Bar Journal - Fall 2007
The Attorney General’s Role in Overseeing Municipal Governance1
By: Attorneys James W. Kennedy and Orville “Bud” Fitch, II
The Attorney General is the chief law enforcement officer in the State of New Hampshire and, as such, her responsibilities are broad and numerous.2 Among those responsibilities, she is charged with enforcing New Hampshire’s election laws.3 As the chief election law enforcement officer, the Attorney General safeguards the democratic process in New Hampshire to ensure that every qualified citizen is provided an opportunity to vote, and that every vote is counted.
The Attorney General’s responsibility to safeguard the democratic process derives from her: (1) role as chief law enforcement officer; (2) specific statutory duties; and (3) vast common law responsibility and authority.4 The Attorney General’s responsibilities and the authority necessary to fulfill those responsibilities are defined by statute and by common law.5
The Attorney General is charged with representing the State in all “criminal and civil cases in which the state is interested.”6 She also has a duty to “represent the public interest in the administration of the department of justice and be responsible to the governor, the general court, and the public for such administration.”7
The Attorney General may institute, conduct and maintain all suits necessary for the enforcement of the laws of the State, preservation of order, and the protection of public rights.8 The Attorney General holds all the traditional common law powers of the Office, except insofar as they have been expressly restricted or modified by statute or the New Hampshire Constitution.9
At common law, from the earliest days of the Office’s creation in England, the Attorney General’s role was viewed as a representative of the public interest and not merely the institutional State.10 In Commonwealth v. Kozlowsky, the Supreme Judicial Court of Massachusetts summarized the historical common law powers of the Attorney General as follows:
The office of Attorney General has existed from an early period, both in England and in this country, and is vested by the common law with a great variety of duties in the administration of the government. The duties are so numerous and varied that it has not been the policy of the Legislatures of the states of this country to attempt specifically to enumerate them. Where the question has come up for consideration, it is generally held that the office is clothed, in addition to the duties expressly defined by statute, with all the power pertaining thereto at the common law. From this it follows that, as the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. He may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the law of the state, the preservation of order, and the protection of public rights.11
Similarly, the New Hampshire Supreme Court has recognized that the Attorney General is “charged with representing the State in all causes in this court ‘in which the state is interested.’”12 While many of her responsibilities are established in specific statutes, such “specific statutory duties in no way detract from . . . [her] powers and duties at common law.”13 In performing her duties, the Court has observed that the “interest of the public . . . cannot be . . . jeopardized.”14 Thus, the Attorney General’s power is truly sui generis.
The Attorney General’s statutory role in overseeing the process by which municipalities govern themselves through adopting, revising, or amending charters, and entering into intermunicipal governmental agreements, also demonstrates the breadth of the Attorney General’s authority in fulfilling her responsibility to safeguard the democratic process.15 This article reviews the Attorney General’s responsibilities in overseeing municipal elections and meetings, as well as her overall role safeguarding New Hampshire’s democratic process.
A. The Attorney General’s Role in Enforcing Election Law at Municipal Elections and Annual/Special Meetings
Part I, article 11 of the New Hampshire Constitution provides, in part, that “[a]ll elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election.” To safeguard this constitutional provision, and pursuant to RSA 7:6-c, the Legislature designates the Attorney General to enforce all election laws in New Hampshire.16
As New Hampshire’s chief election law enforcement officer, “[u]pon receipt of a written complaint signed by a voter of the state of New Hampshire, or upon h[er] own motion, the [A]ttorney [G}eneral may in h[er] discretion, conduct investigations to determine whether any violation of the election laws has occurred and may prosecute anyone responsible for such a violation.”17 This power permits the Attorney General to “enlist the aid of the county attorneys, the state police, and other public officers.”18 Further, the Attorney General may conduct hearings, in which testimony is given under oath, and issue subpoenas to require witness attendance and require the “production of books, documents, records and other tangible goods . . . .”19
The Attorney General, through the Elections Unit in the Division of Legal Counsel and the Public Integrity Unit in the Division of Public Protection, investigates allegations of criminal misconduct by public officials acting in their official capacity, including municipal officials and employees.20 Several statutes related to elections and annual meetings make violations of the statutes a criminal offense.21 Complaints related to these statutes receive high priority at the Attorney General’s Office.
The Attorney General’s responsibilities and authority are also, in part, embodied in the common law doctrine of parens patriae. Meaning literally “‘parent of the country,’ parens patriae traditionally referred to the role of the state as sovereign and guardian of persons under legal disability.”22 Over time, the meaning of the doctrine has evolved, and parens patriae has become a far broader responsibility for the Attorney General.23 Today, it is a concept of standing utilized to allow the State to protect “quasi-sovereign” interests such as the health, comfort and welfare of its citizens, interstate water rights, and the general economy of the State.24 In bringing a parens patriae action, the State must assert an injury to a “quasi-sovereign” interest, an interest apart from the interests of particular private parties.25 Second, the State must allege injury to a “substantial segment” of its population.26 The Attorney General has a responsibility to act as parens patriae to protect the public interests of all the members of municipalities in having a process of self-governance that conforms to our Constitution and state statutes.
