November/December 2017
TownandCity N E W
H A M P S H I R E
A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION
In This Issue:
2017 Annual Conference, Center Spread Quorum Quandaries...........................................................10 The Right-to-Know Law and the Duty of Confidentiality........................................................15 New Hampshire Supreme Court Clarifies Government Body’s Obligations Under RSA 91-A..........................17
Contents Table of
Volume LX • Number 6
November/December 2017
3 A Message from the NHMA Executive Director 5 Happenings 9 Upcoming Events 29 NLC Report: Why Transparency is Good (or Bad) for Governments? 30 Best Practice Series: Best Practice for Accountability and Transparency 33 This Moment in NHMA History/Name That City or Town 34 NHARPC Report: Reviewing Developments of Regional Impact in New Hampshire 36 Up Close and Personal in the Field: Jessica Jarvis 37 Up Close and Personal in the Field: Nathan Fogg 38 Legal Q and A: Law Enforcement Records Under the Right-to-Know Law
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
10
Quorum Quandaries
15
The Right-to-Know Law and the Duty of Confidentiality
17
New Hampshire Supreme Court Clarifies Government Body’s Obligations Under RSA 91-A
19
Government Management of E-mail: What’s in Your Municipalities In-box?
21
Right-to-Know Commission Convenes Organizational Meeting
Cover Photo: Hudson Town Hall, Hudson, NH. Photo by Scott Gagne, Graphic Designer.
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 2017 New Hampshire Municipal Association
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NOVEMBER/DECEMBER 2017
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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.
Seated, left to right: Caroline McCarley (Mayor, Rochester), Elizabeth Fox (Assistant City Manager/Human Resource Director, Keene), Shaun Mulholland (Town Administrator, Allenstown; Treasurer), Donna Nashawaty (Town Manager, Sunapee; Vice Chair), Brent Lemire (Selectman, Litch eld, Chair), Candace Bouchard (Councilor, Concord; Secretary), Scott Myers (City Manager, Laconia, Immediate Past President), Priscilla Hodgkins (Clerk/ Tax Collector, New Castle), and Chris Dwyer (Councilor, Portsmouth). Standing, left to right: Eric Stohl (Selectman, Columbia), Bill Herman (Town Administrator, Auburn), Patrick Long (Alderman, Manchester), Philip D’Avanza (Planning Board, Go stown), Shelagh Connelly (Selectman, Holderness), Hal Lynde (Selectman, Pelham), John Scruton (Town Administrator, Barrington), Stephen Fournier (Town Administrator, Newmarket), David Caron (Town Administrator, Derry), Jim Maggiore (Selectman, North Hampton), Teresa Williams, Town Administrator, Wake eld,* Butch Burbank (Town Manager, Lincoln) and David Stack (Town Manager, Bow). Missing: Ben Bynum (Clerk/Tax Collector, Canterbury), Elizabeth Dragon (City Manager, Franklin), and Nancy Rollins (Selectman, New London). *Teresa Williams resigned in November 2016.
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NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
A Message from the
Thank you to our 2017 Town & City Advertisers Avitar Associates Angell & Company CMA Engineers Drummond Woodsum Donahue, Tucker + Ciandella Dubois & King Gardner, Fulton & Waugh, PLLC Harriman Architects HEB Engineers, Inc. HealthTrust, Inc. IMCA-RC Melanson, Heath & Co, P.C. Mitchell Municipal Group, PA Municipal Resources, Inc. New Hampshire Municipal Bond Bank OTT Communications Peoples United Bank PFM Asset Management, LLC Preti Flaherty Primary Bank Primex Roberts & Greene, PLLC
NHMA
Executive Director Judy Silva
I
n this issue we explore the Right-to-Know law and the need for all local officials and employees to understand the law and their responsibilities regarding both public meetings and governmental records.
While there are critics who have said that NHMA advises its members on how to “get around” the RTK law, we beg to differ! Many people are surprised to learn how much NHMA does to educate its members on the requirements of the law. We see it as our responsibility to provide the best possible legal advice and training to local officials so that they comply with all laws—including the RTK law, which comes into play every day in city and town halls across the state. NHMA’s legal staff answer many RTK law questions through the legal advisory services hotline; employees and local officials may call NHMA’s attorneys for legal advice on their municipal responsibilities, and that includes how to comply with the RTK law and how to respond to RTK requests. NHMA also presents at least two webinars each year on the RTK law—training for members that can be done without leaving their town or city hall office. Because the RTK law is a part of almost everything that municipalities do, it is a subject at virtually every training program conducted by NHMA. Our Local Officials Workshops series, which are designed specifically for newly-elected local officials, devotes a significant segment on the RTK law, and it is covered in Knowing the Territory, which is the handbook used for those workshops. In addition, our annual conference, which draws over 500 local officials, always contains at least two RTK law sessions.
In 2017, NHMA launched a new RTK law initiative—a brand new publication, A Guide to Open Government: New Hampshire’s Right-to-Know Law, which is a comprehensive overview of the statutory and case law on the subject. This is a “must-have” reference book for every board, committee, commission, and sub-committee in every town, city and village district in New Hampshire. Staff has already presented two full-day workshops using this Guide, and have another scheduled for Wednesday, December 6th, at NHMA offices. In closing, the NHMA Board of Directors and staff strongly support the Rightto-Know (RTK) law. Our attorneys work very hard to help members comply with the law—work that is unmatched by any other organization in the state.
RPF Environmental Tighe & Bond, Inc.
Warmest regards,
TD Bank Underwood Engineers Upton & Hatfield, LLP Vachon Clukay & Company, PC
www.nhmunicipal.org
Judy Silva NHMA Executive Director
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NEW HAMPSHIRE TOWN AND CITY
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HAPPENINGS The National League of Cities (NLC) convenes the state league directors every year in August. The states are divided into 8 regions, and the regions take turns hosting the summer meeting. This year was Region I’s turn, and it was hosted in Burlington, VT. Among other purposes, it is helpful to hear what is going on in the other states, both in terms of legislation and member services.
Region I state league directors--present and former, taken August 4th at the National League of Cities Summer State League Directors Meeting in Burlington Vermont. From l-r: Dan Beardsley, former ED Rhode Island League of Cities and Towns; Judy Silva, ED New Hampshire Municipal Association; Chris Lockwood, former ED Maine Municipal Association; Steve Jeffrey, former ED Vermont League of Cities and Towns; John Andrews (seated), former ED New Hampshire Municipal Association; Joe DeLong, ED Connecticut Conference of Municipalities; Maura Carroll, ED Vermont League of Cities and Towns; Brian Daniels, ED Rhode Island League of Cities and Towns; Steve Gove, ED Maine Municipal Association. Missing--Geoff Beckwith, ED Massachusetts Municipal Association; Peter Baynes, ED, New York Conference of Mayors.
Local Government Community Mourning Loss of Public Servant Lee Mayhew Many in the New Hampshire municipal community were saddened to learn of the passing of Lee Mayhew this past July. For over 18 years, Lee served as the Town Administrator for the Town of Milford and actively participated on numerous boards and committees throughout the www.nhmunicipal.org
On another NLC note, this year NHMA’s Executive Director, Judy A. Silva, received NLC’s John G. Stutz award which is presented to individuals who have served a total of 25 years or more on the staff of a state municipal league. The award has been given each year since 1981 to recognize the contributions of long-time staff members. The award is named in honor of John G. Stutz, who convened representatives of ten state municipal leagues in 1924 in Lawrence, Kansas for the first meeting of what was to become the American Municipal Association, and subsequently the National League of Cities. This year the NLC honored our own Judy Silva for her 25 years of service to the NHMA. Congrats Judy!
state. Even after retiring, his desire to serve the public continued, as he was elected to the select board in the Town of Lyndeborough where he resided. Lee was serving as chair of that board at the time of his death. While in Lyndeborough, Lee was involved in all aspects of town government, including the major reconstruction of Mountain Road, a 3-mile road project costing $2 million. Lee initiated improvements to the handicap parking area at town hall and access to the boat ramp at Putnam Pond. He also worked closely with town staff de-
veloping an improved budget process providing greater accountability and transparency of the town’s finances. According to Lyndeborough Town Administrator Russ Boland, Lee’s biggest attribute was “his ability to offer his experience and wisdom in a caring mentoring way to all he met. I was fortunate to know Lee Mayhew; he is and will be missed,” said Boland.
Happy 30th Anniversary to VHB! VHB, an architecture, landscape architecture, geotechnical, environmental, NOVEMBER/DECEMBER 2017
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HAPPENINGS from page 5 and civil, structural, and multidiscipline engineering firm, celebrated their 30th anniversary recently. Since opening their doors to the Bedford, New Hampshire, office in 1987, VHB professionals have worked with many New Hampshire municipalities to revitalize downtown areas; construct safer streets for motorists, pedestrians, and bicyclists; restore and protect our natural resources—and more.
our speakers for their time and efforts. NHMA’s Government Finance Advisor, Barbara Reid, provided a review of municipal funding in the biennial state operating budget, as well as funding for cities and towns provided in separate legislation outside the budget.
Happy Anniversary VHB!
Above, Attorney Katherine Miller of Donahue, Tucker & Ciandella (DTC), gestures to members while fellow attorney, Justin Pasay, seated, listens intently.
From left to right, VHB’s Pete Walker, Marty Kennedy facing center, and Bill Ashworth.
Budget and Finance Workshops Help Ensure Successful Budget Season NHMA’s Budget and Finance Workshops held in Bedford and Bartlett in September provided valuable training to 231 individuals serving their municipalities as selectpersons, finance directors, treasurers, budget committee members, town managers/administrators, town clerks, tax collectors and in other capacities. Workshop attendees benefited from educational sessions presented by NHMA’s Legal Services Counsel, Stephen Buckley, and Staff Attorney Margaret Byrnes that reviewed municipal budget law and ways on how to finance municipal budgets. A group of local finance experts shared their tips for successful budgeting, including Judie Belanger (Portsmouth), Betsy McClain (Hanover) and Judie Milner (Franklin). NHMA thanks 6
Municipal Law Lecture Series Held in Two Locations Around the State! In past years, NHMA hosted a series of law lectures, typically held on three consecutive Wednesdays, from 7:00 pm – 9:00 pm, around the state in various locations. Due to dwindling member attendance at some of these regional lectures, NHMA reformatted the schedule this year to two full-day workshops, one in Gorham and the other in Concord. Initial member feedback for this new format has been very positive. This year over 110 members attended these Saturday workshops. The topics of this year’s program included the procedural basics for planning and zoning boards, managing the approval process for wireless facilities; and water quality, water protection, and water management. NHMA would like to thank the following speakers for their time and efforts: Attorneys Laura Spector-Morgan and
NEW HAMPSHIRE TOWN AND CITY
Steven Whitley of the Mitchell Municipal Group, PA; Attorneys Katherine Miller and Justin Pasay of Donahue, Tucker & Ciandella; and Attorneys Ari Pollack and Robert Dietel of Gallagher, Callahan & Gartrell.
NHMA Offered Valuable Right-to-Know Training in September About forty members took advantage of valuable Right-to-Know training held on September 14th at NHMA offices in Concord. NHMA’s Legal Services Counsel Stephen Buckley, Staff Attorney Margaret Byrnes, and Government Affairs Counsel Cordell Johnston addressed 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. In addition to this training, attendees also received the new NHMA book, A Guide to Open Government: New Hampshire’s Right to Know Law. Has your city or town ordered NHMA’s new Right-to-Know Law book? If not, it’s time to order this “must-have” reference guide for your town or city offices. When confronted with the numerous legal issues surrounding New Hampshire’s Right-to-Know Law, you will want to have this Guidebook available to both appointed and elected officials. Includes top ten compliance tips, public meeting and government records posters, flow charts and checklists. Get current by going to NHMA’s online store at www.nhmunicipal.org/shop to order your reference copy today!
