CONCORD, NH — A District SAU 8 Education Committee member who vacated his home in September is refusing to step down, using a loophole in state law to hold onto his seat, even though she no longer lives in the district for which she was elected two years ago.
Kate West, who was elected in November 2020 to represent District A, which includes Districts 1, 2, 3 and 4, left her Jackson Street home in the North End in early September. School district officials and board members could not reach her for about a week. They later found her and found out that she had moved out of the county wards but was staying elsewhere in town.
According to officials, West left her apartment after her landlord told her the building could be sold and the rent could be increased. According to city surveyor records, the building was sold to a couple from Brighton, Massachusetts, in late October. It is currently vacant.
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Jim Richards, the board chairman, said the district is associated with Patrick Taylor, a former member who is now the secretary and responsible for ensuring that the board follows the charter. After reviewing the current charter and discussions with Dean Eggert, a district attorney, as well as the Secretary of State’s office, West was described as “temporarily homeless” and was allowed to continue serving as her “intent” was to remain in District A.
“The law of residency is set out in the electoral statutes and depends heavily on the intent of the individual, as evidenced by their actions and statements,” Richards said.
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In the past, board members who left their constituency or city, even temporarily or in the future, were either asked to resign or voluntarily resigned. West believed she could stay even though she no longer lived in the county wards.
“MS. West informed the board that she intends to remain a resident in District A,” Richards said.
Kathleen Murphy, the school district superintendent, confirmed that attorneys told the board and county state law allowed West to keep the seat.
“We asked them for help,” she says. “The District Attorney believes that the RSAs provide relevant residency guidance for (a board member) that allows an individual to continue to retain that residency until they find (new) permanent residency. Basically, that’s what our lawyers are telling us.”
Murphy said West’s insistence on moving on and even hiring her own attorney, rather than simply quitting and running again at a later date when she found new housing, put everyone in a difficult position.
“Any time the board is put in that position,” she said, “it’s not good. I’ve been through this with them; I know what they want to achieve.”
Richards added that since West “did not take any other permanent residence at this time,” attorneys believed she could remain seated. The bylaws, he said, also did not contain a provision to remove a duly elected board member.
If West had moved to or established permanent residence in a different parish than 1, 2, 3 or 4, she would have to quit.
The current charter requires “district” residency
Another part of the confusion seems to be the language in the current bylaws and whether it is the district seat or the school district.
Section 5, Qualifications, of the school district bylaws, amended in 2011 and approved by voters, states: “Whenever a director ceases to be a district resident, the board shall declare his seat vacant and fill the vacancy as provided herein .”
Since “district school board seats” were created in the qualifications section of the new bylaws, it is clear to most that these are the seats, not the SAU 8 school district. But now it is interpreted differently.
A new charter will come into force at the end of December. The new charter changes the name of School Voting District A, B, and C seats to School Voting Zones A, B, and C to eliminate any confusion between “township districts” and “the school district” — something that never happened before a theme.
The new charter also changes the language of Section 5. Qualifications.
The new language requires a candidate for a zone seat to be a registered voter and a resident of the counties. And to hold office, “an individual must have a place of residence in that constituency during the tenure.” declare and appoint a qualified person’ who may be elected for the remainder of the calendar year pending a new person in office.
“The Office of the Secretary of State and our legal counsel have responded that Ms. West must establish residency in District A or leave the Board based on the revised bylaws,” Richards added. “The Board is awaiting written confirmation of this request from the Office of the Secretary of State.”
If West were elected citywide, her residency in different locations around the city would not be an issue.
Originally, the founding commission of SAU 8 of 2021 amended Section 5. Qualifications to allow for what West partially does – to continue to serve in a district office until the next election, even after moving out of the district, as long as they remain residents of Eintracht.
Both the New Hampshire Attorney General’s Office and the Office of the Secretary of State opposed the change. So the commission removed the language and replaced it with the vacancy after the member moved out of the zone seat districts.
Some school board members respond
Five school board members — Virginia Cannon, Brenda Hastings, David Parker, Pamela Walsh and Jonathan Weinberg — were emailed for comment but did not respond at the time of publication.
However, Barbara Higgins, who was both a district and general school board member, said she felt “extremely uncomfortable” with West staying on and was relieved that the issue was finally being addressed.
“As a four-year board member who came to the board after losing a job, I’ve been aware of aspects of public service that are non-negotiable,” she said. “Kate was elected by people in District A… if she doesn’t live there, she shouldn’t be serving. Circumstances don’t matter.”
Bob Cotton, another member of the school board, said it was his understanding that the matter would be resolved when the new bylaws went into effect on January 1, 2023, due to the new language regarding members no longer in a reside in zone area.
“So,” he said, “I think if Kate no longer resides in Zone A by January 1st, she will have to step down, and assuming Jim is still CEO, he will have to appoint a new Zone A resident to serve.”
West did not respond to a call, text and email asking for comment.
West defeated Roy Schweiker, who was not actively running for the seat, by a three-to-one margin as one of several young Democrats elected to municipal and legislative offices that year.
West voted from the Jackson Street address in November’s general election, according to the city’s bureau, although she no longer resides there.
Janice Bonenfant, the city clerk, said state law allows people serving in the military, expatriates who may live or work abroad, and elderly residents who may have moved into senior centers to vote from their previous addresses, though they may no longer reside on the property or it may have been occupied or owned by someone else.
West does not fall under any of these categories.
Previous legal decisions allow voters between residences to vote in the places where they were last registered via the “residence gap”.
In the recent past, most school board members have resigned when their residency was questioned or when they moved or planned to move district or city offices.
School board member Nick Metalious resigned in March 2014 after he was reported in a news story with WMUR-TV about a car accident in which he was involved and was described as a Manchester resident in the interview.
At that time he spent a lot of time with his girlfriend, but still kept an apartment in the city. Metalious had yet to decide whether to walk free again in November or move in with his girlfriend, but decided to step down after several people questioned his residency.
After his resignation, the then CEO Kass Ardinger chose a successor.
About five months after Metalious’ resignation, Melissa Donovan, who was serving in the District A position, tendered her resignation after she and her family bought a home in Pembroke. Although she had not moved out of the county or city at the time, she told Patch that she was resigning early, which was right so that other candidates could apply for the vacancy ahead of the November 2014 election.
Donovan also criticized the appointment process, saying a resident from east town should have been chosen to replace Metalious.
Six years later, Jennifer Patterson, then CEO, also resigned early, knowing she would eventually move out of state.
The “Domicile Loophole”
This appears to be the first time the “domicile gap” has been used to maintain a political position.
In court cases and other legal matters, the loophole was effectively used to allow nonresidents to vote in New Hampshire elections.
Part 1, Article 11 of the Electoral and Suffrage Clause of the State Constitution states in part: “Every person shall be deemed to be a resident for the purposes of voting in the city, county or unincorporated locality in which he resides.” The Clause was written in 1784 when the word ‘domicile’ meant a person’s permanent residence.
For many years, the loophole has been used by nonresidents, college students, and “visiting professionals” such as political activists working on campaigns to vote in state elections rather than submitting an absentee ballot from home.
New Hampshire is one of the few states in the United States to allow what is also known as “drive-by voting,” and has relaxed voting residency standards due to legal interpretations of the wording in the clause.
Because the state has same-day voter registration, dozens of incidents have been reported, witnessed even by former Secretary of State Bill Gardner himself, of people who don’t live in New Hampshire voting here.
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