Finally, the Attorney General’s quo warranto power, which is an exclusive right of the Attorney General to challenge a person’s right to hold public office, further demonstrates the breadth of her responsibility and authority to safeguard the democratic process used by New Hampshire’s municipalities.27 “Absent wrongdoing sufficient to justify impeachment or address, quo warranto is the only means by which a person’s right to hold and exercise public office may be challenged.”28
Accordingly, the Attorney General has the statutory and common law responsibility, and authority, to represent or furnish legal counsel to many interests, which include: the State, its agencies and the public interest.29 Paramount of all of these duties is the Attorney General’s duty to protect the general public interest.30
B. Safeguarding the Democratic Process at the Local Level Serves the Public Interest
The philosopher, John Stuart Mill, opined that there is no question that the root of democracy starts at the local level.31 In On Liberty, Mill wrote “[a] democratic institution, not supported by democratic institutions in detail, but confined to the central government, not only is not political freedom, but often carries a spirit precisely the reverse, carrying down to the lowest grade in society the desire and ambition to political domination.”32 The Attorney General’s efforts ensuring compliance with the laws governing the democratic process at the municipal level sustain this principle.
In Alexis de Tocqueville’s Democracy in America, the French philosopher began his analysis with an examination of the New England township and the town meeting form of government.33 According to Tocqueville, the “great political principles which now govern American society undoubtedly took their origin and their growth in the state” which directly stem from the township.34 Tocqueville observed the “township is the first in order, then the county and lastly the state.”35
The strength of New Hampshire’s democratic process at the state level significantly benefits from New Hampshire towns’ and cities’ adherence to the laws governing democratic government.36 Tocqueville expressed the fundamental significance that local governments maintain in shaping a central democratic government and wrote: “[as] municipal institutions constitute the strength of free nations . . . Town meetings are to liberty what primary schools are to science; they bring [liberty] within the people’s reach, they teach men how to use and how to enjoy it.”37 Tocqueville went on to state that a “nation may establish a free government, but without municipal institutions it cannot have the spirit of liberty.”38
Town meeting has historically served as the foundation to democratic government in New Hampshire.39 New Hampshire enacted its Constitution in 1784, three years prior to the enactment of the United States Constitution,40 and from 1784 until 1877, all New Hampshire State and local elections were held in March at local town meeting.41 Part II, article 31 of the New Hampshire Constitution (repealed) described town meetings as the appropriate location for citizens and the electorate to vote for “the governor, councilors, and senators.”42 In 1877, New Hampshire amended Part II, article 42 of its Constitution to provide that State biennial elections would be held in November instead of March.43
Today, town meeting is a legislative body, consisting of a town’s qualified voters, which meets for the purpose of choosing officers, setting budgets and enacting legislation.44 Town meetings are gatherings of limited duration appropriate for the adoption, repealing or modification of local laws.45 This form of government has been described as pure democracy, as distinguished from representative democracy.46
Safeguarding “pure democracy” helps preserve the overall health of our statewide democracy. As recently as 2005, the United States Court of Appeals for the Sixth Circuit expressed this philosophy in denying a defendant’s motion to dismiss a federal election criminal charge.47 Much to the disdain of the Appellate Court, the defendant averred that he could not be charged with the federal crime because although local and federal candidates were listed on the same ballot, he only attempted to corrupt the local component of the election.48 The Court rejected this defense, stating in part:
To say that adulterating part of the election had no effect on the rest, however, is like saying that dumping pollution along the shore has no effect on the folks swimming in the middle of the lake. It is little comfort for them to say that the effluent may not reach into their space. Similarly, an election is a process whose fairness is meant to engender confidence in a democratically selected government. When the purity of the process is compromised in part, the corruption affects the integrity of the whole.49
Because local democratic governments serve as the foundation for maintaining the integrity of the democratic process in New Hampshire, the public interest is served in New Hampshire when the Attorney General protects the democratic process employed by local governments. Accordingly, when a municipal official threatens or impedes the democratic process at the local level, such action has statewide implication, and the Attorney General is charged with enforcing adherence to the law.
C. Prominent Issues Involving the Attorney General’s Enforcement of Municipal Election Law
1. The Right to Petition Warrant Articles
The warrant serves as the legal notice for town meeting.50 The selectmen are required to post the “warrant” 14 days before the day of the meeting.51 The purpose of the warrant is to apprise the voters of the time, location and the subject matter to be considered at the town meeting.52 The warrant must list everything to be considered at the meeting, except the election of any town officer, whose election is required by law.53 Failure to post the warrant 14 days before the meeting may lead to the meeting being declared void. Action taken on any business not warned on the warrant may also be declared void.54
Registered voters within a town may submit a petitioned warrant article to the selectmen to be addressed at town meeting.55 Selectmen are required to post the petitioned article in the warrant on the condition that said article is submitted with the requisite number of voters’ signatures in support of the article and within the statutory time period before town meeting.56
The New Hampshire Supreme Court has established that selectmen “have no discretion whether to insert an article in a warrant in compliance with RSA 39:3.”57 Further, RSA 39:3-b provides: “A board of selectmen is guilty of a violation if it refuses to insert an article in the warrant, after being petitioned to do so in accordance with RSA 39:3.” If for example, the board of selectmen refuse to place a petitioned warrant article on the ballot for town meeting, the Attorney General may, representing the public interest, bring either a violation charge in District Court or an action in Superior Court to require the Selectmen to include the article on the warrant.
