March/April 2016
TownandCity N E W
H A M P S H I R E
In This Issue:
A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION
Non-Public Sessions Under the Right-to-Know Law: Practical Issues......................................................8 To Disclose or Not to Disclose....................................15 Just Below the Surface: Current Issues Under RSA Chapter 91-A...............................................................19
Contents Table of
Volume LIX • Number 2
March/April 2016
3 A Message from the
NHMA Executive Director
5 Happenings 7 Upcoming Events 30 Up Close and Personal on the Board: Candace Bouchard 31 Up Close and Personal in the Field: Kim Reed 32 Tech Insights: What Technology Strategies are You Committed to in 2016? 34 The HR Report: Discipline with Dignity 36 Legal Q and A: Ensuring a Clean Vote in Your Municipality
8
Non-Public Sessions Under the Right-toKnow Law: Practical Issues
15
To Disclose or Not to Disclose
19
Just Below the Surface: Current Issues Under RSA Chapter 91-A
21
Let the Sunshine In! Sunshine Week Planned for March 13-19, 2016
22
The Early Years of the NHMA (1962-1974)
Cover Photo: Denise M. Vallee, Director of Finance and Administration at the Town of Gorham.
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 2016 New Hampshire Municipal Association
www.nhmunicipal.org
MARCH/APRIL 2016
1
New Hampshire Municipal Association
Board of Directors The Board of Directors oversees NHMA’s league services. The board is comprised of 25 local officials elected by NHMA member municipalities.
CHAIR
Scott Myers, City Manager, Laconia VICE CHAIR
Shelagh Connelly, Selectman, Holderness TREASURER
Donna Nashawaty, Town Manager, Sunapee IMMEDIATE PAST CHAIR
Stephen Fournier, Town Administrator, Newmarket
Candace Bouchard, Councilor, Concord Butch Burbank, Town Manager, Lincoln Ben Bynum, Clerk/Tax Collector, Canterbury David Caron, Town Manager, Jaffrey Philip D’Avanza, Planning Board, Goffstown Elizabeth Dragon, City Manager, Franklin M. Chris Dwyer, Councilor, Portsmouth Elizabeth Fox, Asst. City Mgr./HR Director, Keene Bill Herman, Town Administrator, Auburn Priscilla Hodgkins, Clerk/Tax Collector, New Castle Elaine Lauterborn, Councilor, Rochester Brent Lemire, Selectman, Litchfield Patrick Long, Alderman, Manchester Harold Lynde, Selectman, Pelham Jim Maggiore, Selectman, North Hampton Shaun Mulholland, Town Administrator, Allenstown Nancy Rollins, Selectman, New London John Scruton, Town Administrator, Barrington David Stack, Town Manager, Bow Eric Stohl, Selectman, Columbia Teresa Williams, Town Administrator, Wakefield
Affiliate Groups
Affiliate Groups are those groups whose members are comprised of mostly municipal officials, usually municipal professional organizations in the State of New Hampshire. Affiliate Groups are not entitled to any membership benefits and there are no annual fees for this status. Some of these Affiliates conduct their annual meetings in conjunction with the NHMA’s annual conference each November. Animal Control Officers Association of New Hampshire Association of NH Public Employer Human Resource Administrators Fire Instructors and Officers Association of NH Granite State Rural Water Association Municipal & Governmental Law Section of the NH Bar Association Municipal Management Association of NH NH Association of Assessing Officials NH Association of Conservation Commissions NH Association of Emergency Medical Technicians, Inc. NH Association of Fire Chiefs
2
NH Association of Housing Authorities NH Association of Regional Planning Commissions NH Building Officials Association NH Cemetery Association NH City & Town Clerks’ Association NH Coalition for Community Media NH Economic Development Association NH Fire Prevention Society NH Government Finance Officers Association NH Health Officers Association NH Library Association NH Library Trustees Association NH Local Government Information Network
NEW HAMPSHIRE TOWN AND CITY
NH Local Welfare Administrators Association NH Municipal Lawyers Association NH Planners Association NH Public Works Association NH Public Works Mutual Aid Program NH Public Works Standards and Training Council NH Recreation & Park Association NH Road Agents Association NH State Firemen’s Association NH Tax Collectors’ Association NH Water Pollution Control Association Northeast Resource Recovery Association Working Dog Foundation
www.nhmunicipal.org
A Message from the
NHMA
Executive Director Judy Silva
Thank You, Good Bye, and Welcome!
W
ith March town meetings and elections on our doorstep, we will be saying thank you and good bye to departing local officials, and welcome to newly elected selectmen and a host of other officials. With newly elected city officials taking the oath of office in January, there are lots of new officials in local government this time of year. As those who have served in local government know, it can be a lot of work! You serve on multiple boards, address issues near and dear to the hearts of residents, and get calls about what you’ve done and what you haven’t done. NHMA provides a broad selection of training opportunities to help both newly elected officials, and those who remain in office, to do the best job they can. “Sunshine” and the Right-to-Know Law are the topic of this issue of Town & City magazine, and the Right-to-Know Law is a very central part of life as a local official. NHMA provides many Right-to-Know Law trainings, including two upcoming webinars: April 20 on privacy issues under the Right-to-Know Law, and May 18 on public records requirements. We will also hold a Right-toKnow workshop in Hanover on March 10th from 7:00 - 9:00 pm. See the calendar of events on the NHMA web site—where you can register for workshops—and make sure you are subscribed to NewsLink for the latest information. NHMA’s Local Officials Workshops, held in April, May, and June, are designed particularly for newly elected officials, but give a great overview of municipal law for seasoned local officials as well. We will hold a City Officials Workshop in September, which is when we hold the Budget and Finance Workshops and the beginning of the Municipal Law Lecture series, focusing on planning and land use topics. These workshops and webinars are available to elected and appointed officials as a benefit of NHMA membership. Membership also provides access to the legal services hotline for help with legal questions, as well as a wealth of information on the NHMA web site and in NHMA publications. We are here for you, so please be sure to take advantage of all we have to offer to make your local government service productive and rewarding! Warmest regards,
Judy Silva, NHMA Executive Director
www.nhmunicipal.org
MARCH/APRIL 2016
3
Workshops for seasoned, newly-elected and appointed municipal officials and other members of the New Hampshire Municipal Association.
Dates and Locations Agenda
Saturday, April 9
9:00 a.m. ̶ 4:00 p.m.
To be Announced (Southwest)
Continental breakfast and lunch will be provided.
Wednesday, April 13
Grantham Town Hall 300 Route 10 South, Grantham
Wednesday, April 27
Hudson Community Center 12 Lions Ave., Hudson
Wednesday, May 18
To be Announced (North Country)
Wednesday, May 25
Carroll County ComplexDelegation/Commissioner Conference Room 95 Water Village Rd., Ossipee
Saturday, June 4
Overview Presented by NHMA’s Legal Services attorneys, the workshops provide newly elected and appointed municipal officials with tools and information to effectively serve their communities. Topics will include the Right-to-Know Law, ethics and conflicts, town governance, public employment, liability and more. Interactive discussions will offer an opportunity to test scenarios, discuss concerns, ask questions and share ideas. Attendees will receive a complimentary copy of the 2016 edition of NHMA’s publication, Knowing the Territory.
25 Triangle Park Drive, Concord
No Fee, But Online Registration is Required! For more information or to register online, please visit www.nhmunicipal.org and click on the Calendar of Events. Space is limited! Cancellation must be received 48 hours in advance. If cancellation is not received 48 hours in advance, NHMA will invoice you for $20 to cover workshop costs, including meals. Questions? Please call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org.
4
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
HAPPENINGS Send Us Your Town and/or City Hall Photo As NHMA begins “Celebrating 75 Years of Service to Your Hometown,” we need your help. NHMA asks all members to forward to us an updated photograph of your town or city hall. The city and town hall photo boards at our offices are very old. To help us celebrate this important event, please send your photograph of your town or city hall to Tim Fortier at tfortier@nhmunicipal.org. Please supply your photograph electronically, preferably in one of the following compatible file formats: .eps; .tif; and .pdf.
Don’t Miss Out on the Fun Policy Committees to Meet in Early April NHMA’s biennial legislative policy process is getting underway. We are now 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
NHMA’s 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 800-852-3358, ext. 3408, or governmentaffairs@nhmunicipal.org. The first meeting of the committees will be on Friday, April 8, 2016, at the NHMA offices.
Solar Up NH Success The Southern New Hampshire Planning Commission (SNHPC) recently announced the successful conclusion of two Solar Up NH campaigns in the southern New Hampshire region. In June 2015, three municipalities in the SNHPC Region (the towns of Bedford and Goffstown working together as one community coalition and the Town of Francestown going it alone) launched Solarize campaigns under a new program entitled Solar Up NH to encourage residents and business owners to go solar. A total of 61 residents signed contracts and two business owners applied for state rebates to go solar during round one. The program significantly lowered the cost of going solar between 15.9 and 16.1 percent, and more than doubled the number of existing solar photovoltaic installations within these communities. During round two, which ended in November 2015, four municipalities in the SNHPC Region (the towns of
NHMA members enthusiastically voting on legislative policy. Date unknown.
www.nhmunicipal.org
MARCH/APRIL 2016
5
HAPPENINGS from page 5 Chester with Derry and Candia with Deerfield) worked together as community coalitions in the Solar Up NH program. During the round two campaign, a total of 91 homeowners and 3 businesses signed contracts to go solar. The two partner solar installers for round two were Granite State Solar and Revision Energy. As a result of group purchasing, Solar Up NH lowered the average cost of going solar between 5.2 and 13.6 percent depending on the size of the solar installation. The number of existing solar PV installations also more than doubled in these communities, adding 63 new systems in Candia and Deerfield and 31 new systems in Chester and Derry.
newable solar energy will be created within the SNHPC Region. Solar Up NH is a program of SNHPC and Smart Power based on successful Solarize models developed across the country and in several New England states. Solar Up NH was expanded beyond the typical residential Solarize program to include business, nonprofit organizations, churches, and agricultural operations. The program
has been adapted to fit Southern New Hampshire’s suburban and rural size communities. The overall goal is to spread Solar Up NH to other communities and regions across the state. For more information, visit www.solarupnh.com or contact Jack Munn at 603.669.4664 or jmunn@snhpc.org.
Combined with the results of round one of the program, a total of over 1.35 megawatts of new clean and re-
6
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
Upcoming
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.
Events MARCH
Regional Workshop: Right-to-Law: Current Issues Thursday, March 10 7:00 p.m. – 9:00 p.m. Hanover Town Hall (Board Room/ 2nd Floor) 41 Main Street, Hanover Webinar: Half-Time: A Mid-Session Legislative Update Wednesday, March 30 12:00 p.m. – 1:00 p.m.
APRIL
Please check www.nhmunicipal.org for location.
