40:2 Vacancy. [Repealed Ch. 410, Laws of 1979]

40:3 Pro Tem. If the moderator is absent from any meeting or is unable to perform the duties of the office of moderator, a moderator pro tempore shall be appointed in like manner.

40:3-a Assistant Moderator. The moderator may appoint an assistant moderator, who shall take the oath of office in the same manner as the moderator and shall hold office at the pleasure of the moderator, and shall have all the powers and duties which the moderator has, subject to the control of the moderator.

40:4 Duties. I. The moderator shall preside in the town meetings, regulate the business thereof, decide questions of order, and make a public declaration of every vote passed, and may prescribe rules of proceeding; but such rules may be altered by the town.

II. In the event a weather emergency occurs on or before the date of a deliberative session or voting day of a meeting in a town, which the moderator reasonably believes may cause the roads to be hazardous or unsafe, the moderator may, up to 2 hours prior to the scheduled session, postpone and reschedule the deliberative session or voting day of the meeting to another reasonable date, place, and time certain. The date originally scheduled shall continue to be deemed the deliberative session or voting day of the meeting for purposes of satisfying statutory meeting date requirements; provided, that in towns or districts that have adopted RSA 40:13, the postponement shall not delay the deliberative session more than 72 hours. The moderator shall employ whatever means are available to inform citizens of the postponement and the rescheduled deliberative session or voting day.

Conduct of Voting

40:4-a Secret Ballot.

I. (a) At any meeting of a town with a population of more than 500, 5 voters who are present may make a request in writing prior to a vote by voice vote or division vote that the vote be taken by secret written ballot. Upon receiving such a request, the moderator shall conduct the vote by secret "yes-no" ballot.

(b) Notwithstanding any other provision of law, on the request of 5 voters who are present, the moderator shall conduct a recount on any vote taken by secret written ballot under subparagraph (a). The recount shall take place immediately following public announcement of the vote taken providing that the vote margin is not more than 10 percent of the total vote cast. There shall be no fee required for a recount under this section.

II. At any meeting of a town of a population 500 or less, 3 voters who are present may request secret balloting or recounting as provided in paragraph I.

40:4-b Questioning a Vote. When any vote, other than by ballot, declared by the moderator or other officer presiding shall, immediately and before any other business is begun, be questioned in writing or orally by 7 or more of the voters present, the moderator or other officer presiding shall retake the vote by secret "yes-no" ballot.

40:4-c Recount.

I. If any 10 voters of a town shall, before the expiration of 7 days from the date of an annual meeting or special meeting, apply in writing to the town clerk for a recount of the ballots given in at said meeting on any question, affecting said town only, legally appearing on the official Australian or nonpartisan ballot used at said meeting, said clerk shall appoint a time and place for the recount not earlier than 5 days nor later than 10 days after the receipt of said application. The applicants for such recount shall pay to the town clerk, for the use of the town, a fee of $10.

II. The recount shall be held at the time and place appointed, and the ballots shall be recounted by the board of recount in accordance with the procedures for recounts of town elections under RSA 669:30-33.

40:4-d Declaration of Results. If, in the case of a recount of votes, it shall appear that the result of the vote on the question was other than as declared by the moderator, the board of recount shall declare the result found by it and shall, after 5 days from such declaration, if no appeal is taken to the superior court, certify such declaration to the town clerk and said declaration shall be final, unless the result is changed upon appeal to the superior court.

40:4-e Use of Ballot for Town Meeting Articles. No question submitted to voters at a town meeting or election pursuant to RSA 39:3-d shall be submitted by use of a question printed on the official ballot unless that form of submission is specifically authorized or required by law.

40:4-f Checklist Update. An updated checklist shall be used for all town meetings and elections as provided in RSA 669:5.

Proceedings

40:5 Poll of Voters. [Repealed Ch. 524, Laws of 1971]

40:6 Penalty for Default of Presiding Officer. Any moderator or other officer presiding who shall wilfully neglect or refuse to follow the procedures for voting established in RSA 40 or who shall wilfully violate or neglect to enforce any rule of proceeding which shall have been established by vote of the town or otherwise, shall be guilty of a misdemeanor.