Moreover, a citizen’s right to participate at town meeting is a constitutional right under Part I, article 11 of the New Hampshire Constitution. While the Attorney General’s Office generally declines to become involved in issues relating to the right to vote by an elected member of a legislative body at a meeting of that body, (i.e. a selectman or city council member voting at a board or council meeting) New Hampshire’s Constitution and the common law assign a responsibility to the Attorney General to address issues related to the rights of voters to participate at town meeting.58
2. Election Day Voter Registration
New Hampshire election law permits voter registration on election day if the person applying to register can prove his or her identity, citizenship, domicile, and age qualifications.59 RSA 654:7-a, II provides:
Any person whose name is not on the checklist but who is otherwise a qualified voter shall be entitled to vote by requesting to be registered to vote at the polling place on election day. The voter may then vote at that election. The applicant shall be required to produce appropriate proof of qualifications as provided in RSA 654:12.
The term “election day,” in election day registration refers “to state primary and to state general elections, to all town, city, school district, and village district elections, and to all official ballot meetings where persons may vote by absentee ballot.”60 The right to register to vote on election day does not extend to sessions of annual or special meetings which are not being held concurrently with an election.61
Election officials who knowingly fail to perform their duties are subject to prosecution for a misdemeanor in accordance with New Hampshire law.62 RSA 666:3, which regulates election official misconduct, provides, “[a]ny public officer upon whom a duty relating to elections is imposed who shall knowingly fail to perform such duty or who shall knowingly perform it in such a way as to hinder the objects thereof shall be guilty of a misdemeanor . . . .” A person convicted of a misdemeanor may be imprisoned for up to one year and fined an amount no more than $2,000.”63 The statute of limitations for any misdemeanor offense based on a public servant’s misconduct in office extends to any time when the defendant is in public office or within two years thereafter.64
3. Political Advertising and Automated Pre-Recorded Political Calls Associated with Municipal Elections and Meetings
Allegations of unlawful political advertising ranks among the most frequent election law complaints filed with the Attorney General’s Office. Common complaints include: (1) political advertisements in favor of or in opposition to political candidates, which do not satisfy the statutory requirements for identification of the responsible person; (2) political advertisements illegally placed on public or private property or illegally removed therefrom; (3) the use of government resources in the production or publishing of political advertising; and (4) pre-recorded political advertisements sent by telephone.
When reviewing a complaint that alleges illegal political advertising, the first step in the analysis is determining whether the advertisement at issue is political advertising. RSA 664:2 defines political advertising as:
any communication, including buttons or printed material attached to motor vehicles, which expressly advocates the success or defeat of any party, measure or person at any election.
In 2001, in Stenson v. Philip McLaughlin, the Federal District Court for the District of New Hampshire held that the word “implicitly” in the RSA 664:2, VI definition of “political advertising” is impermissibly vague, and thus, rendered the statute unconstitutional.65 The Court further held that RSA 664:2, VI would survive a constitutional attack if the word “implicitly” was removed and that the word was severable.66
Accordingly, the Attorney General enforces RSA 664:2, VI without reference to the words “or implicitly” and focuses on whether the advertisement constitutes express advocacy. Express advocacy is “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’”67 Additionally, when reviewing political advertising complaints, the Attorney’s General’s Office considers whether the New Hampshire and United States Constitutions protect the advertising at issue from State regulation.68 In Buckley v. Valeo, the United States Supreme Court stated: “there is practically universal agreement that a major purpose of the [First] Amendment was to protect the free discussion of governmental affairs, . . . including discussions of candidates.”69 The Court went on to state that in the United States we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”70
While telephone advertisements have traditionally been more associated with state and federal races, the Attorney General’s Office has received complaints regarding prerecorded political phone calls at municipal elections. As New Hampshire’s law pertaining to pre-recorded political calls is fairly new, there has been some confusion as to its applicability.
In 2003, the New Hampshire Legislature adopted the national do-not-call registry as its State registry.71 In 2004, the Legislature expanded the scope its registry to restrict any organization from sending pre-recorded political calls to New Hampshire citizens who have registered their telephone number on the national-do-not-call registry.72
RSA 664:14-a, III provides in pertinent part:
I. In this section, “prerecorded political message” means a prerecorded audio message delivered by telephone by:
(a) A candidate or political committee; or
(b) Any person when the content of the message expressly or implicitly advocates the success or defeat of any party, measure, or person at any election, or contains information about any candidate or party.
II. No person shall deliver or knowingly cause to be delivered a prerecorded political message unless the message contains, or a live operator provides, within the first 30 seconds of the message, the following information:
(a) The name of the candidate or of any organization or organizations the person is calling on behalf of.
(b) The name of the person or organization paying for the delivery of the message and the name of the fiscal agent, if applicable.
