The Early Years of the New Hampshire Municipal Association (1975-1984)

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

“Mere Tenants-at-Will of their Respective State Legislatures”

Did you know the United States Constitution makes no mention of local government? Instead, except as to those powers delegated to the federal government, the Constitution places all government authority onto state governments.

As a result, in 1868, Judge John Forrest Dillon of Iowa determined that city governments could only act in areas expressly authorized by the state legislature. Dillon is quoted as calling municipalities “mere tenants at will of their respective state legislatures.” Today, 39 states continue to follow that rule, commonly known as “Dillon’s Rule”— which you probably know it as “No Home Rule”—and which provides that municipalities derive their authority from the state.

In a Dillon’s Rule state, local governments lack authority to act unless they can show where a state law allows them to take that particular action, such as operating a parks system, maintaining a fire department, or imposing a tax. Dillon’s Rule allows a state legislature to control local government structure, methods of financing its activities, its procedures, and the authority to undertake functions. In a home rule state, local governments have greater autonomy: a local city or town can set up its own system of governance without receiving a charter from the state that comes with certain requirements and limitations.

“Here, by and large, home rule is a political slogan rather than a legal reality,” said Martin Gross, former Concord mayor and legal counsel to NHMA. “The state does what it pleases” is still the legal rule in New Hampshire.

New Hampshire’s Municipal Governments: “Creatures of the State”

Consistent with the Northern New England tradition of strong legislative oversight of local government, New Hampshire is not known as a home rule state. All powers of local government in New Hampshire stem from the legislature, and few freedoms have been delegated to units of local government. However, the concept of home rule is philosophically supported by many New Hampshire citizens.

The absence of constitutional home rule for municipalities, in a state whose people cherish the concept as an integral part of their democratic heritage, places a great deal of responsibility upon the elected state and municipal officials to deal with each other, not as master and servant, but as partners. The people of New Hampshire have a right to demand this partnership relationship between their municipal and state elected leaders.

In fact, in 1963, the legislature did provide a measure of independence for city governments. In that year an optional charter amending process was authorized whereby cities were granted limited permission to revise their basic laws without legislative approval. The overall picture of home rule development in New Hampshire, however, has been one of very little experimentation and progress.

In 1964, the New Hampshire Municipal Association, concerned with the viability of local government in the state, authorized an analytical study of state-local relations, the first critical analysis of New Hampshire local government and its relation to the State in over thirty years. Recommendations from the study included a local option provision for home rule charters for towns of a certain size and fiscal capacity and a local government organizational scheme that would minimize state interference. The study did not result, however, in any renewed legislative consideration of home rule.

All of this is quite surprising when one considers that New England town meeting government historically has been identified with local democracy and a sense of pride and independence. It is surprising, too, in view of the fact that as far back as revolutionary times, New England local communities claimed inherent local rights against their Colonial and State governments under the social compact theory of constitutional government. It was not until 1951 that Rhode Island became the first of the New England states to act on this important subject.

Attempts to Bring Home Rule to New Hampshire

In the last 75 years, there have been numerous attempts to bring home rule to New Hampshire, including some legislative proposals and three resolutions to amend the New Hampshire Constitution introduced in Constitutional Convention.

The first attempt at home rule occurred during the 1974 Constitutional Convention, in which a resolution was proposed to adopt a new Article 40 to Part 1 of the New Hampshire Constitution. The language of the proposed article read as follows:

“It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm the people of every city and town the right to self-government in local matters, subject to the provisions of this constitution, and so such standards and requirement as the general court may establish by law in accordance with the provisions of this constitution.”

Records indicate this home rule proposal was defeated by convention delegates based on reasoning that this would completely reverse the existing process of government; that is, municipalities only had those rights and privileges and could only perform such functions as were granted to them by the state legislature. Delegates were concerned that municipalities would be free “to act in any way they see fit.” Delegates ultimately defeated this proposal generally on the grounds that the status quo should continue.

