By Kimberly Hallquist, Esq.
For some, the call to serve their community is a strong one. Some citizens are not only willing to serve on one board; they are willing to serve on multiple boards at the same time. While this dedication to public service is laudable, there are some drawbacks to multiple board memberships that should be considered by the appointing officials. This article will discuss some of the drawbacks of multiple board memberships among land use boards and boards of selectmen.
When considering whether a current board member should be appointed to another board, it is helpful to consider the capacity in which the other board acts. If the board must notify abutters, hold hearings and hear and weigh evidence before rendering a decision, those decisions are characterized as a judicial or quasi-judicial board, as opposed to administrative or legislative. This is an important distinction because when a board member is acting in a judicial or quasi-judicial manner, the courts will apply a stricter rule of fairness in terms of potential conflicts of interest of the board members deciding the case. Winslow v. Holderness Planning Board, 125 N.H. 262 (1984).
To illustrate, suppose a selectman offers to serve on the zoning board of adjustment (ZBA). There is nothing in RSA 673:3, membership of the ZBA, or in RSA 669:7, incompatibly of offices, that would prevent a selectman from serving on the ZBA. However, the ZBA hears and decides appeals of administrative decisions, which includes decisions made by the board of selectmen, in the enforcement of the zoning ordinance. If the board of selectmen makes a decision that is later appealed to the ZBA, the ZBA member who is also a selectman will not be able to participate in that case. This is because the ZBA is acting in a judicial capacity when it decides the appeal of administrative decision. As such, any member of the ZBA who has already made a decision in the case by acting in a prior proceeding on the same case would be disqualified for any cause to act as a juror upon the trial of the same matter. Therefore, a selectman who is also a ZBA member would not be able to participate in such an appeal brought before the ZBA.
Having the selectman step down in such a case means that the ZBA chair will need to call upon alternates to fill in for the disqualified selectman. This can present a problem as alternates are not always available, and advance notice of the need for an alternate is not always given. Having a full board present is of particular importance to applicants before the ZBA because RSA 674:33, III requires concurring votes of three members to take any action. The frequent disqualification of one board member may mean that applicants have a difficult time obtaining a hearing before a full board. The odds of this occurring are much greater when one member is likely to be disqualified from a large number of matters. It is recommended that in fairness to applicants, when a ZBA cannot designate alternates in time to have a full board present, an applicant be given an opportunity to reschedule the hearing to a time when a full board can participate. Having to reschedule a large number of hearings, or proceed with less than a full board, will result in more work for the board and will not allow citizens to get a timely and fair consideration of their application.
In towns that do not have a building inspector or code enforcement officer, the board of selectmen will be the body issuing building permits and handling related issues. Appeals from decisions of the selectmen in these matters are also heard by the ZBA. In that case, a selectman on the ZBA would be disqualified from participating in any appeal of the selectmen’s decision to issue or deny a building permit.
Another conflict would arise should the board of selectmen want to ask for a rehearing or appeal of a ZBA decision under RSA 677:2 or 677:4 if one of the selectmen participated in the ZBA decision. This would be a clear conflict of interest because the selectman would be deciding whether or not to appeal his own decision. In that case, the other two selectmen would have to decide to pursue a rehearing or appeal without the third selectman’s participation.
Now let’s suppose that a ZBA member asks to be appointed to the planning board. No statute specifically prohibits one person from serving on both land use boards at the same time. However, there are several practical difficulties that may arise. Most obviously, the ZBA is the body that hears appeals of planning board decisions involving the application or interpretation of a zoning ordinance. As discussed above, RSA 673:14 prohibits a member from participating in a case that he or she would be disqualified from hearing if he or she would be disqualified as a juror. A ZBA member who participated in the planning board’s decision, therefore, would be disqualified from participating in the ZBA’s judicial determination of the correctness of that decision. This means that an alternate would be required to sit in that person’s place for every appeal from a planning board decision in which that ZBA member had participated. The same would be true of a planning board member who participates in a case as a ZBA member, that later comes before the planning board.
Now let us examine the issue of selectmen serving on planning boards. The statute does provide for a selectman, or other administrative official chosen by the selectmen, to serve as an ex officio member of the planning board. RSA 673:2. “Ex officio member" means any member who holds office by virtue of an official position and who shall exercise all the powers of regular members of a local land use board. RSA 672:5. Some are under the mistaken impression that an ex officio member cannot vote, or can only vote to break a tie. As RSA 672:5 provides, an ex officio member has all of the powers of a regular member. The only difference is that the term of an ex officio member coincides with their term in office. If a selectman wishes to serve as a regular member of the planning board (as opposed to an ex officio member) he or she may only serve if the ex offico member appointed by the selectmen is not another selectmen. This is because RSA 673:7 permits planning board members to serve on any other municipal board or commission so long as it does not result in two or more planning board members serving on the same board or commission. Therefore, if the selectmen’s ex officio member to the planning board is a selectman, then no other selectman can serve on the planning board at the same time because that would mean two planning board members are serving together on another board (that is, the board of selectmen).
As with service on the ZBA, a selectman serving on the planning board might be disqualified from participating in certain matters that come before both boards. For instance, the selectmen have the ability to file for rehearing or appeal of a planning board decision to the ZBA (RSA 676:5 and 677:2). A selectman who participated in a planning board decision would be disqualified from participating in the board of selectmen’s subsequent pursuit of rehearing or appeal for the same reasons explained above.
Another potential problem with a selectman serving on land use boards may arise should the selectmen have to take up the issue of removal of a board member. The board of selectmen have the power to remove a member of a land use board for inefficiency, neglect of duty, or malfeasance in office. RSA 673:13. Any selectman who was serving on that particular board would arguably have a conflict even if the selectmen were discussing the removal of a different board member. That selectman would therefore probably not be able to participate in the decision of whether or not to remove a board member.
While it is commendable that board members are willing to extend themselves further by filling positions on other boards, appointing officials should consider the potential problems that multiple board memberships may present. When a board is acting in a judicial or quasi-judicial capacity, its members will be held to stricter standards of fairness than if they were acting in an administrative or legislative capacity. When multiple board memberships are involved, this will likely result in an increased need for alternates as disqualified members are forced to step down from cases. In the interests of fairness to applicants and in the proper and smooth administration of local boards, careful consideration should be given before a person is appointed to multiple boards.
Kimberly Hallquist is a Staff Attorney with LGC’s Legal Services and Government Affairs Department.< Back to Town And City Home