Selecting the Rules for Boards of Selectmen

By C. Christine Fillmore

It may be surprising that New Hampshire law says very little about the way a board of selectmen should operate. We receive many questions regarding the role of the chairperson and the rules that govern the board’s procedure. The lack of specificity in the law gives local boards a lot of freedom to define these things. However, this can also mean a board has very little guidance when faced with difficult situations. Here are a few of the questions that have arisen.

Q. How is the chair chosen?

A. In whatever way the board decides. No statute or court case explains how the chair is chosen or how long he or she serves. In comparison, land use boards such as the planning board and zoning board of adjustment are required, by statute, to elect a chair from among their members every year. RSA 673:8 and RSA 673:9.

The method of selecting a chair varies from town to town. Some towns have a tradition that the longest-serving member or the one whose term expires next is the chair. Others elect a chair at the first meeting from among all members. No matter how the chair has been chosen in the past, a board may vote to change the method. A board may also vote to change which selectman is the chair at any time.

Q. Are there any rules to guide the board in how it should do this?

A.Two major statutes guide the board in everything it does. The first is RSA 41:8, which says “[a] majority of the selectmen shall be competent in all cases.” In other words, a board of selectmen may take action only by majority vote. As is often said, a single selectman has no authority. The second critical statute is RSA Chapter 91-A, New Hampshire’s Right to Know Law. It requires the board to conduct any official business at a properly held meeting. RSA 91-A:2.

This means a chair should be chosen in the same way that all other official business is conducted by the board: at a properly held public meeting, by majority vote.

Q. Can the chair vote?

A. Yes! As a member of the board, the chair has the same right as the other members to participate in debate and to vote. The chair of a board of selectmen is not the same as a town moderator, who is chosen to preside over a large legislative body and, ordinarily, does not vote except to break a tie or by secret ballot. Each selectman on a small board of three or five members was elected to participate in debate and to vote, and the fact that one of them was chosen as chairperson does not deprive him or her of that right. 59 Am.Jur. 2d. Parliamentary Law, §4. The chair should be able to do this while overseeing the business of the board in a fair manner. In addition, if the chair does not vote, often there will be an even number of members voting on an issue. Boards are designed to have an odd number of people to reduce the potential for a tie.

Q. What is the role of the chair?

A. Generally, to preside over the board and see that business is conducted fairly, openly and efficiently. The chair should maintain order. State v. Dominic, 117 N.H. 573 (1973). However, it is only the will of the board, expressed by majority vote, that is binding on the board. The chair cannot arbitrarily overrule the will of the majority. See RSA 41:8.

The chair should balance his or her full participation in debate and voting with the duty to conduct the board’s business fairly and efficiently. Different viewpoints should be permitted, and constructive discussion should be encouraged, but the business of the board must continue. If any person refuses to come to order or yield the floor, the chair has authority to order that person to leave and may ask a law enforcement officer to assist. State v. Dominic, above (a selectman was properly removed from a selectboard meeting and convicted of disorderly conduct after refusing to come to order). Removal does not violate that person’s freedom of expression because the chair has a duty to maintain order and to protect the rights of others to speak in an orderly manner. State v. Dominic, above; State v. Albers, 113 N.H. 132 (1973).

Q. What about calling meetings, setting agendas and other decisions that must be made between meetings?

A. The chair has only as much authority as the board votes to give him or her. Some boards have rules providing that the chair calls meetings and sets the agenda. Other boards permit any member to call a meeting, and all members contribute to the agenda. In any case, the board as a whole may vote to change these rules at any time it sees fit.

However, the chair (as a single selectman) has no authority to act on behalf of the board between meetings unless the board has voted at a properly-held meeting to delegate that action to the chair.

Q. What rules of procedure guide the board of selectmen?

A. There are no statutory procedural requirements for conducting ordinary business other than those in RSA 41:8 (a majority is required to take action) and RSA Chapter 91-A (official business must follow public meeting requirements). Unlike land use boards, which are required by statute to adopt formal rules of procedure, boards of selectmen are not required to adopt such rules. See RSA 676:1.

However, without at least some procedural rules, it can be difficult for boards to operate efficiently. Selectmen come from a variety of backgrounds and may be used to different procedural rules. For example, the rules governing the State legislature, Rotary Club, religious organizations, nonprofit boards of directors, fraternal organizations and other groups can differ in complexity and formality. Adopting a single set of rules can help board members and the public know what is expected and how to accomplish things quickly and fairly.

A board may choose any rules it finds appropriate so long as they do not conflict with the law. For example, RSA 41:8 says that a majority vote is required for the board to act. Local rules cannot change that.

Robert’s Rules of Order are not required, nor are they particularly useful for municipal boards. For one thing, they are extremely complex. The current 10th edition is more than 700 pages long; the official “brief” version is more than 200 pages. It is also a challenge to be sure everyone is using the same version. Because some of the earliest editions are no longer protected by copyright, they have been revised and republished by a variety of writers under confusingly similar titles. Robert’s Rules are also written with private organizations in mind rather than smaller municipal bodies that meet in frequent public sessions. More useful, but at over 700 pages still far more complex than necessary, is Mason’s Manual of Legislative Procedure. It is used in most state legislatures and is geared specifically toward large public bodies.

Simple, straightforward rules are best. Their purpose is to facilitate the orderly and convenient conduct of business. They might address things like meeting times, who calls meetings and how it is done, setting the agenda, simple rules regarding motions, discussions and voting, and rules for maintaining order during meetings. It can be useful to remember that the rules are there to help the board accomplish its goals, not to confuse or impede the process.

Once rules have been adopted, it is a good idea to follow them consistently and fairly. However, local rules (unlike the law) may be amended, waived or disregarded by a majority vote of the board. Richardson v. Union Congregational Society of Francestown, 58 N.H. 187 (1877).

Q. Does the board have to allow public comment at meetings?

A. In most cases, no. The only time public comment is required is during a public hearing, when parties whose rights may be affected have the right to be heard. For example, if the board conducts a public hearing for the layout of a new public road, the owners of the land over which the road will pass have a right to be heard. RSA 231:11. When the selectmen hold a public hearing to consider buying or selling land, or accepting unanticipated grants, any member of the public who wishes to speak should be allowed to do so. See RSA 41:14-a; RSA 31:95-b.

In contrast, the general public has no right to speak at an ordinary selectmen’s meeting. Meetings must be open to the public, but the right to attend is not the same thing as the right to speak. See RSA 91-A:2. Unless the board decides otherwise, the only people who may speak at a selectmen’s meeting are the board members and other people invited or permitted to speak by the board. Use caution, however—if public comment is permitted, the First Amendment right to free speech may be triggered. For more information on that subject, please see the article “Public Meetings and Freedom of Speech: When Do Citizens Have a Right to Speak?” published in the March 2009 issue of New Hampshire Town and City magazine.

Christine Fillmore is staff attorney with the New Hampshire Local Government Center's Legal Services and Government Affairs Department. For more information on this and other topics of interest to local officials, LGC’s legal services attorneys can be reached Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384.