September/October 2020
TownandCity N E W
H A M P S H I R E
In This Issue:
A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION
Broadband is More Important than Ever....................................................10 Grassroots Broadband Coalition Launched................................................16 Top COVID-19-Related Legal Inquiries.........................................................20 Update on Legislative Policy Conference....................................................24
We’re committed to staying connected. Our commitment to our communities remains steadfast as we help build and rebuild the transforming world around us. We’re with you all the way. New Hampshire Public Deposit Investment Pool (NHPDIP or the Pool) has been providing New Hampshire public entities with professional investment services since 1993. The Pool is designed to meet the distinctive investment needs of cities, towns, school districts, and other political subdivisions, focusing on safety, liquidity, and a competitive yield.
nhpdip.com This for further further distribution distributiontotoretail retailinvestors, investors,and anddoes does Thisinformation informationisisfor for institutional institutional investor use only, not for not represent an offer to sell or a solicitation of an offer to buy or sell any fund or other security. Investors not represent an offer to sell or a solicitation of an offer to buy or sell any fund or other security. Investors should consider the Pool’s investment objectives, risks, charges and expenses before investing in the Pool. should consider the Pool’s investment objectives, risks, and expenses before Statement, investing inwhich the Pool. This and other information about the Pool is available in charges the Pool’s current Information should readinformation carefully before of theinPool’s Information may be obtained by This andbe other aboutinvesting. the Pool A is copy available the Pool’s currentStatement Information Statement, which calling 1-844-464-7347 or is available on the NHPDIP website at www.nhpdip.com. While the Pool seeks should be read carefully before investing. A copy of the Pool’s Information Statement may be obtained by to maintain a stable net asset value of $1.00 per share, it is possible to lose money investing in the Pool. calling 1-844-464-7347 or is onor the NHPDIP website at www.nhpdip.com. WhileCorporation the Pool seeks An investment in the Pool is available not insured guaranteed by the Federal Deposit Insurance any other agency. Shares of the areit distributed Fund Distributors, Inc., toormaintain a government stable net asset value of $1.00 perPool share, is possibleby to PFM lose money investing in the Pool. member Financial Industry Regulatory Authority (FINRA) (www.finra.org) and Securities Investor Protection An investment in the Pool is not insured or guaranteed by the Federal Deposit Insurance Corporation Corporation (SIPC) (www.sipc.org). PFM Fund Distributors, Inc. is a wholly owned subsidiary of PFM Asset orManagement any other government agency. Shares of the Pool are distributed by PFM Fund Distributors, Inc., LLC. member Financial Industry Regulatory Authority (FINRA) (www.finra.org) and Securities Investor Protection Corporation (SIPC) (www.sipc.org). PFM Fund Distributors, Inc. is a wholly owned subsidiary of PFM Asset Management LLC.
Contents Table of
Volume LXIII • Number 5
September/October 2020
3 A Message from NHMA 5 Happenings 9 Upcoming Events 34 Tech Insights: Top Six Mistakes When Cutting IT Costs 36 Legal Q&A: Masks and Other Requirements 40 The HR Report: The Returning Workforce To Mandate of Not to Mandate 42 Court Update 44 This Moment in History 44 Name That City or Town Centerspread: 2020 Annual Conference promotion. This year's theme is Resilience.
10 16 20 28 30 32
Broadband is More Important than Ever
Grassroots Broadband Coalition Launched
Top COVID-19-Related Legal Inquiries
Update on Legislative Policy Conference
Drought Restrictions During State or Federally Declared Droughts Using Sewage to Fight Pandemic: Municipalities Find an Early Warning for SARS-CoV-2 Virus with Wastewater Monitoring
Cover: Town of Auburn, photo credit to Bill Herman, Town Administrator and NHMA Board of Director.
New Hampshire Town and City Magazine Staff Executive Director Editor in Chief
Margaret M.L. Byrnes Timothy W. Fortier
Contributing Editor Margaret M.L. Byrnes Becky Benvenuti Natch Greyes Production/Design
Evans Printing Co.
Official Publication of the New Hampshire Municipal Association 25 Triangle Park Drive • Concord, New Hampshire 03301 Phone: 603.224.7447 • Email: nhmainfo@nhmunicipal.org • Website: www.nhmunicipal.org New Hampshire Municipal Association Phone: 800.852.3358 (members only) NEW HAMPSHIRE TOWN AND CITY (USPS 379-620) (ISSN 0545-171X) is published 6 times a year for $25/member, $50/non-member per year, by the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, New Hampshire 03301. Individual copies are $10.00 each. All rights reserved. Advertising rates will be furnished upon application. Periodical postage paid at Concord, NH 03302. POSTMASTER: Send address changes to NEW HAMPSHIRE TOWN AND CITY, 25 Triangle Park Drive, Concord, NH 03301. NEW HAMPSHIRE TOWN AND CITY serves as a medium for exchanging ideas and information on municipal affairs for officials of New Hampshire municipalities and county governments. Subscriptions are included as part of the annual dues for New Hampshire Municipal Association membership and are based on NHMA’s subscription policy. Nothing included herein is to be construed as having the endorsement of the NHMA unless so specifically stated. Any reproduction or use of contents requires permission from the publisher. POSTMASTER: Address correction requested. © Copyright 2020 New Hampshire Municipal Association
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SEPTEMBER/OCTOBER 2020
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New Hampshire Municipal Association
B OA R D O F D I R E C TO R S
As of March, 2019
Shaun Mulholland - Chair City Manager, Lebanon
Jim Maggiore - Vice Chair Selectman, North Hampton
Lisa Drabik - Treasurer Asst. Town Manager, Londonderry
Rick Hiland - Secretary Selectman, Albany
Laura Buono Town Administrator, Hillsborough
Butch Burbank Town Manager, Lincoln
David Caron Town Administrator, Derry
Conservation Commission, Holderness
Shelagh Connelly
Phil D’Avanza Planning Board, Goffstown
Jeanie Forrester Selectman, Meredith
Stephen Fournier Town Manager, Newmarket
Elizabeth Fox Asst. City Manager, HR Director, Keene
Meredith Hatfield Councilor, Concord
Bill Herman Town Administrator, Auburn
Neil Irvine Selectman, New Hampton
Pamela Laflamme Community Development Director, Berlin
Cheryl Lindner Chief of Staff, Nashua
Patrick Long Alderman, Manchester
Harold Lynde Selectman, Pelham
Conner MacIver Town Administrator, Barrington
Judie Milner City Manager, Franklin
Donna Nashawaty Town Manager, Sunapee
David Stack Town Manager, Bow
Eric Stohl Selectman, Columbia
David Swenson Selectman, New Durham
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NEW HAMPSHIRE TOWN AND CITY
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A Message from the
I
NHMA
n this issue we bring attention to our busy fall program schedule, including virtual workshops on budget and finance, welfare guidelines, and our Right-to-Know series on government records, public meetings and law enforcement. Why so much training on the Right-to-Know law? The need for all local officials and employees to understand the Right-to-Know law and their responsibilities regarding both public meetings and government records cannot be overstated. We see it as our responsibility to provide the best possible legal advice and training to municipal officials so that they comply with the Right-to-Know law which comes into play every day in town and city halls across New Hampshire. In addition to these virtual workshops, NHMA compliments this training with at least two webinars each year – one on public meetings and the other on government records. Because the Right-to-Know law is part of almost everything that municipalities do, we launched a new publication, A Guide to Open Government: New Hampshire’s Right to Know Law, back in 2017. It is a “must-have” reference book that every town, city and village district in New Hampshire should consider.
Let us bring the classroom to you. As you know, NHMA attorneys are available upon request to NHMA members for on-demand training sessions via Microsoft’s Teams platform. Attendees log in to the training program from the comfort of their home or office and attend virtually, with the ability to ask live questions of the presenting attorney. NHMA offers this alternative method of training on a date and time that is suitable for your board and staff, and you can invite surrounding member municipalities to participate and share toward the $350.00 total cost. If interested, please contact us at legalinquirie@nhmunicipal.org for more information. Save October 2 for NHMA’s Legislative Policy Conference this year. Although we are still working out all the details, on Friday, October 2nd, NHMA will host municipal representatives from all across the state as they gather to debate, discuss and vote on proposed legislative policy positions submitted by our member municipalities. These proposed policy recommendations are the hard work and dedication of our volunteer members and will help guide NHMA’s advocacy efforts for the upcoming 2020-2021 legislative biennium. Policy committee members are recognized on Page 17 in this issue. We hope you can join us on Friday, October 2nd. Sorry, program registration is closed. Classes for NHMA’s six-class certificate program, The Academy for Good Governance, resume in September with presentations on employment liability, harassment, contracts and general risk management presented by Primex. In October, HealthTrust presents on health care and the Affordable Care Act. If you are interested in participating in the next class of The Academy, please contact Ashley Methot at amethot@nhmunicipal.org. Good news, registration to open soon. If you haven’t heard the word, NHMA will be holding its first-ever VIRTUAL Annual Conference and Exhibition on Wednesday, November 18 through Friday November 20. Our theme is Resilience. New Hampshire’s cities and towns have boldly demonstrated their capacity to build resilient communities during this COVID-19 crisis. So please consider joining us in November for three days of interesting and relevant presentations, tons of networking and fun. Your chair may be different, but your spot with us is reserved. www.nhmunicipal.org
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SAVE THESE DATES for the following
VIRTUAL
RIGHT-TO-KNOW LAW WORKSHOPS PUBLIC MEETINGS 6:00 pm—8:00 pm Thursday September 10, 2020 $40.00
GOVERNMENT RECORDS 1:30 pm - 3:30 pm Tuesday, October 6, 2020 $40.00
LAW ENFORCEMENT 9:00 am - 12:00 pm Thursday, October 15, 2020 $65.00 Ashley Methot, Events Coordinator 25 Triangle Park Drive Concord, NH 03301 603.230.3340 amethot@nhmunicipal.org www.nhmunicipal.org
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NEW HAMPSHIRE TOWN AND CITY
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HAPPENINGS DESPITE RECENT RAINS: Moderate Drought Declared for Southern New Hampshire According to the U.S. Drought Monitor, the southern half of the state has been elevated from “Abnormally Dry” (D01) to “Moderate Drought” (D1), while the remainder of the state continues to experience “Abnormally Dry” (D0) conditions. These conditions, a result of an exceptionally low snowpack this winter and lack of precipitation, have impacted rivers and streams, groundwater, soil moisture, and reservoirs. Due to these conditions the State Drought Management Plan is being implemented. This plan ensures the State develops, coordinates and implements all possible approaches to responding to the drought. One of the first steps, based on the increasing intensity of the drought will be the initial coordination of the State Drought Management Team (DMT), a collaborative team of state, federal, municipal and regional agencies; industry and nongovernmental organizations; and academia. Ongoing actions include: assessing reservoir impacts and adjusting operations, working with drinking water systems statewide and ensuring the public is informed of the impacts and conservation measures that should be employed now to avoid serious problems later in the summer.
NHDES has advised public water systems to carefully track water supplies and implement outdoor water use restrictions as needed. The state has requested systems report restrictions to NHDES to be publicized on the Drought Management webpage. Ninety-four systems have reported implementing outdoor usage restrictions. NHDES is asking the public to abide by restrictions so essential and critical water needs of the community, residents, and businesses are met. NHDES encourages those relying on private residential wells to begin conserving now. Due to COVID-19, people are at home more often, which means a higher than usual demand on residential well supplies. To protect your well supply, it is recommended that outdoor water use be limited and water use be staggered, allowing the well time to recharge between demands. To view a map of drought conditions, a list of utilities restricting water use, and drought guidance for private well owners, go to the “A-Z list” at www. des.nh.gov and scroll down to Drought Management. Additional municipal guidance can be found at this website including sample model regulations to restrict water usage.
