New Hampshire Town and City July-August, 2016

July/August 2016

TownandCity N E W

H A M P S H I R E

In This Issue:

A PUBLICATION OF NEW HAMPSHIRE MUNICIPAL ASSOCIATION

Watershed Management Strategies and Resources......8 SB 380, New Hampshire’s Drinking Water and State Assistance Fund.................................................11 Why Should I Care About the MS4 Permit?..............13 Local Regulation of Biosolids and Septage Use........15

Contents Table of

Volume LIX • Number 4

July/August 2016

3 A Message from the

NHMA Executive Director

5 Happenings 7 Upcoming Events 32 Up Close and Personal on the Board: Brent Lemire 33 Up Close and Personal in the Field: Donald DeAngelis 34 Tech Insights: File Sharing: A Potential Security Risk for Municipalities 36 The HR Report: Can Local Governments Prohibit Employees from Possessing Firearms in the Workplace?

38 Legal Q and A: Contracting 101

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Watershed Management Strategies and Resources

11

SB 380, New Hampshire’s Drinking Water and State Assistance Fund

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Why Should I Care About the MS4 Permit?

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Local Regulation of Biosolids and Septage Use

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Qualifications-Based Selection for Design Professionals

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Make Room for Daddy: The New Law on Accessory Dwelling Units

Cover Photo: Hanover, NH Town Office. Photo by Betsy McClain, Director of Administrative Services and Town Clerk, Town of Hanover

New Hampshire Town and City Magazine Staff

Executive Director Editor in Chief

Judy A. Silva Timothy W. Fortier

Contributing Editors Margaret M.L. Byrnes

Barbara T. Reid Art Director

Scott H. Gagne

Production/Design

Scott H. Gagne

Official Publication of the New Hampshire Municipal Association 25 Triangle Park Drive • Concord, New Hampshire 03301 Phone: 603.224.7447 • Email: nhmainfo@nhmunicipal.org • Website: www.nhmunicipal.org New Hampshire Municipal Association Phone: 800.852.3358 (members only) NEW HAMPSHIRE TOWN AND CITY (USPS 379-620) (ISSN 0545-171X) is published 6 times a year for $25/member, $50/non-member per year, by the New Hampshire Municipal Association, 25 Triangle Park Drive, Concord, New Hampshire 03301. Individual copies are $10.00 each. All rights reserved. Advertising rates will be furnished upon application. Periodical postage paid at Concord, NH 03302. POSTMASTER: Send address changes to NEW HAMPSHIRE TOWN AND CITY, 25 Triangle Park Drive, Concord, NH 03301.

NEW HAMPSHIRE TOWN AND CITY serves as a medium for exchanging ideas and information on municipal affairs for officials of New Hampshire municipalities and county governments. Subscriptions are included as part of the annual dues for New Hampshire Municipal Association membership and are based on NHMA’s subscription policy. Nothing included herein is to be construed as having the endorsement of the NHMA unless so specifically stated. Any reproduction or use of contents requires permission from the publisher. POSTMASTER: Address correction requested. © Copyright 2016 New Hampshire Municipal Association

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New Hampshire Municipal Association

Board of Directors The Board of Directors oversees NHMA’s league services. The board is comprised of 25 local officials elected by NHMA member municipalities.

Seated, left to right: Chris Dwyer (Councilor, Portsmouth), Stephen Fournier (Town Administrator, Newmarket; Immediate Past President), Donna Nashawaty (Town Manager, Sunapee; Treasurer); Scott Myers (City Manager, Laconia; Chairman), Shelagh Connelly (Selectman, Holderness; Vice Chairman), Elizabeth Dragon (City Manager, Franklin), Elizabeth Fox, Assistant City Manager/Human Resource Director, Keene), and Elaine Lauterborn (Councilor, Rochester).

Standing, left to right: Eric Stohl (Selectman, Columbia), Ben Bynum (Clerk/Tax Collector, Canterbury), Bill Herman (Town Administrator, Auburn), Hal Lynde (Selectman, Pelham); Phil D’Avanza (Planning Board, Goffstown), John Scruton (Town Administrator, Barrington), Brent Lemire (Selectman, Litchfield), Teresa Williams (Town Administrator, Wakefield), Patrick Long (Alderman, Manchester), David Caron (Town Administrator, Jaffrey), Shaun Mulholland (Town Administrator, Allenstown) and Jim Maggiore (Selectman, North Hampton).

Missing: Candace Bouchard (Councilor, Concord), Butch Burbank (Town Manager, Lincoln), Priscilla Hodgkins (Clerk/Tax Collector, New Castle), Nancy Rollins (Selectman, New London) and David Stack (Town Manager, Bow).

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NEW HAMPSHIRE TOWN AND CITY

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A Message from the

NHMA

Executive Director Judy Silva

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s we brave the frenetic end of the legislative session and the dust starts to settle from the town meeting season, there have been several significant transitions in and around NHMA.

First, we must say our good-byes to the Property-Liability Trust—formed by NHMA in 1986 to meet the casualty and liability needs of municipalities at a time when the private markets declined to do so. For 29 years, PLT provided a pooled risk environment for property and liability, workers’ compensation, and unemployment compensation for its members, with strong loss prevention and risk management programs to help control losses and costs. PLT staff knew local government and tailored coverage and training to those specific needs. We could write a book on why they were forced to close the doors on such a successful program, but we’ll hold that for another day. Today we thank all the people who have been employees of PLT and all the local officials who have served as PLT board members over the many years for their dedication to, and hard work on behalf of, New Hampshire’s cities, towns, schools, counties, and quasi-municipal entities. Thank you.

As you probably also know, NHMA has transitioned (and is still transitioning!) to a new independent network and cloud computing. While we are up and running, no shift of such magnitude goes without a glitch, and we are still learning.

Within days of the network cutover, NHMA also moved to a new location in the building at 25 Triangle Park Drive. In my 24 years with NHMA, this is only my second office move—a luxury not shared by most of the employees in this building.

While we are watching with interest the candidates lining up for election to state offices, we are preparing the Final Legislative Bulletin, which will review all new laws of municipal interest passed in the last session. September brings the Budget and Finance Workshop, as well as the Municipal Law Lecture Series. Also in September, we are excited to bring back the City Officials Workshop, and to extend the program to cover towns that operate with a representative form of government (rather than a town meeting). You can find more information about all of these programs in this magazine.

And finally, we are shifting into a higher gear on our annual conference planning. We are developing enlightening educational sessions, lining up helpful exhibitors, and arranging a delightful Wednesday evening gala with dinner, entertainment, and a chance to connect with new and old NHMA friends. Between our workshops and the 75th Anniversary Annual Conference, we hope to be spending a lot of time with you! Until then, enjoy the summer.

Warmest regards,

Judy Silva NHMA Executive Director

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Thank You It’s hard to say goodbye. Property-Liability Trust (PLT) will no longer be writing coverage, effective June 30, 2016, but the PLT staff hopes the friendships and connections we have formed with New Hampshire’s public employers and employees will continue. We are profoundly grateful for the steadfast support of our Members. To the dedicated individuals who have served on the PLT Board of Directors we offer our deep appreciation for the wisdom and time you have shared and we take with us all we have learned from you. Over the 30 years PLT has provided coverage, our commitment to New Hampshire’s public sector has never wavered. Saying goodbye isn’t saying enough; we extend our heartfelt thanks to our Members.

It has been our privilege to serve you.

800.646.2758 • www.pltnh.org

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NEW HAMPSHIRE TOWN AND CITY

www.nhmunicipal.org

HAPPENINGS New Hampshire Water Professionals “Fly-In” to Washington In April, members of the NH Water Pollution Control Association (www.NHWPCA.org) traveled to Washington, DC to participate in the annual New England Water Environment Association (www.NEWEA.org) Congressional Briefing. This visit coincided with a National Fly-In for water professionals from around the country. More than 30 New Englanders attended.

NH water quality professionals visited the NH Congressional delegation in Washington in April, urging attention to the growing need for sustainable water infrastructure funding, including, Harry Stewart (former NH-DES Water Division Director), Shelagh Connelly (Resource Management, Inc.), Congresswoman Ann Kuster, Andrea Martel (President, NHWPCA), David Allen, P.E. (Portsmouth Deputy City Manager).

The purpose of the Fly-In was to get our elected officials to understand how important it is to continue funding water infrastructure and supporting programs and policies that ensure clean water for all our communities. With the federal budget being developed right now for the next biennium, it was important that New Hampshire water advocates were at the table.

Local Officials Workshops Wrap Up

Congratulations to Angelo Marino, above, the City of Nashua’s Chief Assessor, who retired after nearly 20 years with the city. Although Angelo has retired from his assessor position, he continues to work for the city in his role as GIS Manager.

NHMA’s 2016 spring Local Officials Workshops series concluded with a full-day workshop in Concord on June 4. This year’s workshops were held in Jaffrey, Grantham, Hudson, Whitefield, Ossipee and Concord and attracted over 190 new and experienced local officials. NHMA’s legal services attorneys, Stephen Buckley and Margaret Byrnes, provided overviews of topics essential for local officials to effectively serve their communities, including discussions on the Right-toKnow law, ethics and conflicts, town governance, liability and more.

Photo left: A great turnout of municipal members at NHMA’s Local Officials Workshop at the Carroll County Complex in Ossipee.

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Lemire Appointed Executive Director of Fire Chiefs Association The New Hampshire Association of Fire Chiefs recently appointed former Litchfield Fire Chief, Brent T. Lemire, as the organization’s first Executive Director.

Lemire has been a member of the Association since 1985, serving as its President in 1990 and as the organization’s secretary from 1992 to 2012 and again in 2015 to the present. He served as New Hampshire Director to the New England Association of Fire Chiefs and holds Life Membership J U LY / A U G U S T 2 0 1 6

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HAPPENINGS from page 5 in both the New England and International Associations of Fire Chiefs.

He holds a Master of Public Administration degree from the University of New Hampshire, serves on the Board of Directors for the New Hampshire Municipal Association, is the public member of the New Hampshire Board of Court Reporters, and currently serves as vice chair of the Litchfield Board of Selectmen.

Lemire assumed the position effective June 1, 2016. For more information, visit www.nhfirechiefs.org.

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New Tools Help Well Owners and Local Officials Address Public Health Concerns of Private Wells Nearly half of the state’s population relies on private wells for their drinking water at home, and most wells have at least one contaminant at a level of concern for health. N.H. Department of Environmental Services (NHDES) recommends that all private wells be tested every few years for 17 contaminants. Local officials and private well owners have three new tools to address well testing issues. For local officials and others interested in organizing community-wide well testing events, Dartmouth College has developed a “Well Water Community Action Toolkit,” based on experience with a variety of methods to increase

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private well testing. The toolkit includes outreach materials and planning worksheets for use in organizing local community testing events, which Dartmouth found are the most effective means to boost testing by private well users. The “Toolkit” can be found by searching the web for “Dartmouth well water toolkit.”

For local officials interested in incorporating NHDES’s well testing recommendations into local building codes, N.H. Building Officials Association, N.H. Health Officers Association, N.H. Planners Association, and NHDES have developed “Guidance to Refine the Potable Water Definition in New Hampshire Municipal Building Codes” (rev. March 2016). Search for “NHDES potable water guidance.”

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Upcoming

Events

For more information or to register for an event, visit our online Calendar of Events at www.nhmunicipal.org. If you have any questions, please contact us at nhmaregistrations@nhmunicipal.org or 800.852.3358, ext. 3350.

JULY

SEPTEMBER

UNH T2/NHMA Workshop: A Hard Road to Travel Wednesday, July 13 8:30 a.m. – 2:30 p.m.

NHMA Offices 25 Triangle Park Drive, Concord

Workshop: Elected City Officials Saturday, September 17 8:30 a.m. – 2:00 p.m.

NHMA Offices 25 Triangle Park Drive, Concord

Webinar: QBS for Design Professionals Wednesday, July 20 12:00 p.m. – 1:00 p.m.

AUGUST Webinar: Overtime Final Rule and Municipal Governments Wednesday, August 17 12:00 p.m. – 1:00 p.m.

www.nhmunicipal.org

Workshop: Budget and Finance Tuesday, September 20 9:00 a.m. – 4:30 p.m.

Puritan Event & Conference Center, Manchester Workshop: Budget and Finance Tuesday, September 27 9:00 a.m. – 4:30 p.m.

Attitash Grand Summit Hotel, Bartlett

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cross New Hampshire, the need to restore and protect our water resources is ever-increasing: State and federal regulations are requiring more action, and studies have shown that the quality of our surface waters— such as streams, rivers, lakes, and ponds—correlate to our quality of life, and even our livelihood. The task can be daunting for a single municipality since it requires changes to human behavior and modifications to the built environment throughout the watershed to have a meaningful effect.

Proactive steps in one town have the potential to be negated by another. This is where regional watershed management planning and coordination among communities is likely to result in the greatest benefit.

Why Watershed Management Matters

It Takes a More than a Village: Watershed Management Strategies and Resources

By Bill Arcieri, CPESC, CPSWQ

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In addition to the obvious loss of ecological and recreational value, the growing list of impaired waters leads to increased costs to communities and businesses. Infrastructure upgrades, maintenance needs, and other compliance add direct costs, while lost revenue from diminished recreation and tourism activities, and related employment, create indirect costs. A recent study entitled What’s Our Water Worth? reported an estimated economic impact of $51 million in lost retail and hospitality sales and $18 million in state and local tax revenue if a significant decline in water clarity or purity was to occur statewide1. According to Michele L. Tremblay, President of the New Hampshire Rivers Council and interim Co-Chair of a new public-private partnership “New Hampshire Lives on Water,” a new companion study called “What’s Our Water Cost?” is underway. This study will examine and update water-related costs, including deferred maintenance on infrastructure to treat and deliver drinking water and treat and dispose of wastewater. According to Tremblay, “Employers want a healthy environment and a good quality of life to attract and retain a skilled workforce.”