SUBSCRIBE
Webinar: Right-to-Know or Right to Privacy? Wednesday, April 20 12:00 p.m. – 1:00 p.m. Local Officials Workshop Wednesday, April 27 9:00 a.m. – 3:00 p.m. Hudson Community Center 12 Lions Avenue, Hudson
MAY
Local Officials Workshop Saturday, April 9 9:00 a.m. – 3:00 p.m. Location TBD
www.nhmunicipal.org
Local Officials Workshop Wednesday, April 13 9:00 a.m. – 3:00 p.m. Grantham Town Hall 300 Route 10 South, Grantham
Local Officials Workshop Wednesday, May 18 9:00 a.m. – 3:00 p.m. Location TBD Local Officials Workshop Wednesday, May 25 9:00 a.m. – 3:00 p.m. Carroll County Complex 95 Water Village Road, Ossipee
To order New Hampshire Town and City magazine, call 800.852.3358, ext. 3339. $25/members • $50/non-members
MARCH/APRIL 2016
7
8
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
N
By Cordell A. Johnston, Government Affairs Counsel
on-public sessions under the Right-to-Know Law are addressed in RSA 91-A:3. Although the law identifies the subjects that may be discussed and establishes a procedure for entering non-public session, it leaves many practical questions unanswered. This article addresses some of the practical issues related to non-public sessions. It is not intended to be a thorough discussion of the legal requirements for non-public sessions.
How and When to Enter Non-Public Session Understand the difference between a “non-meeting” and a non-public session. • Things that are not meetings—consultation with legal counsel or strategy or negotiations with respect to collective bargaining—are exempt from the Right-to-Know Law and therefore are not subject to any requirements regarding notice, minutes, or anything else. • Non-public sessions—for discussion of matters listed in RSA 91-A:3—are subject to all requirements of the Right-to-Know Law, other than public’s right to attend. A public body may enter non-public session only at a public meeting that has been duly noticed in compliance with the Right-to-Know Law. Does the public meeting agenda have to indicate that there will be a non-public session? • No. Often it is mentioned in the meeting agenda, but given that an agenda is not even required, there certainly is no requirement that the agenda include reference to a planned non-public session.
When during the meeting should the non-public session take place? There is no rule, except that the non-public session must begin with a motion made during public session—so a nonpublic session may not be held before the public meeting is convened. All things being equal, it generally makes sense to hold a non-public session at the end of the meeting, so members of the public do not have to wait for a continuation of the public session. However, conditions may weigh in favor of holding it at the beginning of the meeting—for example, to accommodate the schedule of a non-board member who needs to be present, or because a decision made in non-public session may affect other actions during the meeting, or because the matter is particularly important and needs to be addressed while board members are at their sharpest.
Conduct of the Non-Public Session There are no special rules for conducting the meeting once it enters non-public session, except that all discussions and decisions must be strictly limited to the purposes set out in the motion to enter non-public session. Who should be present in the non-public session? Legally, there is no limit on who may be permitted to attend. The law merely states that the session may be closed to the public. There may be reasons to have people other than board members present—e.g., the town administrator, the recording secretary, or a department head with knowledge of the issue being discussed.
Use the template at the end of this article to ensure that your procedure complies with the requirements of 91-A:3.
However, for obvious reasons of confidentiality, there should be as few non-board members as possible. Board members are required by law (RSA 42:1-a) to maintain the confidentiality of matters discussed in non-public session if the minutes are sealed or if the information is otherwise confidential, and disclosure of such information constitutes a violation of their oath of office, for which they are subject to removal. Employees and others who are not municipal “officers” are not subject to the same statutory requirement and penalty (although an employee’s disclosure of confidential information may well be cause for dismissal).
• Motion to enter non-public session must be made and seconded. • Must state specific subparagraph of 91-A:3, II, under which non-public session is authorized. • Motion must be approved by a roll call vote.
In short, it is best to exclude anyone whose presence is not essential. This may mean excusing the town administrator and/or the recording secretary and instead having one of the board members take minutes. Whether to do this is a judgment call to be made by the board.
• Further, sometimes the need for a non-public session is not apparent until a meeting is under way, so it would be impossible to mention it in the agenda. Follow the script!
www.nhmunicipal.org
MARCH/APRIL 2016
9
NON-PUBLIC from page 9
Minutes The keeping of minutes and deciding whether and how to seal them are among the thorniest problems involved in non-public sessions. Keep them simple. In many cases, the issues around the sealing of minutes can be avoided by keeping very simple minutes that do not contain confidential information. If there is nothing confidential or inflammatory in the minutes, then there probably is no reason to seal them, and a problem is avoided. The law requires only that the minutes include the names of members present, names of persons appearing before the public body, and “a brief description of the subject matter discussed and final decisions.” Thus, depending on the circumstances, it might be perfectly legitimate for the minutes to simply list the people present and then state: “The board heard a complaint about a town employee. The town administrator was asked to obtain further information and report to the board.” OR “The board received an update on the litigation involving John Doe. No decisions were made.“ In the first case, there probably is no need to include any more information about the complaint. In the second case, no purpose would be served by describing all of the questions that were asked or the strategic discussions about the litigation.
and there may be occasions when inclusion of confidential discussions is unavoidable; but think about this, and have a discussion about how much detail should be included before leaving non-public session. Keep them separate. This probably is obvious—the nonpublic session minutes should be a separate document from the public session minutes. The public session minutes should state that the board entered non-public session at a specific time (and include the motion, the basis for the motion, and the roll call vote on the motion), and then indicate that the board returned to public session at a specific time.
Exiting Non-Public Session Can we make decisions in non-public session, or must we wait and vote in public? You may make decisions in non-public session. RSA 91-A:3 specifically refers in two places to decisions made during nonpublic sessions. Of course, any decision made presumably will become public in fairly short order, but there are a number of reasons it may not be appropriate to make a decision in public—for example, a decision to terminate an employee, or to make an offer to settle litigation. Whether to take a vote in non-public session or wait and take it in public is a question for the discretion of the board. If there is a reason to keep the decision confidential for some period, it will be necessary to take the vote before leaving non-public session. If we are going to vote to seal the minutes, should we do it in non-public or public session?
Of course, more detailed minutes will be necessary in some circumstances, 10
NEW HAMPSHIRE TOWN AND CITY
As of January 1, 2016, that vote must be taken in public session. Is there any special procedure for returning to public session? No. The law says nothing about returning to public session. In theory, the board could just say, “We’re back in public session,” and invite the public back into the room (if anyone is still there). However, for the sake of clarity, it is best to have a formal vote to return to public session. In fact, there is no legal requirement to return to public session at all, so if there is nothing remaining to be done in public (such as voting to seal the minutes), the board in theory could simply end the meeting at the end of the non-public session. Again, however, for the sake of clarity, it is better to return to public session and then adjourn.
Sealing the Minutes Legally, there actually is no such thing as “sealing the minutes.” What? It’s true. The Right-to-Know Law does not use the word “seal,” or anything like it. What is says is that non-public minutes must be made available to the public unless the board determines that certain circumstances apply. If the board makes that determination, the minutes “may be withheld until, in the opinion of a majority of the board, the aforesaid circumstances no longer apply.” Thus, a vote to “seal the minutes” is merely a vote that the minutes will not be made available upon request until the board decides otherwise. The minutes are not physically sealed (although perhaps they could be). However, “sealing the minutes” is a useful www.nhmunicipal.org
shorthand way of referring to this action, as long as it is understood what is actually being done. Again, follow the script! Remember that the only permissible reasons for sealing the minutes are: • Disclosure would adversely affect the reputation of a person other than a member of the board; • Disclosure would render the proposed action ineffective; or • The discussion in the minutes pertains to terrorism. If none of these conditions exist, the minutes may not be sealed. There is no need to vote not to seal the minutes; in the absence of a vote, the minutes are automatically not sealed, and must be available to the public within 72 hours (not the five business days allowed for minutes of public sessions). Remember also that the motion to seal the minutes must specifically cite one of the reasons noted above, and requires the affirmative vote of two-thirds of those present. Do not confuse this with the motion to enter non-public session, which must be by roll call but requires only a simple majority. Does the motion need to state how long the minutes are to be sealed? No—and in fact, it shouldn’t. Again, the law says they may be withheld from the public “until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.” A vote by the board to seal them for a specific period (or forever) is not conclusive, because the board may decide later that the circumstances justifying confidentiality no longer exist, and they should be made public.
www.nhmunicipal.org
Dealing with Sealed Minutes Review and revise them as necessary at the next meeting. Consider again whether they really need to be sealed. You have just voted to seal the minutes—but the minutes don’t even exist yet. The next step, of course, is for the person responsible for preparing the minutes to type them up and keep them in a secure location. Next, they need to be circulated to the board members for review. The board should review and, if necessary, revise them at the next meeting. Because this will be the board’s first look at the minutes, it will also provide another opportunity to decide whether they really need to be sealed. The board might decide to delete unnecessary confidential material so that the minutes may be made public. After the board reviews the minutes and makes any necessary revisions, the board members’ drafts should be collected and destroyed. If we forgot to vote to seal the minutes, can we do it later? Yes, if they haven’t been released to anyone. The law requires that nonpublic minutes be “publicly disclosed within 72 hours” unless the board votes to seal them. It says nothing about when the board needs to vote to seal them. Thus, the board certainly can vote anytime within 72 hours to seal the minutes if they have not already been disclosed. Even after 72 hours, an argument can be made that the minutes may be sealed if they have not actually been provided to anyone, although the law is not clear on this. It is unclear what “publicly disclosed” means, but presumably it is the same as the general requirement that all minutes be “open
to public inspection.” If the minutes have been available upon request, but no one has actually requested them, and if they have not been posted in a public place (which is not required), perhaps they can still be sealed. But the board should consult with its legal counsel before taking such an action. Store them securely. Sealed minutes, like all other minutes, must be kept permanently. They should be stored in a secure location, preferably a locked drawer or cabinet where only the board and its representative can get access. No one else should have access to the minutes. For example, a board of selectmen or a city council should not have access to sealed planning board or library trustee minutes. It is recommended to keep all of the board’s sealed minutes together, arranged by date, and clearly marked as minutes that are not available to the public. Review by new board members? Old board members? A new person has been elected to the board, and wants to review all of the board’s sealed minutes. Or, a former board member wants to review the sealed minutes from when he was a member. Should this be permitted? They are the board’s minutes. So long as they remain sealed, they are subject to review only by the board. A new board member has the same rights as other current board members, but if one or more board members want to review the minutes, it is better to make the minutes available to the entire board at a meeting and then return them to their secure location. Alternatively, the board may vote to authorize individual members to review the minutes. MARCH/APRIL 2016
11
NON-PUBLIC from page 11 A former board member has no right to see minutes that remain sealed. It does not matter that he was on the board at the time of the non-public session; he is no longer on the board and has no more right than a member of the general public. Review and unsealing of old minutes. The law does not impose any obligation on a public body to review and unseal old minutes. It merely states that the minutes “may be withheld until, in the opinion of a majority of members, the circumstances [justifying their sealing] no longer apply.” Legally, the status of sealed minutes does not become an issue until someone asks to inspect them. If no one has requested a given set of minutes, argu-
12
ably it does not matter how long they remain “sealed,” because they are not being “withheld.” However, it is a good practice for a board to review its sealed minutes regularly—probably at least once a year—to determine whether the circumstances that justified their sealing still apply. If the person whose reputation might be adversely affected has died, or if the information has become a matter of public knowledge and is no longer confidential, or if the lawsuit has been concluded, then the board should vote to make the minutes available. Again, this requires a majority vote of the board.
clear that the circumstances have not changed, the board should review the minutes to decide whether the circumstances that justified withholding them in the first place still apply. Cordell A. Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at governmentaffairs@nhmunicipal.org.
