Annual Meeting Warrants: Preparation, Voter Guides, Government Speech and Excessive Advocacy

After months of preparation, it is time to assemble the warrant, the centerpiece of New Hampshire's town meeting. Underlying this process is the fundamental rule of municipal government: municipalities may act only if there is a statute authorizing that action. Girard v. Allenstown, 121 N.H. 268 (1981). This is the key to understanding the statutes regarding the annual meeting. With that in mind, here is an update on some issues regarding the warrant.

Q. Who prepares articles and places them on the warrant?

A. Many people are involved. The warrant is assembled by the governing body, which may prepare and add warrant articles until the warrant is posted (although some articles, including those for appropriations and zoning, must comply with public hearing requirements). RSA 39:2. The governing body may place articles in any order it wishes, except for bond articles exceeding $100,000, which must appear before all other articles except those for election of officers and zoning proposals. RSA 33:8-a.

When zoning is involved, the planning board may propose a zoning ordinance where none exists. RSA 675:3, 1. Amendments may be proposed by the planning board, the governing body or citizen petition. RSA 675:3, I; RSA 675:4. During the public hearing process, the planning board may change the wording of articles it has proposed, but not those proposed by the governing body or by petition. Once the wording is final, the proposals go to the municipal clerk. The clerk, typically with assistance from the planning board, prepares the question for the official ballot using the language required in RSA 675:3, VII, and inserts a topical description of the subject of the proposed amendment. The clerk also notes on the ballot when an amendment is submitted by the governing body or by petition, and includes the planning board's approval or disapproval of the article.

The budget is prepared by the official budget committee, if any, and, otherwise, by the governing body. RSA 32:5, I. It may appear as a single proposal, a variety of individual warrant articles or a combination of the two. Individual appropriations articles may also be submitted by the governing body and by citizen petition. RSA 31:131; RSA 39:3. The budget committee may amend the budget it has proposed, but not the articles proposed by the governing body or by petition. Once the articles are final, they are submitted to the governing body for placement on the warrant.

Q. When are recommendations required or allowed?

A. Different rules apply for different categories of articles.

Appropriations: Those recommended by the governing body and the official budget committee appear on the proposed operating budget and the forms filed with the Department of Revenue Administration, which are posted with the warrant for the meeting. RSA 32:5, IV. In official ballot referendum ("SB 2") municipalities, recommendations may change after the deliberative session. In that case, the revised recommendation is printed on the ballot, but the amount originally recommended by the official budget committee is still the basis for calculating the "ten percent limitation" in RSA 32:18. RSA 32:5, V-b.

The governing body and official budget committee must also include their recommendation or non-recommendation on all special warrant articles. RSA 32:5, V. A "special" warrant article is one that proposes an appropriation and is (a) is submitted by petition; or (b) calls for the issuance of notes or bonds; or (c) calls for an appropriation to a capital reserve or trust fund; or (d) is any other separate appropriations article that the selectmen label as "special," "non-transferable" or "nonlapsing." RSA 32:3, VI.

When an appropriation is proposed in an individual article that is not "special," recommendations of the governing body and budget committee may only appear if the voters or the governing body have previously adopted the provisions of RSA 32:5, V-a or RSA 40:13, V-a. Those statutes also permit the inclusion of the numeric tally of recommendations by the governing body and official or advisory budget committee on any special or individual appropriations article. The "numeric tally" is the total result of the vote on the item, such as "Budget Committee recommends by a vote of 7 to 4; Selectmen do not recommend by a vote of 2 to 1." Roll call votes should not be included because they are not authorized by law.

Collective Bargaining Agreements: Governing bodies and official budget committees must include their recommendation or non-recommendation on the warrant with any article proposing cost items of a collective bargaining agreement. RSA 32:19.

Zoning: When a zoning amendment is proposed by the governing body or by citizen petition, the article on the official ballot must include a notation that it was submitted by the governing body or by petition and a statement of the planning board's approval or non-approval. RSA 675:3, VIII; RSA 675:4, III.

Q. May we include the estimated tax impact in a warrant article?

A. No. The warrant and/or official ballot should include only the actual question for voters and any recommendations or statements specifically required or permitted by law.

Helpfully, the N.H. Attorney General's Office issued a letter dated August 2, 2010 regarding this issue. New Hampshire's statutes explicitly describe the mandatory and optional contents of a warrant article, and "[a]nything not explicitly authorized is prohibited." Citing various statutes authorizing the inclusion of particular statements in warrant articles, the Deputy Attorney General noted that when the legislature "intends that particular information must be or may be printed on the warrant or ballot, an explicit provision requiring or authorizing that information is enacted."

In municipalities with charters under RSA 49-B, the Court has held that the charter may authorize additional recommendations to appear on the warrant and official ballot. Forsberg v. Kearsarge Regional School Dist., 160 N.H. 164 (2010).

Q. How can we give voters background information about the issues?

A. Clearly, the estimated tax impact of a proposed appropriation and other background information may be relevant to voters' consideration of an article. It may be provided in a variety of ways. The annual report, available to voters at least one week before the annual meeting, is one source of information. RSA 41:13; RSA 41:14. The town annual report includes information regarding the financial condition of the municipality, reports of officials and departments, and the proposed budget. It is also appropriate for the governing body, department heads or budget committee to present background information and answer questions about proposed articles at budget hearings, deliberative session or traditional town meeting. And, of course, any official, voter or petitioner may speak to the relevant issues at public hearings or at town meeting.

It is also common for officials to prepare and distribute a voter guide. Guides usually address each warrant article, explaining why it was proposed and providing information about the issues. Doing this properly requires a careful balance between permissible government speech and excessive advocacy.

Recent developments in First Amendment law have clarified that a government entity has the right to speak for itself because if it could not do so, it could not function. Pleasant Grove City, Utah, et al., v. Summum, 555 U.S. ___, 125 S.Ct. 1125 (2009); Sutliffe v. Epping, et al., 584 F.3d 314 (1st Cir. 2009). It is generally acceptable for the government to use tax dollars to endorse its own existing policy measures without violating the First Amendment. Johanns v. Livestock Marketing Ass'n, 544 U.S. 550 (2005). These cases hold that governments are not required to offer equal opportunities for those who may oppose the views of "government speech." For instance, a town may be able to explain in a voter guide that an article to purchase a snowplow was proposed because the town's fleet is 20 years old, the life expectancy of a plow is 15 years and the town's mechanic predicts that at least one truck will become unusable within the next year. These are factual statements that permit voters to make a decision.

However, there are limits on government speech. The Supreme Court noted in 2009 that "there may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech…." Summum, 555 U.S. ___. If the government is using "government speech" as a subterfuge to unfairly promote the private speech of an individual or group, rather than truly expressing the message of the government, then the First Amendment requires an equal opportunity for others to speak. A variety of state and federal courts have held that government officials may not spend public funds advocating or opposing a ballot measure unless they offer an opportunity for opposing views to be heard. See, e.g., Bonner-Lyons v. School Committee of City of Boston, 480 F.2d 423 (1st Cir. 1973); Greenberg v. Bolger, 496 F.Supp. 756 (E.D.N.Y. 1980); Citizens to Protect Public Funds v. Board of Ed. Parsippany-Troy Hills TP, 98 A.2d 673 (N.J. 1953). The New Hampshire Supreme Court has not decided this issue under the state Constitution. Until the issue has been clarified, municipal officials should avoid potential advocacy language in information distributed to the public.

Local officials in NHMA-member municipalities may contact LGC's legal services attorneys for more information on this and other topics of interest Monday through Friday, 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.