On the morning of July 12, 2023, two members of the Town of Warner’s three-person select board sent resignations via email to the other member, the Town Administrator, and the Assistant. Under RSA 669:63, when a vacancy arises in a select board, the remaining members have the power to appoint a replacement if they comply with RSA 41:8 and act with a majority. However, the one remaining member, Harry Seidel, was not a quorum by himself. In such cases, under RSA 669:63, where the select board cannot appoint a replacement to fill a vacancy, “the superior court or any justice thereof, on petition of any citizen of the town, and after such notice as the court shall deem reasonable, may appoint a suitable person to fill the vacancy.” Later that same day, town officials approached the members who resigned requesting that they briefly return to the board for a meeting to create a quorum and help Seidel appoint a replacement member; after some deliberation and the near appointment of a new member Seidel decided to instead file a petition for a court appointment. On July 18, Seidel held a public meeting to give notice of the petition and date of the Superior Court hearing, at which Frost and Sloane gave notice that they were both rescinding their resignations and they subsequently moved to intervene and to dismiss Seidel’s petition.
Under common law, resignations became binding when accepted by some authority; Frost and Sloane each stated in their emails that their resignations were “effective immediately.” In this instance, there was no “authority” that had time to formally accept the resignations before Seidel petitioned for Superior Court action. It is accepted practice to interpret statutory language congruent with its plain and ordinary meaning. RSA 652:12 defines a vacancy as an elected official leaving their position prior to the completion of their term and lists a variety of circumstances that would create a vacancy; however, the statute does not state that a vacancy depends on an authority’s acceptance of a resignation. The Superior Court chose to interpret “resign” as “give up deliberately” and “resignation” as “formal notification of relinquishment” of a position. There is no provision in New Hampshire law or Warner ordinance that predicates effective resignation on acceptance in the case of select boards, though some laws exist to regulate other public offices’ resignations.
Because New Hampshire law differs from the common law regarding public office resignations, Frost and Sloane’s resignations were effective upon delivery, not upon acceptance, and thus Frost and Sloane could not just rescind their resignations; if they wanted to rejoin the select board, they would need to be elected or appointed to fill a vacancy. If New Hampshire did require acceptance of resignations, without a quorum, the select board could not lawfully accept the resignations anyway. In that event, any citizen of Warner would have had the power to petition the court to appoint a replacement.
Ultimately, the Superior Court denied Frost and Sloane’s motion to dismiss and granted Seidel’s petition to appoint Minton to the Warner Select Board.