In addition, if someone makes a request to inspect sealed minutes, the response should not be simply, “Sorry, those minutes are sealed.” Unless they are very recent minutes and it is
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
Nonpublic Session Minutes [INSERT NAME OF MUNICIPALITY AND BOARD] Date: _______________________ Members Present:
[board member name] [board member name] [board member name] [board member name] [board member name]
___ ___ ___ ___ ___
Motion to enter Nonpublic Session made by _______________ seconded by ______________ Specific Statutory Reason cited as foundation for the nonpublic session: ____ RSA 91-A:3, II (a) The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her, unless the employee affected (1) has a right to a public meeting, and (2) requests that the meeting be open, in which case the request shall be granted. ____ RSA 91-A:3, II(b) The hiring of any person as a public employee. ____ RSA 91-A:3, II(c) Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of this board, unless such person requests an open meeting. This exemption shall extend to include any application for assistance or tax abatement or waiver of a fee, fine or other levy, if based on inability to pay or poverty of the applicant. ____ RSA 91-A:3, II(d) Consideration of the acquisition, sale or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community. ____ RSA 91-A:3, II(e) Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed by or against this board or any subdivision thereof, or by or against any member thereof because of his or her membership therein, until the claim or litigation has been fully adjudicated or otherwise settled ____ RSA 91-A:3, II(i) Consideration of matters relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. Roll Call vote to enter nonpublic session:
Remove public meeting tape (if applicable).
[name] [name] [name] [name] [name]
Y Y Y Y Y
N N N N N
Entered nonpublic session at ________a.m./p.m. www.nhmunicipal.org
MARCH/APRIL 2016
13
Other persons present during nonpublic session:_______________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ________________________________________________________________ Description of matters discussed and final decisions made: ______________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________ Note: Under RSA 91-A:3, III. Minutes of proceedings in nonpublic sessions shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of this board, or render the proposed action of the board ineffective, or pertain to terrorism. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply. Motion to leave nonpublic session and return to public session by ____________________, seconded by _______________________. Motion: PASSED / DID NOT PASS (circle one) Nonpublic meeting tape removed, public meeting tape replaced (if applicable). Public session reconvened at ___________ a.m./p.m. Motion made to seal these minutes? If so, motion made by _________________, seconded by ________________, because it is determined that divulgence of this information likely would‌ ____ Affect adversely the reputation of any person other than a member of this board ____ Render a proposed action ineffective ____ Pertains to preparation or carrying out of actions regarding terrorism Roll Call Vote to seal minutes:
[name] [name] [name] [name] [name]
Y Y Y Y Y
N N N N N
Motion: PASSED / DID NOT PASS (circle one) These minutes recorded by: ____________________________________________ 14
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
r o e s o l c s i To D : e s o l c s i D o t Not rmation
t Info n e m y lo p m E c li b Pu ow Law n K o t t h g i R e h and T . Byrnes
.L By Margaret M
I
n the private sector, members of the public can’t walk into company headquarters and request copies of personnel records. However, as most of you are well aware, in the world of local government, requests for employmentrelated-information is not uncommon. To assist you in the sometimes challenging task of sifting through and responding to these types of requests, let’s take a look at the relevant statutory and case law.
“Internal Personnel Practices” RSA 91-A:5 contains a list of records that are exempt from disclosure under the Right-to-Know Law. Perhaps the most misunderstood provision in that section is RSA 91-A:5, IV’s exemption for “[r]ecords pertaining to internal personnel practices.” In 1993, the New Hampshire Supreme Court had the first opportunity to address application of the exemption, holding that documents compiled during an internal investigation of a police lieutenant were exempt from disclosure as an internal personnel practice. Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993). The Court determined that records that documented an investigation leading up to potential discipline—as these were—fell within the plain meaning of “internal personnel practices.” In a subsequent case, the Court similarly held that a report generated by a water district about alleged misconduct of its employee was also an exempt internal personnel practice. Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006). Fast forward to 2011, when the case of Montenegro v. City of Dover, 162 N.H. 641 (2011) came before the Court. The petitioners had requested the job titles of Dover employees who monitored surveillance equipment, and the city had
www.nhmunicipal.org
denied that request on the grounds that this information constituted internal personnel practices. After determining that the list of names did not qualify as a “law enforcement record”—a separate analysis based on the federal Freedom of Information Act (FOIA)—the Court decided that these employee names were not internal personnel practices. In reaching this decision, the Court looked to Fenniman and Hounsell, as well as the federal courts’ interpretation of a FOIA exemption (5 U.S.C. § 552(b)(2) (2006), also referred to as “Exemption 2”), “which shields from compelled disclosure documents related solely to the internal personnel rules and practices of an agency.” Milner v. Department of Navy, 131 S.Ct. 1259, 1262 (2011). The Milner Court had reasoned that “[a]n agency’s ‘personnel rules and practices’ are its rules and practices dealing with employee relations or human resources. . . . They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.” Montenegro, 162 N.H. at 650 (internal citations omitted). In light of Milner, Fenniman, and Hounsell, the New Hampshire Supreme Court in Montenegro held that the requested job titles were not records related to internal personnel practices because they were not “related to internal personnel discipline, . . . a quintessential example of an internal personnel practice,” and were also not “akin to such matters as hiring and firing, work rules and discipline.” Montenegro, 162 N.H. at 650 (internal citations omitted). Based on this line of cases, records and other information compiled or created as part of an investigation into misconduct of a public employee is exempt from disclosure as “internal personnel practices.”
MARCH/APRIL 2016
15
TO DISCLOSE from page 15
“Personnel Files” RSA 91-A:5, IV also exempts from disclosure “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.” In the employment realm, the New Hampshire Supreme Court has interpreted this exemption to mean that “financial information and personnel files and other information necessary to an individual’s privacy need not be disclosed.” Mans v. Lebanon School Bd., 112 N.H. 160, 162 (1972). However, not all information related to an individual’s employment is per se exempt from disclosure. In Mans, the Court held that salary information of public school teachers, contained in the employment contracts, must be disclosed to the public. Although the employment contract was a record contained within the teachers’ personnel files, the Court declined to read the exemption broadly, construing it narrowly and in favor of disclosure, concluding that “disclosure of salaries of school teachers is not a disclosure of those intimate details which ‘would constitute invasion of privacy.’” Id. 164. It found that the legislature intended “a full disclosure of the mode and manner of public expenditures for school purposes.” Id. In that same vein, the Court held in 2011 that records of payments to retired public employees were also not exempt from disclosure under RSA 91-A:5, IV. Union Leader Corp. v. New Hampshire Ret. Sys., 162 N.H. 673 (2011). The relationship between potential employment and privacy interests came to the forefront last year when a Strafford County superior court judge ruled that applicants for a municipal job have no privacy interest in the fact that they have applied. Clay v. Dover (Strafford Cty. Superior Court., No. 219-2014-CV-124, May 29, 2015). 16
To fully consider the implications of the Clay v. Dover decision, you first must understand the three-part “balancing test” for determining whether a sufficient privacy interest exists, as set forth by the Court in Lamy v. N.H. Pub. Utils. Comm’n., 152 N.H. 106 (2005): 1. Private Interest: Determine whether there is actually a privacy interest at stake. The privacy interest must be judged using an objective standard—that is, it does not matter what this particular person’s subjective beliefs about the privacy of the information are. If there’s no privacy interest, stop here because the exemption cannot apply. 2. Public Interest: Assess the public’s interest in the requested information. Disclosure of the information should inform the public about the conduct or activities of its government. 3. Balancing Test: Compare the weight of the private interest and the government’s interest in nondisclosure against the weight of the public interest in disclosure. The more compelling interest dictates your response to the request. In the Clay v. Dover case, the city had withheld names of candidates for superintendent as well as the rubrics used to score the candidates. The city argued two exemptions—“internal personnel practices” and privacy. The judge did not find a privacy interest applied, reasoning as follows: “But the argument that simply revealing the fact that a person applied for the position violates the person’s privacy is unavailing. The court has no information that any applicant expected his or her identity to be withheld.
NEW HAMPSHIRE TOWN AND CITY
Moreover, the names of unsuccessful finalists were made public as the process progressed.” The judge did also mention that the rubric was arguably an “internal personnel practice,” although the city had already voluntarily released a blank rubric. The judge ordered in camera review of the rubrics to determine whether they should be disclosed. The judge’s decision and reasoning raises so many issues. Does an applicant really have no privacy interest in keeping his or her name private when that applicant already has another job that could be affected? Would this decision have been different if the city had informed all applicants that their identities would be private? If so, wouldn’t that be a subjective privacy test, rather than the objective privacy interest established in Lamy? Although this is a superior court decision and therefore not binding law, we will need to continue to monitor the development of issues raised by this case because if this interpretation prevails, it could create serious concerns for municipalities and candidates for public employment. It is also worth mentioning that RSA 91-A:5, IV specifically exempts from disclosure medical and financial information. Other sensitive information, such as social security numbers and dates of birth would also be exempt. The Attorney General’s Memorandum refers to any information that could lead to identity theft as having the type of privacy protection contemplated by this exemption. Finally, “test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations” are exempt from disclosure. RSA 91-A:5, IV.
