By Stephen Buckley, Legal Services Counsel
Q: What is the manner of election and term of the moderator?
A: A moderator is chosen every two years, in even-numbered years, by ballot, by plurality vote. The moderator assumes office when the regular town business meeting held that year has adjourned and upon his or her “qualification” for office, which means upon taking of the oath of office in accordance with RSA Chapter 42. The moderator serves through the adjournment of the regular town business meeting two years following election and until the qualification of a successor, whichever is later. The election of moderators in city wards is at every other regular city election. RSA 40:1.
Q: What is the compensation paid to the moderator?
A: Financial compensation of the town moderator, if any, is set by the annual meeting, in accordance with RSA 31:9-b.
Q: How is a vacancy in the position of moderator filled?
A: Vacancies in the office of town moderator are filled by appointment made by the supervisors of the checklist in accordance with RSA 669:62. Although the statute provides that vacancies are filled by the select board where there are no checklist supervisors, the fact is that a town is required to have supervisors of the checklist. RSA 41:46-a.
Q: Who is the moderator pro tempore?
A: If the moderator will be absent from any annual or special meeting or state election, or is unable to perform his or her duties, the moderator must appoint a moderator pro tempore. RSA 40:3; RSA 658:19.
Q: Who is the assistant moderator?
A: The moderator may appoint an assistant moderator, who must take the oath of office in the same manner as the moderator. The assistant holds office at the pleasure of the moderator and has all the powers and duties of the moderator, subject to the moderator’s control. RSA 40:3-a. An assistant moderator may be, and usually is, appointed as moderator pro tempore if the moderator will be absent.
Q: What are the principal town meeting duties of the moderator at town meeting?
A: At town meeting, RSA 40:4 requires the moderator “to preside at town meetings, regulate the business thereof, decide questions of order, and make a public declaration of every vote passed.”
Q: What is the authority of the moderator to establish meeting rules of procedure?
A: RSA 40:4 provides that the moderator “may prescribe rules of proceeding but such rules may be altered by the town.” This means that the moderator has full control over procedure used at town meetings. Actions taken and rulings made by the moderator under the extensive powers granted by this statute may not be reversed except by vote of the meeting at which the ruling is made. Exeter v. Kenick, 104 N.H. 168 (1962). Therefore, a moderator must conduct the meeting in such a way that voters who wish to do so are given an opportunity to move to overrule the moderator.
Q: Must the moderator follow Robert’s Rules of Order?
A: Strict adherence to any set of rules for parliamentary procedure is neither required nor recommended. However, the moderator may not override existing state law. Pierce v. Langdon, 110 N.H. 170 (1970). Moderating is, of course, in many ways an art rather than a science. Good moderators avoid getting hung up on the technicalities of meeting rules and bend to the political wisdom of the voters.
Q: What is the moderator’s role during the election process?
A: The moderator is in charge of the election process from start to finish, whether it is by unofficial ballot, partisan official ballot, or the non-partisan official ballot (the so-called “Australian ballot”). Upon completion of the ballot counting, the moderator files a certification of election with the town clerk that indicates the number of votes received by each candidate.
Q: What is the moderator’s role in making appointments and filling vacancies?
A: In towns that have adopted a municipal budget committee in accordance with RSA 32:14 through :24, the moderator plays a role in making appointments and filling vacancies on the budget committee if the town meeting has decided that all budget committee members-at-large are to be appointed. RSA 32:15, I (a). However, if the moderator fails to fill a vacancy within five days of being notified of the vacancy, the budget committee itself can fill the vacancy. RSA 32:15, VII. The moderator also plays a role in filling vacancies in the supervisors of the checklist. Usually, the remaining supervisors fill such vacancies, but if only one supervisor remains in office, or if none remain, such vacancies are filled by the moderator. RSA 669:64.
Q: Can the decisions of the moderator be overruled?
A: Occasionally, a moderator will make a ruling that is clearly erroneous or for some other reason meets with general disfavor by the town meeting. If this happens, any qualified voter may appeal to the meeting to overrule the moderator’s ruling. The voter is not required to give any reason for the request to overrule but should be given an opportunity to do so. The moderator is then legally obliged to poll the house to see whether or not the moderator is sustained. RSA 40:4. As with most other votes, a simple majority controls.
Q: Can the moderator be penalized if s/he does not follow the procedures for voting established in RSA Chapter 40 or by vote of the town?