The study will provide economic data on the value of water and future infrastructure needs to policy makers and decision makers on the local and state levels.

Taking Action to Preserve Our Waters To initiate collaboration, communities in the same watershed should form a steering committee to leverage common interests among public and private organizations and to develop and implement a watershed management plan.

This can lead to quicker results and cost-savings by harvesting the energy and resources of multiple entities seeking to achieve a common goal. Forming a committee prevents duplication of efforts and promotes the effective use of resources to enact effective policies and programs to educate residents about the importance of shoreland buffers, stormwater management, septic system setbacks, and land-use www.nhmunicipal.org

zoning. Public involvement and engagement are essential to restoring and protecting water quality.

Numerous examples exist throughout the state where municipal officials, lake associations, river advisory groups, regional planning agencies and state agencies have come together to develop a watershed approach. Among these, for example, is the Southeast Watershed Alliance (SWA), which has established model stormwater management regulations with the help of the UNH Stormwater Center and Rockingham Planning Commission to enhance stormwater treatment for future development. So far, about a dozen communities have adopted these regulations, the first step forward in a multi-phased regional approach to resolving water quality issues in the Great Bay Estuary. The key to getting started is securing funding assistance to initiate and leverage common interests.

Finding the Resources for Help Implementing watershed management plans takes an investment of public resources—including time and money, both of which are often in short supply. There are, however, a number of funding sources that New Hampshire municipalities can turn to for assistance. For example, although state or federal grant funds cannot be used to perform specific compliance activities contained in the MS4 permit, the NHDES Watershed Assistance Section can provide US EPA Clean Water Act Section 319 grant funds to assist communities and non-profit groups with addressing water quality problems from a broader watershed perspective. Developing watershed management plans as part of the Section 319 program can spread the responsibility of restoring surface waters amongst multiple stakeholders and organizations, and can make the most of limited resources to find the most cost-effective solutions. Securing Section 319 funding in support of watershed-based planning or best management practice (BMP) implementation involves a competitive application process, as well as a 40% non-federal match in the form of cash or in-kind services, materials, equipment, time, labor, etc.

The Clean Water State Revolving Fund (CWSRF) represents another potential funding source for implementing nonpoint source and stormwater management control measures. This program provides assistance through the use of low-interest loans. In FY2015, NHDES set aside $1.35 million for projects that promote water conservation, water reuse, energy efficiency, or the use of LID stormwater management measures. Projects involving infrastructure mapping and asset management are also eligible for up to 30% loan forgiveness in 2016. For more information on this www.nhmunicipal.org

Success with Section 319 Section 319 grants have helped New Hampshire’s municipalities make great strides in alleviating surface water impairments in our lakes and streams, as well as resulting compliance activities imposed by state or federal permits. For instance, NHDES 319 funds covered 40% percent of approximately $400,000 spent to date on the ongoing Berry Brook Watershed Restoration Project in Dover. So far, the project has reduced the effective impervious area in the watershed by 12%, as well as reduced the annual pollutant loading of sediment by 6.8 tons, phosphorus by nearly 50 pounds, and nitrogen by 330 pounds. Section 319 funding is being used to facilitate similar success on projects at Willow Brook in Rochester; Hodgson Brook in Portsmouth; Crystal Lake, Maxwell Pond, and McQuesten Brook in Manchester; Cobbetts Pond in Windham; and Baboosic Lake in Amherst—just to name a few. For more information see http://des.nh.gov/organization/divisions/water/wmb/was/index.htm.

program, see the NHDES web page: http://des.nh.gov/organization/divisions/water/wweb/grants.htm#srf.

Other related state funding programs include the Aquatic Resource Mitigation (ARM) funds and the Moose Plate Grant (MPG) programs. The ARM fund supports resource restoration activities such as stream bank stabilization, wetland restoration, dam removal, or stream crossing upgrades.

These funds are specific to each major watershed and have a revolving application period. For more information, go to http://des.nh.gov/organization/divisions/water/wetlands/wmp/ index.htm.

Meanwhile, the MPG program supports a wide range of habitat and water quality protection and restoration projects. The grant awards are generally smaller, in the range of $5,000 to $25,000, depending on the project and number of qualified proposals. These funds are geared toward supporting public education and outreach activities. Additionally, they can be used as match for Section 319 projects, supplementing other grant awards and stretching resources even further to expand the overall geographic scope and environmental benefit. For more information, go to http://www.mooseplate.com/.

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VILLAGE from page 9

A Collaborative Effort Ultimately, when it comes to watershed management planning, a number of old adages apply—from “many hands make for light work” to “making the most of limited resources.” It may truly “take more than a village,” but between collaboration across communities, involving the public, and seeking

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assistance from some of the numerous funding sources available, New Hampshire’s towns and cities can make great strides in restoring and protecting our invaluable water resources.

assistance to NH regulatory agencies on water quality issues, and is a frequent speaker at water resources-related conferences throughout the region. Bill can be reached at barcieri@vhb.com.

Bill Arcieri is a senior water quality scientist with VHB in Bedford, NH. He is a member of the Board of Directors for the Southeast Watershed Alliance, has been actively involved in providing technical

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NEW HAMPSHIRE TOWN AND CITY

For more information on the What’s Our Water Worth? study, please go to http://www.nhrivers.org/documents/ Econ%20Study%20Brochure.pdf.

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First-inthe-Nation:

SB 380, New Hampshire’s Drinking Water and State Assistance Fund

By Gary S. Lynn, Department of Environmental Services

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ew Hampshire Senate Bill 380 (SB 380) obtained universal, bipartisan support from the legislature this year and has been signed into law. This new legislation holds forth the promise of significant state assistance for the repair, protection and expansion of the State’s drinking water infrastructure.

To accomplish this goal, SB 380 establishes a dedicated drinking water and groundwater trust fund. Although the new law became effective immediately upon passage, the trust fund receives 100% of its funding from the State’s MtBE litigation verdict in the ExxonMobil versus State of New Hampshire case. Essentially, State assistance from SB 380 provisions is contingent upon obtaining funds from the ExxonMobil case.

A brief history of the State’s MtBE litigation provides necessary background for understanding the timing and likelihood of obtaining funds to implement this historic, first in the nation legislation. In 2003, the State of New Hampshire sued twenty-two gasoline manufacturers and refiners seeking damages in connection with the statewide contamination of groundwater with the gasoline additive MtBE. In 2013, the State settled the lawsuit with all but one of the defendants, obtaining $81,630,000 for remediation of MtBE contamination statewide. One defendant, ExxonMobil Corporation, chose to go to trial, and the jury returned a $236,372,644 verdict against the company. ExxonMobil appealed to the New Hampshire Supreme Court. In October 2015 the New Hampshire Supreme Court ruled against the company. ExxonMobil subsequently filed a petition for writ of certiorari with the U.S. Supreme Court seeking a review of the case. New Hampshire filed a response in opposition to the petition. On

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May 16, 2016, the United States Supreme Court denied ExxonMobil’s appeal. The verdict monies, which are the funding source for SB 380, became available in June with the State receiving $307,172,716.28 in settlement money, of which 90% goes into the trust and 10% goes into the State’s Rainy Day Fund.

It is important to understand that there are two different types of funds associated with the MtBE litigation. The first type is the settlement funds (obtained from all defendants except ExxonMobil). Settlement funds are currently being used for MtBE related cleanup activities and all settlement fund related spending is governed by the language of the settlement agreements.

After deduction of two years of expenditures, $72.4 million in settlement funds remain available for MtBE projects. These funds are currently being used by the Department of Environmental Services MtBE Remediation Bureau for MtBE release prevention, cleanup, drinking water well sampling and infrastructure projects. To date this program has: • Removed 185 underground storage tanks and provided 77 gasoline spill prevention systems to in-state motor vehicle recycling facilities; • Completed a water line extension to address contaminated water supplies impacting 30 homes in Rochester; • Approved funding for 3 water line extension engineering designs and six water line extension feasibility studies; • Funded work on relocation of Dover’s MtBE contaminated Griffin water supply well to a more protected portion of the Pudding Hill aquifer; • Removed over 10,000 tons of contaminated soil from 13 contaminated sites; and J U LY / A U G U S T 2 0 1 6

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SB 380 from page 11 • Sampled over 2,800 drinking water wells for MtBE contamination.

Work is proceeding on MtBE cleanups using the settlement funding and that work is not impacted or changed by the passage of SB 380.

The second type of funds associated with the MtBE litigation is the verdict funds that will be used to fund the provisions of SB 380. What exactly are the provisions of SB 380? In brief, the legislation: • Uses the ExxonMobil award to establish a trust fund for drinking water and groundwater; • Provides funding to “investigate, manage and remediate contaminated groundwater;” • Provide funding through cost sharing grants to municipalities for the design, construction and expansion of public water systems and the expansion of wellhead protection programs; • Provides funding to assist with the development and implementation of local and regional well head protection programs; and • Requires mapping of classes of groundwater and groundwater contamination.

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How will SB 380 be implemented, assuming the funding source is in place this year?

First, the legislation establishes an advisory committee for the administration of the trust fund. The committee must consult with DES at least annually and provide “advice and counsel relative to future work and project priorities” (SB 380). The advisory committee members consist of four legislators, three members of State Government (Treasury, DHHS and the Governor’s designee) and four members of the public including a member to represent municipalities with public water systems. The advisory committee will provide an annual report to the legislature and will review and report back to the legislature the progress being made toward the goals of the legislation.

The advisory committee will prepare a report for the legislature every five years on the progress being made relative to MtBE contamination and the efficacy of the program established by SB 380.

What can be accomplished before the committee is in place and develops its recommendations?

The MtBE Remediation Bureau and existing settlement funds are cur-

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rently available to address MtBE contamination and MtBE related drinking water problems. This program is being used to evaluate the feasibility of potential projects and to complete a variety of MtBE cleanup related projects, including a number of significant infrastructure projects.

The settlement fund related cleanup efforts will be helpful for developing capacity, identification of potential projects for the advisory committee to consider and piloting a variety of approaches to execution of these types of projects. Although key decisions for the future implementation of SB 380 must wait on the appointment and meeting of the advisory committee, it is time to consider the possibilities for the future. If you would like to provide input on the development, implementation and prioritization of future SB 380 programs aimed at protecting, remediating and enhancing New Hampshire’s drinking water and groundwater resources, don’t hesitate to contact us. DES will share the input with the future advisory committee once it is established.

Gary S. Lynn, P.E., is Administrator of the MtBE Remediation Bureau with the New Hampshire Department of Environmental Services. For more information, please contact Gary at (603) 271-8873 or Gary.Lynn@des.nh.gov.

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Why Should I Care About the MS4 Permit?

By Jim Gove

The short answer is you may not, but your pocketbook sure does.

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he MS4 permit is a regulation that will require certain “regulated communities” to clean up what are termed “impaired waterways.” You may not think your local waterways are “impaired,” but if you live in any of the following municipalities, you are subject to the requirements of this permit: Allenstown, Amherst, Atkinson, Auburn, Barrington, Bedford, Bow, Brentwood, Candia, Chester, Danville, Derry, Dover, Durham, East Kingston, Epping, Exeter, Fremont, Goffstown, Greenland, Hampstead, Hampton, Hampton Falls, Hollis, Hooksett, Kensington, Kingston, Lee, Litchfield, Londonderry, Lyndeborough, Madbury, Manchester, Merrimack, Milford, Milton, Mount Vernon, Nashua, New Castle, Newfields, Newington, Newmarket, Newton, North Hampton, Pelham, Pembroke, Plaistow, Portsmouth, Raymond, Rochester, Rollinsford, Rye, Salem, Sandown, Seabrook, Somersworth, South Hampton, Stratham, Wilton, and Windham.

I was at an informational session recently on the MS4 permit hosted by the U.S. Environmental Protection Agency (“EPA”). Now, this permit has been in progress for a long time. It was first issued as a draft in 2009. The outrage was so great that the EPA withdrew it for re-drafting. The same thing happened in 2013, and again in 2015. The EPA is going to issue the final permit this summer—no draft this time— with an effective date of sometime in 2017.

Why no draft this time? Because they know there will be a huge outcry from the communities. To comply with the permit, the communities are going to have to ask the voters

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for a huge amount of money. In fact, enforcement contemplated by the permit by its own terms doesn’t even take effect until after five years. The first five years will be just for planning for what will need to be done. The following ten years of the permit are for meeting the goals set by the permit.

Does that sound like big bucks are involved? You betcha.

Let’s back-up. You may think your streams, lakes, and Great Bay are pretty clean. And they are, compared to their conditions before the enactment of the Clean Water Act. No more streams colored with chemicals or sediments; no more streams bursting into flames. And we in the Northeast do not see discharges into streams of silver mines, of iron mines, of coal mines or from huge farms upstream of Chesapeake Bay. But we do have some pollutants.

Many of our waters have bacteria, phosphorous, nitrogen, chlorides (salt), and low pH (acid). These are called impaired waterways. They are very common in southern New Hampshire. And EPA wants us to clean them up.

Although the EPA gives the state “revolving funds” for clean water projects, the fund is a pittance compared to the total costs of the job. Many towns and cities are looking at significant costs to modify their entire storm water runoff collection systems.

How much? In the 2013 comments on the draft permit, a number of communities estimated the costs of complying with the MS4 Permit. Rochester estimated it would cost $250 million over 5 years for total compliance; Portsmouth estimated $3.5 million over 5 years; and Manchester was looking at more than $3 million/year for only a portion of the compliJ U LY / A U G U S T 2 0 1 6

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MS4 PERMIT from page 13 ance. Other communities had similar estimates: Londonderry, $100,000/year for only a portion of the compliance; Bedford, $700,000 per year for only part of the compliance. Municipalities also questioned the effectiveness of the proposed compliance measures. Their municipal storm water systems are targeted by the MS4 permit but, they pointed out, there are other contributors to water quality degradation that are not targeted at all.

