"Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.
Alexander Hamilton

Saturday, February 20, 2016

Fair Notice to Voters: The Agenda for Town Meeting

Town meeting is just three short weeks away. The Town warrant is just about set , the budget has been proposed and the time to debate and vote is almost upon us.
The warrant is really nothing more than an agenda for what will be on the table at Town meeting.

Can the legislative body amend warrant articles? The answer of course is yes, with some conditions. What you cannot do is add new subject matter to the warrant. Amendments which add some brand new subject matter or  adds a new purpose to an article that did not originally have one, violates the law. An amendment can also be illegal if it requires the governing body to do something in a way that the law does not allow.

RSA 39:2, states in part "The subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant, and nothing done at any meeting, except the election of any town officer required by law to be made at such meeting, shall be valid unless the subject thereof is so stated" i

This year there is Article 2  which is seeking a long term bond and the rules are a bit more complicated. The NH Municipal Association has this to say about bond warrant articles:( words in bold are mine)

"The procedure for authorizing long-term borrowing must comply with RSA 33, the Municipal Finance Act. Towns must be particularly careful to avoid errors. As the DRA puts it, “The major lending institutions, through their bond counsel, will examine the process to be sure it is not faulty.” 2012 Suggested Warrant Articles, p. 5. Bond articles for amounts in excess of $100,000 require a public hearing with newspaper publication of a notice of “the time, place and subject” of the hearing. Thus, any amendment to a bond article must satisfy not only RSA 39:2, but must also not change the “subject” for purposes of RSA 33:8-a, I. There are no Supreme Court cases on the scope of permissible amendments of a bond article. Given the level of scrutiny, amendments to bond articles should be treated conservatively. Check with bond counsel if an amendment is anticipated."

The 2016 Town Warrant can be found here.


Anonymous said...

Amendments to Article 2 should be anticipated. Will bond counsel be present at Town Meeting? If not, why not?

Joseph Cormier said...

Not disagreeing ... but clarifying, what blogger says is state law.

"4. There’s No Such Thing as an “Illegal Vote.”


by H. Bernard Waugh, Jr., then NHMA Legal Counsel

There is no such thing as an "illegal amendment". So don't be afraid to amend. There are amendments that are non-binding (advisory), and there are amendments that are unenforceable, that the Superior Court will find non-binding. See links for references from the NH Municipal Association and Statutes. An important clarification by NHMA attorneys is this: "So while the general subject matter of a warrant article must be clearly stated in advance, there is no language in the statute limiting what actions the voters can take with respect to an article."

"Q. By what authority can town meeting voters amend warrant articles?
A. RSA 39:2 states in part, “The subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant, and nothing done at any meeting …. shall be valid unless the subject thereof is so stated.” So while the general subject matter of a warrant article must be clearly stated in advance, there is no language in the statute limiting what actions the voters can take with respect to an article.

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.


"The authority of town meeting voters to amend warrant articles has been recognized at least as far back as 1875 when the New Hampshire Supreme Court ruled in the case of Pittsburg v. Danforth, 56 N.H. 272, "

Blogger's point is well taken, however, regarding Article 2. I'll be motioning an amendment to Article 2, giving a "bigger say" to the voters on what is going to built. It will only come into play, if the bond AND Community Center are approved. If they are not approved, the amendment dies as well. The amendment is subordinate to the bond/center vote, BUT, ... directs the governing body, ... on how to come up with the final build plan, by having public input, be binding aspects of the build, and not "taken under advisement".

I've already submitted a draft to the Town Moderator. My email is feeddeer2@gmail.com. I'll forward, if anyone is interested.


...and more!

Moultonboro Blogger said...

To clarify: Amendments can be proposed. Whether the warrant article amendments are approved is up to voters present. As to bond counsel, as we discussed a few weeks ago, we are hopeful he will be able to attend. Town counsel will be present.

Moultonboro Blogger said...

There is only one vote, which is for the bond and requires a 2/3 majority. There is no " and." If it passes, it allows the BoS to pursue a bond in the stated amount to construct a community center at the location defined.

Anonymous said...

It would seem prudent for the Selectmen to require the presence of bond counsel. Town counsel does not cut it for Article 2. we should not be faced with a discussion about what an absent bond counsel might think about an Amendment

Joseph Cormier said...

