The Senate Judiciary Committee will hold a hearing this coming Monday, May 10, on an extremely important amendment that affects the confidentiality of municipalities’ communications with their attorneys. We are asking local officials and their attorneys to sign in support of Amendment 2021-1251s to HB 108. The hearing is scheduled for 2:15 p.m. in the Senate Judiciary Committee. 

Last month the New Hampshire Supreme Court issued a stunning decision in which it ruled that confidential communications between a governmental client (such as a city or town) and its legal counsel are not necessarily exempt from disclosure under the Right-to-Know Law. The court overruled its own precedents and held that rather than being per se exempt, attorney-client communications are subject to a “balancing test” that compares the public’s right to know against the government’s interest in non-disclosure and the importance of any privacy interest involved. 

The consequences of this decision, if it is allowed to stand, will be devastating. As if local officials do not spend enough time responding to right-to-know requests, they will now be forced, upon request by any citizen, to apply a subjective balancing test to determine whether their own communications with their city or town legal counsel should be made public; and undoubtedly, some of those communications will be required to be disclosed. The chilling effect this will have on the attorney-client relationship is daunting. 

The amendment mentioned above, introduced at NHMA’s request and with support from the attorney general’s office and many municipal attorneys, would overturn the court’s decision. It merely clarifies that “records protected under the attorney-client privilege or the attorney work product doctrine” are exempt from disclosure under the Right-to-Know Law, as they have been for over 50 years. 

We are asking all local officials (and their municipal attorneys) to sign in support of this amendment. The process for this amendment is a bit complicated, so please follow these instructions precisely: 

• Using the Senate remote sign-in sheet, go to May 10, then Senate Judiciary.
• There are two separate hearings for HB 108, one at 2:00 and one at 2:15. You are interested in the 2:15 hearing, but when you click on the 2:15 hearing, it will default to 2:00. That is a glitch in their system—don’t worry about it.
• In the “I am” box, select the appropriate answer. (If you are an appointed official, you will have to indicate “a member of the public.”)
• This is critical: In the “I’m representing” box, type in your municipality’s name, then “Amendment 1251s.” If you do not include “Amendment 1251s,” it will be unclear which amendment you are supporting.
• Click “I support this bill.”
• Do not check the “I wish to testify” box (we have several people lined up to speak).
• Continue to the next page, and submit the form. 

See the example below. 

Thank you! Please contact us if you have any questions.

On Tuesday the House Judiciary Committee heard testimony on SB 95 – the last surviving remote meetings bill. As we mentioned in last week's Bulletin, SB 95 enables public bodies to continue to meet remotely until July 1, 2022, as they have done under Emergency Order #12 during the pandemic. SB 95 also creates a legislative committee to examine remote meetings and make recommendations on the feasibility of continuing remote meetings. 

We were deeply impressed with the show of support for the legislation. There were 102 individuals who signed in support and only 2 who signed in opposition, and all of the dozen-or-so people who spoke were in favor of the bill. Thank you to everyone who registered their support and/or spoke in support of the bill. 

Every person who testified – including those who serve in the House or Senate – explained succinctly what our members have told us: remote meetings have made local government more accessible, and local governments are seeing significantly greater attendance now than pre-pandemic. Nonmunicipal entities, such as Granite State Independent Living and the Kent Street Coalition, also testified in support. They highlighted how the transition to remote meetings had allowed greater access and involvement of those, such as the elderly or disabled, who are dependent on others for transportation and care. 

We are cautiously optimistic that this bipartisan bill will receive a favorable committee recommendation to the full House. Nevertheless, we encourage municipal officials to talk to their representatives about supporting SB 95.

The Monthly Revenue Focus issued by the state Department of Administrative Services on Wednesday reports unrestricted general and education funds received during April were above budget plan by $84.6 million (24.2%) and above prior year by $170.0 million (64.3%).  This brings the total year-to-date unrestricted revenue above plan by $242.9 million (10.8%).  While meals and rooms tax revenue still came in below plan—only missing the mark by $3.2 million (10.8%), the April revenues were above prior year by $10.4 million (64.6%).  Year-to-date meals and rooms tax is now 19.8% below plan and only $35.5 million below the prior year-to-date revenue amount.

Like all our members, we are eagerly awaiting guidance from the U.S. Treasury on the direct funding to cities and towns from the American Rescue Plan Act (ARPA). The guidance is expected to come out any day now—but no later than May 11. 

We know that the funds can be used for these purposes: 

1. Responding to the public health emergency with respect to COVID-19 or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to affected industries such as tourism, travel, and hospitality;
2. Providing for government services to the extent of the reduction in revenue due to the public health emergency relative to revenues collected in the most recent full fiscal year;
3. Making necessary investments in water, sewer, or broadband infrastructure; or
4. Including premium pay for eligible workers performing essential work during the pandemic. 

The Treasury guidance is expected to provide further explanation and answers to important questions about the use of these funds, including clarifying the purposes for which the funds can be used and explaining any requirements for documenting or reporting the use of the funds. 

NHMA is also encouraging collaboration between state and local governments to maximize the deployment of these federal funds. There is a unique opportunity for significant investments in water and sewer and broadband infrastructure which will, in turn, attract new investment and return increased general fund revenues to the state. 

In the meantime, the NHMA ARPA Information Page has extensive guidance and information on what we know so far, with materials from the National League of Cities (NLC) and the U.S Treasury websites. We will alert our members when the Treasury guidance is out, and we plan to host virtual informational sessions with NLC in the months to come.