40:7 Debate. No person shall speak in any meeting without leave of the moderator, nor when any person speaking is in order; and all persons shall be silent at the desire of the moderator, on pain of forfeiting $1 for each offense, for the use of the town.

40:8 Disorder. If any person shall behave in a disorderly manner, and, after notice from the moderator, persist in such behavior, or shall in any way disturb the meeting, or willfully violate any rule of proceeding, the moderator may command any constable or police officer, or any legal voter of the town, to remove such disorderly person from the meeting and detain such person until the business is finished.

40:9 Duty of Police. Every constable or police officer shall obey the orders and commands of the moderator for the preservation of order, and may command such assistance as is necessary; and if any constable or police officer neglects to perform any of the duties imposed by this or RSA 39 such constable or police officer shall forfeit $40 for the use of the town.

40:10 Optional Restriction on Reconsideration.

I. A town may, at any time during a meeting, and without notice in the warrant, vote to restrict reconsideration of any one or more votes previously taken at that meeting, or warrant articles previously considered at that meeting. No vote or article which has been restricted under this section, nor the restriction itself, shall be reconsidered during that meeting or any adjourned session of such meeting, except as provided in paragraph II.

II. Upon approval of a motion to reconsider any vote or warrant article subject to such a restriction, actual reconsideration shall take place at an adjourned session of the meeting, held at least 7 days after the date on which the motion to reconsider was approved. Notice of the date, time and place where the adjourned session is to be held shall be given by announcement prior to the close of the session at which the motion to reconsider was approved, and shall also be published in a newspaper of general circulation in the municipality at least 2 days before the reconsideration.

III. A restriction adopted under this section shall continue until final adjournment of the meeting at which it is adopted, or any adjourned session of such meeting.

IV. A restriction adopted under this section shall apply to any subsequent action by the meeting which alters or modifies the result of the restricted vote, or which involves the same subject matter as does the restricted vote or warrant article, regardless of whether or not the term "reconsider" is actually used.

V. This section shall apply to town meetings, village district meetings under RSA 52, cooperative school district meetings under RSA 195, and school district meetings under RSA 197.

40:11 Consideration of Warrant Articles. In towns with 10,000 or more inhabitants, every article included in a warrant for a town meeting shall be acted upon before final adjournment of the town meeting.

40:12 Definition. In this subdivision "local political subdivision" means any local political subdivision of the state whose legislative body raises and appropriates funds through an annual meeting.

40:13 Use of Official Ballot.

I. Notwithstanding RSA 39:3-d, RSA 40:4-e, or any other provision of law, any local political subdivision as defined in RSA 40:12 which has adopted this subdivision shall utilize the official ballot for voting on all issues before the voters.

II. The warrant for any annual meeting shall prescribe the place, day and hour for each of 2 separate sessions of the meeting, and notice shall be given as otherwise provided in this section. Final budgets and ballot questions shall be printed in the annual report made available to the legislative body at least one week before the date of the second session of the annual meeting..

II-a. Notwithstanding any other provision of law, all local political subdivisions which adopt this subdivision, who have not adopted an April or May election date under RSA 40:14, X shall comply with the following schedule pertaining to notice, petitioned articles, hearings, and warrants for the annual meeting:

(a) The final date for posting notice of budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a shall be the second Tuesday in January.

(b) The "budget submission date" as defined in RSA 273-A:1, III and the final date for submission of petitioned articles under RSA 39:3 and RSA 197:6 shall be the second Tuesday in January.

(c) Budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a and RSA 675:3 shall be held on or before the third Tuesday in January.

(d) Warrants under RSA 39:5 and RSA 197:7 and budgets shall be posted and copies available to the general public on or before the last Monday in January.

II-b. Notwithstanding any other provision of law, all political subdivisions which hold their annual meetings in April shall comply with the following schedule pertaining to notice, petitioned articles, hearings, and warrants for the annual meeting.

(a) The final date for posting notice of budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a shall be the second Tuesday in February.