Walking out after the meeting, I had informal discussions with some of the municipal officials. With this new iteration of the permit, they are still looking of hundreds of thousands of dollars to comply. As one of them told me, there is no end in sight. If the waters still are considered impaired by the EPA after the fifteen-year period, permit compliance—and the associated costs—will not end, despite the municipality’s efforts to comply.

There is also the question of how much is enough. Many of the officials

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felt that the incremental increase in water quality was not offset by the expenditures that will be required. In other words, there does not appear to have been any cost/benefit analysis by EPA. Moreover, with no money to support this permit, it sure feels like an unfunded government mandate.

The real rub is when these same officials have to go to the voters and explain how the property tax bills will go through the roof to fund the compliance. It’s political suicide. In addition, what if the voters turn it down? The EPA has authority to level fines and require immediate actions. Who will they be fining?

I know that a number of communities have decided, if forced by the EPA, to take the matter to federal court. They have banded together to fight the permit. Other communities are just hoping for the best, wishing it would go away, or that EPA will somehow let the whole thing slide.

and issued this summer. More than once I heard officials whisper that they were thankful that they would be retired when these issues came to a head.

I would suggest that you all should figure out where your community stands on the MS4 permit. No one is against having clean water. The question is “how clean” and “at what price”?

Jim Gove, principal at Gove Environmental Services, Inc., has been working in the field of soil and wetland science since 1978, including eight years as a soil scientist with the US Department of Agriculture Soil Conservation Service.

Jim is recognized as a state expert on wetlands and writes frequently on this and other environmental issues. Jim may be contacted at 603.778.0644 ext. 15 or jgove@gesinc.biz.

Folks, the EPA will not be letting this slide. The MS4 permit will be finalized

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Local Regulation of Biosolids and Septage Use

by Ned Beecher, NEBRA

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his year, Gilmanton and Newport considered banning local uses of biosolids and septage, respectively.

This kind of local debate occurs occasionally and typically such debates begin when neighbors to farm sites where biosolids or septage are used are upset by malodors or other nuisances. When they look for more information about “sewage sludge,” they find a variety of information on the Internet, some of which is inaccurate and may heighten concerns. New Hampshire’s tradition of local control empowers them to take local measures, believing they are protecting the environment and public health.

But local bans or severe restrictions on biosolids and septage recycling disrupt an effective, beneficial environmental program on which all New Hampshire residents depend. And they impinge on the rights of farmers and other landowners.

is the right thing to do. I would not jeopardize my land or my family.”

Any debate about biosolids or septage recycling is not just theoretical or local. There is a direct link between every household and business in the state, whether connected to a sewer system or a septic tank. For example, most of the septage from Gilmanton goes to the Franklin Wastewater Treatment Facility - 270,000 gallons a year. That facility produces biosolids that are land applied - and Gilmanton septage adds to that production. We all add to biosolids production, wherever we are.

In Gilmanton, several farmers have used biosolids annually to fertilize their crops, some for nearly 20 years. In 2011, a petitioned warrant article biosolids ban was defeated, and a similar petitioned warrant article was defeated this past March. This year, Bob McWhinnie, a life-long resident, wrote in a letter to the editor:

U.S. Environmental Protection Agency (USEPA) and NH Department of Environmental Services (NHDES) believe their regulations protect public health and the environment.

Other agencies concur, such as the U.S. Department of Agriculture, the U.S. Food and Drug Administration, and the NH Department of Health and Human Services, which have all reviewed and provided input to current federal and state regulations. The NH DES has 20 years of experience regulating, monitoring, testing, and enforcing its biosolids regulations (Env-Wq 800) and septage regulations (Env-Wq 1600).

“I have been farming here and taking care of the land and my animals as this is the place I love to call home. I grow hay crops to feed my buffalo, and this is my livelihood. I use biosolids because it is beneficial for my soil and it helps to keep my costs manageable so I can continue to farm, maintain productive fields and leave them as green open space. Anybody who knows me recognizes that I work hard in my fields and tend my farm 365 days per year.

Farming is my passion. I use biosolids because I believe it

Several highly technical regulatory programs run by NH DES discourage additional local regulation, including pesticides and septic system design and installation. Similarly, local biosolids bans and severe restrictions can disrupt efficient wastewater management. Therefore, in the 1990s, the NH Office of Energy and Planning published the following position: “Rather than adopting separate local requirements, we recommend that those municipalities concerned about oversight and enforcement, adopt the State rules by reference,

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BIOSOLIDS from page 15 as part of a local health ordinance. This approach enables the health officer and board of selectmen to issue a cease and desist order and to initiate enforcement procedures. Any violation can then be reported to DES for enforcement in accordance with their rules.” Adoption of state rules by reference also ensures local oversight keeps up with the improved science and best practices that are incorporated into updated DES biosolids regulations about every five years. (The most recent DES biosolids rule update took effect in January 2016.)

Also in the 1990s, Water Resource Recovery Facilities (WRRFs) investing in recycling systems began charging higher prices for disposal of septage from towns that impose severe restrictions or bans on local use of biosolids. For example, Franklin currently charges Gilmanton residents $85 per 1000 gallons disposed at the Franklin WRRF. If Gilmanton had adopted a local ban on biosolids use, that price would have gone up to $130.

And while local control is an important part of New Hampshire community life, restrictions that unduly burden landowners’ rights can be subject to challenge. To date, there have been no significant legal challenges to any of the existing local bans on biosolids use (e.g., in Belmont, Farmington, Milford, Strafford, Stratford, Tilton, Wakefield, and Windham). But that could change if a farmer decides biosolids fit his or her needs and decides to sue. Compared to 20 years ago, when these bans were put in place in the absence of adequate state regulation, biosolids recycling has become far more commonplace. Since the 1990s, courts have consistently supported biosolids use when farmers and others have challenged local restrictions. For example, in December 2015, the Pennsylvania Supreme Court struck down a local ordinance and upheld biosolids use as a 16

“We can’t choose to not manage biosolids,” says Ned Beecher, Executive Director of the North East Biosolids and Residuals Association (www.nebiosolids.org), a professional membership non-profit based in Tamworth. “They are a part of wastewater treatment. They can be put in a landfill, incinerated, or recycled to soils. Those are the options, and all have some environmental impacts. Landfilling organic matter and nutrients wastes resources and generates methane, a powerful greenhouse gas.

Incineration uses fossil fuel energy and causes air emissions. In many cases, use of biosolids on land is the best environmental choice. It is also a good economic choice, benefitting the ratepayers of the WRRFs and farmers, supporting local jobs.”

“normal agricultural operation” under that state’s Right-To-Farm Act. Similar rulings annulling local ordinances have been handed down in New York, Quebec, and other jurisdictions.

Concerns about biosolids are not new.

It is rational to question the concept of taking something derived from our most objectionable waste stream and recycling it to soils. This is why biosolids are the most researched material used on farms. Since the 1970s, independent scientists at the U.S. Dept. of Agriculture, U.S. EPA, and land grant universities across the nation have studied biosolids benefits and risks. Thousands of peer-reviewed papers and two National Academy of Sciences reviews support protective regulations and practices and the current widespread recycling. Every state in the nation allows biosolids use.

More than 60% of U.S. sewage sludges are used on land, including 100% from San Francisco, Seattle, Denver,

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Chicago, Boston, Nashua, Merrimack, Concord, and Franklin.

Wastewater treatment (sanitation) is considered the most important advance in public health in the past 150 years, according to a 2007 British Medical Journal (BMJ) survey. As part of our sanitation systems, thousands of public employees around the continent – and hundreds here in New Hampshire –responsibly manage biosolids and septage 365 days a year – for the benefit of all.

Biosolids and septage recycling return local nutrients and organic matter to local soils, reduce landfill disposal and resulting greenhouse gas emissions, and support local farms and local jobs.

Ned Beecher is Executive Director of the North East Biosolids and Residuals Association (www.nebiosolids.org), a professional membership non-profit based in Tamworth and serving New England and eastern Canada.

www.nhmunicipal.org

Qualifications-Based Selection (QBS) for Design Professionals: What QBS is and why Municipalities should use it

By William Straub, P.E., P.G. and Jonathan Halle, AIA, ASLA

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esign and construction projects can be complicated. Public and private owners make significant investments in projects of all types: buildings, site developments, utilities, transportation, infrastructure, and others. Maximizing value while maintaining project goals is often the municipality’s, or owner’s, prime objective.

Most projects require design professionals to evaluate and conceptualize alternatives, prepare preliminary and final designs, procure contractors for construction, and represent the owner during construction. Therefore, selection of the most effective and advantageous team of design professionals is critical for a successful project. The team should have experience and background needed for the project, and have good ideas and approaches to project development and completion. They should also have the ability to establish effective working relationships with the owner and other project participants, and to work in an atmosphere of mutual trust and respect.

For many projects, the best way to engage a design team that will best serve the owner’s interests throughout a project, and assure the best value from a total project perspective, is Qualifications-Based Selection, or QBS. The QBS process focuses on the professional capabilities, experience, project design approach, schedule, and responsiveness to the owner’s needs. Based on these attributes, the owner ranks firms and identifies the most preferred firm.

With the preferred firm, the owner participates fully in the development of the alternatives to the approach for the design project’s scope of work, schedules, and other aspects of the project. When there is a common understanding of www.nhmunicipal.org

the design scope and process, the design firm develops costs for these services, which are negotiated. The QBS process can best balance design costs with design objectives and scopes, recognizing that the cost of design is usually a small fraction of total project and life cycle costs. If an acceptable final contract cannot be established in the owner’s interest and opinion, negotiation with the first firm ends and the owner negotiates with the next ranked firm.

A prime advantage for owners using the QBS process is that the owner maintains maximum control over the design process of the project, and the costs for design services. The costs for services are developed jointly between the owner and designer. When QBS is not used, and selection is made primarily on initial proposed costs (bids), there is often a disconnect between an owner’s expectations and the services actually received, as designers are essentially encouraged to propose the least possible design effort, rather than maximizing value over the entire project life. Again, design costs are often a small fraction of total project costs.

Key steps of the QBS process typically include: • Issuance by the owner of a Request for Qualifications (RFQ) for professional design services. The RFQ will present the project, project requirements and objectives, requirements for responses, and an outline of criteria for selection; • Submittal of qualifications packages by design teams of experience, capabilities, personnel, project understanding and approach; • Interviews with most favorable firms (typically 3-4); • Ranking of firms; and J U LY / A U G U S T 2 0 1 6

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QBS from page 17 • Negotiation of project elements, scope, costs, and contracts with the selected firm.

Central to the QBS approach are the interests of the owner. With this process, owners are best assured that they are provided with the right capabilities and project approach, responsiveness, good communication, mutual trust, management, quality control, and design excellence.

A common comparison to the selection of design professionals is how doctors or lawyers are chosen. If someone required major surgery, or had an important legal problem, would they send out for bids from doctors or lawyers, or would they seek a professional relationship based on capabilities,

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experience, and trust? Few would accept “low-bid surgery.”

The QBS process is required for many projects by federal agencies, and for many state programs that use federal funding. This is because these governmental agencies understand that QBS of design professionals results in the most favorable overall project outcomes.

In New Hampshire, organizations of design professionals participate in the NH QBS Coalition, whose mission it is to promote the use of qualifications based selection, and to educate owners, funding and regulatory agencies on the advantages of the QBS process.

Visit the NH QBS Coalition website at www.NHQBS.org. The member organizations of the coalition include the American Council of Engineering

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Companies-NH (ACEC-NH), the American Institute of Architects –NH (AIA-NH), Granite State Landscape Architects (GSLA), the NH Section of the American Society of Civil Engineers (NH-ASCE), the NH Society of Professional Engineers (NHSPE), Structural Engineers of NH (SENH), and the NH Land Surveyors Association (NHLSA).

William Straub, P.E., P.G. (wstraub@ cmaengineers.com) and Jonathan Halle, AIA, ASLA (jh@warrenstreet.coop) are co-chairs of the NH QBS Coalition.

www.nhmunicipal.org

Make Room for Daddy:

The New Law on Accessory Dwelling Units

By Cordell A. Johnston, Government Affairs Counsel

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n March of this year, Governor Hassan signed into law Senate Bill 146, relative to accessory dwelling units.

The new law will soon be codified at RSA 674:71 to :73. Until it appears there, it can be found on the legislature’s website, www.gencourt.state.nh.us. It is chapter 6 of the 2016 laws, which can be found by clicking on “2016 Chaptered Final Version” under “General Court News and Hot Links.”

The New Law The fundamental requirement of the new law is that every municipality with a zoning ordinance “shall allow accessory dwelling units as a matter of right or by either conditional use permit pursuant to RSA 674:21 or by special exception, in all zoning districts that permit single-family dwellings.”

Definition. The new law defines an “accessory dwelling unit” (or “ADU”) as “a residential living unit that is within or attached to a single-family dwelling, and that provides independent living facilities for one or more persons, including provisions for sleeping, eating, cooking, and sanitation on the same parcel of land as the principal dwelling unit it accompanies.” They often go by other names, such as accessory apartments or in-law apartments. Whatever a municipality calls them, they must be permitted under the new law.

This is an example of “statewide zoning” that municipal officials frequently, and understandably, resist. The legislature set forth its justification for the new law in the text of SB 146: There are many important societal benefits associated with the creation of accessory dwelling units, including: www.nhmunicipal.org

(a) Increasing the supply of affordable housing without the need for more infrastructure or further land development. (b) Benefits for aging homeowners, single parents, recent college graduates who are saddled with significant student loan debt, caregivers, and disabled persons. (c) Integrating affordable housing into the community with minimal negative impact. (d) Providing elderly citizens with the opportunity to live in a supportive family environment with both independence and dignity.

Local officials may or may not find this explanation compelling; regardless, they must comply with the law. A prohibition on ADUs in a zoning ordinance will be invalid; and if an ordinance does not mention ADUs, they will automatically be deemed permitted.

However, there are several factors that may soften the blow.

