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Bar News - June 21, 2017


Municipal & Governmental Law: Town Moderators and Municipal Lawyers Search for Clarity After Storm

By:

Statutory Conflict Remains Over Authority to Postpone Town Meetings

HB 329 permits a one-time “fix” for arguably valid votes cast at postponed meetings. HB 329 does not discuss whether 669:1 or 40:4 takes precedence, stating: “This act [does not] establish precedent or... authorize [postponements] in future elections.” The bill also states that it is not “intended to absolve any legal counsel of liability for the advice given.”

Rarely does legislation read like a newspaper article. But that happened earlier this year, after a major snowstorm postponed many New Hampshire town meetings. The Secretary of State’s office questioned the validity of votes taken at the postponed meetings, and a bill was introduced to “cure” perceived problems with delayed votes. The drafters of the bill, HB 329, put it this way:

“Due to the concern about an impending snowstorm, some New Hampshire towns and school districts rescheduled their 2017 elections from Tuesday, March 14, 2017 to various later dates. The towns and school districts assert that this unprecedented action was based on advice of lawyers for the New Hampshire Municipal Association (NHMA) and other counsel. This advice was... directly contrary to both the political calendar and the election procedure manual.”

HB 329’s proponents singled out NHMA and the municipal bar: “Those who advised local officials that they had the authority to reschedule elections have placed some municipalities in an untenable position.”

For 375 years, New Hampshire has held town meetings. By law, the second Tuesday in March is the day on which towns that hold traditional meetings and SB2 towns elect town and school officials. The towns also vote on all matters that must appear on the official ballot, though traditional town meetings may be held at a later date. “It’s the purest form of democracy,” says Secretary of State William Gardner. “At one time town meetings lasted up to seven days in some communities,” Gardner has noted. That might solve the problem of snowstorms in the 1700s, but not today.

Town moderators are the officials charged by law with postponing town meetings in extreme weather. Under RSA 40:4, II, moderators can postpone town meetings: “In the event a weather emergency occurs on or before the date of a deliberative session or voting day of a meeting in a town, which the moderator reasonably believes may cause the roads to be hazardous or unsafe, the moderator may, up to 2 hours prior to the scheduled session, postpone and reschedule the deliberative session or voting day of the meeting to another reasonable date, place, and time certain.”

That same statute also states: “The date originally scheduled shall continue to be deemed the deliberative session or voting day of the meeting for purposes of satisfying statutory meeting date requirements,” so long as the moderator employs “whatever means are available to inform citizens of the postponement and the rescheduled deliberative session or voting day.”

When a big storm loomed this year, town moderators had to decide what to do. They did not get a clear answer from state government. NHMA and the municipal bar advised towns to follow RSA 40:4, II, but that advice ran into headwinds from the Secretary of State’s Office. The Secretary of State cited RSA 669:1, I, which states that “All towns shall hold an election annually for the election of town officers on the second Tuesday in March.” The secretary of state apparently viewed that as the final word.

In response, the municipal bar noted that RSA 40:4 was amended after RSA 669:1 was adopted, and the later amendment plainly permits moderators to reschedule both the meeting and the vote in a weather emergency. As a result, RSA 669:1’s requirement to vote on the second Tuesday in March is not absolute, and 40:4, II, accommodates postponements by providing that “[t]he date originally scheduled shall continue to be deemed the deliberative session or voting day.”

Hoping to clear up the confusion, the governor held a conference call on the day before Town Meeting Day. During that call, the governor reiterated the Secretary of State’s position and discouraged towns from postponing their meetings, but he did not mention that the attorney general disagreed with the secretary of state and agreed with the NHMA and the municipal bar. Many moderators, confused about what was permitted, heeded the governor’s warning.

Does HB 329 clear up that confusion? No. The legislation permits a one-time “fix” for arguably valid votes cast at postponed meetings. HB 329 does not discuss whether 669:1 or 40:4 takes precedence, although HB 329 seems to support the secretary of state’s view: “This act [does not] establish precedent or... authorize [postponements] in future elections.” The bill also states that, “[t]his act is not intended to absolve any legal counsel of liability for the advice given.”

Town moderators are left without clear guidance. Moderators have always faced a “no-win” scenario when postponing a town meeting. Some voters can vote one day but not another; some voters will go away dissatisfied. Absent a resolution to the apparent conflict between the two statutes by the NH Legislature, it may be up to the courts to resolve it in some future year when winter howls again.


Jim Allmendinger

Jim Allmendinger is a solo practitioner in Durham who represents unions and employees, and previously served as moderator of the Strafford School District. He is a member of the NH Bar Association’s Ethics Committee.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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