The next attempt at home rule occurred with the introduction of two resolutions during the 1984 Constitution Convention. Each resolution proposed adding a sentence to Part I, Article 7 of the New Hampshire Constitution.

Resolution 20 added: “The powers not delegated to this state by this constitution, not prohibited by it to the cities and towns, are reserved to the cities and towns, or to the people.”

Resolution 86 added: “Notwithstanding any other provision of this constitution to the contrary, no legislation enacted by the state shall deprive the municipalities of this state of the power to exercise concurrent jurisdiction over the same matter unless that legislation specifically prohibits the municipalities from exercising concurrent jurisdiction.”

Supporters argued that the state “was founded on the doctrine of home rule…on the doctrine that the government is best when governs least, which is governed closest to the people.” The home rule amendment, they advocated, would further this tradition and would solve the problem of not being able to act when the statutes were silent on specific issues.

Opponents argued that this amendment would reverse the existing balance of power and shift too much power to local government. Dissenters were fearful that allowing cities and towns to have concurrent jurisdiction with the State on a variety of issues would erode the power of the State. Ultimately, both resolutions suffered the same fate as the 1974 amendment.

Fast forward to November 2000, when a question was placed on the state election ballot asking voters of New Hampshire if they would approve a home rule constitutional amendment, which would not go into effect until and unless approved by two thirds of voters at the November 7, 2000 elections. Unfortunately, this question failed to muster that necessary two thirds vote to pass.

There are dozens of bills introduced each legislative session to allow certain municipalities to take specific actions. Often, these bills are not controversial and there is little or no opposition during the process, and yet, New Hampshire law requires them to undergo the legislative process. For example, one town had infrastructure need, and the other had land available for an economic development project. They want to agree to share the property tax revenues from the project. With home rule, legislative “permission” would not be required. However, in the absence of home rule, they must wait for the legislature to pass the bill before they can start the project.

As you can see, home rule means cities and towns would have the ability to efficiently adopt policies that best meet the needs of each municipality and its residents. Home rule authority would allow a wide variety of actions by the “local legislative body” without permission from the legislature, and, therefore, provides residents greater control over their town and city affairs. 

Can you imagine what our municipal leaders of 1941 would think of today’s NHMA? Even without the benefits of home rule, the growth and maturity would undoubtedly not only meet their expectations, but likely exceed it in many ways that were impossible for them to even predict. The one true goal that has certainly been achieved is that cities and towns, working together, have made a difference and improved the lives of New Hampshire residents.

1975

*  In February 1975, John B. Andrews began his duties as executive director of NHMA. Andrews came to New Hampshire after a three and one-half years stint serving as assistant executive director of the Maine Municipal Association, specializing in policy development, affiliate group relations, legislative representation, and association management.

*  NHMA hosted a series of lectures in 1975 on land use and planning called the Municipal Law Lecture Series. Typically three to six lectures, this series was designed to provide local officials in New Hampshire with information and basic legal guidance to enable them to function more effectively in their official positions in the local planning process. Today, NHMA continues to host these lectures during the fall for the benefit of its members.

*  NHMA installed its first “Wats” telephone line in 1975. “Wats,” Wide Area Telephone Service, is a special telephone line for long distance calls, and served as a toll free line for members calling from within New Hampshire.

*  Computers were not commonplace in most New Hampshire municipalities in 1975, although, strange as it may seem, not only did most cities use computers, but also some smaller New Hampshire towns like Sugar Hill, Hill, Northumberland, Hinsdale and Conway, did as well

*  At a meeting of municipal and legislative officials with the topic of discussion being “establishing a state-municipal partnership,” State Representative Mary Chambers of Hanover empathized with the local officials saying “If the State imposed the same restrictions upon ourselves, as we do on municipalities, we (State) would be closed down.”

1976

*  The town or city manager form of government grew with popularity in these days of increasing complexity of local government. Maine had a large number of professional town and city managers (157) whereas New Hampshire had only 20.