www.nhmunicipal.org
Employee Emails, Texts, iMessages & the Like With the increasingly common practice of employers, including municipalities, issuing phones, tablets, and other electronic communication devices, municipalities are asking such questions as, are all texts, emails, and other forms of electronic communication sent to and from our employees on these devices subject to disclosure? Sometimes, when we are faced with a new medium or format for information, we become confused about how the Right-to-Know Law applies. But the same analysis applies for these electronic communications, and it starts with determining whether this “information” is even a governmental record in the first place. First, “information” is “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.” RSA 91-A:1-a, IV. Second, the information must be created, accepted, or obtained by a public body or agency “in furtherance of its official function.”1 Therefore, any communication by the employee related to his/ her duties is information that would qualify as a governmental record, while solely personal communications would simply not be in furtherance of official functions and, as a consequence, not a governmental record. As the Attorney General’s Memorandum states at page 21: “Spam or
junk e-mail received and incidental personal messages sent or received via email, such as chat, instant messages or other forms of electronic communication, are unlikely to be deemed governmental records, as they are not received in furtherance of an official function.” So, it is not the medium of communication that matters, but the purpose of the communication/information. Often, “acceptable use” policies for employer-sponsored electronic devices require that the device be used for work purposes with only incidental personal use, but whether the employee is violating that policy by engaging in too much personal use or inappropriate personal use of the device is a separate matter. There are two additional caveats to keep in mind. First, records and information can only be disclosed if they exist. If employee emails that do qualify as governmental records are requested, they do not need to be— indeed, cannot be—disclosed if they have already been deleted.2 Whether the email should have been deleted is a records retention issue, not a Rightto-Know Law issue, pursuant to RSA 33-A:3-a, a statute containing a list of various types of records and the time period for which they must be retained by a municipality. Many emails will fall into the category of “Correspondence by and to municipality-transitory,” which, according to RSA 33-A:3a, XXVII, must only be retained “as needed for reference.” However, the
key to proper records retention is the subject matter of the record and not solely the fact that it is an email. So, for example, an email involving a municipal policy or program or an email containing information for a welfare application must be retained for a different period of time than “transitory” correspondence. Therefore, it is crucial that your employees are trained in records retention, as well as other policies, like email policies. Second, what if you conduct an investigation into one of your employees to determine whether he or she is violating your electronic “acceptable use” policy? An interesting twist, and the Attorney General’s Memorandum concludes the following: “[I]f the e-mails are analyzed for evidence of abuse of the governmental e-mail system, particularly if they end up being used as evidence in a personnel action, they likely would then be considered a governmental record.”3 Of course, if the emails are part of the internal investigation for the purposes of employee discipline, they would likely be exempt as “internal personnel practices” pursuant to Montenegro and the related cases. Margaret M.L. Byrnes is Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.
“[I]n determining whether a particular email constitutes a governmental record, a determination should be made as to the capacity and authority under which the individual legislator is acting in creating or receiving the email” because “if an individual member is imbued with authority to act on behalf of a public body,… the individual member could presumably create or obtain governmental records.” See the Attorney General’s Memorandum on the Right-to-Know Law, http://doj.nh.gov/civil/documents/right-to-know.pdf, p. 21, quoting from Attorney General’s Opinion 11-01. 2 See RSA 91-A:4, III-b for a definition of “deleted.” 3 P. 21 1
www.nhmunicipal.org
MARCH/APRIL 2016
17
Thursday, March 10, 2016
7:00 p.m.— 9:00 p.m. Hanover Town Hall, Board Room (2nd floor) 41 Main Street, Hanover NH 03755 The Right-to-Know Law 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 should be aware of the law and what their responsibilities are regarding both public meetings and governmental records. This free session is open to all local officials from NHMA member municipalities. NHMA Legal Services Counsel, Stephen Buckley, will provide an overview of the law and address some of the most difficult issues under the law, including confidential information, electronic records and communication, procedures for non-public session, and communications outside a meeting. There will be ample time for questions and answers on all aspects of the law.
Register online at www.nhmunicipal.org under CALENDAR OF EVENTS
Questions? Please call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org.
18
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
Just Below the Surface: Current Issues under RSA Chapter 91-A By C. Christine Fillmore
W
ith few amendments to RSA Chapter 91-A and no major New Hampshire Supreme Court opinions in 2015, one might think nothing new has been happening with the Right-to-Know Law. Do not be fooled. Over the past year, several of issues of municipal concern regarding public meetings and governmental records have swirled just below the surface in the legislature and the superior courts. These issues are likely to be among those in the forefront in coming months.
Discussing Written Legal Advice When a board gets written legal advice from its attorney, when may the board discuss that advice? Must it occur in a formal meeting? This question was considered by the legislature in 2015 and is on the agenda again in 2016. Under RSA 91-A:2, I(b), consultation with legal counsel is exempt from the definition of a “meeting,” even if a majority of the members are present. This exemption permits boards to meet with their attorneys to discuss legal issues outside of a formal meeting. However, when the lawyer provides written legal advice, the board may not discuss it outside of a meeting unless the attorney actively participates by being present or on the telephone with the board. Ettinger v. Madison Planning Board, 162 N.H. 785 (2011). If the lawyer is not available, the board may read the advice but cannot discuss it except in a formal meeting, and that discussion may only occur in a nonpublic session if it involves a topic for which a nonpublic session is permitted. This situation presents some obvious practical difficulties. First, a public body may only enter nonpublic session for a reason listed in RSA 91-A:3, II. That list does not include www.nhmunicipal.org
“general legal advice.” Of course, litigation pending or threatened in writing may be discussed in a nonpublic session, but often, the point of legal advice is to prevent litigation. Second, written legal advice can be an efficient and cost-effective way for a lawyer to convey information to a board. However, if the board cannot discuss that information outside of a meeting and the subject matter is not appropriate for a nonpublic session, the board must incur the extra expense of the attorney’s time and travel, and municipal operations may be less efficient. This is the issue before the legislature.
Charging for Governmental Record Requests RSA 91-A:4, IV states that the person requesting copies of governmental records may be charged “the actual cost of providing the copy,” but we have no real guidance about what this means. Can a municipality charge only for the cost of paper, toner, etc., or may it also recover costs of staff time to find, compile, and copy the records? What about attorney fees to review and redact records? Current best practice is to charge only for the cost of the copies themselves and not for staff or lawyer time. This is not an issue with the average request because it takes relatively little time. However, for larger requests, the time and costs can add up. A bill addressing this problem was tabled in the House in 2015 for further study, but the subject created some lively debate. More than one bill was introduced in the 2016 session to tackle it. It boils down to who pays the cost of large document requests—the citizen or the government (which raises its funds from all citizens through property taxation)? One concern among legislators was the difficulty of distinguishing between legitimate and frivolous requests. Those opposed cited concerns about a chilling effect on the availMARCH/APRIL 2016
19
SURFACE from page 19 ability of governmental records and called the cost of providing records part of the “cost of government.” Those in favor of cost recovery noted that the vast majority of requests take less than an hour, and even the most aggressive proposals would have capped fees at minimum wage (far less than the actual costs). This is likely to generate significant discussion in the 2016 legislative session.
Do Applicants for a Municipal Job have a Privacy Interest in the Fact that they have Applied? A governmental record may be exempt from disclosure if doing so would constitute an invasion of privacy. RSA 91A:5, IV. When a person runs for elected office, everyone knows that fact and the records containing it are public. However, does a person who applies to be hired for a town or city job have an interest in keeping it confidential? An order by a superior court judge in 2015 implies that the answer may be “no.” The case of Clay v. Dover (Strafford Cty. Superior Ct, No. 219-2014-CV124, May 29, 2015) involved a request for records related to the process used by the School District to hire a new superintendent. One part of the request was for the names of all candidates for the position. The City denied the request, citing the privacy interest of the candidates. The Court’s order stated that there was “no information that any applicant expected his or her identity to be withheld,” and that “the argument that simply revealing the fact that a person applied for the position violates the person’s privacy is unavailing.” The Court later issued another order denying the City’s motion to reconsider (October 30, 2015), in which it cited a variety of opinions from other states to support its reasoning that (a) no facts suggested that the applicants had 20
a reasonable expectation of privacy, (b) they had only a “modest privacy interest” in having their names withheld, (c) being rejected for a job isn’t something serious enough to require the names to be withheld, and (d) the public interest in the workings of the superintendent selection committee outweighs the applicants’ modest privacy interest. What the Court seemingly dismissed is the common understanding that, as people who have applied for one job while currently holding another can attest, the fact that a person has applied for a job can be a sensitive fact. Moreover, a public body may enter nonpublic session to consider hiring any public employee (RSA 91-A:3, II(b)), which seems to imply that candidates have some privacy interest at stake. In addition, the Court seemed to find persuasive the fact that the candidates were not told their names would be confidential. This raises a question of whether the government can create a reasonable expectation of privacy in the job-application process, going against the long-established concept under RSA 91-A that privacy interests are judged by an objective standard. Lamy v. PUC, 152 N.H. 106 (2005). The result in this case may have an unfortunate chilling effect on the willingness of qualified people to apply for public-sector jobs if they are concerned that their current employer can learn that they are looking elsewhere for employment. As a superior court order (not appealed by the City), Clay v. Dover is not controlling on other superior courts or the New Hampshire Supreme Court. However, it raises some significant questions going forward.
Police Videos and Body Cameras In 2015, the Merrimack County Superior considered whether police video and audio documenting the death of a suspect as he was shot by police was discloseable under RSA 91-A. Estate of Esty-Lennon v. State of NH (Docket
NEW HAMPSHIRE TOWN AND CITY
No. 217-2015-CV-376, September 4, 4015). The Court’s order focused on whether the footage, taken by dashboard and body cameras, was wholly or partly exempt from disclosure as records whose release would invade the privacy of the decedent’s family under RSA 91-A:5, IV. The Court used the three-part balancing test from Lamy v. PUC (152 N.H. 106 (2005)): (1) Does someone have a privacy interest in the record? (2) If yes, what is the interest of the public in having the record disclosed? (3) Balance the privacy interest and the government’s interest in not having the record disclosed against the public interest in disclosure. This was the first time a New Hampshire court considered whether family members have a privacy interest in law enforcement records containing graphic and disturbing images of a decedent’s death. The Court found there was a “strong” and “heightened” interest in the portions of the video showing up-close and graphic images which outweighed the public’s interest in determining whether police action and the Attorney General’s response were proper. On the other hand, the family had a “lesser” privacy interest in the remainder of the video and audio which was outweighed by the public’s interest in disclosure, so those portions were ordered to be released. On the legislative side, two bills were considered in 2015 regarding the use of police body cameras and were retained by the House (which means they may be taken up again in the 2016 session). Another bill has been introduced in the 2016 session, HB 1492, addressing the same issue. This bill would exempt body-cam recordings from disclosure under RSA 91-A. As we go forward in this new age of police videos, this issue bears watching. C. Christine Fillmore is a municipal attorney with the firm of Gardner, Fulton & Waugh. She can be reached at cfillmore@ townandcitylaw.com or 603-448-2221. www.nhmunicipal.org
Let the Sunshine In! Sunshine Week for Open Government Planned for March 13-19, 2016
Each year there is an annual nationwide celebration of access to public information and open government called Sunshine Week. Residents and municipal officials are encouraged to join the conversation about the importance of open government and freedom of information. Sunshine Week can also be a time when individuals and civic organizations make a difference by identifying local or state open government shortcomings and asking public officials to pledge and initiate specific improvements in local or state law and practice. Many public officials around the nation have issued proclamations extolling openness in government as one way to recognize Sunshine Week. To assist your efforts, the American Society of News Editors has developed a model open-government proclamation that can be used by cities and towns to demonstrate support for greater transparency in government as part of their Sunshine Week initiative. Like all proclamations, it begins with a general statement of the benefits of open government at every level. That is followed by a sampling of open government provisions that brought greater transparency to local and state governments around the country. You are encouraged to customize this proclamation to better fit your city’s or town’s needs.
