in Town & City and sent to every municipal member of NHMA. Each municipality’s governing body will be encouraged to review the recommendations and establish positions on them. Members will also have an opportunity to submit floor policy proposals in advance of the Legislative Policy Conference in September. At the Legislative Policy Conference, each member municiJANUARY/FEBRUARY 2018
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consideration. The deadline for submitting proposals is April 20, although earlier submission is encouraged. Please follow the instructions on the form for submitting your proposal.
PROCESS from page 21 pality is entitled to cast one vote on every policy recommendation submitted and on any floor proposals. Each policy proposal must receive a twothirds affirmative vote of those present and voting in order to be adopted as an NHMA policy.
We leave you, then, with two assignments, should you choose to accept them:
PROBLEM SOLVING It’s our strong point
• Contact the Government Affairs Staff (soon!) if you are interested in serving on a legislative policy committee (send us an email at governmentaffairs@nhmunicipal.org; and • Submit a legislative policy proposal (soon!) if you have an issue that you would like to be considered as part of this year’s policy process.
Every NHMA legislative policy begins with a proposal submitted by a local official, board, or committee. If there is a law affecting municipal government that you think needs to be fixed, or if you have an idea for how the functions of local government might be improved through legislation, this is your opportunity to make a change.
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New Hampshire Municipal Association 2019-2020 Legislative Policy Process
Explanation of Proposed Policy Submitted by (Name):
Date:
Title of Person Submitting Policy: City or Town:
Phone:
To see if NHMA will SUPPORT/OPPOSE:
Municipal interest to be accomplished by proposal:
Explanation:
A sheet like this should accompany each proposed legislative policy. It should include a brief (one or two sentence) policy statement, a statement about the municipal interest served by the proposal and an explanation that describes the nature of the problem or concern from a municipal perspective and discusses the proposed action that is being advocated to address the problem. Mail to NHMA, 25 Triangle Park Drive, Concord, NH 03301; or e-mail to governmentaffairs@nhmunicipal.org no later than the close of business on April 20, 2018.
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New Hampshire Municipal Assoc CHALLENGE
Change T H E
of
NOVEMBER 15 – 16, 2017 The Radisson Hotel • Manchester, New Hampshire
T
hank you to everyone who participated in NHMA’s Annual Conference this year. We heard many positive comments from attendees and sponsors/exhibitors alike. The faceto-face interaction of municipal officials, speakers, sponsors and exhibitors is one of the biggest benefits of attending this annual event. Hopefully you were able to connect with exhibitors and sponsors offering exciting programs and services giving you new ideas to implement when you get back to your own community. NHMA would like to thank all of our Board of Directors who helped staff behind the scenes over the two days.
Congratulations to our Conference Prize Winners Congratulations to lucky winner Katie Phelps, Planning and Community Development Clerk, Town of Boscawen, who was the winner of the Grand Prize which included one overnight stay at The Radisson Hotel in Manchester for two; massages for two; $100 VISA gift card; and complimentary breakfast (approximately a $500 value). Congratulations Katie! Congratulations also to Naomi Bolton, Town Administrator, Town of Weare, who won this year’s gamification contest, Engage!, as part of our Conference Mobile App. Naomi was awarded a $50 American Express gift card as the conference attendee with the highest point total in this social-interaction game at the end of the two-day conference. Thanks for playing along with us, Naomi!
Auburn’s Town Administrator, Bill Herman, Receives Prestigious Russ Marcoux Advocate of the Year Award
Bill Herman, Town Administrator, Town of Auburn, this year’s recipient of NHMA’s Russ Marcoux Advocate of the Year Award)
Each year, the Municipal Advocate of the Year award is given by NHMA staff based on our interactions with municipal officials during the legislative session. NHMA established this award in 2011 to recognize an elected or appointed local official(s) for his or her non-partisan contributions toward the advancement of NHMA’s legislative policy goals and for the advocacy of municipal interests generally.
In 2011, NHMA staff selected Russ Marcoux, town manager in Bedford, as the first-ever recipient of the Municipal Advocate of the Year award because Russ did all the things we want members to do in support of our legislative policy and to enhance the success of our legislative agenda. Russ passed away just days before the 2011 Annual Conference and he never knew we had created such an award or that he had been selected the first recipient. So in his honor, the NHMA board of directors renamed this recognition as the Russ Marcoux Municipal Advocate of the Year award. 24
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At its recent annual conference in November, NHMA recognized Bill Herman, town administrator in Auburn, with its 2017 Russ Marcoux Municipal Advocate of the Year award. In his presentation remarks, NHMA Government Affairs Counsel Cordell Johnston recognized Bill Herman for his consistent work in advancing NHMA’s legislative agenda. He noted that Bill has been an effective advocate for many years who frequently comes to Concord for legislative hearings, often bringing one of his selectmen with him. On important bills, Bill can always be counted on to contact his senator and representatives. Johnston mentioned one instance in which a single e-mail from Bill to his senator tipped the balance in getting the Senate to kill a bill that NHMA opposed. When the NHMA staff was overwhelmed with legislative work this year, Bill happily agreed to take full responsibility for shepherding one of NHMA’s policy bills through the legislature. He testified at the House and Senate hearings, spoke to legislators, and did everything necessary to get the bill to a committee of conference; the bill ultimately passed. www.nhmunicipal.org
ciation’s
76th Annual Conference
