A Nightmare on Main Street – Town Meeting in a Pandemic

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.

A year ago (January/February 2019) I wrote an article for these pages titled “Diary of a First-Time Moderator.” In it I described my experience presiding at the 2019 Henniker town meeting after first being elected moderator the year before. I recounted that despite a few glitches—an “Out of Service” sign on the boys’ room door, a bottle of water spilled on my copy of the warrant—the meeting went smoothly. I ended with this paragraph:

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. [But] assuming I continue in this office, no doubt there will be more challenges in the future.

“More challenges in the future.” Well, we didn’t have to wait long.

Town moderators were required to oversee five regularly scheduled events in 2020:  a presidential primary, two sessions of town meeting, a state primary, and a state election. In retrospect, the earliest of these events—the presidential primary in February and, for SB 2 towns, the deliberative sessions held about a week earlier—now seem quaint. People came into the polling place or meeting room, shook hands, perhaps even hugged, hung around and chatted in small groups, and eventually left with no concerns beyond the election or meeting results. Those were the days.

By town meeting day, March 10, the day on which almost every town was scheduled to hold its election/official ballot voting session, things had started to turn. Coronavirus cases were popping up here and there around the country, with five reported cases in New Hampshire. New phrases like “community spread,” “flattening the curve,” and “social distancing” were creeping into our vocabulary.                            

In Henniker, we took a few precautions that day—mainly offering hand sanitizer to voters. That almost certainly did nothing to prevent the spread of disease, but it did succeed in jamming our vote counting machine three times, as people got the sanitizer on their ballots and then tried to put the wet ballots into the machine. (Don’t get me started on Americans’ obsession with hand sanitizer. Really, don’t.) We eventually moved the sanitizer to the exit to prevent further problems.

Otherwise, the voting proceeded smoothly. There was less congregating than usual, and elbow bumping replaced hand shaking for many people, but both voters and election officials were still relatively unworried. No one was being advised yet to wear masks, and I don’t recall that anyone did.

Shall we postpone?

Then things got real. On Friday, March 13, states of emergency were declared at both the state and federal levels. There were still only a few confirmed COVID cases in New Hampshire, and none in Henniker, but the numbers were mounting around the country; and with no testing available, no one knew what to expect.

The business session of Henniker’s town meeting was scheduled for the next day, March 14. Under RSA 40:4, II, the moderator may postpone the meeting if “an accident, natural disaster, or other emergency occurs which the moderator reasonably believes may render use of the meeting location unsafe.” On Friday the 13^th, the attorney general released a memo implicitly recognizing that the pandemic may constitute an “emergency” that would justify a decision to postpone the meeting. But the decision was still up to local officials.

On the NHMA moderators’ list service, those with meetings scheduled for Friday evening or Saturday were discussing what to do. While some were planning to postpone, a majority intended to proceed. That was my intention as well, and our town administrator put a notice on the town website and Facebook stating that the meeting would proceed as scheduled.

That evening I happened to look at Facebook, where quite a few townspeople were urging postponement of the meeting, some of them rather aggressively. (Never mind that some of the more insistent commentators had never, to my knowledge, actually attended a town meeting.) I reminded myself that Facebook comments do not represent a scientific sampling of opinions, and I went to bed planning for a meeting the next day.

Our meeting was scheduled for 1:00 p.m. on Saturday. At 5:30 a.m. one of the selectmen sent an e-mail suggesting that we postpone the meeting. Facebook comments were continuing to trend in that direction, with some suggesting that we were being indifferent to the concerns of older voters. I e-mailed the selectmen to ask whether they could convene an emergency meeting to discuss the matter. We met at 9:30 a.m.—the five selectmen, the town clerk, and I. The town administrator, the road agent, and one other resident attended as well.

The statute requires the moderator to consult with the selectmen and the clerk before postponing, but leaves the ultimate decision to the moderator. Two selectmen were firmly in favor of postponing the meeting; two selectmen and the clerk favored proceeding. The fifth selectman was on the fence, and by now, I was, too. I was certain that postponing was the wrong decision—we all knew the situation was going to get worse, not better, in the coming weeks and months—but public sentiment merited some consideration.

Ultimately, and reluctantly, I said we would postpone, and no one argued. We got out our calendars and agreed on April 11 as the new date. We posted notice of the postponement in several physical and on-line locations. As the announcement circulated, several people thanked us for “doing the right thing,” but I remained unconvinced that we had.

My doubts were soon confirmed. Two days later, March 16, the governor issued an emergency order prohibiting scheduled gatherings of 50 people or more; a week later, the prohibition was tightened to 10 people. A town meeting in the near future would now be not only inadvisable, but illegal.