First, the new law does not take effect until June 1, 2017.

This will give every municipality time to review and amend its zoning ordinance, if necessary.

Second, as stated above, ADUs must be allowed either as a matter of right or by conditional use permit or special exception. This enables municipalities to exercise significant discretion in allowing ADUs. Third, the law allows a number of limits and restrictions that may be placed on ADUs. These should alleviate concerns that every single-family dwelling may be quickly converted into a duplex.

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ROOM FOR DADDY from page 19

Where to Begin?

To deal with the new law, a municipality should begin by asking a few questions. Most of this will be the planning board’s job, although of course it may obtain input from others: Does your ordinance already address ADUs? Many zoning ordinances permit ADUs subject to certain conditions.

Other may permit them without limitation. Still others may prohibit them, or may not mention them at all. Again, the ordinance may use a different name, such as in-law apartment. Depending on what your ordinance says about ADUs, it may or may not need to be amended—but it probably does.

• If your ordinance expressly allows ADUs without limitation, then you may not need to do anything, because the ordinance already complies with the new law. However, please keep reading, because your ordinance may contain a limitation that doesn’t seem like a limitation.

• If your ordinance prohibits ADUs, that prohibition will be invalid once the new law takes effect. The ordinance must allow ADUs, although it may impose certain conditions, so you should plan to amend the ordinance.

• If your ordinance allows ADUs subject to conditions, you will need to determine whether those conditions comply with the new law, and plan to amend the ordinance if they do not.

• If your ordinance is silent on ADUs, they will automatically be deemed permitted without limitation under the new law, so you must amend the ordinance to maintain any control whatsoever.

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• The new law allows limitations to be placed on ADUs, but those limitations must be included in the ordinance; otherwise “one accessory dwelling unit shall be deemed a permitted accessory use, as a matter of right, to any single-family dwelling in the municipality, and no municipal permits or conditions shall be required other than a building permit, if necessary.”

How does your ordinance define ADU? Some zoning ordinances define an ADU, or an in-law apartment, as one that is for the use of a family member of the occupant(s) of the principal dwelling unit. This is a limitation, and it is one that is not permitted under the new law. If your zoning ordinance defines ADU in that manner, or otherwise limits occupancy only to family members, that limitation will be invalid.

It is strongly recommended that the zoning ordinance be amended to define “accessory dwelling unit” in a manner consistent with the new law’s definition (see above). If the ordinance currently uses the term “in-law apartment” or something similar, it should be amended to use the statutory term “accessory dwelling unit,” so there is no suggestion that the occupants must be related to occupants of the principal dwelling unit.

Special Exception or Conditional Use Permit. Under the new law, ADUs must be allowed either as a matter of right or by conditional use permit or special exception. One of the best ways to exercise control over ADUs is to allow them only by special exception or conditional use permit. If you want to limit ADUs in this manner, it will be necessary to state that in the ordinance.

Most zoning ordinances already allow certain uses only by special exception and list specific criteria that must be

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established--typically including things like compatibility with neighboring land uses, consistency with the public interest, and demonstration that the use will not cause undue noise, smoke, traffic congestion, or other undesirable impacts. It is a fairly simple matter to add ADUs to the list of uses that are permitted by special exception. This will ensure that they are reviewed on a case-by-case basis and permitted only where there will be no serious adverse consequences.

What Else Can You Do? In addition to special exception/conditional use permit requirements, the new law allows certain specific conditions to be applied to ADUs, while prohibiting other conditions.

Here are some of the conditions a zoning ordinance may impose: One ADU per dwelling. A municipality is not required to allow more than one ADU for any single-family dwelling. A one-ADU limit should be stated in the ordinance. Of course, the municipality may allow more than one ADU per dwelling, if it chooses.

Owner occupancy. The ordinance may require owner occupancy of either the principal or the accessory dwelling unit, “but it shall not specify which unit the owner must occupy.”

An owner occupancy requirement is definitely recommended if you want to avoid turning a property into a duplex with an absentee landlord.

Minimum and maximum sizes. The ordinance may establish size limits for ADUs, but it may not limit the ADU to less than 750 square feet. A minimum size is probably unnecessary, but including a maximum is a good idea, so that someone with a 1,500-square-foot residence cannot add a 5,000-squarefoot ADU. Just make sure your maximum size is at least 750 square feet. www.nhmunicipal.org

Adequate parking. The ordinance (or the ZBA, as a condition of a special exception) may require adequate parking to accommodate the ADU. Aesthetic continuity. A municipality “may establish standards for accessory dwelling units for the purpose of maintaining the aesthetic continuity with the principal dwelling unit as a single-family dwelling.” This is an appealing option, but implementing it may be tricky. Including standards in the zoning ordinance will require careful drafting. Alternatively, the ordinance could authorize the planning board to adopt standards as part of a conditional use permit process.

Detached ADUs. A municipality is not required to allow detached ADUs—for example, a unit that is above a detached garage or is a stand-alone building. If it does allow them, they are subject to all of the other provisions of the law, except that an increased lot size may be required. If a municipality adopts the statutory definition of an ADU, this will serve to disallow detached ADUs, as the statutory definition refers to a unit that is “within or attached to a single-family dwelling.”

What Can’t You Do? Here are some conditions that the ordinance may not impose: Family relationship. A municipality “may not require a familial relationship between the occupants of an accessory dwelling unit and the occupants of a principal dwelling unit.” As noted above, some municipalities have this restriction built into their definition; that will need to change.

Bedroom limit. A municipality “may not limit an accessory dwelling unit to only one bedroom.” This means, of course, that it may impose a twobedroom limit. It may also impose a maximum occupancy per bedroom www.nhmunicipal.org

“consistent with policy adopted by the United States Department of Housing and Urban Development.”

Increased lot size. The municipality may not impose “additional requirements for lot size, frontage, space limitations, or other controls beyond what would be required for a single-family dwelling without an accessory dwelling unit.” For example, if the ordinance requires one acre and 100 feet of frontage for a single-family dwelling, it cannot require two acres and 200 feet for a single-family dwelling with an ADU. (As noted above, however, increased requirements can be imposed for detached ADUs.) However, “[a]ny municipal regulation applicable to single-family dwellings shall also apply to the combination of a principal dwelling unit and an accessory dwelling unit including, but not limited to lot coverage standards . . . .”

Thus, for example, if a house is already built to the ordinance’s setback limit, the owner may not add an ADU that goes beyond that limit.

Separate water and sewer systems.

The municipality may not require a separate water or septic system for the ADU, although it may (in fact, must) require adequate provisions for water supply and sewage disposal in accordance with state law. Of course, if DES requires a separate septic system, or if a separate system is the only practical way to meet the state standards, then a separate system will be necessary.

Unlocked connecting door. “An interior door shall be provided between the principal dwelling unit and the accessory dwelling unit, but a municipality shall not require that it remain unlocked.” Some municipalities do require a door between the two units, and some require that it remain unlocked, as an indirect way to ensure a familial relationship between the occupants.

It is unclear why the new law requires a connecting door, rather than allowing the municipality to require the door.

In any event, to comply with the law, the zoning ordinance should require a connecting door but not require that it remain unlocked.

Time to Get Started As stated above, the new law does not take effect until June 1, 2017. This delayed effective date was included specifically to give municipalities time to amend their zoning ordinances. If your planning board has not already begun to review its ordinance and consider changes, it should do so in the very near future. Towns with March town meetings will need to have hearings on any zoning changes not later than January, and it will take some time to get your amendments ready for a hearing.

Please understand that this article is only an overview of the law. Many of these issues will require careful drafting and a thorough review of the statute, and municipalities are strongly encouraged to consult with their legal counsel or professional planning staff as they consider how to comply with the new law. NHMA’s legal staff also is available to answer questions about the law, although we do not have the resources to assist with reviewing and drafting ordinances.

Cordell A. Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at governmentaffairs@nhmunicipal.org.

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1985

1987

1989

1991

1993

1995

The Middle Years of the New Hampshire Municipal Association (1985-1995) practice in Hanover concentrating in municipal law.

1985 • Computer use by New Hampshire municipalities continued to expand. An NHMA survey showed that over half of the computers in use were in towns with a population of 5,000 or less.

In 1983, there were 28 towns or cities with computers, and that figure rose to 54 by 1985.

• Due to skyrocketing premiums and difficulty to find coverages, cities and towns found it hard to secure umbrella liability insurance.

Some municipalities saw their premiums rise between 200% – 400%. In turn, the NHMA began exploring a liability insurance pool similar to the health and workers’ compensation programs already in place. Contributions from members explored the feasibility of a self-funded property and liability program.

• NHMA’s second full time attorney position was filled

by H. Bernard Waugh, Jr. Waugh, a Colorado native, was a graduate of Dartmouth College and George Washington University Law School. Before joining NHMA, Waugh was in private 22

• Congress ended General Revenue Sharing, resulting in a loss of about $15 million a year in New Hampshire.

• NHMA workers’ compensation and unemployment trusts credited with saving cities and towns over $8.5 million since inception of these programs.

• NHMA’s executive committee reserved funds towards new offices and appointed a building committee to research new office space by 1988.

1986 • Patrick MacQueen became NHMA’s new president. MacQueen, then city manager for Keene, spoke positively about NHMA’s activities. “NHMA keeps on top of issues and keeps people informed. It’s nearly impossible to lobby for municipalities,” he pointed out, “because they all have different stands on different issues, but NHMA does it.”

• In 1986, municipalities struggled with growth management measures, some for and some against, but on one issue there was over-

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whelming agreement across New Hampshire. That year, 137 towns voted against the siting of a high level radioactive dump site being considered by the US Department of Energy in the state.

• As of July 1st, NHMA’s pool for managing property and liability risks became operational with the participation of three counties and 20 towns. Interestingly, this NHMA risk pool entity was joined in operation on the same day by similar league pools in Connecticut, New Mexico, Virginia, and North Carolina.

• NHMA’s Building Committee continued to meet periodically to discuss site selection and plans for a Local Government Center to serve as a permanent home for the Association. Over a half-dozen specific sites were identified including some state properties.

• Conservation commissions took on a changing role in the face of rapid growth and development.

Although mainly advisory bodies, towns and cities began to utilize their services to a greater extent and began to pay greater attention to their recommendations. In a state where tourism plays such an important part of the economy, conservation commissions were fast becoming an important voice at the local government level. www.nhmunicipal.org

• “A limited federal government is good for social and economic freedom,” said then Vice-President, George Bush, as he addressed participants at NHMA’s annual conference in 1986.

1987 • New Hampshire’s proud tradition of voluntary local participation in government was threatened in 1987 when the costs of liability insurance skyrocketing leaving many cities and towns without liability insurance to protect their local personnel.

• On January 30, President Reagan vetoed the $20 billion Clean Water Act (CWA), claiming the measure was “loaded with waste and larded with pork.” Both bodies of Congress overwhelmingly disagreed and passed the measure. Among other programs, the CWA Act Amendments of 1987 initiated a national program to control nonpoint source pollution to deal with water quality problems associated with pollution runoff. Today many New Hampshire municipalities still deal with these stormwater issues as part of USEPA’s MS4 permit process.

• “Legal Q&A” was instituted by NHMA’s legal counsel, Bernard Waugh, Jr., in 1987. This column can be found in every issue of Town and City magazine today.

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• The lack of affordable housing was a real crisis in 1987. The practice of “excluding” low income affordable housing in one municipality forced other municipalities to pick up the slack. Cities and towns began exploring moratoria, impact fees and other exactions on developers to absorb the increased service costs at the local level because of development.

• In 1987, the NH Department of Environmental Services became effective. The legislature recognized that a consolidation of four state environmental agencies under one umbrella department would lead to improved coordination, planning and efficiency.

• NHMA’s legal services entertained over 3,000 telephone calls from literally every member of NHMA. Members highly valued the staff ’s recognized expertise in municipal law.

• The passage of SB 1-A in the 1987 legislative session created the Land Conservation Investment Program (LCIP) beginning one of the most unique and important public/private land conservation partnership since the passage of the Weeks Act, creating the White Mountain National Forest in 1911.

1988 • One of the goals of NHMA’s new President in 1988 was a better relationship between local, state and federal levels of government. Richard P. Green, born and raised in Rochester, served as its mayor during the 1980s as the city underwent a transformation from an old manufacturing city into a thriving and revitalized city. First elected to NHMA’s executive committee in 1984, Green also served as a state senator and often relied on the Association for background information on topics that came before the legislature. Green also chaired NHMA’s Building Committee which was searching for new and improved quarters for the Association and related insurance pools.

• Delegates to NHMA’s 1987 Annual Business Meeting approved the Building Committee’s proposal to construct a Local Government Center in 1988 to house NHMA, the two insurance trusts it administers and other organizations serving local governments in New Hampshire.

The planned facility joined 24 existing state municipal league owned or jointly-owned buildings around the nation.

• Concern was expressed by members finding it increasingly difficult to find younger people willing to serve their cities and towns in public office. It was noted by one member, “There is a lack of interest in municipal and state affairs by the younger generation. They are much more interested in personal and recreational affairs of their own. They don’t seem to want to donate or do their share anymore.”

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THE MIDDLE YEARS from page 23 • Since its inception in 1984, NHMA’s Health Insurance Trust grew from 2,250 employees to nearly 8,000 employees covered.

NHMA’s other self-funded risk management pools, the Workers Compensation Trust and the Unemployment Compensation Trust, have returned over $10 million in dividends to participating units of government since their creation by NHMA in 1979. NHMA’s Property-Liability Trust, founded in 1986, had 151 participants, including 136 towns and cities, in 1988.

• Solid waste management emerged as a significant environmental issue facing municipalities in 1988. Many smaller towns found the area of solid waste particularly challenging since they had limited resources and experience to address the situation.

• Meeting the demands of growth.

Adapting to the increased responsibilities of local governments. Trying to plan wisely for the future. These were some of the major concerns at New Hampshire’s town meetings in 1988. These included such items as money for closing landfills, whether or not to recycle, updating master plans, hiring more officials to meet service demands and changing forms of government.

