AG Guide for School Districts: Who Can Take Public Positions on School Funding Tax Cap Ballot Question

Editor’s Note: Attorney General John Formella didn’t say in his press release Thursday what the ballot question includes or what those in favor and opposed have said about HB1300. See below for that information.

Attorney General Formella’s news release on Thursday:

Attorney General John M. Formella and the Attorney General’s Election Law Unit issues the following guidance regarding political advertising for or against the ballot question on a school funding tax cap, which is required by House Bill 1300.

The Attorney General’s Office has received complaints and questions about advertisements that support a position on the school funding tax cap ballot question. These complaints generally raise two questions: (1) who is permitted to take public positions, or electioneer, on the issue in the form of advertisements and (2) whether those individuals may use public resources to share their position with the public. The Office issues this guidance to educate interested parties and the public on what conduct may or may not constitute unlawful electioneering.

New Hampshire RSA 659:44-a prohibits electioneering by “public employees.” The definition of “public employee” excludes the following: (a) persons elected by popular vote and (b) persons appointed to office by the chief executive or legislative body of the public employer. This means that elected school board members, individually or collectively, may publicly support or oppose ballot questions. Likewise, a superintendent of a school district who was appointed by the elected school board may also publicly support or oppose ballot questions.

Public resources cannot be used by public officials, such as school board members or superintendents, to disseminate their position on the ballot question.

Although these elected or appointed individuals are allowed to electioneer, they cannot utilize publicly funded resources for electioneering. See RSA 652:16-h. 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 a school-to-parent email list or direct or text messaging system, including cell phone applications or portals; or using school equipment to create or distribute fliers, mailers, and posts. 

Violations of this law could constitute a misdemeanor or a $1,000 civil penalty. RSA 659:44-a, IV.

This guidance may not answer every question on issues of electioneering and the Attorney General’s Office will continue to investigate and respond to complaints made to the Election Law Unit. If any person believes that unlawful electioneering has occurred, they may file a complaint with the Attorney General’s Election Law Unit.

InDepthNH.org’s information about the school budget tax cap ballot question:

The language that would appear on the general election ballot is:

“Shall the [name of municipality] limit property tax growth for [name(s) of school district(s)] under RSA 32:5-i? If adopted for a two-year period: (1) the local property tax levy may not grow beyond the prior year’s amount, adjusted for inflation and new construction; (2) SAU central office spending may not exceed 6 percent of total school district appropriations; and (3) bonded capital costs are excluded from both limits. These caps apply only to administrative operations of the SAU central office and do not affect classroom instruction, school-based services, or other municipal expenditures. These limits may be overridden as provided in RSA 32:5-i. Adoption requires a three-fifths (3/5) majority vote.”

Two New Hampshire parents filed a lawsuit to block Secretary of State David Scanlan from putting the school budget tax cap question on the general election ballot claiming it is misleading and includes inaccurate information, confusing language and is likely unconstitutional, but lost in court, so it will be on the ballot Nov. 3.

Supporters of the bill argued that more voters need to decide if a budget cap is necessary as a smaller number and those with “special interests” determine school district warrant articles.

The question asks voters to cap school budgets to the rate of inflation plus new construction, to cap school administrative budget increases to six percent of the district’s budget, and to exclude capital costs from the calculations. A three-fifth vote is necessary to institute a cap.

The controversial House Bill 1300 passed the legislature with almost all Republican support and was signed into law by Republican Gov. Kelly Ayotte in June.

House Majority Leader Jason Osborne, R-Auburn, said after a very lopsided Kearsarge Regional School District vote against a proposed budget cap, “Perhaps, if (local voters) are unwilling to cap themselves, the state will step in and cap local taxes for them.”

During the past legislative session the Republican leadership supported HB 1300 which went through a number of changes before it was approved after a conference committee worked out differences between House and Senate versions and over the objection of educators, school officials and local budget writers.

Under HB 1300, the question will be on the general election ballot for both the 2026 and 2028 general elections.

Reporter Garry Rayno contributed to this report

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