By Kimberly A. Hallquist, Esq.
This month’s Q&A represents a departure from our usual single topic format. The staff attorneys of LGC’s Legal Services and Government Affairs Department answer thousands of questions each year posed by local officials from towns and cities both large and small. Following are some of those questions on various topics that we hope you will find useful to your work as a local official. These are general questions and there may be specific fact patterns that could potentially change the answer, so, as always, we encourage you to contact us to discuss in greater detail the specific issues you are facing.
Q. If the board of selectmen takes a vote to have the selectmen’s representative on the planning board vote a certain way when acting as the ex-officio member of the planning board, must the selectmen’s representative vote in the way the selectmen direct?
A. No. The ex-officio member of the planning board is appointed by the selectmen to fill the position but is not “directed" by the board of selectmen. The ex-officio member is a full voting member of the planning board and should participate in whatever way he or she deems appropriate in his or her capacity as a planning board member.
Q. Does the town have to offer comp time?
A. No. The federal Fair Labor Standards Act merely provides compensatory time (comp time) as an option that state and local governments may use, if they choose, to compensate employees for overtime work. Comp time received in lieu of cash must be at the rate of no less than 1.5 hours of comp time for each hour of overtime worked. As a condition for providing comp time in lieu of monetary overtime compensation, the employer and employee must agree to the means of compensation prior to the performance of the work. There are limits on how much comp time an employee may accrue and “bank" at any one time. Employees engaged in public safety, emergency response activity or seasonal activity may accrue not more than 480 hours of comp time, and all other employees may accrue not more than 240 hours of comp time.
Q. Can a non-U.S. citizen serve as a selectman?
A. No. RSA 91:2 provides that no person is eligible to hold any municipal office, elective or appointive, who is not a citizen of the United States.
Q. Is a vote to abstain considered a yes vote or a no vote?
A. It could be either one. The Court considered this issue in Merrimack v. McCray, 119 N.H. 734 (1979), when it reasoned that an abstention is akin to acquiescence to the will of the board. In that case, two members voted yes, there were zero no votes and two members abstained from voting. The Court said that the result of the vote was two in favor and none against. Thus, an abstention is neither a yes vote nor a no vote, but acquiescence to the will of those voting in the majority, whether it be yes or no.
Q. Why can’t towns decide to plow private driveways or private roads?
A. It is commonly held that public funds cannot be spent for the benefit of private individuals. Clapp v. Town of Jaffrey, 97 N.H. 456 (1952). Moreover, RSA 231:59 provides that municipal highway funds can only be spent on Class IV and V highways. Thus, funds cannot be expended for Class VI highways or private roads. The town may perform such services to private individuals if the individuals pay a sufficient fee so that no tax monies are being expended and if the services provided are subordinate and incidental to the needs of the town. In other words, the town could not make purchases of equipment or hire help beyond its own reasonable public needs in order to use them for the benefit of private persons, even if they were reimbursed for the services provided.
Q. Can public funds be spent to maintain a private road or a Class VI if the selectmen declare it an emergency lane?
A. Yes, but such a declaration should not be viewed as a way around the rule that public funds cannot be spent for the benefit of private individuals or to use municipal funds to maintain a Class VI road as discussed above. In order to declare a private road or Class VI road an emergency lane, the selectmen must make written findings that the “public need for keeping such lane passable by emergency vehicles is supported by an identified public welfare or safety issue interest which surpasses or differs from any private benefits to landowners abutting such lane." RSA 231:59-a, II. In other words, the public must benefit from keeping the road passable by emergency vehicles, not just the people who live on the private or Class VI road. For example, if there was a pond or lake on the road that was used by the fire department to fill its water tanker for fire fighting purposes, the selectmen might find it in the public interest to keep the road passable for fire equipment so that the fire department would have access to a water source. However, declaring the road as an emergency lane solely to allow emergency vehicles to respond to calls for service to residents on the road would likely not constitute a benefit to the public that surpasses or differs from the benefits to the landowners of the road.
In order to declare an emergency lane, the selectmen must hold a public hearing and must make written findings as discussed above. In the case of a private road, notice must be mailed to all persons known to have a legal interest in the road, 10 days prior to the public hearing, and the emergency lane shall not be declared if permission is denied by any person with a legal right to deny such permission. The selectmen are under no obligation to declare any Class VI or private road as an emergency lane and once declared, they may rescind or disregard the emergency lane declaration at any time without notice.