NHMA’s Staff Attorney, Margaret Byrnes, addresses members questions during the Right-toKnow Workshop in Concord.
www.nhmunicipal.org
2018 Town & School Moderators Workshops Beginner & Advance Training Available
SB 2 Meeting Saturday, January 13
Snow date: Saturday, January 27
Traditional Meeting Saturday, February 17
Snow date: Saturday, February 24
9:00 a.m.—1:00 p.m. 25 Triangle Park Drive, Concord, NH Cost: $40
Registration and continental breakfast begin at 8:30 a.m. Attendees will receive a copy of NHMA’s 2018-2019 edition of Town Meeting and School Meeting Handbook. Topics include: The Basic Law of Town, Village District and School District Meeting Statutes governing the moderator’s duties at town, village district and school district meetings will be discussed along with issues related to warrant articles, the operating budget, secret ballot voting and other town meeting issues. These topics will be addressed in two concurrent sessions tailored for new and experienced moderators. Ample time will be devoted to questions and answers.
Strategies for Running a Smooth Meeting Moderators are faced with a challenging task: keeping meetings focused and fair to all participants, while effectively facilitating the flow of debate. This session will highlight suggested strategies for running respectful and efficient meetings. Sample Scenarios A series of sample scenarios will help attendees prepare for a wide range of meeting challenges. Customized Training for Beginner & Advanced Officials The workshop will be divided into beginner and advanced sections catering to the needs of newlyelected officials as well as seasoned veterans.
Register online at www.nhmunicipal.org under CALENDAR OF EVENTS. Online pre-registration required one week prior to each date. Questions? Call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org
www.nhmunicipal.org
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N E W
H A M P S H I R E
Basic Loan Requirements: • Bond issue approved by governmental entity
M U N I C I P A L
June 2017 Bond Sale Results True Interest Cost for: 10 year loans 1.76% • 15 year loans 2.34% 20 year loan 2.67% • 25 year loan 3.15% 29 year loan 3.33%
• Audit by CPA Firm
Are you planning a capital project for 2018? 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.
NEW HAMPSHIRE MUNICIPAL BOND BANK
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B A N K
The Bond Bank’s Next Bond Sale Issue will be on January 10, 2018
• Completed application approved by Bond Bank Board
• Local bond counsel opinion
B O N D
NEW HAMPSHIRE TOWN AND CITY
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 Tammy J. St. Gelais, 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.
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Upcoming
Events NOVEMBER Webinar: Do I Have a Conflict of Interest? Wednesday, November 1 12:00 p.m. – 1:00 p.m. NHMA Annual Conference and Exhibition Radisson Hotel, Manchester Wednesday, November 15 9:00 a.m. – 4:30 p.m. NHMA Annual Conference and Exhibition Radisson Hotel, Manchester Thursday, November 16 9:00 a.m. – 4:00 p.m. Thanksgiving Day (NHMA Offices Closed) Thursday, November 23
www.nhmunicipal.org
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. Day After Thanksgiving (NHMA Offices Closed) Friday, November 24
DECEMBER Webinar: NHACC and YOU: Working Together to Protect New Hampshire’s Natural Resources Wednesday, December 13 12:00 p.m. – 1:00 p.m. Workshop: Right-to-Know Law Wednesday, December 6 9:00 a.m. – 4:30 p.m. NHMA Offices, 25 Triangle Park Drive, Concord Christmas (NHMA Offices Closed) Monday, December 25
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quoru quandarie
quorum Quandaries
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NEW HAMPSHIRE TOWN AND CITY
By Cordell A. Johnston
www.nhmunicipal.org
T
he concept of a quorum is fundamental to local government. A quorum must be present for a public body to take effective action, and when a quorum of a public body is convened to discuss or act upon matters within its jurisdiction, openmeeting requirements apply. See RSA 91-A:2.
Most people understand generally what a quorum is: “the number of members [of a public body] who must be present . . . before business may be transacted.” Appeal of Net Realty Holding Trust, 127 N.H. 276, 278 (1985) (quoting Black’s Law Dictionary 1130 (5th ed. 1979)). In New Hampshire, certain statutes define a quorum for specific public bodies. See, e.g., RSA 49-C:12, I (majority of city council or board of aldermen constitutes a quorum for the transaction of business); RSA 41:8 (majority of selectmen “shall be competent in all cases”); RSA 673:10, III (majority of the membership of a land use board constitutes a quorum). In some cases the governing law or rules set a quorum at more or less than a simple majority. For example, RSA 162-H:4-a states that a quorum of the state’s ninemember Site Evaluation Committee is seven members. Similarly, section 3.7 of the Durham town charter states that a quorum of the town council shall be “twothirds of the members currently in office.” In the absence of such a provision, “a majority ordinarily constitutes a ‘quorum’ which can take effective action.” First Federal Savings & Loan Association v. State Board of Trust Company Incorporation, 109 N.H. 467, 469 (1969). That’s easy enough. You need a quorum to transact business, and a quorum ordinarily (but not always) is a simple majority of the public body. If a quorum doesn’t show up, the public body can’t take any action. But that is only the beginning of the questions. Is the number that constitutes a quorum affected by vacancies on the board? Can an alternate member be counted to make a quorum? What if a quorum is present but, because of abstentions or disqualifications, less than a quorum votes? If a quorum is not present, can the members present continue to meet? If a quorum is present at the beginning of a meeting, can it still take action after it loses a quorum? Excellent questions! Read on.
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QUORUM from page 11
Vacancies and quorums. Assume a public body of nine members. Two members have resigned recently and have not been replaced, so there are seven active members. (It is not a land use board, so there are no alternates.) If four members show up for a meeting, is a quorum present? Is a quorum a majority of the authorized nine-person membership (five), or a majority of the seven members currently serving (four)? Unfortunately, there appears to be no clear answer to this question in New Hampshire. No statute addresses it, and the New Hampshire Supreme Court does not appear to have had occasion to address the question directly. The court did make a passing comment on the issue in one case, but its statement is of questionable significance. In Appeal of Net Realty Holding Trust, 127 N.H. 276 (1985), an appeal from a decision of the Board of Tax and Land Appeals, the supreme court stated, “When there is a vacancy [in a public body], unless a special provision is applicable, a quorum will consist of the majority of the members remaining qualified.” See 127 N.H. at 277 (quoting P. Mason, Manual of Legislative Procedure § 501, at 337 (1970)). If that is the law, the answer to our hypothetical question is that four of the seven remaining members will constitute a quorum. However, the court’s statement was a mere dictum—a statement by the court that was not necessary to its decision. A dictum ordinarily is not considered to establish any precedent, so the question may still be considered unsettled in New Hampshire. Still, it never hurts to be able to quote the supreme court in support of one’s position. Thus, if a public body has 12
one or more vacancies, it is probably safe to take the position that a majority of the remaining members constitutes a quorum—at least until the court, or the legislature, decides otherwise. However, an even better approach is to get those vacancies filled as soon as possible, so there is no need to worry about the question. For most public bodies, there is a clear method for filling vacancies, and there should be no reason for significant delay (unless no one can be found to fill the vacancy—an all-too-common situation, unfortunately). Further, because most public bodies consist of an odd number of members, the question will not arise unless there are at least two vacancies. (A majority of nine is five. If one resigns, leaving eight, a majority is still five. This works with any oddnumbered membership.) The question might also be avoided by having clear definitions in the governing document. As noted above, the Durham town charter defines a quorum of the council as “two-thirds of the members currently in office.” That is clear. There are nine seats on the council, so a quorum ordinarily is six; but if there are only six members currently in office, a quorum is four. If a different rule were preferred, the charter could define a quorum as “two-thirds of the authorized membership of the council.”
Do you need a quorum to create a quorum? Let’s assume the court’s statement in Net Realty Trust does not prevail, and in fact a quorum is deemed to be a majority of the total number of positions, not merely a majority of the members currently serving. Now assume a fiveperson board of selectmen. A quorum is three members, but three members have resigned, leaving only two. (Stranger things have happened.) If a quorum is still defined as three mem-
NEW HAMPSHIRE TOWN AND CITY
bers, it is now impossible to assemble a quorum. Since vacancies on a board of selectmen are filled (until the next election) by vote of the remaining selectmen, is it impossible for the two remaining selectmen to fill the vacancies, and therefore impossible for them to do anything? No. The applicable statute, RSA 669:63, states that vacancies on the board of selectmen shall be filled “by appointment made by the remaining selectmen.” It does not say “by action of the board.” In this case, there are two remaining selectmen, and they are authorized to fill the vacancies, regardless of whether they are considered a quorum of the board. The same applies to elected land use boards, which have a similar provision for filling vacancies. RSA 673:12, I, states that vacancies on an elected board shall be filled “by appointment by the remaining board members.” Thus, if an elected seven-person planning board finds itself with only three members left because of resignations or deaths (or because nobody wanted to run), the three remaining members may fill the vacancies, regardless of whether a quorum is three or four. For most other boards, the question does not arise, because vacancies are filled either by election or by an appointing authority external to the board. For example, with an appointed land use board, the governing body is responsible for filling vacancies; and most (not all) city charters provide that vacancies on the council or board of aldermen are filled by special election.
Can alternate members be counted to make a quorum? The use of alternate members depends on the particular statute that authorizes alternate members. The most frequent use of alternate members is on land use boards, so let’s consider a www.nhmunicipal.org
hypothetical situation involving a land use board. On a seven-person planning board, only three regular members show up for a scheduled meeting. In addition, two alternate members are in attendance. Can they be counted to make a quorum? Of course! RSA 673:11 states, “Whenever a regular member of a local land use board is absent . . . , the chairperson shall designate an alternate, if one is present, to act in the absent member’s place.” If an alternate is going to act in place of a regular member, why shouldn’t he or she count toward a quorum? The alternate essentially assumes the status of a regular member. Someone inclined to nit-pick might point out that the alternate member has no legal status (and therefore can’t count toward a quorum) until he is actually designated by the chairperson, which presumably happens at a meeting—and how can a meeting occur if there is no quorum? This chickenand-egg conundrum has actually been presented to NHMA on at least one occasion, and it is a good example of over-thinking a problem. If there are enough regular and alternate members present to make a quorum, it would be absurd to say that a quorum of regular members must be present before alternate members can be designated to make a quorum. Another path to the same answer is that the statute gives the power of designation to the chairperson—not to the board. Since it does not require board action, the chairperson can make the designation before the meeting officially begins, and then declare a quorum. However: Remember that on a land use board, the alternate for the selectmen’s or council’s representative www.nhmunicipal.org
is designated only as an alternate for that person. Assume, for example, on a seven-member planning board, three regular members show up, including the selectmen’s representative. The only alternate present is the alternate for the selectmen’s representative. That alternate may not participate as a regular member, because the selectmen’s regular representative is present; thus, there is no one for the alternate to replace, and it is impossible to make a quorum.