Asset Management Coastal Facilities Energy Infrastructure Land Development Resiliency Transportation Water Resources 177 Corporate Drive Portsmouth, NH 03801 603.433.8818
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EPA Releases Water Utility COVID-19 Financial Impact Tool
EPA recently released a new tool to help water utilities assess the financial impact of COVID-19 on operations. Throughout the COVID-19 national health emergency-and as communities across the country reopen, water utilities have reliably provided safe drinking water and critical wastewater services. This new tool will help provide important information about the financial and operational health of water utilities, which play an integral role in protecting human health and the environment for our nation. Developed by EPA’s Water Infrastructure and Resiliency Finance Center, the Water Utility COVID-19 Financial Impact Tool leads water utilities through questions that can determine how their revenues, expenses and cashflow have been affected. This tool will help water utilities understand their financial health as they plan for ongoing operation and maintenance and capital infrastructure needs, including implementing plans to repair, replace and modernize aging infrastructure. Visit the EPA website to access the Water Utility COVID-19 Financial Impact Tool.
Offices throughout the Northeast and a new Portland, ME location
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SEPTEMBER/OCTOBER 2020
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EPA Announces $6 Billion in New Funding for Water Infrastructure Projects The EPA announced recently the 2020 notice of funding availability under its Water Infrastructure Finance and Innovation Act (WIFIA) program, including funding for the new State infrastructure financing authority WIFIA (SWIFIA) program. These funding programs accelerate investment in critical water infrastructure through innovative and flexible financing that can support diverse projects in both large and small communities. This year’s funding will provide up to $6 billion to support $12 billion in water infrastructure projects while creating more than 35,000 jobs and improving public health and environmental protection in communities across the country. This year’s notice of funding availability prioritizes construction-ready projects in three areas: updating aging infrastructure; reducing exposure to lead and addressing emerging contaminants; and water reuse and recycling. EPA is also providing funds under SWIFIA. This new program, which was authorized by Congress as part of the America’s Water Infrastructure Act (AWIA) of 2018, offers low-interest loans to state water infrastructure programs (e.g., the State Revolving Funds) that then help finance needed water infrastructure projects in local communities. This round of funding will provide SWIFIA borrowers up to $1 billion to support $2 billion in water infrastructure projects.
Registration Costs for NHMA’s Virtual Annual Conference Set
This year’s theme is Resilience. Members pay $75 for 3 Days! $65 if you pay electronically! Registration opens in September In an effort to increase member participation in NHMA’s 79th VIRTUAL Annual Conference and Exhibition being held November 18-20, 2020, we are offering three days of education, networking and fun for one low member rate of $75.00. If members pay electronically, the price is further reduced to $65.00. There are no early bird rates this year. For affiliate members, the cost for all three days is $110.00. If affiliate members pay electronically, the price is further reduced to $105.00. Questions? Please contact our Event Coordinator, Ashley Methot at amethot@nhmunicipal.org or 603-2303340.
This year has been a year for changes and flexibility in the workplaceparticularly with respect to wage and hour practices. On January 1, 2020, the overtime threshold under the Fair Labor Standards Act (FLSA) increased to $684 per week, or $35,568 per year. Since that time, challenges brought on by COVID-19 have spurred many changes in the workplace and raised unique questions of compliance with traditional wage and hour laws. The U.S. Department of Labor invites you to participate in the Payroll Audit Independent Determination (PAID) program, which expedites resolution of inadvertent overtime and minimum wage violations under the FLSA. The PAID program is overseen by the Department’s Wage and Hour Division (WHD), which is responsible for administering and enforcing some of the nation’s most comprehensive federal labor laws, including the FLSA. In a typical investigation, WHD’s in-
January/February 2020
TownandCity N E W
H A M P S H I R E
A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION
For more information about WIFIA and this funding announcement, visit: https://www.epa.gov/wifia.
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USDOL Offers Wage and Hour Compliance Program to Expedite Inadvertent Overtime and Minimum Wage Violations under FSLA
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In This Issue:
HAPPENINGS from page 5
Diary of a First Time Moderator .......................................................... 8
$25/members • $50/mon-members
A Closer Look at the New Laws Governing Town Meeting & Election Postponement .......................................................................14 Traits of a Good Moderator ................................................................18 NHMA Gears Up for 2021-2022 Legislative Policy Process – It’s Never Too Early to Submit Policy Suggestions ..........................26
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vestigators evaluate an employer’s compliance with the laws WHD enforces. When FLSA violations are found, WHD has various enforcement mechanisms, including, but not limited to, recovering up to three years of back wages, liquidated damages (double amount paid to the employees), and civil money penalties (fines paid to the government). WHD collected a record-breaking $322 million in back wages from investigations conducted in Fiscal Year (FY) 2019, including $226 million from FLSA violations. Some municipalities, local governments, and state governments engage in compensation practices that do not comply with the FLSA. In FY 2019 alone, WHD collected $29 million in back wages from investigations of municipalities, local governments, and state governments. Now is the time to reflect on your practices and ensure you are in compliance. The PAID program, which has helped 36 public employers come into compliance thus far, is a great resource to assist you. If you find that you are out of compliance, you may conduct a self-audit under the PAID program. Under PAID, employers who proactively conduct a self-audit and work with WHD to resolve any inadvertent violations are able to pay their employees 100 percent of the back wages they were owed, but were not paid due to the employer’s inadvertent mistake. Employers who participate in good faith will not be subject to civil money penalties and (if the employee accepts the back wages) will repay up to two years of back wages, receive a full release for those claims, and will not be subjected to liquidated damages or litigation. More information about the PAID program is available at dol.gov/agencies/whd/paid, or contact the WHD at 1-866-4US-WAGE (1-866-4879243).
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groups. It is important to note the Actuarial Experience Study, authorized by the NHRS Board in December 2019, was not impacted by the COVID-19 pandemic. The study was based upon the period July 1, 2015, to June 30, 2019, and does not take into consideration any market volatility or potential long-term impact related to the pandemic.
NHRS Explains Factors Expected to Increase Future Employer Contribution Rates
The New Hampshire Retirement System (NHRS) posted a new document on their website, FAQ: 2019 Actuarial Experience Study, providing answers to some common questions arising about the recently adopted revised actuarial assumptions and their expected impact on future employer contribution rates. In June, the NHRS Board adopted the revised assumptions based on the 2019 Study, including a reduction in the assumed rate of return from 7.25% to 6.75%. The FAQ document further explains, as a result of these changes, the FY 22-23 employer contribution rates are expected to increase over current rates for all four member classifications within a range of 2.60% to 5.45% as a percent of payroll compared to current rates. In terms of percentage increase over current FY 20-21 contribution rates, the increases are expected to range from 9.64% (Fire) to 25.87% (Employee) among the member
Local Broadband Wins in the House Moving Forward Act
Through the National League of Cities’ (NLC’s) Rebuild With Us campaign, local leaders are asking Congress to pass a comprehensive infrastructure package that steps up federal support for transportation, water, broadband, workforce, and more. On July 1, the U.S. House of Representatives passed the Moving Forward Act (H.R.2), which makes significant investments to support cities› infrastructure requests, but Senate action will be needed. The ongoing coronavirus pandemic emergency has highlighted the essen-
2020 Budget & Finance Virtual Workshop 9:00 am - 4:00 pm Thursday, September 24, 2020 NHMA will be holding its 2020 Budget & Finance Workshop on Thursday, September 24th as a virtual workshop to ensure the safety of all attendees as COVID-19 remains a serious public health threat. Check out our 2020 workshop topics below! Fundamentals of the Municipal Budget Process
THANK YOU TO OUR SPONSOR!
Successful Budgeting in a Pandemic Property Taxes and State Aid to Municipalities You Have Questions? We Have Answers!
Please visit www.nhmunicipal.org for the latest
SEPTEMBER/OCTOBER 2020
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HAPPENINGS from page 7 tial role connectivity plays in our lives. Office workers have become telecommuters, doctors’ visits have become video chats, and school, church services, and live entertainment have all moved to livestream. In recognition of the critical place broadband now holds in our lives, the House of Representatives’ recently-passed Moving Forward Act (H.R. 2) includes a package of unprecedented investments in broadband infrastructure and changes to federal broadband subsidies and programs. To learn more about the Moving Forward Act, visit the National League of Cities website at www.nlc.org.
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Newbury Selectboard Recognizes Mike Croteau for 75 Years of Service The Town of Newbury Selectboard at their meeting on August 3, 2020 recognized Newbury Firefighter, Mike Croteau on his retirement from Newbury Fire Rescue after 75 years of service. Mike is considered one of the longest continuouslyserving firefighter in New Hampshire, and possibly the country, having joined the Newbury Fire Department in 1945. New Hampshire State Fire Marshal, Paul Parisi spoke on Mike’s service, which included serving as Newbury Fire Chief. Captain Doug Minor of the New Hampshire Division of Forests and Lands spoke of Mike’s longtime role as Deputy Fire Warden. Official written proclamations came
NEW HAMPSHIRE TOWN AND CITY
from Governor Sununu, Senators Hassan and Shaheen and Congresswoman Kuster. Mike was presented with the Town of Newbury retirement rocking chair and a retired firefighter license plate. Beyond his work at the fire department, Mike was an engineer for the New Hampshire Department of Transportation for 33 years and retired in 1990, As proclaimed by Senator Hassan, “Mike’s commitment to his community and the Newbury Fire Department is a shining example of the spirit of New Hampshire, and he serves as a role model for all Granite Staters.”
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Upcoming
Events
For more information or to register for an event, visit our online Calendar of Events at www.nhmunicipal.org. If you have any questions, please contact us at nhmaregistrations@nhmunicipal.org or 800.852.3358, ext. 3350.
SEPTEMBER
OCTOBER
Labor Day (NHMA Offices Closed) Monday, September 7
Virtual Event: 2020-2021 Legislative Policy Conference Friday, October 2 9:00 am – 12:00 pm
Virtual Workshop: Right-to-Know Law and Public Meetings Thursday, September 10 6:00 pm – 8:00 pm Cost: $40.00 Virtual Program: The Academy for Good Governance Employment Liability and Harassment, presented by Primex Wednesday, September 16 5:00 pm – 7:00 pm Virtual Joint Workshop: Welfare Guidelines (in partnership with New Hampshire Local Welfare Administrators Association) Thursday, September 17 10:00 am – 11:30 am Cost: TDB Virtual Workshop: 2020 Budget & Finance Thursday, September 24 9:00 am – 4:00 pm Cost: $100.00 Virtual Certificate Program: The Academy for Good Governance Contracts and General Risk Management, presented by Primex Wednesday, September 30 5:00 pm – 7:00 pm
Virtual Workshop: Right-to-Know Law and Government Records Tuesday, October 6 1:30 pm – 3:30 pm Cost: $40.00 Virtual Certificate Program: The Academy for Good Governance Health Care and ACA, presented by HealthTrust Thursday, October 8 5:00 pm – 7:00 pm Virtual Workshop: Hard Road to Travel Friday, October 9 9:00 am – 12:30 pm Cost: $65.00 Columbus Day (NHMA Offices Closed) Monday, October 12 Virtual Workshop: Right-to-Know Law and Law Enforcement Thursday, October 15 9:00 am – 12:00 pm Cost: $65.00 Virtual Certificate Program: The Academy for Good Governance Effective Public Meetings, presented by NHMA Wednesday, October 21 5:00 pm – 7:00 pm Virtual Land Use Law Conference (in partnership with the NH Office of Strategic Initiatives) Saturday, October 31, 2020 9:00 am - 3:00 pm
Please note that due to rapidly changing conditions in light of COVID-19, please visit NHMA’s website @ www.nhmunicipal.org frequently for the most up-to-date event and training information. Thank you.
