Newmarket’s Settlement Offer: A Contract the Town Had No Power to Make

Newmarket’s Settlement Offer: A Contract the Town Had No Power to Make

By Jeffrey Thomas Clay

What Newmarket officials offered me was not a lawful settlement. It was an ultra vires contract—one the Town Council had no constitutional or statutory authority to enter. That fact alone makes it void. No amount of judicial approval, procedural gloss, or political convenience can transform an illegal agreement into a legal one.

Article 8 of the New Hampshire Constitution is clear and uncompromising: all governmental power derives from the consent of the governed and must be exercised within the limits of law. Municipal officials do not possess independent sovereignty. They are agents, not rulers. Their authority comes strictly from statute and the Constitution. Anything beyond that authority is not merely defective—it is invalid.

A town council cannot contract away constitutional protections.
A town council cannot ratify conduct that violates statutory law.
A town council cannot bind a citizen to obligations the law itself forbids.

Yet that is precisely what Newmarket attempted to do.
The settlement agreement the Town proposed was not simply “unfair” or a matter of bad policy. It was structurally unlawful. It sought to create obligations and outcomes that the Town Council had no legal power to impose. That places it squarely in the category of ultra vires acts—beyond authority—and therefore void from inception. In legal terms, it is as if the contract never existed at all.

Courts have long drawn a critical distinction between two types of government contracts: those that are procedurally defective but within authority, and those that are substantively beyond authority. Only the former can ever be ratified. The latter cannot. No amount of performance, repetition, or judicial acceptance can breathe legal life into a contract that government officials were never empowered to make in the first place.This principle is not a technicality. It is the backbone of constitutional government.

The Newmarket Town Council is bound by three immutable constraints: the New Hampshire Constitution, state statutes—including the Right-to-Know Law—and the limits of delegated municipal authority. They are not free to invent power simply because litigation is inconvenient or politically uncomfortable. Settlement authority is not absolute authority. It is constrained authority.

What makes Newmarket’s settlement proposal even more troubling is how it was approved. The Town Council did not authorize the agreement in a public meeting. Instead, approval was reached through private email communications involving the Town Manager, outside public view.

That process directly conflicts with New Hampshire’s Right-to-Know Law, which requires that deliberations and decisions of a public body occur openly, not through serial communications designed to evade transparency.

A town council cannot lawfully exercise settlement authority in secret. When approval is reached outside a public meeting, no valid municipal action occurs at all. There is nothing to ratify, because no lawful vote was ever taken. Authority does not arise from private emails; it arises from public action taken in accordance with statute.

If municipalities could simply “settle” constitutional and statutory violations by contract, then constitutional rights would exist only at the discretion of local officials. Article 8 would become meaningless. Rights would become negotiable commodities instead of legal guarantees. That is not how a constitutional republic functions.

For a settlement agreement to be valid, it must be lawful in substance, authorized by statute, and consistent with constitutional protections. When any one of those conditions is missing, the contract is void.

Newmarket’s proposal failed all three.

It attempted to use a private contract to override public law—to accomplish indirectly what the Town lacked the power to do directly. That is not settlement. That is government acting outside the law.

And when government acts outside the law, it loses legitimacy. It ceases to be an exercise of authority and becomes an act of coercion.

This is why courts have always held that ultra vires contracts cannot be ratified. A government cannot ratify what it never had the power to do. Ratification may cure procedural defects, but it cannot cure the absence of authority itself.

What ultimately gives this issue broader significance is not just the Town’s conduct, but how it was treated afterward. At no point did the courts squarely address the threshold question of authority—whether the Town Council ever had lawful power to make such an agreement in the first place. Instead, the agreement was treated as presumptively valid, and downstream disputes were analyzed without resolving that foundational defect.

When courts bypass the question of authority, constitutional limits quietly erode. Government power expands not through legislation or public consent, but through assumption. Over time, what begins as an unexamined exception becomes an accepted practice. That is how structural constitutional protections are lost—not by open repeal, but by judicial silence.

What makes this episode especially troubling is that it was presented as a “settlement”—a word that carries an assumption of legality, mutual consent, and finality. But consent is meaningless when one party lacks legal authority to offer the terms in the first place.

That is not negotiation.
That is not compromise.

That is an attempt to manufacture power where none exists.

Article 8 stands as a barrier to exactly this kind of overreach. It protects citizens from being bound by unauthorized acts of government officials. It is the constitutional firewall that prevents local government from substituting its will for law.
Newmarket crossed that line.

And when a town crosses that line, the issue is no longer about contract law. It is about constitutional accountability.