Sample Open Government Proclamation WHEREAS, every citizen in our participatory democracy has an inherent right to access government meetings and public records; and WHEREAS, an open and accessible government is vital to establishing and maintaining the people’s trust and confidence in their government and in the government’s ability to effectively serve its citizens; and WHEREAS, the protection of every person’s right of access to public records and government meetings is a high priority of [name of city or town], and WHEREAS, the [name of city or town] is committed to openness and transparency in all aspects of its operations and seeks to set a standard in this regard; and NOW, THEREFORE, the [name of city or town] commits throughout the year to work diligently to enhance the public’s access to government records and information, to increase information provided electronically and online, and to ensure that all meetings of deliberative bodies under its jurisdiction, and their committees, are fully noticed and open to the public. Source: http://sunshineweek.rcfp.org/toolkit/, January 13, 2016.
www.nhmunicipal.org
MARCH/APRIL 2016
21
1962
1964
1966
1968
1970
1972
1974
The Early Years of the New Hampshire Municipal Association (1962-1974) This article represents the second installment of a series of articles retracing our Association’s history. The first article in our January/February, 2016 issue covered the “early years,” specifically 1934-1962. This article covers the period from 1962-1974.
Speaking with a Common Voice Reflections from NHMA’S First Official Executive Director – Richard Marden
I
t was not until 1957 that the Association had became a full-time operation. When the NHMA went full time in 1957, “it was an idea whose time had not come,” said the first Executive Director, Richard Marden, of Wolfeboro. At that time, he says, New Hampshire was very rural and the towns were not equipped to deal with or recognize the problems they had. When Marden began, his “office” was the anteroom outside the office of then Concord City Manager Woody Brackett. A grant from the Spaulding Foundation Charitable Trust allowed Marden to rent a room in the Concord Monitor Building and to hire a secretary. In trying to establish the goals and priorities of the Association, Marden pulled together a group of local officials and said “What is it you want to accomplish by the end of the year?” The group’s collective goal was to create an organization where towns and cities could speak with a common voice as well as share information. As a result, Marden created several new publications, including some that remain with us today: a newsletter, the Legislative Bulletin, and the New Hampshire Town and City Magazine. Collecting those municipal voices proved difficult. “I could spend half a day trying to find a selectman,” said Marden. In fact, town halls would be closed except for one night a week” when selectmen met to sign checks.” Coupled with the difficulty of tracking down local officials, getting these officials to think on a statewide basis was a challenge. “It was difficult to get a selectman in small towns. They were not ready to accept 22
NEW HAMPSHIRE TOWN AND CITY
that the towns had any problems they needed help with,” said Marden. And, if you thought your town meeting attendance was deplorable, Marden says that only 22 people attended NHMA’s annual meeting in New Castle! Marden found that towns were only then developing the problems that they are still struggling with today. “No one talked about acid rain, pollution, solid waste or planning.” Marden did discover, however, that every town had pretty much the same problems, “the root of which was a very bad relationship with the State.” Towns were creatures of the State, he says, “but the state was an inadequate parent, mandating what they wanted done but not giving towns the where-withal to raise the money.” Marden worked to raise the awareness among state officials that problems did exist on the local level, and it was this work that Marden says led the Association into a decline in the late fifties. At the time, legislation existed which allowed cities to spend
Richard G. Marden, NHMA’s first paid executive director died in 2014. After obtaining a degree in government from the University of New Hampshire, his entire working career was directed toward non-profit organizations, helping them better serve their citizens, towns, cities and school districts. He was the first town manager of Ashland, New Hampshire, and then directed the New Jersey School Boards Federation, the New Hampshire Municipal Association and the Pennsylvania League of Cities. Marden served as NHMA’s executive director from 1957-1959.
www.nhmunicipal.org
nization that Marden felt had become an integral part of the New Hampshire local government structure. “It was now an idea whose time had come.”
1962: Starting from Scratch
Photo of David L. Mann who served as NHMA’s second official executive director from 1962 to 1975.
money on dues for membership in the NHMA, but there was no legislation allowing towns to belong. A bill was introduced in 1959 to rectify the situation, but Governor Wesley Powell vetoed it, meaning no town could legally pay dues. The reason for the veto? During the election for governor, Marden developed a questionnaire asking the candidates to present their stance on municipal issues. “Powell never responded,” said Marden, who printed that the Association could only assume Powell had no policy for cities and towns or did not consider New Hampshire’s local officials worthy of his attention. The incident put Powell and the Association on opposite sides, which lead to the veto. “That veto would force the Association out of business, which is what Powell wanted,” says Marden. “Some say I made a mistake,” he says. “If I had my life to do over again I would do the same thing. I felt the members had a right to know what every candidate felt about local government.” Marden says he could see the end of the Association coming, so he took the position of Executive Director for the Pennsylvania League of Cities, a post he held for over twenty years. And although Marden says there were “no dramatic successes” during his tenure, he did lay the groundwork for the future – today’s NHMA – an orgawww.nhmunicipal.org
In 1962, the New Hampshire Municipal Association rose from the ashes and hired David Mann, as its’ executive director. Legislation that allowed towns to pay dues to a voluntary association was signed into law and cities and towns of New Hampshire once again had a common voice. “We had to pick it up; it was like starting from scratch,” says Mann, who joined the NHMA after serving as the Executive Director of the Vermont Development Commission. Office space was provided to the Association in a state building on South Street by none other than Governor Wesley Powell. Powell was the man who vetoed the measure to allow towns to belong to the NHMA. “I don’t know if he was trying to make amends or not,” says Mann. Attracting back the membership was not difficult in the early years, thanks to purchasing contracts negotiated with the State. “A town could pay its dues with its savings from supplies – tires, police cruisers – it saved the State money and it saved the cities and towns money.” The issue of money, how to save it, and how much municipalities got from the state was just as big an issue then as it is now. One of Mann’s biggest successes was a 40% state aid program involving water pollution grants. “That was the highest in the country,” he says. “But I never liked the idea that New Hampshire was fiftieth in state aid.” Mann not only fought for money for municipalities, he also fought for “enabling legislation” which allowed towns and cities more local control over such decisions as regulating junk yards, demolishing buildings, and creating conservation commissions.
Mann also worked to improve local government through such publications as the Selectman’s Handbook, Moderator’s Handbook, and Tax Collector Handbook. Mann even helped organize the Vermont League of Cities and Towns. With a supportive membership and a record of successes, the Association began to evolve into more than just an aid for cities and towns, the NHMA became an organization cities and towns relied on for expertise and information in all areas of local government. This expanded responsibility led to the addition of a personnel expert, a research assistant, and another secretary. The growth meant more space would be needed in the 1970’s so the Association moved to a home at 11 Depot Street in Concord, above what is now a restaurant called Sunny’s Table. Other notable events and activities during this time period include the following:
1962 In a letter dated August 17, 1962, the NHMA requested of the Attorney General an opinion as to whether the NHMA could purchase supplies from the state’s warehouse. The Attorney General responded “the New Hampshire Municipal Association is a private voluntary association, and is not organized as a governmental subdivision. The fact that its members are municipalities is not sufficient to change the private character of the corporation. Neither can it be deemed to be a state department or institution. In view of the above considerations, the answer to your question must be “no.”
1963 NHMA formed a special committee to meet with Governor John King on traffic paint prices. NHMA had sought to buy traffic paint from the state at state prices. At the time, the “special” municipal price was eight cents higher than the state price. MARCH/APRIL 2016
23
THE EARLY YEARS from page 23 NHMA sponsored its first group hospital and major medical plan with BlueCross-Blue Shield. Such plan enabled small town employees to be covered, as well as providing better rates. Twenty other state municipal leagues already had insurance plans in operation. New Hampshire Town and City Magazine was enlarged from its 6 X 9 format to the 8 ½ X 11 format that still exists today. NHMA began to explore the cost of belonging to the state retirement system.
1964 This was the year the NHMA released its comprehensive report entitled, Strengthening Local Government in New Hampshire. The Report was greatly anticipated by members and dealt with the basic governmental structure and intergovernmental relationships and made recommendations to improve local government services and relationships in certain functional areas such as public safety, public works and utilities, health and planning. In 1964, there were only 223 towns, two of which were established solely for the purpose of electing representatives to the lower house. Only 10 towns had populations over 5,000. In fact, the median population of all towns was about 850. The ten cities of the state had a total population of about 310,000, or a little over half of the state total population at the time. There were about 70 village districts and 24 unincorporated places. The 1960 census revealed a total population of 76 persons living in these unincorporated places, the vast majority of which were located in Coos County, the northernmost county of the state.
1965 Poll of membership indicated assessing, town planning, local relief and junk24
Strengthening Local Government in New Hampshire, A Survey Report, 1964 “A pattern of (ideal) intergovernmental relations would provide (1) a strong and vital state government assuming fiscal and administrative responsibilities characterized by statewide interests and (2) local units of government organized in an efficient and responsive manner to perform delegated local functions and services with a minimum of state interference.” That is one of the main conclusions of the $25,000 study, Strengthening Local Government in New Hampshire, which was prepared for the New Hampshire Municipal Association by Public Administrative Service, a prominent private governmental research organization. The first critical analysis of New Hampshire local government and its relation to the State in over thirty years, the study was sponsored by the Association from a grant obtained from the Spaulding Potter Charitable Trusts. yard control were the most pressing issues facing municipalities, followed by zoning, police and subdivision control.
town clerks, welfare, tax collectors, fire and police chiefs, public and water works associations.
Speaker of the House Walter Peterson addressed the NHMA regarding the need for a 2 ½% state income tax to eliminate the stock-in-trade, interest and dividends and livestock taxes.
1966
The Association voted to support a welfare program with towns and cities providing general relief for the first thirty days with a thirty day settlement law. At the time, New Hampshire spent $9 per capita less to meet welfare costs than other New England states, whose average was $24.30. In 1965, New Hampshire cities and towns received less state aid or shared taxes than anywhere in the United States. Property taxes as a percent of total state-local taxes were the third highest in the United States (63.4% of total state-local share). NHMA explored the possibility of forming an NHMA Advisory Committee, comprised of presidents of local officer associations including the
NEW HAMPSHIRE TOWN AND CITY
NHMA awarded two grants totaling $2,500 to study the removal of junk autos. NHMA explored proposing state legislation enabling cities and towns to borrow in anticipation of receipt of federal aid. Allowing towns and cities to set up special tax district for specified services in urban areas was added to NHMA’s policy positions.
