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Bar News - June 21, 2017

Opinion: State Officials Owe Moderators an Apology


I am the Bedford Town Moderator. New Hampshire officials owe an apology to me, to approximately 70 other moderators, and to at least two dozen municipal lawyers for stating that we acted illegally.

On March 14 – Town Meeting Day – a historic storm brought over 18 inches of snow and near-blizzard conditions to New Hampshire. In the days before the storm, many local officials began calling their town attorneys and the New Hampshire Municipal Association (NHMA) to ask about postponing their meetings. Without exception, they were advised that moderators had authority under RSA 40:4, II, to postpone the business session, the ballot voting session, or both.

Officials from several towns also called the Secretary of State’s office, where they received exactly the same answer. That office stated that it has no jurisdiction over town meetings or elections, and that the moderator has the authority to postpone.

Then, on Monday, March 13, Secretary of State Bill Gardner was quoted in the Union Leader contradicting his own office, saying that the town meeting business sessions could be postponed, but not the ballot voting sessions. His proclamation that “we don’t have snow days” for elections created needless chaos. Later that day, Gov. Chris Sununu scheduled a conference call to discuss the looming blizzard and provide guidance in light of the disconnect between the legal community and the Secretary of State.

Before the call, I had been advised that the Attorney General’s Office had agreed with the NHMA and with the unanimous opinion of the municipal bar. The fact that the state’s own attorneys disagreed with Gardner was later publicly confirmed by the governor, and also privately confirmed to me.

Placed in an untenable position, the governor informed the conference call attendees that there were differing opinions and, while conceding that the state had no authority to order that elections be held, he urged moderators not to postpone their voting sessions.

Things got worse from there. Speaker of the House Shawn Jasper joined the fray, telling reporters, “I know there is going to be a lawsuit as a result of this,” and blaming the NH Municipal Association for leading towns astray.

It’s a rare thing when dozens of lawyers, including the state’s own lawyers, are in perfect agreement, and the law is unambiguous. RSA 40:4, II, states that in the event of a weather emergency, the moderator may postpone “the deliberative session or voting day of the meeting.” You do not need a law degree to understand that “voting day of the meeting” refers to the ballot voting session of the town meeting, as distinguished from the business session.

The legislative history of RSA 40:4, II, confirms that when it was introduced as a Senate bill in 1998, the original intent was to address only the business (or “deliberative”) session of a town meeting. However, the bill was amended in the House to include postponement of the ballot voting session (“voting day”) as well.

In the face of the statute’s clear language, Gardner took the curious position that the question was controlled by RSA 652:21, which requires his office to prepare a “political calendar for state and town elections setting forth the dates when action required under the election laws must be taken.” Town elections, he said, must occur on the date listed in the political calendar, notwithstanding the law that expressly allows postponement. According to this analysis, the calendar, which is a helpful guide that sets notice and other deadlines while creating a safe harbor for those relying on those deadlines, trumps the specific law.

While Gardner’s position has yet to be supported by any legal opinion, his certitude shook the confidence of municipal bond lawyers, who were left unable to provide clean opinions regarding bond approvals at the postponed meetings. It thus became obvious that legislation was needed to ratify those approvals.

A ratification bill was introduced, but Gardner and Jasper opposed it. They insisted, instead, that towns be forced to hold a special meeting to ratify actions taken at the “illegal” voting sessions.

That demand ultimately gave way to a compromise bill allowing each town’s board of selectmen to ratify the voting results. However, the price for that compromise was inclusion in the bill’s introductory section of a gratuitous smear, stating that the situation was caused by “advice of lawyers for the New Hampshire Municipal Association and other counsel,” who had “placed some municipalities in an untenable position.”

That untenable position was created by Secretary Gardner’s very public misstatement of the law and by legislators’ efforts to whitewash his mistake by scapegoating municipal lawyers and moderators. They should apologize to us and to the voters they are supposed to represent.

Editor’s note: See related article.

Brian Shaughnessy

Brian Shaughnessy practices law with the Bedford Law Firm of Kazan & Shaughnessy. He has been the Bedford Town Moderator since 2012.

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