What if a quorum is present, but less than a quorum votes? Assume a board of aldermen with seven members. A quorum is four. At a meeting where six members are present, a motion is made and a vote is taken. Three members vote in the affirmative; the other three all abstain. Does the motion pass? A quorum was present, but less than a quorum voted. Yes, the motion passes. The New Hampshire Supreme Court has addressed this issue on several occasions. In fact, it considered the exact situation just suggested in Attorney General v. Shepard, 62 N.H. 383, 384 (1882), and held that in the absence of an express rule to the contrary, if a quorum is present, a proposition is carried by a majority of the votes cast. It does not matter that the number of votes cast is less than a quorum. The court reaffirmed that rule more recently in Town of Merrimack v. McCray, 150 N.H. 811, 813 (2004) (“So long as a majority of the board is present, only a majority of the votes actually cast is necessary to support an action.”); see also Opinion of the Justices, 98 N.H. 530, 531-32 (1953) (“[I]f [members] present should choose to remain silent, or otherwise abstain from voting, their action will not defeat the action of those who vote, but will be taken as acquiescence or concurrence in the action supported by the majority of the votes cast . . . .”). Thus,
as long as a quorum is present, a question could even pass by a 1-0 vote. (There are some exceptions to this, perhaps the most notable being the provision in RSAS 674:33, III, that the affirmative vote of at least three zoning board of adjustment members is necessary to decide any matter in favor of an applicant.) As an aside, why would someone abstain, anyway? Setting aside those situations (discussed below) when a member is disqualified or recused because of prejudice or a conflict of interest, there are few if any reasons for a member of a public body to decline to vote on a matter that is properly before the body. “I don’t want to take a position” or “I’m undecided” is not a legitimate reason. Members are elected or appointed to a public body to make decisions, and they should be expected to do so, regardless of difficulty, except in unusual circumstances.
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QUORUM from page 13
What about disqualified members? Although a quorum is not defeated by abstentions, the disqualification (sometimes called recusal) of members because of prejudice or conflict of interest is a different matter. This arises primarily with land use boards, because they frequently sit in a judicial capacity, in which they are held to a high standard of impartiality. Under RSA 673:14, no member of a land use board may “participate in deciding or . . . sit upon the hearing of any question which the board is to decide in a judicial capacity” if the member has a personal or pecuniary interest or would be disqualified from serving as a juror on the same matter in an action at law. Although there is no statutory or case law in New Hampshire that directly addresses the effect of disqualification on a quorum, the structure and purpose of the law make it pretty clear that a disqualified member should not be counted for quorum purposes. Again, under RSA 673:14, the member is not permitted to “participate in deciding or . . . sit upon the hearing”; thus, the member is effectively rendered absent, even though he or she is physically present. This is quite different from being present and able to vote, but simply choosing not to. The statute on designating alternates, RSA 673:11, reinforces that view. It states, “Whenever a regular member of a local land use board is absent or . . . disqualifies himself or herself, the chairperson shall designate an alternate, if one is present, to act in the absent member’s place . . . .” This statement treats a disqualified member exactly the same as an absent member—even to the point of dropping the separate reference to disqualification in the second part of the sentence. If a disqualified member 14
is deemed to be absent, surely the member cannot be counted toward a quorum—and of course, that is one of the reasons for having an alternate. Further, as explained above, the alternate member does count toward a quorum, and it would make no sense to count both the alternate and the regular member whose place he is taking. But even if there is no alternate available, so that the double-counting issue does not arise, it is only sensible that if an alternate would (if present) count toward a quorum, then the disqualified regular member does not.
Can a public body still act if a quorum disappears? Six members of the eleven-member council are present when the meeting begins. One of the six leaves before all business is finished. Can the remaining five members continue taking official action on remaining agenda items? No. Almost all definitions of “quorum” refer to the number of members necessary to “take action” or to “transact business.” The importance of a quorum doesn’t end once the meeting convenes. Although there is no need to adjourn the meeting immediately (see discussion below), a quorum must be present for the body to take action.
Can a quorum be present for some purposes but not for others? Sure. Imagine that five members (no alternates) show up for a meeting of a seven-person planning board. Of the several items on the agenda, one is a subdivision hearing, for which two members must disqualify themselves, leaving no quorum for that hearing. The hearing will need to be rescheduled, but a quorum is still present for the meeting, and the board may act on any other matters before it.
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Must the meeting end if a quorum disappears? Some people fear that something awful will happen if a board goes ahead with a meeting when a quorum fails to show up, or when a quorum is defeated because one or more members leave during the meeting. It is not unusual to hear someone say, “We can’t meet— we don’t have a quorum.” Of course you can meet—you just can’t do anything. There is no law against members discussing matters within the board’s jurisdiction when less than a quorum is present. The legal issues surrounding meetings of public bodies arise primarily when a quorum is present. If a quorum is present and the board is discussing matters within its jurisdiction, it is a “meeting” under the Right-to-Know Law, and the requirements of that law apply (notice, public access, minutes). If a board has posted proper notice of a public meeting and a quorum fails to show, there is nothing to stop the members present from discussing the items on the agenda. Because a quorum is not present, there is no “meeting” under the Right-to-Know Law, so the members could actually kick the public out and meet privately—but that is not a good idea for several reasons. Instead, if the members want to meet, they should continue to meet in public, just as if a quorum were present, but not take any action. Again, because it is not a “meeting” under the Right-to-Know Law, there is no requirement to keep minutes; but it is probably a good idea to keep very basic minutes (noting that a quorum was not present), to avoid questions later about why there are no minutes of that meeting. Cordell A. Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He may be reached at 603.224.7447 or at governmentaffairs@nhmunicipal.org. www.nhmunicipal.org
The Right-toKnow Law and the Duty of Confidentiality By Margaret M.L. Byrnes Manchester Mayor, Ted Gatsas, being sworn into office.
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he purpose of the Right-to-Know Law is “to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” RSA 91-A:1. As the New Hampshire Supreme Court has said many times, a court will interpret the law in favor of openness and access. Therefore, if a public body or agency seeks to withhold information or conduct conversations behind closed doors, the body or agency has the burden of proving it is justified in doing so under the law. However, despite this mandate of openness, under certain circumstances, a public official is required to keep information confidential—or else face removal from office. RSA 42:1 requires all town officers to take the oath of office found in Part 2, Article 84 of the New Hampshire Constitution. RSA 42:1-a, I, provides that a town officer who violates the oath can be removed from office by petition to the superior court. Paragraph II goes on to say that a violation of the oath of office occurs when a town officer divulges information to the public that he or she learned through his or her official duties or official position in the municipality, under narrow circumstances found in II (a) and (b): A. Public Body Voted to Withhold Information For a municipal officer to violate subparagraph (a), three elements must be true: (1) the officer learned the information in a properly-held nonpublic session, (2) the public body properly sealed the minutes of that session, and (3) the information divulged from that nonpublic session would do one or more of the following:
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(a) constitute an invasion of privacy, (b) adversely affect the reputation of a person, other than a member of that public body, or (c) render some action ineffective if disclosed. (Note that “reputation” and “render a proposed action ineffective” are also proper purposes for sealing nonpublic session minutes under RSA 91-A:3, III.) Therefore, assume the select board holds a proper nonpublic session to discuss an investigation of misconduct and potential dismissal of a town employee. The minutes are sealed, perhaps because they are “likely to adversely affect reputation” under RSA 91-A:3, III. One of the board members takes to Facebook and posts the details of the charges and why he believes they’re unfounded. With this post, the select board has likely violated his oath of office—since the information would likely constitute an invasion of privacy or adversely affect the employee’s reputation (or both)—and he could be removed from office through a court action. RSA 42:1-a should also serve as a reminder that public bodies must think carefully about which non-board members will be present during a nonpublic session. Only officers who have taken the oath of office under RSA 42:1 are subject to removal for releasing confidential information under RSA 42:1-a, II (a) and (b). The Right-to-Know Law does not address who may be present in a nonpublic session, and so it is at the discretion of each public body, when conducting each nonpublic session, to determine whether other individuals should be present, such as a department head when an employee’s performance or misconduct is being discussed.
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CONFIDENTIALITY from page 15 B. Officer Knew or Should Have Known Subparagraph (b) covers divulgence of any information, not necessarily information learned in a nonpublic session, but only under particular circumstances. Under this paragraph, three things must be true: (1) the officer knew or should have known that (2) the information was exempt under RSA 91-A:5 and (3) divulging the information publicly would do one or more of the following: (a) constitute an invasion of privacy, (b) adversely affect the reputation of some person other than a member of the public body or agency, or (c) render proposed municipal action ineffective.
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Municipal officials are expected to know the Right-to-Know Law. It is not a defense to the “knew or should have known” requirement that the officer did not know certain types of records were exempt from disclosure—in other words, it is not a defense that the officer does not know what the law says! It could be a defense if, at the time of disclosure, it was unclear, or the facts did not tend to show, that the information disclosed fell under an exemption. Margaret M.L. Byrnes is Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
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New Hampshire Supreme Court Clarifies Government Body’s Obligations Under RSA 91-A By Mark T. Broth
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hen it was first enacted, technology only intersected with the Right-to-Know Law (RSA 91-A) at a government body’s copying machine. The most challenging technological question that the statute presented was the amount that could be charged per page for photocopying requested documents. The original law has been amended in recognition of the fact that many governmental records are now kept in electronic form rather than on paper. RSA 91-A:4 now provides that if records are kept electronically, the public can insist on receiving those records in an electronic format. But does RSA 91-A allow a document requester to dictate the specific electronic format in which the records are produced? In its September 21, 2017 decision in David Taylor v. School Administrative Unit #55, the New Hampshire Supreme Court held that documents that exist in an electronic format can be made available in a different electronic format if the public body has good reason for changing format and as long as the change in format does not obstruct access to the requested information. In June 2016, New Hampshire citizen David Taylor made a request under the Right-to-Know law that SAU #55 e-mail him the May 2016 non-public meeting minutes from the SAU board’s meeting. SAU #55 is comprised of the Timberlane Regional School District and the Hampstead School District (collectively, the “District”). This request was denied on grounds that the non-public minutes had been sealed. Mr. Taylor then requested that the District provide him, via e-mail, with a copy of an e-mail that had been sent to the School Board concerning the non-public session. The District denied that request. Instead, and in accordance with the District’s Right-to-Know procedure, Mr. Taylor was offered the opportunity to obtain an electronic www.nhmunicipal.org
copy of the requested e-mail on a thumb drive, which he could supply or which he could purchase from the District. In August 2016, Mr. Taylor filed a lawsuit against the District alleging several violations of RSA 91-A. He alleged that the School Board had violated RSA 91-A:3, III when it voted to seal the minutes of the May 2016 non-public session while in non-public session, rather than during a public session as required. He further alleged that the District violated RSA 91-A when it refused to e-mail him a copy of the requested records. Prior to the evidentiary hearing in this case, the District acknowledged that it had not properly sealed the non-public minutes and voted to keep sealed only the portion of the nonpublic minutes that concerned “emergency functions.” As a result, all but one redacted sentence of the non-public minutes was made available to Mr. Taylor, if he purchased a thumb drive from the district or supplied one that he had obtained elsewhere. The Superior Court determined that the District did not violate RSA 91-A:3, III when it refused to provide Mr. Taylor with an e-mail copy of the nonpublic meeting minutes. The Superior Court further determined that the Board had not violated RSA 91A:3, III by creating both redacted and unredacted versions of the nonpublic meeting minutes. Mr. Taylor appealed this decision to the New Hampshire Supreme Court. In affirming the Superior Court’s decision, the Court held that the District had met its 91-A obligations by offering to download an electronic copy of the requested materials onto a thumb drive. The Court held that charging for the actual cost of the thumb drive satisfied the provision of RSA 91-A:4, IV, which allows a public body to charge the “actual cost of providing the copy” if “a comNOVEMBER/DECEMBER 2017
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RSA 91-A from page 17 puter, photocopying machine or other device” is used to make the copy. The Court further held that requiring Mr. Taylor to come to the District office in order to obtain the electronic copy satisfied RSA 91-A:4, I, which only requires that governmental records be made available during regular business hours on the public body’s regular business premises. Clarifying its prior decision in Green v. Sch. Admin Unit #55 (2016), the Court held that RSA 91-A does not allow a requesting party to dictate the particular electronic format in which documents be produced. In Green, the Court made clear that if a public body maintained records in an electronic format, it could not refuse to produce those records electronically and insist on a paper production. Here, the Court adopted the trial court’s decision, and held that “[s]o long as the manner of electronic production chosen by the municipality does not diminish the ease of use…of the information produced or the public’s access to the information sought, Green does not counsel in favor of one method over another.” The Court further approved of the trial court’s finding that producing the electronic copy on a thumb drive “does not in any way limit the recipient’s ability to review or search the requested documents” and therefore serves the intended purpose of RSA 91-A:3. Further, the Court approved of the trial court’s finding that making RSA 91-A productions via e-mail could create cyber security risks. The Court also noted that given the potential liability that could result from a failure to comply with RSA 91-A and the difficulty in confirming receipt of e-mails, “it is not improper for governmental bodies to adopt procedures for handling Rightto-Know Law requests that may be more formalized than those pertaining 18
to other communications between the governmental body and members of the public.” E-mail and Word format documents may contain “metadata” that is not visible to the casual reader. The imbedded metadata may include the original draft of a subsequently edited document, information regarding the date and time of the document’s creation, and other data automatically included by the computer program. In his appeal, Mr. Taylor alleged that by providing the requested materials via thumb drive and in a PDF format, he was denied the opportunity to search for metadata that might have been contained in the requested material’s native format. As this issue was not first raised before the Superior Court, the Supreme Court declined to rule on this issue. It is an interesting question as to whether such invisible metadata
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constitutes governmental records “in the possession, custody or control of such public bodies or agencies” within the meaning of RSA 91-A:4, but that will likely be the subject of a future Court decision. Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group. 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 2017 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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Government Management of E-mail: What’s in Your Municipalities In-box?
