Public Policy Is Not Power: How Judge Schulman Erased Legislative Limits on Municipal Authority

Public Policy Is Not Power: How Judge Schulman Erased Legislative Limits on Municipal Authority

New Hampshire municipalities are creatures of statute. They possess only the authority expressly granted by the Legislature, and nothing more. This principle is black-letter law, foundational to home rule, separation of powers, and democratic accountability. Yet in Clay v. Town of Newmarket, Judge Andrew Schulman effectively discarded that principle—substituting a vague invocation of “public policy” for the far more demanding question the law requires: Who had legal authority to bind the Town in the first place?
That question was never answered. Instead, it was avoided.

The Fatal Category Error

Judge Schulman concluded that the settlement agreement at issue did not violate public policy. From that premise, the court leapt—without legal justification—to enforcement of the agreement and punishment of the citizen who challenged it.
But this reasoning commits a fundamental legal error.
Whether an agreement violates public policy is not the same question as whether a municipal officer had legislative authority to enter it.
A contract can be:

• perfectly reasonable,
• entirely fair,
• non-offensive to public policy,

and still be ultra vires and void if no statute or charter provision authorizes the official who signed it.
Public policy does not create power. Courts do not confer authority. Only the Legislature does.

What the Record Actually Shows

The court openly acknowledged that:

• There was no Town Council vote approving the settlement;
• There was no public meeting, no minutes, no recorded authorization;
• The Town Manager acted alone;
• Neither RSA 49-D nor the Town Charter expressly authorizes a Town Manager to settle Right-to-Know litigation.

Judge Schulman even conceded—explicitly—that whether the Town Manager had actual authority was a “close call.”

In municipal law, a “close call” on authority is not good enough.If authority is not clearly granted, it does not exist.

The Court’s Escape Hatch: Ratification by Litigation

Faced with the absence of legislative authorization, the court relied on a fallback theory: ratification. According to the order, the Town cured the defect by later suing to enforce the agreement—thereby “ratifying” the Town Manager’s actions after the fact.

This reasoning is extraordinary.
If accepted, it means:

• Any municipal official may act without authority;
• Ignore statutory limits;
• Bypass public process;
• And retroactively legalize the act simply by hiring counsel and filing suit.

That is not ratification—it is judicial alchemy.
Ratification cannot substitute for legislative authorization where the Legislature has imposed structural limits on who may bind a municipality and how. Otherwise, RSA 91-A, open meeting laws, and charter restrictions become optional formalities—enforced only when convenient.

Public Policy Was Used as a Distraction

Judge Schulman devoted substantial attention to whether Mr. Clay could waive future Right-to-Know requests, analogizing the agreement to ordinary private settlements and emphasizing that Mr. Clay accepted a $1,000 payment.

But these arguments miss the point entirely.
The issue is not whether a citizen can waive rights.The issue is whether a municipality can purchase silence without legal authority.
No amount of money, consent, or “peace-buying” can validate an agreement entered by an official who lacked power to make it.
A void act does not become lawful because the other party cashed a check.

Why This Matters Beyond One Case

If Judge Schulman’s reasoning stands, then:

• Town Managers may bind municipalities without votes;
• Settlements may be executed in secret;
• Public records laws may be nullified by private agreement;
• And courts will enforce the result so long as they find it “reasonable.”

That is not the rule of law.That is governance by convenience.
The Legislature did not design New Hampshire’s municipal system to function this way. Authority was intentionally divided, constrained, and made visible—precisely to prevent unilateral action and after-the-fact justification.

The Bottom Line

Judge Schulman answered the wrong question.
The question was never whether the settlement offended public policy.
The question was—and remains—whether the Town Manager had statutory authority to bind the Town at all.
By conflating public policy with power, and ratification with legality, the court replaced legislative limits with judicial approval. That move does not merely resolve a dispute—it rewrites municipal law without legislative consent.
And that is the most troubling policy of all.