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Broadband is More Important than Ever By Tim Murphy & Jeff Hayes
Introduction Broadband, or high-speed Internet, is essential to the way we live, work, learn, and play. This is not a new concept. Consider the following: • Communities with access to adequate broadband connectivity are known to perform better economically than those without; therefore, inadequate broadband can become a limiting variable to staying competitive. • Studies show that K-12 students with access to broadband at home are twice as likely to attend college. • Householders 65 years and older are 3 times more likely to not have a computer in the home in comparison to the total population. • Social capital is highly correlated with internet use and greatly promotes opportunities for social engagement which is linked to overall health - particularly a concern for those more isolated in rural areas. • High speed internet connectivity provides individuals access to more information about their health than ever before. This list goes on. Parts of New Hampshire, particularly more rural areas, often lack the necessary infrastructure to offer quality broadband. This is a function of relatively lower development densities in which the return on investment is less attractive to internet service providers. Other challenges include affordability of service, access to a device to allow connectivity, and capacity for utilizing the technology. This latter set of challenges can be found in areas regardless of development density. Together, these issues have become associated with creating a digital divide in our country and in our state. Add to this the on-going Covid-19 pandemic with stay-at-home advisories and physical distancing, the issues associated with inadequate broadband connectivity become further exposed. In this article, we look at some of the progress being made in addressing broadband connectivity in New Hampshire. Much of this work is being led by local champions within communities who have learned to be proactive to bring 10
NEW HAMPSHIRE TOWN AND CITY
about change that would otherwise move too slowly. And to assist these local efforts are a number of enlightened legislators who have helped to clarify and modify state law in order to facilitate effective broadband connectivity solutions. Admittedly, the space limitations of this article will not allow for comprehensive coverage of all that is going on in our state, but we hope to shine a light on some activities which can inform and inspire others in making progress. In the space provided, we focus on activities in which NH’s regional planning commissions have been active, drawing primarily from the experiences with which we have been involved through our respective agencies.
Making the Case for Rural Broadband As indicated above, broadband connectivity can be an issue in any community – but lacking in adequate infrastructure, rural areas are more likely to be challenged. In many parts of rural NH, lower quality broadband service becomes a limiting variable to economic competitiveness and quality of life. Enhanced and affordable broadband service will facilitate economic development activities that rely on higher speed connectivity not previously available in these areas. Many small and emerging businesses depend on high speed internet due to the very fact that they are small and emerging – that is, their efficiency is made possible by the quality of service available. In addition, workforce challenges are related to the quality of broadband service – whether in the workplace, the classroom or as a basic expectation that a resident has for making a particular community their home. When broadband availability is relatively poor, or costs for services high, the extent and quality of economic development in a community or region will be correspondingly impacted in a negative way.
Broadband Planning: Ancient History Broadband technology is fast moving in so many ways. In 2000, a 56 Kbps connection was sufficient to conduct most business on the internet. Today, a common definition of broadband references speeds of 25/3 Mbps (25 Mbps down www.nhmunicipal.org
FORM A BROADBAND COMMITTEE. A broadband committee is critical for helping guide a community through the broadband implementation process. A committee could be an official municipal body or an informal volunteer group.
ASSESS COMMUNITY READINESS AND NEED. Does your community understand the benefits of broadband? What broadband-related challenges do community members face? Is there support for broadband improvements? A survey, public forums, and additional outreach can help answer these questions and others important to implementation.
DISTRIBUTE A REQUEST FOR INFORMATION (RFI). As a prerequisite for issuing broadband infrastructure bonds, a municipality must issue an RFI to determine which areas are served by broadband and which are not. Even if a municipality does not issue broadband infrastructure bonds, however, the RFI is an important tool for verifying which locations have broadband access.
SELECT A BROADBAND IMPLEMENTATION MODEL. Information and public feedback collected up to this point will help determine which broadband implementation model works best for your community. Different models may have pros and cons that should be considered carefully.
RELEASE A REQUEST FOR PROPOSALS (RFP). If your community decides to move forward with implementing a particular broadband model, a likely next step is to solicit proposals from vendors through a competitive bid process. Sample RFPs are available for communities to consider.
SELECT A VENDOR. Vendor selection will hinge on criteria specified in the RFP. Possible factors include, but are not limited to: value/cost of network buildout; deployment timeline; proposed technology and service level; risk exposure to the municipality; projected subscriber fees and surcharges.
BRING THE BOND ISSUANCE TO A VOTE (IF NEEDED). If municipal bonds are being used to finance the project or a portion thereof, a number of steps are necessary to facilitate the bond issuance. Any municipality pursuing an issuance should retain qualified legal counsel to usher the process along smoothly. In towns with a budgetary town meeting, the bond issuance needs to pass by a 2/3 vote.
www.nhmunicipal.org
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BROADBAND from page 11 and 3 Mbps up). This change represents a 450-fold increase in internet speeds over 20 years. Keeping up with this pace of change is a major challenge. Data from just a few months ago may no longer be accurate; yet the general situation, issues and corresponding strategies often remain relevant. Over the period 2010-2015, NH’s regional planning commissions collaborated with the University of New Hampshire to sponsor our state’s participation in the New Hampshire Broadband Mapping & Planning initiative funded by the National Telecommunications and Information Administration housed within the U.S. Department of Commerce. The results of this effort included 1) the documentation of areas of the state that are served, underserved and unserved by broadband according to the definition of the Federal Communications Commission; 2) the identification of community anchor institutions (including schools, town offices, emergency services, libraries, etc.) and corresponding connectivity; and 3) the development of regionalscale broadband planning documents designed to address connectivity challenges in NH’s nine regional planning commission districts. Although outdated in some respects, these materials provide a benchmark for broadband connectivity in NH and challenges which were identified through this effort remain similar today.
Broadband Planning: Recent Activity Left to their own devices, communities have been hard at work investigating effective broadband solutions locally. Municipal officials and other volunteers have seen value in coordinating with their neighbors – whether to share ideas or consider collaborative efforts to achieve a critical mass of consumers which might attract a service provider. Examples of such coordination include the Monadnock Broadband Group and Carroll County Broadband. The first of these operates under a tag-line as follows: The Monadnock Broadband Group (MBG) is an informal coalition of municipal officials, practitioners and other stakeholders with interest in understanding and coordinating relative to broadband issues in Southwest New Hampshire. MBG includes representation from over 20 municipalities, state officials, staff from the NH federal delegation, chambers of commerce, economic development practitioners, and other stakeholders and has continued to meet over several years. Logistical and staff support is provided by the Southwest Region Planning Commission which maintains an active website of MBG meeting materials and related information which can be found at www. swrpc.org/broadbandgroup. Meeting agendas include updates on relevant efforts with ATT’s FirstNet program
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603-856-8005 Email: info@roberts-greene.com
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and the FCC Mobility Fund Phase II Challenge process serving as examples; exposure to technical information such as municipal bonding and collaborative broadband models including ValleyNet, ECFiber and LymeFiber; information from neighbors including Communications Union Districts and the Vermont Broadband Innovation Grant program; information on federal and state broadband legislation; and, perhaps most importantly, opportunities for peer learning, information sharing and frank conversation. Carroll County Broadband, involving all 19 towns in Carroll County, is taking part in a $250,000 USDA Rural Community Development Initiative grant in conjunction with the North Country Council to conduct feasibility studies and develop business plans to prepare for construction of a fiber-based broadband internet. “This grant is going to provide for a feasibility study and high-level business planning for Carroll County Broadband so we can be prepared to look at USDA funding (eventually) for construction,” said ValleyNet Inc. CEO Carole Monroe in an interview with a local newspaper. Expertise outside NH is being accessed by necessity. CTC Technologies in Maryland, and Vermont based Rural Innovative Strategies and ValleyNet are not only providing technical leadership but are putting up matching funds of $250,000 for the project. The North Country Council and Lakes Region Planning Commission are active in supporting Carroll County Broadband’s efforts.
Legislative Efforts Significant contributions have been made through changes in state law to facilitate progress in local broadband efforts. In 2018, the NH Legislature passed SB 170 which helped to clarify the use of municipal bonding as a revenue source for broadband infrastructure. Prior to this clarification, bond www.nhmunicipal.org
counsel was not in a position to interpret NH law as allowing the use of municipal bonds for broadband facilities expansion in ways similar to bonding for water, sewer and sidewalks. The passage of SB 170 has proven effective in leading to results which are briefly described in the following section. Resulting from the 2020 legislative session, provisions of SBs 457, 459 and 559 were embodied and passed by the NH Legislature as part of HB 1111 (as amended) and recently signed into law by Governor Sununu. SB 457 allows for the formation of communications districts which are provided the ability to issue bonds in a manner similar to a municipality or regional water district. The idea behind communications districts is that towns require communications infrastructure and service to attract residents and businesses and that many rural communities on their own don’t achieve the critical mass necessary to attract a broadband service provider. Therefore, communications districts allow for towns to join together to form an authority for the purpose of addressing needs related to communications. To issue bonds for broadband infrastructure, municipalities must first put forth a request for information to any provider(s) serving the community to confirm areas within the municipalities which do not have access to adequate broadband service (aka, unserved). The ideas behind SBs 459 and 559 help to clarify that a provider(s) must respond to such requests for information within two-months. If a response is not received within this timeframe, the assumption is that the areas are in fact unserved which allows the municipality to move forward with bonding provisions.
Municipal Broadband Solutions For years local efforts to improve broadband connectivity have been on-going, particularly in rural communities. www.nhmunicipal.org
Such efforts typically begin with the realization that service providers are less inclined to focus on areas with lower development densities which inspires an individual or small group to stepup on a volunteer basis to 1) better understand the dynamics at play, and 2) explore options for improving connectivity. Forming a broadband committee is an early step in a municipality’s evolution to becoming proactive about broadband connectivity. Whether these committees are more formal in their construct through action by the Board of Selectmen or operating informally, it requires a significant commitment of time, energy and brainpower to serve. Once organized, an early activity of the municipal broadband committee is often assessing need and desire in the community through awareness campaigns, surveys, public meetings, and word of mouth. With an improved understanding of existing service and attitudes, these committees are off to a great start in working toward real progress. As described in the section above, the clarification in NH law brought about by SB 170 has been used to attract service providers to partner with municipalities to expand broadband at the community level. These arrangements are designed to be low risk to the municipality, optional to the resident/business owner, at low cost for those that choose to opt in, and with no addition to local taxes. The Town of Chesterfield is the first in NH to have capitalized on SB 170 by partnering with Consolidated Communications to bring fiber to the address throughout the entire community. Brad Roscoe, a former town Selectman, has been the local champion for this effort and is widely regarded as the architect of the “Chesterfield Model” which has since been adopted (with perhaps slight variations) in other communities including Westmoreland, Dublin, Walpole, Harrisville, and Rindge. Still others are investi-
gating whether this approach is right for them. It’s noteworthy that several Monadnock Region communities are capitalizing on SB 170 whose prime sponsors included Senator Jay Kahn (District 10) and Representative John Bordenet (Cheshire 5). Although newly enacted in state law, it will be interesting to see how the provision for creating communications districts (SB 457) may further improve broadband connectivity and choice. Communities which are more rural may need to join together to attract the attention of a service provider. Communications districts can serve the purpose of formalizing these multi-town relationships and, with the ability to issue bonds, such districts can choose to pursue the Chesterfield Model as an effective broadband solution.
And Now a Pandemic The social and economic effects of the Coronavirus pandemic have been compared to the Great Depression and we don’t know what lies ahead. What we do know is that people are eager to continue to live their lives as fully as possible. This means streaming information and entertainment will be an important part of our collective coping mechanism. But social media and entertainment is only a small part of the picture. Much more fundamental is the need to live, work, learn, and stay healthy. This is where our broadband connection, or lack thereof, has the potential to transform our lives forever. Our jobs, schools and health care delivery systems will never be the same but may be more resilient. Data since the start of the pandemic indicates the stark economic reality of how quickly a crisis can change our way of life if we do not become more resilient. Within just a few short weeks, unemployment rates in some NH communities reached as high as 40% at the peak of the shut down and many SEPTEMBER/OCTOBER 2020
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BROADBAND from page 13 towns continued to have double digit unemployment through the end of June 2020. Other communities were not nearly as impacted. Bringing fiber-based internet to rural NH would provide the high-speed internet connections needed for businesses to thrive and people to work from home making our local communities and families more resilient to economic disruption. NH schools are challenged with how best to meet distancing guidelines upon re-opening with most considering a hybrid approach to include a remote learning experience. Our K-12 students and families in underserved areas are at a clear disadvantage and are often left behind because they do not have sufficient broadband access to effectively learn in an online environment. These disadvantages extend to our college students, especially those attending public colleges, as many may require students to work partially or entirely from home.