1967 NHMA endorsed a new legislative policy to grant authority to towns to form economic development commissions with members appointed by selectmen. NHMA officials held a conference with Senate President Stewart Lamprey and House Majority Leader Marshall Cobleigh. Lamprey was glad to see NHMA slugging it out for what it felt was right and said the settlement law study was one of the results. He www.nhmunicipal.org
also stated the average legislator feels that NHMA gives careful consideration to legislation and does not put in frivolous bills. Mr. Cobleigh said that NHMA has an idealistic label but it shouldn’t stop promoting progressive measures since the Legislature needs a group to stimulate progress. NHMA voted to support a constitutional home rule amendment to allow cities and towns residual powers – those not specifically denied to cities and towns by the legislature or constitution. It also voted to prevent the legislature from riddling the property tax with exemptions without replacement.
a single and $14 for a double room. Two meals were available at $5.00 per plate and golf was $2.50. Membership dues totaled $23,900. NHMA urged repeal of certain vagrancy statutes, specifically RSA 576, Punishment of Tramps. RSA 576 allowed mayors and selectmen to appoint special constables to arrest tramps and provide a $10 bounty on conviction. Membership dues for village districts increased from $15 to $25. At the
time, only six of the 70 village districts were NHMA members.
1969 To balance the budget, some legislators suggested taking $10.5 million school aid and $4.5 million in rooms and meals tax aid from cities and towns. Sound familiar? Rep. Alex Cochrane briefed the Executive Committee on the legislative session and was kind enough to say “the selectmen in New Hampshire are the backbone of the state.”
Pressing concerns or issues among members were election laws, conducting a town meeting, budget committees, development control, taxes, and regional planning.
1968 NHMA received a $2,500 grant to hire a research assistant to study ambulance services in New Hampshire and make recommendations to better the system. New category of associate membership is formed for individuals at a cost of $5.00 per year. NHMA endorsed the need for tax reform. Since the property tax had increased 23% over the past two years and since the state is a low 50th in state aid for local services, the enactment of a broad-based state income or sales tax with its revenues used to either provide more aid for local services or to finance state and county costs now borne by local property taxes was supported. In 1968, cities and towns maintained 9,250 miles (70%) of the 13,218 total state and local highway mileage. NHMA North Country meeting was held at the Town and Country Inn in Shelburne. Room prices were $10 for www.nhmunicipal.org
April, 1971 cover of New Hampshire Town and City highlighted New Hampshire’s status of 50th in state aid to local government.
MARCH/APRIL 2016
25
THE EARLY YEARS from page 25 Rep. George B. Roberts, Jr., House committee chairman, recommended passage of a bill that would require all cities and towns to have an up-todate tax map by January 1, 1980. Map must show boundary lines of each parcel of land and be properly indexed and open to public inspection during regular business hours. NHMA would only support if the state provided at least 50% of the funding. The average city manager’s salary in New Hampshire was $16,123. NHMA membership stood at 13 member cities and 173 towns.
1970 As a result of 1969 changes to the bond law, the town of Salem invited all city and town officers to Salem High School for a meeting with Governor Walter Peterson. NHMA staff felt the 1969 bond law was of no help to harried municipal officials. A proposed amendment to existing NHMA policy called for “Septic disposal stations should be maintained by all towns so that the 110 “honey wagons” do not dump septic tank wastes indiscriminately.”
1971 The New Hampshire Planners Association, the New Hampshire Assessors Association, the New Hampshire Government Purchasing Association, and the New Hampshire Association of Conservation Commissions became affiliate members of NHMA. Primary legislative concerns in 1971 were revenue sharing, water supply and pollution control, solid waste disposal, highway aid, retirement program and collective bargaining.
26
Requirement for Effective Local Government “The substance of local government is in the services it renders to the community. This is the justification for its existence. Local government derives strength from the things it undertakes to do. It is the community, acting through its chosen officials, that, by providing for its own needs and solving its own problems, develops strong local government. The essence of this process is not the form of local political organization, nor even the manner by which officials are selected. The essence lies rather in the political environment that permits and encourages people to undertake governmental programs that have substance. The existence of a multiplicity of governmental units and the repeating of political generalizations about local autonomy are meaningless if a local government unit does not possess administrative, fiscal, and political resources to make it a self-governing community. Many of the towns in New Hampshire are not effective instruments of local self-government. They simply do not have the fiscal resources nor the talents to support services.” Source: Strengthening Local Government in New Hampshire, A Survey Report. 1964
NHMA offices located at 64 South Street in Concord.
mandated programs which cost the tax payers money.
Eugene C. Struckhoff, who served as an unpaid founding member and NHMA legal counsel in the late 1950’s, was recognized as an honorary member. Attorney Struckhoff was another prime mover who pulled NHMA together and made possible a Spaulding grant to provide professional staff.
Fire Chiefs Association of New Hampshire become affiliate members of NHMA.
In a controversial move, the NHMA increased its membership dues by 25% in order to expand its services and legislative capabilities to meet the increasing complexities of local government and to insure a viable relationship of the local government to the state and federal governments.
1972 NHMA supported the towns of Henniker, Bradford and others in contesting an action brought by the New Hampshire Legal Assistance Office against the paid towns, which action seeks to impose external standards for town poor relief. This action represented yet another case of outside
NEW HAMPSHIRE TOWN AND CITY
$10 Residence Tax produced over $2,077,718 for cities and towns in 1972. NHMA supported combining the $5 state head tax and $2 local poll tax into one tax for better administration and worth. Governor’s Executive Order No. 15 reduced the then-11 organized regional planning districts down to six super regions. This Order put the status of existing regional staff and plans very much in flux.
1973 NHMA moved offices to 11 Depot Street, 3rd floor office space providing two offices, toilet facilities, and five parking spaces. The staff consisted of three professional staff and one administrative secretary. NHMA investigated public liability insurance for municipal officials as www.nhmunicipal.org
well as a group workmen’s compensation plan. Present group NHMA programs on health, income disability, and life insurance have provided members with good coverage at a lower cost for municipal employees. Executive Committee voted to request legislation at the special session to help cities and towns meet the extraordinary costs of state foster child care in institutional and group homes.
1974 NHMA offered members a workmen’s compensation group plan with Argonaut Insurance. NHMA called on all municipalities, gas stations, and citizens to cooperate with basic Granite State Plan (evenodd system of gas distribution). David Mann retired from the Association, which stood at 195 member
municipalities and a staff of five fulltime employees. Looking back over his tenure, Mann says he is proud of the fact that he helped to take the Association from its groundwork, laid by Richard Marden, to the point where the state government and the legislature respected the Association as an effective organization representing the collective concerns of the towns and cities, which truly are the State of New Hampshire.
NHMA’s executive director salary was $17,600 in 1973.
www.nhmunicipal.org
MARCH/APRIL 2016
27
28
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
www.nhmunicipal.org
MARCH/APRIL 2016
29
UP CLOSE AND PERSONAL
T
he Up Close and Personal column is designed to give readers a closer look at NHMA Board members. In this issue, we introduce Candace Bouchard, Councilor for the City of Concord, Candace just began volunteering her time on the NHMA board in January. TC: What is your biggest challenge in performing your duties? CB: My biggest challenges are finding reasonable and sensible solutions that provide efficient and effective city services, along with providing good wages and benefits for city employees that are affordable for our citizens. TC: How has NHMA helped you to do your job? CB: When first elected as a councilor, I attended the training for newly elected local officials that was very beneficial. The Town and City magazine is also informative and keeps me up-to-date on municipal issues and legislative activity that may influence local government.
Candace Bouchard
TC: What lessons about human nature have you learned in your municipal role? CB: Most people want to work together to find solutions that keep their community safe, healthy and economically viable. Having an open and transparent government, I believe is very important in keeping citizens engaged. Citizens will participate if they know their concerns have been heard, discussed and know how a decision was debated and decided upon. TC: What advice would you give someone who would like to follow in your footsteps into this job? CB: Keep an open mind, always listen and respond to constituent communications, and treat everyone with respect.
30
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
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 local government officials from New Hampshire municipalities. In this issue, we hope you enjoy meeting Kim Reed, planning and zoning administrator for the Town of Rye.
TC: What are your duties and responsibilities as planning and zoning administrator? KR: My primary duty is the coordination of the planning board and zoning board of adjustment process. I am involved with the administration, compliance and review of applications and work with citizens, developers, engineers, attorneys and anyone with land use questions. I am the liaison between the planning and zoning boards and other boards, committees and Town departments as well as state and Federal regulatory agencies. My other responsibilities range from floodplain management, capital improvements planning, joint loss management clerk, and serving as the assistant to the Emergency Management Director. I prepare and administer federal and state grants and manage special projects for the Town, such as the Safe Routes to School program (FHWA, DOT), Parsons Creek Impaired Watershed (EPA) and Preparing for Climate Change (NOAA).
Kim Reed
TC: What is your biggest challenge in performing your duties? KR: My biggest challenge is working with people who are passionate about their positions and I need to work with both sides. Land use issues are divisive; in most cases there is a perception that there is either a winner or loser. When people are adamant about their position, this can sometimes be detrimental to the process when trying to work out solutions to an issue. TC: How has NHMA helped you to do your job? KR: NHMA has many valuable resources to assist me in my roles. They provide quality continuing professional education. I attend trainings, law lecture series and seminars. I look forward to the NH Town and City Magazine, Legal Q and A section to read how other towns are handling similar issues.
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 townandcity@nhmunicipal.org.
www.nhmunicipal.org
TC: What is the public perception about your job and how does it differ from the reality of your job? KR: The public perceives that I have a vote and that I can influence the Planning and Zoning Boards. In reality, I do not carry a vote. My job is to inform the boards and the public of the applications, the process and answer land use questions. I am responsible for the administration of the Planning and Zoning Boards as well as providing various administrative responsibilities for the Town. TC: Has your public position changed you personally? KR: Having served Rye for 14 years, I have developed thick skin. I did not realize how political small town government can be. I am a resident in the same town that I work for and it has altered the way I look at the town and the people within the town. MARCH/APRIL 2016
31
Tech
Insights By Tim Howard
What Technology Strategies are you Committed to in 2016?
H
ave you considered what your technology should look like in 2016, and in to the future? Technology is now a core piece of the business model. A high performance communications infrastructure is as critical to local growth as bridges or roads. By making strategic investments in technology solutions, local governments contribute to the economic growth of their communities, with faster delivery of services, effective communication, especially in critical situations, and more.
proving end-user experience, and simplifying your IT - another reason to go to cloud is security. While a lot of people were concerned with security in the cloud, organizations are now moving to the cloud because it offers better security than what you currently have implemented. Microsoft even offers a higher level security if you choose to use their government cloud. So whether you are looking to make an upgrade to just your email, or your entire infrastructure in 2016—keep it simple: utilize the cloud.
Top State CIOs from around the U.S. have discussed what their top technology priorities will be for 2016. Leading responses were security, cloud services, and systems consolidation and optimization. Let’s look at each of these in more detail:
Consolidation and Optimization
Security Security should come as no surprise since it has been on the top 10 list since 2006. And rightly so as human error and malware continue to be a large part of this issue. In 2016 ransomware / crypto viruses are projected to grow even more. As the Internet of Things (IoT) continues to grow, hackers are targeting items like wearables, cars, airplanes, elevators, HVAC systems, which are all connected to a larger network. It is increasingly obvious that password security is obsolete and there is a need for a technology that is compatible, open, scalable, and proven trustworthy. If your top priority for the 2016 year is to increase security for your networks and the connecting devices, start by taking inventory of connected items. Do you know what is connecting to your network? If you cannot identify some or all of the moving pieces, it might be a good idea to have a security assessment performed. Once everything is identified you can start to plan your security solutions more accurately and effectively.