Bill also wrote op-ed pieces on several other important pieces of legislation that were published in major newspapers around the state. In presenting the award, Johnston noted that it was particularly fitting because when Russ Marcoux died in 2011, Bill Herman was elected to take his place on the NHMA board. He has been an outstanding contributor to the board and to NHMA’s legislative advocacy efforts ever since. Past recipients of this recognition are: 2011 Russell R. Marcoux, town manager, Town of Bedford 2012 James Michaud, assessor, Town of Hudson 2013 Don MacIsaac, selectman, Town of Jaffrey 2014 Julia N. Griffin, town manager, Town of Hanover 2015 Shaun Mulholland, town administrator, Town of Allenstown 2016 Portsmouth City Council, City of Portsmouth
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Northeast Delta Dental Office Systems of Vermont and New Hampshire Onsite Drug Testing of New England Pavers by Ideal Pennichuck Water Service Corporation People’s United Bank, N.A. Peter J. Riemer, LLC Plodzik + Sanderson Quality Insulation R.W. Gillespie & Associates, Inc. Ricoh USA, Inc. RMON Networks Roberts & Greene, PLLC RPF Environmental, Inc. Safe Road Services, LLC Sanborn Head & Associates, Inc. Sealcoating, Inc. Secured Network Services Stantec State of NH - Bureau of Education & Training Stone Hill Municipal Solutions TD Bank TFMoran, Inc. The Garland Company, Inc. The H.L. Turner Group Inc Tighe & Bond, Inc. Tri State Fire Protection Underwood Engineers, Inc. US Census Bureau USDA Rural Development VC3 VentilationUSA LLC VHB Virtual Towns & Schools Vision Government Solutions Weston & Sampson Engineers, Inc. Wright-Pierce
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AccuFund - BlumShapiro Angell & Company, LLC ARS Restoration Specialists Avitar Associates of N.E. Inc Bearing Point Wealth Partners, Inc. BMSI CAI TECHNOLOGIES Carsey School of Public Policy CheckmateHCM Citizen’s Bank CLD/Fuss & O’Neill Clean Energy Collective CMA Engineers, Inc. Commerford Nieder Perkins LLC Community Development Finance Authority Conway Office Solutions CVS Health CyberLock / TEC Solutions Inc. DIG SAFE Donahue, Tucker & Ciandella, PLLC Drummond Woodsum DuBois & King, Inc. East Coast Containers eCitySystems Encore Renewable Energy Energy Efficient Investments, Inc. Energy Management Consultants, Inc. Engraving, Awards & Gifts FairPoint Communications Federal Mediation and Conciliation Froling Energy FuelMaster/Syntech Systems, Inc. GDS Associates, Inc. GovDeals, Inc. GovOffice Web Solutions Graham and Graham, PC Granite State Rural Water Association Harriman HDR
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JOIN US FOR OUR 77TH ANNUAL CONFERENCE
Wednesday, November 14, 2018 Thursday, November 15, 2018 The Radisson Hotel, Manchester
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www.nhmunicipal.org
Annual MembershipReport By Judy A. Silva
I
am writing this article on the day before Thanksgiving, and I have much to be thankful for in 2017. I am thankful for the wonderful support NHMA has enjoyed over the year from our members, associate members, and local officials. I am thankful for the hardworking, committed, and resourceful staff who work at NHMA and support NHMA’s mission to serve its members. And having just held the 76th NHMA Annual Conference, I am thankful for the continued support from our sponsors and exhibitors, virtually all of whom said it was a great conference—that’s an assessment I share!
NHMA had a very full workshop and training schedule in 2017, with some new offerings added to the mix. We held all the traditional workshops: two Town and School Moderators (Traditional and SB2), six Local Officials Workshops, Local Welfare Workshop, two Budget and Finance Management Workshops, and the Municipal Law Lecture Series. We tried something different with the Law Lectures—holding two all-day sessions with three lectures on each day. We received some feedback that the format didn’t work for a number of people—so we will return to at least one set of evening lectures! Thank you for telling us!
We launched two new initiatives in 2017. First, NHMA partnered with the Drummond Woodsum law firm, which houses employment law experts Mark Broth and Anna Cole. Together, we reconstituted the Employment Law Hotline, through which any municipal member of NHMA can seek a complimentary consultation on employment matters. Employment matters can often be sticky, and we are thrilled to augment the benefits of NHMA membership with this valuable hotline service.
Along with the traditional NHMA workshops, we added several new ones, including an Employment Law Workshop, presented by Attorney Broth and Attorney Cole from Drummond Woodsum. Attorneys Cole and Broth also presented six mini-workshops around the state on Effective Approaches to Employee Discipline.
The second new initiative in 2017 was the production of A Guide to Open Government: New Hampshire’s Rightto-Know Law. The Right-to-Know Law is one of the most frequent topics of inquiries received by staff and we had made it a part of virtually every workshop we presented. It only made sense to compile all the information in one place, including appendices containing checklists and special issues. This new guidebook formed the basis for three workshops entirely on the Right-to-Know Law, which led to some special training on the Right-to-Know Law as it applies to law enforcement. www.nhmunicipal.org
In partnership with the NH Municipal Lawyers Association, we presented a Municipal Liability and Immunity Workshop, featuring state law topics from New Hampshire practitioners, and a federal law review from a D.C. attorney from the International Municipal Lawyers Association. Also new was a LEAN White Belt Workshop, presented in conjunction with the New Hampshire Bureau of Education and Training. We also presented two workshops on The Intersection of Land Use and Road Law—a new workshop using the 2015 update to the Hard Road to Travel Handbook. In 2017, we added a new staff member. Judith Pellowe joined NHMA in early February as our new Business AdJANUARY/FEBRUARY 2018
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REPORT from page 27 ministrator, and what a pleasure it has been to have all of our financial services performed in-house! Having that information at our fingertips has made NHMA much more nimble and efficient, and Judith is working to streamline our operations to reflect our new capabilities. NHMA now has a staff of 10, who provide an incredible array of services to local government. In addition to our workshops and publications, in 2017, we: • Expanded our Association Management Services program by adding several new affiliate groups, with more discussions in the works. We offer workshop planning, financial management, membership recordkeeping, etc. • Presented over 30 On Demand seminars—a significant increase from the year before. These are workshops that staff present in the field, to employees and officials from a single town or from neighboring municipalities, on specific topics, making it easy for local officials to attend training and ask questions in a small group setting.