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From a health services perspective, in many parts of NH, patients are required to travel 1-2 hours (sometimes to a different state) for medical appointments – and some may lack convenient access to a vehicle for doing so. In the midst of a pandemic, the challenges of traveling or transferring to another medical facility can become insurmountable. In cases like this, it is imperative for patients to have the ability to access telehealth services.
Conclusion This article has described broadband connectivity as an issue which has evolved over many years. Due in large part to the efforts of many dedicated volunteers including local residents and elected officials, progress in addressing broadband connectivity in NH is being made, particularly in rural communities. Creative approaches have been developed along with new ideas over time assisted by legislative remedies. Funding solutions have been paramount to progress
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and multi-municipal collaboration is proving to be an increasingly effective strategy. The on-going pandemic which began in early 2020 – with corresponding stay-at-home advisories, limitations on gatherings, distancing requirements, etc. – has served to further expose broadband connectivity issues. Communities without adequate broadband service can be seen as at a distinct disadvantage as life during the pandemic has unfolded. Work, education, health care, and social interaction have all become heavily dependent on robust broadband connectivity which improves our collective resiliency. In this light, the stakes are higher than ever before. Tim Murphy is Executive Director of the Southwest Region Planning Commission. Tim can be reached at 603.357.0557 or by email at tmurphy@swrpc.org. Jeff Hayes is Executive Director of the Lakes Region Planning Commission. Jeff can be reached at 603.279.8171 or by email at jhayes@lakesrpc.org.
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Grassroots Campaign Launched in Concern of Being Left Out: Started with a Cup of Coffee and Has Evolved into a 19-Town Coalition Seeking Internet Access and Equity By Rick Hiland, with contributions by Steve Knox, Sara Knox, Carole Monroe and Glenn Coppelman
E
arly in the winter of 2019 fellow Albany resident Steve Knox and I started talking about how important the availability of high speed fiber optic affordable internet service is to the continued health of our community, and what could we do to ensure our region did not get left out as internet service providers (ISP) build out ever-faster networks in more urban and populated areas. I serve as chairman of the Albany Board of Selectmen, Steve represents Albany (pop.735) as a commissioner for the North Country Council, and northern New Hampshire’s regional planning commission. Our friendly chat over a cup of coffee quickly morphed into a nineteen-town group, as we reached out to others who recognized the need for all of Carroll County’s residents, second home owners, hospitals, libraries, businesses, non-profits, and educational facilities, to be able to get on and stay in the fast lane on the internet highway, regardless of how rural their actual physical address was. High speed internet access is the 21st century infrastructure of the future, and without it our rural region of New Hampshire would miss out on all the benefits that it has to offer. The importance of this vital service was never more apparent than in early spring this year, when the education of the State’s school children was abruptly moved online due to the COVID-19 pandemic. In Conway, the largest town in northern Carroll County and its economic hub, school officials handed out 1500 Chromebooks across the district for distance learning. Every student received one, but it quickly became clear not all students (nor some of the teachers) had the necessary high-speed internet connection at home they needed to get the full educational benefit. This was the same issue in the other school districts in Carroll County as well.
had taken on. In February and March we held three well attended meetings/workshops at the Albany Town Hall with a panel of folks from local industry, the State of New Hampshire, University of New Hampshire, and Carole Monroe the CEO of ValleyNet who managed the East Central Vermont Communications District project (ECFiber) which is a 31 town district created in 2008 by ValleyNet. ValleyNet is a local Internet Service Supplier in the Upper Valley. Carole became our dedicated consultant and we are very grateful for her continued guidance. Others among the upwards of fifty people at each of those meetings included Carroll County Commissioners, Carroll County Delegation members, representatives from US Senator Shaheen’s office, a representative from US Congressman Pappas’ office, local neighboring town officials, local business principals, regional economic development organizations, Regional Planning Commissions, local county school systems, local non-government organizations and many interested residents. What we immediately discovered was how overwhelming this project is and that the project would take more than just the two of us to accomplish its goals, and that we would also have to lengthen our timeline. We came away with more questions: Is it feasible?; what are some of the challenges?; what are the legislative hurdles?; and how would we make it work and the multi-million dollar question………..funding and where would it come from?
Day after day, the parking lot of the (closed) Conway Public Library was full, the street behind it crowed with a line of parked cars, as parents sat and waited as their children accessed the library’s free Wi-Fi in order to do their school work.
Fortunately, there is a local model, ECFiber, in east central Vermont. This district started as a twenty-four town communications district has grown into a thirty-one town communications district created back in 2008 by ValleyNet (Carole Monroe), who has partnered with ECFiber to continue to bring affordable, high speed internet service to those towns. While their project is still very much a work in progress, at this time they appear to be a template for what we hope to accomplish.
Back in 2019, we quickly discovered what a large project we
Word started to get out about our broadband initiative, gen-
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www.nhmunicipal.org
erating substantial interest from other municipalities in the county and internet providers. We initially met with two representatives from Consolidated Communications in a meeting arranged for us with the help of Margaret Byrnes, the Executive Director of the New Hampshire Municipal Association at NHMA office in Concord. It was a very informative meeting technically as well as helping to identify possible interim options. We have since met with several interested internet providers (ISPs) and continue to do so. To date have had three of them appear before our committee with presentations. Carroll County Broadband Committee initiative (CC Broadband) was created on June 24, 2019 with the founding member Towns of Albany, Eaton, Tamworth, Chatham, Sandwich, Effingham, Wakefield and Hart’s Location. At this meeting, we took the
first steps to formalize the governance structure of the committee as an organization by voting for the official name and electing two co-chairs in Steve Knox and myself. We could not have come this far without the overwhelming interest and support generated from our initial meetings/workshops and the encouragement from the County Commissioners. Glenn Coppelman’s (North Country Council’s Senior Economic Development Planner and our committee representative from NCC) creativity provided us with the logo that we use today which gave us a more formalized and credible identity in Carroll County and the State of New Hampshire. We realized, if our effort were to be successful, we needed Select Board level representation on CC Broadband so we went around and visited all the county’s top municipal officials. Cur-
rently we have all 19 Towns in Carroll County represented on the committee and many with alternates. These representatives will be our direct liaisons back to our member Towns for the distribution and retrieval of needed information. Current represented members of the Carroll County Broadband Committee are the Towns of Albany, Eaton, Tamworth, Chatham, Sandwich, Harts Location, Effingham, Wakefield, Moultonboro, Wolfeboro, Conway, Hales Location, Madison, Tuftonboro, Brookfield, Ossipee, Freedom, Jackson, Bartlett, Mount Washington Valley Economic Council (MWVEC), Wentworth Economic Development Corporation Inc.(WEDCO), North Country Council (NCC), Lakes Region Planning Commission (LRPC), Carroll County Commissioners, Carroll County Delegation, SAU 9, US Senator Shaheen’s office,
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GRASSROOTS CAMPAIGN from page 17 and State Senator Jeb Bradley. There is much work to be done, and we feel strongly that together, in numbers, we can make a positive difference in our communities of Carroll County. It is important to note that CC Broadband committee continues to gather and research information, defining the issues of broadband or lack thereof in rural Carroll County and exploring possible solutions along with potential and available funding options. Some folks tell us that they have adequate internet service for their needs today, but wonder whether it will be adequate in five years with technology constantly changing. And the question we always pose to those folks, is dial up internet access of yesteryear adequate today? We are proud that even though we are
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a new organization, the CC Broadband initiative was designated as one of two initiatives in rural New Hampshire, along with two initiatives in rural Vermont, one in Maryland and one in Arkansas included in a USDA Rural Community Development Initiative (RCDI) grant award through our partner, the NCC, for funding to conduct a feasibility study and to create a business plan. The consortium of partners in this USDA RCDI grant application are CTC Technology & Energy (Maryland), Rural Innovation Strategies (Vermont), and ValleyNet (Carole Monroe). Carole Monroe has been a valued speaker, consultant and advisor at two of our CC Broadband workshops and several of our committee meetings. The grant application was submitted June 5, 2019 and selected for funding in September 2019. The goal is to produce high-quality, early-
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stage technical and financial guidance to enable these rural communities to develop successful strategic approaches to improve access to affordable, resilient, high-speed broadband services. The grant amount is $250,000 with matching $250,000 funds to be paid by the consortium partners. It was anticipated that three (3) years would be needed to complete this work but the work for NCC and CC Broadband may be completed before the end of 2020. North Country Council (NCC) with Michelle Moren-Grey, Executive Director, is Carroll County’s sponsoring entity for this grant award. Since our organizing meeting back in June 2019, we have been working with Carole Monroe to gather information from all the towns in the county. Requests for Information (RFI) have been sent to current internet service providers (ISPs) in the county from each town, all have responded with the
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exception of one major cable company in the county. As a result of some telecommunication infrastructure barriers that we have found in rural New Hampshire, we have collaborated with others in rural New Hampshire, NHMA’s Margaret Byrnes, ValleyNet’s Carole Monroe and State Senators Bradley, Jeanne Dietsch, and Jay Kahn along with State Representative Jerry Knirk to file legislation to establish Broadband Districts, to correct bonding issues, and to put some teeth and time frames into the RFI process. All this legislation was combined into HB 1111 during the COVID-19 Emergency Declaration which passed by an overwhelming nonpartisan majority in the New Hampshire House and Senate and was signed into law by Governor Sununu in July. This is an example of numbers making a huge difference. Since organizing the CC Broadband Committee, we have met with several rural New Hampshire groups across the state sharing experiences and knowledge of the issues. We have attended meetings in Grafton County, Coos County, partnered with the NCC on video presentations on broadband and were invited to participate on a panel discussion at the New Hampshire Summit on Economic Inclusion and Digital Equity on Oct 29, 2019 at St Anselm College in Manchester. The past several months of the COVID-19 pandemic and the declared emergency has emphasized and exacerbated the critical need for reliable, affordable, high-speed broadband to every premise in New Hampshire. The rural areas of New Hampshire are often left behind and it is in these areas where children and teachers often do not have enough broadband access to teach and learn in an on-line environment. It is in these areas where working from home proved difficult, if not impossible, due to limited internet access. www.nhmunicipal.org
New Hampshire residents who cannot access broadband connectivity face challenges with the ability to take advantage of distance learning, telemedicine, working remotely opportunities and accessing government programs and services.
building the necessary critical mass, it is possible to build a network that will leave no premises behind.
Currently Carroll County Broadband is in the middle of conducting a county-wide survey of residents and businesses as part of the information gathering process for the feasibility study. Our partners, Rural Innovation Strategies and the North Country Council are conducting and evaluating this survey. This user survey is a CRITICAL part of the feasibility study being conducted for the county. The survey results will be used to inform the study, leading to models for broadband deployment in the County, as well as providing justification for funding of the eventual infrastructure buildout.