By Barrett M. Christina and Orville “Bud” Fitch
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-mails “created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function” are governmental records. RSA 91-A:1a, III. The managers and legal counsel for school districts and municipalities should know what is in their government operated e-mail systems. They should ensure policy, procedure, training, and compliance are in place for proper record preservation and destruction. Municipal and school district systems contain e-mails which, like the paper records on the same subject, must be retained permanently or for specified periods under federal or state law. RSA 33-A:3-a provides municipalities with 156 categories of records with preservation periods ranging from permanent to “as needed for reference.” RSA 189:29a assigns School Boards responsibility for setting a record retention schedule. The New Hampshire School Boards Association sample retention schedule has over 115 categories. There are a large number of federal and state statutes and regulations that impose specific retention requirements and a few specific destruction requirements. All categories of records are subject to potentially longer retention when there is a litigation hold or a Right-to-Know request. Government e-mail systems also contain transitory e-mails, such as scheduling, news aggregations, professional and nonprofit organization messages, etc. that fall within the broad scope of being “in furtherance of its official function,” but provide de minimums information about what government is up to. For municipalities, such transitory correspondence
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needs to be retained only “as needed for reference.” RSA 33-A:3-a, XXVII. Finally, government e-mail systems will contain messages between public officials/employees and their family members/ friends about personal schedules, grocery lists from spouses, a child’s after school schedule, spam, etc. that facially may not be governmental records. These personal e-mails are not created or received in furtherance of the individual’s official function. “The legitimacy of the public’s interest in disclosure, however, is tied to the Right-to-Know Law’s purpose, which is ‘to provide the utmost information to the public about what its government is up to.’” Reid v. New Hampshire Attorney General, slip op. at 19 (Dec. 23, 2016) (quoting N.H. Right to Life, 169 N.H. 95, 111(2016)). If these “personal” e-mails constitute evidence of public official or employee misconduct, they provide information on “what government is up to.” If there is a policy forbidding personal use of the government e-mail, each personal e-mail sent may be evidence of a policy violation. If the volume of personal e-mails document that the employee is spending excessive work time on personal business, show the employee is conducting personal for-profit business at work, or is unlawfully electioneering, the e-mails may be evidence of misconduct, thereby potentially a governmental record subject to disclosure. At the least, the personal e-mails in the system at the time of a Right-to-Know request or litigation hold will need to be reviewed to determine if they are responsive governmental records or potentially relevant to the litigation. At most, they may need to be disclosed.
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E-MAIL from page 21 Preserve it all or file and cull? The federal government requires its e-mail system users to cull federal e-mail systems of transitory and non-governmental record e-mails. Culling typically includes destroying spam, e-mail blasts (agency-wide communications), and personal materials (such as e-mails to family members not related to agency business). Culling may be manual, automated, or a hybrid of both. https:// www.archives.gov/files/records-mgmt/ grs/grs06-1.pdf, last visited 5/15/2017. Agencies may require that e-mails, just like paper records, must be sorted and filed. For agencies not equipped to convert e-mails to PDF/A and maintain them in archival storage, it may be prudent to print to paper and file limited categories of governmental records, such as those that must be retained permanently. RSA 33-A:5-a. While the cost of electronic storage makes permanently preserving all emails possible, the benefit versus the cost of filing and culling should be carefully analyzed. If either a Rightto-Know request or a litigation hold compels a thorough review of a voluminous archive of e-mails which could have been legally destroyed and that are not systematically filed, the human resource costs, technology costs, and legal fees may quickly wipe out any cost savings from choosing preserving all over a system of culling or filing.
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The United States Military has adopted a “Bottom Line Up Front (BLUF)” strategy, starting e-mails with a succinct statement of the subject and the action needed from the recipient. Using BLUF provides detail only after the recipient has been told what he or she needs to do with that information. How to Write Email with Military Precision, Harvard Business Review, https://hbr.org/2016/11/how-towrite-email-with-military-precision, last visited 5/15/2017. Leading with a clear statement of the subject and limiting e-mails to one subject simplifies the process of filing, culling, or reviewing e-mails to determine if they are subject to a litigation hold or responsive to a Right-to-Know request. When e-mails address multiple subjects they are more expensive to file, cull, or disclose, particularly if redaction is required. The broad availability of free e-mail accounts, smart phones, and e-mail web portals makes it practical to have a policy discouraging personal use of the government e-mail system. Educating employees regarding the risk of public disclosure of personal e-mails on the government system may help motivate the use of personal accounts for personal business. Particularly for elected public officials and agency leadership, policies and training should provide for moving e-mails which are received on personal accounts and that need to be treated as governmental records
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into either the agency paper system or a government e-mail account, for response and retention. Policies and training should instruct e-mail users how to distinguish between permanent, temporary, transitory, and non-record e-mails. Establish how to appropriately handle e-mail messages in personal accounts that constitute governmental records. National Archives Criteria for Managing Email Records, April 6, 2016. https://www. archives.gov/files/records-mgmt/emailmanagement/2016-email-mgmt-successcriteria.pdf, last visited 5/15/2017. Prudent management of government e-mail systems can help ensure compliance with retention laws, litigation holds, and Right-to-Know disclosure requests, as well as control costs and improve performance. Barrett M. Christina is the Executive Director of the New Hampshire School Boards Association, in Concord, New Hampshire. He has been providing policy advice, training, and legal guidance to New Hampshire School Boards for 12 years. Orville “Bud” Fitch II is former staff attorney for the New Hampshire School Boards Association. He has previously served as legal counsel and state director for US Senator Kelly Ayotte and as Deputy Attorney General for the State of New Hampshire.
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Right-to-Know Commission Convenes Organizational Meeting Commission Agrees Goal is to Improve Process and Reduce Complaints and Violations
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hether you are an elected or appointed municipal official, New Hampshire’s Right-to-Know Law (RTK) affects you in many ways. There is no question that there are costs – time, effort, money – associated with compliance. The New Hampshire legislature, however, had decided that the benefits of open government outweigh any inconveniences to government officials posed by the RTK Law, so compliance should be considered an important part of public service and a cost to government operations. This fall the legislature has convened a commission “to study processes to resolve Right-to-Know complaints”, as established by HB 178 (Chapter 126, Laws of 2017). Chaired by Senator Bob Giuda, the Commission is comprised of 13 people representing a wide variety of interests M. Chris Dwyer, Portsconcerned about open government in the mouth City Councilor, NHMA Board of Distate, including the New Hampshire Murector and NHMA’s nicipal Association (NHMA), which has representative to the RTK Commission appointed M. Chris Dwyer, Portsmouth city councilor and NHMA Board of Director, to serve as our representative to this Commission.
Other appointed Commission members include: Representative Jordan Ulery Representative Charlotte DiLorenzo Representative Gary Hopper Senator Bob Giuda Mark Hounsell, NH Association of Counties Lisa England, NH Attorney General Dan McKenna, NH School Boards Association www.nhmunicipal.org
Harriet Cady, public member appointed by the Governor having brought suit pro se under RSA 91-A:7 Trent Spiner, NH Press Association David Saad, Right-to-Know NH Gilles Bissonette, NH Civil Liberties Union Mark Derby, citizen member appointed by the Governor
Members of the 2017 Right-toKnow Commission who met to organize on September 7, 2017
The purpose and duties of this RTK Commission will be to study alternative processes to resolve RTK complaints consistent with the following goals: • Encouraging resolution of RTK complaints directly between citizens and public agencies and bodies; • Reducing the burden and costs of RTK complaints on the courts; • Reducing the burden and costs of RTK complaints on public agencies and bodies; • Reducing the burden and costs of RTK complaints on citizens aggrieved by violations of RSA 91-A; and, • Increasing awareness and compliance with the RTK law to minimize violations. The Commission met to organize itself on September 7th at the Legislative Office Building in Concord and elected (Continued on page 24)
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New Hampshire Municipal Association CHALLENGE
Change T H E
of
NOVEMBER 15 – 16, 2017 The Radisson Hotel • Manchester, New Hampshire
The New Hampshire Municipal Association (NHMA) is pleased to announce its 76th Annual Conference, with the theme The Challenge of Change! This is New Hampshire’s premier conference for municipal officials, featuring over 50 educational sessions on timely and relevant topics, as well as ample opportunities to meet and greet with exhibitors ready to offer you the latest products and services.
Conference Schedule Wednesday, November 15, 2017 7:30 a.m. Registration Opens Outside of Exhibit Hall 8-9 a.m. Opening Breakfast Buffet Armory Keynote Speaker 9-10 a.m. Salon A 10 a.m. Exhibit Hall Opens Morning Break 10-10:45 a.m. Exhibit Hall 10:45-12 p.m. Concurrent Sessions 12-1:15 p.m. Exhibit Hall Luncheon 1:30-2:45 p.m. Concurrent Sessions 2:45-3:15 p.m. Afternoon Break Exhibit Hall 3:15-4:30 p.m. Concurrent Sessions 4:30-5:30 p.m. Exhibit Hall Reception
Thursday,
November 16, 2017
7:30 a.m. Registration Opens Exhibit Hall Opens 8-9 a.m. Opening Breakfast Exhibit Hall Concurrent Sessions 9-10:15 a.m. 10:15-10:45 a.m. Morning Break Exhibit Hall Concurrent Sessions 10:45-12 p.m. 12-12:45 p.m. Municipal Advocate of the Year Award Luncheon Armory 12:45-1:30 p.m. Dessert Buffet Exhibit Hall 1:30-2:45 p.m. Concurrent Sessions 2:45-3:15 p.m. Afternoon Break Exhibit Hall 3:15-4:30 p.m. Concurrent Sessions 4:30 p.m.