Cloud Services Along with security, cloud services are also a top priority for leaders in your industry. Small organizations previously could not afford an enterprise level IT infrastructure, but the cloud changed that. Cloud Services can be called the “great equalizer.” It levels the playing field and creates the ability for any organization to remotely host a datacenter, rather than build one on premise. In addition to reducing IT infrastructure costs, lowering IT performance issues, im32
NEW HAMPSHIRE TOWN AND CITY
Although the thought of aging networks and infrastructure upgrades may seem daunting, it can actually be an exciting time. This is your opportunity to transform your infrastructure by using more efficient technologies. Whether you decide to host your network virtually or on premise you will have options that offer the most advanced technology yet. Consider the newest on premise servers: they can do what 3 servers used to do, and offer more storage than ever, with the availability to virtual desktops, and more. If you decide to virtualize your entire infrastructure in the cloud (a.k.a. IaaS), your options are endless. You can create your entire infrastructure instantly, and only pay for what you need when you need it. Scale up or down, now or later, and never have to worry about an expensive hardware upgrade again. Consolidation and optimization options are endless. The five steps to deciding the best consolidation and optimization plan: Step 1: Establish a Destination. Determine what your ideal and attainable goal is. Don’t be afraid to work with an experienced partner, it can save you time and money. Step 2: Discover. You need to discover all of the software and workloads you are running. You may not even know what you are running on your server. That is why a thorough “discover” process is essential. Step 3: Assess. Once you have discovered what is running in your environment, we suggest evaluating applications and workloads by type, criticality, complexity, and risk.
www.nhmunicipal.org
Step 4: Target. Different applications and workloads will need different targets. What is best for your new infrastructure? Modernizing your infrastructure and the workload to the latest technology will help you realize full benefits.
mitment starts at the senior level and continues down to the endpoint. Commitment to your improved technology is what will create your success in 2016.
Laconia. For FREE resources like virus removal tools, policy templates, an employee training kit, and more visit RMONnetworks.com/informationsecurity.
Tim Howard is President and CEO of RMON Networks located in Plaistow and
Step 5: Make the Move! While the above 3 items top the NASCIO’s 2016 top priorities list, still remaining are business intelligence and data analytics, and legacy modernization taking slots 4 and 5. At the bottom of the list are enterprise vision and roadmap; budget and cost control; HR and talent management; agile and incremental software delivery; and—shockingly—disaster recovery and business continuity. Whatever your 2016 technology strategies may be, make sure the initiatives share the commitment of not only the IT manager, but also that the com-
www.nhmunicipal.org
MARCH/APRIL 2016
33
The
HR
REPORT
Discipline with Dignity By Mark Broth
“All but one man died ... There at Bitter Creek ... and they say he ran away. Branded! Marked with a coward’s shame. What do you do when you’re branded, will you fight for your name? He was innocent ... not a charge was true ... but the world would never know. Branded! Scorned as the one who ran. What do you do when you’re branded, and you know you’re a man? Wherever you go for the rest of your life you must prove ... you’re a man. Branded, NBC TV Theme Song (1965-1966).
A
fter his run as TV’s The Rifleman (and a short stint as a member of the Boston Celtics), actor Chuck Connors played Luke McCord, a US Army officer who was the lone survivor of the fictitious “Bitter Creek Massacre.” Falsely accused of cowardice, he is dishonorably discharged. Each episode began with McCord standing at attention before the assembled troops. An officer ripped the lapels and buttons from his uniform, broke his sword, and tossed the broken pieces outside of the fort. McCord wandered the Old West for the next 48 episodes, trying to establish a normal life while being haunted by the accusation of cowardice. (For a peek at the opening scene, go to https:// www.youtube.com/watch?v=uV-7D4io1Rs) For this fictional version of the US Army, cowardice was an offense of such great magnitude that humiliation was an integral part of the disciplinary process. It was not enough to simply fire McCord; instead, the discharge process was intended to humiliate him before his peers and force him to carry the weight of his misconduct with him for the rest of his life. In the real world, employers need to obtain employee compliance with rules, policies, and procedures in order to assure that work is performed in a safe, efficient, and effective manner. Employers have many tools at their disposal to achieve those objectives. Employers can be selective in hiring; provide employees with appropriate orientation and training; be clear and consistent with regard to behavioral and performance expectations; provide employees with regular feedback and evaluation; and provide counseling and performance improvement guidance. When these measures are unsuccessful, or where the employee conduct or performance warrants a more direct and immediate response, dis34
NEW HAMPSHIRE TOWN AND CITY
cipline is another tool that can be used to help employees become successful. The ability of employers to impose discipline does not carry with it the right to strip employees of their dignity. I cannot think of any circumstances where the employer benefits from the employee’s humiliation. Being a supervisor gives you the right to make disciplinary decisions and to instruct employees how they can better perform their job duties. However, in our egalitarian society, being a supervisor does not make you a better person than the employees that you supervise. A disciplinary meeting is a time to make sure employees understand where their conduct or performance fell short of expectations and what they need to do to improve. It is not a time for generally questioning the employee’s values, ethics, or morals; commenting on their lifestyle, their families, or how they were raised; or opining on their shortfalls as human beings. The administration of discipline should be a private affair. Unless the goal is humiliation, a disciplinary meeting should involve only those necessary to attend, such as supervisors and HR representatives. The employee’s peers and subordinates should generally not be present. The fact, subject matter, and outcome of a disciplinary meeting is not information that should be disseminated throughout a workplace. Be mindful of the fact that personnel actions and records are exempt from disclosure under RSA 91-A, so employees have an expectation of confidentiality. “What do you do when you’re branded, will you fight for your name?” Employees can accept being disciplined, particularly when they have been made aware of what is expected of them and the consequences that will result if they fail to www.nhmunicipal.org
meet expectations. But employees will not accept an assault on their dignity and may feel compelled to contest a disciplinary action simply to restore their good name. As a result, administration of discipline in a disrespectful manner can lead to otherwise avoidable grievances or litigation. Employers should be mindful that almost everyone who serves on a jury is or was once an employee. In a lawsuit resulting from an employee termination, a plaintiff ’s lawyers will offer evidence that the employer lacked sufficient grounds for the disciplinary act. Plaintiff ’s counsel will also offer evidence regarding the manner in which the employee was fired. Jurors will be kind to an employer that made a good faith effort to assure that an employee was treated fairly and with dignity, even if they believe that the employer reached the wrong result. But if jurors believe that the employee was unneces-
www.nhmunicipal.org
sarily or intentionally humiliated, they will find a way to correct that wrong. The walk of shame may be appropriate in the Old West or King’s Landing, but has no place in the administration of workplace discipline. Mark Broth is a member of the DrummondWoodsum’s Labor and Employment Group and his 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 2016 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
MARCH/APRIL 2016
35
Legal
Q and A
By Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association
Ensuring a “Clean Vote” in Your Municipality 1. ELECTIONEERING Q: What is “electioneering”? A: The term electioneering is defined in RSA 659:43, RSA 659:44 and RSA 659:44-a as any act that is specifically designed to influence the vote of a voter on any question or office.
Q: Where is electioneering activity prohibited? A: Under RSA 659:43, no candidate for office, or those working on behalf of a candidate, shall distribute or post any campaign material within the building where the election is being held. In addition, no person shall distribute any campaign materials or perform any electioneering activities, or any activity which affects the safety, welfare and rights of voters, within a corridor 10 feet wide and extending a distance from the entrance door of the building where the election is being held as determined by the moderator.
Q: Are public officials prohibited from engaging in electioneering activities? A: RSA 659:44 prohibits electioneering at a polling place by any election officer. The term “election officer” is defined as “any moderator, deputy moderator, assistant moderator, town clerk, deputy town clerk, city clerk, deputy city clerk, ward clerk, selectman, supervisor of the checklist, registrar, or deputy registrar.” RSA 652:14. Although the heading of the statute would seemingly limit the prohibited electioneering by election officials to activities at a polling place, the NH Attorney General’s Office has interpreted RSA 659:44 as prohibiting any official action by an election official to endorse a candidate for office. According to the Attorney General’s Office it is a violation of RSA 659:44 for a select board to endorse a candidate for office while acting in their official capacity. However, an individual select board member could endorse a candidate in her individual capacity.
36
NEW HAMPSHIRE TOWN AND CITY
Q: Would this prohibition on electioneering by election officials also forbid advocating on issues pending before town meeting? A: Governing bodies can and do advocate for the adoption, or defeat of specific warrant articles. Nevertheless, there have been instances where the NH Attorney General’s Office has ordered a municipality to rescind or revise a voter guide claiming the information provided exceeded the permissible boundaries of simply informing the voters on an issue and strayed into impermissible electioneering. NHMA would recommend that voter guides educate the voters on the issues presented by any proposed budget or warrant article and state the position of the governing body and budget committee through their respective recommendations. Keep in mind the recommendations of the budget committee are limited to articles containing an appropriation, but, at least according to one superior court judge, the select board can express their recommendations on any article, including non-budgetary articles. See, Jeremy Olson v. Town of Grafton, Grafton County Superior Court, Docket No. 215-2015CV-00057, 3/9/15.
Q: Are public employees prohibited from electioneering? A: Under RSA 659:44-a, public employees are prohibited from electioneering while performing their official duties or using government property, including, but not limited to, telephones, facsimile machines, vehicles, and computers, for electioneering.
Q: What about political advertising on government vehicles? A: RSA 664:17-a prohibits the display of political advertising on any motor vehicle that: • Is used by a police officer authorized to make arrests or serve process; or
www.nhmunicipal.org
• Which displays government license plates and is registered in the name of the state or of a political subdivision of the state.
II. ELECTION OFFICIALS Q: Who presides over local elections? A: The Moderator is the chief local election official. RSA 659:9. The Moderator has the duty to ensure compliance with the election procedure statutes set forth in RSA Chapter 659.
Q: What other local officials must be in attendance at local elections? A: The Supervisors of the Checklist, RSA 659:10 and the Town Clerk, RSA 41:16.
Q: Must the entire select board be in attendance at all elections? A: Pt. 2, Art. 32 of the NH Constitution requires the attendance of the Select Board during voting and vote tabulation at a State General Election. For primary elections, the New Hampshire Attorney General’s Office takes the position that a quorum of the Select Board of must be present at all times. The New Hampshire Municipal Association (NHMA) does not share that view because NHMA believes that the duty to attend imposed on the Select Board stated in Pt. 2, Art. 32 of the New Hampshire Constitution only applies to the State General Election. Note also that where the presence of a select board member who is on the ballot is necessary to establish a quorum of the Select Board, the select board member may be present at the polling place, provided he or she is not within the guardrail.
