CONCORD — Reacting to local COVID-19 restrictions, a House panel endorsed two bills Monday to limit the power of city councils and local health officers to take similar actions in the future.
State Rep. Juliet Harvey-Bolia, R-Tilton, said she pursued this legislation in response to mask mandates in Keene, Portsmouth, Durham, Lebanon last year.
“This would put the onus on the state or Legislature to deal with it on a state level,” Harvey-Bolia said in testimony on her bill (HB 1268) two weeks ago.
The House Municipal and County Government Committee voted strictly along party lines, 9-7, to endorse her original bill.
Current law allows a city council to adopt any bylaws and regulations “which may seem for the well being” for as long as they wish.
This bill would limit any health emergency ordinance to no more than 10 days and would permit only actions that respond to a “clear and present danger” to the municipality.
“If we learned from the pandemic, 10 days to flatten the curve can usually lead to something else,” said Rep. Richard Tripp, R-Derry, who backed the bill.
“Ten days for any ordinance to last on the books is long enough.”
Rep. Jim Maggiore, D-New Hampton, said the bill would render local officials powerless to respond to unexpected problems.
“I cannot see why clear and present danger provides any more clarity whatsoever,” Maggiore said.
“It is critical for city councils to respond to events that happen in their communities, and they must be able to act quickly, timely and prudently.”
Second bill checks health officials
A second bill authored by Harvey-Bolia (HB 1572) would limit any orders issued by town or city health officers to no longer than 10 days. This bill applies the same “clear and present danger” test to any new order.
This second measure won support in the committee on an identical 9-7 vote, with all GOP members in support and all Democrats opposed.
The sponsor said New Hampshire is governed under “Dillon’s Rule,” which permits cities and towns to exercise only those powers specifically granted to them.
Thirty-one states have “home rule” provisions in their constitutions that give cities and towns their own unchecked powers to regulate.
New Hampshire voters have in the past rejected attempts to insert “home rule” into the state constitution, most recently in 2000.
Harvey-Bolia said other existing laws give state public health officials sole authority over communicable diseases.
She said there’s no evidence local mask mandates were any more successful in preventing transmission in cities in towns that adopted them than in those that didn’t.
“A town-by-town approach will only lead to a patchwork of confusing bylaws,” Harvey-Bolia said.
Rep. David Meuse, D-Portsmouth, defended his home city’s decision.
“Why don’t we ever hear about the overreach of public officials fed misinformation and partisanship who have worked tirelessly to handcuff the public health response to a pandemic that has killed over 900,000 Americans — and counting?” Meuse asked after the committee vote.
Sununu backed local rule
Gov. Chris Sununu imposed a statewide mask mandate on Nov. 20, 2020, after a second spike of COVID-19 cases. He ended the mandate April 16, but has often said that city and school administrators could adopt them in their own jurisdictions.
State Epidemiologist Dr. Benjamin Chan on Thursday announced the state was dropping its indoor mask-wearing recommendation. School districts may no longer require masks, Sununu said.
The exception is places where federal laws apply, including health care centers, airports, school buses and other public transportation.
The New Hampshire Municipal Association opposed both bills, which government affairs counsel Natch Greyes said would undo decades of letting cities exercise this discretionary power in special circumstances.
“This does take away local control. Authorities are granted in a limited, yet broad area of power because we can’t determine what issues are going to come up,” Greyes said.
“The check is the Legislature in the next session can come back in and overrule what any community has done.”
Christina Dubin, secretary of the Surfrider Foundation of New Hampshire, an environmental advocacy group, also opposed the bill.
“By modifying our law in a sweeping manner just causes unnecessary and burdensome oversight,” Dubin said.
“This would bog down the state, local government and citizens in the minutiae of local regulation…it demonstrates a lack of confidence in local government.”
In 2021, the House narrowly rejected, 192-185, a similar bill that tried to check the power of city councils (HB 439).
Rep. Rosemarie Rung, D-Merrimack, said the breadth of the legislation extends beyond COVID-19 restrictions.
For example, she charged, this bill could prevent local officials in the future from imposing limits on water bodies to control blooms of toxic cyanobacteria.
“The GOP didn’t even accept amendments, which fixed some of the problems,” Rung said.