Only a pandemic could create a correlation between outdoor dining, vaccinations, and summer camp nonconforming status—among other items. SB 155, an omnibus bill that originally sought to codify a wide variety of the governor’s existing emergency orders, was pared down in the Senate to contain eight sections, all related to COVID-19. Of specific interest to municipalities are Part 5, non-conforming use status of summer camps; Part 6, procedures to allow construction during the pandemic; and Part 7, temporary expansion of outdoor dining. Two concerning non-germane amendments have also been offered and heard, which are described below. 

On April 27, the House Executive Departments and Administration Committee held hearings on SB 155 and non-germane amendment 1149h. At the hearing on the bill, NHMA recommended language to clarify that any expansion of outdoor dining would be subject to applicable local ordinances and regulations. Similar language was recommended by the Department of Environmental Services relative to sewer load capacity. (At a subsequent subcommittee work session on May 11, the recommended language was incorporated, among some other changes.) 

The committee then heard non-germane amendment 1149h, which seeks to permit outdoor dining expansion permanently (the original bill would permit it only through 2023) and, of even greater concern, would prohibit the state, political subdivisions, and any employer from requiring anyone to receive the COVID-19 vaccine or provide proof of vaccination status. In an even more heavy-handed approach, the amendment would prohibit the state or a municipality from contracting with any “employer or company” that violated these prohibitions. NHMA opposed the amendment for two major reasons. First, although we have not heard of municipalities seeking to mandate vaccines, we do know that municipalities, in their capacity as employers, have a legal obligation to maintain a safe workplace. This obligation includes following appropriate COVID-19 safety protocols. Quarantine, mask wearing, and other requirements also differ depending on the vaccination status of a person, putting municipalities in an impossible situation if they are unable to at least ascertain the vaccination status of employees. Second, prohibiting municipalities from contracting with companies that require or ask about vaccination status is an undue burden on local government, and we are unclear how—or why—local officials would monitor private business practices relative to vaccines. 

Two weeks later, on  May 18, the committee heard a second non-germane amendment, 1443h, which NHMA also opposed. This amendment would, among other things, prohibit a municipality from asking an employee about any vaccine status—not just the COVID-19 vaccine. On point with a trend we wrote about in last week’s Bulletin, several out-of-state doctors were among those testifying in support of the amendment. Several New Hampshire practitioners testified against the amendment, including one VA doctor, previously a practitioner in the North Country, who stated, “If I take seriously my role as an advocate for patients in my community, I see this amendment as dangerous,” citing the amendment’s very broad prohibitions on keeping records or even initiating conversations about vaccine status. The New Hampshire Department of Health and Human Services also opposed the amendment, as did a New Hampshire senator and doctor, who urged the committee to listen to the voices of New Hampshire practitioners and not the out-of-state doctors who testified, many of whom he said were pathologists, not practitioners. 

There is still time for local officials to contact the members of the House Executive Departments and Administration Committee before the executive session on Tuesday, May 25. Please urge them to reject both non-germane amendments and to recommend SB 155 as Ought to Pass only if the subcommittee’s recommended changes are included.

By a straight party-line vote, 11-10, the House Judiciary Committee last week approved an amendment to SB 95 that would delete the part of that bill that enables public bodies to continue to meet remotely until July 1, 2022, as they have done under Emergency Order #12 during the pandemic. The explanation for removing this was that it is “too soon” to make such a drastic change to how meetings are conducted, and more study is needed before allowing such a change. This despite the fact that remote meetings have been permitted for fourteen months and have been almost uniformly successful. 

The Senate passed SB 95 on a 24-0 vote. As a sensible precaution, it included a sunset date of July 1, 2022, for the remote meetings authority, along with a legislative committee to study the matter in the interim and recommend any needed changes. Those measures, along with the 14-month experience with remote meetings, seem to counter any claim that SB 95 represents a precipitous change. 

SB 95 will go to the full House on June 3. Please encourage your representatives to vote down the committee amendment and pass SB 95 as passed by the Senate. 

The House Election Law Committee this week approved, by a party-line 11-8 vote, a non-germane amendment to SB 89 that seeks to carve out an exception to the “For the People Act,” the bill currently in the U.S. Congress designated as H.R. 1 (and its companion bill, S. 1), which would make sweeping changes to election laws nationwide. The amendment states that if that bill is adopted, elections for state and county offices (as opposed to federal offices) in New Hampshire would nevertheless follow “all procedures and requirements relating to elections conducted pursuant to the New Hampshire constitution and as prescribed by New Hampshire law . . . , including but not limited to those procedures and requirements relating to voter eligibility, voter registration, absentee voting conducting the vote, and counting of votes.” 

On its face, this raises serious concerns. It would appear to require, at the very least, the use of separate ballots and separate checklists at state and federal elections, because different voters might be eligible under the federal law and under state law. It may even require that two separate elections be held every other November—one for federal races and one for state races. 

On the other hand, the federal legislation would create its own mess. Although there are many good things about it—such as requiring that states use independent commissions for redistricting, which NHMA supports—it would also wreak havoc with New Hampshire election laws. It would force some untenable process changes, most notably an early voting period of at least 15 consecutive days before election day, during which the polls must be open for at least 10 hours every day and voters must be able to vote “in the same manner as voting is allowed on [election day].” 

That is impossible. While it may make sense in states that have six-hour waits on election day because a single polling location serves several hundred thousand voters, it would be absurd in New Hampshire’s towns and wards, most of which serve between a few dozen and a few thousand voters. Local election officials are a dedicated bunch, but few are likely to be willing (or able) to spend 10 hours a day in a school gym for 15 consecutive days, waiting for a handful of voters to wander in every day. (This also assumes that the voting facility would even be available for this period, particularly if it is a school.) 

There are additional problems, but the early voting provision alone is enough to make the bill frightening. (There is a proposed amendment, apparently not publicly available, that would provide a limited exemption for voting districts that have fewer than 3,000 registered voters. That comes nowhere close to solving the problem.) With that in mind, the amendment to SB 89 is an understandable reaction, although we are not convinced that establishing separate procedures for state elections would improve matters. 

Realistically, all of this is probably academic, as all indications are that supporters in the U.S. Senate have no plausible path to passage of the federal legislation; they have nowhere close to the 60 votes needed to invoke cloture and end a filibuster, nor do they have the votes to eliminate the filibuster. Nevertheless, we plan to contact New Hampshire’s U.S. senators and urge them to talk to local election officials and the secretary of state’s office about how the bill would affect New Hampshire elections, and to support amendments to eliminate the negative effects or include appropriate exemptions.

On May 17 the governor signed HB 126, which extends the time for the notice of execution of a municipal, county, or state tax lien to be given to a mortgagee. NHMA supported this bill, which will provide municipalities, counties, and the state an additional 15 days to notify all persons holding mortgages on a property of a tax lien executed on the property.  Due to the diminishing number of professional abstractors in New Hampshire who perform mortgagee searches and generate lien notices, and because nearly all municipalities execute their tax liens at approximately the same time each year, this bill will provide much needed relief to both the abstractors and the municipalities and help ensure that municipalities are able to properly carry out the statutory notification requirements associated with unpaid taxes.  The new act, 2021 N.H. Laws Chapter 33, takes effect July 16, 2021.  

There are no committee hearings scheduled next week.