POWERS of THE SELECTMEN: What can they lawfully do?

The State of New Hampshire is not a home rule state. Thus, the authority of the Selectmen to exercise a particular action is limited to only that provisioned by the New Hampshire State Legislature - OR - in the case of Town Meeting Towns (such as Epping), from the people themselves. Considering that, may the Selectmen do anything or whatever they please? Absolutely NOT! Their feet are held to the fire by State Law and, in particular, RSA 41:8 which says: “…The Selectmen shall manage the prudential affairs of the town and perform the duties by law prescribed. A majority of the selectmen shall be competent in all cases.”

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To you, the 21st century reader, RSA 41:8 may not appear to say much at all. In fact, at first blush, the law seems to suggest more than just a mere modicum of elasticity as to how far Selectmen may stretch their powers in “managing the prudential affairs of the town.” Though its meaning may seem confusing and somewhat elastic, it is neither. It is a precise “term of art” that carries a narrow legal meaning coined by our forefathers who authored the law with the intention of constraining the Board of Selectmen’s governing authority. If RSA 41:8, as worded, creates more questions than answers for you, chock it up to a multi-generational loss of understanding the proper role of government; the interventionist government we live under today would never have been tolerated in their day.

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Selectmen Are Elected to Serve—Not to Rule

​The carefully chosen wording of RSA 41:8 is aimed at restricting the reach of local government; that was the intention of its authors. In Towns operating under the Town Meeting form of government, it is there to remind the Selectmen that they are not the sovereigns; the people are. This longstanding law, which has survived the test of time, has been the basis of multiple N.H. Supreme Court decisions where heavy-handed Boards of Selectmen were reminded by the Court that they may not trample the constitutionally protected right of the people to self-govern.

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As an example, in the 1954 Supreme Court case Moulton v Beals, 98 NH 461, the Court decided in favor of the people as to whether the Town Meeting retained the right “at their pleasure, to appoint agents or attorneys to take the immediate charge of their legal proceedings.” In reaching its decision, the Court relied upon the 1871 case, Rich V Errol, 51 NH 350,354 which said that the statutes cited, in that case, confirmed that the Selectmen were not “regarded as the general agents of the town, ‘clothed with the general powers of the corporate body for which they act. They can only exercise such powers and perform such duties as are properly incident to the special and limited authority conferred on them by their office.’” 

The decision went further to assert that Selectmen are “empowered to do only such acts as are required to meet the exigencies [e.g., urgent needs, emergencies] of ordinary town business.” [emphasis added] Which begs the question: “Did the Selectmen overstep its limited authority by submitting a non-petitioned, money article, for consideration by this year’s town meeting, for the express purpose of raising funds for a non-government, non-profit organization?” And then go so far as to recommend passage? Was this article required to meet the exigencies of ordinary town business? No! Does it align with the special and limited authority conferred upon the Selectmen? No! Does it fall within “[t]he particular duties comprehended within the meaning of the phrase ‘prudential affairs’”? Again, the answer is a resounding NO!

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Selectmen Duties - Transparency

​Admittedly, the duties of the Selectboard are many and greatly varied; it is incumbent upon every Selectman to know the laws that guide him/her in how to lawfully and transparently execute these duties. Ignorance is no excuse for stepping on the laws that pertain to the office; moreover, nepotism, cronyism or any other form of favoritism, as in the aforementioned example, cannot be considered governing transparently. Chapter 41 of the New Hampshire Revised Statutes Annotated (RSAs) provides the bulk of the Selectmen’s authority; however, several other Chapters of New Hampshire State law, or sections thereof, also exist to provide guidance to the Selectmen as the Town’s governing body.

Notwithstanding the broad and varied powers of the Selectmen, it is to be remembered that New Hampshire is NOT a home rule State; therefore, the Selectmen are obliged to follow the laws. They may not pick and choose which laws to follow; they may not make up the law; they may act ONLY as a competent board; therein, NO Selectman holds the authority to act alone.

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“He that seeketh the law, shall be filled with it: and he that dealeth deceitfully, shall meet with a stumbling block therein.”

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Getting elected, or appointed, to any public office is both an honor and a privilege; but, it does nothing to crown the office holder a king. Thus, the Board of Selectmen is not elected to rule over the people; but only to serve the people in accordance with the humility of being crowned a public servant.