By Stephen C. Buckley
There are several ways voters at annual town meeting receive information on the merits of proposed warrant articles. Under RSA 32:5 certain articles with appropriations are required to state the recommendations of the governing body and the official budget committee. Towns can also require that the annual budget and special articles have a tax rate impact notation. In some instances, a voter’s guide to the warrant and warrant articles is appropriate. Here are some guidelines to keep in mind.
Q. When are warrant article recommendations required or allowed?
Different rules apply for different categories of articles:
Warrant Articles Containing Appropriations: Appropriations that are recommended by the governing body and the official budget committee appear on the proposed operating budget and the forms filed with the Department of Revenue Administration, which are posted with the warrant for the meeting. RSA 32:5, IV.
The governing body and official budget committee must also include their recommendation or non-recommendation on all special warrant articles. RSA 32:5, V. A "special" warrant article is one that proposes an appropriation and is (a) submitted by petition; or (b) an appropriation through the issuance of bonds or notes; or (c) Calls for an appropriation to or from a separate fund created pursuant to statute, including but not limited to a capital reserve fund under RSA 35, or trust fund under RSA 31:19-a; or (d) Is designated in the warrant, by the governing body, as a special warrant article, or as a non-lapsing or nontransferable appropriation; or (e) Calls for an appropriation of an amount for a capital project under RSA 32:7-a.
When an appropriation is proposed in a separate article that is not "special," recommendations of the governing body and budget committee may only appear if the voters or the governing body or the budget committee have previously adopted the provisions of RSA 32:5, V-a or RSA 40:13, V-a. Those statutes permit the inclusion of the numeric tally of recommendations by the governing body and official or advisory budget committee on any special or individual appropriations article. The "numeric tally" is the total result of the vote on the item, such as "Budget Committee recommends by a vote of 7 to 4; Selectmen do not recommend by a vote of 2 to 1."
In official ballot referendum ("SB 2") municipalities, if the operating budget warrant article is amended at the first session of the meeting, the governing body and the budget committee, if one exists, may each vote on whether to recommend the amended article, and the recommendation or recommendations shall appear on the ballot for the second session of the meeting. If a “special” warrant article is amended at the first session either the governing body or budget committee may revise its recommendations for the ballot session, however, the 10 percent limitation on expenditures provided for in RSA 32:18 shall be calculated based upon the initial recommendations of the budget committee.
Collective Bargaining Agreements: Governing bodies and official budget committees must include their recommendation or non-recommendation for any article proposing cost items of a collective bargaining agreement. RSA 32:19.
Zoning: When a zoning amendment is proposed by the governing body or by citizen petition, the article on the official ballot must include a notation that it was submitted by the governing body or by petition and a statement of the planning board's approval or non-approval. RSA 675:3, VIII; RSA 675:4, III.
Warrant Articles Not Containing Appropriations: The New Hampshire Supreme Court has affirmed the Select board’s authority to place recommendations on non-money articles, i.e., other separate articles that do not contain appropriations. Olson v. Town of Grafton, 168 N.H. 563 (2016). The Court determined that the language in RSA 32:5, V-a authorizing recommendations on “any warrant articles” was meant to apply to non-money articles as well as money articles.
Q. May we include the estimated tax impact in a warrant article?
A. As provided in RSA 32:5, V-b, town meeting may vote to require that the annual budget and all special warrant articles having a tax impact, as determined by the governing body, shall contain a notation stating the estimated tax impact of the article. The determination of the estimated tax impact shall be subject to approval by the governing body.
Q. How can we give voters additional background information about the issues?
A. Other than recommendations, and possibly tax rate impact statements, other background information may be relevant to voters' consideration of the budget and separate warrant articles. Such information may be provided in a variety of ways. The annual report, available to voters at least one week before the annual meeting, is one source of information. RSA 41:13; RSA 41:14. The town annual report includes information regarding the financial condition of the municipality, reports of officials and departments, and the proposed budget. It is also appropriate for the governing body, department heads or budget committee to present background information and answer questions about proposed articles at budget hearings, deliberative session or traditional town meeting. And, of course, any official, voter or petitioner may speak to the relevant issues at public hearings or at town meeting.
It is also common for officials to prepare and distribute a voter guide. Guides usually address each warrant article, explaining why it was proposed and providing information about the issues. Doing this properly requires a careful balance between permissible government speech and excessive advocacy.
Developments in First Amendment law have clarified that a government entity has the right to speak for itself because if it could not do so, it could not function. Pleasant Grove City, Utah, et al., v. Summum, 555 U.S. 460 (2009); Sutliffe v. Epping, et al., 584 F.3d 314 (1st Cir. 2009). It is generally acceptable for the government to use tax dollars to endorse its own existing policy measures without violating the First Amendment. Johanns v. Livestock Marketing Ass'n, 544 U.S. 550 (2005). These cases hold that governments are not required to offer equal opportunities for those who may oppose the views of "government speech." For instance, a town may be able to explain in a voter guide that an article to purchase a snowplow was proposed because the town's fleet is 20 years old, the life expectancy of a plow is 15 years and the town's mechanic predicts that at least one truck will become unusable within the next year. These are factual statements that permit voters to make a decision.
What would be clearly prohibited is for a public employee to use government property or equipment (i.e., taxpayer dollars) to “electioneer” on behalf of a budget or warrant article, which is prohibited by RSA 659:44-a. Under that statute "electioneer" means to act in any way specifically designed to influence the vote of a voter on any question or office. Providing purely factual information about warrant articles that is not specifically designed to have a voter vote in a particular way would not be improper electioneering.
Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at firstname.lastname@example.org.
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