Legal Q&A: New Law Guidance

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney. 

At the end of each legislative session, municipalities must review the new or amended laws which have been put into place to understand the new legal landscape as it applies to municipal affairs. At NHMA, our Advocacy team, in conjunction with our Legal Services department, seek to summarize those changes which are the most confusing and most impactful to municipalities and provide comprehensive guidance documents to make the process of understanding these changes a little easier. By accessing the “New Laws Guidance” section of our website under the Legal Services tab, which can be found here: https://www.nhmunicipal.org/new-laws-guidance, local officials can find our detailed guidance documents on key pieces of new legislation recently signed into law by the Governor. While these guidance documents will provide a higher level of detail on these issues, this article will address some of the more frequently asked questions we have received on these topics over the past few months. 

Q. Are municipalities now required to provide explanations for each and every warrant article to be voted on at town meeting?

A. RSA 39:2 was amended this year to now require warrant articles to clearly state the intent and effect of each warrant article without “commentary or ambiguity”. It was already required by law for “the subject matter of all business to be acted upon at the town meeting to be distinctly stated in the warrant”. While the subject matter of a warrant article could inherently be different than the intent and effect of said article, it is unclear how municipalities should provide this additional information “without commentary”. 

Let us look at the following example in an attempt to provide more context to this amendment: “To raise and appropriate $5000 for the Parks and Recreation Department to construct a new basketball court”. The subject matter of the warrant article is a basketball court, and the intent is clear; the town intends to build a new basketball court. Do you also need to include an additional sentence saying, “The effect of this article will be that the town will build a new basketball court”, probably not. However, if the warrant article instead said, “To raise and appropriate $5000 for the Parks and Recreation Department to expand access to recreational activities in town”, then it may be necessary to add a clarifying sentence stating, “the effect of this article will be to allow the department to construct a new basketball court”. Perhaps, this is an example of the type of ambiguity that the legislature was seeking to avoid with this amendment. 

Q. With the changes to the electioneering statute, what are towns allowed to say about matters appearing on the warrant?

A. Under the amended language in RSA 659:44-a, the definition of electioneering by public employees has been shifted from one based on the intent of the individual to one based on the content of the communication. This shift, however, does not prevent public employees from doing their jobs and providing factual information about municipal issues, including matters that may appear on the ballot or warrant. Practically speaking, this amendment does not significantly alter the advice the NHMA Legal Services has always given as it relates to communication with the public surrounding issues to be voted on at town meeting. There is nothing wrong with educating the public about what they will be voting on, as long as it is done is a factual, content neutral, non-persuasive manner. In practice, what this means is that you should stick to the facts and avoid any statements which could be seen as advocating for people to vote one way or another. As mentioned above, it is already required for the town to explain the “intent and effect” of proposed warrant articles, and so it would stand to reason that statements related to intent and effect provided in an informational capacity ahead of town meeting are acceptable. What you should not do is indicate that people need to vote one way or another on a particular matter, or present your facts in such a way that they appear persuasive towards a particular outcome. 

Q. For local welfare, are there new residency requirements that change eligibility or municipal responsibility?

A. The town or city in which the assisted person “has residence for local welfare purposes, as defined in RSA 165:1 and RSA 21:6-a,” has financial responsibility for welfare assistance. Another municipality may actually be required to provide assistance in the first instance, but if the assisted person is determined to be a resident of another municipality, the municipality of residency may be required to reimburse the municipality that provided the assistance. The process for determining residency, and the options for reimbursement have been changed through this new legislation. Towns and cities may now amend the eligibility criteria in their welfare guidelines to require an individual to provide proof of residency prior to being approved for assistance. Documents that can be used to establish proof of residency can be found in RSA 165:1. In addition, RSA 165:2-a, II now requires that, whenever any city or town provides welfare assistance to any person who is believed to be a resident of another municipality (in New Hampshire or elsewhere), the assisting municipality shall: 

(a) Contact the welfare official for the alleged municipality of residency to seek reimbursement for the costs of relieving and maintaining the applicant; or 

(b) Request the municipality of residency undertake ongoing relief and maintenance of the person according to the municipality of residency’s welfare guidelines; or       

(c) Request a hearing to determine the residency of the assisted person (if the matter cannot be resolved through one-on-one discussions). 

If discussions do not resolve the matter, a hearing will be conducted by an agreed-upon current or former welfare official of a third (unrelated) municipality who consents to do it, or by an attorney familiar with RSA Chapter 165. The hearing will be conducted according to the fair hearing provisions in the welfare guidelines of the alleged municipality of residency, except that the hearing may be conducted by telephone or video conference by agreement of the participants. Municipalities will need to update their welfare guidelines and should reference our full guidance document for more details. 

Q. Is there a new process municipalities must follow to issue no trespass orders against problem individuals on public property?

A. Yes, a new law has established RSA 635:2-a, Criminal Trespass; Order Against Trespass on Public Property. The law establishes a newly required process for how emergency no trespass orders (NTO) are issued, when the NTO expires, and how NTOs can be rescinded, modified, or continued for a defined period. Under the new law, a governing body responsible for public property, or their designee, may issue an NTO directing a person to leave or not enter specified public property when “immediate action is reasonably necessary to protect public safety, prevent substantial disruption of governmental operations, or prevent damage to public property.” The individual subject to the NTO shall have the right to a hearing upon written request, and the request must be made no later than 10 calendar days from the date of issuance or governing body approval of the NTO. If the individual subject to the NTO requests a hearing, the governing body shall hold the hearing at its next regularly scheduled meeting. If a hearing is not held at the next regularly scheduled meeting or if action is not taken to extend the initial emergency NTO within the required 35 days, the NTO will be automatically vacated. Following the hearing requested by the individual subject to the NTO, the governing body shall issue a written decision stating whether the NTO was rescinded, modified, or continued for a defined period, not to exceed one year. The final decision of the governing body may be appealed to the superior court within 30 days of the written decision. It is recommended that the governing body or town or city manager update or adopt a policy to align with the provisions of RSA 635:2-a. Further, it is recommended that the policy should provide formal designations regarding who can issue NTOs, and a draft form for issuing NTOs.

There are many other important changes to the law that occurred this past year, most notably several land use related changes which were not addressed in this article. I highly encourage all local officials to review those guidance documents as well as reviewing the full guidance documents related to the common questions listed above.