School boards, advised by their own attorneys, have come to the conclusion that the anti-mask efforts are not a valid use of the petition process. (Getty Images)
It started when Paige Sturgeon felt she wasn’t being heard.
A resident of Moultonborough with two teenagers at the high school, Sturgeon had strong objections to her school district’s proposed mask policy. At a school board meeting in August, she voiced those objections, urging the board to vote against mandating masks during periods of high county transmission. The board moved ahead anyway, joining a number of other schools with such mask policies.
Sturgeon’s fight against the mandate might have ended there, but she discovered another potential tool: a petition. Rather than convincing the school board members to change their minds, a local lawmaker told Sturgeon, opponents of the new policy could gather signatures and force a special school district meeting, at which they could override the mask policies directly.
Weeks later, Sturgeon and others have secured that meeting. Following a process in RSA 197:2, dissatisfied residents collected several dozen signatures calling for a special district meeting; the board has set the meeting for Oct. 13.
Yet even as the meeting has moved ahead, advocates on both sides of the issue disagree over whether it will achieve Sturgeon’s desired result.
To supporters of the petition, the Oct. 13 meeting will allow attendees to vote on a petitioned warrant article that would make masks optional indoors, outdoors, at extracurricular activities, and during sporting events. If the majority votes yes, the policy will be changed.
“Looking at the statute, I saw nothing that would indicate that a vote would be anything other than binding,” said Rep. Glenn Cordelli, a Tuftonboro Republican who represents the town and helped encourage the petition. “So I believe it is a binding vote.”
Moultonborough School Board Chairman Pat Hart sees it differently. The town can vote, he says, but the result will be advisory.
“Even though this is being brought to a vote, the lawyers have advised us that it is only an advisory to the board,” Hart said. “It’s not a binding vote, because the board as the governing body has the only statutory rules to make policy.”
It’s a growing disagreement. Across New Hampshire, as school mask requirements take effect, residents opposed to such policies are increasingly following the same approach: filing petitions to force school board meetings to hold open votes and overriding COVID-19 policies they disagree with. But exactly how that petition process works – and whether it can actually achieve that override – has become the subject of legal interpretation.
School boards, advised by their own attorneys, have come to the conclusion that the anti-mask efforts are not a valid use of the petition process. Some boards are using that argument to deny petition organizers a special district meeting at all, even when enough signatures are collected. On Tuesday night, Londonderry’s board voted, 5-0, to table action on a petition until after “the presentation of a plan and a survey of parents.”
Others, like Moultonborough, are moving ahead with the meetings but stressing that the results will be nonbinding.
Petitions have been filed in “dozens” of school districts, supporters say, and both sides say that the legal debate may be headed for a courtroom.
The inspiration behind the petitions has varied. In Moultonborough, the idea came in part from Cordelli, the local representative who also serves as vice chairman of the House Education Committee.
Cordelli called Sturgeon and other parents in town to suggest the petition approach, Sturgeon said. Like other districts, the board had chosen to follow guidance from the state’s Department of Health and Human Services and tie the mandatory mask policies to county COVID-19 transmission rates, which have remained substantial. Sturgeon feels that that metric ignores the fact that Moultonborough as a town has relatively low COVID-19 rates.
“I’m all for respecting everyone’s opinion,” she said. “We’re not anti this or anti that. We all want everyone to make their own decisions which best suit their needs.”
The petitions have also been encouraged by organizations across the state. A post on the conservative website Granite Grok in early September drew attention to the statute that enables the petition efforts, and included a template by which residents could design their own.
As the petitions advance, the legal effort to stop them is just getting underway. One lawyer, Dean Eggert, of Wadleigh, Starr, and Peters in Manchester, has helped advance the idea that the attempted anti-mandate warrant articles are not legally valid. Eggert declined to divulge any other school districts he is advising due to attorney-client privilege.