*  NHMA instituted a new service program, the Ordinance Review and Locating Service, in response to increasing requests for ordinances adopted by other New Hampshire towns and cities on a variety of subjects.

*  Based on results of a Regional Goals Study conducted with members by NHMA, the Association added the position of staff attorney. Daniel D. Crean of Pembroke, a graduate of Yale University, filled this position. Attorney Crean continues to collaborate with NHMA today on providing educational presentations to our members.

*  Membership strength in NHMA reached an all-time high with 211 of New Hampshire’s 234 cities and towns joining.

*  NHMA’s legislative policy process, generally as it is known today, was initiated in 1976. The new comprehensive committee process brought together for the first time 84 members from 41 municipalities in six policy committees. This new policy development process sought to bring together members, and representatives from affiliate groups, who had the everyday, working knowledge of the problems cities and towns faced that could be addressed by legislative change.

1977

*  NHMA was instrumental in achieving passage of legislation creating the New Hampshire Municipal Bond Bank as a mechanism for reducing borrowing costs of long-term money to political subdivisions.

*  Due to increasing professional responsibilities, in addition to being mayor of Concord, Attorney Martin Gross resigns from his position as legal counsel to the Association. After serving 7 years in this position, Gross opined in his resignation letter, “If I have contributed one tenth of what I have learned, then I can retire with a clear conscience.”

*  In April, NHMA moved its offices to 193 North Main Street, also known as the Abbott House, in Concord. These quarters were much more conducive to staff morale and efficiency than was the old, third floor walk-up offices located on Depot Street. The building today is occupied by Plodzik and Sanderson, PA, a full-service accounting firm who have performed financial and compliance audits for municipal governments since 1975.

*  The 1977 legislature enacted substantial revisions to the state’s Right-to-Know Law (RSA 91-A).

*  Promoted as a family reunion, NHMA holds its first joint annual conference with its affiliate groups. On October 6 and 7, about 400 members including a number of affiliate groups met in Durham where there were concurrent sessions, keynote speakers, educational programming, entertainment and over 20 exhibitors.

1978

*  The legislature enacted a law extending unemployment compensation benefits to public employees in 1978. In response, the Association established the NHMA Unemployment Compensation Fund. The Fund operated as a pooling of monies to pay benefits and offer claims challenges, statistical analysis and training services. There were 171 jurisdictions participating in this Fund, including 8 counties, 5 housing authorities, 4 regional planning commissions, 14 village districts and 140 cities and towns.

*  The Administrative Procedures Act (RSA Chapter 541) was enacted in New Hampshire, although it will be several years before full implementation. Since rules have the force of law if validly adopted and filed, municipal officials were intent to participate in state administrative policy formulation.

*  NHMA is now moving cautiously from passive endorsements of insurance programs to program origination and development.

*  NHMA’s professional recruitment service becomes a major member benefit for our members seeking to fill administrative, technical and professional vacancies.

*  In May, the toll-free WATS telephone number connecting NHMA offices with members was changed to 800-852-3358. This telephone number remains the toll free number today for members to contact the NHMA.

*  Computers, or more precisely, the technology of Electronic Data Processing (EDP), was fast becoming essential office equipment for municipal governments to address increasing workloads to meet growing demands of its residents. Through NHMA, a Government Computer Users Group was formed.

1979

*  The Town of Derry was the first municipality in New Hampshire to utilize the new Home Rule law when voters established a charter commission by a vote of 433-271. The Commission was charged with holding public hearings, studying town options and forms of government, and drafting a town charter for presentation to the voters.

*  NHMA surveyed its members and found that 117 cities and towns held evening city and town clerk’s office hours (after 5 pm), including three cities. Of this total, 39 municipalities also had Saturday clerks’ office hours.