(b) The "budget submission date" as defined in RSA 273-A:1, III and the final date for submission of petitioned articles under RSA 39:3 and RSA 197:6 shall be the second Tuesday in February.

(c) Budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a and RSA 675:3 shall be held on or before the third Tuesday in February.

(d) Warrants under RSA 39:5 and RSA 197:7 and budgets shall be posted and copies available to the general public on or before the last Monday in February

II-c. Notwithstanding any other provision of law, all political subdivisions which hold their annual meetings in May shall comply with the following schedule pertaining to notice, petitioned articles, hearings, and warrants for the annual meeting.

(a) The final date for posting notice of budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a shall be the second Tuesday in March.

(b) The "budget submission date" as defined in RSA 273-A:1, III and the final date for submission of petitioned articles under RSA 39:3 and RSA 197:6 shall be the second Tuesday in March.

(c) Budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a and RSA 675:3 shall be held on or before the third Tuesday in March.

(d) Warrants under RSA 39:5 and RSA 197:7 and budgets shall be posted and copies available to the general public on or before the last Monday in March.

II-d. The voter checklist shall be updated in accordance with RSA 669:5 for each session of the annual meeting.

III. The first session of the annual meeting, which shall be for the transaction of all business other than voting by official ballot, shall be held between the first and second Saturdays following the last Monday in January, inclusive of those Saturdays; between the first and second Saturdays following the last Monday in February, inclusive of those Saturdays; or between the first and second Saturdays following the last Monday in March, inclusive of those Saturdays at a time prescribed by the local political subdivision’s governing body.

IV. The first session of the meeting, governed by the provisions of RSA 40:4, 40:4-a, 40:4-b, 40:4-f, and 40:6-40:10, shall consist of explanation, discussion, and debate of each warrant article. A vote to restrict reconsideration shall be deemed to prohibit any further action on the restricted article until the second session, and RSA 40:10, II shall not apply. Warrant articles may be amended at the first session subject to the following limitations:

(a) Warrant articles whose wording is prescribed by law shall not be amended.

(b) Warrant articles that are amended shall be placed on the official ballot for a final vote on the main motion, as amended.

V. [Repealed Ch. 318, Laws of 1997. ]

V-a.  Any town may vote to require that all votes by an advisory budget committee, a town budget committee, and the governing body or, in towns without a budget committee, all votes of the governing body relative to budget items or warrant articles shall be recorded votes and the numerical tally of any such vote shall be printed in the town warrant next to the affected warrant article.

VI. All warrant articles shall be placed on the official ballot for a final vote, including warrant articles as amended by the first session. All special warrant articles shall be accompanied on the ballot by recommendations as required by RSA 32:5, V, concerning any appropriation or appropriation as amended.

VII. The second session of the annual meeting, to elect officers of the local political subdivision by official ballot, to vote on questions required by law to be inserted on said official ballot, and to vote on all warrant articles from the first session on official ballot, shall be held on the second Tuesday in March, the second Tuesday in April, or the second Tuesday in May, as applicable. Notwithstanding RSA 669:1, 670:1, or 671:2, the second session shall be deemed the annual election date for purposes of all applicable election statutes including, but not limited to, RSA 669:5, 669:19, 669:30, 670:3, 670:4, 670:11, 671:15, 671:19, and 671:30-32; and votes on zoning ordinances, historic district ordinances, and building codes under RSA 675.

VIII. The clerk of the local political subdivision shall prepare an official ballot, which may be separate from the official ballot used to elect officers, for all warrant articles. Wording shall be substantively the same as the main motion, as it was made or amended at the first session, with only such minor textual changes as may be required to cast the motion in the form of a question to the voters.

IX.  (a) “Operating budget” as used in this subdivision means “budget,” as defined in RSA 32:3, III, exclusive of “special warrant articles,” as defined in RSA 32:3, VI, and exclusive of other appropriations voted separately.

