Legal Q&A: Be Aware of Traps at Town Meeting

You've reviewed the calendar, looked at the warrant, and booked the room. Notices are ready to post, the budget is almost ready, and everyone is gearing up for what promises to be a great annual meeting. We hope that it is! However, even the most experienced local officials miss something now and then. Here are a few traps of which to beware, both golden oldies and new ones.

Q: We have a traditional town meeting. This year, we have several bond issues to deal with, each of which requires ballot voting for an hour. Do we really have to wait an hour for each one, or can we move on with the next item?

A: The polls must remain open for at least an hour, but other business can be conducted during that time.

The moderator must continue to accept ballots on each bond or note article for at least one hour after the discussion on that article has ended. A separate ballot box must be provided for each bond or note article to be voted upon. RSA 33:8; RSA 33:8-a. This does not mean that other business cannot be transacted during the hour the polls are open, but it is recommended that the moderator wait until the bulk of the voters present have gone through the line before moving on to other business. Another option is to discuss all of the bonds first before opening the balloting so that the one-hour required periods overlap.

Do not, under any circumstances, close the polls on a bond vote in less than an hour. As one town learned the hard way in 2012, the statute means what it says. Closing the polls on a bond vote in less than 60 minutes violates the law even if the voters approve a motion to end voting earlier.

Q: Can the voters or moderator rule that a majority vote is sufficient to pass any article?

A: No. Voters and moderators may do a lot of things to affect the process of town meeting, but this is not one of them. For most articles, a simple majority vote is all that is required; when the law does not specify, it is usually safe to assume a majority is sufficient. However, a supermajority vote is required by statute in some cases. The statute always controls.

For example, a two-thirds vote is required for certain items, including:

  • Authorizing or rescinding bonds or notes (except tax anticipation notes). RSA 33:8.
  • Changing the purpose for which bond proceeds may be spent. RSA 33:3-a.
  • Changing the purpose, the source of revenues, or the amount of revenues to be deposited into a special revenue fund. RSA 31:95-d, V.
  • Changing the purpose of a capital reserve fund or trust fund. RSA 35:16; RSA 31:19-a, III.
  • Acquiring or establishing a municipal utility (or ratifying a contract for acquisition, maintenance or operation of a utility plant). RSA 38:4; RSA 38:8; RSA 38:13.
  • Altering town lines after being authorized by the Legislature to do so. RSA 51:9.
  • Approving a zoning amendment after a protest petition has been properly submitted. RSA 675:5, I-a.

In official ballot referendum (SB 2) towns or districts, some of these votes must be three-fifths instead of two-thirds:

  • Authorizing or rescinding bonds or notes. RSA 33:8.
  • Changing the purpose for which bond proceeds may be spent. RSA 33:3-a, II.
  • Adopting or rescinding the official ballot referendum system. RSA 40:14.

In addition, the adoption of a tax/spending cap in either a traditional or official ballot referendum town or district requires a three-fifths vote. RSA 32:5-c.

To be safe, it is best to check the statute whenever there is a question. Moderators may find it helpful to keep a list of the issues requiring a supermajority on hand at the meeting or deliberative session to avoid mistakes.

Q: When counting votes, do we look for a majority, two-thirds or three-fifths vote of those registered to vote, or those present and voting?

A: Votes are counted on the basis of those present and voting. Thus, in a town with 4,000 registered voters, if 1,000 of those people actually vote at a specific annual meeting, then a passing vote is either 501 (simple majority), 667 (two-thirds), or 601 (three-fifths).

Q: How much can voters at a traditional meeting change an article by amendment?

A: The simple answer is that if an amendment adds a new purpose to an article or adds an appropriation to an article that did not originally have one, it has gone too far and violates the law. The reason for this is RSA 39:2, which requires that "the subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant." This is where the warrant gets its name; it "warns" the voters of what they will be asked to do at the meeting.

So, for example, an article proposing to appropriate $100,000 to rip out, regrade, and repave Oak Street could be amended to change the scope or impact of the purpose (perhaps only repairing half of Oak Street instead of the entire length), or to change the amount of the appropriation (increase or decrease). However, changing the article from repairing a road to repairing the town hall would introduce an entirely new purpose and would not be permissible. Similarly, if the original article proposed "planning for" the repair of Oak Street but did not include an appropriation, changing the article to authorize the actual repair and add an appropriation into it would be illegal. Voters must be warned in advance (by the posted warrant) of all the purposes they will be asked to consider, and of all the money they will be asked to appropriate.