• We produced 13 webinars, attended by nearly 600 people from 111-member municipalities, on subjects from legislative updates and the Right-to-Know Law to Municipal Volunteers, Best Practices for Background Checks, Current Use Assessing, and Conflicts of Interest. Surely something for everyone! We have also started partnering with others in the presentation of webinars to expand the availability of training through this convenient method. • We answered over 2,916 legal inquiries, either by phone or email, covering such topics as the authority of selectmen, planning board questions, the Right-toKnow Law, unanticipated revenue, roads and driveways, and much more. • It was a state budget year in the Legislature, and we followed that closely for any changes in state aid programs, as well as over 250 other bills of municipal interest. Please see the Final Legislative Bulletin for a full summary of those bills. • Finally, staff members were in high demand, speaking before a wide variety of groups who also serve municipal officials: Waste Water Treatment Operators training at the Department of
Environmental Services, the NH City and Town Clerks Association, several Regional Planning Commissions, the NH School Boards Association, the NH Government Finance Officers Association, the Library Trustees Association, UNH’s Technology Transfer Center (T2), the Northern New England Chapter of the American Planning Association (NNECAPA), and the Office of Energy and Planning (now the Office of Strategic Initiatives) spring land use conference. All of us at NHMA believe in local government and believe in local officials. We know it is not an easy job, and that you are on the front lines on many difficult issues. We are here to support you, so please let us know what you need, and we’ll do our best to provide it. For those of you in town government, we wish you a successful town meeting season, and we look forward to seeing all of you at some point in 2018. Judy A. Silva is Executive Director of the New Hampshire Municipal Association. She can be reached at 603.224.7447 or at jsilva@nhmunicipal.org.
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Has Your City or Town Ordered NHMA’s NEW Right-to Know Law Book? If not, it’s time to order NHMA’s new reference guide for public officials when confronted with the numerous legal issues surrounding New Hampshire’s Rightto-Know Law.
“Must-have” reference guide for every city and town !
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Includes Top Ten Compliance Tips Public Meeting & Governmental Records Posters Is it a Meeting Flow Chart Remote Participation Checklist And More!
The Right-to-Know Law (RSA Chapter 91-A) affects every aspect of local government in our state. Every board, committee, commission, and sub-committee in every town, city and village district in New Hampshire must comply with this law. As a result, all local officials and employees must understand the law and their responsibilities regarding both public meetings and governmental records.
Go to NHMA’s online store at www.nhmunicipal.org/shop to order your reference copy today!
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JANUARY/FEBRUARY 2018
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The
HR
REPORT
Poll Workers: Volunteers or Employees? By Anna B. Cole, Esq.
I
n any given year, innumerable local, state, and federal elections are being held across the country. These elections could not take place without the support of countless poll workers who assist local municipalities by counting ballots, supervising the checklists, assisting voters, etc. Questions are often raised regarding the status of these workers. Are they volunteers or employees? If they are otherwise employed by the municipality, is the time spent at the polling place “hours worked” for the purpose of minimum wage and overtime calculation? In general, individuals who perform services for an employer are considered employees and, unless they are otherwise exempt, are entitled to receive minimum wage for every hour worked and overtime compensation in accordance with federal and state wage and hour law. However, the Fair Labor Standards Act (“FLSA”) provides that “individuals performing volunteer services for units of State and local governments will not be regarded as ‘employees’ under the statute.” 29 C.F.R. 553.100 (emphasis added); 29 U.S.C. 203(e)(4). In order to be properly classified as a “volunteer” the individual must be voluntarily and without coercion performing “hours of service for a public agency for civic, charitable, or humanitarian reasons without promise, expectation or receipt of compensation for services rendered.” 29 C.F.R. 553.101(a), (c). Nevertheless, “volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.” 29 C.F.R. 553.106a). Accordingly, members of the public are allowed to volunteer as poll workers so long as they are providing such services voluntarily and so long as they do not expect to receive any compensation other than reimbursement for expenses or a nominal fee. For example, in one of the few court cases to address this subject, the Eighth Circuit Court of Appeals ruled that two election workers were properly classified as volunteers, and thus were not entitled to minimum wage, despite the fact that they had been paid $35.00 per day and $50.00 per day, respectively, for their service as election volunteers. Evers v. Tart, 48 F.3d 319, 320-21 (8th Cir. 1995).