It is not a vote on the bond article. It is a vote on Article 2 which can be amended.

The reason many of us were looking for the wording of the article. The Community Center did not have to be part of the Article. It could have been separate and only needed a majority vote(of 1).

I intend to motion before the vote, to amend Article 2 as follows (draft, subject to change)

"... ... and if there is affirmative vote on the bond, and an affirmative vote on the building of a Community Center, the legislative body directs the governing body to hold at least five (5) public forums; two (2) in April, two (2) in May, and one (1) in June, to be noticed at least on the front page of the town website, at least two days before the forum, for the purpose of public input to decide the final plans of the Community Center. The forums are to include a vote, tally, and recording of yes or no votes, by those present, of the Community Center building plan proposals, presented. Proposals will be references to building plan matter and site only. A show of hands will be adequate to establish a majority vote. The final forum will establish the proposed building plan. The final forum will be established by the governing body and may be after the five stipulated, here. The governing body will summarize the votes of the forums, factor them into the plan, and declare the will of the people based on the documented tallies, to pursue a contract, to build the Community Center, and to act as agents to expend funds accordingly."

If the legislative body votes yes, there will be one vote ... for the bond, the Community Center, and how to firm the build plan.

The bond attorney and town counsel can get a Superior Court ruling right now. The court will probably expedite. The attorney's will "advise", but with no case law, their "opinions" will be suspect! Their opinions are just that, opinions.

Anonymous said...

Why don't we first get a sense of meeting vote. Yes or no on the article as it stands before all the gyrations?

Anonymous said...

"It is not a vote on the bond article. It is a vote on Article 2 which can be amended."
Confused here Joe. You see, Article 2 is for a bond. Can't amend it to not be for a bond. As the Beatles sang "Let it be"

Legal Eagle said...

IF I were the BoS, I would tell the Moderator not rule any amendment out of order, because any proponent will have standing to challenge a negative ruling to the Superior Court if the Bond Amendment is voted in the affirmative and it is quite likely the Court will require a vote on the amendment and the underlying Article.

Joseph Cormier said...

"Why don't we first get a sense of meeting vote. Yes or no on the article as it stands before all the gyrations?
February 20, 2016 at 8:47 PM"

The "sense of the meeting", after 10 years, is a non-sequitur. This has been presented by the BoS, and rightfully so, as an up or down vote on the gym/Community Center. What more sense is needed? Another mistake of the past.

What are you voting on, with the article as is! "Will take under advisement" for the build? I've heard judges use those words, but votes are not advisement.

One vote ... all or nothing. Article 2, as is, votes on a bond OR a note, and the Center that has never been defined. The proposed amendment only requires citizen input in the build plan, with the up/down vote.

Article 2
"To see if the Town will vote to raise and appropriate the sum of Six Million Four Hundred Ninety One Thousand Dollars ($6,491,000) for the design, engineering, construction and equipping of a Community Center ...""... to authorize the issuance of bonds or notes ..." Can a swimming pool be put in? How about five swimming pools? Where are the racquetball courts? Four Rec. Dept. offices ... really!

"Confused here Joe. You see, Article 2 is for a bond. Can't amend it to not be for a bond.
February 20, 2016 at 9:48 PM"

Article 2 is for a bond OR note issuance, a Community Center, with all of the inclusions. There's nothing after that, preventing the BoS from being the only deciders.

Yes, the bond can be amended. It could be amended to $1 million or $10 million, or some other number. Some might use that as an amendment to defeat.

The proposed amendment only requires, that the BoS include the public input, if any, at public forum. Nobody can then state, the "design team" (?) was the sole input. Article 2, is not for a bond. It is for more than the "issuance of bonds or notes..."

How do you know there won't be an amendment to separate the bond/note from the Center. Is there a lawyer out there, that says that it is illegal? Step forward, and be challenged!

If the proposed amendment is voted down, there will still be a vote for the original article. There won't be any chance for an amendment after a vote on the "as is" Article 2. As soon as there's a final vote for that, there will be someone (maybe me) running to the mike and motioning for a "restrict reconsideration" vote. It will pass. There will be no amendments after (maybe 7 days later). Therefore, the need to make it before and part of a vote.