*  Governor Hugh Gallen said it was important for him to meet “the people who face the public every day.” Accordingly, two meetings were held at the Governor’s Bridges House in East Concord which focused on the need for caution in dealing with the state budget and the Governor’s keen interest in developing stronger lines of communications with local officials.

*  In the 1979 legislative session, NHMA mailed 21 weekly bulletins to 515 local officials describing over 502 bills, and bringing notice to about 750 hearings. It was a good legislative year for NHMA where there was a net gain over the biennium of about $8.5 million in municipal aid. Members were credited as the key ingredient to this success for appearing at public hearings and making contact with their legislators

*  Each legislative session typically results in an appointment of a municipal official to a study committee, state board, commission or other special group. In 1979, there were six study committees that required member appointment and another eight appointments were sent to the Governor for subsequent review and consideration. NHMA continues to work with both the legislative and executive branches today in making these municipal appointments when they arise.

1980

*  For the first time, information gathered from members for the 1980-1981 Directory of New Hampshire Municipal Officials was put on computer, in an effort to build a municipal database. The projected municipal database was invaluable to NHMA in its role as an advocate for New Hampshire local government.

*  NHMA staff and municipal members were fully engaged with our national partner, the National League of Cities (NLC), in 1980, founded in 1924 and originally known as the American Municipal Association. Members would travel to Washington each year to meet with New Hampshire’s congressional delegation on municipal matters and intergovernmental relations. Today it represents a network of more than 19,000 cities, villages and towns of all sizes, either directly or through state municipal leagues.

*  NHMA issued a new newsletter, the Town Crier, in 1980. It was designed to make key officials aware of available training or conference opportunities, notices of public hearings or meeting of interest to cities and towns, and other information of a short time-span nature. Today, NHMA communicates in a similar manner with members through our bi-weekly, electronic newsletter, NewsLink.

*  Begun in 1979, the NHMA’s Workers’ Compensation Trust Fund grew to a level of 125 participating jurisdictions representing over $2.3 million of fund dollars. Under the direction of Paul Genovese, Director of Group Services, the Unemployment Compensation Trust Fund, also begun in 1979, grew to represent 167 entities, embracing some 10,400 employers and representing a fund of nearly $800,000.

1981

*  Despite the gradual disappearance of cows and dirt roads from much of southern New Hampshire, state and local planners focused on ways to preserve some of the rural qualities that exist in New Hampshire despite the state’s population increasing by 160,000 over the past decade. New Hampshire was then the fastest growing state in New England and the second fastest east of the Mississippi.

*  As of January 1, 1981, the Workers’ and Unemployment Compensation Trust Funds were established as two separate and independently-managed funds. Each trust was created as a separate legal entity from each other and from NHMA, although NHMA provided some services to the trusts under contract. Each trust was governed by 13-member board of trustees composed of elected and appointed officials of NHMA members participating in the trusts.

*  Barton Mayer was hired as NHMA’s new staff attorney when Dan Crean resigned this post to enter full-time private practice in Concord. Mayer had previously worked with the New Hampshire Bureau of Solid Waste Management on hazardous waste issues.

*  In 1981, NHMA mailed 23 weekly Legislative Bulletins to 660 local officials and legislators. The Bulletins covered activity of over 425 bills of interest to municipalities and notices of over 800 hearings. The 1981 legislative session experience highlighted the direction in which the state-municipal financial relationship appeared to be heading, that is, a trend toward having the local property tax assume larger and larger portions of the state’s financial burden.

*  1981 saw the initiation of a new Public Officials Liability program by NHMA. This plan offered a comprehensive coverage with premiums considerably lower than other non-group plans. Four cities and 26 towns elected to have this plan.

1982

*  The price of a yearly subscription to New Hampshire Town & City increased from $5 to $8 to meet rising postage and printing costs.

*  93 moderators and local officials attended the first NHMA-sponsored Moderators Workshop in Concord. Topics addressed included the statutory powers of the moderator, town meeting appropriations, the moderator’s role in elections and appointments, and conducting the town meeting.