Q: What election duties, if any, can be performed by a moderator or a select board member who is also on the ballot? A: If the moderator is on the ballot for an elective position, she is permitted to perform all of her election duties, except she shall not handle marked ballots and the counting of votes. However, if the moderator is on the ballot for the position of an election officer, she may carry out all of her election duties. If a select board member is on the ballot, he would be prohibited from handling marked ballots and he would also be prohibited from being within the guardrail during the counting of votes for an office for which he is a candidate. RSA 659:58; See also RSA 658:24.
•
Q: What disqualification provisions govern other election officials? A: RSA 659:58, Disqualification of Officials, states: Any election official, other than the moderator, who is also a candidate for office shall not be allowed to remain within the guardrail during the counting of votes for an office for which he is a candidate. Such official shall disqualify himself from election duties relating to the tabulation of votes; and the moderator shall appoint an assistant who shall take the same oath as, serve in the same capacity as, and have all the powers of the election official who is disqualified until such official may properly return.
•
III. POLLING PLACE ARRANGEMENTS AND PROCEDURES Q: What mandatory polling place arrangement procedures must be followed on election day? A: The following procedures are required on election day: • The flag of the United States must be displayed inside and,
www.nhmunicipal.org
•
•
weather conditions permitting, flown outside the polling place on election day. A guardrail shall be so constructed and placed so that only such persons as are inside such rail can approach within 6 feet of the ballot box and of the voting booths. The arrangements shall be such that the voting booths can be reached only by passing within the guardrail. The voting booths shall be in plain view of the election officers, and both they and the ballot box shall be in plain view of those outside the guardrail. Each voting booth shall have 3 sides enclosed, one side in front to open and shut by a door swinging outward or to be enclosed with a curtain. Each side of the booths shall be not less than 6 feet high. The booth shall be between 28 and 36 inches wide, and between 28 and 36 inches deep. The door or curtain shall extend to within 2 feet of the floor and shall be closed while the voter is marking his or her ballot. Each booth shall be well lighted and shall contain a shelf between 12 and 15 inches wide running the width of the booth at a convenient height for writing. Each polling place shall have at least one voting booth which is easily accessible to elderly persons and to persons with physical disabilities. The entrance handicapped accessible booth shall have a clear opening of at least 60 inches and shall have clearances that comply with the New Hampshire building code, RSA Chapter 155-A, and with standards implementing the Americans with Disabilities Act of 1990, 28 C.F.R. Part 36. Each polling place shall have table-top voting screens available for use in an election. Each voting screen shall consist of 3 panels, to be positioned on a MARCH/APRIL 2016
37
LEGAL Q & A from page 37 table or similar surface so that when a voter is marking a ballot he or she is provided privacy. Each panel of the screen shall be at least 17 inches high and 15 inches wide. RSA 658:9.
Q: Are there mandatory requirements for accessibility to the polling place by those with disabilities and the elderly? A: Polling places shall be easily accessible, as provided in RSA 658:9-a, to all persons including persons with disabilities and elderly persons who are otherwise qualified to vote. Where parking is provided for the polling place, there shall be at least one van-accessible parking space that is in compliance with the New Hampshire building code, RSA 155-A, and with standards implementing the Americans with Disabilities Act of 1990, 28 C.F.R. Part 36 and designated with the international symbol of accessibility. The paths of travel to and from the polling place shall comply with the accessible route requirements of the New Hampshire Building Code, RSA Chapter 155-A, and with standards implementing the Americans with Disabilities Act of 1990, 28 C.F.R. Part 36. RSA 658:9-a.
Q: What information is required to be posted at the polling place?
38
A: The following information is required to be posted at the polling place: • Sample ballots shall be posted outside the guardrail. For the general election, 2 sample ballots to be posted. For the state and presidential primaries, 2 sample ballots of each party are to be posted. At least one sample ballot for the general election and one sample ballot of each party for each of the primaries shall be posted no higher than 48” so as to be convenient for those voters in wheelchairs. RSA 658:26. • A voter instruction card prepared by the secretary of state shall be posted in each voting booth along with no fewer than 3 such cards posted immediately outside the guardrail. RSA 658:38. • The secretary of state shall prepare and distribute copies of the following RSA sections which shall be posted outside the guardrail at all elections: RSA 654:7-a, RSA 654:7-b, RSA 659:13, RSA 659:13-b, RSA 659:27, RSA 659:30, RSA 659:31, RSA 659:32, RSA 659:34, RSA 659:35, RSA 659:37, RSA 659:38, RSA 659:40, RSA 659:41, RSA 659:103, RSA 666:4, RSA 666:5, and RSA 666:8. • A notice prepared by the secretary of state explaining to voters the photo identification requirement in RSA 659:13, including all the permissible methods for proving
NEW HAMPSHIRE TOWN AND CITY
identity. Such notice shall also include the penalties as described in RSA 659:34. The governing body must have this photo identification notice posted at least 14 days prior to any election. During the election the poster must be placed outside the guardrail. RSA 658:29-a.
Q: What statutory provisions protect against ballot fraud? A: As provided in RSA 658:31, at or prior to the opening of the polls, the seal of the ballot packages delivered to the municipality by the secretary of state is publicly broken by the clerk and the ballots given to the ballot clerks to be examined and counted by the election officers in the presence of the clerk, the moderator, and at least one other legal voter. As provided in RSA 658:36, at the opening of the polls, the ballot box must be publicly opened and shown to be empty; and the election officers shall ascertain that fact by a personal examination of the box. Spoiled ballots must be marked cancelled and preserved. RSA 659:22. After the counting of the votes and announcement of the results by the moderator, the moderator must record and sign a ballots cast form prepared by the secretary of state within 48 hours of the closing of the poll. RSA 659:73 (VI). Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext 3408 or at legalinquiries@nhmunicipal.org.
www.nhmunicipal.org
Court
Update
By Stephen C. Buckley, Legal Services Counsel and Margaret M.L. Byrnes, Staff Attorney
Court Update, previously a regular column in New Hampshire Town and City magazine, has moved to the New Hampshire Municipal Association web site to provide more timely information to NHMA members. Opinions will be posted after they are released, and a reminder will be included here and sent in Newslink. To read previous Court Update columns, please visit www.nhmunicipal.org.
Now available online: Planning Board’s Decision not “Final Action” for TCA Purposes Global Tower Assets, LLC v. Town of Rome, United States Court of Appeals, First Circuit Case No. 151140, 1/8/16 Towns do not Assume Fiduciary Obligations or Tort Liability Under the Impact Fee Statute Town of Londonderry v. Mesiti Development, New Hampshire Supreme Court No. 2014-0291, 12/4/2015 Reckless or Wanton Conduct Required to Strip Officer of Immunity Farrelly v. City of Concord, New Hampshire Supreme Court No. 2014-0480, 12/23/2015 Officer Not Liable for Conducting Arrest at Public Meeting William Baer v. James Leach, U.S. District Court for New Hampshire, Opinion No. 2015 DNH 214, 11/24/2015
www.nhmunicipal.org
MARCH/APRIL 2016
39
Half-Time: A Mid-Session Legislative Update Wednesday, March 30 12:00 pm—1:00 pm
Upcoming Webinars NHMA will be hosting two webinars in March and April for members of the New Hampshire Municipal Association.
Half-Time: A Mid-Session Legislative Update
• Right-to-Know or Right to Privacy?
Join Government Affairs Counsel Cordell Johnston and Government Finance Advisor Barbara Reid for a look at the status of legislation affecting municipalities after "Crossover." Crossover is the date (March 24 this year) by which a bill must pass either the House or the Senate in order to "cross over" to the other chamber. This webinar will discuss the prospects for bills still alive at the State House, and offer a postmortem on a few that have been killed. The discussion will include, among others, local option fees, the Right-to-Know law, the retirement system, highway funding, planning and zoning issues, assessing, municipal tort liability, and other legal matters.
Right-to-Know or Right to Privacy? Wednesday, April 20 12:00 pm—1:00 pm Under the Right-to-Know Law, when the release of a file would constitute an invasion of privacy, it is exempt from disclosure. The meaning and application of this exemption often causes confusion and raises questions. Join Legal Services Staff Attorney Margaret Byrnes and Attorney Matthew Serge of Drummond Woodsum for a look at the case law interpreting this exemption and some real life examples to help you better understand when the right to privacy sufficiently outweighs the public’s interest in disclosure.
For details and registration information, visit www.nhmunicipal.org under Calendar of Events .
40
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
SAVE THE DATE!
29TH ANNUAL MOUNTAIN OF DEMONSTRATIONS Presented by the NH Road Agents Association Thursday, May 26, 2016 8:00 a.m.—1:00 p.m. Mount Sunapee Resort, Newbury, NH Come join the NH Road Agents Association, over 100 vendors and over 500 attendees for the Mountain of Demonstrations! This event offers live demonstrations, hands-on safety training, equipment trials, and more! This event is held rain or shine. We hope to see you there!
www.nhmunicipal.org
MARCH/APRIL 2016
41
Save the Date! 75th New Hampshire Municipal Association Annual Conference Wednesday and Thursday, November 16-17, 2016 The Radisson Hotel - Manchester, NH
42
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
www.nhmunicipal.org
MARCH/APRIL 2016
43
N E W
H A M P S H I R E
M U N I C I P A L
• Bond issue approved by governmental entity
• Audit by CPA Firm • Local bond counsel opinion
NEW HAMPSHIRE MUNICIPAL BOND BANK
44
B A N K
The Bond Bank’s Bond Sale Schedule
Basic Loan Requirements:
• Completed application approved by Bond Bank Board
B O N D
Bond Sale Date:
Application Deadline:
June 8, 2016
April 8, 2016
January 2016 Bond Sale Results - True Interest Cost for: 9 year loans 2.07% 15 year loans 2.11% 20 year loans 2.45% Are you planning a capital project for 2016? We can assist you with your planning by providing various scenarios based on level debt or level principal payments for different terms. Contact us now for your estimated debt schedules. To schedule a meeting, obtain debt service schedules, or for details about our schedule, fees, Bond Anticipation Note programs, and current interest rates, please contact Sheila M. St. Germain, Executive Director, at info@nhmbb.com or call (603) 271-2595 or toll-free in NH at (800) 393-6422. For more information, visit our website at www.nhmbb.org.
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
www.nhmunicipal.org
MARCH/APRIL 2016
45
Periodical Postage Paid at Concord, NH
25 Triangle Park Drive Concord, NH 03301
What’s the Real Value of Membership? + COMPREHENSIVE
FUTURE-READY BENEFIT PLANS
=
+ EDUCATION
& ENGAGEMENT
CONSULTATION
& LIVE SUPPORT
SAVINGS OVER THE
LONG TERM
You Do The Math. Please contact our Member Relations Advisor, Darlene Simmons at dsimmons@healthtrustnh.org or call 603.230.3327 today. www.healthtrustnh.org 800.527.5001