Conference Concludes
Please visit our website at www.nhmunicipal.org/annualconference to re 22
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n’s
76th Annual Conference Two New Session Tracks this Year! • Law Enforcement Track • Public Works Track
Exhibit Hall
Visit the Exhibit Hall on Wednesday and Thursday to meet representatives from more than 100 private firms, nonprofit organizations and government agencies providing products and services catering to local government. Break times offer ample opportunity to explore booths and talk with vendors. From accounting services to wastewater management systems, you’ll find it all in the Exhibit Hall!
Parking
A parking garage is located adjacent to the Radisson Hotel. With validation, parking fees are $6 per vehicle. Attendees staying at the hotel may park overnight for $12.
Conference Registration
You must be an NHMA Member (employee/representative), or a member of an NHMA Affiliate Group to attend.
HealthTrust Sponsored Wellness Fair
HealthTrust will host its Annual Wellness Fair from 10:00 am to 3:15 pm on Wednesday and 8:00 am to 3:15 pm on Thursday. Stop by the Wellness Fair room on either day to learn more about HealthTrust’s Wellness Programs for your municipality and be entered for a chance to win a prize! Top reasons to visit the HealthTrust Wellness Fair this year: • Learn about 2018 Slice of Life Enhancements from HealthTrust and Onlife.
• Get a sneak peek of the updated 2018 SmartShopper Incentive List. • Speak with a ConvenientMD representative to learn about a new biometric screening option and Flu Vaccination Shots. • Learn about the many resources available to municipal employees through LifeResources Employee Assistance Program. • Snap a picture with a colleague in the HealthTrust themed photo booth (Thursday Only). • Receive a flu shot or participate in a biometric screening (Wednesday Only).
NEW and Improved Mobile App - Conference Information at Your Fingertips!
Download the NHMA Annual Conference Mobile App with new features! Choose your sessions and have your schedule at your fingertips as well as post messages for other attendees! App includes: Schedule of events, Session/room locations, sponsors, exhibitors, map of the hotel and interactive exhibit hall map, rate sessions with our quick-poll feature and up-to-the-minute updates of any changes! You can even connect with other Conference attendees. The App is free and can be found in iTunes or Google Play by searching for “NHMA Annual Conf 2017.” Show us the mobile app on your phone or other device when you pick up your materials and receive a raffle ticket for a special drwaing!
Diamond Level Sponsor
Emerald Level Sponsor
Platinum Level Sponsor
Gold Level Sponsors
Silver Level Sponsor
Bronze Level Sponsor
Engage!
New feature this year: Engage! Our social-interaction game. Earn points for posting pictures, comments, feedback, and session evaluations! Prize will be awarded to the attendee with the highest point total at the end of the Conference.
egister and find the most up-to-date information. www.nhmunicipal.org
Thank You 2017 Sponsors
Program Support
Mobile App Sponsor
Peter J. Reimer, LLC
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COMMISSION from page 21 Senator Bob Giuda as chair, Representative Jordan Ulery as vice-chair, and Harriet Cady as secretary. There was a small crowd of media, RTK advocates and other special interests in the audience, and although there was limited input from the public at this meeting, the Commission made it clear it is eager to hear comments and concerns from the public on these issues. The Commission discussed concerns that elected officials often times assume their official duties and responsibilities without the full understanding and knowledge of the RTK law. Although education and training were seen as critical ways towards improving public accountability and compliance, the idea of penalties were also mentioned, as well as some form of
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acknowledgement of personal responsibility from each elected official as required in other states. Despite other issues being raised, such as a concern over three-member boards and judicial indifference, the Commission appears determined to keep its focus on addressing timeliness and affordability concerns, the main thrusts behind the mission of the study commission.
What Can You Do? The most critical thing our members can do right now is to share your RTK stories – good, bad or indifferent – with the Commission, and more importantly, help the Commission explore solutions with the many other groups now focused on open government in New Hampshire. It is always important to keep a close eye on – and become more involved in – the legislative process. Stay tuned to
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updates from NHMA covering the Commission’s report which is due on November 1, 2017.
Visit NHMA’s Website!
Fall is a very busy time of year for trainings, workshops, webinars and meetings. Visit the Calendar of Events section frequently on the NHMA website, www.nhmunicipal.org, to find out what events and happenings are coming up.
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Do I Have a Conflict of Interest? Wednesday, November 1, 2017 12:00 pm—1:00 pm
Upcoming
Webinars NHMA will be hosting two webinars in November and December for members of the New Hampshire Municipal Association.
Do I Have a Conflict of Interest? NHACC and YOU: Working Together to Protect NH’s Natural Resources
In simple terms, New Hampshire’s conflict of interest law seeks to prevent conflicts between private interests and public duties. Often times, municipal officials are faced with difficult questions: “Do I have a conflict of interest?” “Must I recuse myself?” “Should I recuse myself?” Alternatively, these may be questions that municipal officials should be asking more often of themselves—but aren’t. Either way, precisely defining “conflicts of interest” as it applies to municipal decision making is difficult because the existence of a conflict of interest depends largely on the specific facts of each case. Join NHMA Staff Attorney Margaret Byrnes and Attorney Matt Serge of Drummond Woodsum who will provide an understanding of the law, help attendees learn how to identify a conflict, how to properly handle it, and the repercussions of failing to do so.
NHACC and YOU: Working Together to Protect New Hampshire’s Natural Resources Wednesday, December 13, 2017 12:00 pm—1:00 pm Today there are over 200 conservation commissions in New Hampshire for the declared purpose of ensuring the proper use and protection of the natural resources in our cities and towns. These conservation commissions are assisted by the New Hampshire Association of Conservation Commissions (NHACC), a non-profit organization that provides education and training to municipal volunteers working to protect these natural resources in our communities. Join NHACC Executive Director, Barbara Richter and Tom Duston, NHACC past president and long-time Chesterfield Conservation Commission member, who will explore how conservation commissions can better partner and collaborate with other groups to help protect New Hampshire’s natural resources. These partnerships not only benefit our communities but provide opportunities for members to share their local expertise and knowledge. Sharing the work load with like-minded people organized for a similar purpose is one of the best ways to engage your community and generate potential new commission members.
For details and registration information, visit www.nhmunicipal.org under Calendar of Events . Questions? Call 800.852.3358, ext. 3350, or email NHMAregistrations@nhmunicipal.org.
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Right-to-Know Workshop 9:00 a.m.—4:00 p.m. Wednesday, December 6, 2017
NHMA Offices, 25 Triangle Park Drive, Concord $90 for NHMA members; includes new publication
A Guide to Open Government: New Hampshire’s Right to Know Law
The Right-to-Know Law (Chapter 91-A) affects every aspect of local government in our state. Every board, committee, commission, and sub-committee in every town, city and village district in New Hampshire must comply with this law. As a result, all local officials and employees must understand the law and their responsibilities regarding both public meetings and governmental records.
Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. RSA 91-A, I Preamble
Join Legal Services Counsel Stephen Buckley, Staff Attorney Margaret Byrnes, and Government Affairs Counsel Cordell Johnston for this full day workshop on the Right-to-Know Law. They will 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.
CHECK OUT OUR NEW BOOK!
Registration begins at 8:30 a.m. Continental breakfast and lunch included. Attendees will also receive the new NHMA book,
A Guide to Open Government:
New Hampshire’s Right to Know Law
Register online today at www.nhmunicipal.org and look for the workshop under Calendar of Events. QUESTIONS? Call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org.
www.nhmunicipal.org
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Why Transparency is Good (or Bad) for Governments? Despite the recent push for transparency, this concept is not a new one for local governments. Cities around the country have been employing various methods to increase transparency – simply, be more open to the public – in their day to day practices for years now. From broad engines of information like city websites to more focused tools which display a cities’ expenditures like Your Tax Dollars At Work in Louisville, Kentucky, cities have been looking for ways to better engage their constituencies. Transparency promotes accountability and provides an opportunity for residents to be better informed about what is going on in their communities. A better-informed constituency helps create a better dialogue between residents and government officials and results in better policy decisions. Transparency is also a time saver – having an existing method of being able to push information out means governments spend less time on public disclosure. It’s also a time saver in terms of public knowledge and discussion. With the public being aware of existing policies and background to how and why decisions are made, city staff and officials can spend less time on the “history” of issues and more time on “what should we do next”. Finally, transparency also helps re-purpose information. Hundreds of reports, agendas, meeting minutes, and other city-vital information are created for city staff and officials. Being able to turn this out to the public rebrands the same information for another new and useful purpose.
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There are obvious cons to transparency – it costs money and it takes staff time and effort. Some cities have reported that they have found their IT departments to be very hesitant to the use of online tools and to allow direct public input. Transparency certainly creates an avenue for the public to start demanding more information. But is that a bad thing? What is wrong with a better-informed constituency? In fact, some cities who have utilized transparency methods say this is one of the biggest payoffs for the investment in these tools – having the public be on the same page with elected officials. In a webinar hosted by the National League of Cities and the Public Technology Institute, city staff and officials from San Carlos, CA, Seattle, WA, and Louisville, KY talked about how being transparent has affected governance in their cities. They did agree that it did involve a start-up cost and it did create extra tasks for staff. But their only real regret was not being “transparent” sooner. So while it may seem tedious and costly, local governments are realizing the benefits of being more transparent and how it is directly related to effective governance. By being able to comprehensively engage their constituency, they are able to open up lines of communication which, as mentioned before, results in a more educated citizenry and better policy decisions. Transparency and governance just seem to go hand in hand.
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★
BEST PRACTICES ★
New Hampshire Municipal Association
Best Practices Series
★
BEST PRACTICES ★
Best Practice for Accountability and Transparency Background: The Government Finance Officers Association (GFOA) has long encouraged governments to demonstrate accountability and transparency by making financial information of the highest quality readily accessible to citizens and other interested parties. A government’s web site is especially well suited for this purpose. Benefits of using the government’s web site to communicate financial information include: • Heightened awareness. Many potential users of a government’s financial information may only discover that it is available because they find it on the web site. • Universal accessibility. Information furnished on a web site is readily available to a wide range of potential users (e.g., citizens, rating agencies, regulatory agencies, other governments, and the press) without charge. • Increased potential for interaction with users. A web site can offer two-way, multi-conversational, or interactive formats. This capacity may be especially helpful for proposed documents or for citizen surveys. • Enhanced diversity. A web site may offer the possibility of providing the same financial information in a variety of languages, which may be needed pursuant to the policies of a particular governmental entity. 30
• Facilitated analysis. Computerized tools can be used to find, extract, and analyze data presented in electronic form. • Increased efficiency. Presenting all financial information in a single location can help to avoid calls for redundant specialized reports (e.g., reproducing data already presented in the comprehensive annual financial report or the budget document). • Lowered costs. Electronic publication can be accomplished relatively quickly and can reduce or eliminate many of the costs associated with producing a hardcopy report, including those associated with handling and mailing the reports. • Contribution to sustainability. Using a web site to disseminate financial information may reduce paper consumption, thereby contributing to the core value of sustainability. • Broadened potential scope. The use of hyperlinks allows for easy referencing of relevant information from other sites. While posting financial documents on a web site is a tremendous resource to citizens and an important investor relations tool, governments should be reminded that it does not meet the continuing disclosure responsibilities for issuers of municipal debt set forth in Securities and Exchange Commission Rule 15c2-12.1
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Recommendation: GFOA encourages every government to use its web site as a primary means of communicating financial information to citizens and other interested parties. Furthermore, the GFOA recommends that a government comply with the following guidelines when presenting official financial documents on its web site: Formatting. The practical usefulness of a document is enhanced when a government observes the following formatting conventions: • Consistency with hardcopy version (if any). If a document is issued in hardcopy form, the web site version should be identical.2 Any subsequent changes should be made to both. • Legibility. Font size, page layout (i.e., portrait versus landscape), and direction should be consistent throughout the report. • Pagination. Pages should be numbered sequentially. • File size. A single electronic file should be presented for the entire document. Individual files for the various components of large reports might also be presented in view of the limitations that some users face when attempting to download or receive large files. In such situations, the number of individual files should not be so great as to make it difficult to www.nhmunicipal.org
review the material or relate the various sections to one another.
with different computer operating systems.
