We have been hearing all week from organizations and local officials who are very concerned about HB 111, the bill that would eliminate most if not all municipal immunity from civil lawsuits. This is one of the many bills the House will take up on April 7-9. An article about the bill has been circulating widely, and several people have sent it to us and asked whether we are familiar with the bill. 

Yes! We have been following the bill—that is what we do, after all—and the article being circulated is from our March 5 Legislative Bulletin. And we are very pleased that it is getting people’s attention. If you haven’t read it, please do, then contact your representatives and urge them to kill this bill when the House meets in early April. 

As local officials and others have talked to their legislators about HB 111, they have heard several rebuttals from the bill’s supporters. These are addressed below. 

Eliminating qualified immunity. Supporters of the bill continue to talk about the need to eliminate “qualified immunity,” a controversial doctrine that applies in a very narrow class of lawsuits—those filed under federal law for violations of a person’s rights under the United States Constitution. We’ll say this one more time:  our concern is not about qualified immunity. 

If the legislature wanted to pass a law that simply eliminates qualified immunity, it could do that. But as we have explained before, HB 111 goes far, far beyond eliminating qualified immunity. It states that in a lawsuit against a governmental “agent,” it will be no defense that the agent “could not reasonably or otherwise have been expected to know whether the such [sic] agent’s conduct was lawful,” or that the agent “acted in good faith, or . . . believed, reasonably or otherwise, that his or her conduct was lawful at the time it was committed.” 

The bill expressly preempts RSA 507-B, which shields municipalities from tort liability in some circumstances and provides damage limitations in cases where immunity does not apply. It implicitly repeals RSA 31:104, which protects local board members and other officials from liability for damages for decisions made in good faith and within the scope of their authority. In short, it makes municipalities liable for actions by their employees and officials that are taken in good faith and in the reasonable belief that their conduct is lawful. 

Passing HB 111 to eliminate qualified immunity is like shutting down all bars to prevent alcohol sales to minors. It may achieve the stated goal, but it does a lot more. 

A misunderstanding of the law. Some supporters have claimed that our concerns are based on “a misunderstanding of New Hampshire law.” Please, show HB 111 to your town attorney, or to the attorney who represents your liability insurer, and ask for an opinion. We know what they will say, because we have already done that. 

One of the problems with HB 111 is that it was written by an out-of-state advocacy organization as a model to be used throughout the country. Although there are minor modifications to try to adapt it to New Hampshire, it does not account for the several statutes and judicial doctrines that are specific to the state. 

No personal liability. It has also been suggested that municipal employees and officials do not need to worry because the bill states that individual “agents” will not be personally liable—only the municipality will be. Yes, that is an accurate statement of what the bill says. However: 

• The bill also says the individual employee/official must be named as a defendant in the lawsuit. Being sued—with all the attendant publicity and stress—is no fun, regardless of the result.
• The bill contains a strange provision that, notwithstanding any other law or any contract, the municipality may terminate the employee if the employee is found to have violated the plaintiff’s rights. 

So, yes, it’s true that a municipal employee will not be personally liable—he or she will just get sued, get plenty of negative publicity, and then get fired! That seems like small comfort. 

But for many employees, all of that is probably academic, because when municipalities start facing lawsuits for everything their employees do, the likely response will be to eliminate any programs that are considered expendable and that expose them to significant risk of liability. Thus, many municipal employees will not need to worry about getting sued for actions they take in their jobs, because they won’t have jobs. 

Many people are working to kill HB 111, and we are hearing positive responses from both sides of the aisle. It is an uphill battle to defeat a 19-2 committee report, but it is not impossible. Please contact your representatives and ask them to oppose the bill.

HB 83  would prohibit the inclusion, in any settlement agreement involving a governmental entity, of “a non-disparagement clause or other language which either prevents the parties from discussing the facts of the underlying claim or speaking negatively about each other.” NHMA and others have opposed the bill, but the House Judiciary Committee recommended it as Ought to Pass. 

Supporters of the bill have referred to non-disparagement clauses as “gag orders,” which they are not. They are contractual terms negotiated freely between two parties to a lawsuit. They can operate for the benefit of both the government entity and the other party to the litigation, and they serve the purpose of ending the dispute once the agreement is signed, rather than allowing the parties to continue to trade false or questionable claims (or true but damaging claims) about each other. 

Non-disparagement clauses are frequently an essential term in settlement agreements, and prohibiting them would take away an important incentive to settle. Removing this common settlement tool will likely lead to protracted litigation, additional legal expense, and ultimately more costs for taxpayers. 

Further, litigation settlements are often discussed and resolved in nonpublic sessions of a board of selectmen, city council, or school board; the minutes are inevitably (and appropriately) sealed, and the members of that body are prohibited by law (RSA 42:1-a) from making any of those discussions public. The other party to the litigation, however, is not subject to any such prohibition, so that party is free to make public statements—true or not—about the dispute, which the public entity has no ability to counter. That is why a non-disparagement clause may be necessary. 

In addition, various state and federal laws prohibit government entities from disclosing information that would violate individual privacy. A perfect example from the school context is the federal Family Educational Rights and Privacy Act (FERPA), which prohibits a school district from disclosing personally identifiable information about a student. If a parent files a lawsuit claiming that a school district or school employee mistreated a child, HB 83 would prevent the school district and the parent from entering into a settlement agreement that contains a non-disparagement clause. Thus, while the school district would be prohibited by federal law from saying anything publicly about the situation, the parent could make any public claims he or she wants, and the school district (and its employee) would have no recourse. 

Finally, these clauses also protect not only the litigants, but others who have a legitimate privacy interest, such as fellow employees. 

Despite these concerns, and with no public discussion, the Judiciary Committee voted 20-1 to recommend the bill as Ought to Pass. Please ask your representatives to defeat the committee recommendation of Ought to Pass and support a subsequent motion of Inexpedient to Legislate. 

Look for information in next week’s Bulletin about other bills that will be going to the House floor during its April 7-9 session.

On March 11, the President signed the American Rescue Plan Act of 2021, which is projected to allocate $194 million to New Hampshire towns (including village districts) and cities.  Treasury guidance providing the specifics about use of funds, timeframes, reporting requirements, etc., is due out 60 days from passage.  In the meantime, NHMA has established an information page which includes estimated allocation amounts, provisions of the act relating to state and local governments, and additional information about other key provisions, restrictions and information.  The page will be updated immediately as new information is received.