A: RSA 40:6 establishes a limit on the discretion of the moderator. Any moderator or presiding officer who willfully neglects or refuses to follow any rule or proceeding established by RSA Chapter 40 or the vote of the town, including any vote to overrule the moderator, is guilty of a misdemeanor. RSA 40:6. We are not aware of any moderator actually becoming subject to this penalty, but in light of Exeter v. Kenick, discussed above, such a penalty would be applicable only if the voters had actually made a particular procedural vote or demanded a secret ballot or recount (discussed below), and the moderator blatantly ignored it. Because of the element of willfulness, it could be difficult to prove a violation in the absence of a direct challenge to the moderator at the meeting and a majority vote in support of the challenge.
Q: What is the moderator’s role in stating the intent of proposed warrant articles?
A: Moderators have no inherent power to re-word motions or amendments, but most moderators, in the interest of fairness, make some effort before a vote is taken to ascertain whether the intent and effect of a proposed vote is well understood. If there are doubts, a moderator may even make friendly suggestions for wording if this can be done in an impartial way. The moderator may also consult with the town’s attorney, if present, to resolve doubts about the legal effect of the proposed action.
Q: What is the moderator’s role in preventing disorder?
A: The moderator may command any constable, police officer, or legal voter to remove from the meeting and detain any person conducting him or herself in a disorderly manner. RSA 40:8. Police and constables are guilty of a violation for not obeying the commands and orders of the moderator for the preservation of order. RSA 40:9. No person may speak during the meeting without permission of the moderator, nor may anyone speak when any person is already speaking. Everyone must be silent at the desire of the moderator, or he or she will be guilty of a violation. RSA 40:7. In State v. Dominic, 117 N.H. 573 (1977), the New Hampshire Supreme Court upheld the disorderly conduct conviction of a selectman who, at a meeting of the select board, refused to follow the orders of the chair. The Court said the First Amendment right to free speech was not violated by an order to leave the room for failing to follow the procedural orders of the chair. The same legal principle applies to support the authority of the moderator to have disorderly persons removed from the meeting.
Q: Must the moderator honor a request for a yes-no secret ballot?
A: The moderator must conduct a secret yes-no ballot whenever five voters (three voters in a town of 500 or fewer) make a written request prior to a voice vote or division vote on the article. RSA 40:4-a. Voters must be present at the meeting to request a secret ballot vote. Most moderators have not permitted petitions signed by five voters to be submitted before the meeting, asking for secret yes-no ballots on some or all questions. The statute requires the written requests to come “prior to a voice vote or division vote on the article.” The procedure for a secret yes-no ballot is not prescribed in detail by the statute. Some towns use blank white paper, and voters are requested to print “yes” or “no.” Other towns print the words “yes” and “no” with boxes beside them in which the voters place an X. Many towns use different colored paper for each question to avoid confusion. Some towns have found it useful, to save time, to pass a “ballot box” up and down the aisles for the collection of secret ballots. Fraud is prevented by the manner in which differently-marked ballots are distributed as voters enter the hall.
Q: Can voters request that the moderator conduct a recount of a vote?
A: RSA 40:4-a permits five voters to request a recount of any vote taken by secret yes-no ballot. The request must be made immediately after the announcement of the result. If the vote margin is less than 10 percent of the total vote cast, the moderator must order the recount immediately. The voters must be present. The request need not be in writing. It should go without saying that if the moderator or other election official actually discovers a mistake in the counting of yes-no ballots, the moderator may correct the declaration of results, even after an incorrect result has been announced and even if there was no request for a recount. Felkner v. Chesley, 66 N.H. 381 (1891).
Summary of Moderator’s Role at the Meeting:
The moderator should take the following steps on each article in the warrant:
Read the article in full.
Always secure an affirmative motion and a second on the article. The motion need not be the same as the wording in the printed article as long as it is within the same general subject matter. Recognize the select board members or person(s) responsible for giving the town meeting the necessary background on the article under consideration.
Open general discussion from the floor.
After the conclusion of discussion, the motion should be restated, with a check to make sure its effect is generally understood.
The vote should be taken and the outcome announced. If the vote is to be challenged, this is the appropriate time for action.
Moderators aren’t always correct, and they can be overruled by the town meeting. Whenever a voter indicates a desire to challenge the moderator’s ruling, the voter should be recognized by the moderator and should be given an opportunity to state the rule he or she believes is applicable. The moderator should then poll the town meeting to determine whether that ruling is sustained.
Stephen Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted 800.852.3358 ext. 3408 or at email@example.com.
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