Technological Infrastructure. A number of issues related to a government’s technological infrastructure should be considered when presenting financial documents on the government’s web site:
Electronic financial reporting language. Governments should monitor developments in standardized electronic financial reporting (e.g., extensible business reporting language [XBRL]) and apply that language to their electronic document process when appropriate.
• Security. The security of the web site should be evaluated and all reasonable steps should be taken to protect documents from unauthorized changes. • Placement. A link to the document should appear prominently on the homepage or there should be some other tool for easily locating the document (e.g., internal search tool). • Software compatibility. The software used should be suitable for the particular information being presented and be broadly compatible with other commonly used software. • Features. The downloaded file should allow for basic features such as zooming and continuous page format (e.g., so rows on financial schedules can be viewed on facing pages). A search mechanism should also be available within the document. • Instructions. General user instructions (e.g., how to download Adobe software) should be provided. A notation also may be needed to direct the user on how best to view the document (e.g., laptop or desktop computer versus a handheld device). • Linking. The table of contents should allow the user to go to specific pages with a click of the mouse. The inclusion of bookmarks also can enhance flexibility and maneuverability in navigating the document. • Testing. Web site-based financial documents should be tested to ensure that they will function www.nhmunicipal.org
Historical information. If a government elects to present documents of prior years, the web site should identify those documents as dated information for historical reference only and clearly segregate them from current information. A library or archive section of the web site is advisable for this purpose.
Notes:
Distribution. Electronic publication can also help the government meet the objective of providing financial information on a timely basis. Once published electronically, potential users should be informed that financial documents are available at the web site. Local newspapers, cable television, council meetings, mailings, and the printed document itself (if prepared) can be used for this purpose. For users without access to the Internet, other electronic media (e.g., CDs or flash drives) should be made available at locations such as local libraries or the city hall. Before electronic publication, the government should consult with their counsel to ensure that any legal issues related to the distribution of the financial information have been appropriately addressed, including compliance with all applicable provincial, state and federal laws and regulations (e.g., American Disabilities Act).
Governments with public debt outstanding are urged to consult GFOA’s recommended practice Using a Web Site for Disclosure. Issuers of public debt also should familiarize themselves with SEC’s Interpretive Release on the Use of Electronic Media (see www.sec. gov/rules/interp/34-42728.htm).
Information disclaimer. If applicable, the web site should prominently notify users that the information in the financial document has not been updated for developments subsequent to its issuance.
GFOA’s mission is to promote excellence in state and local government financial management. For more information visit the GFOA website at www.gfoa.org.
1
However, slight variations that may be necessary for practical reasons to prepare the hardcopy information for publication as an electronic document are acceptable. In cases where there is some type of auditor association with a document, it can be helpful to reach an upfront agreement with the auditor on the nature of the revisions that are acceptable in the preparation of the electronic document. 2
Approved by GFOA’s Executive Board: February 2009.
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NEW HAMPSHIRE TOWN AND CITY
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?
?
NAME
THAT
TOWN OR
CITY
?
? ?
Name the town in which this town hall is located? Name the town which was settled in 1719 by Scottish immigrants seeking religious freedom and was originally home to the Pawtucket Indians. In 1741, Governor Benning Wentworth granted a small group of the original settlers’ request to form a community whose bounds included 27.2 square miles of land and water and the town was incorporated. That original band of dedicated individuals, primarily farmers and millworkers, worked diligently to create the rural oasis it is today. The last hint – the town recently observed its 275th anniversary with a community-wide celebration in August 2017. When you have figured out the answer, email it to tfortier@nhmunicipal.org. The answer will appear in the January/February 2018 issue. ANSWER TO PHOTO IN SEPTEMBER/OCTOBER, 2017 ISSUE: The photo on page 37 in the last issue of Town and City magazine was the former town hall in the Town of Campton. Many thanks to all who responded with the correct answer.
— This Moment in NHMA History — 40 years ago….
Promoted as a family reunion, NHMA holds its first joint annual conference with its affiliate member groups. On October 6 & 7, 1977, about 400 members including a number of affiliate groups met in Durham at the New England Center where there were concurrent sessions, keynote speakers, educational programming, entertainment and over 20 exhibitors.
45 years ago…. Membership in NHMA reached a new high of 194 in 1972. As a united front, NHMA won a major victory at the legislature when state aid for city and town highways was boosted from $3 million to $8 million a year with a more flexible annual block grant aid system established in the 1971 legislative session. Problems of diminishing state aid, cutback of replacement revenue from 10% to 5%, preferential taxation of farm and forest land, and police bargaining were issues that continued to aggravate state-local relations, however.
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NEW HAMPSHIRE ASSOCIATION OF REGIONAL PLANNING COMMISSIONS
This segment is another in a series highlighting NHARPC’s efforts to provide education on planning-related topics.
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Reviewing Developments of Regional Impact in New Hampshire By Glenn Greenwood, Rockingham Planning Commission and James Burdin, Strafford Regional Planning Commission
M
unicipal reviews of private development proposals in New Hampshire can be complicated. Local zoning and development regulations require compliance, and an array of state requirements must be considered. These state requirements include standards meant to mitigate negative impacts from altering large areas of land and standards to protect resources from degradation by development activity. Multi-level reviews are important to ensure that impacts are understood and planned for, because once built, a development will be part of the local landscape for many years. Recognizing that some proposed developments may cause impacts beyond the boundaries of the communities in which they are proposed, the New Hampshire General Court in 1992 established RSA 36:54 - 58, Review of Developments of Regional Impact. This article reviews the law and its requirements, describes the role of New Hampshire’s regional planning commissions in the proposal approval process, and suggests some limitations of the current law. The statute’s intended results are found in its purposes section under RSA 36:54, which specifies the following: 1. Provide timely notice to potentially affected municipalities concerning proposed developments which are likely to have impacts beyond the boundaries of a single municipality. 2. Provide opportunities for the regional planning commission and the potentially affected municipalities to furnish timely input to the municipality having jurisdiction. 3. Encourage the municipality having jurisdiction to consider the interests of other potentially affected municipalities.
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The law clearly was crafted to be used by the community in which a development is proposed. As a municipality reviews an application for development, it must determine whether approval of the project will have an impact on other municipalities. The purpose section also states that regional planning commissions and potentially affected municipalities are treated similarly and should be given the opportunity to provide timely comments about the development proposal. RSA 36:56 requires local land use boards to quickly determine whether, if approved, a project could have the potential to cause regional impacts. Just as important, the statute states that if there is doubt about a project’s potential to have regional impacts, the local land use board must determine that the development has a potential impact. The law allows regional planning commissions to develop guidelines to assist the communities in their regions in making determinations of regional impact. These guidelines should be developed with public input and, upon completion, provided to all the communities in the commission’s planning region. The law also includes standards for each local land use board to follow when making a determination of regional impact for a proposal under its consideration. Such a determination grants abutter status to the regional planning commission and to any affected municipality. These entities must be notified like any abutter so they can offer comments during the local review process. This notification is accomplished by providing them with the minutes of the meeting at which the determination was made. In addition, an appropriate copy of the development proposal, paid for by the applicant, must be provided to the regional planning commission. www.nhmunicipal.org
The law also offers a process for a building inspector to find that a permit being considered at the local level may have regional impacts. If no local land use board has determined previously that the proposal will have regional impact, the building inspector is authorized to notify the local governing body, the regional planning commission, and any affected communities that such a permit is being reviewed. The affected communities and the regional planning commission will then have 30 days to provide comments to the building inspector, during which time the building inspector will hold the requested permit under review.
Development of Regional Impact Process
to provide additional information that will help land use boards in their deliberations, or suggest further studies or documents that could inform the decision-making process. Some regional planning commissions in New Hampshire have developed procedures, including: • Developing guidelines to facilitate the review of developments of regional impact. The Rockingham Planning Commission, for example, has developed an advisory document to help communities determine whether a development proposal is likely to have an impact on neighboring municipalities.1 • Forming a standing committee to review—after receiving input from the project applicant, abutters, and commission support staff—project plans to determine the likelihood and scale of impacts to neighboring communities. The Strafford Regional Planning Commission’s Regional Impact Committee has detailed guidelines for conducting reviews, including a checklist of possible impacts to be considered.1 Once its review has been completed, the committee drafts a formal letter of review that is sent to the referring land use board. This letter becomes part of the record along with any other abutter feedback.
dinate a review and response following a regional impact determination, it is important for the regional planning commission and local land use board to communicate before a project is referred. While an application may be referred at any time, land use boards are encouraged to consider whether a project should be referred as a development of regional impact as soon as possible after the application has been accepted as complete. Although incomplete applications may be referred, their lack of information can make a thorough evaluation difficult and often slows the review process and renders it less effective. Along with granting regional planning commissions abutter status, New Hampshire law gives them the right— and responsibility—to respond and provide comments when a proposed project is determined to have a regional impact. Regional planning commission reviews of these proposals require a significant number of staff hours, in part because such projects are typically large and complex. However, the law provides no mechanism by which a regional planning commission can bill the project applicant, or any other entity, to cover its professional staff’s review. In looking to the future, it might be appropriate to provide a mechanism by which these staff hours are compensated in some manner through the process.
The review process begins when a local land use board determines that a proposed development has the potential to affect neighboring municipalities and votes to determine it a development of regional impact, thereby granting abutter status to the regional planning commission and affected municipalities. Land use boards may consider a variety of possible impacts, including the relative size or number of residential units, proximity to the borders of a neighboring community, proximity to aquifers or surface waters that transcend municipal boundaries, shared facilities such as schools and solid waste facilities, transportation networks, or anticipated emissions such as light, noise, smoke, odor, or particles.
Limitations of the Existing Law
Although regional planning commissions have a clearly mandated right to review developments of regional impact, New Hampshire law is equally clear that they do not have regulatory authority. RSA 36:47 states that “a regional planning commission’s powers shall be advisory, and … nothing in this subdivision shall be deemed to reduce or limit any of the powers, duties, or obligations of planning boards in individual municipalities.” Instead, regional planning commissions use their reviews
The existing law is limited in several ways. For example, the determination of regional impact is made solely by the community in which the development is proposed. A community may have little incentive to make a regional impact determination if a project is viewed favorably or seen as economically valuable. The law could be strengthened if abutting communities were authorized to request a determination.