       (b) “Default budget” as used in this subdivision means the amount of the same appropriations as contained in the operating budget authorized for the previous year, reduced and increased, as the case may be, by debt service, contracts, and other obligations previously incurred or mandated by law, and reduced by one-time expenditures contained in the operating budget.  For the purposes of this paragraph, one-time expenditures shall be appropriations not likely to recur in the succeeding budget, as determined by the governing body, unless the provisions of RSA 40:14-b are adopted, of the local political subdivision.

X.  If no operating budget is adopted, the local political subdivision either shall be deemed to have approved the default budget or the governing body may hold a special meeting pursuant to paragraph XVI to take up the issue of a revised operating budget only; provided that RSA 31:5 and RSA 197:3 shall not apply to such a special meeting.  If no operating budget article is adopted the estimated revenues shall nevertheless be deemed to have been approved

 XI. (a) The default budget shall be disclosed at the first budget hearing held pursuant to RSA 32:5 or RSA 197:6.  The governing body, unless the provisions of RSA 40:14-b are adopted, shall complete a default budget form created by the department of revenue administration to demonstrate how the default budget amount was calculated.  The form and associated calculations shall, at a minimum, include the following:

          (1) Appropriations contained in the previous year’s operating budget;

          (2) Reductions and increases to the previous year’s operating budget; and

          (3) One-time expenditures as defined under subparagraph IX(b).

          (b)  This amount shall not be amended by the legislative body.  However, this amount may be adjusted by the governing body, unless the provisions of RSA 40:14-b are adopted, acting on relevant new information at any time before the ballots are printed, provided the governing body, unless the provisions of RSA 40:14-b are adopted, completes an amended default budget form.

          (c)  The wording of the second session ballot question concerning the operating budget shall be as follows:  “Shall the (local political subdivision) raise and appropriate as an operating budget, not including appropriations by special warrant articles and other appropriations voted separately, the amounts set forth on the budget posted with the warrant or as amended by vote of the first session, for the purposes set forth therein, totaling $_____?  Should this article be defeated, the default budget shall be $_____, which is the same as last year, with certain adjustments required by previous action of the (local political subdivision) or by law; or the governing body may hold one special meeting, in accordance with RSA 40:13, X and XVI, to take up the issue of a revised operating budget only.”

XII. Voting at the second session shall conform to the procedures for the nonpartisan ballot system as set forth in RSA 669:19-29, RSA 670:5-7 and RSA 671:20-30, including all requirements pertaining to absentee voting, polling place, and polling hours.

XIII. Approval of all warrant articles shall be by simple majority except for questions which require a 2/3 vote by law, contract, or written agreement.

XIV. Votes taken at the second session shall be subject to recount under RSA 669:30-33 and RSA 40:4-c.

XV. Votes taken at the second session shall not be reconsidered.

XVI. The warrant for any special meeting shall prescribe the date, place and hour for both a first and second session. The second session shall be warned for a date not fewer than 28 days nor more than 60 days following the first session. The first and second sessions shall conform to the provisions of this subdivision pertaining to the first and second sessions of annual meetings. Special meetings shall be subject to RSA 31:5, 39:3, 195:13, 197:2, and 197:3, provided that no more than one special meeting may be held to raise and appropriate money for the same question or issue in any one calendar year or fiscal year, whichever applies, and further provided that any special meeting held pursuant to paragraphs X and XI shall not be subject to RSA 31:5 and RSA 197:3 and shall not be counted toward the number of special meetings which may be held in a given calendar or fiscal year.

40:14 Method of Adopting Official Ballot Referendum Form of Meeting.

I. This subdivision may be adopted by any local political subdivision as defined in RSA 40:12. A 3/5 majority of those voting on the question shall be required to adopt this subdivision. Only votes in the affirmative or negative shall be included in the calculation of the 3/5 majority.

II. Adoption of this subdivision shall be deemed to constitute a vote to conduct the election of town officers by official ballot under RSA 669:14.

III. The local political subdivision shall place the question on the warrant of the annual meeting under the procedures set out in RSA 39:3 or RSA 197:6, and the question shall be voted on by official ballot in accordance with the procedures established in RA 669:19-29, RSA 670:5-7, and RSA 671:20-30, including all requirements pertaining to absentee voting, polling places, and polling hours.