Rick Hiland – Co-Chairman 447-4833 r.hiland@myfairpoint.net
Today broadband access is a utility, one that we all should be confident of in times of crisis. As often as this need has been discussed, New Hampshire has not yet found a solution. This is an opportunity to solve the problem, once and for all, for the 48,000 residents and 38,000 premises in Carroll County. Carroll County Broadband has worked diligently over the last nineteen months to fully understand the limited broadband access in our rural county. Even though cable runs up many Main Streets, the side roads winding through our mountainous terrain and many lakes remain underserved or unserved. The rural nature of these areas makes it difficult for a for-profit internet provider to extend its service and satisfy its shareholders. However, we believe a municipal public/private partnership can achieve universal access. The Committee has reached out to current providers and potential providers to find solutions. With the towns working together, aggregating demand and
Carroll County Broadband (CC Broadband)
Steve Knox - Co-Chairman 447-2887 s_knox@roadrunner.com CTC Technology & Energy http://www.ctcnet.us/ Rural Innovation Strategies https://ruralinnovationstrategies.com/ ValleyNet http://www.valley.net/
Rick Hiland is a selectman and chairman of the Town of Albany Selectboard. Rick also serves as a Board of Director with the NHMA. Rick serves as CoChairman of the CC Broadband effort along with the other Co-Chairman Steve Knox (and with the support of wife and fellow Albany resident, Sara). Glenn Coppelman is Senior Economic Development Planner for the North County Council. Glenn can be reached via email at gcoppelman@nccouncil.org or by phone at 603.444.6303 X2020. Carole Monroe is the CEO of ValleyNet, the operations company of ECFiber. Before joining ValleyNet in June of 2015, Carole worked as a Broadband Consultant, with the City of Keene, NH on a Gigabit City vision and as the Executive Director of New Hampshire FastRoads, a regional fiber-optic network in western New Hampshire delivering gigabit broadband to community anchor institutions, businesses, and residents. Carole can be reached by phone at 802.763.0330 and via email at info@valley.net. SEPTEMBER/OCTOBER 2020
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Top COVID-19-Related Legal Inquiries By Stephen C. Buckley, Municipal Services Counsel
T
he NHMA Legal Advisory Service kicked into high gear on March 13th in response to member inquiries related to the pandemic. In order to facilitate our response we created a new category for our legal inquiry data base, “COVID-19 coronavirus”, where we store all inquiries, telephone and email, and our responses. Like the pandemic itself, questions from our members surged 30% in March, April, May, and June and have now settled back to a more normal level. Thanks to a gifted and dedicated team of attorneys, Natch Greyes, Cordell Johnston and Executive Director Margaret Byrnes, along with the assistance of our Municipal Finance Advisor Becky Benvenuti, we have composed a wealth of legal advice and financial guidance tailored to the municipal response to the pandemic. Here we share the Top Seven COVID-19-Related Legal Inquires and our answers to our members.
When It All Began: March 13, 2020 Why March 13th? Other than the cultural association with bad luck, it was on Friday, March 13, 2020 that Governor Christopher Sununu issued the first of his now six State of Emergency Declarations. Under that first State of Emergency Declaration, EO 2020-04, the Governor invoked his powers under RSA 4:45 and RSA 4:47. Once the Governor has declared a State of Emergency, he has “[t]he power to make, amend, suspend, and rescind necessary orders, rules and regulations to carry out the provisions of this subdivision in the event of a disaster beyond local control.” RSA 4:47, III. During a State of Emergency, the Governor becomes the ultimate law giver, subject to limited checks and balances; a State of Emergency Declaration automatically terminates 21 days after its declaration, and, subject to action by the legislature to terminate a state of emergency by concurrent resolution adopted by a majority vote of the House and Senate. RSA 4:45, II (c).
1. Virtual Meetings How will we handle virtual meetings scheduled for the week after the State of Emergency and Emergency Order #12 expire? Do we then cancel the virtual meet20
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ing and reschedule for in person the following week? We will not have enough notice for the public and one is a Planning Board meeting with applicants. While the State of Emergency remains in effect, as declared by the Governor, it is expected that Emergency Order #12 will continue to permit municipalities to hold virtual meetings using Zoom and similar technology.. There will come a time when Emergency Order #12 will expire yet a town will have scheduled a virtual meeting before that expiration date for a meeting that takes place after the Emergency Order #12 is no longer in effect. If that were to occur, then the virtual meeting would have to be cancelled, and the public body would need to schedule a regular meeting at a physical location. This might cause some further delays in the scheduling of the public meeting or public hearing, but those impacts may be unavoidable. Due to the fact that Emergency Order #16 banning gatherings of 10 or more people was lifted on June 16, 2020, permitting towns and cities to hold public meetings, is the town and any of its boards or commissions obligated to provide Zoom or virtual meeting information to the public if the Zoom or virtual meeting is only being used by members who cannot be physically present at the meeting? Zoom virtual meeting information is deemed to be a “public record,” and all public records are subject to disclosure unless exempt under RSA 91-A:5. Thus, if the town or any of its boards were to schedule a meeting that anticipated one or more members participating remotely under RSA 91-A:2, III, and prior to that meeting a member of the public requested the Zoom virtual meeting information under RSA 91-A:4, that information would have to be disclosed. Second, if in any way the remote participation is relying on Emergency Order #12, then the meeting notice would have to disclose the Zoom virtual meeting information. Thus, if the number of public body members who are participating remotely cause the meeting to not have a quorum in the physical location of the meeting, then you would be using Emergency Order #12 and the virtual meeting information should be in the meeting notice. www.nhmunicipal.org
As public meetings begin taking place at town hall it would be prudent to always allow for virtual public access to anticipate that meeting room occupancy might exceed CDC guidelines for social distancing. We would also point out is that it is our reading of RSA 91-A:2, III, together with paragraph 4 of Emergency Order #12, that so long as at least one member of a public body is participating remotely, the rest of the public body could be meeting at a physical location, such as town hall, and you could tell the public they can only participate via online access or by telephone.
2. Face Masks and Local Authority Our Select Board has been asked by local businesses to mandate that everyone entering a business or restaurant wear a mask. Does the Select Board have the authority to mandate wearing masks?
The select board, in conjunction with your Health Officer, have the authority to “make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgment the health and safety of the people require.” RSA 147:1. This ability to adopt local health regulations could include imposing a mandate on the general public to wear a face covering similar to the ordinance adopted by the City of Nashua. Citing authority vested in a city council under RSA 47:17, XV the Superior Court found that a City of Nashua Ordinance mandating face masks for persons entering businesses and commercial buildings was a proper exercise of the City’s authority to make bylaws for the wellbeing of the city. Cooper v. Sununu, Docket #226-2020-CV-0026, Hillsborough Superior Court, Southern District (Decided July 13, 2020). That decision also made clear that local face
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mask ordinances are not preempted by the Governor’s Emergency Orders and Declarations of Emergency. Unlike other States, where Governors have stated in their emergency orders that local government has no authority to implement face mask mandates, Governor Sununu has left it up to local government to decide whether to require face mask wearing by the public. If a town wishes to implement a mandatory face mask ordinance it is recommended that the select board, in concert with your local health officer, use RSA 147:1. That statute states as follows: The health officers of towns may make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgment the health and safety of the people require, which shall take effect when approved by the
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TOP LEGAL INQUIRIES from page 21 selectmen, recorded by the town clerk, and published in some newspaper printed in the town, or when copies thereof have been posted in 2 or more public places in the town. The mandatory face covering ordinance would be drafted by the town’s your health officer and then approved by the select board. It is suggested that the “approval” by the select board be done after the board has held at least one public hearing with notice posted and published in a newspaper at least seven (7) days before the hearing. Once approved, the ordinance would be recorded with the town clerk and published in a newspaper and posted in 2 or more public places in town. The select board is interested in establishing a local ordinance requiring people entering town hall or
other public buildings to wear face masks. Any guidance you can provide as to the legality of such an ordinance would be greatly appreciated. The select board has the authority under RSA 41:11-a to manage and regulate the use of town property, except that town property which is managed by another board. For example, the library trustees have the authority over the library according to RSA 202-A:6, so the trustees would set the rules for use of the library. In the case of town hall, however, the select board would have the authority to require the wearing of a face mask inside the town hall. The rules should be tailored to the need due to the spread of COVID-19 and the ability of the public comply. Some members of the public, such as young children or those on oxygen will be unable to wear masks, and any rules should account for that possibility.
3. Elections and Absentee Ballots Is it okay to count absentee ballots ahead of election day, such as the day before? Absentee ballots cannot be counted until the polls are closed on election day. There are strict rules for processing absentee ballots, set out in RSA 659:47 through 659:55. The processing of absentee ballots may not begin until a specific time on election day established by the moderator, which cannot be earlier than two hours after the polls open. RSA 659:49-b does allow the opening of the outer envelopes only prior to that time (but still on election day). Once the ballots are processed, they must be deposited into the ballot box or ballot-counting device. No absentee ballots may be counted until after the polls close. The deadline for receiving absentee
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ballots is 5:00 PM on election day, can that be extended to the time polls close? No. That deadline is established by state law, and local officials have no authority to change it. RSA 657:22 says the clerk “shall not accept any completed absentee ballots delivered to the clerk after 5:00 p.m. on election day” (subject to very limited exceptions). The clerk would be violating the law if he or she accepted an absentee ballot after 5:00 p.m. The Town Clerk is obligated to process an application for an absentee ballot and the ballot can be either handed to the applicant or mailed. Does the Town have to provide a place for an absentee ballot to be filled out, such as a voting booth or voting area? No. A voter may complete the absentee ballot wherever he or she wants to, but the clerk is not required to provide a place for a voter to fill out an absentee ballot. Most people take the ballot home to complete it, but if the voter wants to, and can complete the ballot in the waiting area and hand it back to the clerk, that is fine. But the clerk does not have to provide a special place for voters to do this. Can additional staff used in anticipation of a high absentee ballot election use GOFERR funds to offset those costs? Yes. The GOFERR Program Overview and Guidance states that “increased election costs” are an example of allowable costs. (See page 2 – “Examples – Allowable.”) Additional staff for handling absentee ballot applications certainly would be an election cost. These costs would be charged against the total amount allocated to the town for all expenses based on its population.
www.nhmunicipal.org
4. Unlicensed Dogs and Civil Forfeiture
5. Utility Collections and Disconnections
In June the Town Clerk provides the Select Board with a list of unlicensed dogs, and the Select Board issues a warrant authorizing civil forfeiture in accordance with RSA 466:14. This year because of the COVID-19 pandemic and limitations on available veterinarian appointments, we are starting to receive requests from residents to waive the $25 civil forfeiture penalty. Does the Select Board have the authority to waive this? Could the Select Board decide to not collect the civil forfeiture of $25 and not followup with a violation in district court? What options does the Town have?
Our village district, board of commissioners needs information on how to move forward with customers refusing to pay their overdue water and sewer bills. Some of these individuals had overdue balances prior to COVID-19. Can we shut off their water service if they refuse to pay?
We have received word from the Governor’s office and the Attorney General’s office that they agree with an interpretation of Numbered Paragraph 5 in Emergency Order 23, allowing the cessation of timelines, to allow the select board to vote to delay the imposition of the warrant and civil forfeitures for dog licenses. Originally, we were concerned about using EO #23 for this purpose because the order relieves municipalities, not citizens, from statutory deadlines. But in looking further at RSA 466, there is actually no deadline for residents to license their dogs by a certain date. It merely says (RSA 466:1) that the license is effective from May 1 to April 30, “regardless of when the license is obtained.” RSA 466:14 then requires the clerk to prepare a list, between June 1 and June 20, of dog owners who haven’t licensed their dogs, and the select board must, within 20 days, issue a warrant for the seizure of unlicensed dogs. That is a municipal deadline. Therefore, EO #23 may be used to extend the deadline for municipalities in RSA 466:14. Although the owner’s obligation to license the dog still exists, the warrant will not be issued.