III. No person shall deliver or knowingly cause to be delivered a prerecorded political message to any telephone number on any federal do not call list.73 (emphasis added)
A violation of RSA 664:14-a “shall result in a civil penalty of $5,000 per violation.”74 Moreover, “any person injured by another’s violation of this section may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper.”75 The statute further provides:
If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the act or practice was a willful or knowing violation of this section, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney’s fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this section without bond, subject to the discretion of the court. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
While RSA 664:14-a is relatively new under New Hampshire’s election laws, this Office may bring an enforcement action and seek appropriate remedies under the statute for local, state and federal violations.
The Attorney General’s Office receives many complaints each year of improper electioneering or improper prohibitions on electioneering at municipal elections. The frequency of electioneering complaints appears to result, at least in part, from some confusion concerning the statutes that address the issue.76 RSA 659:43 establishes a “no-electioneering zone,” providing in pertinent part:
II. No person who is a candidate for office or who is representing or working for a candidate shall distribute any campaign materials or perform any electioneering activities or any activity which affects the safety, welfare and rights of voters within a corridor 10 feet wide and extending a distance from the entrance door of the building as determined by the moderator where the election is being held.
(Emphasis added). RSA 659:43, II applies to municipalities,77 and serves as the minimum protection from electioneering outside the polling place. As a practical matter, this Office construes 659:43, II to generally provide moderators with broad discretion to designate the no electioneering zone beyond the ten-foot wide minimum corridor. Moreover RSA 31:41-c provides towns with the authority to further regulate electioneering activity. It provides in pertinent part:
Towns shall have the power to make bylaws regulating the distribution of campaign materials or electioneering or any activity which affects the safety, welfare and rights of voters at any election held for any purpose in such town.
A common concern relative to New Hampshire’s electioneering statute is that it runs afoul of the First Amendment of the United States Constitution. It does not. The United States Supreme Court has held that under the First Amendment, a(100-foot no-electioneering buffer around a polling place is constitutional.78 In Burson v. Freeman, an individual challenged the 100-foot “campaign free zone,” claiming the restriction limited her ability to communicate with voters.79 In balancing the right to engage in political discourse with an individual’s right to vote, the United States Supreme Court found the campaign-free zone to be necessary to avoid voter intimidation and election fraud.80 Burson did note, however, that at some measurable distance from the polls, governmental regulation of voter solicitation would become impermissible.81 Since Burson, the United States Court of Appeals for the Sixth Circuit held that a 500-foot no-electioneering buffer around a polling place was too large.82
Additionally, RSA 659:44 provides “[n]o election officer shall electioneer while in the performance of his official duties.” “Electioneer” is defined as “to act in any way specifically designed to influence the vote of a voter on any question or office.”83 Any person who violates this provision shall be guilty of a misdemeanor.84 RSA 659:44-a provides the following electioneering restrictions with respect to public employees:
No public employee, as defined in RSA 273-A:1, IX, shall electioneer while in the performance of his or her official duties or use government property, including, but not limited to, telephones, facsimile machines, vehicles, and computers, for electioneering. For the purposes of this section, “electioneer” means to act in any way specifically designed to influence the vote of a voter on any question or office. Any person who violates this section shall be guilty of a misdemeanor.
A public employee is defined as “any person employed by a public employer . . . except: persons elected by popular vote; persons appointed to office by the chief executive or legislative body of the public employer; or persons whose duties imply a confidential relationship to the public employer . . . .”85 A public employer is defined to include “the state and any political subdivision thereof, . . . ,”86 thus including municipalities.8787 The term “public employee” does not include:
New Hampshire’s Constitution and the election laws place a great responsibility, and commensurate discretion, in the hands of the moderator to govern the conduct of elections. This authority originates in Part 2, article 32, of the New Hampshire Constitution:
The meetings for the choice of governor, council and senators, shall be warned by warrant from the selectmen, and governed by a moderator, who shall, in the presence of the selectmen (whose duty it shall be to attend) in open meeting, receive the votes of all the inhabitants of such towns and wards present, and qualified to vote for senators; and shall, in said meetings, in presence of the said selectmen, and of the town or city clerk, in said meetings, sort and count the said votes, and make a public declaration thereof, with the name of every person voted for, and the number of votes for each person; . . .
The duty to “govern” what have now become separate state biennial and typically annual municipal elections, as well as often a separately held annual meeting, is a broad responsibility that is further defined by statute. RSA 659:21 explicitly prohibits any person, including a candidate, from being within the rails at a polling place at any time other than when that person casts his or her vote. RSA 659:43 explicitly prohibits the distribution or posting of any campaign materials in the form of a poster, card, handbill, placard, picture, or circular in the polling place. Otherwise, governing the activities within the voting area is under the control of the moderator.
5. Preparation of the Polling Place - Accessibility
The board of Selectmen is required to establish a polling place.88 This applies to both the general physical location where a person must go to vote (i.e. the “town hall,” “elementary school,” or “fire station”) and to the limited physical area where the actual voting takes place, (i.e. where the ballot clerk check-in and check-out tables, the voting booths, and ballot box are located). Both must be accessible to the elderly and to persons with disabilities.89 In 2007, the Legislature amended RSA 658:9 and RSA 658:9-a extensively, in large part adopting as state law the federal requirements imposed by the Help America Vote Act of 2002. While extensive review of those requirements is beyond the scope of this article, the most helpful tool for assessing compliance with accessibility requirements for polling places is a guide available on-line at: http://www.usdoj.gov/crt/ada/votingck.htm90 As is cited above, selectmen are required by the Constitution to attend all elections and are by state law made responsible for ensuring the accessibility of the polling place.