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The FLSA also permits individuals who are otherwise employed by a public agency to provide volunteer services to that public agency so long as they otherwise qualify as a volunteer and so long as the volunteer services they perform are not the “same type of services” for which the individual is employed to perform for the public agency. 29 C.F.R. 553.101(d). Therefore, before allowing employees (especially non-exempt employees) to volunteer as poll workers, municipalities would be wise to carefully analyze any similarities between the employee’s regular work and the services they would be providing during the election. If the work is sufficiently dissimilar, then the municipality may be able to properly classify the hours spent at the polling place as volunteer hours and exclude them from the employee’s “hours worked” for the municipality. However, if the work is similar, then it is generally a best practice to err on the side of caution by treating the hours spent at the polling place as “hours worked” and including them in the municipality’s calculation of minimum wage and overtime for the workweek for that employee. In such cases, the employee would be paid either their regular hourly rate for the time spent working at the polling place or a separately agreed-upon rate. Either is acceptable so long as the employee agrees to the rate before the work is performed and so long as the employee receives at least minimum wage for every hour worked. Towns and cities across New Hampshire rely on poll workers to ensure that elections run smoothly. In advance of each election, municipalities should review their own ordinances, policies, and procedures to determine how it staffs its polling places and to ensure that its workers are properly classified and paid, if necessary. Anna Cole is an attorney with the 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 2017 Drummond Woodsum. These materials may not be reproduced without prior written permission.” www.nhmunicipal.org
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JANUARY/FEBRUARY 2018
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★
BEST PRACTICES ★
New Hampshire Municipal Association
Best Practices Series
★
BEST PRACTICES ★
Election Worker Best Practices The United States Election Assistance Commission has collaborated with local election officials to develop a series of six helpful tips for election management. Social media platforms such as Facebook, YouTube, and Twitter are being increasing used by election administrators to recruit, train, and stay connect with their force of election workers. Since quality poll workers are crucial to every election. these quick tips can help you recruit, train, and assign capable poll workers. 1. Recruit From a Variety of External Agencies Agencies, community organizations, and schools can be gateways to works with varied skill sets. 2. Use Technology to Connect Technology is a powerful and cost-effective tool for recruiting and staying in touch with current and potential poll workers. 3. Offer Training That Fits Poll workers’ responsibilities and skill sets vary. Consider the specific training needs of each individual, job, and jurisdiction. 4. Offer Training That Works Training experts indicate that lectures and presentations are not enough. Poll workers need interaction and hands-on scenarios. 5. Determine Staffing Needs Knowing the per-person capacity of each polling place and correctly predicting voter turnout allow you to deploy poll workers where and when they are needed. 34
6. Mobilize Your Poll Workers After your poll workers are recruited, trained, and assessed, they need to be sent to the right place at the right time.
lays out the information in a quickly accessible format, including the latest best practices, via social media formats and links to websites. This Manual covers how to recruit poll workers, how to train poll workers, how to retain election workers, and other management tips. There are checklists, training manuals, visuals, and links to the latest best practices. If interested in downloading this 2016 Best Practices Manual, please visit EAC’s website: www.eac.gov/electionofficials/election-worker-best-practices/.
In today’s fast-paced world the election administrator has little time for reviewing large amounts of content, resulting in the need to directly connect to information almost instantly. Recognizing this need, the US Election Assistance Commission updated the Election Worker Best Practices Manual in 2016 into four sections and
NEW HAMPSHIRE TOWN AND CITY
The US Election Assistance Commission (EAC) is an independent bipartisan commission created by the Help American Vote Act of 2002 (HAVA). EAC is charged with administering payments to states, adopting voluntary voting system guidelines, accrediting voting system test laboratories and certifying voting equipment, maintaining the National Voter Registration form, conducting election data research, and administering a national clearinghouse for information on election practices.
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Barbara Raths, CTP Senior Government Banking Officer, SVP 1750 Elm Street, Manchester, NH 03104 603-621-5801 • barbara.raths@peoples.com
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NHMA and Drummond Woodsum Announce New Free Member Benefit
Employment Law Hotline NHMA and Drummond Woodsum are pleased to announce the formation of the Employment Law Hotline, a free service now available to city and town members of NHMA!. The Hotline is available at no charge and Drummond Woodsum labor law attorneys will provide up to 1/2 hour of FREE legal advice per employment issue. Drummond Woodsum labor law attorneys are available to provide legal advice on matters including Title VII, Family Medical Leave Act, Americans with Disabilities Act, Fair Labor Standards Act, employee discipline, sexual harassment, wrongful termination and age, sex and race-based discrimination. What Can You Expect? Drummond Woodsum Hotline attorneys will be available to answer employment-related questions -before you act -- and will make every effort to have every call responded to within 24 hours by an employment lawyer. The Hotline attorneys will let you know if you are facing a potential liability and how to best proceed. Should a NHMA member using the Hotline seek advice on a specific matter, or should the question posed suggest circumstances that might give rise to liability, they will be advised to consult on that matter with legal counsel of their own choosing. Drummond Woodsum will keep confidential any information which it receives relative to the employment matter. Who Can Call the Hotline? The Hotline is a service available to only administrators, managers, department heads and elected officials from NHMA city and town members, and only concerning questions regarding employees subordinate to the caller. For example, the Hotline will not respond to inquiries from a department head regarding the authority of a town manager, or from a town manager regarding the authority of elected officials. Is There a Fee? The Hotline is FREE, available at no charge, to NHMA city and town members, and will provide up to ½ hour of legal advice per employment issue. It is anticipated that most general employment law questions can be answered in less time.
Got an employment issue? Before you act, call 603.623.2500 or email at ehotline@dwmlaw.com.
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NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
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NAME
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First granted as Monadnock No. 4 in 1752 by Colonial Governor Benning Wentworth, this was one in a line of eight towns settled by Scottish colonists. Incorporated in 1773 by Governor John Wentworth, the town was named for his cousin. Two early grantees were Matthew Thornton, signer of the Declaration of Independence, and James Reed, who would lead the 3rd NH Regt. at Bunker Hill. The community claims one of the oldest granite quarries in New Hampshire. Other industries included wood-working and yarn-making. The town’s picturesque common, together with twelve antique houses that surround it, are listed on the National Register of Historic Places. It is also home to Rhododendron State Park, a 16-acre grove of native rhododendrons that bloom in mid-July.