Q. Must all public meetings be held within the municipality?
A. There are two statutes that address instances in which public meetings may be held outside of town. RSA 39:1-b provides that a town may hold its town meeting outside the geographical boundaries of the town if the town does not have a facility with large enough seating capacity to accommodate the meeting. RSA 21-P:39, IV provides that during a state of emergency, meetings may be held outside the territorial limits of the political subdivision, but must be held within the state. Thus, in certain circumstances, a town meeting may be held outside of town and, during a state of emergency, other meetings may be held outside of town as well.
The law is less clear on whether a public body may meet outside of the town for a purpose other than the two described above. In examining this issues it is helpful to consider the purpose of the Right to Know law, RSA 91-A, which is to foster the greatest public access to the actions, discussions, and records of all public bodies. Holding public meetings outside of town may frustrate this purpose to the extent that such meetings may not be accessible to the public. The safest course of action to take is to conduct all public meetings within the town unless a statute specifically provides otherwise.
Q. Can a husband and wife, father and daughter, mother and son etc. be appointed to the same board? If they can, and the two people constitute a quorum of that board, doesn’t that run afoul of RSA 91-Afor purposes of public meetings?
A. There is no statutory prohibition against a husband and wife, or other combinations of family members from being appointed, or elected, to boards or commissions. Statues that address incompatibility of offices, RSA 669:7, and common law incompatibility, relate to the issue of the same person serving in various offices at the same time.
Do two members of a household serving on the same three-member board constitute an illegal “meeting?" The Right to Know Law’s requirements regarding notice, openness to the public, minutes, etc., apply only to “meetings" as defined by the law. A “meeting" is the convening of a quorum of the membership of a public body “…to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power." RSA 91-A:2, I. However, even when a quorum of a board is present in the same location, the result is not always a “meeting." The statute specifically states that it is not a meeting when a quorum of members is present at any “chance meeting or social meeting neither planned nor intended for the purpose of discussing matters relating to official business and at which no decisions are made…" Thus, while two members of a three-member board are a quorum, not every situation in which a quorum is present is automatically a “meeting" under the Right to Know Law. Being present in one’s home would likely qualify as a “social" situation that would not constitute a meeting so long as it was not planned or intended for the purposes of discussing official board business and so long as no decisions were made at those times.
Q. Is there any legal requirement to pay time and a half for hours worked on a holiday?
A. No. Neither New Hampshire law nor the federal Fair Labor Standards Act (FLSA) requires the payment of time and a half wages on a holiday. FLSA provisions regarding the payment of time and a half wages apply to the payment of overtime for hours worked in excess of 40 hours in a workweek. Employers are free to develop their own policies regarding the payment of benefits such as holiday pay and vacation time.
Q. Can a town meeting be postponed due to bad weather?
A. Yes, the moderator may postpone town meeting in the event of bad weather. RSA 40:4, II provides that in the event of a weather emergency on or before the date the 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 two hours prior to the scheduled session, postpone and reschedule the meeting to another reasonable date, place, and time certain.
Once the decision to postpone is made, the moderator shall employ whatever means are available to inform citizens of the postponement and the rescheduled deliberative session or voting day. In towns that have adopted the provisions of RSA 40:13, SB2, the postponement shall not delay the deliberative session more than 72 hours.
Q. A warrant article by petition is submitted to the selectmen 10 months before the annual meeting. Should the petition be accepted when submitted or should it be accepted closer to the annual meeting? If it must be accepted when submitted, when are the names verified?
A. RSA 39:3 provides that upon the petition of 25 or more registered voters or two percent of the registered voters in town, whichever is less, although in no event shall fewer than 10 registered voters be sufficient, presented to the selectmen or one of them not later than the fifth Tuesday before the annual meeting (see RSA 40:13 for deadlines for SB2 towns), the selectmen shall place the petitioned article on the warrant with only such minor textual changes as may be required. While the statute sets out the last day that such petitions may be presented, it is silent on the earliest day when a petition may be presented. Since RSA 39:3
With regard to verification of the signatures on the petition, RSA 39:3
Q. I am a local official and I think that the selectmen did not follow the law when acting on my application for property tax abatement. Can you advise me about what I should do next?
A. No. The town or city is our client, not individual officials, thus we are ethically unable to provide legal advice to local officials regarding their personal interests, even if those interests involve his or her status as a local official. We are also unable to assist individual citizens. When a question of this type comes to us, our policy is to suggest that the caller bring his or her question to the applicable town official, or to the board of selectmen, for an explanation or direction on where they might find the answer they seek. Of course, the town official to whom a question is posed is free to call us for assistance in answering the legal issue presented.