6. Counting Votes in Public
The entire election process, including the moment before the polls open, when the moderator displays the empty ballot box or the “zero tape” from the ballot counting machine, until after the last ballot has been counted and sealed in the storage container and the results publicly announced, must be open to the public. RSA 659:64 provides, “counting of votes shall be public and conducted within the guardrail and shall not be adjourned nor postponed until it shall have been completed. No ballot shall be placed within 4 feet of the guardrail during the counting of votes.” Moreover, the polling place itself and the meeting of the supervisors of the checklist held throughout election day, as the supervisors receive and vote on same-day applications, are subject to being observed and recorded using audio or video.91 However, because certain data on the Voter Registration Form is non-public, election officials should not allow the public to position video recording equipment where it would record that non-public data.92
Even though voters, who arrive after the polls are closed, are properly denied an opportunity to vote, the doors to the polling place may not be locked when the polls close to voting. If the poll workers take a break for a meal between closing the polls and counting the ballots, the polling place must remain open to the public and staffed with election officials, ideally at least one from each political party.93 The public’s right to watch the voting and ballot-counting process from beginning to end is a significant safeguard against voting fraud, stuffing the ballot box, or election official misconduct.
III. City and Town Charters
The Attorney General’s Office, the Secretary of State, and the Department of Revenue Administration are required to review any proposed charter, charter revision, or charter amendment “to insure that it is consistent with the general laws of this state.” RSA 49-B:5-a. The Legislature has directed that RSA chapter 49-B be strictly construed to avoid inconsistency or conflict with the New Hampshire Constitution and statutes.94
It is the purpose of this chapter to implement the home rule powers recognized by article 39, part first, of the constitution of the state of New Hampshire. . . . [T]his chapter shall be strictly interpreted to allow towns and cities to adopt, amend, or revise a municipal charter relative to their form of government so long as the resulting charter is neither in conflict with nor inconsistent with the general laws or the constitution of this state.95
The Legislature has afforded municipalities limited choices of different forms of government from which to choose. RSA chapters 49-B, 49-C and 49-D, constitute a detailed, comprehensive scheme for the establishment and operation of local government. RSA chapter 49-B gives municipalities explicit authority to choose a form of government. Their choices, however, are limited to the forms set forth in those statutes.96
Overall, the most common problem identified with proposed charter provisions is a failure to conform the provision to particular state statutes. The problem typically arises because the group developing the proposal fails to seek legal counsel during the drafting process. For example, the New Hampshire Supreme Court in the Claremont v. Craigue decision held that a charter amendment that subjected the city budget to a vote by the city’s voters was not permissible.97 The municipal body given responsibility to fulfill the municipality’s obligations under law must be entrusted with the corresponding authority to appropriate the funds necessary to fulfill those obligations. A charter, therefore, may not impair a municipality’s executive body’s ability to carry out obligations mandated by statute.98 The charter may not allow voters or other officials to intrude into matters reserved by statute for determination by the municipal executive body or particular municipal officials.99 Charter provisions, therefore, must not alter the allocation of responsibility or authority made by the general laws of the state. The Attorney General’s Office is available to consult informally with municipal legal counsel during the drafting stage for charter provisions.
IV. Agreements Between Government Units
Agreements between government units, and/or “intermunicipal” agreements are legally binding contracts entered into pursuant to RSA chapter 53-A by two or more municipalities that cooperatively engage in some governmental function. Intermunicipal agreements do not include a contract to buy goods or services from another municipality where the terms of the contract fully define the goods or services, payment, and where the municipality buying the goods or services has no role in the management of the production of the goods or the provision of the services.100 The determinative characteristic, which distinguishes an intermunicipal agreement from a contract for goods or services, is cooperative management of the personnel necessary to provide the service or the means of production of the good. 101
The Attorney General is required by RSA 53-A:3, V, to review proposed intermunicipal agreements to “determine whether the agreement is in proper form and compatible with the laws of this state,” and to ensure that the agreement meets the conditions set forth in RSA Chapter 53-A. RSA 53-A:3 sets forth the following specific requirements:
Duration. RSA 53-A:3, II (a) requires that an agreement specify its duration. This requirement does not preclude an agreement having an indefinite duration, provided any commitment of future funding is either contingent on future approval by the annual budget process or that multi-year funding be approved in accordance with the procedures for municipalities to approve multiyear financial obligations.
Organization. The agreement must specify “the precise organization, composition and nature of any separate legal or administrative entity created thereby together with the powers delegated thereto, provided such entity may be legally created.”102 While permitted, it is not necessary to create a separate legal or administrative entity. The Attorney General’s review of this requirement focuses on the clarity of the lines of responsibility and authority, including examining whether the process results in an impermissible delegation of authority.