• The efforts of municipalities to undertake and implement local planning significantly increased over the years. There were at least two major reasons for this movement. First, growth increased dramatically since 1975 and towns and cities found themselves struggling to define and provide for this growth, and secondly, region24

al planning came of age during this period providing the technical expertise needed by municipal governments to address the resulting growth-related problems.

• With the advancement of computers and technology, home occupations broadened the spectrum of home business activity which was once limited to doctors, music lessons and the like. This trend added further to the complexity of planning and zoning that has always been troublesome for local officials. Numerous disputes over local decisions made home occupations one of the most frequently litigated zoning issues during the eighties.

• Maura Carroll of Concord was hired to fill the position of staff attorney. A graduate of Tulane University School of Law and the College of Holy Cross, Carroll came from a Portsmouth law firm specializing in civil litigation. Carroll had also served in the New Hampshire legislature and clerked for two years with the New Hampshire Supreme Court. Within a year, Carroll was moved into the newly created position of Government Affairs Director, where she guided the Association’s legislative efforts for many years.

• The total number of people covered – employees and dependents – by the NHMA Health Trust is 43,521, making it the second largest employee benefits program of any kind, public or private, in New Hampshire.

• Implementing the membership’s vote in 1987, NHMA acquired

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1.347 acres of land, broke ground in the fall, and began constructing a 9,600 square foot facility to be called the Local Government Center, in Concord. The facility was designed to provide a longterm, cost-effective home for local government needs in New Hampshire.

1989 • Governor Judd Gregg addressed over 60 municipal officials at one of NHMA’s nine regional dinners. Governor Gregg began his talk by praising the work of municipal officials. “I admire you and the time, effort and extra hours that you put into your job and your community,” Gregg said. “I’ve always said, quite honestly, that the toughest jobs in the world are the jobs of selectperson, alderperson, mayor or other local official because you’re on the frontline on the issues.

And you bear the brunt of the heaviest attacks.”

• User fees were one of the fastestgrowing areas in local government revenues in the late eighties.

User fees were becoming an increasingly important alternative revenue source for municipalities as loss of federal and state funds and legislation limiting taxes eroded municipal revenue bases.

• Many New Hampshire wastewater facilities were built in the late 1960s and early 1970s, but steady growth in the late 1970s and 1980s brought them to the point where they reached design capacity. Town water facilities also went through many of the same growing pains that municiwww.nhmunicipal.org

pal sewer plants experienced. To complicate matters, both water and sewer project funding sources dwindled in the 1980s. As federal and state standards for water quality become more restrictive, New Hampshire’s cities and towns continue to feel the strain of financing required improvement projects on a local level.

• GIS, or geographic information system, was becoming an increasingly popular tool for municipalities for providing intelligent information for land use and infrastructure facilities planning.

GIS was not just a computer system, it was actually a whole new way for cities and towns to organize the way they do business.

• NHMA’s Property Liability Trust declared its first dividend of $225,000 to 121 participating units based on experience in the Trusts’ first year. Trustees also established an aggregate claims fund reserve to further protect participants in the event of high losses in any given year.

• NHMA’s Health Insurance Trust now provided health benefits for some 48,122 local government employees and dependents with annual gross revenues in excess of $50 million. These numbers made the Health Trust at the time the largest government risk pool east of the Mississippi River.

• On June 10, 1989, over 300 local officials and guests joined togeth-

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er to dedicate the Local Government Center at 25 Triangle Park Drive in Concord. The Center, co-owned by NHMA and its Property-Liability and Health Trusts who also occupy it, provided a permanent home for local government in New Hampshire.

1990 • Municipal leaders in 1990 responding to a National League of Cities survey reported that environmental issues were of greatest concern to them followed by finance, transportation, growth and development and drugs.

• The article, 16 Things Every Citizen Should Know About Town Meetings, written by NHMA Legal Counsel, Bernard Waugh, first appeared in Town and City magazine. It will be reprinted nationally and in future editions of Town and City, and as its author rightfully encouraged readers, “An informed town is in everyone’s interest.”

• A slowing New Hampshire economy colored proceedings at most of the State’s 1990 town meetings.

The issue of growing town budgets and increasing property taxes led to a number of warrant articles seeking limits on spending. Concern with the environment also seemed to be an issue in 1990, as well as recycling initiatives.

• In 1990, the New Hampshire Wellhead Protection Program was approved by the US Environmental Protection Agency.

The plan was to implement this program over a ten year period beginning with each municipality’s delineation of wellhead protection areas and an inventory of all potential contamination sources within these areas.

• Legal services handled an average of 20.2 telephone calls per day with each call averaging 5.76 minutes confirming that daily telephone inquiries are NHMA’s primary member contact. As an aside, NHMA fielded over 26,000 calls in 1990.

1991 • Daniel C. Ayer, Town Manager of Merrimack, served as NHMA’s President in 1991. By increasing awareness and cooperation between all municipalities, Ayer said, “We can’t let the legislators forget where they come from. They do represent the cities and towns from which they were elected.”

• There were 3,519 bridges (ten feet or greater in length) in New Hampshire. Of the total number of bridges, 1,504, or nearly half, were the responsibility of municipalities. Only 340 of these bridges were in good condition while the majority were in poor condition and required rehabilitation.

• NHMA celebrated its 50th anniversary in 1991.

• The Federal Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) provided funds for “Transportation Enhancement Activities,” which included spending monies on bike trails and historic preservation. In New Hampshire, this amounted to about $3 million per year.

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25

THE MIDDLE YEARS from page 25 • The personal toll of the 1991 recession impacted the selectmen in the Town of Amherst to create a job bank. The basic premise was that the newly-unemployed wanted jobs, not welfare, so the town organized the bank to partner people in the town who had jobs to be done (painting, cleaning, carpentry, etc.) with those people within the town who needed the work.

• The Americans with Disabilities Act, enacted in 1990, prohibited discrimination in employment on the basis of disability and prohibited the exclusion of disabled individuals from participating in, or the benefits of, services, programs or activities of public entities including local governments.

• 1991 may well go down in NHMA’s history books as its best legislative year. Victories on the retirement front and an overwhelming roll call vote by the House to fully-fund revenue sharing saved cities and towns about $45 million from being loaded onto the local property tax.

• In Britton v. Town of Chester, the New Hampshire Supreme Court declared Chester’s zoning ordinance illegal insofar as it did not provide realistic opportunities for affordable housing.

1992 • Having a knack for “being everywhere in New Hampshire,” Executive Councilor Raymond S. Burton was always on hand to make presentations 26

during the municipal awards luncheon held in conjunction with NHMA’s annual conference.

• Judy Silva joined the NHMA as Staff Attorney in 1992. At the time, Silva said she was attracted to NHMA and municipal law because “…all these people are trying to hold together their towns, while holding down jobs and spending time with their families.” Silva received a BA from the University of New Hampshire and a law degree from Franklin Pierce. Silva now serves as NHMA’s Executive Director, a position she has held since 2013.

• Representatives from 13 Affiliate Groups met at the Local Government Center to explore how each group fits under the NHMA umbrella. Those present discussed coordinated training, scheduling conflicts, legislation, and cooperation between all levels of municipal officials.

• From the North Country to the Sea, New Hampshire cities and towns were in a stir over “exotic dancers” or “adult bookstores” creating a demand for ordinances to limit them. As such, NHMA devoted an entire issue of Town and City magazine on the subject of regulating adult businesses.

• A major issue that arose in 1992 was the Weirs Beach secession bill which the NHMA, along with Governor Merrill, opposed.

NHMA’s opposition was rooted in the fact that no criteria was established by which the feasibility and impact of secession could be measured. While the bill dealing with Weirs Beach did not pass, a bill

NEW HAMPSHIRE TOWN AND CITY

creating a committee to study criteria for any future secession voted did pass with NHMA’s support.

1993 • Underground storage tanks became a hot issue in 1993. The problem facing municipalities was that for every UST that is regulated by the state, there may be as many as three UST’s exempt from state regulations. Despite the risk to water supplies posed by exempt UST’s, New Hampshire’s cities and towns had done very little to address the issue.

• As a result of state legislation passed in 1992, the New Hampshire Public Deposit Investment Pool was established in April 1993 as a brand new state investment pool enabling the state, municipalities and school districts to combine their funds to maximize investment opportunities.

• The Federal Family & Medical Leave Act (FMLA) of 1993 becomes effective requiring employers of 50 or more employees to provide eligible employees unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage.

• In a tragic turn of events, a selectman’s son involved in a land dispute with the Town of Newbury shot and killed two municipal employees and critically wounded a third before shooting himself.

Town employees, receptionist Meribeth Swanson and secretary Susan Webster were killed and administrative assistant, Carole Hockmeyer, seriously injured.

• Due to the economic recession, municipal infrastructure creation and maintenance were deferred, www.nhmunicipal.org

employees were laid off and local budgets were frozen or cut. In response, the Legislature restored a share of the Rooms and Meals tax monies to municipalities for property tax relief. Beginning in FY 95, a new formula was employed with the plan for the State to share up to 40% of the Rooms and Meals tax collections with cities and towns.

Similarly, the state share of local bridge aid was increased by 13.3%.

• For the first time in its 9-year history, HealthTrust declared a dividend in 1993 of $1.8 million.

Members were cautioned that future dividends should not be automatically counted on as the same factors may not come together. Trustees had heard from some participating members that they preferred that future dividends be applied to hold down the rates as much as possible.

1994 • Welfare directors across the State became concerned when the national fuel aid budget was cut by 51%. The anticipated $11,422,465 federal appropriation was slashed to $5,518,875, leaving many municipalities holding the bag for fuel assistance dollars.

• As part of an April Fools joke, Town & City magazine reported that Governor Steve Merrill would sign the “Dalmation Bill,” a bill requiring every municipality in New Hampshire to house at least one Dalmation in every fire station as a way to promote tourism.

• The national, regional and state economies were improving meaning that New Hampshire cities and towns were adding to their valuation bases, including increases in local population, www.nhmunicipal.org

building permits and automobile registration revenues. Despite a stronger economy, there was a loss of $100 million in Federal Medicare funds which had been used historically to balance the state’s general fund budget that loomed large for budget writers in the upcoming budget cycle.

• The State Legislature enacted Chapter 103 thereby creating a Local Government Advisory Committee comprised of legislative, county and municipal officials. The committee was designed to meet quarterly with the governor to exchange views on issues of intergovernmental concern. The committee met several times, the last being in January, 1996. The statute was repealed by the Legislature in 2002.

• NHMA’s Executive Committee embarked on a strategic planning process, known as GOALS 2000 during the summer of 1994. It was the first such member survey since 1982. The survey results were used to reform or strengthen services, add new services and focus the Associations’ mission with the support of members.

1995 • Retirement issues were at the legislative forefront in 1995, addressing funding increases required by the system and benefit enhancements sought from the system.

• Russell Marcoux, then Administrative Services Director for the City of Nashua, becomes NHMA’s new President. Marcoux served as an Alderman for nine years before going to work full-time for the

City. “I’ve been on both sides,” Marcoux stated, “So I understand the challenges. I have a lot of respect for elected officials. They have tough decisions to make.“ One of his goals as President was to get more members involved in the legislative process, especially the city members. His theme was “Keep your eyes and ears open, and your local pockets closed.”

• Local government employers with 50 or more employees had to comply with all aspects of the American with Disabilities Act (ADA) by January 26, 1995, including designation of an ADA coordinator.

• As NHMA entered its 54th year of service, the Association grew from a small group of local officials into a major service provider for New Hampshire’s cities and towns.

With a look toward the 21st Century, the NHMA adopted a new Vision and Mission Statement to help guide NHMA forward.

• NHMA changes its by-laws and approved a change increasing the term of President to two years, for the sake of continuity in the many state legislative matters that are now two year cycles.

• 823 bills were filed in 1995, and NHMA monitored about 235 of these bills, with 21 NHMA policies included among them. Eleven of those policies passed, seven were re-referred for additional study, and three were killed. NHMA’s concern during the budget process was focused on protecting cities and towns from downshifting, especially since the Legislature had adopted a proposal to reorganize the Department of Health and Human Services resulting in $32 million in budget cuts/savings from this Department.

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27

Moving Toward a Problem-Solving Organization

J

ohn Andrews became NHMA Executive Director in February of 1975. Andrews is recognized as steering the organization from an association that focused on education and training to a powerful problem-solving organization for New Hampshire’s cities and towns.

When Andrews began, the NHMA employed five full-time staffers on the third floor of NHMA’s offices located at 11 Depot Street in downtown Concord. NHMA membership at that time stood at just over 200. Wanting to hear from the people who served in the member towns, Andrews organized a series of regional meetings to hear and listen to municipal concerns. “We just talked about things the Association does, what associations in other states do, and we listened,” said Andrews.

What came out of these face-to-face regional meetings were three distinct program areas where NHMA services were desired by members, namely (1) legal services; (2) a better legislative policy process where NHMA would propose legislation and implement initiatives; and (3) a WATS line.

With an 85% increase in dues for 1976, the NHMA carried out these three recommendations.

“We hired a part-time lawyer which we split with the City of Franklin and began legislative policy committees to propose legislation.” These policy committees continued Andrew’s desire to keep in touch with the membership and create a 28

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true “grassroots” organization. Due to these improvements, membership grew every year to its present level of 232 members out of 234 cities and towns.

With such growth in membership, program, and staff, the Association began to search for a new home. “We were outgrowing our space. There was no conference room for our Executive Committee to meet,” says Andrews. In 1978, the NHMA moved to the second floor of The Abbott House on North Main Street, which is now the home of the accounting firm of Plodzik and Sanderson.