To make a long story short, we ended up postponing twice more, first to May 9 and then to June 6.

A plan takes shape. 

By late May, the prohibition on scheduled gatherings was still in effect—it was now in place through June 15, and it might well be extended again. Meanwhile, the town was now five months into its fiscal year and had not adopted a budget. Although it could continue, under RSA 32:13, to make expenditures that were “reasonable in light of prior years’ appropriations and expenditures for the same purposes during the same time period,” that was hardly a perfect solution. We needed to adopt a budget; there were also several articles on the warrant that did not fit under RSA 32:13’s authority, including three bond articles.

That’s when an idea struck. The school where we hold our meetings has an intercom system. When someone speaks into the microphone from the principal’s office, it can be heard clearly in every room. A gathering of 10 or more persons was prohibited, but what about multiple gatherings of nine or fewer?

We could put voters in rooms around the school, no more than nine to a room, with an assistant moderator in each room. From the office, I would read each article over the intercom. One of the selectmen would move the article, and another would second it. Anyone who wanted to speak on an article or offer an amendment would come to the office to speak. When it was time to vote, people in each room would raise their voting cards; the assistant moderator would record the vote and send me a text message. On a secret ballot vote, each assistant moderator would collect the ballots in an envelope and bring them to the office for counting.

It would be a little unwieldy—I was particularly concerned about having a line of people waiting to speak in the office—but we were beyond striving for perfection at this point. I called our town administrator, Joe Devine, and ran it by him. He’d been thinking along the same lines and thought it was worth a try. We talked to the school principal, Matt Colby, and he was willing to work with us to make it happen.

We met at the school to develop a plan. As we discussed it, the idea of having people come to the office to speak became more of a concern. Apart from having a crowd in the office, getting to the office would be a challenge. The Henniker Community School was built in multiple phases over a century and a half, and it is a three-story rabbit warren where all but the most familiar get lost immediately. I could imagine voters wandering the halls, trying to find their way from their designated room to the office—and back.

The school’s IT director had a solution. Rather than use the intercom, we could use a video conferencing platform that would enable voters to speak from their rooms and be heard by the entire meeting. Although more complicated than the intercom, this solved the main problem; and by now people were familiar enough with Zoom and similar platforms that it might work.

We agreed. The platform to be used was Discord, a sort of competitor to Zoom; I was not familiar with it, but it sounded manageable. In addition to solving the crowding problem, it made communication with the various rooms easier, because instead of sending me text messages, the assistant moderators could use the “chat” function.

We explained the plan to the selectmen, who got on board with little hesitation. Everyone agreed that, at the very least, we needed to adopt operating budgets for the town, the library, and the water and sewer departments. We expected that people would not be excited about spending a Saturday afternoon in June in a non-air-conditioned building, at some risk to their health (albeit minimal—the first peak had passed by then), so we would finish what absolutely had to get done, see how things were going, and adjourn the meeting to a later date if necessary.

The details.

With the basic concept in place, there were still plenty of details to cover, and I wrote up a comprehensive plan. To keep lines short, we would have voters check in at three separate building entrances, divided alphabetically. Each voter would pick up an envelope at check-in containing a copy of the warrant, the special rules for the meeting, a set of color-coded ballots for the secret ballot votes, and a voting card. Each envelope would have a room number written on it, and the voter would go to that room. No room would have more than nine people, and there would be separate rooms for those who declined to wear masks.

Ballot clerks at the three entrances would communicate by walkie-talkie. If a couple or a family wanted to be in the same room but had last names that were in different parts of the alphabet, the ballot clerks could check them in together using the walkie-talkies, and they could proceed to the same room. Non-voters (children, guests, members of the press) would need to check in and be assigned to a room, but the voting card and ballots would be removed from their envelopes.

I was able to recruit about 15 people to serve as assistant moderators, one for each room. Most of our regular ballot clerks volunteered, as did the supervisors of the checklist and several other helpful citizens.

A few days before the meeting, Joe, Matt, and I walked through the building with the IT director and the facilities manager to make sure each room was set up for video conferencing and the chairs were spaced at least six feet apart. We also got basic training in the use of Discord. This was at a time when towns around the state were desperately trying to figure out ways to hold their meetings, and as we were leaving the building, I said to Joe, “If this works out, it could be a model for all the other towns—they’ll be calling it the Henniker model.”

“Or,” I added, “it could be a disaster, and we’ll be tarred and feathered.”

