Nonpublic sessions in New Hampshire: when a board can meet in private, and what follows
Short answer
A New Hampshire board may take up a matter in nonpublic session only if the law lists it. In open session, a seconded motion must name the specific exemption, and a majority of the members present must vote yes on a roll call. Minutes and decisions are public within 72 hours unless two-thirds of the members present vote in open session to withhold them because release would likely harm a nonmember's reputation, make the action ineffective, or concern terrorism.(RSA 91-A:3, II; RSA 91-A:3, III-IV; RSA 91-A:2, II)
Where this fits in your meeting cycle: Clarivis is software that helps a board follow these steps: it counts the deadline for each meeting's notice, shows the minutes deadline for each meeting and drafts the minutes for your board to correct and approve; it does not post the notice or send it to a newspaper for you.
See how Clarivis helpsQuestions on this page
Some states call this an executive session; New Hampshire's law says nonpublic session. The rest of the meeting is the open session, which New Hampshire's law calls a public session.
When can a board go into nonpublic session?
Only for a matter the law lists:
Statute text
“Only the following matters shall be considered or acted upon in nonpublic session:”
The matters on the list, in short. Paragraph II(f) is repealed. II(g) reaches only county and state corrections officials, and II(h) concerns applications under the business finance authority's programs, which rarely come before a town board; both are left out here.
| Paragraph | In short |
|---|---|
| II(a) | Dismissal, promotion, pay or discipline of a public employee, or charges against one, unless the employee has a right to a meeting and asks that it be open |
| II(b) | Hiring a person as a public employee |
| II(c) | Matters that would likely harm the reputation of a person other than a member, unless that person asks for an open meeting |
| II(d) | Buying, selling or leasing real or personal property where public discussion would likely help an adverse party |
| II(e) | Pending claims, or litigation threatened in writing or filed, until settled |
| II(i) | Preparing for and carrying out emergency functions meant to thwart a deliberate act of widespread harm |
| II(j) | Confidential commercial or financial information in an adjudicative proceeding under RSA 541 or 541-A. Those chapters govern state agencies, so on their plain words this does not reach a town board's own proceedings |
| II(k) | School board tuition contracts |
| II(l) | Legal advice from counsel, written or oral |
| II(m) | Whether to disclose sealed minutes |
The list is closed. A matter that fits none of them is discussed in open session. Some gatherings are not meetings at all under the law, such as consultation with legal counsel or strategy on collective bargaining (RSA 91-A:2, I); ask town counsel before relying on that, and see the what counts as a meeting guide. Each short description is a summary; read the full paragraph in the law before relying on it.
What has to happen before the board goes in?
The notice. The meeting is noticed like any other, with its time and place:
Statute text
“a notice of the time and place of each such meeting, including a nonpublic session, shall be posted”
See the meeting notice guide.
The motion and the vote. In open session, a member moves to go in, and the motion states on its face the specific exemption relied on:
Statute text
“Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present.”
The motion is seconded, and on the roll call a majority of the members present must vote yes. Once inside, the board discusses only the matters in the motion (RSA 91-A:3).
What happens to the nonpublic session minutes?
They are kept, with the same contents as any minutes:
Statute text
“Minutes of all such meetings, including nonpublic sessions, shall include the names of members, persons appearing before the public bodies, a brief description of the subject matter discussed and final decisions”
Each member's vote is recorded (RSA 91-A:3). The minutes become public within 72 hours, unless the board votes to withhold them:
Statute text
“Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present taken in public session, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism”
A vote to keep minutes from the public, or to release them, is taken in open session. Withheld minutes are listed publicly and, unless the board has adopted its own review procedure, are reviewed no more than 10 years after the last vote to withhold them (RSA 91-A:3).
Checklist
Before the meeting
- The meeting is noticed like any other, with its time and place.
In open session, before going in
- The matter is one the law lists.
- The motion states on its face the specific exemption relied on, and is seconded.
- On a roll call, a majority of the members present vote yes.
Inside
- Only the matters in the motion are discussed.
- Minutes are kept, with each member's vote recorded.
Afterwards
- Minutes and decisions made public within 72 hours, unless two-thirds of the members present, voting in open session, found that releasing them would likely harm the reputation of someone other than a member, make the proposed action ineffective, or concern terrorism.
- Any vote to keep minutes from the public, or to release them, is taken in open session.
What the law does not settle
These are questions to take to your town counsel; this guide does not answer them.
- Whether a particular matter fits one of the listed exemptions.
- When withheld minutes no longer need to be withheld.
- Whether II(j) can ever reach a local board's own proceedings.
- Whether II(h) reaches a town that takes part in a business finance authority program as a local development organization (RSA 162-A:2, XII).
- Whether the notice should say that a nonpublic session may be held (the law asks the notice for the time and place only).
How Clarivis helps
Clarivis does not decide whether a matter may be taken up in nonpublic session; your board and its town counsel do.
- During the meeting, the person recording selects Enter nonpublic session and records the basis. Recording stops, and nothing is recorded until they select Return to open session.
- In the draft minutes, nonpublic session audio is left out.
- After the meeting, the compliance check flags a nonpublic session whose recorded basis is not one of the matters listed above.
Related guides
- What a New Hampshire meeting notice must say, and when to post itTime and place, two places or a newspaper, the 24-hour count, emergencies
- New Hampshire meeting minutes: what they must include and when they must be open to the publicWhat minutes record, open to the public within 5 business days
- What counts as a meeting in New Hampshire: quorum, social contact and emailQuorum, chance and social contact, what is left out, and email
- Remote participation in New Hampshire meetings: when a member may join by phone or videoA quorum in the room, a reason in the minutes, roll-call votes
Sources
- RSA 91-A:3, nonpublic sessions (Right-to-Know Law): gc.nh.gov/rsa/html/VI/91-A/91-A-mrg.htm