Q: I've heard that the law regarding amendments has changed recently for SB 2 towns and districts. Is this true?

A: Yes. The law has evolved quite a bit over the past few years.

On the surface, the first ("deliberative") session of an SB 2 meeting has the same ability to amend warrant articles as that of a traditional meeting. Articles may be moved, debated and amended, so long as all of them appear in their final form on the ballot the voters will be given on the date of the second session. RSA 40:13, IV(b). The only articles that cannot be amended by the deliberative session are those with wording prescribed by law, such as zoning amendments. RSA 40:13, IV.

One of the obvious consequences of this system is that it gives opponents of any issue a strategic advantage. Those who want to say "no" only have to do it once, either by altering the article at the first session, or by voting "no" at the second session. Those who are in favor of an article, on the other hand, must attend both sessions and say "yes" twice. The traditionally low attendance at deliberative sessions creates some additional tension about the deliberative session's power to amend articles.

Over the past four years, New Hampshire courts have had ample opportunity to decide how far the deliberative session may go. We now know that every article must appear in some form on the ballot, which means that no articles may be completely deleted by the deliberative session. After a few years during which it became the fashion to amend articles by deleting everything except the first two words (the "to see" method), the Legislature changed RSA 40:13 to prohibit this practice. The new subsection RSA 40:13, VI© reads, "No warrant article shall be amended to eliminate the subject matter of the article. An amendment that changes the dollar amount of an appropriation in a warrant article shall not be deemed to violate this subparagraph."

Last year, the Rockingham County Superior Court decided that this statute prohibits amendments which in any way render an article meaningless. At issue in the case was an article which had been amended by the first session to make it negative. Originally asking voters if they wanted to establish an official budget committee, the article as amended asked if they did not want to do it. No matter how people voted on this question, an official budget committee would not be established. This, the court said, went too far; "… any amendment that made the subject matter of the article a nullity was forbidden." Bailey v. Exeter, No. 218-2011-CV-203 (Rockingham Cty. Sup. Ct., 5/27/2011). Although it was not appealed to the New Hampshire Supreme Court and is binding only upon the parties in that case, the opinion may be persuasive and has implications for all SB 2 jurisdictions. In the universe of potential warrant article amendments, it is difficult to know exactly which ones may be found to render an article "meaningless," or even what that word means. The only certainty after this opinion is that further developments in this area are likely.

Q: Are there any warrant articles that may not be amended by voters?

A: Yes. Articles whose wording is set by statute should not be amended in any form of town or school district meeting. This is simple for traditional meetings in the case of zoning amendments and other articles which must appear on the official ballot, because they are voted on along with election of officials before the business session of the meeting begins. The vote is simply "yes" or "no" for these articles. The law also specifically prohibits the deliberative session of SB 2 meetings from amending any article whose wording is prescribed by law. RSA 40:13, IV(a).

However, where specific wording is prescribed by statute, the law does permit some slight variation. RSA 31:130 provides that the prescribed wording of enabling statutes is "advisory only" and a vote will not be declared invalid if slightly different wording is used "so long as the action taken is within the scope of, and consistent with the intent of, the enabling statute or statutes."

Q: What if the meeting does something the law prohibits?

A: The moderator, governing body and town attorney can do their best to instruct the meeting on the consequences, but in the end, the voters can overrule the moderator and do as they wish. RSA 40:4, I. If their actions violate the law, the result may be an article which passes but is unenforceable. If the article involves an appropriation, the Department of Revenue Administration has the authority to invalidate any appropriation that was illegally approved. RSA 21-J:35, III.

If a moderator, governing body or other local official is concerned that the meeting has approved something illegal in purpose or procedure, it is advisable to check with the town or school attorney and/or the Department of Revenue Administration immediately. In some cases, a mistake can be corrected. For instance, if the meeting approved an otherwise legal article but the procedure used was defective (the warrant was posted a day late, the required public hearing wasn't held at the right time, etc.), the law permits the governing body to hold a special meeting for voters to ratify the procedurally defective action. RSA 31:5-b.

In other cases, an article cannot be fixed and should not be implemented. If, for example, an ordinance was approved for a purpose not permitted by law, enforcement of that ordinance may result in a court challenge and ultimate invalidation of the ordinance.