Purpose. The agreement must specify the purpose of the agreement. RSA 53-A:3, II (c).
Financing. The agreement must specify the manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefore. RSA 53-A:3, II (d). The Attorney General’s review will focus on the term’s conformance with the municipal budget act and the other required procedures for the raising and appropriation of funds.
Termination. The agreement must specify the method to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such termination. RSA 53-A:3, II (e). There must be a documented meeting of the minds in advance as to how employees will be reassigned or terminated and how property acquired by the joint enterprise will be disposed of. An agreement to resolve those issues at a later time in the event of termination is generally not adequate.
Compatibility with Laws of the State. RSA 53-A:3, V, requires the Attorney General to “determine whether the agreement is in proper form and compatible with the laws of this state.” The review will examine the substantive laws regarding the joint activity. The agreement cannot authorize the joint enterprise to do anything the substantive laws would not allow a municipality to do when acting alone. Necessary and Proper Matters. The agreement must specify any other necessary and proper matters. RSA 53-A:3, II (f). This provision also requires examination of the substantive law governing the activity to be conducted through the joint enterprise. For example, where two municipalities will jointly operate a police department which services both, the agreement must conform with the provisions of RSA chapter 105-A relative to the appointment and removal of police chiefs and officers and governance of the police force.
Joint Board. If an agreement does not establish a separate legal entity to conduct the joint or cooperative undertaking, the agreement must contain provisions for an administrator or a joint board responsible for administering the joint or cooperative undertaking, which includes representation by all parties to the agreement. RSA 53-A:3, III (a). The Attorney General’s Office examines these provisions to ensure that there is no impermissible delegation of authority to the administrator or joint board.
Real and Personal Property. The agreement must contain provisions addressing the manner of acquiring, holding and disposing of real and personal property used in the joint or cooperative undertaking. RSA 53-A:3, III (b).
The Attorney General’s Office protects the democratic process in New Hampshire. Voting is the right through which citizens protect all other rights inherent in a democratic government. Voters have the right and responsibility to determine the character of their municipality by setting municipal budgets, establishing ordinances on land use and other subjects, and by voting into office those who will conduct the business of government in a manner which best suits the needs of their community. It is the Attorney General’s responsibility to protect the right of every qualified inhabitant to make these determinations through voting in municipal elections and meetings.
The Attorney General does not provide legal counsel to municipalities, municipal officials, or citizens, but does seek to encourage compliance with the law through education. Members of the Office are available to consult informally with municipal legal counsel and to assist municipal officials in locating statutes or other laws that may answer questions or guide their work.
This article represents the opinions and conclusions of its authors and not necessarily those of the Attorney General. The material presented herein may not be understood to be an Opinion of the Attorney General, which are formal documents rendered pursuant to statute.
1. See RSA chapter 21-M; RSA chapter 7; see also N.H. CONST. pt. II, art. 46 (the Governor and Executive Council nominate and appoint the Attorney General, in which a majority of the Council Members must agree for an appointment to take effect); RSA chapter 21-G (the Attorney General is under the Executive branch of New Hampshire’s government); RSA chapter 21-M. (the Attorney General is the leader of the New Hampshire Department of Justice).
2. State v. Swift, 101 N.H. 340, 342 (1958).
3. See RSA 7:6-c.
4. See RSA chapter 21-M; RSA chapter 7; Swift, 101 N.H. at 342.
5. Swift, 101 N.H. at 342; see e.g. RSA chapter 7 and 21.
6. RSA 7:6.
7. RSA 21-M:5 (emphasis added).
8. See People v. Minor, 2 Lans. 396 (N.Y. App. Div. 1868); Commonwealth v. Kozlowsky, 131 N.E. 207, 212 (Mass. 1912); State v. Warren, 180 So. 2d 293, 299 (Miss. 1965) (“At common law the duties of the attorney general, as chief law officer of a realm, were numerous and varied. He was chief legal adviser of the crown, was entrusted with the management of all legal affairs, and prosecution of all suits, criminal and civil, in which the crown was interested. He had authority to institute proceedings to abate public nuisances, affecting public safety and convenience, to control and manage all litigation on behalf of the state, and to intervene in all actions which were of concern to the general public.”); Memorial Hosp. Ass’n, Inc. v. Knutson, 722 P.2d 1093 (Kan. 1986)(wherever the public interest is involved or the state is a party, the attorney general is primarily the proper counsel to appear); Opinion of the Justices, 241 N.E.2d 91, 94 (1968); Feeney v. Commonwealth, 366 N.E.2d 1262 (Mass. 1977); Minh LY v. Nystrom, 615 N.W.2d 302, 313 (Minn. 2000); Attorney General, ex rel. Wilbur, 308 A.2d 554, 557-58 (Me. 1973); Attorney General v. Hodges, 562 S.E.2d 623, 239-40 (S.C. 2002); Attorney General v. Paxton, 516 S.W.2d 856, 867 (Ky. 1974); Zweuffel v. State of Wyoming, 517 P.2d 493, 501-02 (Wy. 1974); see also 12 William Holdsworth, A History of English Law 305 (1st ed. 1938).
