Diary of a First-Time Moderator

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.

Two years ago my town’s long-time moderator, Wayne Colby, told me he was thinking of retiring from the position and asked whether I would be interested in succeeding him. This was an easy question. I love town government. In addition to my full-time job at NHMA, I had previously served three terms on Henniker’s planning board and one term as a selectman and had been involved in various other unofficial capacities.

I especially love town meeting. I am pretty sure that I haven’t missed a Henniker town meeting in 25 years; and, although I don’t make a habit of it, I sometimes go to other towns’ annual meetings just to see what is going on. At our own meeting a few years ago, someone turned to my significant other (also a municipal attorney) and me and said, “This is kind of like the Super Bowl for you, isn’t it?” Yes, it is.

So that was that. I ran unopposed—contested races for town moderator are rare in New Hampshire, although I’m sure they do happen—and was sworn in at the end of the 2018 town meeting.

My first job was not the town meeting, but the 2018 state primary and general elections. I knew significantly less about election law and procedures than about town meeting, so these events brought some trepidation. Fortunately, our town clerk of almost 30 years more than made up for my inexperience; and Wayne, my predecessor, answered my many questions in advance and helped by serving as assistant moderator for both elections.

Running town meeting, though, is less of a team effort— there is only one person at the podium with a gavel. While the selectmen and others present the warrant articles, only the moderator is in charge of keeping the order.

On paper, I was well prepared. With my background as a municipal lawyer, my attendance at all those meetings over the years, and the training I received at NHMA workshops, I probably knew the laws and the rules as well as any rookie.

But town meeting isn’t all about laws and rules. There is also a certain etiquette involved, and frankly, I was nervous. Understanding the law doesn’t necessarily prevent one from doing foolish things. Doing them in front of 200 people is to be avoided if possible.

Some of my questions didn’t have answers, at least not satisfactory ones, in any statute or handbook. I have to believe that other new moderators have similar questions. Questions such as . . .

Will there be food—and, more important, coffee?

The business session of Henniker’s annual meeting traditionally begins at 1:00 on Saturday afternoon. I would prefer a Saturday morning start, but that is not the moderator’s decision.

Even our most efficient meetings last about three hours— long enough that some people might get ugly if they can’t at least get a snack. I did not want to deal with a room full of ugly people. Further, if I don’t have a mid-afternoon cup of coffee, I will fall asleep, no matter what I’m doing; nothing good could come of that.

If I did nothing else, I would make sure we had food and coffee.

For years members of the seventh grade class had sold snacks and beverages during the meeting to raise funds for their trip to Washington, D.C., but they had been absent at the prior year’s meeting. With a few e-mails, I found the right contact person and secured a commitment to resume the tradition, emphasizing the importance of coffee. In gratitude, I made a point of noting at least ten times during the meeting that snacks and drinks were available down the hall, and that generous contributions were appreciated.

Should the moderator vote?

One of my few hesitations about accepting this job had been the need to give up my right to participate in town meeting debates. Officially, there is no law that prohibits the moderator from debating and voting, but we all know it’s bad form. (Don’t we?) Above all else, the moderator should be perceived as fair. Remaining neutral on all issues gives that perception more credibility.

Some people believe there are appropriate exceptions. This has been a topic of vigorous discussion among moderators, some of whom apply a rule that they won’t vote in the ordinary course, but they may vote to break a tie.

That tradition is followed in some deliberative bodies, including the New Hampshire House of Representatives. The Speaker ordinarily does not vote, but he may vote to break a tie; or if a motion prevails by one vote, he may cast his vote to create a tie, thus causing the motion to fail.

That may be fine for the Speaker of the House—who, after all, is the unofficial leader of a political caucus. As such, while he is expected to run a fair process, no one really expects him to be neutral.

I wanted to preserve the perception of neutrality, and it seemed to me that casting a tie-breaking vote on what is, by definition, a divisive issue was a sure way to destroy that perception. In the extremely unlikely event that I cared so passionately about an issue that I felt I absolutely must chime in, I would first yield the gavel to the assistant moderator and then go to the floor, not resuming my position until the final vote on the article. I doubt that I will ever encounter such an issue, so the bottom line is that this moderator will not vote, period.

What if there is trouble?

To my recollection, no one has been thrown out of our town meeting in the last quarter-century, and things have approached the boiling point only a few times. I attribute this in part to the general reasonableness of Hennikerians, and in part to Wayne’s calm but authoritative presence. I had no specific reason to anticipate a fracas; still, I could think of a few people who might enjoy testing the new moderator. With a call to the police chief, I confirmed that there would be an officer on duty. I also included a reference in my rules of order (to be distributed at the meeting) to RSA 40:8: The moderator “may command any constable or police officer, or any legal voter of the town, to remove [a] disorderly person from the meeting and detain such person until the business is finished.” Just in case.

What if I need a break?

Again, our shortest meetings over the years have been about three hours, and some have been twice that. I cannot stand in one place for that long. First, my back would protest loudly. Second . . . well, let’s just say I need an occasional break that has nothing to do with back pain.

