HB 307, relative to attorney’s fees in actions under the Right-to-Know Law, has been scheduled for a hearing in the Senate Judiciary Committee, State House Room 100, on March 28 at 1:45 p.m. NHMA opposes HB 307. 

In short, HB 307 would require the governmental entity to bear the cost of resolving gray areas of the Right-to-Know Law if the plaintiff wins. As the Department of Justice noted in its fiscal note, HB 307 “would remove the requirement that the court find that the public body or public agency knew or should have known the conduct engaged in was a violation of RSA 91-A before awarding attorney’s fees. Without this additional finding, [DOJ] assumes the bill would result in a court awarding attorney’s fee any time a petitioner was successful in obtaining a judgment that a violation of RSA 91-A occurred.”  

NHMA supports the purposes of the Right-to-Know Law and measures to make the law clearer, but does not support legislation that subsidizes taxpayer lawsuits against the government to resolve gray areas of the law. There are areas of the Right-to-Know Law where the rules for how the government is to comply have not been clearly articulated; and one example is the process for review of sealed minutes, which this year’s HB 321 (also being heard in Senate Judiciary on March 28, but at 2:00 p.m.) would address. 

NHMA is supporting HB 321 because we recognize— as attested to by our legal services division— that municipalities aren’t sure what to do, and HB 321 is largely based on NHMA’s best practices for review of sealed minutes. But we recognize that our best practice is not the only possible or, even, reasonable practice under existing law. 

It would be unreasonable, however, to suggest that a municipality that engaged in a different, reasonable practice should be obliged to pay for the attorney’s fees of the person suing the municipality because that person doesn’t like the municipality’s attempt to comply with an unclear law. Yet, under HB 307, if the municipality does not accurately predict the court’s ruling in that lawsuit, taxpayers would be responsible for the suing party’s attorney’s fees. 

We’ve given just one example of a gray area of the Right-to-Know Law, but other areas exist. In part, that’s why the legislature created the Right-to-Know Ombudsman last year. And there is hardly a year that goes by where the New Hampshire Supreme Court doesn’t rule on an outstanding question of how to interpret some provision of the Right-to-Know Law. If the municipality makes a reasonable argument, but still gets it wrong, under HB 307, it would be responsible for paying for that litigation. 

That’s very different than existing law. Existing law already ensures that bad faith violations of the Right-to-Know Law see the government entity pay for the litigation costs of the other side. Existing law encourages governmental actors to train their employees and officials and to follow the law, while also encouraging those who seek to resolve gray areas of the law to appeal to the legislature for clarity—as with HB 321—rather than appeal to the courts to divine legislative intent. 

This week, the House took actions to move forward bills that would impact the NH Retirement System (NHRS) costs for cities and towns. Next week, the House Finance Committee must vote whether to recommend including the language of these bills and their respective appropriations in HB 1 and HB 2.

• HB 436: recommended by House Finance Division I as Ought to Pass with Amendment. The amendment would reduce the cost of this policy proposal, and the committee will be recommending it be included in HB 2. The bill would adjust the transition provisions for Group II, Tier B members service retirement adopted in 2011 over a 10-year period until 2033 and make a $25 million state general fund appropriations each year for 10 years to terminally fund the cost of the benefits. The amendment would also require the state to pay all costs incurred by municipalities to enact this legislation. This bill would enact a 10-year funding plan, and future legislatures are not bound by decisions of past legislatures which remains a concern.

• HB 461: recommended by House Finance Division I as Ought to Pass with Amendment. This bill would require municipal employers to obtain an analysis from NHRS when eliminating or transferring a Group II position from full-time to part-time. Additionally, it would impose a costly penalty on the employer to continue to make contributions to the NHRS based on the highest compensation paid for the position in the prior five years and would impose a penalty equal to two percent of such contribution on the employer to be paid for 15 years. Both the contribution and penalty are required in perpetuity unless the position is restored to full-time status. The amendment would apply this restriction specifically to superintendents, principals, police chiefs, fire chiefs, directors, administrators, “and the like.” Although NHRS actuaries are unable to estimate the fiscal impact of this proposal, there would be a significant cost to any municipality that changed its staffing structure to better suit the needs of its citizens.
• HB 250: recommend by House Finance Division I as Ought to Pass. This bill would increase the Group II accidental death benefit from 50 percent to 100 percent of member’s annual rate of earnable compensation at the date of the member’s passing. The estimated increase of this legislation on the employer pension rate for police is .25 percent and .28 percent for fire, totaling just over $1 million in additional employer costs for fiscal year 2024 alone. The New Hampshire Retirement System (NHRS) estimates a $4 million increase in the actuarial accrued liability (UAAL).
• HB 571: recommended by House Finance Division I as Ought to Pass. This bill would provide a cost-of-living adjustment (COLA) in 2023 to qualified Group II retirees on the first $50,000 of a retired Group II member’s or beneficiary’s allowance. As passed by the House, the cost of this COLA would be paid from the state general fund having no impact on municipal employers.
• HB 50: Passed the House and was tabled for potential inclusion in HB 2. This bill, as amended, proposes to pay $50 million toward the UAAL would appropriate $50 million in fiscal year 2024 for the purpose of reducing the retirement system’s unfunded actuarial accrued liability (UAAL) determined under RSA 100-A:16, II. Over a 20-year period a $50 million dollar payment applied in FY 2024 could have a compounded savings impact of $105 million.

If you have concerns about how this legislation will impact your municipality, your municipal budget, or local decision-making authority, we urge you to contact the House Finance Committee members before they begin three consecutive days of executive sessions on Monday, March 27, at 10:00 a.m. in LOB Room 210-211, to deliberate final recommendations on HB 1 and HB 2. You can look up NHMA’s positions on these (and other bills) using NHMA’s online bill tracker.