The morning of June 6, I set up the check-in tables at each entrance with the envelopes I had stuffed and numbered, and with about 80 ballpoint pens per table. At the time, we still thought the coronavirus was easily transmitted on surfaces, so I had stuffed the envelopes several days in advance and laid them out in flat boxes; thus I could honestly tell people the envelopes and their contents had not been touched by human hands in over 72 hours. I dumped the pens from their original boxes onto the tables and used a single pen to rearrange them somewhat neatly—again, no human contact.

Best laid schemes o’ mice an’ men . . .

Meeting time was 1:00 p.m., and I had asked the assistant moderators to arrive around noon to get trained on Discord and find their rooms. The training sessions were my first inkling that this might not go swimmingly. While my job at command central was pretty simple, the instructions for the individual rooms were more complicated, and it was clear that some people were having trouble following them—as I suspect I would have, as well.

Meanwhile, voters were starting to arrive. The check-in process was going fairly smoothly, but as it got closer to 1:00 and I walked around to check on the rooms, my concern was growing. In some of the rooms, no one could get the technology to work. I alerted the IT director, and he and an assistant began going room-to-room to address the problems.

Since we weren’t using the intercom, we had decided the meeting could be run from the library, which could accommodate the five selectmen, the finance director, Joe, and me. I took my place at the microphone while Joe, Matt, and the IT staff were still running around trying to put out fires.

At 1:00 I announced that we would be a little late getting started because of some technical difficulties. I made a similar announcement, with increasingly abject apologies, about every five minutes for the next half-hour. According to my notes, I finally called the meeting to order at 1:36 p.m., although it was far from clear that all the bugs were gone, as I was getting messages in the chat box about continuing problems in some of the rooms.

“Can you hear me now?”

In the meeting minutes, what happened over the next hour or so will look quite simple:  we opened the voting on one bond article and tabled two others, all without debate. In real time, however, it was bedlam. The technology was breaking down randomly throughout the building. The video was working in only a few rooms. In some rooms the audio was fine, in others it was very weak, and in others it was non-existent. A couple assistant moderators came to the library to inform us that they couldn’t hear a thing in their rooms. The chat box was lighting up with questions and complaints, while the IT staff tried various fixes and we took multiple breaks to regroup, during which we moved people from one floor to another to find rooms where the technology worked. Along the way we learned that (1) Google had released an update overnight that confused some of the software and caused all of the laptops to keep reverting to a “default” mode; and (2) the school’s wifi network was breaking down. The problems were not going to go away.

You really can’t have a legitimate meeting if the participants can’t hear what’s being said. By the time we got to the operating budget, I was considering adjourning the meeting. That’s when Matt, the principal, suggested that we fall back on our original idea—the intercom. That sounded great to me.

With the intercom, finally everyone could hear—but from any room except the principal’s office, the microphone shuts off after 45 seconds. Someone had a lengthy amendment to the operating budget, which he had to read in 45-second increments, and I then had to continue the discussion in the same manner. When that quickly became absurd, it was suggested that I go down the hall to the office, where there is no limit on mike time.

That solved one problem, but created several more. First, although everyone could now hear me, there was no way for anyone to communicate to me. Second, I was now isolated from the selectmen, and I had to keep running down the hall to talk to them. Third, when I spoke into the mike in the office, I could hear myself throughout the building on a half-second delay. I don’t know about anyone else, but I have trouble talking while someone is repeating every word back to me a half-second later. To focus on what I was saying, I had to talk so slowly that I was sure I sounded drunk. (This was subsequently confirmed.)

A kilt? Why not.

Somehow during this confusion we managed to vote on the proposed budget amendment (defeated soundly) and then vote on the budget as presented (passed easily). But I was already thinking about how our town attorney would defend this in court.

The day was beginning to seem like a bad dream that would never end. Adding to the dreamlike quality, there was now a man in a kilt standing in the hallway outside the office, shouting, “This whole thing has been a sh**show!” at a police officer. (To be fair, he wasn’t wrong.) The officer seemed to be restraining him from what I sensed might otherwise have turned into a physical assault on the moderator.

Sometimes there is nothing to do but give up. After a brief consultation with the selectmen, I announced a 15-minute recess and asked everyone to adjourn to the school gym, where the meeting would reconvene—no video conferencing, no laptops, no intercom.

While the kilted man was coaxed away, people began emerging from their rooms and wandering through the hallway maze toward the gym. The scene resembled the aftermath of a week-long air raid, with dazed survivors cautiously exiting their bomb shelters to see what was left of their city. Or maybe that’s just how it felt to me.

As we reassembled in the gym, the obvious question was whether we were now violating the still-active prohibition on “scheduled gatherings” of 10 or more. Although no one challenged me on this, I had two answers ready:  (1) This gathering wasn’t scheduled; and (2) I don’t care—I’ll pay the fine. The police chief was there; he could turn me in if he wanted. (He wasn’t going to. He gave me a sympathetic fist bump afterward.)