I addressed the first issue by planning to bring a foam mat to stand on, as well as a stool for when standing at the podium was unnecessary. As for the second issue, I consulted with Wayne. He chuckled and said it had never been a problem. He would duck out for a few minutes while people were lining up for a ballot vote or while someone was making a lengthy presentation. Fortunately, the arrangement of the meeting space helps: we meet in the Henniker Community School’s cafeteria, and the moderator’s podium is at the front corner, next to a door that is just across the hall from the boys’ room. I could get out and back in a minute.

That still left me a little nervous. Nothing on the warrant required a ballot vote, and the only lengthy presentation I anticipated was the selectmen’s budget discussion at the very beginning.

I decided that if other strategies failed, I would simply declare a two-minute recess, making vague reference to the need for a break. Given the demographics of New Hampshire town meetings, a majority of the voters would sympathize (and probably follow me out the door).

What to wear?

No one dresses up for town meeting, but I was taught years ago that if you’re speaking in public, you should dress one notch above the anticipated audience. This situation was analogous. Still, that left a lot of territory, and over-dressing would be a big mistake. The moderator should look credible but not uppity. Jacket? Tie? Both? Neither?

For all of Wayne’s valuable guidance, he is not someone I would consult for sartorial advice. It seemed the best bet was to approximate the dressiness level of the selectmen. Now, of course, despite all those years of attending meetings, I couldn’t remember what the selectmen wore to town meeting. Well, at the very least I would want a pair of decent pants and a button-down shirt. I decided to bring a jacket and tie with me and improvise as appropriate.

The day arrives.

I arrived at the school almost an hour before the meeting, carrying my various handbooks, statutes, pens and paper, foam mat, stool, jacket, and tie. As others started to arrive, I noticed that all of the male selectmen were wearing jackets and ties, so I donned mine as well.

When the supervisors of the checklist were set up, I checked in and got my voting card. As I’ve stated, I did not intend to vote, but I would use it as a visual aid to remind people that they needed to raise their cards to vote, and to emphasize the importance of not losing the cards.

I went to my station and began setting up. I had brought a bottle of seltzer water, which I opened and immediately spilled on my copy of the warrant. I also immediately lost my voting card.

Nervous? Me?

By the time I cleaned up the mess and found my voting card, the room was starting to fill up. With my affairs finally under control, I chatted with a few people, then decided to visit the boys’ room. It was about ten minutes before 1:00.

There are some moments in life that one never forgets. This was one of them. The boys’ room was locked, with a large “Out of Service” sign on the door. I let out an expletive that probably is not condoned in that building.

There was no emergency—yet—but this required a fix. Moving as quickly but nonchalantly as possible, I roamed the halls looking for the nearest alternative. I had no idea the halls could be so long. By the time I found another boys’ room, I’m pretty sure I had crossed a town line. So much for the two-minute recess.

I made it back, barely, by 1:00. As the meeting began, I reminded people that this was my first time at the podium and suggested that they try to take it easy on me. After the usual preliminaries, we got under way.

I’m pleased to report that the meeting proceeded about as smoothly as I could have imagined. There was a vigorous debate, which everyone knew was coming, about the purchase of a rubber-tire excavator, but no one got nasty. After I cautioned one speaker that his remarks were straying a bit off the subject, some people complained that I allowed another speaker to do the same. It was a judgment call, and I’m not sure who was right, but the minor uprising abated quickly.

A few rulings might have invited challenges, but they did not:

• Can an appropriation article be amended to change the source of funding? (Yes.)
• Can the article to appropriate money for a fire department command vehicle be amended to require privatization of the fire department? (Nice try, but no.)
• Is the petitioned article asking the meeting’s opinion on the allowance of OHRVs on town roads permissible? (Yes, but it has no binding effect.)

Compared to issues such as how to get my coffee and how to sneak out discreetly for a subsequent break, that was easy stuff.

Early in the meeting I was presented with a proper request for a secret ballot vote on the petitioned OHRV article. A ballot vote—exactly what I needed! But not quite—being a petitioned article, it was last on the warrant, which would do me little good.

To my delight, that problem was solved when, about two hours into the meeting, there was a motion to take up the OHRV article immediately. I was unsure (and still am) whether such a motion is debatable, but I ruled that it was not, and no one objected. The motion passed, we got out the paper ballots and the ballot box, and, after ensuring that everything was in order,

I headed for the hallway.

The rest of the meeting—which lasted about five hours, if I recall correctly— was uneventful. Afterward I received many compliments, and no complaints, on a meeting well run. Perhaps

they were taking it easy on me. I’m looking forward to the 2020 town meeting; I suspect I’m the only one in town who wishes we had meetings more often than annually. Assuming I continue in this office, no doubt there will be more challenging meetings in the future. Having a handle on the etiquette should help.

Cordell Johnston is the town moderator in Henniker and is NHMA’s Government Affairs Counsel.