During the late 1970s, the NHMA began to expand again, trying to solve problems municipalities were having meeting their insurance needs. Worker’s compensation was becoming expensive and difficult to obtain for communities. Following the lead of other state leagues, the NHMA solicited donations from members to perform a feasibility study. The study results prompted the NHMA to establish an insurance pool for workers’ compensation and unemployment compensation, despite the risks. “We started on a shoestring and a letter of credit,” said Andrews. “We knew we had some financial liability if it didn’t work.” The program did work, in fact, returning nearly $50 million to cities and towns since inception to 1991.

In the early 1980’s, cities and towns were getting slammed with tremendous increases in health insurance. Said Andrews, www.nhmunicipal.org

“The Executive Committee felt if we could do so well with the workers’ comp and unemployment comp, why couldn’t we do it with heath?”

Other wins for local government which Andrews points to include the establishment of the Bond Bank, and limiting liability for municipalities in court actions.

Again, money was collected for a feasibility study and a consultant was hired. Although the possibility of big savings and dividends were not promised, NHMA decided to form a trust. In just two short weeks, members with over 2,300 employees agreed to sign on. “They were buying the hope that over the long term we’d be able to deliver health insurance at a competitive cost and with local control.”

As NHMA’s programs and services expanded, so too did the need for new office space. The Association no longer leased office space but instead built The Local Government Center, in 1989, a modern office complex located at 25 Triangle Park Drive in Concord where local officials meet to solve the challenges facing municipalities today and into the future. The Center was co-owned by NHMA and its Property-Liability and Health Insurance Trusts, who also occupy the building.

Just as health insurance costs skyrocketed in the early 1980’s, so too did property and casualty insurance costs in the mid 1980’s. Insurance companies increased premiums by 100% to 200%, cut coverages, and refused to insure risks such as police and day-care. Again the NHMA asked, if we can do it so successfully with other risks, why can’t we pool these risks too?” After a short but intensive study, the Property-Liability Insurance Trust was formed. “In every case,” said Andrews, “we’ve been able to return the monies donated for feasibility studies, plus interest, within a year.

These programs haven’t cost towns and cities any money.

In fact, they’ve made money and they continue to make money for members year in and year out with lower costs and dividends.”

The legislative front has been the site of major NHMA successes over the past decades as well. “We’re very pleased with Article 28-A, that limits state mandates,” said Andrews. “It’s going to save towns and cities a great deal of money and complications.”

Among the challenges faced by municipalities, “Interlocal agreements is an area that needs to be more aggressively explored.” Andrews felt that towns could join together and hire assessors, code enforcement officers, and even fire and police forces. But the biggest challenge, according to Andrews, was the burden of the property tax.

“It is clearly an anachronism. It doesn’t make common sense to extract taxes on the value of property when that property is just sitting there and not bringing in any revenue. Why tax someone’s house that generates nothing.” Tax reform was the number one priority according to needs study performed, and it still is,” said Andrews.

Andrews worked hard to continue his objective of personalizing the NHMA and keeping in close contact with the membership.

“We are their association and have always worked for their interest but we need their input. Local officials cannot afford to sit on the sidelines and not be part of the solution,” said Andrews.

A Little More About Unfunded Mandates in New Hampshire

T

he grassroots rebellion against mandates in New Hampshire came at the New Hampshire Constitutional Convention in 1984. By a provision of the State Constitution, voters are asked every ten years if they support convening of a Constitutional Convention. Although New Hampshire voters said no to a Constitutional Convention in 1994 and 2004, they said yes in 1984.

In the 1984 Convention, a varied group of delegates coalesced to draft, sponsor, lobby for, and pass to the voters a proposed amendment prohibiting unfunded State mandates on New Hampshire’s local governments. This coalition included conservatives and liberals, current and former

www.nhmunicipal.org

local officials, aspirants for higher office and a few ordinary citizens and delegates. In the forefront of this effort was the New Hampshire Municipal Association.

The motivations behind support for an amendment banning mandates were as varied as the ideologies of the delegates supporting passage of the amendment: conservatives wanted state government off the backs of local government; liberals say it was a way to force the State to be responsible for raising the money required to pay for programs it mandated, leading, perhaps, to tax reform; and local officials were just sick and tired of taking the heat for raising local property taxes to pay for programs and responsibilities foisted upon them by the State.

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29

UNFUNDED from page 29 These disparate viewpoints came together in the “perfect storm” to propose the most sweeping Constitutional prohibition against unfunded State mandates that existed anywhere in the United States at the time. With the support of municipal officials, the 1984 Convention overwhelmingly voted for a resolution to prohibit additional mandated costs on the property tax. The 272-62 vote represented a clear understanding of the frustration experience by citizens as well as local officials at mandated increases imposed on town, city, county and school property tax bills. The Convention, however, was only part of the journey ahead on this issue.

The ballot question, appearing as Question #2, went before voters at the November 1984 election and required a two-thirds vote for final passage. Before long, it became clear that many organizations and institutions whose members or ideological bedfellows supported the amendment would come to oppose it.

group of New Hampshire taxpayers, headed by former Governor Meldrim Thomson, voted to oppose the amendment the week before the election because of the danger that it might lead to a broad-based tax.

On November 6, 1984, the citizens of the State of New Hampshire ratified Article 28-a, a constitutional amendment requiring the State to fund any new programs that it mandates for its political subdivisions. The amendment was approved by a vote of 237,045 to 99,172, a margin well above the twothirds majority required.

Within four months of passage, the New Hampshire House of Representatives and the State Senate filed a petition for declaratory judgement first on whether or not the amendment was properly put before the voters and second on whether or not it was validly adopted by the citizens of New Hampshire. On August 19, 1985, Governor John Sununu and Secretary of State William Gardner filed a motion

asserting the voters understood the language and intent of the amendment, and as a result, validly adopted it. There were few others, except the New Hampshire Municipal Association, that defended the voters wisdom in adoption of Article 28-a. This defense was successful, resulting in a lengthy Superior Court opinion that soundly dismissed all of the petitioner’s claims. This opinion was never appealed to the New Hampshire Supreme Court and the constitutional amendment stands today as adopted in 1984.

In retrospect, the very first thing that should be noted is that the broadbased tax boogeyman never appeared from under the bed. Contrary to the dire predictions of the Union Leader and the anti-tax groups, the State was never forced to adopt a broad based personal income or general sales tax to fund all the programs and responsibilities that the State would mandate on local governments.

Save the Save the Date!

Date!

Save the Date!

Save the Date!

The NHMA had limited resources to commit to a statewide campaign in support of Question #2. However, 75th New Hampshire Municipal Association Annual Conference it did commit about $5,000 from its 75th New Hampshire Municipal Association Annual C reserves and joined forces with other Wednesday and Thursday, November 16-17, 2016 as the New Hampshire 75thgroups, Newsuch Hampshire Municipal Association Conference The Annual Radisson Hotel - Manchester, NH Thursday,Annual November 16-17, 2016 75th New HampshireWednesday Municipal and Association Conference School Boards Association. Strangely, The Radisson Hotel Manchester, NH there wasn’t much opposition to the Wednesday and Thursday, November 16-17, 2016 Wednesday and Thursday, November 16-17, 2016 amendment until the last six weeks The Radisson Hotel - Manchester, NHMunicipal 75th New Hampshire Annual The Radisson Hotel Association - Manchester, NH Conference leading up to the November election.

Save the Date!

A few voices began to rise in opposition. Although every newspaper in the state editorialized in support of the amendment, the Manchester Union Leader did not. The only newspaper with a statewide circulation, the Leader was against the amendment because they believed it would inevitably lead to the adoption of a broad-based income and/or sales tax. Similarly, a 30

NEW HAMPSHIRE TOWN AND CITY

Wednesday and Thursday, November 16-17, 2016 The Radisson Hotel - Manchester, NH

www.nhmunicipal.org

Looking for an employee or a job?

NHMA members and municipalities across the country are invited to submit postings to appear on our website.

Visit www.nhmunicipal.org for more information or submit your ad by email to classifiedads@nhmunicipal.org.

www.nhmunicipal.org

J U LY / A U G U S T 2 0 1 6

31

UP CLOSE AND PERSONAL

T

he Up Close and Personal column is designed to give readers a closer look at NHMA Board members. In this issue, we introduce Brent Lemire, Selectman for the Town of Litchfield. Brent has been volunteering his time on the NHMA board for several years.

TC: What are your duties and responsibilities as Selectman?

BL: I guess the same as any other Selectman, to effectively and efficiently assist in managing the prudential affairs of the town on behalf of the taxpayers.

TC: What is your biggest challenge in performing your duties?

BL: The only challenges occur when the maintenance of municipal services outstrip the available resources necessary to support them. In addition, not all will agree with the decisions you must make on behalf of all of the residents.

TC: How has NHMA helped you to do your job?

BL: Having been a Fire Chief, Budget Committee member and Chair, Town Administrator, and Selectman, I have found the NHMA a consistent source of invaluable information and support at all levels.

Brent Lemire

TC: What is the public perception about your job and how does it differ from the reality of your job?

BL: For the most part, I feel that the perception of the residents of Litchfield is positive, as reflected by the outcome of town meeting voting. I believe it’s important to keep the public informed of activities at the Town Hall and remain open and transparent in the performance of our tasks. If lines of communication remain open, the difference is negligible.

TC: Has your public position changed you personally?

BL: All of the positions I have held have helped me grow both personally and professionally. The old adage that refers to wisdom gained with age certainly fits. I try to learn something new every day and also be as positive as possible.

TC: Has your job changed the way you look at the role of government?

BL: Not really, although it does clarify the reality of the costs of government and the importance of justifying expenses while creating an environment of trust and professionalism, as well as communicating as much information as possible to your constituents.

TC: What advice would you give someone who would like to follow in your footsteps into this job?

BL: Do the best that you can, be honest, do not compromise your integrity and remember that it only takes one election to change the work environment, for better or worse.

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NEW HAMPSHIRE TOWN AND CITY

www.nhmunicipal.org

UP CLOSE & In the Field

PERSONAL

W

elcome to Up Close and Personal – In the Field, a regular column in New Hampshire Town and City, dedicated to giving readers a closer look at local government officials from New Hampshire municipalities. In this issue, we hope you enjoy meeting Donald DeAngelis, Fire Chief and Emergency Management Director for the Town of Epping.

TC: What is your biggest challenge in performing your duties as Fire Chief?

DD: Interacting with mindsets not necessarily aligned with the organization’s mission. The other is dealing directly with personnel at all levels due to the nature of a combination fire department. The majority of our members are part-time and supervisors are not readily available.

TC: How has NHMA helped you to do your job?

DD: Speaking of mindsets, over the years NHMA has offered many programs that helped me move from my role as a personal producer in fire suppression and EMS services to being an effective administrator leading this organization.

Donald DeAngelis

Do you know someone who deserves to be profiled in a future edition of New Hampshire Town and City magazine?

If so, please contact the New Hampshire Municipal Association at 800.852.3358 ext. 3408 or townandcity@nhmunicipal.org.

www.nhmunicipal.org

TC: Give us an example of a problem you solved or a dilemma you faced and overcame in the line of duty?

DD: Epping experienced a tremendous amount of growth in a short amount of time.

Our volunteer firefighters, EMTs and paramedics were taxed with the increase in fire and emergency medical calls at all hours. We sought out the counsel of NHMA and they helped us transition out of the volunteer model to a paid part-time and full-time one.

TC: What is the public perception about your job and how does it differ from the reality of your job?

DD: It is the traditional public perception of the fire chief that he is out running on every call to render aid. In reality, even in a small town, my responsibilities center on collaborating with neighboring communities, ambulance billing, planning, contractor inquiries, suppliers, professional associations, elected officials, regulatory agencies and a sea of mandatory reporting. In addition, much of a fire chief ’s time centers on personnel issues, as well as coaching, training and developing talent.

TC: Has your public position changed you personally?

DD: I have learned to be patient with an individual’s development, growth takes time.

I have learned to accept people with different mindsets from mine and make great friendships. Value everyone as they possess strengths I don’t have and I don’t criticize them for their weaknesses; we all have them.

TC: Has your job changed the way you look at the role of government?

DD: Yes, the majority of individuals employed in government genuinely push to do a great job; they really care about the service they provide. Elected officials I have met at all levels strive to do what they believe is best for their community. Don’t be misled by the popular press.

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33

Tech

Insights

File Sharing: A Potential Security Risk for Municipalities

By Tim Howard

K

eeping government data secure is harder than ever before. The Pentagon reports 10 million probes and attacks on their systems daily. The State of Utah reports an average of 20 million a day. Mandates to use cloud services, and expanded use of mobile devices in the workplace improve productivity and reduce costs, but also increase the risk for data leaks.

Let’s discuss file sharing, since it is such a prominent part of every organization. The most common types of file sharing methods are done through email, the web, or a File Transfer Protocol (FTP). Sharing files internally or externally should be simple, but with so many unsafe habits and practices by individuals, it is putting your organization’s, and citizens’ privacy continuously at risk.

It is hard to believe, but on average over 2.5 quintillion bytes of data is produced in just one single day! It is extremely difficult for one person, or even a team of people to monitor these large amounts of data – even tools struggle to keep up. It is extremely difficult to monitor who sent what, and when and to whom, or to ensure that sensitive files are securely sent.

We know we shouldn’t share THIS type of data insecurely, but why do most still do it?

Information that is never okay to share insecurely includes passwords, social security numbers, medical information, credit card numbers, or anything similar. Even though this seems like it should be common sense, you would be surprised to know that people share this type of information all the time via email, text, etc. Sensitive information should always be shared securely, but do your employees know how to do that, and have you made secure sharing available to them?

Some organizations fail to provide policies or procedures for securely sharing documents, so employees will frequently take matters in to their own hands. They will use personal email, or free cloud storage services like personal Box, OneDrive, DropBox, or similar accounts to share info with others. You may not realize, but a whopping 84% of IT professionals report security problems caused by consumer file sync and share services used for transferring files. Employees 34

NEW HAMPSHIRE TOWN AND CITY

are really not trying to do this maliciously; they are just trying to get their job done. However, personal file management software is a terrible solution because the information cannot be managed or protected. If an employee leaves, they still have access to everything in their account, and you do not. Additionally, you need to be able to monitor and manage the security and access. It is also important to note that sharing over FREE Wi-Fi is extremely unsecure, and should NEVER be done.

