LEGAL Q&A: Alternates Alternatively

Natch Greyes, Municipal Services Counsel

Alternates are a necessary, if often overlooked, part of most boards. When insufficient regular members of a public body are available to constitute a quorum due to absence or recusal, alternate members can step in and temporarily fill the gap in board membership.  It’s a good practice to have board alternates appointed and be ready serve when needed.

Q:  How do we know how many alternates are assigned to each board?

A: Generally, the statutes prescribe how many alternates are allowed for each board, as well as the selection process. For example, Planning Boards, Zoning Boards, Historic District Commissions, Heritage Commissions, Agricultural Commissions, and Housing Commissions all are allowed up to 5 alternates according to their respective statutes. RSA 673:6, 673:4, 673:4-a, 673:4-b, 673:4-c. .

Other statutes provide for alternatives for other boards. For example, for libraries, RSA 202-A:6 and RSA 202-A:10 together inform that library trustees may have three alternates.   RSA 289:6 provides that the board of cemetery trustees “may recommend to the appointing authority the names of no more than 2 persons who may serve as alternate members on the board. The alternate members shall be appointed to one-year terms.”  Under RSA 31:22 the select board can appoint 2 persons who may serve as alternate members on the Trustees of Trust Funds, who would be appointed to one-year terms. 

Q: How are alternates chosen?

A: Again, the statutes will specify. However, generally, either the board itself or the governing body (i.e. the select board) will chose alternates. If it’s the governing body, the board itself usually has a responsibility to nominate individuals for the position.

Q: Do alternates take an oath of office?

A: Yes, RSA 42:1 states, in relevant part, that “[e]very town officer shall make and subscribe the oath or declaration as prescribed by part 2, article 84 of the constitution of New Hampshire.” That would include all alternates to boards as well as all regular members.

Q: Are alternates required to attend every meeting?

A:  Alternates are not required to attend every meeting, but it is good practice for them to try to attend all meetings. What good is filling in when elected members of the board are unable to attend a board meeting, if the person filling in has no idea what the board has been working on? It is better practice for alternates to attend every meeting and be familiar with the issues on which the board has been working.  

Q: At a board meeting are alternates considered just a member of the public except when serving in place of an elected trustee?

A: Alternates only fill in when elected members of the board are unable to attend a board meeting. See, e.g., RSA 202-A:10. Therefore, they are not technically board members when not serving in place of a trustee, but keep in mind that the public may know that they are alternates and believe – wrongly or rightly – that they have some extra influence on the board as compared to the general public. There is nothing much that can be done about that, but boards should be careful to ensure that they take pains to avoid even the appearance of conflicts of interest. This could come up if an issue is debated with public input where an alternate not participating as a board member voices a strong opinion for or against the issue, the board decides to wait to vote on the matter until the next meeting, then, at the next meeting, the board finds that it needs to pull an alternate from the audience onto the board to fulfill the quorum requirement. The alternate who has not voiced an opinion is a better choice than the one who has voiced an opinion because, as NHMA constantly cautions, board members should try to limit expressing their opinions on matters pending before the board to board meetings. While this may not be as big an issue on legislative-type matters, it is a serious concern for quasi-judicial matters where the two sides appearing before the board are entitled to an impartial arbitrator of justice.

Q: When can alternates speak or participate at a board meeting?

A: Alternates who are participating as substitutes for board members who are not present are both literally and figuratively sitting in the seats of those absent board members. Therefore, they are entitled to the full rights of any other board member.

Q:  What are the rules governing meeting participation by alternates on land use boards?

A:  An alternate member of a local land use board may participate in meetings of the board as a nonvoting member pursuant to rules adopted under RSA 676:1.  This provision was put into the law a few years ago was that some boards were allowing their alternate members to participate in land use board discussions, and there was disagreement about whether this was appropriate. At the legislature, no one could agree on what the rule should be, so it was decided to leave it to each board to put it in the rules.

Q: When can alternates vote?

A: Alternates can vote only when they are serving in place of a full board member. Otherwise, there would be no difference between alternates and full board members.

Q: Can an alternate be elected as an officer of the board? Such as Treasurer or Secretary?

A: No. Alternates only serve when a full board member is absent. They cannot be an officer of the board because the full board may be present, in which case the alternate is not entitled to participate.

Q: Can alternates attend a non-public session?

A: A board may choose who to invite into nonpublic session entered into under RSA 91-A:3. While it is permissible for the board to invite non-board members, including alternates into nonpublic session, boards would be wise to consider whether that is appropriate. In most cases, it is best to limit nonpublic session to the then-existing board. (Note, of course, that disclosure of the discussion of nonpublic session by any officer of the municipality is a violation of the Oath of Office according to RSA 42:1-a, II and it would be proper for the municipality to file a petition in Superior Court to ask for the person to be dismissed from his/her position as an officer of the municipality).

Q: Can an alternate serve on a board approved committee?

A: Committees created by a board are composed of whoever the board decides to appoint. Frequently, it is case that mixed committees, composed of board and non-board members, can assist a board. Therefore, it is perfectly permissible for the board to appoint non-board members, including alternates, to the committee.

One thing boards should keep in mind, however, is that any board approved committee is subject to the Right to Know Law, RSA 91-A, and the board should take care to both inform the committee of the requirements of that statute and ensure that the committee is following that statute.

Q: Can an alternate “speak” for and/or represent the elected trustee board? Such as at a budget hearing, etc.

A: The board may appoint whoever it likes to represent it before other boards. The preference, of course, is a full board member, but there may be circumstances where that is not possible or advisable. If that is the case, it is perfectly permissible for the board to take a vote to appoint someone else, including an alternate, to speak for it before another board or committee.

Q: What are the steps to be taken to permit the appointment of alternates to serve on an appointed (not elected) local land use board?

A:  RSA 673:6, I(a) governs the appointment of alternates to an appointed local land use board. It states “[t]he local legislative body may provide for the appointment of not more than 5 alternate members to any appointed local land use board, who shall be appointed by the appointing authority.” Thus, the town meeting must authorize the select board to appoint alternates, and it may authorize up-to-5 alternates for an appointed land use board. Such authorization would have to come through a warrant article. For example, a warrant article approving the appointment of alternates to a Zoning Board of Adjustment would be worded as follows:

To see if the town would vote pursuant to RSA 673:6 to permit the Select Board to appoint up to five (5) alternate members to the Zoning Board of Adjustment. 

Such an article would not be put on the official ballot (unless the town had adopted SB 2) and would appear on the warrant for the business meeting of your town meeting.

Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.