Why not allow public input on what is going to be built. NOT if is going to be built!
The propose amendment has nothing to do with voting yes or no on the bond or building the Center. It only stipulates more debate/decision on the the build plan, till June. After that, let the BoS pursue the contract to build and the money to expend.

Moultonboro Blogger said...

Joe, my hope and speaking only for myself on this issue, is that we have a clean final vote and not muck it up so that it doesn't get decided and we are back at it again next year. You are of course free to make any proposed amendments to any warrant article. I disagree that the center has not been defined. It most certainly has in terms of the functions and location. With very limited funds, a lot was accomplished to get it to this point. The BoS have stated repeatedly that the final design process will directly involve the public. Of course the public will have input into what is being built.

What seems to be lost is that the so called design team was not really a design team. It was presented and approved by the BoS to do a financial study so that we could bring to the public a real cost for this project. You can't do that without a plan for what the building will contain. We did precisely what we set out to do. I sense some paranoia out there that there were these secret design sessions. Nonsense. If anyone paid attention, they would know that the plan would include all the elements of the BRC recommendation and the BoS directive to pursue it as a community center. The final look and shape of the building are irrelevant to me.

I am a big proponent of the Kiss principle. Most things work best if they are kept simple. In the end, it is a bond article to fund construction of a community center in a specific location, a location determined 18 months ago. If the article passes, I would expect that the Town will meet with the planning board informally and then as we have stated publicly, determine how to proceed and who to engage in the creation of a final design to create construction documents. The Bos have not had the conversation yet as to how the final design will be achieved , but I do know that if a committee is appointed, we will follow the RSA's in terms of meeting requirements.

Joseph Cormier said...


I'm actually in agreement with most of what you say. You personally, have put in a great deal of effort on this, and on many other issues.

The point is there's is distrust in this town (not you) about past endeavors regarding, especially the gym/Center. I've only been involved recently, and can't believe the rancor.

My intention is give a resolution that a process, other than "appointed" committees, that may appear to be composed of "the same faces," and may be viewed as "stacking the deck. There are some members of the BoS that should recuse themselves from gym votes, due to their passion, for whatever reason (not you). Why "appointed committees"? Why don't these committees bring possible options to the public, instead of just the BoS.

Yes, I am also familiar with the legal, Prudential Affairs Doctrine. I've also heard the comments from BoS "Because we were elected"! (not you). RSA 91-A is a none issue, for me at least.

I'm not challenging the site nor the building presented. I'm motioning for a legal process to determine the final outcome of the building.

The statutes and assigned duties of legally recognized Boards are without question to be followed.

I'm very very familiar with the KISS principle. It is a dogma in the private sector ... not so much in the governmental sector.

You should not expect to meet with the planning Board informally ... but formally.

I'm cognizant of past committees, and past BoS, and present BoS, and past reports ... ad nausea. Notwithstanding all of that, whether they were biased or not is not the point. The town meeting is the only day of the year the legislative body can direct the governing body and expect it to follow the vote.

I also thank you for rebuttal space on your blog. I realize it is your blog and you do not have to post. I feel we have a friendship, but that doesn't mean we can't disagree on some issues.

I'm may not be a trusting person, but I am a cautious person.

Regarding confusion. Anybody that can get through Article 2, as written, shouldn't have a problem with an amendment that "directs" the governing body to an addition of public input into the plan. That makes it legally above board and legally binding. There is still flexibility for/how the BoS to implement.

Anonymous said...

I am confused about the impact of Article 2, if adopted, on the tax rate. The FAQ on the Town Web Site states that: "How does that affect our long term financial stability i.e. tax rate? The impact on the tax rate will be
neutral once the current school bond is retired in 2018. The estimated operating cost tax rate impact of
the new facility is $.06/1000."

However, the Bond Comparison contained in the Community Center Financial Study and Recommendations shows the impact of a 10 year bond at 29-24 cents annually and a 15 year bond at 21-16 cents annually. Does this mean that if Article 2 is not adopted, and other things being equal, that the tax rate would go down on retirement of the 2018 bond. If the answer is yes, then how much would the tax rate go down?