What can you do to combat unsecure file sharing?

There are solutions you can use to get ahead of the issue.

Enforcing the use of software like OneDrive or Box for BUSINESS is a basic file sharing solution. These solutions enable you to centrally manage accounts, storage usage, and security settings. If you are already using the popular Microsoft Office 365 solution, you can add on Azure Rights Management for a minimal increase in cost. With this add on, you will get Information Rights Management capabilities, such as “Do Not Forward” and “Company Confidential,” as well as Office 365 Message Encryption, which allows you send encrypted emails to anyone!

For organizations seeking an Enterprise Level file sharing solution that makes sharing documents simple and secure, there are a growing number of solutions for you. Here are a few items you should consider when making your decision: • What data protection laws are you responsible to comply with?

• Will the solution be appropriate for your needs?

• Will the solution allow you to edit documents across multiple devices?

• Choose a solution that will replicate desktop file structures, and allow you access whether you are on or offline. For security features, the solution should offer full encryption, policy based control of content, users, and devices, two factor authentication, and built in remote wipe at a minimum.

The list goes on, and can get a little technical. We have posted a FREE File Sync & Share Buyers Guide on our website www.nhmunicipal.org

that provides all of this information and more at, rmonnetworks.com/FSSGuide.

Implementing Security for your Cloud Based File Sharing Storage Systems As the online file-sharing solutions grow, so does the opportunity for users and hackers to damage your organizations data. You may think that your data in the cloud is secure, but you need to take security measures there as well. Just recently we dealt with a client that needed help because employees had been using their personal Dropbox account to share business files. This client contracted a ransomware virus. Since they were sharing access to these infected files, they kept passing the virus back and forth to each other and infecting their PCs as well. You must take extreme caution, because these viruses can then make their way across your network, and perhaps your entire organization.

Hopefully this article helps you understand the need for an enterprise level file sharing solution, and also the need to protect this cloud application, the same way you would protect your physical network. Having a cloud file sharing system is essential in this modern world, and so is protecting it.

Research cloud app security for your cloud storage, and make sure you have anti-virus installed and running. And

 Telecommunica�ons  Tax Assessment  Eminent Domain

of course, never forget to back it up!

Your back up is your insurance, should a disaster ever occur.

Tim Howard is the President and CEO of RMON Networks, a Managed IT Service Provider specializing in services for Municipalities. For free security tools, and educational information visit the resources section at www.rmonnetworks.com.

We represent towns and ci�es throughout the state and bring value to our clients through decades of experience and adhering to the budgetary constraints under which municipali�es operate. We emphasize preven�ve and �mely legal counsel to our clients with a view toward avoiding problems that result in li�ga�on.

Special counsel services include:

 Appellate  Water  Labor & Employment  Growth Control  Li�ga�on  Land Use & Planning

Also available for conict counsel services

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Toll Free: (800) 566‐0506

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35

The

HR

REPORT

RSA 159:26 Revisited: Can Local Governments, Acting as Employers, Prohibit Employees From Possessing Firearms in the Workplace?

By Mark T. Broth, Esquire and Demetrio F. Aspiras III, Esquire

I

n 2003, the New Hampshire Legislature enacted RSA 159:26, a law that reserved to the State the exclusive ability to regulate matters concerning firearms, firearm components, and knives. The statute stripped local governments of the ability to enact “municipal ordinances and regulations” relative to, among other things, the possession of firearms. The law rendered null and void any existing local regulations that preceded its adoption. But does RSA 159:26 prevent local governments, acting in their capacity as employers, from adopting workplace rules and policies that prohibit employees from possessing firearms while on duty?

At present, this remains an unresolved question. The New Hampshire courts have not had the opportunity to address this issue and the legislative history does not provide definitive guidance. As a result, municipal lawyers have generally opined that local governments should not adopt rules restricting employees from carrying firearms. However, all New Hampshire employers are obligated to provide employees with a safe workplace and to implement and enforce reasonable and necessary safety rules. There are obvious situations where carrying a loaded firearm seems inherently unsafe, such as while fighting fires or operating a jackhammer. If RSA 159:26 was intended to preempt a local government’s ability to have workplace policies concerning firearms, then a town would be unable to determine the type and number of firearms carried by its police officers.

An inability to control how police officers are armed would have a detrimental impact on operational issues, including training and tactics. Was RSA 159:26 preemption intended to be this broad?

RSA 159:26 provides that: [N]o ordinance or regulation of a political subdivision may regulate the sale, purchase, owner36

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ship, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state.

It is clear that RSA 159:26, by its plain terms, constitutes an express preemption by the state of the regulation of firearms and a prohibition against local regulation. But can a work rule be distinguished from an “ordinance or regulation”? It is at least arguable that a personnel policy enacted by a local government can be distinguished from an ordinance or regulation subject to RSA 159:26. Unlike ordinances and regulations, internal personnel policies are established by local governments acting in their capacity as employers, not in a governmental capacity, Unlike ordinances and regulations, personnel policies do not carry the force of law and are not subject to the enforcement through the court system under RSA 502-A:11-a.

As a general matter, municipal regulations and ordinances are laws of general application within the community. In contrast, workplace rules are, by definition, of limited application, in that they affect only employees, not persons or businesses located in the community.

Other state supreme courts have agreed with this analysis under similar statutory schemes. Like New Hampshire, the State of Washington’s firearms regulation statute provided that: The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including ... possession ...

Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law and are consistent with this chapter.... Local laws and ordinances that are inconsistent with, more restrictive www.nhmunicipal.org

than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Upon review of the discharge of a public employee for violating an internal policy related to the possession of firearms, the Washington Supreme Court held: that the Legislature…sought to eliminate a multiplicity of local laws relating to firearms and to advance uniformity in criminal firearms regulation. The Legislature did not intend to interfere with public employers in establishing workplace rules. The “laws and ordinances” preempted are laws of application to the general public, not internal rules. Cherry v. Municipality of Metropolitan Seattle, 116 Wn.2d 794 (Wash. 1991).

Similarly, the Oregon Supreme Court has held that a school district’s internal employment policy was not in conflict with a state statute vesting the state legislature with sole authority to regulate firearms. The Oregon Court held that such internal personnel policies are not the types of local regula-

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tion that the statute was intended to preempt. Doe v. Medford School Dist.

549C, 221 P.3d 787, 799 (Ore. 2009).

These cases are consistent with the general understanding that, while public employees maintain their constitutional rights at work, a public employer has the power to manage or limit those rights to the extent it is pertinent to the employee/employer relationship. For example, [w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Garcetti v. Ceballos, 547 U.S. 410 (2006).

See also RSA 98-E:1.

There are certainly circumstances where public employers and employees have agreed that firearms are not appropriate in the workplace and have agreed that possession of a firearm while at work would be treated as a terminable offense. A local government might also determine that it does not want certain vendors, such as sports referees, carrying weapons It is difficult to conceive that by prohibiting local “ordinances and regulations”

concerning firearms, the legislature intended to compromise a local government’s freedom to enter into contractual relationships or collective bargaining agreements.

These are issues that will require clarification by the legislature or courts.

Until they are resolved, local governments should consider adopting reasonable workplace rules that are necessary to provide their employees with safe work environments. While the potential remains for any such rules to be legally challenged, local governments might sleep better knowing they have taken reasonable measures to protect employee safety.

Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group.

His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship.

Demetrio Aspiras, III is a litigator and member of the Trial Services Group representing clients in a wide range of civil litigation matters. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2016 Drummond Woodsum. These materials may not be reproduced without prior written permission.”

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Legal

Q and A

By Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association

Contracting 101 Q: Are NH municipalities required to use competitive bidding when buying materials and services or when undertaking construction projects?

A: As a general rule, there is no state law requiring competitive bidding for town contracts and purchases unless a public official is involved as one of the sellers or contractors.

Q: What rules govern bidding by public officials?

A: There is no statutory prohibition against public officials bidding for contracts with a town. If a public official is a seller or contractor (or wishes to be), RSA 95:1 requires competitive bidding if the value of the goods or services will exceed $200. In the hypothetical instance where the value of a construction project to replace the Central Fire Station will be far more than $200, if the Deputy Fire Chief wished to bid for the construction management contract for this project, the Town must use competitive bidding to select the contractor.

Q: Can town meeting vote to require competitive bidding?

A: Towns may vote, by a warrant article at town meeting, to establish a centralized purchasing department for the town in accordance with RSA 31:59-a. If the warrant article is approved, the selectmen must appoint a purchasing agent, who may establish rules and regulations for competitive bidding for town purchases. See RSA 31:59-a through 31:59-d. When a town adopts RSA 31:59-a, the authority to purchase all materials, equipment, printing, furniture, furnishings of every name and nature is vested in the appointed purchasing agent.

Q: What is the legality of a municipal competitive bidding regulation that either (a) limits contract work to bidders who are residents or (b) preferring residents?

A: A municipal public bidding regulation that bars nonresidents from bidding on a municipal contract would likely 38

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be found to violate the “privileges and immunities” clause of the U.S. Constitution. Generally the “privileges and immunities” clause of the U.S. Constitution prohibits discrimination against the citizens of other states in seeking work on public works contracts unless there is a “substantial reason” to discriminate. In United Bldg. And Const. Trades Council of Camden County And Vicinity v. Mayor And Council of City of Camden, 465 U.S. 208 (1984), the U.S. Supreme Court invalidated a City of Camden ordinance that required 40% of the employees of contractors and subcontractors working on city construction projects be city residents.

Court decisions in New Hampshire that are associated are those dealing with municipal employment. The New Hampshire Supreme Court has held that residency requirements for municipal employees infringe on the fundamental constitutional right to travel. Such a restriction is lawful only if the municipality can show that the “restriction is necessary to achieve a compelling state interest.” Seabrook Police Assoc. v. Seabrook, 138 N.H. 177, 179 (1993). Such a restriction must also be narrowly drawn to achieve its purpose. In Donnelly v. Manchester, 111 N.H. 50 (1971), and Angwin v. Manchester, 118 N.H. 336 (1978), residency requirements for school employees were held to be invalid. It is likely the New Hampshire Supreme Court would apply the same constitutional analysis to a nonresident’s interest in bidding on a public works contract, and invalidate a competitive bidding limitation if the municipality did not have a compelling interest to limit bidding to residents.

Q: What are the general rules of the road for conducting a public bidding process?

A: When a town decides to use competitive bidding, it must be conducted fairly. The town can reject all bids, but if it decides to accept one over the others, it must choose the “lowest responsible bidder” who has complied with all the terms of the RFP, without showing favoritism. Curran, Inc. v. Auclair Transp. Inc., 121 N.H. 451 (1981). That does not mean that the lowest bidder in dollar amount must be www.nhmunicipal.org

accepted in all cases; if that low bid has not responded to all terms of the RFP, or has proposed materials that are different from those specified, or if the bidder cannot meet a required condition, such as provision of a performance bond, it may be rejected.

All bidders must be treated fairly and equally with respect to the town’s competitive bidding procedures, such as receiving notice. Irwin Marine, Inc. v.

Blizzard, Inc., 126 N.H. 271 (1985).

Q: Can contract specifications be changed during the bidding process in response to changing conditions?

A: A municipality cannot, after putting one set of specifications out to bid, decide to accept a bid that is calculated on different specifications. If the municipality desires to use the new specifications, it must reject all bids, advertise the new specifications and allow the other responsible bidders to submit new bids based on the new specifications. Marbucco Corp. v. City of Manchester, 137 N.H. 629 (1993).

Q: When must a municipality require a public works payment and performance bond?

A: Under RSA 447:16, a municipality must obtain a public works payment and performance bond when a contract for the construction, repair or rebuilding of public buildings, public highways, bridges or other public works involves an expenditure of $35,000 or more. A performance bond would endure faithful performance of the contract by the prime contractor. A payment bond would ensure that all subcontractors and materialmen engaged to do work or deliver materials for a public works project are paid in full.

Q: Are there implied duties that govern all contracts in New Hampshire?

A: In every agreement there exists an implied covenant that each of the parties will act in good faith and www.nhmunicipal.org

deal fairly with the other. Griswold v.

Heat Corporation, 108 N.H. 119, 124 (1967). The duty to act in good faith when carrying out the terms of a contract applies in equal measure to a municipality that is party to a contract.

Seaward Construction Co., Inc. v. City of Rochester, 118 N.H. 128 (1978).

tability and pricing not likely to be available. “Fast Track” construction is not an option.

Bidders unlikely to suggest project improvements in order to avoid price increases that might make the contractor’s price less competitive.

Q: What are most common forms of construction contracts in New Hampshire and what are the advantages and disadvantages of each?

esign-Build: The main feature is 2. D that both the design and construction of a project are performed by a single entity. Rather than engaging a design firm and then a construction firm, the owner engages one firm, generally through a single contract, to take the project from inception to completion.

The design-builder may be, for example, a construction company with design professionals on staff, or a construction company that engages designers for purposes of the project. Joint ventures between design firms and contractors are also sometimes formed for the purpose of contracting with an owner for design-build services.

Below are the three forms of construction contracts and advantages and disadvantages of each: 1. D esign-Bid-Build: A design-bidbuild project proceeds in multiple stages, with the design of the project being performed by a different individual or entity from the party that completes the construction.

The project owner typically begins by engaging an architect and/ or an engineer to provide design services, which may consist of any or all services necessary to take the project from the conceptual design stage through final design of the project and the preparation of construction documents.

Regardless of whether the owner is a private or a public entity, the design professionals are generally selected based on their qualifications, and then engaged through a process of negotiation, as opposed to competitive bidding.

Advantages: Design work is finished before a contractor is selected, which permits the contractor to be selected based on competitive bids for a precisely-defined scope of work.