RSA 36:54-58 is an important legislative response to the reality that some local development projects require a level of review beyond the municipal boundaries where the project is proposed. It provides a good framework for incorporating the concerns of potentially affected neighboring communities. Opportunities exist to allow greater involvement of those actors that are invited into the local review process when a determination of regional impact is made.
Due to notice requirements for public meetings and the time needed to coor-
1 http://strafford.org/cmsAdmin/uploads/Final_SRPC-Approved-Guidelines-9-29-2011.pdf
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UP CLOSE & In the Field
PERSONAL W
elcome to Up Close and Personal-In the Field, a regular column in New Hampshire Town and City dedicated to giving readers a closer look at staff from New Hampshire municipalities. In this issue, we hope you enjoy meeting Jessica Jarvis, administrative assistant to the Selectboard and town clerk for the Town of Langdon.
TC: What are your duties and responsibilities as administrative assistant to the select board and town clerk? JJ: In my position as administrative assistant to the select board and town clerk I get to meet just about everyone here in Langdon. I welcome the newcomers and hear stories from people who have lived here their whole lives. My duties on a given day could range from painting walls to filling out forms for the New Hampshire Department of Revenue Administration—and everything in between.
Jessica Jarvis
Do you know someone who deserves to be profiled in a future edition of New Hampshire Town and City magazine? If so, please contact the New Hampshire Municipal Association at 800.852.3358 ext. 3408 or tfortier@nhmunicipal.org.
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TC: How has NHMA helped you to do your job? JJ: The Association and Bob Cunniff, my mentor, are my two backups. Both are indispensible when it comes to answering all those random or legal questions that plague me every week. Thank you for your patience; I will still have more questions. TC: Has your public position changed you personally? JJ: This job has changed my life. I am now a working part of this community, helping to improve our town. I enjoy making a difference in people’s lives and helping make the Town of Langdon a great place to live. TC: Has your job changed the way you look at the role of government? JJ: I don’t think people realize that small town government is like a family; dysfunctional at times but always there if you need them. Our select board answers phone calls at home, as do I and the road agent. If you have a problem we are here to help. I didn’t realize, until I took this job, just how personal town government is. TC: Anything else you would like to discuss about your job? JJ: First and foremost, I love my job. I love this town. It astounds me how many people give their time to help keep the town safe (like our amazing volunteer fire department) and donate to keep costs down or help fund community gatherings. Thank you to all of these residents; you are appreciated. And, thank you to our great select board, Ronald Batchelder, Bud Ross, and Lou Beam; Todd Porter, Road Agent; Langdon Police Department; and Andrea Cheeney, Tax Collector and Fall Festival extraordinaire. You all go above and beyond!
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 staff from New Hampshire municipalities. In this issue, we hope you enjoy meeting Nathan Fogg, code enforcement officer for the Town of Wakefield.
TC: What are your duties and responsibilities as Code Enforcement Officer? NF: I am the code enforcement officer here in Wakefield. I also run the land use department assisting the planning and zoning boards with the applications coming before them. I also serve in the capacity of health officer for the town and serve on the conservation commission. TC: What is your biggest challenge in performing your duties? NF: By far the biggest challenge that I face is staying organized because of the many hats that I wear. I struggle with it constantly, but am working to be more organized.
Nathan Fogg
TC: How has NHMA helped you to do your job? NF: I have used NHMA for assistance in several ways. First, the legal inquiries work very well for general legal questions. Second, I always learn something new at the NHMA Annual Conference in November. Third, NewsLink and Town and City magazine have helpful information that sometimes has an impact on the departments with which I am involved. TC: What is the public perception about your job and how does it differ from the reality of your job? NF: Many people believe that we are here to find a way to say “no� or to make their project more difficult. The Wakefield Building and Land Use Departments try to help people accomplish their goals, whether they want to subdivide their property or build an addition. We make every attempt to guide them through the process for a successful outcome that meets their needs.
Do you know someone who deserves to be profiled in a future edition of New Hampshire Town and City magazine? If so, please contact the New Hampshire Municipal Association at 800.852.3358 ext. 3408 or tfortier@nhmunicipal.org.
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TC: Has your public position changed you personally? NF: Not really. I am still the wonderful, intelligent, beautiful person that I have always been! TC: What advice would you give someone who would like to follow in your footsteps into this job? NF: Look to find ways to help people do what they want to do. I try very hard to help people find a way to accomplish their goal and complete their projects. Folks generally appreciate that kind of service. TC: Do you dislike any aspects of your job? Which ones? Why? I do not like two aspects of my job. The first is preparing minutes for the planning and zoning boards. I am a marginal typist at best and reliving the meetings by watching the video to prepare minutes is time consuming and tedious. Second, I do not like removing people from their home. I only remove someone from their home as a last resort, and for their own health and/or safety. NOVEMBER/DECEMBER 2017
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Legal
Q and A I
By Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association
Law Enforcement Records Under the Right-to-Know Law
n 1978 the New Hampshire Supreme Court ruled that since there were no legislative standards governing police investigatory files in the Right-to-Know Law, RSA 91-A, the Court would implement exemptions found in the federal Freedom of Information Act (FOIA). The Court adopted 5 U.S.C §552(b)(7) which permits the withholding of records compiled for law enforcement purposes if that disclosure would have one of six adverse consequences. This FAQ will address those FOIA exemptions for police investigatory records.
Q: What types of enforcement agencies are permitted to use the FOIA exemptions? A: The governmental entity that is seeking to avoid disclosure of a governmental record must establish that the requested materials were compiled for law enforcement purposes. The exemption does not apply exclusively to law enforcement officers or agencies, but rather applies to all records and information compiled, by any type of agency, for law enforcement purposes, and the phrase law enforcement purposes includes both civil and criminal matters.
Q: Could the FOIA exemptions apply to offices of a municipality other than the police department? A: Enforcement of a local zoning ordinance under RSA 676:17, V would qualify as a law enforcement activity that would justify non-disclosure of a complaint form containing the complaining party’s identifying information. So long as the Code Enforcement Official reasonably anticipates enforcement proceedings, the form would be exempt under Murray v. NH Div. of State Police, 154 N.H. 579 (2006) because to release a copy of the form until code enforcement activities are commenced might be reasonably expected to interfere with enforcement proceedings.
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NEW HAMPSHIRE TOWN AND CITY
Q: Once it has been established that the governmental record was compiled for law enforcement purposes what also must be demonstrated to exempt the record from disclosure? A: Under the FOIA test, law enforcement records may be withheld if releasing the material would have one of the following adverse consequences: • • • •
Interfere with enforcement proceedings; Deprive a person of a right to a fair trial; Constitute an unwarranted invasion of privacy; Disclose the identity of a confidential source, or confidential information furnished only by a confidential source; • Disclose investigative techniques and procedures; or • Endanger the life or physical safety of any individual.
Q: What conditions would dictate that releasing a governmental record would “interfere with enforcement proceedings”? A: Determining the applicability of this exemption requires a two-step analysis focusing on (1) whether a law enforcement proceeding is pending or prospective, and (2) whether release of information about it could reasonably be expected to cause some articulable harm. As a general rule, this exemption may be invoked so long as the law enforcement proceeding involved remains pending, or so long as an enforcement proceeding is fairly regarded as prospective. Even when an investigation is dormant, the exemption has been held to be applicable because of the possibility that the investigation could lead to a prospective law enforcement proceeding. The prospective proceeding, however, must be a concrete possibility, rather than a mere hypothetical one.
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Q: What conditions would dictate that releasing a governmental record would “deprive a person of a right to a fair trial”? A: This exemption follows a two-part test: (1) that a trial or adjudication is pending or truly imminent; and (2) that it is more probable than not that disclosure of the material sought would seriously interfere with the fairness of those proceedings. The following would be the types of information that might cause prejudice: • Speculation on the guilt or innocence of a defendant; • The character or reputation of a suspect; • Examinations or tests which the defendant may have taken or have refused to take; • Gratuitous references to a defendant; for example, a reference to the defendant as “a dope peddler”; • The existence of a confession, admission or statement by an accused person, or the absence of such; • The possibility of a plea of guilty to the offense charged or a lesser offense; • The identity, credibility or testimony of prospective witnesses; • Any information of a purely speculative nature; • Any opinion as to the merits of the case or the evidence in the case.
Q: What conditions would dictate that releasing a governmental record would “constitute an unwarranted invasion of privacy”? A: The exemption guards the privacy interests of a broad range of individuals, including government agents, personnel, confidential sources, and investigatory targets. The exemption also protects a broad notion of personal privacy, including an individual’s interest in avoiding disclosure of personal matters. This notion of privacy encompasses the individual’s control of inforwww.nhmunicipal.org
mation concerning his or her person, and when, how, and to what extent information about them is communicated to others. To determine whether a record should be released use the following balancing test: ➢➢ First, is a privacy interest at stake that would be invaded by the disclosure? If no privacy interest is at stake, the Right-to-Know Law mandates disclosure. ➢➢ Second, assess the public’s interest in disclosure. Disclosure of the requested information should inform the public about the conduct and activities of their government ➢➢ Finally, balance the public interest in disclosure against the government’s interest in nondisclosure and the individual’s privacy interest in nondisclosure
Q: What conditions would dictate that releasing a governmental record would “disclose the identity of a confidential source, or confidential information furnished only by a confidential source”? A: This exemption is comprised of two distinct clauses: the first clause protects the identity of confidential sources and the second clause protects all information obtained from the source. In addition, it must be determined if the source was given express promise of confidentiality, or can an assurance of confidentiality be inferred from the circumstances surrounding receipt of the information? Courts have uniformly recognized that express promises of confidentiality deserve protection under the exemption and they usually require affidavits specifically demonstrating the existence of such an express promise. To permit an inference of confidentiality where no express promise was made the following additional factors must be assessed:
• The nature of the crime and the source’s relation to the crime might permit an inference of confidentiality because; • The potential for retaliation against the source, whether based on actual threats of retaliation by defendants or requesters, prior retaliatory acts by perpetrators or against sources; • The possibility of reprisals by third parties; • The specific dangers faced by prison informants; or • The violent or intimidating nature of the crime itself.
Q: What conditions would dictate that releasing a governmental record would “disclose investigative techniques and procedures”? A: This factor probably provides categorical protection for law enforcement techniques and procedures. FOIA sets a relatively low bar for withholding under this exemption. However, Courts have uniformly required that the technique or procedure must not be well known to the public. Under this exemption a “guideline” is defined as what factors are employed by agencies when deciding whether to allocate resources for law enforcement investigations (whether to investigate). “Techniques and procedures“ are defined as the means by which agencies conduct investigations (how to investigate). Courts have applied the exemption to encompass the withholding of a wide range of techniques and procedures, including: ➢➢ Immigration enforcement techniques ➢➢ Information about databases used for law enforcement purposes ➢➢ Surveillance tactics and methods ➢➢ Portions of a law enforcement agency’s investigations and operations manual ➢➢ Funds expended in furtherance of an investigation
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LEGAL Q&A from page 39 ➢➢ Law enforcement codes, and techniques used to uncover tax fraud ➢➢ Techniques and procedures pertaining to the forensic analysis of firearms and computers ➢➢ Details of the status of investigatory efforts ➢➢ Search and arrest warrant execution techniques ➢➢ Suspect threat detection techniques ➢➢ Law enforcement checkpoints
Q: What conditions would dictate that releasing a governmental record would “endanger the life or physical safety of any individual”?