*  At his own request, Governor Hugh Gallen met with the NHMA board for over an hour to discuss details and the extent of his commitment to balance the state budget without further burdening the 1982 property taxpayer. Eventually, the NHMA executive committee voted to endorse Gallen’s proposed budget plan.

*  Over 80 building inspectors and local officials gathered for the first NHMA-sponsored building inspector workshop. In cooperation with the New Hampshire Building Officials Association, participants heard speakers address current inspection and building code issues. NHMA was pleased with the support this program enjoyed, and began exploring co-sponsoring more workshops with its affiliate groups.

1983

*  NHMA’s Executive Director, John Andrews, was elected to serve a two-year term on the National League of Cities (NLC) board of directors composed of municipal officials and state municipal association directors from across the country. In 2016, Judy Silva, NHMA’s current Executive Director, was elected to serve on NLC’s board in guiding the nation’s largest and most representative membership and advocacy organization for municipal officials.

*  Billed as a new NHMA staff member, the Televideo TS 806/20 computer system began services to New Hampshire municipalities in mid-November. The newly acquired computer systems accommodated up to six user stations and significant storage capacity. The computer assisted greatly in reducing staff efforts regarding the Directory, surveys, publications and manuals, mailing lists, lobbying and budget analysis.

*  As a result of a legislative study committee, the creation of “one stop” auto registration system was slowly implemented by the state Department of Safety. The first six municipalities to implement the system in 1982 were Laconia, Hooksett, Amherst, Kingston, Conway and Dover. In order to set up as registration stations, towns had to: be open at least 30 hours a week; be willing to accept registrants from other towns; have a typewriter; have a secure, fireproof file; and have the consent of the governing body.

*  The Highway Block Grant Program, support by both NHMA and Governor Sununu, was enacted giving cities and towns 12% of gasoline taxes and motor vehicle fees as aid; distributing this aid on a quarterly basis, half by population and half by road mileage; and eliminated the categorical aid accounts giving more local flexibility in the use of the funds.

*  NHMA did act in 1983 on the insurance programming priority by creating a voluntary insurance development fund to retain a consultant to work on health, life and disability coverage. With the financial support of 103 municipalities and 7 counties, a firm was selected to begin its study in November. This study was entered into due to high and growing costs of employee coverage and NHMA’s extremely successful experience with its workers compensation and unemployment compensation programs, which returned several millions of premium dollars to participants since 1979.

1984

*  Current use taxation was a hot issue with some members in 1984. Several towns, especially those towns with large amounts of privately-owned open space land, were unhappy with the current use tax scheme that encouraged the preservation of forest and open space by discouraging its conversions to more intensive development.

*  On November 7-9, 1984, NHMA held its annual conference at the Center of New Hampshire in Manchester. This marked the time the NHMA continued to hold its conference at this facility, today known as The Radisson Hotel, since the facility was large enough to host expanding workshop programming and exhibitor participation.

*  Resulting from an 18-month insurance study commissioned by members, NHMA announced its self-funded, pooled plan called CostPlus. Blue Cross/Blue Shield of New Hampshire served as the claims administrator of the new plan which officially began on November 1, 1984, with over 125 participating entities, including cities, towns, village districts and regional planning commissions.

[Art.] 28-a. [Mandated Programs.] The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision. November 28, 1984

*  With the strong support of municipal officials, the 1984 Constitutional Convention voted overwhelmingly for a resolution to prohibit additional mandated costs on the property tax. The 272-62 vote represented a clear understanding of the frustration experienced by citizens as well as local officials at mandated increases imposed on town, city, county and school property tax bills. Ultimately, the ballot question, appearing as Question #2, went before voters on November 6th and received the necessary two-thirds vote for final passage.

STAY TUNED. Look for more discussion of Article 28-a and state mandates in the next installment retracing our history in the upcoming issue of New Hampshire Town & City.