On March 17th Governor Sununu issued Emergency Order #3 prohibiting all providers of water, including municipal and village district water and sewer utilities, from disconnecting water service for non-payment. On June 30th Governor Sununu issued Emergency Order #58 which terminates Emergency Order #3 effective July 15th. That order says in pertinent part that the municipal utilities may begin non-payment collection proceedings on and after July 15, 2020 subject to the following proviso: customers having arrearages accrued between March 17, 2020 and July 15, 2020 shall be provided the opportunity to make a reasonable payment arrangement over no less than a six month period and shall not be charged any fees for late payment for arrearages accrued between March 17, 2020 and July 15, 2020. If a customer of municipal utility had an arrearage that accumulated between March 17, 2020 and July 15, 2020, before the municipal utility disconnects that service due to nonpayment for that period of time the utility must first offer the customer an opportunity to make a reasonable payment arrangement over no less than six months, and for that payment arrangement, for that period of time, the utility cannot charge any fees for arrearages that accrued. If a customer has an arrearage that accumulated before March 17, 2020, or SEPTEMBER/OCTOBER 2020
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TOP LEGAL INQUIRIES from page 25 after July 15, 2020, the utility’s normal collection and disconnect policy would apply.
6. Employee Travel If an employee goes on non-business related personal travel outside of New England, are they mandated to use their own Paid Time Off or unpaid leave upon return to satisfy the 14-day quarantine, or would they be eligible for two weeks of paid leave under the Families First Coronavirus Response Act (FFCRA)? It is a very close call whether travel related workplace isolation qualifies for two weeks of paid leave under FFCRA. Medically supported/recommended quarantine and government-imposed quarantine generally will trigger eligibility. If the employee contacts a medical provider and they recommend self-quarantine, which many would likely recommend right now, then we would say yes the employee will qualify. Even if the employee does not get the support of a medical provider, the employer-imposed workplace isolation in this case could be deemed to have come from a government entity. That would be the case if the Town has decided to follow DHHS guidance to
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exclude an employee from the workplace if they have had recent travel outside the New England states. It is strongly recommended members consult your regular legal counsel, or, contact our Employment Law Hotline at 603-623-2500.
7. Patron and Library Responsibilities and Concerns When the town’s library reopens to patrons by appointment only, are we required to make a restroom available for patrons? Can we request that patrons who have visited the library inform us if they develop symptoms of COVID-19? If we are aware that a patron has contracted COVID-19, are we then responsible to inform other patrons and/or shut down the library for deep cleaning? There is no requirement that the library makes its restrooms available to patrons. The is because a public library does not fall under the definition of a place of public accommodation under RSA 155:39-a. Therefore, it would be permissible to allow only staff to use restrooms. At present, DHHS is conducting contract tracing to determine where those infected with COVID-19 have visited. DHHS is notifying those persons who
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have come into close contact with infected individuals and asking them to quarantine. That would cover the library as well. In addition, Local Health Officers have an obligation to notify DHHS of anyone who they suspect may have contracted COVID-19 (or other infection diseases) and are working with DHHS on the sanitation investigations, so we would recommend that you speak with your Local Health Officer about anything that the library may need to do to ensure that employees and patrons stay safe. If you are notified that someone who has COVID-19 has been at the library, we would recommend that you contact your Local Health Officer for appropriate medical guidance as well as implement your plan for someone being sick being present. If you haven’t seen it, the New Hampshire Library Association has a great document regarding best practices to help with reopening planning and that may be of some assistance - http://nhlibrarians. org/wp-content/uploads/2020/05/FINAL-Reopening-NH-Libraries-TaskForce-Best-Practices-5_20_2020.pdf 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.
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Roger L. Kemp mpa, mba, phd Credentialed City Manager • Career Adjunct Professor
~ Police Services ~
Dr. Kemp provides national professional police consulting and speaking services on evolving police-community programs. Some of these topics include state-of-the-art practices in these dynamic and evolving fields: • Citizen Advisory Police Commissions • Citizen Police Commissions • Citizen Police Academies • Citizen Police Committees • City Council Police Committees • Coffee With A Cop Programs • Neighborhood Police Offices • Neighborhood Police Officers
• Pizza With the Police Programs • Police Bicycle Patrols • Police Community Forums • Police Financial Controls • Police Recruitment Practices • Police Walking Patrols • School Resource Offices • Youth Police Services
Roger Kemp’s background and professional skills are highlighted on his website. Dr. Kemp was a city manager in politically, economically, socially, and ethnically diverse communities, on both coasts of the United States. He has written and edited nearly 50 books on city subjects, and can speak and consult on them with knowledge of the national best practices in the policecommunity relations field. Call or e-mail Dr. Kemp for more information.
Dr. Roger L. Kemp Kemp Consulting, LLC Phone: (203) 686-0281 • Email: rogerlkemp46@gmail.com www.rogerkemp.org www.nhmunicipal.org
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Update on Legislative Policy Conference; VIRTUAL Event Scheduled for October 2
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HMA’s legislative policy process—the process by which our members adopt legislative positions for the government affairs staff to advocate—occurs every two years. This year’s process, like almost everything else in 2020, has been a challenge—but it has gone forward, and it will conclude with the Legislative Policy Conference on October 2. Proposed legislative policies are initially reviewed by three policy committees of volunteer municipal officials (see below). The organizational meeting of those committees this year was originally scheduled for April 3. When the governor declared a state of emergency on March 13, followed by a prohibition on large gatherings on March 16, it became apparent that something would need to be done differently. At that time the gravity of the situation was still sinking in. The prohibition on large gatherings was scheduled to expire on April 6—perhaps, we thought, the committees could meet a week or two later. That thought turned out to be quaintly naïve. With the pandemic worsening and the prohibition on gatherings extended, the organizational meeting was pushed back to May 29 and was held using Microsoft Teams, with all of the approximately 40 committee members and six NHMA staff members participating remotely. Over the next month, the three committees met separately several times each, always remotely. Although less satisfactory than in-person meetings, the process was reasonably smooth.
The committees completed their work in late June, and legislative policy recommendations for 2021-2022 were emailed to each municipality’s governing body on July 8. (If your municipality did not receive them, please notify us immediately at governmentaffairs@nhmunicipal.org, or call us at 603-224-7447 or 800-852-3358.) We strongly encourage each municipality’s governing body to review the legislative policy recommendations and determine a position on each recommendation. These positions should not be sent to NHMA. Rather, they should be communicated to the person who will serve as the municipality’s delegate to the NHMA legislative policy conference. Otherwise, the delegate is free to vote as he or she sees fit on all policy recommendations. The Legislative Policy Conference will take place on October 2. Information about the conference has been sent to each municipality. Again, if you did not receive it—or if you did, but you still have questions about the conference— please contact us. We hope to see (or at least hear) you at the upcoming policy conference. Thank you to all the following members of the three legislative policy committees (see page 29) which convened virtually this spring and summer to bring forth these legislative recommendations. As the saying goes, we truly could not do this without your participation and support. Thank you!
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 Litigation General Legal Advice
57 North Main Street | Concord, NH 03301 28
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Contact Person: Mark H. Puffer, Esquire Preti Flaherty Beliveau & Pachios, LLP (603) 410-1500 | mpuffer@preti.com
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Policy Committee: Shaun Mulholland - Chair Laura Buono– Vice Chair Todd Bedard Ernest Cartier-Creveling Scott Dunn Steve Fournier Zandra Rice Hawkins Joe Ilsley Charlene Lovett Jan Schmidt John Shannon Swens Swenson Policy Committee: Bill Herman - Chair Elizabeth Fox – Vice Chair Scott Bugbee Alicea Bursey Michael Capone Dianne Craig David Cressman Derek Goodine Terri Jansky Kim Kleiner, Cheryl Lindner Jim Michaud Judie Milner Dennis Shanahan Chris Sterndale Kathy Temchack, Policy Committee: Neil Irvine, Chair Dave Caron Vice Chair Ryan Aylesworth Matthew Bachler Regina Barnes Clifton Below Bob Edwards Jeanie Forrester Ben Frost Laura Gandia Juliet Harvey-Bolia, Rick Hiland Caroline Kendall Tom McCue Raleigh Ormerod Lindsey Williams
General Administration & Governance City Manager, Lebanon Town Administrator, Hillsborough Selectman, Auburn Town Administrator, Milton Town Administrator, Gilford Town Manager, Newmarket Councilor, Concord Town Manager, Raymond Mayor, Claremont Alderman, Nashua Town Administrator, Milford Selectman, New Durham Finance & Revenue Committee Town Administrator, Auburn Asst. City Manager/HR Director, Keene Selectman, Lee Planning Board Chair, Goshen Town Administrator, Holderness Selectman, Goshen Town Administrator, Atkinson Town Administrator, Allenstown Assessing Assistant, Sanbornton Administrative Services Director, Nashua Chief of Staff, Nashua Chief Assessor, Hudson City Manager, Franklin Councilor, Dover Town Administrator, Nottingham Director of Real Estate Assessments, Concord Infrastructure, Development & Land Use Selectman, New Hampton Town Administrator, Derry Town Manager, Enfield Director of Planning & Economic Development, Swanzey Selectman, Hampton Councilor/Asst. Mayor, Lebanon Selectman, Antrim Selectman, Meredith/Town Administrator, Tilton Chair, Planning Board, Warner Planner, Londonderry Chair, Planning Board, Tilton Selectman, Albany Town Administrator, Rollinsford Chair, Planning Board, Berlin Councilor, Keene Councilor, Dover
Thank You For All Your Efforts! www.nhmunicipal.org
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Drought Restrictions During State or Federally Declared Droughts
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s of late summer, administrative agencies of the state of New Hampshire are considering declaring a state or condition of drought in, at least, southern New Hampshire. NHMA has received several inquiries regarding steps that municipalities should consider taking to conserve municipal and residential water resources.
Public Water Systems RSA 38:26 provides that municipalities with public water systems have the power to adopt rules regarding the use of municipal water. In those municipalities, the governing body, or the board of water commissioners if the system is run by water commissioners, may adopt such ordinances and bylaws relating to the system or structures as required for proper maintenance and operation. The New Hampshire Safe Drinking Water Act, RSA chapter 485, further provides community water systems with the authority to restrict non-essential water use when there is a threat of demand exceeding supply and to terminate service to customers when customers refuse to follow those restrictions. Env-Dw 503. Although it is not necessary for municipalities to obtain approval from the New Hampshire Department of Environmental Services (NHDES) prior to enacting restrictions, DES has previously provided the ability for public water systems to obtain NHDES written endorsement of water restrictions in order to assist municipalities who face opposition to implementation of such restrictions. It is likely that
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NHDES’s Drinking Water and Groundwater Bureau will provide this service, if the state declares a state or condition of drought.
Private Water Systems & Commercial Uses RSA 41:11-d provides that the local governing body may establish regulations restricting the use of water from private wells or public water systems for outdoor lawn watering. Any such restrictions may be implemented after providing notice at least three days in advance of the restrictions going into effect. Notice must be published in a newspaper of general circulation in the community and posted in two public places. The three-day count begins the day after notice is given. Any restrictions may exclude “grass playing turf of a recreational field, the grass playing surfaces of a golf course, and grass agricultural fields, including fields used for the production of sod,” at the option of the governing body. Publication of the entire regulation is not necessary. A summary of the regulation is sufficient, if it indicates where the full text of the regulations can be viewed. NHDES has drafted a model water use restriction ordinance for water systems owned or operated by municipalities or village districts and a model regulation for lawn watering restrictions. These ordinances may be downloaded at their website: https://www.des.nh.gov/organization/divisions/ water/dam/drought/
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Drummond Woodsum WELCOMES Two Attorneys
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We use a team approach – small groups of highly specialized attorneys that work together to offer clients the counsel and support they need, precisely when they need it. It’s an efficient way to practice law. It’s also extremely productive and cost effective for our clients. Learn more about what our municipal group can do for you at dwmlaw.com.
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SEPTEMBER/OCTOBER 2020
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Using Sewage to Fight the Pandemic: Municipalities Find an Early Warning for SARS-CoV-2 Virus with Wastewater Monitoring Geosyntec Consultants, Inc.