9. State v. City of Dover, 153 N.H. 181, 186 (2006) (finding the State has an interest in abating concrete injuries to the well being of the populace).
10. See Minor, 2 Lans. At 396; Kozlowsky, 131 N.E. at 212; Warren, 180 So. 2d at 299; Memorial Hosp. Ass’n, Inc., 722 P.2d at 1093; Opinion of the Justices, 241 N.E.2d at 94; Feeney,366 N.E.2d at 1262; Nystrom, 615 N.W.2d at 313; Attorney General, ex rel. Wilbur, 308 A.2d at 557-58; Hodges, 562 S.E.2d at 639-40; Paxton, 516 S.W.2d at 867; Zweuffel, 517 P.2d at 501-02.
11. 131 N.E. 207, 212, (1912).
12. Swift, 101 N.H. at 342 (citing RSA 7:6).
13. Swift, 101 N.H. at 342.
14. Attorney-General v. Knapp, 78 N.H. 185, 189 (1916); see generally Fletcher v. Merrimack County, 71 N.H. 96 (1901); State ex rel Bokowsky v. Attorney General, 111 N.H. 57 (1971); Eames v. Attorney General, 115 N.H. 91 (1975).
15. N.H. CONST. pt. I, art. 39; RSA chapter 49-A, B, C, D; RSA chapter 53-A.
16. See e.g. RSA chapter 652-671, RSA chapter 31, 32, 41 and 42, 44, 47, 195 and 197 (New Hampshire election laws pertaining to town, city and state elections, as well as village and school district elections).
17. RSA 7:6-c.
20. See RSA 7:6; RSA 7:6-c.
21. See RSA chapter 654 – RSA Chapter 671
22. State of N.H. v. City of Dover, 153 N.H. 181, 185-186 (2006); Massachusetts v. Bull HN Information Systems, 16 F.Supp.2d 90, 96 (D.Mass.1998).
23. City of Dover, 153 N.H. at 185-86.
25. Id. at 186.
27. See Meehan v. Bacheldor, 73 N.H. 113 (1904)(“The Attorney General, ex officio, has the right to bring an information in the nature of a quo warranto to try the title to a public office, and is not compelled to ask leave of the court; but a private individual, in the absence of a statute, and without the intervention of the Attorney General, cannot, either as of right or by leave of the court, file an information to try the title to a public office.”).
28. P. Loughlin, New Hampshire Practice, Local Government Law § 987, at 248 (1995)(internal citation omitted); see also Osgood v. Jones, 60 N.H. 543 (1881)
29. Swift, 101 N.H. at 342.
30. See id.
31. See John Stuart Mill, On Liberty (1909).
33. Alexis de Tocqueville, Democracy in America,Vol I., 62 (Phillips Bradley ed., Random House 1945).
36. Id. at 63.
39. Id.; see also N.H. CONST. pt. II, art. 42.
40. see generally N.H. CONST.
41. See id.
42. See In Re Opinion of the Justices, 73 N.H. 618 (1905)
44. Merriam-Webster 11th Collegiate Dictionary Electronic Version; Blacks Law Dictionary 1529, 8th ed. 2004.
45. 56 Am. Jur. 2d, Municipal Corporations Etc., § 138 (2007)(Town meeting has two basic functions, the election process and the legislative function); RSA 31:4 (In accordance with State law, at any legal meeting, towns may grant and vote on sums of money they judge necessary for any purpose).
46. 6 Am. Jur. 2d, Municipal Corporations Etc., § 138 (2007); see also RSA 39:1(Legislative decision-making is done at the annual town meeting); RSA 39:4.
47. U.S. v. Slone, 411 F.3d 643, 650 (6th Cir. 2005).
48. See id.
50. RSA 39:2; RSA 669:2 (“The warrant shall clearly specify which items shall be voted on by ballot at the town election and which items shall be considered at the town business meeting.”) While this article discusses town meeting, these requirements apply equally to school and village district meetings.
51. RSA 39:5.
52. RSA 39:5(The warrant for any town meeting shall be under the hands of the selectmen, and shall prescribe the place, day and hour of the meeting, and, if there is an election at said meeting, in which an official printed ballot containing more than one name is used, the warrant therefor shall prescribe the time the polls are to open and also an hour before which the polls may not close); Osgood v. Blake, 21 N.H. 550, 560 (1850)(The posted warrant allows all who are interested in the subject matter contained in the warrant the privilege of attending the meeting if they see fit); Nelson v. Pierce, 6 N.H. 194, 195 (1833).
53. RSA 39:2.
54. See RSA 39:5; Osgood, 21 N.H. at 556.
55. RSA 39:3.
57. Woodside v. Selectmen of the Town of Derry, 116 N.H. 606, 608 (1976).
58. Osgood v. Jones, 60 N.H. 543 (1881)(“The usurpation of a public office or franchise is a public wrong. The remedy is, therefore, a public one, carried on in the name of the public prosecutor . . . .” The franchise, now more commonly referred to as the right to vote, is a right held by a qualified voter to vote both at elections and at town meeting).