IV. A public hearing shall be held by the local governing body on the question at least 15 days, but not more than 30 days, before the question is to be voted on. In multi-town districts, a public hearing shall be held in each town embraced by the district, none of which shall be held on the same day. Notice of the hearing shall be posted in at least 2 public places in the town and at least 2 public places in each town of multi-town districts, and published in a newspaper of general circulation at least 7 days prior to the date of the hearing.

V. The wording of the question shall be: "Shall we adopt the provisions of RSA 40:13 (known as SB 2) to allow official ballot voting on all issues before the (local political subdivision) on the second Tuesday of (month)?"

VI. If a 3/5 majority of those voting on the question vote "yes," RSA 40:13 shall apply within the local political subdivision at the annual or special meeting next following. Only votes in the affirmative or negative shall be included in the calculation of the 3/5 majority.

VII. Any local political subdivision which has adopted RSA 40:13 may consider rescinding its action in the manner described in RSA 40:13, III-VI. The wording of the question shall be: "Shall we rescind the provisions of RSA 40:13 (known as SB 2), as adopted by the (local political subdivision) on (date of adoption), so that the official ballot will no longer be used for voting on all questions, but only for the election of officers and certain other questions for which the official ballot is required by state law?" A 3/5 majority of those voting on the question shall be required to rescind the provisions of this subdivision, except in the case of repeal by charter enactment under RSA 49-D. Only votes in the affirmative or negative shall be included in the calculation of the 3/5 majority.

VIII. For any town which has adopted a charter under RSA 49-D:3, the method of adoption shall be the manner of amending the charter as provided under RSA 49-B.

IX. In the event that an alternative method for the adoption of official ballot voting exists under the laws of this state, then once the requirements are met for inclusion of the question on the warrant for annual meeting of whether to adopt this subdivision, nether the governing body nor the legislative body shall commence action to adopt official ballot voting through such alternative method until a final vote is taken on the warrant article. If procedures have been initiated to adopt official ballot voting under an alternative law of this state, then neither the governing body nor the legislative body shall commence action to adopt this subdivision until such alternative procedures are exhausted.

X. In a local political subdivision which has not adopted RSA 40:13 and in which the adoption of RSA 40:13 is to be voted on, the question shall specifically state whether the date for local elections and the second session shall be the second Tuesday in March, the second Tuesday in April, or the second Tuesday in May.

XI. A local political subdivision which has adopted the provisions of RSA 40:13 may change the date for local elections and the second session as follows:

(a) The question may be inserted on the warrant for either an annual or special meeting, either by the local governing body or by petition under RSA 39:3 or RSA 197:6.

(b) A public hearing shall be held by the local governing body on the question at least 15 days, but not more than 30 days, before the question is to be voted on. In multi-town districts, a public hearing shall be held in each town embraced by the district, none of which shall be held on the same day. Notice of the hearing shall be posted in at least 2 public places in the town, or in at least 2 public places in each town of multi-town districts, and published in a newspaper of general circulation at least 7 days prior to the date of the hearing.

(c) The wording of the question shall be substantially similar to the following: "Shall we change the date for elections and the second session from the second Tuesday in ________ to the second Tuesday in ________, which would change the date for the first session to a date between the first and second Saturdays after the last Monday in ________, inclusive?"

(d) A simple majority in the affirmative of those voting on the question shall be required to change the date; provided, however, that if the question appears on the ballot for a multi-town school district, the vote in each town or city comprising the district shall be tallied separately, and this section shall not be deemed adopted by the district unless it receives a majority vote from each and every such town and city, tallied separately. Only votes in the affirmative or negative shall be included in the calculation of the majority.

(e) A vote to change the dates of the meeting shall apply to the annual meeting next following the vote.

40:14-a Coordinating Certain Town and School District Elections.