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The Science
mild cases of COVID-19. This is a valuable tool for public health agencies to monitor the spread of the viral infection in their communities and can also be used to inform where there are areas with more infected individuals than others. Lift stations in a sewer system can also be sampled to alert public health officials to specific communities that may be hot spots for infection risk. Periodic sewage analysis for SARS-CoV-2 can provide a sentinel for the onset of a surge in infections in time for the community to take protective actions designed to stem the magnitude of infections. These analyses can also provide a basis for increasing or safely relaxing social distancing and sheltering in place guidelines as the virus concentrations in the sewage increase or decrease over time.
Recent research on the occurrence of the SARS-CoV-2 virus (the virus that causes COVID-19) in sewage indicates that the virus concentration often increases well before patient cases are reported. Sewage analysis can also monitor viral load contributions from carriers who are asymptomatic or have
Geosyntec, an international consulting firm with two offices in New Hampshire, has been a leader in working with municipalities, academic institutions and assisted living facilities across North America to deploy wastewater monitoring as an early warning system for the virus.
s municipalities continue to manage the effects of the current pandemic, locating virus hotspots has become a critical task. Key constraints in finding hotspots are the lack of human testing capacity and the fact people often only seek out testing after they become symptomatic. So, human testing is a lagging indicator for municipalities seeking advance warning of a pending outbreak. Wastewater monitoring is an increasingly widespread method for detecting viral load days to weeks before symptoms arise in the population, indicating the potential for viral spread to inform data-driven decision making.Â
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www.nhmunicipal.org
The Research
The Method
Geosyntec is working with universities and other research institutions to evaluate long-term viral load trends in in sewage throughout the pandemic as the curve of case counts rises, flattens, and slowly reduces. This will provide informed data for the effectiveness of “Stay at Home” orders, reopening, social distancing measures, and, eventually, the effectiveness of immunization.
The best current approach has been to install a wastewater sampler at key system points such as lift stations or manholes to collect aliquots on short intervals each morning during peak use. Samples can be collected and frozen over longer periods and shipped weekly for long-term monitoring. A typical program will include collection of two 24-hr composite samples per week.
Duane Graves leads Geosyntec’s testing and research lab in the US. He states that Geosyntec tests for the total viral load in the wastewater and calibrate that to total flow. “Most importantly we can monitor fluctuations over time, such that a low flat curve may show some viral load, perhaps from isolated asymptomatic residents, then a steady upward climb would indicate an outbreak and spread. These wastewater detections can precede symptoms and, most importantly, detect viral load from asymptomatic residents as well.” www.nhmunicipal.org
Days or a week before symptoms arise in the population, a spike in total viral load will indicate the early initiation of viral spread to inform decision making. Additionally, individual-person testing does not have to be conducted, avoiding the burden and expense on the municipal population, until it is warranted by the early indication of wastewater monitoring. Depending upon the utility layout and the sewage system, other building and sample locations can also be established to monitor specific areas if warranted.
CoV-2 virus through a multiplex RNA analysis of three specific genome mapped RNA sequences. Many other testing services either screen for a surrogate or test a single piece of the RNA which is much less accurate and defensible. Geosyntec also places positive, non-infectious virus controls in samples which are detected at the lab to verify that the sample was properly preserved and shipped. Some labs do not include positive controls, so, hypothetically, a sample that is loaded with live virus that sits on the tarmac in Manchester waiting for a plane can overheat, disinfecting the virus in the process, will arrive at the lab and give a false “clean” or low-viral-load reading. In contrast, Geosyntec can measure the degradation of the positive control, in which case the sample is identified as not valid and thus avoid a false negative. The Challenge Municipalities are faced with increasing budget constraints and pressure to provide data-driven decisions about mitigating the impacts of the pandemic on their communities. Wastewater monitoring provides timely data to public agencies to help them make informed decisions about appropriate, community-specific responses that will protect the population. Municipalities can monitor the sewer system for the presence and concentration of SARSCoV-2 virus and give their communities the best chance they can get to stay safe in these unprecedented times. More details can be found on our COVID-19 webpage or contact Stefanie Lamb at SLamb@geosyntec.com (603-782-4072) or Mary deFlaun at MdeFlaun@Geosyntec.com (609895-1400).
Geosyntec detects the actual SARSSEPTEMBER/OCTOBER 2020
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Tech
Insights
IT Budgeting: Top Six Mistakes When Cutting IT Costs?
By John Hey
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study in late 2019 found that 44% of organizations planned to increase IT spending in 2020. But with COVID-19 and a disrupted economy, many have changed that plan to cut costs. Does that sound familiar? As the managed IT partner for over 260 cities and towns, we see budgets of all sizes. We’ve helped organizations prioritize IT investments to maximize return and reduce frustration. Here are the common mistakes we hope you’ll avoid and some better alternatives.
Make a Plan So where do you start? As a leader in your city or town, resist the urge to pull out your red pen and slash the IT budget. While it may be tempting to postpone projects like hardware updates, it is not that simple. Add in something less tangible like cybersecurity, and it quickly becomes complicated. It is better to start with a more structured and deliberate approach.
Don’t Use Hardware Past End of Life Organizations often use hardware past its end of life. It may seem like no big deal to continue using that piece of hardware a little while longer. When that hardware stops working, you are faced with unexpected replacement costs and downtime. Additionally, there are security risks to consider. Security updates often don’t work on older machines, putting your organization at risk for a cyberattack. Moving your hardware expenses from a capital expense to an operational expense can help protect your organization’s cash flow. Working with a strategic IT partner to utilize desktop virtualization is an easy way to do this.
Don’t Ignore Server Costs Much like hardware, an unplanned server replacement can cost you in both time and money. One option is to audit 34
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your existing severs. We’ve found that organizations often have servers they don’t need or are not using effectively. There are added costs associated with a server, such as the cost of the physical space to house it, cost to support it, and the electrical costs to power it. Reduce the number of servers you have, and these costs also go down. There are two main ways you can reduce the number of servers you have. First, determine if your servers are being fully utilized. If two are being partially utilized, you may be able to combine the data onto one server. Second, explore a switch to the cloud. Moving data or applications to the cloud eliminates the need for a dedicated server.
Don’t Purchase Equipment that Doesn’t Fit Your Needs There are a lot of options when it comes to laptops and desktops, and with these options comes a wide range of prices. Employees may need different systems with different specs depending on their job responsibilities. Organizations often take a one-size-fits-all approach resulting in both overspending and under-spending. Instead, consider moving to desktop virtualization. With a virtual desktop model, you can provision new desktops to your staff with a lower cost of ownership. Because applications and tasks run in a virtual, cloud-based environment, desktop hardware often has a longer lifespan.
Don’t Think of IT as Just Cost There are situations where spending money upfront on a technology investment can result in massive cost savings in the long run. For many organizations, this includes automation and document management and storage. Enterprise Resource Planning (ERP) software is a big expense for many organizations, especially implementation costs. As a result, upgrades are often pushed to a later time. As technology has advanced, so have the features and benefits. Many current ERP programs allow you to automate www.nhmunicipal.org
tasks that are being done manually. Automating tasks frees up employees to focus on other things which may reap payroll savings and increased productivity.
managed services provider and benefit from multiple experts within the organization.
Files and paper storage can be a large expense for many organizations, especially those in the professional services field. There are costs for the physical storage location plus the employee time to locate a file when needed. Instead, consider a digital document management solution. Many are scalable as your organization grows, have an easy-to-use interface, and search features. The technology requires an initial investment, but the long-term savings are more than monetary.
Cybersecurity isn’t tangible. We get it. It feels like something you can put off for another time. But cyberattacks are happening more often, and the average cost of an attack is over $1 million. It’s crucial to have a strong defense in place to protect your organization. The risks of cutting cybersecurity far outweigh any financial gains.
Don’t Hire a Jack or Jill of All Trades Many organizations are better suited to outsourcing IT to save money and improve performance. IT is a specialized field and no one person can do it all. Ideally, you have someone to manage your overall IT, someone to manage your network and servers, someone to handle support requests, and a cybersecurity expert. Instead of your organization shouldering the costs of four IT employees, you can outsource IT to a
Don’t Neglect Cybersecurity
Downtime should also be considered. The average downtime from an attack is 16.2 days – that’s over two weeks! Can your organization afford to be inoperable for over two weeks?
Balancing Costs and Prioritizing Needs How do you balance the IT needs of your organizations when faced with the reality of needing to cut costs? What areas of IT can you cut without impacting your organization and employees? Organizations often make mistakes when trying to cut costs because they lack strong IT guidance and only focus on the bottom line.
If your organization is struggling with growing IT costs and no solid plan, it’s time to consider a strategic IT partner. Find an IT partner who can help put in place the best IT solutions for your budget.
About John Hey John Hey has multiple layers of executive experience spanning more than twentyseven years. In this time, John has built and guided high performing teams with a focus on world-class service delivery and consistency. In his current role as Chief Strategist at VC3, one of the leading Managed Service Providers in the country. John holds CISSP, CBCP, ITIL, and Lean Six Sigma Yellow Belt certifications.
About VC3 VC3 is a leading managed services provider focused on municipal government. Founded in 1994 with offices across the east coast, VC3 forms partnerships with municipalities to achieve their technology goals and harness their data. In addition to providing comprehensive managed IT solutions, VC3 offers cybersecurity, website design, custom application development, and business intelligence services. Visit www.vc3.com to learn more.
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SEPTEMBER/OCTOBER 2020
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Legal
Q and A Masks and Other Requirements By Natch Greyes, Municipal Services Counsel
F
rom 1900 to 1906, a series of seemingly unconnected typhoid outbreaks plagued wealthy New York families. Typhoid was rare among the upper class, yet entire families were contracting the disease, and many succumbing to its effects. In 1907, George Soper discovered that Mary Mallon, a cook born to a mother infected with typhoid during pregnancy, had worked as a cook for each of the families at the time of their illnesses. Subsequent investigation ascertained that Mary was an asymptomatic carrier of the disease, resulting in the New York City Health Department arresting her as a public health threat and ordered into quarantine. Subsequent court battles, including those after Mary’s release and subsequent refusal to stop acting as a cook, firmly established that, as Cicero wrote, salus populi suprema lex esto (the health of the people is the supreme law). Today, of course, our asymptomatic carriers have Covid-19. Like Mary, there is no way to tell who is an asymptomatic carrier – they will, by definition, not have a fever, cough, shortness of breath, or any other symptom of the disease. They will present normally and feel fine, but those they come in contact with may get sick and die. If everyone in the country took reasonable precautions, including refraining from risky activities, we could cut the number of infections to near zero. Instead, we have learned that a great number of people are like Mary – refusing to believe that their personal actions have any consequence with regard to the spread of the disease, and refusing to take any reasonable action to limit their exposure or the exposure of others. This has left government, particularly municipal government, to prove Thomas Paine right, government’s job is to act to restrain our vices. Q: What can we do on municipal property to promote the safety of our employees, officials, and the public? A: RSA 41:11-a gives clear authority to the governing body to control the physical property of the municipality, excluding those physical properties controlled by another board. 36
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That control includes the ability set reasonable rules for use of the property – rules which must be followed by everyone on the property. Those rules do have to be reasonable. For example, a mandatory mask rule must allow for people who are unable to wear a mask, e.g. someone on oxygen, or unlikely to be able to comply with the rules, e.g. young children and certain disabled individuals, to still obtain services. It’s simply not reasonable to expect a 4-year-old to keep his or her mask on for any length of time. Q: What are the property exceptions to the governing body’s authority? A: RSA 41:11-a carves out several exceptions. The most notable is the public library. That is governed by the library trustees pursuant to RSA 202-A:6. However, Town forests, conserved lands, and recreation areas are the other exceptions listed in RSA 41:11-a; however, town meeting may have delegated authority to another board or body. RSA 41:11-a; RSA 31:112, RSA 35-B, RSA 36-A:4. Q: What if someone shows us one of a card claiming that they have a “disability” pursuant to the American with Disabilities Act (ADA) and need to be accommodated? A: Those cards are fake. The ADA requires that “reasonable accommodations” be made for those with disabilities, but there is no governmental agency which dispenses such cards. Any such claims and subsequent information provided by the individual should be documented and, as necessary, referred to the appropriate prosecutorial authority for potential prosecution. Examples of reasonable modifications to a face mask policy that have been provided by legal authorities with extensive knowledge of the ADA include: • Allowing the person to wear a scarf, loose face covering, or full-face shield instead of a face mask; www.nhmunicipal.org
• Allowing customers to order online with curbside pick-up or no contact delivery in a timely manner; • Allowing customers to order by phone with curb-side pick-up or no contact delivery in a timely manner; • Allowing a person to wait in a car for an appointment and enter the building when called or texted; or • Offering appointments by telephone or video calls.
example, the governing body could require that everyone in town hall wear a face mask (with exceptions), and that would be enforceable. Nothing about a face mask prohibits any board or official from performing his or her duties.