A return to order.

With people sitting on the bleachers or just milling around on the gym floor, we set up a speaker with a hand-held microphone and improvised. Before we could do anything else, one woman angrily demanded that we start the meeting over. I said we were not going to do that, but she made the legitimate point that we had just adopted a budget even though some people were unable to hear the presentation. I then asked whether she would like to move to reconsider the vote on the budget, and she said yes. The motion was seconded, I called for a vote, and the motion to reconsider failed.

With that out of the way, the meeting voted to move forward the other departmental budgets and a few other articles of pressing importance. We dealt with those in rapid-fire manner, approving them all with no debate. In the meantime, having closed the polls on the bond vote, we counted the ballots and announced that it had passed, 80-10. Someone then moved to limit reconsideration on all the articles that had been voted on, and that motion passed easily.

At that point I told the selectmen we should adjourn to a later date, and all agreed. A motion was made and seconded, and the meeting was adjourned to July 15 at 6:00 p.m.

As the gym slowly emptied, several people came up to me to express their support for our efforts and their regrets that it had gone so badly. I did hear some complaining, but it was far outweighed by the supportive comments.

I sat down to commiserate with Joe, Matt, and the school facilities manager. We had all poured an enormous amount of work into something that failed entirely, but we still had to plan the July 15 meeting. Matt agreed that we could use the gym, and we decided to leave the details for a time when we could think more clearly.

No one was tarred and feathered, but clearly the “Henniker model” was not going to be the salvation of New Hampshire town meeting.

I recalled the prior year’s long but tame meeting, after which I had retired to Daniel’s restaurant in Henniker for a leisurely dinner and a manhattan or two. That wasn’t going to happen today—under the state of emergency, restaurants were doing take-out only. Nor would a manhattan have sufficed, anyway—the only thing I wanted to mix my bourbon with was more bourbon.

A low-tech finale.

On July 15 the meeting reconvened in the gym without any fancy technology. The statewide prohibition on large gatherings had expired, and we had set up chairs six feet apart across the entire floor and pulled the bleachers out. The doors to the outside were open to provide ventilation and to allow people to sit outside if they chose. By my recollection, about 60 people attended; most but not all were wearing face masks, and no one chose to sit outside.

I began by summarizing the actions that had been taken on June 6, then I asked whether anyone wanted to reconsider any of those votes. I thought it was important to make this offer—I had imagined sitting in a courtroom with a judge asking, “You’re telling me the meeting adopted a budget when people couldn’t hear?” The defeated motion to reconsider on June 6 probably cured that defect, but I wanted to leave no doubt; and I knew a motion to reconsider wouldn’t pass.

Because we had voted at the earlier session to limit reconsideration, if a motion to reconsider did pass now, the actual reconsideration would have to occur at yet another adjourned session held at least seven days later. I explained this, expecting that it might dampen enthusiasm for such an action; nevertheless, after a short pause, someone did move to reconsider all of the June 6 actions. The motion was seconded, but was overwhelmingly defeated.

After that, and certainly compared to everything that had happened previously, the rest of the meeting was unremarkable. There was a vigorous debate over an expenditure for road improvements, but that was nothing. We finished in under two hours, and Town Meeting 2020 was history.

And then we had the fall elections—a whole other story. They brought unprecedented challenges as well, but after town meeting, nothing seemed difficult.

Lessons.

Notwithstanding the debacle, I still believe our fundamental plan was a good one. If it is possible to divide the meeting into separate rooms with sufficient space but still enable voters to communicate with each other, public health can be protected while preserving the essence of town meeting. How to do it is the issue. Some towns may want to work on that in 2021. I doubt that we’ll try it again.

One obvious lesson—which I have always known but somehow forgot this time—is that one should never, ever assume that any kind of technology is going to work. In the future, any high-tech processes at our meetings will come with a low-tech Plan B.

I also was reminded that (a) there are a few people in every town who are certain that local government does everything wrong and are always happy to tell us about it, but (b) there are plenty more who quietly appreciate the efforts of local officials and employees; and many of the latter will pitch in to help when necessary. The number of people who volunteered their time for both the town meeting and the fall elections was inspiring. Equally inspiring were the support and patience of the selectmen and other town officials who suffered through the ordeal with us.

Do I still wish we had town meetings more than once a year? Well, maybe not until the pandemic is over. It will be a relief to get back to a “normal” meeting, whenever that may be possible. I don’t know what will happen in 2021, but I expect it will be less exciting than 2020. And that will be fine.

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