          To facilitate voting for future annual meetings, to reduce costs, and to best accommodate the voters of the town, the legislative body of a town, which as not adopted the official ballot referendum form of meeting, although the school district has adopted the official ballot referendum form of meeting, may authorize coordination of future town elections with the school district elections.  The joint elections shall be held at a time and place determined by, and shall be supervised by, the election officials of the town, as provided in RSA 671:26.  The town and the school board shall allocate the costs of the joint elections in the same manner as in previous years, or as mutually agreed upon by the governing body of the town and the school board.

40:14-b Default Budget Determined by Budget Committee.

I.  A local political subdivision which has adopted the official ballot referenda form of meeting pursuant to RSA 40:14 and has also adopted a municipal budget committee pursuant to RSA 32:14 may delegate the determination of the default budget to the budget committee instead of the governing body.

II.  A vote under this section may be taken simultaneously with the adoption of RSA 40:13 or any time after the adoption of RSA 40:13.

            (a)  If the vote is taken simultaneously with the adoption of RSA 40:13, a separate question shall be placed on the warrant for the annual meeting following the procedures in RSA 40:14.

            (b)  If the vote is taken after the adoption of RSA 40:13, the question shall be placed on the warrant of the annual meeting by the governing body or by petition under the procedures set out in RSA 39:3 or RSA 197:6 and shall not be amended.  A public hearing on the question shall be held by the local governing body following the procedures in RSA 40:14, IV.  A vote to adopt the question shall conform with RSA 40:14, VI.

            (c) The wording of the question shall be: “Shall we adopt the provisions of RSA 40:14-b to delegate the determination of the default budget to the municipal budget committee which has been adopted under RSA 32:14?”

III.  The provisions of the section may be rescinded following the procedures set out in RSA 40:14, VII, except that the wording of the question, which shall not be amended, shall be: “Shall we rescind the provisions of RSA 40:14-b, as adopted by the (local political subdivision) on (date of adoption), so that the default budget will be determined by the governing body instead of the budget committee?”

I. Any multi-town school district adopting the provisions of RSA 40:13 may vote to use additional polling places for the second session of the annual meeting. The additional polling places shall be the regular polling places for town or city elections in each member town and city of the district. The school district moderator shall supervise the election process and appoint an assistant moderator for each additional polling place. The school district clerk shall appoint an assistant clerk for each additional polling place. Each assistant moderator and assistant clerk shall be domiciled in the town covered by the additional polling place served by such assistant moderator or assistant clerk. The powers and duties of the assistant moderator and the assistant clerk shall be the same as those of the moderator and the clerk at the central polling place except as otherwise provided in the election laws. The inspectors of elections appointed as provided in RSA 658:2 shall be sworn in by the assistant moderator before entering upon their duties. All additional costs resulting from the establishment of additional polling places shall be borne by the school district.

II. Paragraph I of this section may be adopted by any multi-town school district simultaneously with adoption of RSA 40:13 or any time after the adoption of RSA 40:13.

III. The school district shall place the question on the warrant of the annual meeting under the procedures set out in RSA 197:6, and the question shall be voted on by official ballot in accordance with the procedures established in RSA 671:20-30, including all requirements pertaining to absentee voting, polling places, and polling hours.

IV. A public hearing shall be held by the school board on the question at least 15 days, but not more than 30 days, before the question is to be voted on. The public hearing shall be held in each town or city embraced by the district. Notice of the hearing shall be posted in at least 2 public places in each town or city of multi-town districts, and published in a newspaper of general circulation at least 7 days prior to the date of the hearing.

V. The wording of the question shall be: "Shall we adopt the provisions of RSA 40:15 to allow voting at additional polling places for the second session of the annual meeting?"

VI. If a majority of those voting on the question vote "yes," and RSA 40:13 has also been adopted then RSA 40:15 shall apply within the district at the annual or special meeting next following. Only votes in the affirmative or negative shall be included in the calculation of the majority.

RSA 40:16 Legalization of Meetings. When irregularities or procedural defects in the actions of a local political subdivision are discovered in a local political subdivision using the official ballot, the local political subdivision may, on the authority of the governing body, call a special meeting for the exclusive purpose of curing such defect according to RSA 31:5-b with a single session for deliberating and voting to cure such defect.