According to Eggert, while the petition process outlined in RSA 197:2 can seem like an easy way for residents to override policies, the power is more narrow than petition organizers may think. Because New Hampshire is not a “home rule” state, town residents and school boards alike have only whatever authority is delegated to them by the Legislature, Eggert argues.
There is no state statute that delegates to town residents the ability to set policy through town or school district meetings, Eggert says. But there are statutes that allow governing bodies, including school boards, to decide school policies, he said.
That distinction means the authority to set mask policies rests only with the school board, Eggert said. Residents may use the petition process to bring standard warrant articles, which include financial matters that affect the school or budgetary issues, he added. But policies such as mask mandates can be implemented only by the board elected by voters, Eggert added.
“It boils down to who is the managing board of a school district. Is it a group of citizens coming together once a year at an annual meeting to adopt policy for a district, or is the representative form of government in the United States known as an elected official?” said Eggert, who pointed to a 1978 state Supreme Court case, Winchester Taxpayers’ Association v. Board of Selectmen, which he says supports that interpretation.
The authority rests with the school board partly as a matter of practicality, Eggert argued.
“Could you imagine a school district that met once a year to adopt its policies by vote of the citizens?” Eggert said. “In a representative form of government that’s actually not a valid approach to democratic government.”
But Ken Eyring, the author of the Granite Grok post and a co-founder of the Government Integrity Project, an organization advocating for the petitions, disagrees. Residents don’t lose the right to bring an issue as a warrant article simply because the statute is silent, he said.
“Why would we have an RSA that would allow parents – voters, essentially – to petition their school districts to call for a special meeting, to go through the time and expense and the energy, if the end result is only going to be advisory?” said Eyring, a former school board chairman in Windham. “… If that petition is upheld and they choose to take those results as advisory … they will be, in essence, ignoring their oath of office.”
Statewide authorities are staying above the fray – in public, at least.
In an interview, Eyring said he had had multiple conversations with Secretary of State Bill Gardner in which Gardner endorsed the view that a vote on mask policies at the special school district meetings would be binding. But speaking Tuesday, Deputy Secretary of State Dave Scanlan said the Secretary of State’s Office did not have a formal policy and that it advised towns to seek their own legal counsel in making their decision.
“Voters have the right to bring forward a petition, and the voters would have the right to express their will on the topic, but ultimately it would be up to town (legal) counsel, and subsequently the courts, to make a determination whether something was actually enforceable or not,” Scanlan said. Gardner was not available to comment.
Meanwhile, Hart said that he had received legal advice from the New Hampshire School Board Association indicating that the vote on mask policies at the petition meeting would not be valid. But while Association Executive Director Barrett Christina acknowledged informal conversations with Moultonborough’s board, he said the association was not giving an official opinion.
“NHSBA has not taken a position on this,” he said in an email. “There is some legal authority that such a warrant article would be advisory or nonbinding on the school board.”
Against such uncertainty, the matter could eventually arrive in a New Hampshire superior court. Those in Moultonborough opposed to mask mandates say they’re ready for that.
“If it goes the other way and we all do vote to have the choice, and the school board decides not to (implement it), yes, we are going to pursue this,” Sturgeon said.
First, though, the school board will have to hold the meeting. As the days count down, dueling campaigns for and against the warrant article have emerged. Some businesses have posted their support on storefronts across town, Sturgeon said.
The legal debate has led to a bizarre reality: Residents of Moultonborough will assemble in a room next week and cast a vote in a process that only one side believes will be binding. The situation appears ripe for frustration.
Still, whatever the outcome, Hart hopes residents will ultimately overcome the masking disagreements.
“We are a small town,” he said. “The families that are pushing really hard to remove the mask requirement or change the policy are people that I see at sporting events. Our kids play on teams together. So it can be stressful, but it hasn’t seemed to boil over from the meetings to outside the meetings,” he said.
Sturgeon has another idea.
“The way the town could move beyond it is just to drop the policy,” she said. “You know, you’re really causing more division, which we don’t need in this time, with this world going on right now, when you could leave the option to the parents.”
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