— This Moment in NHMA History — 32 years ago…. When city and town
officials were asked if they received NHMA’s publication, New Hampshire Town and City magazine, many members responded, “What magazine?” In turn, NHMA adopted a new member subscription policy for Town and City magazine which distributed the publication to municipalities based on population size and positions of priority within the locality. This distribution methodology, developed many years ago, is still in place today.
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JANUARY/FEBRUARY 2018
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NEW HAMPSHIRE ASSOCIATION OF REGIONAL PLANNING COMMISSIONS
This segment is another in a series highlighting NHARPC’s efforts to provide education on planning-related topics.
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Becoming Age-Friendly in Southern New Hampshire Communities Should be Designed for Ages 8 to 80 By Sylvia Von Aulock, Executive Director; Adam Hlasny, Transportation Planner; and Cam Prolman, Associate Planner Southern New Hampshire Planning Commission
W
hat would an Age-Friendly Community look like, what sort of services would be available, and how would residents of all ages be able to enjoy that community to its fullest? These are the sorts of questions that staff at Southern NH Planning Commission (SNHPC) is asking their fourteen communities within the Manchester area. In 2016, SNHP received funding through the Tufts Health Plan Foundation, NHDOT, AARP, and others to conduct age-friendly assessments in each community. These assessments sought to raise awareness and examine assets, opportunities, and roadblocks of quality of life for both seniors and millennials. We heard stories from young and old; people from the rural roads of Francestown and folks
new to the Manchester urban area. We heard stories that illustrate the needs of these seemingly differing generations. Stories like: I just retired and I have no idea what I’m going to do. There are no housing or transportation options in my town. What will I do when I can’t drive anymore? I don’t want to be isolated, but I still want to live in the town where I watched my family grow up. On the same tone, coming from a younger generation, we heard concerns like: “If you don’t drive, you can’t exist in this town.” Many shared that affordable housing was difficult to find, or that rural communities had little to attract millennials, especially good paying jobs.
What is your biggest concern as you age: Millennials – gray, Seniors – dark gray
NEW HAMPSHIRE TOWN AND CITY
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• Transportation was residents’ top concern. Generally speaking, seniors were concerned with being unable to get around when they can no longer drive themselves, and millennials desired transportation options. Walkable, bike-able neighborhoods were something all generations desired, but that are currently lacking in nearly all of SNHPC’s towns. • During the community assessments and the resident survey, many people claimed that there is not enough diversity in housing choices in their respective communities. Regardless of age, a common concern was in finding affordable housing, especially in rural communities. The more urban and larger suburban towns like Manchester, Goffstown and Derry tend to have more housing diversity and zoning which allows for more densely-built housing. Still, most seniors want to age-in-place but are concerned on multiple levels about how they might manage it. • There is no shortage of recreation opportunities in the region. Many residents find enjoyment in the region’s many walking or snowmobile trails such as those along Lake Massabesic in Auburn or Uncanoonuc Trail in Goffstown. Many town libraries and parks and recreation depart-
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ments provide opportunities for residents of all ages to participate in unique programming for all ages. Common roadblocks described included not knowing what was going on in town, especially once kids were out of the school system, not enough venues or room for expansion, and no senior center or place to connect with friends. • Most communities in the SNHPC region feel there are a lack of businesses and employment opportunities. Existing businesses may want to ask themselves, how is our business catering to the growing senior population? Furthermore, how are we attracting young talent to work in our industries? SNHPC is very interested in creating an age-friendly business network that considers accessibility and amenity elements as well as utilizing talents from both populations to grow local businesses. Then next phase of SNHPC’s Becoming Age-Friendly Program is underway, and the staff at SNHPC is hoping that the communities in their region and the state are interested. SNHPC has funding to assist three communities and ten local businesses to create age-friendly strategic plans that will address actions to improve transportation, accessibility, housing, engagement and other elements that would
assist the community in becoming age-friendly. If you’d like more information, please contact us, or check out the work of some of our partner organizations, who know a thing or two about healthy aging: • EngAGING NH: Learn about current issues important to older adults, subscribe to the FREE newsletter for monthly updates, or join and attend a committee on aging in your area • The NH Alliance for Healthy Aging (AHA): This is a statewide coalition of stakeholders focused on the health and well-being of older adults in NH. NH AHA currently has participation from over 170 organizations within the state. • AARP: The AARP Network of Age-Friendly Communities encourages states, cities, towns and counties to prepare for the rapid aging of the US population by paying increased attention to the environmental, economic, and social factors that influence the health and well-being of older adults. For much more information and detailed Phase I findings, including colorful and intriguing charts, please visit: http://www.snhpc.org/?page=granite_state To roll up your sleeves and work with us, please contact Sylvia von Aulock at 603669-4664 or svonaulock@snhpc.org.
JANUARY/FEBRUARY 2018
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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 Ryan Aylesworth, the relatively new Town Manager in the Town of Enfield.
TC: What is your biggest challenge in performing your duties as Town Manager? RA: My previous municipal management experience was in western Massachusetts (Berkshire County), and, over the course of the first six months as Town Manager in Enfield, I have learned a great deal about the “ins and outs” of the pertinent RSAs, case law, and regulations related to municipal finance, highways, public safety, water and sewer infrastructure, planning and zoning, and other key matters that shape the governance of municipalities in the State of New Hampshire. There will always be more relevant knowledge to acquire, but I have open lines of communication with NHMA staff, DRA, Town Counsel, and other trusted resources. I am also very fortunate to be surrounded by incredibly capable and dedicated employees, board members and other local officials who have served the community with distinction for many years.
