Town Meeting: It's Not Over Until It's Over

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.

Despite the best preparation, things may go wrong at a town meeting. Notices were not posted in time, hearings were not held properly, critical articles necessary for the operation of municipal business did not pass. What to do now? Helpfully, there are a few options built into town meeting laws to address just this sort of situation.

Official Ballot Referendum (SB 2) Special Budget Meeting
If the operating budget fails in an official ballot referendum (SB 2) municipality, the governing body has two options. One is to do nothing and allow the default budget to take effect as the new operating budget. The other is for the governing body to call a special meeting to consider a revised operating budget. RSA 40:13, X. This meeting does not require superior court permission but may not be used to address any issue other than a failed operating budget.

Collective Bargaining Agreement Special Meeting
If the voters do not approve the cost items in a collective bargaining agreement, the governing body may call one special meeting to try again without obtaining superior court permission. In order to do this, however, the governing body must be sure to include the following language on the original article: "Shall (the municipality), if article ___ is defeated, authorize the governing body to call one special meeting, at its option, to address article ___ cost items only?" RSA 31:5, III. If a special meeting is being held on both an SB 2 revised operating budget and a collective bargaining agreement, those meetings must be combined.

Time
If the mistake involved a procedural error, time may actually solve the problem. Under RSA 31:126 - :131, once five years have passed from the time of the vote, all forms of municipal legislation (ordinances and other articles passed by town meeting) are presumed to be "procedurally valid." In other words, no challenge may be raised after that time based on an error in the procedure followed to pass it, although it may still be challenged for other reasons, such as its constitutionality.

Procedural Defect Meetings
Of course, five years can be a long time to wait. RSA 31:5-b was enacted to allow towns to correct minor defects in town meeting procedure without having to seek court permission or special legislative validation. (RSA 40:16 clarifies that SB 2 municipalities may also use this option for legalizing procedural errors.) Under this statute, towns may call a special meeting without court permission to ratify the action that was taken by the original meeting. This tool may only be used to correct "minor procedural irregularities," including the failure to comply with statutory requirements for time or place of notice, vote, hearing or wording, or with any procedural act not contrary to the spirit or intent of the law. So, for example, if the public hearing on zoning amendments was held a day or two late, or if the budget and warrant were posted a day or two late, the selectmen could call a special town meeting for the purpose of ratifying those items.

Special Town Meeting with Court Permission
If the error involved an appropriation of money and was anything other than a minor procedural defect, the governing body will have to obtain superior court permission to hold a special meeting to address it. Under RSA 31:5, a special town meeting to appropriate money may only be held in two circumstances. Either 50 percent of all voters on the checklist must attend the special meeting (which is not likely to occur), or the superior court must grant permission for the meeting in advance. The court cannot grant this permission unless it finds that an "emergency" exists. An "emergency" is "a sudden or unexpected situation or occurrence … of a serious and urgent nature, that demands prompt or immediate action, including an immediate expenditure of money." This might, for instance, include the failure of an article for the operation of a transfer station or solid waste compact (leading to a health and safety emergency), or the deletion of an appropriation for a statutorily-required function, such as the town clerk's or tax collector's operations.

Original article, written by C. Christine Fillmore, first appeared in the March 2011 issue of New Hampshire Town and City. This article has been revised and updated by Margaret M.L. Byrnes, Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.