59. See RSA 654:7-a, II; RSA 654:1.
60. RSA 654:7-a, I.
62. RSA 666:3.
63. RSA 651:2
64. RSA 625:8, III (b).
65. No. 2001 DNH 159 (August 24, 2001).
67. Buckley v. Valeo, 424 U.S. 1, 44 (n. 52) (1976).
68. See Buckley, 424 U.S. at 14.
69. Id. (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
70. Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); McConnell v. Federal Election Commission, 540 U.S. 93 (2003); Randall V. Sorrell, Nos. 04-1528, 04-1530 and 04-1697 (United States Supreme Court, (June 26, 2006)).
71. See RSA 359-E:7, III.
72. See RSA 664:14-a, III, see also RSA 359-E:7, XI(e)( “Telemarketing sales call” means a telephone call made by a telemarketer to a customer for the purpose of inducing payment or the exchange of any other consideration for any goods or services or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes. A telemarketing sales call shall not include a call made: (e) On behalf of a political campaign, except that a call made on behalf of a political campaign by a vendor using automatic dialing equipment shall be deemed a telemarketing sales call under this chapter).
73. (Emphasis added).
74. RSA 664:14-a, IV (a).
75. RSA 664:14-a, IV (b).
76. RSA 659:43; RSA 31:41-c; RSA 659:44; RSA 659:44-a.
77. see RSA 669:25.
78. See Burson v. Freeman, 504 U.S. 191 (1992).
82. See Anderson v. Spear, 356 F.3d 651, 657 (6th Cir. 2004).
83. RSA 659:44.
85. RSA 273-A:1, IX.
86. RSA 273-A:1, X.
87. The term “public employee” does not include:
(a) persons elected by popular vote; (b) persons appointed to office by the chief executive or legislative body of the public employer; (c) persons whose duties imply a confidential relationship to the public employer; or (d) persons in a probationary or temporary status, or employed seasonally, irregularly or on call. For the purposes of this chapter, however, no employee shall be determined to be in a probationary status who shall have been employed for more than 12 months or who has an individual contract with his employer, nor shall any employee be determined to be in a temporary status solely by reason of the source of funding of the position in which he is employed.
88. RSA 658:9
89. RSA 658:9; RSA 658:9-a; Help America Vote Act of 2002
90. The guide is also available from the Secretary of State or the Attorney General’s Office.
91. RSA 91-A:2, II.
92. See RSA 654:31-a.
93. See e.g. RSA 659:62.
94. See Town of Hooksett v Baines, 148 N.H. 625, 628 (2002) (RSA 49-B:1shall be strictly interpreted to allow amendment only if the amendment is not in conflict or inconsistent with statutes); Appeal of Barry, 143 N.H. 161 (1998); Opinion of the Justices, 145 N.H. 680, 682 (2001)(“[T]he legislature may grant, withhold, or withdraw local control as it sees fit.”)(quoting Seabrook Citizens v. Yankee Greyhound Racing, Inc., 123 N.H. 103, 108 (1983); Girard v. Town of Allenstown, 121 N.H. 268, 272 (1981); Opinion of the Justices (Weirs Beach), 134 N.H. 711, 715 (1991)( Part I, Article 39 “has never been interpreted as a grant to municipalities of the supreme legislative authority over all municipal affairs.”).
95. RSA 49-B:1; Opinion of the Justices, 145 N.H. at 683 (emphasis added) (citing, Opinion of the Justices, 134 N.H. at 716 (1991)(Part I, Article 39 has no impact on the Legislature’s unrestricted authority over other aspects of municipal functions)).
96. City of Manchester School Dist. v. City of Manchester, 150 N.H. 664, 667 (2004).
97. Claremont v. Craigue, 135 N.H. 528, 531 (1992).
98. Id. at 533 (The legislature has conferred substantial authority upon city officials in order to facilitate the conduct of city government. For example, a city council has the power to purchase property for the city. RSA 47:5. A city council would be deprived of the power to purchase property if it could not guarantee that it would fund its purchases. The power to purchase implies the power to fund. The Legislature has a strong interest in ensuring that the power to contract and the power to approve the budget are held by the same entity. The respondents’ changes would in effect give the city’s voters a veto over any proposed fiscal action by the council. Such a disjunction of power could render a city unable to fulfill its duties under RSA chapters 44 and 47.)
99. City of Manchester School Dist.,150 N.H. at 670 (internal citations and quotations omitted) (emphasis added) (citing, Harriman v. City of Lebanon, 122 N.H. 477, 482-83 (1982)).
100. See RSA chapter 53-A.
101. RSA 53-A:3.
102. RSA 53-A:3, II (b).
Editor’s note: In deference to the authors’ preference, “State” is capitalized throughout this article. Bar Journal’s standard style, though not slavishly followed, is not to capitalize generic references to state government.
Attorney James W. Kennedy is an Assistant Attorney General within the Civil Bureau of the New Hampshire Attorney General’s Office. Mr. Kennedy specializes in election law enforcement and general civil litigation defense. Additionally, he serves as the Attorney General’s designee as a member of New Hampshire’s Right-to-Know Oversight Commission.
Attorney Orville B. “Bud” Fitch II is New Hampshire’s Deputy Attorney General. Before his appointment as Deputy Attorney General, Bud served as lead attorney for election law enforcement.