NH Attorney General's Office: Officials Can Comment On Tax Cap Question But Cannot Use Public Resources

CONCORD, NH — The New Hampshire Attorney General’s Office has issued guidance on political advertising tied to the ballot question on a school funding tax cap required by House Bill 1300, after receiving complaints and concerns about school board members advocating against the proposal and using public resources to promote their political opinions.

The guidance alert was issued Thursday afternoon.

Complaints generally raised two issues: who may take public positions, or electioneer, on the ballot question through advertisements, and whether those people may use public resources to share those views. The Attorney General’s Office said the guidance was issued to educate interested parties and the public on what conduct may or may not be unlawful.

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The guidance stated an elected school board, an individual member of an elected school board, or a superintendent appointed by the elected school board may take public positions for or against the ballot question. It points to New Hampshire RSA 659:44-a, which prohibits electioneering by “public employees.” According to the guidance, the law’s definition of “public employee” excludes persons elected by popular vote and persons appointed to office by the chief executive or legislative body of the public employer.

That means elected school board members, acting individually or collectively, may publicly support or oppose ballot questions. The same applies, according to the guidance, to a superintendent of a school district who was appointed by the elected school board.

The guidance also says public resources cannot be used by public officials, including school board members or superintendents, to disseminate their position on the ballot question. It cites RSA 652:16-h and says that, in general, school board members are prohibited from using public employees to assist in disseminating or posting materials, using school mail or email lists such as school-to-parent email lists or direct or text messaging systems, including cell phone applications or portals, or using school equipment to create or distribute fliers, mailers, and posts.

The Attorney General’s Office said violations of the law could constitute a misdemeanor or a $1,000 civil penalty under RSA 659:44-a, IV.

The notice may not answer every question on electioneering issues, but the Attorney General’s Office will continue to investigate and respond to complaints made to the Election Law Unit. According to the guidance.

Anyone who believes unlawful electioneering has occurred may file a complaint with the Attorney General’s Election Law Unit.