On Tuesday, February 7, at 1:40 p.m. in State House 103, the Senate Finance Committee will hold a public hearing on SB 230, an NHMA policy bill, which appropriates $15 million in non-lapsing funds for each of the 2024 and 2025 fiscal years to fund the state share of eligible and completed wastewater projects under the State Aid Grant (SAG) program pursuant to RSA 486. HB 311, a similar bill filed in the House, contains the same levels of funding for eligible municipal wastewater projects. Historically, the legislature has, by law, expressly authorized the SAG program to provide grants to municipalities of 20% to 30% of the principal and interest payments on completed and eligible environmental infrastructure projects.  However, sufficient funding for the grants has not been included in the state budget in recent years—thus the need for a separate funding bill. (For more information on the importance of this funding, please see the 2023 SAG Project Priority List issued by the Department of Environmental Services.) 

Please contact the Senate Finance Committee to express your support for this much-needed funding which would honor the state’s partnership with its political subdivisions to protect the health of its residents and promote state and municipal economic growth.

On Wednesday, the House Judiciary Committee will vote on HB 647, relative to causes of action for individual rights. We are hopeful that the committee will follow the lead of those who testified and signed in online: As of this writing, 330 online sign-ins from New Hampshire were opposed, while 31 supported the bill, and the vast majority of those who testified were opposed. Our members still have time to contact committee members and ask them to support an Inexpedient to Legislate motion. 

In addition to our article in last week’s Bulletin,  we want to make local officials aware of a few issues raised at the hearing: 

• Preemption of current immunity statutes. There was some testimony from proponents of HB 647 that it would not override current immunity statutes, including RSA chapter 507-B. This position contradicts the plain language of the bill, which states, in its first sentence: “Superseding Enactment: To the extent of any conflict, this chapter supersedes a defense or immunity in RSA 99-D, 507-B, 541-B, or other RSA section enacted prior to the effective date of this chapter.” Then, on the second page, paragraph IX confirms that “a claim under this chapter is not subject to: A. Statutory immunities; B. Common law doctrines of immunity; C. Federally-recognized doctrines of qualified immunity; D. Sovereign immunity, governmental immunity, custom or policy; or E. Limitations on liability or damages.” The language is very clear. 

• Standard of review. Members of the committee raised questions about the standard of review for claims under the bill. The newly proposed RSA 507-H:5, I (p. 2, lines 22 – 29) sets a standard of review for judicial evaluation of a government employee’s use of force. Proponents of the bill testified this paragraph was meant to be the standard of review for all claims under the bill, but this also contradicts the plain language, which applies to use of force cases only. 

• Training and supervision. Questions and comments were raised to suggest that if governmental entities simply hired competent people and trained them well, there would be no need for concern of increased lawsuits and costs should HB 647 Governments are human institutions. Cities and towns provide a wide variety of services to the general public, which opens them to the constant risk of something going wrong. Governmental immunity recognizes this reality and allows governments to operate and serve the public, without the risk of costly lawsuits at every turn. These protections are even more critical for New Hampshire’s local government system, which rests heavily on regular people who volunteer their time to serve the public. A fair balance between imposing civil liability on local governments, given the reasonable priority of the competing interests, already exists in the law between managing the needs of the public and the need to ensure that the injured are compensated. 

We also understand that the committee is likely to consider an amendment to the bill. If it is the same amendment for which we have seen a draft, it does not address our concerns. We remain concerned about the increase in liability for municipalities, which, in turn, will cause their insurance rates to climb, rates that are ultimately paid by the municipality’s taxpayers. Additionally, the changes ushered in by this legislation would hamper government operations by tying up staff in lawsuits, preventing municipalities from performing the same level of service as they currently provide with their existing staffing and budgets. 

We continue to urge our members to reach out to the committee and ask them to recommend the bill Inexpedient to Legislate.