Disadvantages: The contractor is not involved in the design process, making meaningful and timely input on issues such as choice of materials, construc-

Advantages: The design and construction professionals are working together as a team from the beginning, and this generally leads to a better, more efficient design reflecting the value engineering generally missing from the design-bid-build project. The owner may look to one entity without regard to whether the problem arises out of the design or the construction.

Design-build projects often permit construction to begin as soon as the design-builder is comfortable that the design for the early stages of construction is established.

Disadvantages: Design-Build may reduce, if not eliminate, competition among contractors and the best price thought J U LY / A U G U S T 2 0 1 6

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LEGAL Q & A from page 39 to flow from such competition. Fear of uncontrolled costs of construction. Owners will not have the security of knowing that the work is being performed by the lowest qualified bidder.

3. C onstruction Management: Construction management is a project delivery method that is now in common use in New Hampshire.

There are two principal forms of construction management. First, the construction manager (“CM”) is hired by the owner, at or near the outset of the project, to act as the owner’s agent during design and construction and consults with the design team during the design phase and then enters into contracts and manages construction on

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the owner’s behalf. Then the CM is compensated for its services based on either a flat fee or an hourly rate schedule. Second, the construction management consists of the owner engaging the CM, again at or near the outset of the project, to work with the design team and then actually to construct the project with the CM compensated for its “preconstruction” services in the form of a fixed or hourly fee. The CM is then paid for its construction services, usually by reimbursement of actual construction costs plus a fee expressed as a percentage of such costs. The CM agrees, however, that the cost of construction plus its fee will not exceed a certain figure, known as the “guaranteed maximum price,” or GMP. Advantages: Permits the involvement of the construc-

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tion manager early on in the process to permit input on alternative designs, materials, constructability and value engineering. Allows for fast track construction.

Disadvantages: During the construction phase tends to resemble the traditional design-bid-build model.

Revised and reprinted in part from materials prepared by Attorney Richard C. Gagliuso, Nashua, NH, for the May 29, 2015 Continuing Legal Education Program, with permission from the NH Bar Association.

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.

www.nhmunicipal.org

Court

Update

By Stephen C. Buckley, Legal Services Counsel and Margaret M.L. Byrnes, Staff Attorney

Court Update, previously a regular column in New Hampshire Town and City magazine, has moved to the New Hampshire Municipal Association web site to provide more timely information to NHMA members. Opinions will be posted after they are released, and a reminder will be included here and sent in Newslink. To read previous Court Update columns, please visit www.nhmunicipal.org.

Now available online: Park Owner Responsible for Unpaid Water Bills, But Not Property Taxes Everett Ashton v. City of Concord, New Hampshire Supreme Court, No. 2015-0400, 4/29/2016 Mistake of Fact Does Not Bar Claim of First Amendment Injury by Public Employee Hefferman v. City of Paterson, New Jersey, United States Supreme Court, No. 14-1280, 4/26/2016 Electronic Records Must be Produced Electronically Green v. SAU #55, New Hampshire Supreme Court No. 2015-0274, 4/19/2016 One Bite At the Apple Applies to Planning Board Decisions CBDA Development, LLC v. Town of Thornton, New Hampshire Supreme Court, No. 2014-0775, 4/7/2016 Officer on Laurie List Provided Adequate Procedural Due Process Gantert v. City of Rochester, New Hampshire Supreme Court, No. 2015-0062, 3/18/2016 Employee Can Be Personally Liable for Workplace Discrimination EEOC v. Fred Fuller, Co., New Hampshire Supreme Court, No. 2015-0258, 2/23/2016

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Tuesday, September 20

Puritan Conference & Event Center, Manchester, NH

Budget & Finance WORKSHOP

Thursday, September 27 Attitash Grand Summit Hotel, Bartlett, NH

9 a.m.— 4:30 p.m.

Cost: $80 Continental breakfast & lunch provided.

Attendees will receive a copy of NHMA’s 2015-2016 edition of The Basic Law of Budgeting: A Guide for Towns, Village Districts, and School Districts, including the 2016 Supplement!

Understand the Municipal Budget Process This full-morning session will walk attendees through the municipal budget process focusing on appropriations, separate v. special warrant articles, amendments, transfers, “no means no,” lapses, multi-year contracts, unanticipated revenue, financing options, and estimating appropriation and revenue impacts on the tax rate, among other topics. In addition, the presenters will address the role of official budget committees and specific requirements for SB 2 towns and districts.

Presented by: Stephen Buckley, NHMA Legal Services Counsel, Margaret Byrnes, NHMA Staff Attorney and Barbara Reid, NHMA Government Finance Advisor

You Have Questions? We Have Answers!

This always popular Q&A session will provide answers to your burning budget questions as well as inquiries posed by other participants. So bring those gnawing budget questions to the NHMA panel of experts. We’ll do our best to answer on the spot, and if we can’t (which happens on rare occasions) we promise to follow up with you after the workshop.

Presented by: Stephen Buckley, NHMA Legal Services Counsel, Margaret Byrnes, NHMA Staff Attorney and Barbara Reid, NHMA Government Finance Advisor

Budget Comparisons Made Easy

Ever wonder how your public safety budget compares with other municipalities your size? Or the 10-year history of your own public works appropriations or motor vehicle registration revenue? How does your year-end fund balance as a percentage of property tax revenue compare to municipalities across the state? This session will offer easy answers to these types of questions and other budgetary comparisons through the use of the NH Public Finance Consortium’s redesigned data model.

Sponsored by: NH Government Finance Officers Association Presented by: David Salzer, Principal and Justin Lowe, Director of Operations, Axiomatic, LLC

“A Little Help from My Friends”

It’s always nice to have friends willing to donate or bequeath money for specific municipal projects or help raise money for other municipal purposes. But there are special laws regarding the custody, control and regulation of these gifts including legal and fiduciary responsibilities for Trustees of Trust Funds, LibraryTrustees and Cemetery Trustees. This session will address the special rules for properly administering these private funds used for public purposes.

Presented by: Terry Knowles, Assistant Director, NH Department of Justice, Charitable Trust Unit

Register online at www.nhmunicipal.org under Calendar of Events Questions? Call 800.852.3358, ext. 3350, or email NHMAregistrations@nhmunicipal.org

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www.nhmunicipal.org

A UNH Technology Transfer Center Workshop

A Hard Road to Travel 8:30 a.m.—2:30 p.m.

July 13, 2016 NHMA Offices, 25 Triangle Park Drive, Concord This class, hosted by UNH’s T2 Center and presented by New Hampshire Municipal Association attorneys, Stephen Buckley and Margaret Byrnes, will address governance, regulation, maintenance, and liability issues related to public highways. The instructors will explain the legal process for highway dedication, acceptance, discontinuance, and layout. Then, the presentation and discussion will delve into the authority, responsibility, and limitations on road managers and other municipal officials involved with public roads. Specific topics include Class V and VI roads, insufficiencies, inclement weather maintenance and policies, winter roads, scenic roads, betterment assessments, emergency lanes, drainage, utilities, speed limits, weight limits, bonding, stonewalls, tree cutting, and more.

WORKSHOP FEE: Municipal Rate is $100.00 and the Private Rate is $200.00. This pr ice includes instruction, material, refreshments, and lunch. This rate also includes a of NHMA’s 2015 update of A Hard Road to Travel. If more than one attendee is coming from a municipality or company, and the municipality or company only wishes to have one copy of the book, all subsequent attendees after the first will be charged $60.00 (municipal) and $120 (company).

PROFESSIONAL DEVELOPMENT: This is eligible for up to 5 Professional Development Hours (PDHs) and up to .5 Continuing Education Units (CEUs) through the University of New Hampshire. You do not need CEUs for the UNH Roads Scholar Program.

REGISTRATION: Please use one of the following options: Online at www.t2.unh.edu/workshop-registration-form Call T2 at 603-862-2826 or 800-423-0060 (in NH) E-mail t2.center@unh.edu (include name, title, affiliation, address, phone, and email) AFTER RECEIVING CONFIRMATION: Address check to: UNH Technology Tr ansfer Center Mail to: UNH Technology Tr ansfer Center , 33 Academic Way Dur ham, NH 03824 CANCELLATION: If you need to cancel a registration, call the UNH T2 Center as soon as possible.

We require at least 3 business days notice prior to the workshop to refund fees already paid, or for any charges to be reversed. Cancellations received after this deadline or "no-shows" at the workshop may be charged the full fee. Please know that you may send substitutions to the workshop without prior notice.

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2016 Municipal Law Lecture Series Location

Lecture #1

Lecture #2 Conflicts of Interest

Code Enforcement

Antioch College, Keene Derry Municipal Center

September 14 September 28

September 21 September 14

September 28 September 21

Lincoln Town Hall

September 21

September 28

September 14

Newington Town Hall

October 5

October 12

October 19

SAVE the

DATES!

Developments in The Law

Lecture #3

October 15th 9:00 a.m.—4:30 p.m.

A new opportunity to listen to all three lectures in one day at one location! Join us in Concord at the NHMA Offices.

Continental breakfast and lunch will be provided.

These lectures are intended for municipal officials with an interest in, or responsibility for, any aspect of municipal land use regulation, including members of planning boards, zoning boards, conservation commissions, and select boards, as well as councilors, planners, building inspectors, and code enforcement officers.

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Lecture 1— Developments in the Law

Lecture 2— Conflicts of Interest

Lecture 3— Code Enforcement

Presented by: Benjamin D. Frost, Esq. AICP New Hampshire Housing & Timothy Corwin, Esq. AICP City of Lebanon

Presented by: Margaret Byrnes, Esq. NH Municipal Association & Matthew Serge, Esq. Drummond Woodsum

Presented by: Eric Maher, Esq. Christopher T. Hilson, Esq. Justin L. Pasay, Esq. Donahue, Tucker & Ciandella, PLLC

NEW HAMPSHIRE TOWN AND CITY

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N E W

H A M P S H I R E

Basic Loan Requirements: • Bond issue approved by governmental entity • Completed application approved by Bond Bank Board • Audit by CPA Firm • Local bond counsel opinion

NEW HAMPSHIRE MUNICIPAL BOND BANK

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M U N I C I P A L

B O N D

B A N K

The Bond Bank’s Bond Sale Schedule June 2016 Bond Sale Results True Interest Cost for: 5 year loans 1.58% • 10 year loans 1.73% 15 year loans 2.16% • 20 year loan 2.5% 29 year loan 2.86% Are you planning a capital project for 2017?

We can assist you with your planning by providing various scenarios based on level debt or level principal payments for different terms. Contact us now for your estimated debt schedules.

To schedule a meeting, obtain debt service schedules, or for details about our schedule, fees, Bond Anticipation Note programs, and current interest rates, please contact Sheila M. St. Germain, Executive Director, at info@nhmbb.com or call (603) 271-2595 or toll-free in NH at (800) 393-6422. For more information, visit our website at www.nhmbb.org.

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QBS for Design Professionals Wednesday, July 20 12:00 pm—1:00 pm Cities and towns make significant investments in all types of capital projects every year. Municipal officials responsible for procurement are interested in hiring the firm with the best approach or qualifications, but often the low bidder is chosen instead.

Upcoming Webinars NHMA will be hosting two webinars in July and August for members of the New Hampshire Municipal Association.



Qualifications-Based Selection (QBS) for Design Professionals

• Overtime Final Rule and Municipal Governments

Qualifications-Based Selection (QBS) is a process which provides a fair and rational procedure enabling municipalities to obtain the services of qualified architects, engineers and land surveyors based on professional qualifications at a fair and reasonable cost.

Come learn more about the QBS process and approach to retaining design professionals and learn more about the advantages to municipalities of using the QBS process. Members of New Hampshire's QBS Coalition (NHQBS), sponsored by six of the leading professional associations who represent architects, engineers and land surveyors in New Hampshire, will lead the presentation and discussion, including Bill Straub, P.E., Jonathan Halle, A.I.A, co -chairs of the NHQBS Coalition.

Overtime Final Rule and Municipal Governments Wednesday, August 17 12:00 pm—1:00 pm The Fair Labor Standards Act (“FSLA”) has long applied to state and local governments. Recently the Department of Labor adopted its final overtime rule updating the salary level required for the executive, administrative, and professional (“white collar”) exemption to ensure that the FLSA’s intended overtime protections are fully implemented. The salary threshold under which most white collar workers are entitled to overtime was raised from $455 a week ($23,660 for a full-year worker) to $913 a week ($47,476 for a full -year worker), effective December 1, 2016.

Before this rule goes into effect, municipal employers should assess which employees will be affected, and how the employer will want to respond. Join NHMA’s Legal Services Council, Stephen C. Buckley, and Thomas M. Closson, attorney with Jackson Lewis, a highly regarded firm specializing in labor and employment law, to learn more about what these federal overtime rule changes may mean for you.

For registration information, visit www.nhmunicipal.org under Calendar of Events .

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www.nhmunicipal.org

Elected City Officials WORKSHOP

A New Hampshire Municipal Association workshop designed specifically for officials serving in “representative” local government, namely cities and town council towns.

9:00 a.m.— 2:00 p.m.

September 17, 2016

NH Municipal Association 25 Triangle Park Drive Concord, NH NHMA Legal Services Counsel Stephen Buckley and NHMA Staff Attorney Margaret Byrnes will explore the structure and operations of charter forms of government, including updates in the law, with a special focus on the Right-to-Know law.

Questions are welcome, and there will be time for networking with other city officials over lunch. Registration includes a free 2016 edition of NHMA’s Elected City Officials Handbook!

On-line Pre-registration Required! Space is Limited!

To register, please visit www.nhmunicipal.org and click on the Calendar of Events.

Questions? Please call 800.852.3358, ext. 3350 or email NHMAregistrations@nhmunicipal.org.

Registration & continental breakfast begin at 8:30 a.m. Lunch will be provided.

www.nhmunicipal.org

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25 Triangle Park Drive Concord, NH 03301

Periodical Postage Paid at Concord, NH

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