Ryan Aylesworth
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: Give us an example of a problem you solved or a dilemma you faced and overcame in the line of duty. RA: One example I would point to is a significant operating deficit in the Town’s sewer fund. Although a number of factors have contributed to this issue, it was past administration’s aversion to raising user rates that ultimately resulted in expenses outpacing revenues. To eliminate the operating deficit over the course of the next five years, we will be working with a qualified consultant to complete a rate study and have extended the sewer system to reach an additional 130 residential customers beginning in January 2018. We are also actively evaluating the feasibility of constructing our own wastewater treatment facility (wastewater from Enfield’s municipal system is presently pumped to and treated by the City of Lebanon). TC: What are some of the most significant challenges and opportunities facing the community you serve? RA: Like many communities across the state, the Town of Enfield wants to encourage additional commercial and residential growth while at the same time staying true to the community’s heritage and rural character. Given Enfield’s proximity to Lebanon and Hanover (the Upper Valley’s primary population centers and home to Dartmouth-Hitchcock Medical Center, Dartmouth College and other larger employers), we believe that Enfield is positioned well to experience continued growth in the years ahead. Approximately 12 years ago Enfield established a tax increment finance (TIF) district with the goal of expanding the municipal water and sewer system along the US Route 4 corridor so as to encourage commercial growth (and a full-service grocery store in particular) in that area of Town. Although a small handful of new businesses have opened their doors as a result (and a new Jake’s Market & Deli is in the process of being built with the goal of opening within the next year), we are still a long way from achieving the level of commercial growth within the US Route 4 corridor that was envisioned. The Town also has an opportunity to acquire a substantial amount of shorefront property on Mascoma Lake from the NH DOT with the goal of establishing a new community park with a wide range of amenities. To minimize the impact on the municipal budget, all funds for land acquisition and capital improvements will be raised from a private fundraising campaign, which officially kicked off in December. Our hope is that establishing a new lakeside community park will help Enfield promote sense of place, take better advantage of one of its premier natural assets (Mascoma Lake) and help attract more new residents and visitors.
NEW HAMPSHIRE TOWN AND CITY
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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 Chief Robert Williams, Chief of Police for the Town of Barrington.
TC: What are your duties and responsibilities as Chief of Police? RW: As the chief of police, I am responsible for leading the police department by establishing goals and objectives, developing and implementing policies and procedures that meet today’s current contemporary law enforcement standards, and continuing to evaluate the effectiveness and efficiency of the department. I also develop the department budget, recruit and hire staff, and oversee all aspects and functions of the police department. TC: What is your biggest challenge in performing your duties? RW: Staffing. Currently there’s a shortage of qualified candidates that are enthusiastic about entering or continuing in the law enforcement profession. This challenge is wide spread throughout the country and not localized to New Hampshire. I am always seeking to recruit and retain professionals who hold themselves accountable to high standards of performance while serving the community with respect and dignity.
Chief Robert Williams
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: How has NHMA helped you to do your job? RW: By providing professional support through training. I have attended conferences and training seminars put on by NHMA. I recently attended a Right-to-Know Law class led by Attorneys Margaret Byrnes and Stephen Buckley. They nailed it. TC: What is the public perception about your job and how does it differ from the reality of your job? RW: The Barrington community is very supportive of their police department. I am often approached and thanked by citizens for the assistance given by the officers during certain events. They understand and appreciate the complexity of any given law enforcement function. However, there are some that perceive my position to be “banker’s hours” with holidays and weekends off. The reality is the job never has a true start or end time. It’s fluid, multifaceted, and never ends. This position has been the biggest challenge of my professional career and I love it. TC: Do you dislike any aspects of your job? Which ones? Why? RW: The time commitment. The time away from my family. I have a young daughter who is growing up quickly. It’s challenging to balance quality family time with work time. Even if I’m at home and the phone rings (or texts in today’s world) it requires me to tune out family time which can be frustrating. Thankfully, my wife and daughter are very understanding and supportive. TC: Given the opportunity, what changes would you make to the position? RW: Nothing. It is an absolute honor and privilege to serve the community in which my wife was raised and now my daughter. There’s little that can compare to the rewarding feeling of being a police chief of a beautiful community like Barrington that I get to call home. Sometimes, I just wish there were two of me.
JANUARY/FEBRUARY 2018
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Legal
Q and A
By Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association
Troubleshooting on Election Day
A
n election is a complex event. Election officials spend a lot of time each year learning election laws and preparing for the election so that it will run smoothly. There are always a few questions, however. These are some of the more common questions that arise among our members each year.
Q. Who is in charge of elections? A. The select board is responsible for setting up the polling place according to the requirements of RSA 658:9. However, the moderator is the chief election officer in charge of the polls on election day. It is the moderator’s duty to make certain all election officials understand their roles and fulfill them on election day. RSA 659:9. Of course, all election officials serve an important role. Municipal election officials may include any moderator, deputy moderator, assistant moderator, town clerk, deputy town clerk, city clerk, deputy city clerk, ward clerk, select board members, supervisor of the checklist, registrar or deputy registrar. RSA 652:14. The moderator may also appoint other election officials as he or she deems necessary. RSA 658:7.
Q. Do select board members have to be at the polling place on election day? A. Yes, select board members must be in attendance at the polling place at a state general election. The New Hampshire Constitution, Part 2, Article 32, provides that “[t]he meetings for the choice of governor, council and senators, shall be warned by warrant from the selectmen, and governed by a moderator, who shall, in the presence of the selectmen (whose duty it shall be to attend) in open meeting, receive the votes of all the inhabitants of such towns….” RSA 658:21-a now permits a select board member who cannot attend at the polling place to appoint a select board member pro tem to perform his or her duties. With regards to town elections it is generally recommended, but not required, that the select board be in attendance while the polling place is open and when ballots are being counted. 42
NEW HAMPSHIRE TOWN AND CITY
Q. What if we run out of paper ballots? A. The town or city clerk should create more “unofficial” ballots following RSA 658:35. Photocopies should be made of an unused official ballot, and each photocopy should be signed or initialed by the clerk before being issued to a voter. This helps to prevent fraud by distinguishing the properlycreated unofficial ballots from fraudulently created ballots. RSA 659:24. An accurate record should be kept of the total number of unofficial ballots created and the number of those that were actually used by voters.