A: This exemption originally only protected law enforcement personnel, but was later amended and now protects the safety of any individual. This exemption can also protect any type of information that creates a risk of harm or retaliation to an individual, not just identifying information, such as: ➢➢ Flood inundation maps because they show which areas downstream from dams are at risk for flooding in the event a dam is damaged. ➢➢ The details of the physical structure and security plans of a Federal Bureau of Prisons facility because of the risks to prison security that would be created by disclosure. ➢➢ The description of a home-made machine gun in an FBI labora-
Court
Update
tory report because its disclosure would create the real possibility that law enforcement officers would have to face individuals armed with home-made devices constructed from the expertise of other law enforcement people. Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org.
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: Electronic Records: Email Delivery Not Required Taylor v. SAU #55, New Hampshire Supreme Court No. 2016-0702, 9/21/2017 Recreational Use Immunity Statute, RSA 212:34, Protects Town from Personal Injury Claim Jay Kurowski f/n/f Christopher Kurowski v. Town of Chester, New Hampshire Supreme Court No. 2016-0406, 9/21/2017 City Panhandling Enforcement Policy and Ordinance were not Narrowly Tailored Infringing on First Amendment Protected Speech Theresa M. Petrello v. City of Manchester, U.S. District Court New Hampshire Civil No. 16-cv-008-LM, 2017 DNH 173, 9/7/2017
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NEW HAMPSHIRE TOWN AND CITY
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Providing Legal Services to New Hampshire Municipalities
Planning, Zoning and Enforcement Tax Abatement Appeals · Ordinance Drafting and Review Employment and Labor · Water and Sewer Issues Bond Counsel · Litigation General Legal Advice
Contact Person: Mark H. Puffer 57 North Main Street | Concord, NH 03301 603.410.1500 | mpuffer@preti.com
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preti.com
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Member Dues Renewals Dues renewals for membership in the New Hampshire Municipal Association are on their way. Your membership dues account for approximately 70% of NHMA’s total revenues and are essential for the Association to continue to support our mission to serve as your unified voice. With your financial support, NHMA is able to continue our role of providing advocacy, training and legal guidance. NHMA thanks all its members for their continued support!
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NEW HAMPSHIRE TOWN AND CITY
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Has Your City or Town Ordered NHMA’s NEW Right-to Know Law Book? If not, it’s time to order NHMA’s new reference guide for public officials when confronted with the numerous legal issues surrounding New Hampshire’s Rightto-Know Law.
“Must-have” reference guide for every city and town !
Only $55 for Members $95 for Non-members
Includes Top Ten Compliance Tips Public Meeting & Governmental Records Posters Is it a Meeting Flow Chart Remote Participation Checklist And More!
The Right-to-Know Law (RSA Chapter 91-A) affects every aspect of local government in our state. Every board, committee, commission, and sub-committee in every town, city and village district in New Hampshire must comply with this law. As a result, all local officials and employees must understand the law and their responsibilities regarding both public meetings and governmental records.
Go to NHMA’s online store at www.nhmunicipal.org/shop to order your reference copy today!
www.nhmunicipal.org
NOVEMBER/DECEMBER 2017
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New Hampshire Town and City
2017 Index of Featured Articles Best Practices Series Appropriate Level of Unrestricted Fund Balance in the General Fund.......................................................................... Mar/Apr...............................................................22 Cash Flow Analysis....................................................................................................................................................... May/June..............................................................26 Alternate Service Delivery: Shared Services.................................................................................................................. July/Aug...............................................................30 Local Government Budgeting....................................................................................................................................... Sept/Oct...............................................................34 Best Practices for Accountability and Transparency....................................................................................................... Nov/Dec...............................................................30 Strategic Governance: How Municipalities Can Envision and Achieve a Desired Future............................................. Sept/Oct...............................................................10 Finding the Right Data: NHPFC.org as a Resource for Strategic Financial Planning................................................... Sept/Oct...............................................................15 The Municipal Budget Committee: Roles and Responsibilities................................................................................... Sept/Oct...............................................................17 Maximizing the Influence of Your Forecast................................................................................................................... Sept/Oct...............................................................27 State Budget Recap: Twists and Turns.......................................................................................................................... Sept/Oct...............................................................21 Elections Balancing Free Speech and the Right to Vote in New Hampshire................................................................................. Jan/Feb...................................................................8 A Primer on 2017 Election Reform Possibilities for the Granite State........................................................................... Jan/Feb.................................................................11 From Referee to Official Ballot Referendum: My Time Behind the Podium................................................................ Jan/Feb.................................................................15 Supervisors of the Checklist: Understanding Amendments to RSA 654:27 & 654:28................................................. Jan/Feb.................................................................17 Human Resources/Workplace Looking Ahead to 2017................................................................................................................................................ Jan/Feb.................................................................30 The Myth of Employment at Will................................................................................................................................ May/June..............................................................15 Marijuana in the Workplace......................................................................................................................................... May/June..............................................................34 Workforce Availability and Its Implications for Reginoalization.................................................................................... July/Aug...............................................................36 Land Use and Environment Designing Healthier Communities in New Hampshire................................................................................................ Mar/Apr.................................................................8 Safe Routes to Schools: How Kids are Gettign to School Under Their Own Power.................................................... Mar/Apr...............................................................13 Building Healthy Communities: How a Community Health Initiative Launched a Regional Active Transportation Movement................................................................................................................................. Mar/Apr...............................................................17 Riding the Wave of Progress: A Coalition Approach to Local and Regional Transportation......................................... Mar/Apr...............................................................19 Legal Questions and Answers Guide to NHMA’s Legal Services - An FAQ................................................................................................................. Jan/Feb.................................................................32 Spending Without an Appropriation: Gifts and Grants as Off-Budget Expenditures................................................... Mar/Apr...............................................................32 Ensuring a Drug and Alcohol Free Municipal Workplace............................................................................................. May/June..............................................................36 Cybersecurity for Local Governments........................................................................................................................... July/Aug...............................................................38 The Default Budget in SB2 Towns............................................................................................................................... Sept/Oct...............................................................42 Law Enforcement Records Under the Right-to-Know Law........................................................................................... Nov/Dec...............................................................38 Miscellaneous New Hampshire Municipal Association’s 75th Annual Conference Highlights............................................................. Jan/Feb.................................................................22 NHARPCs Report What is the 2017 NH Small MS4 General Permit and How Can Your Regional Plannign Commission Help?....................................................................................................................................................... Sept/Oct...............................................................38 Reviewing Developments of Regional Impact in New Hamsphire................................................................................ Nov/Dec...............................................................34 NLC Report NLC Releases New Report Offering Practical Strategies for a Stronger Local Democracy............................................. Jan/Feb.................................................................19 The Future of Work in Cities....................................................................................................................................... Mar/Apr...............................................................21 A Guide for Local and State Leaders Workign to Create Healthy Communities and Prevent Childhood Obesity....................................................................................................................................................... May/June..............................................................25 National League of Cities Reseach of Technology and Mobility.................................................................................... July/Aug...............................................................29 Paticipatory Budgeting Toolkit..................................................................................................................................... Sept/Oct...............................................................33 Why Transparency is Good (or Bad) for Government.................................................................................................. Nov/Dec...............................................................29 Right-to-Know Quorum Quandries...................................................................................................................................................... Nov/Dec...............................................................10 Government Management of Email: What’s in Your Muncipalitys’ Inbox.................................................................... Nov/Dec...............................................................19 The Right-to-Know Law and the Duty of Confidentiality............................................................................................ Nov/Dec...............................................................15 New Hampshire Supreme Court Clarifies Government Body’s Obligation Under RSA 91-A....................................... Nov/Dec...............................................................17 Right-to-Know Commission Convene Organzational Meeting.................................................................................... Nov/Dec...............................................................21 Technology Poor Mans’ Solution: How a Small Town Created Transparency and Efficiencies Through the Smart Use of Technology............................................................................................................................................................... July/Aug.................................................................8 State and Local Regulations on Drones........................................................................................................................ July/Aug...............................................................13 A Primer on Smart Cities: Using Technology and Intelligent Design to Make Cities More Livable, Workable and Sustainable............................................................................................................................................ July/Aug...............................................................17 Beyond Building and Bridges - 3D Mapping for Municipalities................................................................................... July/Aug...............................................................21 Body Worn Cameras: New Law, New Considerations for Police Departments............................................................ July/Aug...............................................................25 Considerations for Data Storage Management.............................................................................................................. Jan/Feb.................................................................28 Workplace Wellness Managing Your Stress................................................................................................................................................... May/June..............................................................19 Change Direction New Hampshire: It’s Way Past Time............................................................................................... May/June..............................................................23 Creating a Culture of Wellness at Work........................................................................................................................ May/June................................................................8 Boosting Your Energy at Work: A Recipe for Success................................................................................................... May/June..............................................................11
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NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
Statement of Ownership Management, and Circulation (Required by 39 U.S.C. 2685)
New Hampshire Town and City (Publication Number: 379-620) is published bi-monthly (Jan/Feb, Mar/Apr, May/Jun, July/Aug, Sept/Oct, Nov/Dec) at the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, NH 03301. The editor/managing editor of New Hampshire Town and City is Timothy Fortier and the publisher is the New Hampshire Municipal Association. Annual subscription price is $25.00 for members, $50.00 for nonmembers. Date of filing: September 29, 2017. Statement of Ownership is published in the November/December issue. Extent and Nature of Circulation:
Average No. Copies Each Issue During Preceding 12 Months
Actual No. Copies of Single Issue Published Nearest to Filing Date
a. Total number of copies (Net press run) 2,499 b. Paid Circulation (By Mail and Outside the Mail) 1. Mailed Outside-County Paid Subscriptions Stated 2,082.0 on Form 3541 (Include paid distribution above nominal rate, advertiser's proof copies, and exchange copies) 2. Mailed In-County Paid Subscriptions Stated on PS Form 301.0 3541(Include paid distributioon above nominal rate, advertiser's proof copies, and exchange copies) 3. Paid Distribution Outside the Mails Including Sales -------Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPSÂŽ 4. Paid Distribution by Other Class of Mail Through the -------USPS (e.g. First-Class MailÂŽ) c. Total Paid Distribution (Sum of 15b, (1), (2), (3), and (4)) 2,383 d. Free or Nominal Rate Distribution (By Mail and Outside the Mail) 1. Free or Nominal Rate Outside-County 92.0 included on PS Form 3541 2. Free or Nominal Rate In-County Copies 28.0 included on PS Form 3541 3. Free or Nominal Rate Copies Mailed at Other Classes -------Through the USPS (e.g. First-Class Mail) 4. Free or Nominal Rate Distribution Outside the Mail -------(Carriers or other means) e. Total Free or Nominal Rate Distribution 120
2,600
(Sum of 15d (1), (2), (3) and (4))
f. Total Distribution (Sum of 15c, and 15e.) g. Copies not distributed h. Total (Sum of 15f and g) i. Percent paid and/or requested circulation (15c/15f x 100) I certify that all information shown above is true and complete.
2,503 25 2,528 96.166%
2,064
277
--------------2,341 92 28 --------------120 2,500 100 2,400 97.541%
Timothy Fortier Editor
www.nhmunicipal.org
NOVEMBER/DECEMBER 2017
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Periodical Postage Paid at Concord, NH
25 Triangle Park Drive Concord, NH 03301
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