Q: Do boards and elected officials have to comply with our rules for town property?
A: The case that NHMA is watching closely is Andrew Cooper v. Governor; City of Nashua, No. 2020-CV-00266. At the time of this writing, it is unclear whether the Superior Court decision affirming the City of Nashua’s authority to require masks be worn on a municipal-wide basis will be appealed to the New Hampshire Supreme Court. If it is, the New Hampshire Supreme Court would be the final say on the legality of such a mandate. Current-
A: While the governing body cannot make rules that would interfere with the ability of boards or elected officials from performing their statutory duties, they can make rules which would apply to any boards or elected officials using municipal property. For
ly, the only opinion which has been issued is on a request for a preliminary injunction. As it stands, the Court in Cooper affirmed municipal authority to enact mask mandates on two separate lines of authority. The first applies to cities only. That authority is RSA 47:17, XV, which gives cities the power to make any other bylaws and regulations which may seem for the well-being of the city so long as no bylaw or ordinance is repugnant to the constitution or laws of the state.
Q: What can we do in response to the calls for a broader mask mandate; one that applies everywhere around town?
The second line of authority is the inherent governmental authority known as the “police power.” This power is broad and includes such varied interests as public health, safety, morals, comfort, the protection of prosperity, and the general welfare. The Court found that, in New Hampshire, “municipalities are empowered “to make bylaws for a variety of purposes which
Basic Loan Requirements: • Bond issue approved by governmental entity
The Bond Bank’s Next Bond Issue will be on January 6, 2021 July 2020 Bond Sale Results True Interest Cost for: 5 year loans 10 year loans 15 year loans 20 year loans 25 year loans
.57% .86% 1.37% 1.67% 1.97%
Are you planning a capital project for 2021? 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.
• Completed application approved by Bond Bank Board • Audit by CPA firm • Local bond counsel opinion
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 tstgelais@nhmbb.com. Visit our website at www.nhmbb.org. Lebanon Middle School, Lebanon, NH
www.nhmunicipal.org
SEPTEMBER/OCTOBER 2020
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MASKS from page 37 generally fall into the category of health, welfare, and public safety.” We would recommend that a municipality look to RSA 147:1 as one of those authorities. Q: How do we ensure that any ordinance that we are considering meets the needs of the community that it is meant to serve? A: It is important that the board or body considering the ordinance review the best available evidence from public health authorities. This is where the local health officer becomes vital. The
local health officer should be participating in local calls and briefings from the Department of Health and Human Services (DHHS) and other health authorities, such as the Centers for Disease Control (CDC), for the duration of the pandemic, and relaying information learned there to the local Emergency Management Director, governing body, and other relevant municipal authorities. This information is critically important for local decision-making.
of infection yet DHHS Commissioner Shibinette continued to warn that the citizens of New Hampshire needed to continue to take proactive measures in order to avoid the kind of spike in cases that had occurred in New York in April and were beginning to occur across the majority of the rest of the country. Listening to this advice and using it to formulate local ordinances is essential if local officials want to effectively control the pandemic in their communities.
It is likely that the rate of community spread will vary throughout the pandemic, and we’ve already seen that happen. In the beginning of July, New Hampshire was among the small number of states that had a low rate
Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@ nhmunicipal.org.
79th Annual Conference and Exposition NHMA is Going Virtual in 2020!
Wednesday, November 18, 2020 —Friday, November 20, 2020
Join us for 3 days of engaging interaction to help your municipality adjust to the new normal. Registration to open soon. 38
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
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Contact Us Today For An In-Person Demo!
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The
HR
REPORT
The Returning Workforce To Mandate or Not to Mandate By Mark T. Broth, Esq. and Anna Cole, Esq.
A
s New Hampshire’s towns and cities work to reopen in-person services, despite the ongoing pandemic, many are confronting a basic question: Can I require my employees to report to the workplace? In short, and as attorneys love to respond, it depends. As a threshold consideration and as addressed more fully in last issue’s HR Report, all employers are required to provide employees with a safe work environment. Currently, there are no mandatory federal or state safety practices that employers must implement, but the guidelines issued by the Governor’s Office, DHHS, the CDC, and OSHA are largely consistent and should be looked to for the best practices that employers should follow before asking any employee to report to the workplace. Assuming that an employer has implemented these best practices and intends to keep employees safe at the workplace, employers can expect employees to report to work. The (not insignificant) exception is for employees who are entitled to stay out of work on a protected leave of absence under the FMLA, the Families First Coronavirus Response Act (either the Emergency Paid Sick Leave Act provisions or the Emergency Family and Medical Expansion Act
provisions), the New Hampshire’s maternity leave statute, or some other applicable leave statute. Additionally, employers are also required to consider providing reasonable accommodations to those employees with disabilities in accordance with the ADA and New Hampshire’s Law Against Discrimination (RSA 354-A). While accommodations need to be evaluated on a case-by-case basis, they can include workplace modification or changes in policies, but can also include the opportunity to work from home or take some period of leave from work. But what about an employee who has not identified a medical reason for refusing to report to work, but instead is simply afraid of the increased risk of contracting COVID19 if they report to work? What about the employee who lives with an immunocompromised family member? What about an employee is who is healthy and over 65 years old and who is concerned about reporting to work because their age places them into a CDC-recognized high risk category? Strictly speaking, these employees do not qualify for leave under any applicable statute, nor would they be entitled to a disability accommodation. As they are not ill, they likely would be ineligible to use employer provided paid sick leave. Can they be fired? The short answer is probably
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NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
yes. An employer who has taken steps to make their workplace as safe as can be reasonably accomplished could simply instruct the employee to report to work or risk losing their position. However, even if an employer can lawfully mandate such employees to return to the workplace, significant thought should be given to whether the employer should follow that path. Employers should be mindful that just six months ago, New Hampshire had one of the lowest unemployment rates in the nation and it was increasingly difficult to find police officers, firefighters, EMS, public works, and other necessary employees. Given the state’s low rate of population growth, those challenges may continue. In these times, employers are prudently
exploring non-traditional work arrangements to avoid losing valuable institutional knowledge and other skill-sets (or even simply to avoid a catastrophic staffing shortage that would effectively prevent operation) in the event employees ultimately feel that they would prefer to resign than run the risk of infection. While some municipalities may ultimately determine that many of their services can only be successfully provided with in-person staff, others may discover innovative arrangements that allow some work to be provided effectively without the employee reporting to the physical workplace. Where possible, such arrangements also have the ancillary benefit of fostering among impacted employees a deeper commitment to the employer because they
will feel valued, heard, and respected during these difficult times. Mark Broth and Anna Cole are members of Drummond Woodsum’s Labor and Employment Group. Their 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 2020 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
Employment Law Hotline A Free Service to NHMA Members Drummond Woodsum labor law attorneys are available to provide legal advice on matters including Title VII, Family Medical Leave Act, Americans with Disabilities Act, Fair Labor Standards Act, employee discipline, sexual harassment, wrongful termination and age, sex and race-based discrimination. The Employment Law Hotline is available at no charge and Drummond Woodsum labor law attorneys will provide up to 1/2 hour of FREE legal advice per employment issue.
Got an employment issue? Before you act, call 603.623.2500 or email at ehotline@dwmlaw.com.
www.nhmunicipal.org
SEPTEMBER/OCTOBER 2020
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Court
Update
By Stephen C. Buckley, Legal Services Counsel and Natch Greyes, Municipal Services Counsel
Now available online:
July 2020 City Mask Ordinance Legal Under New Hampshire Law Cooper v. Sununu; City of Nashua, New Hampshire Superior Court No. 020-CV-00266, 7/13/2020
June 2020 An Employer Who Fires an Individual Merely for Being Gay or Transgender Violates Title VII of the Civil Rights Act of 1964. Bostock v. Clayton County, Georgia, United States Supreme Court Docket No. 17–1618, 06/15/2020 A Committee of City Employees that Provides Advice to Planning Board Applicants is Not a Public Body under the Right-to-Know Law; 50 Cents Per Page for Copying is Permissible Under 91-A. Paul Martin v. City of Rochester, New Hampshire Supreme Court Docket No. 2019-0150, o6/09/2020
42
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
Has Your City or Town Ordered NHMA’s Right-to -Know Law Book Yet? Order Today
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 Right-to-Know Law.
“Must-have” reference guide for every city and town !
Only $55 for Members $95 for Non-members
nt
e ernm oov g w La n w e n p Right-to-K omo pshire’s ide Nt ew Ha a gu
MUST HAVE
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
SEPTEMBER/OCTOBER 2020
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— This Moment in NHMA History — 54 years ago… A common goal of municipal leaders in 1966 was to improve the quality of life and economic wellbeing in their hometowns. As we wind our way through the 2020-2021 Legislative Policy Process today, we quickly realize so much of what happens within our own borders is directed by others outside of our jurisdiction – primarily the state legislature. No matter the issue, New Hampshire’s cities and towns rely on the advocacy efforts of NHMA to be the voice for municipal government.
?
?
NAME
THAT
TOWN OR
CITY
44
? ?
According to Wikipedia, name the New Hampshire city or town that was once known as “Freetown” because it was exempt from the usual obligation of reserving its tall pine trees for masts in the Royal English Navy. In 1906, Andrew Carnegie awarded a grant of $2,000 toward the construction of a Carnegie library, and in 1908, the Dudley-Tucker Library opened. When you have figured out the answer, email it to tfortier@nhmunicipal.org. The answer will appear in the November/December 2020 issue. ANSWER TO PHOTO IN THE JULY/AUGUST ISSUE: The photo on page 44 in the last issue of New Hampshire Town and City magazine is the historic meeting house, school and now local history museum located in the Town of Nottingham. Special thanks to Marshal Buttrick (Greenville); Diane T. and Liz E. (Charlestown) and Bill Herman (Auburn) for contacting us with the correct answer. We appreciate you playing along with us.
NEW HAMPSHIRE TOWN AND CITY
www.nhmunicipal.org
SAVE THE DATE
2020 VIRTUAL
LAND USE LAW CONFERENCE (formerly known as the Municipal Law Lecture Series)
WHEN
October 31, 2020 9:00 am—3:00 pm
CONTACT INFO Ashley Methot Events Coordinator 25 Triangle Park Drive Concord, NH 03301 603.230.3340 amethot@nhmunicipal.org
FOR ADDITIONAL DETAILS VISIT
www.nhmunicipal.org
WHAT Full day virtual conference for municipal land use officials including members of planning and zoning boards, planners, land use administrators, select boards, town and city councilors, building inspectors, code enforcement officers and public works personnel. Presentations will focus on the legal authority and procedures these land use boards must understand with content structured to be beneficial to both novice and experienced municipal officials.
REGISTRATION OPENS IN SEPTEMBER
25 Triangle Park Drive Concord, NH 03301
Periodical Postage Paid at Concord, NH
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