Q: Do we have to allow people to “observe” the election from inside the polling place? A. Yes. Any person has a right, as safety, welfare and rights of voters permit, to observe in-person voter registration, wherever it is conducted. However, observers must be located at least five feet from the registration table where the exchange of nonpublic information between the applicant and the election official receiving the application may be heard or seen. When a person registers to vote on election day, the election official shall announce the person’s name twice and also announce the address the person has registered as his or her domicile one time. These announcements will be made in a manner that allows any person appointed as a challenger to hear the announcement. RSA 654:7-c; RSA 666:4. The select board should have the guardrail set up so that only those within the rail can approach within six feet of the ballot box and voting booths, and so that the voting booths and ballot box are within plain view of those observing from outside the rail. RSA 658:9.
Q. How do we handle it when someone challenges a voter? A. Challenges may be made by any other registered voter in the town or ward (in writing only), by any election official, or by any challenger appointed by a political party or by the Attorney General with the proper signed statement from the political party/Attorney General. RSA 659:27; RSA 666:4:5. A challenge may be made at any time until the voter puts www.nhmunicipal.org
his or her ballot into the ballot box or voting machine. If a voter is challenged, the moderator may not receive that person’s vote until the challenged voter signs and gives to the moderator a Challenged Voter Affidavit (prepared by the Secretary of State). The affidavit must be sworn before an election official or any other person authorized by law to administer oaths. The challenged voter may then be permitted to vote. RSA 659:27-a. The clerk must keep a record of all challenges with the name and address of voters completing the affidavits, the name of the person challenging, who signed the “Asserting the Challenge” form, the outcome of the challenge, and the reason for the challenge. RSA 657:26; RSA 659:27; RSA 659:27-a; RSA 659:32. For successfully challenged absentee ballots, the clerk shall enter this information in the ElectioNet Absentee Ballot module, by selecting the reasons from the appropriate dropdown. RSA 657:26.
Q. Who decides how campaigning at the polls will be controlled? A. The moderator, under authority from the New Hampshire Constitution, Part 2, Article 32, as well as RSA 659:9 and RSA 659:43. A voter must be able to come into a polling place and cast his or her vote, without being accosted or interfered with by those who may be participating in electioneering or other activities at the voting place such as bake sales, public information displays on issues not before the voters at the election, public displays by civic groups and so on. It is the moderator’s duty to ensure that no illegal electioneering occurs at the polling place. The moderator should control all areas from the building entrance to the room where the voting occurs. The moderator is www.nhmunicipal.org
also responsible for setting up a 10foot wide “no-electioneering zone” from the building entrance extending as far into the driveway or parking area as the moderator deems appropriate. RSA 659:43, II. In addition, the moderator should designate an election official to periodically check the voting booths and remove any materials left there, including campaign materials or other items left by voters.
Q. What is illegal electioneering? A. Illegal electioneering includes the distribution, wearing, or posting at a polling place any campaign material in the form of a poster, card, handbill, placard, picture, pin, sticker, circular, or article of clothing which is intended to influence the action of the voter within the building where the election is being held. RSA 659:43, I, II. It is also illegal for an election officer or public employee to electioneer while in the performance of his or her official duties. RSA 659:44; RSA 659:44-a.
Q. Can a municipality regulate the distribution of campaign materials or electioneering by ordinance? A. Yes, to some extent. Under RSA 31:41-c and RSA 47:17, XIV-a, towns and cities have the power to make ordinances regulating both the distribution of campaign materials and electioneering that “affects the safety, welfare and rights of voters at any election.” However, municipalities cannot regulate: (1) the display of campaign materials attached to any legally parked motor vehicle; or (2) activities conducted wholly on private property that do not interfere with voter access or exiting of the polling place. In towns, ordinances regulating such election activities must be provided to the town clerk immediately after adoption so that they may be available to candidates filing for office. The ordinances must also be posted at each polling place at least 72 hours in advance of any town election.
Q. Do we have to allow exit polls? A. Voters may not be obstructed or interfered with as they enter or exit the polling place, or as they vote within the polling place. Other than this, however, there are no legal restrictions on exit polling. Therefore, it may make the most sense for the moderator to adopt a policy regarding an acceptable place for exit polling (or other nonvoting activities, such as bake sales) to occur, such as an adjacent vacant room or hallway that does not interfere with the customary entrance pathway, exit pathway, or railed area.
