What constitutes a meeting of a public body?
An official public meeting occurs when a majority of a public body convenes, whether in person, by telephone or electronic communication, or any other manner for the purpose of discussing or acting upon matters over which the public body has supervision, control, jurisdiction, or advisory power.
EXCEPTION: A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters.
What meetings are exempt from the Right-to-Know Law?
Meetings for the following purposes are exempt from the Right to Know Law:
- Strategy or negotiations with respect to collective bargaining
- Consultation with legal counsel
- Caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election
- Circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting
What notice is required for a public meeting?
The public body must provide a notice at least 24 hours before the meeting (excluding Sundays & legal holidays). The notice must be published in a newspaper or posted in at least two places which is visible to all at all times. One of the two places may be the public body’s web site.
Must the public body provide an agenda before the meeting?
No. If the public body provides an agenda, they may change the agenda at any time, without notice.
May the public attend and record the public meeting?
Yes. A public meeting must be open to the public. Anyone can attend, take notes, and use recording devices.
Must the public be allowed to speak during the public meeting?
The public body has full discretion whether to allow comments or deny them completely. But, if they allow comments, then they cannot impose limits based on the contents of the speech. They can impose content-neutral limits such as time limits and relation to an agenda item. They cannot restrict speech to favorable comments, but must accept criticism.
What is the public body’s scope of authority
New Hampshire is not a ‘Home Rule’ state. In New Hampshire, public bodies and agencies are political subdivisions of the state. They only have authority if the legislature gives it to them, and the legislature is free to retract/change it at any time.
The legislature provides for authority to public bodies and agencies in the language of a state statute. These statutes are published as the New Hampshire Revised Statutes Annotated (a.k.a. RSA). Thus, a public body or agency only has authority if a law grants it to them. If a law does not exist which grants them the authority to take action, then it is generally interpreted as a prohibition against such action.
A fundamental rule, often not understood is that the public body has NO AUTHORITY beyond that exercised by a quorum of public body. When the meeting is called to order each member is empowered with the right to vote on each issue. When the meeting is adjourned, that power is gone. Only a majority of the board has the ability to set policy, hire and fire staff, negotiate contracts or make requests. The board may empower, with a vote, someone else or a subcommittee to take action outside of the board meeting but such power is only given by the vote of the public body.
Are minutes of the meeting kept?
Yes. Minutes of all public meetings must contain the following information:
- Names of members
- Persons appearing before the public body
- Brief description of subject matter discussed
- Names of members who made or seconded each motion
- Final decisions
When may a meeting be closed to the public?
Some of the matters which may be discussed and acted upon during a Nonpublic meeting:
- Public employee personnel matters
- Dismissal, promotion, or compensation
- Investigation of charges against employee
- Discipline of public employee
- Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself
- Consideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community
- Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed by or against the public body or any subdivision thereof, or by or against any member thereof because of his or her membership in such public body, until the claim or litigation has been fully adjudicated or otherwise settled
- Emergency preparation and response by safety officials to thwart an act of terrorism
- Consideration of entering into a pupil tuition contract which, if discussed in public, would likely benefit parties whose interests are adverse to those of the general public or school district that is considering a contract
- Consideration of legal advice provided by legal counsel
Can a nonpublic session be used to make an appointment to an elected office?
According to page 17 of the attorney general’s memorandum
Filling a vacancy of an elected or appointed public office is an “appointment” and is not the “hiring” of a public employee. Interviews and deliberation on filling a vacancy in an elected office therefore must occur in public session. Lambert v. Belknap County Convention, 157 N.H. 375 (2007).
What are the required steps for entering a nonpublic meeting?
To enter a nonpublic meeting the public body must make a motion that is properly made and seconded during a public meeting. The motion must state the specific exemption which is relied upon as foundation for the nonpublic meeting. A roll call vote must be taken and recorded in the minutes. All discussions held and decisions made during nonpublic session must be confined to the matters set out in the motion.
Can additional topics be discussed during a nonpublic meeting?
No. The public body must exit nonpublic and discuss the additional topic in either a public meeting or enter another nonpublic meeting depending on the subject matter
Can the minutes of a nonpublic meeting be sealed?
The minutes may only be sealed if divulgence of the minutes would likely:
- Adversely affect the reputation of any person other than a member of the public body OR
- Render the proposed action ineffective OR
- Pertains to terrorism and preparation for related emergency functions
At least 2/3 of the members present must vote to seal the minutes.
When must the minutes for meetings be available to the public?
For nonpublic meetings, within 72 hours unless they were previously sealed. For public meetings within 5 business days of a request for the records.
May members of public bodies communication outside of meetings?
Communications outside a meeting, including, but not limited to, sequential communications among members of a public body, shall not be used to circumvent the spirit and purpose of the law. Legal meetings may never be conducted by email or any other format which does not comply with notice and public accessibility requirements, or which does not allow the public to hear, read, or discern the discussion contemporaneously at the noticed meeting location.