Q. Can campaigners give voters preprinted stickers with the name of a writein candidate to paste onto their ballots? A. No, under New Hampshire election statutes this is prohibited. RSA 659:65 provides that “a ballot shall be regarded as defective in part and that part shall not be tabulated if . . . the ballot has attached to it an adhesive slip, sticker or paster not prepared in accordance with RSA 656:21 in the space for any office….” RSA 656:21, in turn, provides that the Secretary of State may authorize the use of pasters for state elections when a candidate dies or is disqualified and the name of a substitute candidate must be used. While RSA 659 is a statute that applies generally to state elections, the New Hampshire Supreme Court has held that the prohibition on stickers also applies to town elections. Kibbe v. Milton, 142 N.H. 288, 291 (1997). The only instance in which a statute permits the use of pasters or stickers on a town ballot is in the limited circumstance when a candidate dies or makes oath that he or she no longer qualifies for the office. In that case, the town clerk is required to omit the name from the ballot, and if ballots have already been printed, to cover the name with pasters. RSA 669:22. JANUARY/FEBRUARY 2018
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LEGAL Q&A from page 43 “Even when the voters’ intent is clear, if the means they employed to indicate their vote does not substantially comply with the applicable statute, their attempt to vote is a failure.” Kibbe v. Milton, 142 N.H. at 293. Although the Court noted that “the right to vote is cherished and protected by our State Constitution,” it still concluded that RSA 659:65, II(b) legally regulates the manner by which a voter may not express his or her vote. See id. at 293-94.
Q. Can members of the public observe the counting of the ballots? A. Yes. Just as the public may observe voter check-in from outside the rail, the public must be permitted to observe the counting of the ballots from outside the rail. This means that the doors should not be locked when the polls are closed. Ballot counting “shall not be adjourned nor postponed until it shall have been completed.” When the polling place is rearranged for counting after the polls are closed, counting tables must be located at least four feet from the rail, and no ballot may be placed any closer to the rail than four feet. RSA 659:63.
Q. How soon does the winner take over the office? A. If a person has run unopposed and no write-in candidate has received five percent or more of the votes for that office, that person may be sworn in at any time after the results are declared and, in a traditional town meeting town, after the business session of the meeting has ended. RSA 42:3. Otherwise, so long as no recount has been requested, a person elected to an office that was contested or for which a writein candidate received five percent or more of the vote may be sworn in at any time after the deadline for requesting a recount (the Friday following the election). RSA 42:3; RSA 669:30. 44
Q. How long do people have to take the oath of office? A. Every town officer is required to take the constitutional oath of office. RSA 42:1. The select board decides when the oath will be taken (so long as it is after the end of the recount period under RSA 669:30). RSA 42:4. It is the town clerk’s job, either “immediately, or in accordance with the time adopted by the governing body, if one has been adopted,” to notify the person by a police officer (personal notice or notice left at their home) or by registered mail, to appear before the clerk within six days after receiving the notice to take the oath. If he or she does not appear within six days after personal notice, or notice left at their home, or after returning (if they were absent when the notice was left), and in any case within 30 days after the election, the position is legally deemed to be vacant. RSA 42:6; RSA 652:12, IV. It is also worth noting that that person is guilty of a violation and is subject to fines. RSA 42:6; RSA 625:9 (classification of violations as crimes).
Q: If no one runs for a position, does the write-in with the most votes win? A. Yes. The person who receives the most votes wins the election, whether they ran for the position or were written in by voters.
Q: What if the person with the most votes declines to take the position after being elected? Do we offer the position to the person with the nexthighest number of votes? A. No. This is a common misconception. If the person who won the election declines to assume the office, the position is vacant. RSA 652:12, IV. Consult RSA 669:62 through RSA 669:75 for the method to fill a vacancy in a particular municipal office. The law designates a particular
NEW HAMPSHIRE TOWN AND CITY
board or official to appoint someone to fill each category of vacant position. Generally, the person appointed will serve only until the next annual election (rather than the rest of the unexpired term), at which time the office is open once again and someone will be elected to fill the remainder of the term, if any, or a new term, if the original term has ended. RSA 669:61. However, for some positions, the law provides that the appointee will fill the entire unexpired term. RSA 669:73 (trustees of trust funds); RSA 669:74 (highway agents). Towns may also adopt an optional procedure by town meeting vote to fill vacant positions. This option is available if a vacancy exists and the board or official with authority to appoint someone to fill it has not appointed anyone within 45 days after at least one legally qualified person has applied in writing for the position. In towns which have formally adopted this procedure, voters may petition the select board to hold a special town election to fill a vacancy. The petition for special election must be filed at least 90 days before the next annual election. The person elected at the special election serves until the next annual election, when voters elect someone to fill the remainder of the unexpired term (if any) or a new term (as appropriate). RSA 669:61, IV. Original article, written by C. Christine Fillmore, first appeared in the February 2010 issue of New Hampshire Town and City. This article has been revised and updated by Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
www.nhmunicipal.org
2018 Legislative Preview Wednesday, January 17, 2018 12:00 pm—1:00 pm
Upcoming Webinars NHMA will be hosting two webinars in January for members of the New Hampshire Municipal Association.
2018 Legislative Preview
Preparing for Town Meeting
As the New Hampshire General Court begins to wrestle with hundreds of bills, legislators need to hear from both appointed and elected government officials regarding the concerns of municipalities. To help you connect better with legislators, this webinar will: * Include a preview of legislation filed; * Outline the messages legislators need to hear from you; * Recommend grassroots action to get the municipal voice heard. Join Government Affairs Counsel Cordell Johnston and Government Finance Advisor Barbara Reid for a look at what the 2018 legislative session has in store for municipalities.
Preparing for Town Meeting
Wednesday, January 24 2018 12:00 pm—1:00 pm
It’s time to prepare for the 2018 town meeting. Join Effingham Town Moderator Susan Slack and NHMA Legal Services Counsel Stephen Buckley to explore and discuss best practices for town meeting. We will discuss: preparing the meeting place, pre-review of the warrant by DRA and town counsel, meeting with the governing body and budget committee to review the warrant and budget, appointing assistant moderators, publication of Modera-tor’s Rules of Procedure, along with other related topics. Attention will be paid to the difference between a tradi-tional town meeting deliberative session and an SB town meeting deliberative session.
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
JANUARY/FEBRUARY 2018
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