Report No. 

E-HP-NH-02-16 

August 2017 

U.S. ELECTION ASSISTANCE
 

COMMISSION 

OFFICE OF INSPECTOR GENERAL 

FINAL REPORT: 

ADMINISTRATION OF PAYMENTS RECEIVED 

UNDER THE HELP AMERICA VOTE ACT BY 

THE NEW HAMPSHIRE SECRETARY OF 

STATE
 

MAY 1, 2003 THROUGH SEPTEMBER 30, 2015 
 

 

 

 

 

 

 

 

 

 

 

 

	 

	 

	 

	 

	 

	 

	 

	 


 

OFFICE OF THE INSPECTOR GENERAL 

MEMORANDUM 

To:	 Brian Newby 

Executive Director 

From:	 Patricia L. Layfield 

Inspector General 

Date:	 August 25, 2017 

Subject:	 Final Performance Audit Report - Administration of Payments Received 

Under the Help America Vote Act by the New Hampshire Secretary of State 

(Assignment Number E-HP-NH-02-16) 

We contracted with the independent certified public accounting firm of McBride, Lock & 

Associates, LLC to audit the administration of payments received under the Help America Vote 

Act (HAVA) by the New Hampshire Secretary of State (NHSOS). 

In its audit, McBride, Lock & Associates, LLC concluded that the Office generally accounted for 

and expended the HAVA funds in accordance with applicable requirements for the period from 

May 1, 2003, through September 30, 2015. However the following exceptions were identified: 

1.	 The Office did not have established policies and procedures addressing award 

administration, financial reporting, allowable costs and cost principles and equipment 

management. 

2.	 The Office's equipment management is inadequate in regards to the maintenance of 

property records and the performance of a physical observation of inventory. 

3.	 The Office did not receive approval in advance by the awarding agency for capital 

expenditures for improvements to a building. 

4.	 The Office did not adequately support all salaries and wages charged to the grant 

award. 

In the report, McBride, Lock & Associates, LLC summarized the NHSOS response to the reported 

recommendations, as well as their comments on the responses after the recommendations. 

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The NHSOS office generally disagreed with the findings and recommendations. From the 

beginning of its receipt of payments of HAVA funds, the NHSOS has contended that the funds 

paid first by the General Services Administration (GSA) and then by EAC were not grants and 

were not subject to requirements applicable to grants set forth in Circulars issued by the Office 

of Management and Budget (OMB). The NHSOS response (Appendix A-1) explains the State’s 

position and the basis for that position in detail. 

The OIG disagrees with the NHSOS position and stands by its application of OMB guidance in 

determining requirements applicable to the HAVA funds during the audit. 

The Government Accountability Office (GAO) opined in Comptroller’s Decision B-328615 that 

“Payments made to states under the Help America Vote Act of 2002 (HAVA) are grants.” GAO is 

the authoritative source for federal agencies on matters of Federal appropriations law and their 

conclusion is unequivocal. The OMB Circulars and the GSA Common Rule define their own 

applicability: 

OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments, 

Section A.3 states: 

a. These principles will be applied by all Federal agencies in determining costs incurred by governmental 

units under Federal awards (including subawards) except those with (1) publicly-financed educational 

institutions subject to OMB Circular A-21, “Cost Principles for Educational Institutions,” and (2) programs 

administered by publicly-owned hospitals and other providers of medical care that are subject to 

requirements promulgated by the sponsoring Federal agencies... 

OMB Circular A-102, Grants and Cooperative Agreements with State and Local 

Governments, states: 

4. Required Action. Consistent with their legal obligations, all Federal agencies administering programs 

that involve grants and cooperative agreements with State, local and Indian tribal governments (grantees) 

shall follow the policies in this Circular. If the enabling legislation for a specific grant program prescribes 

policies or requirements that differ from those in this Circular, the provisions of the enabling legislation 

shall govern. 

GSA Common Rule, 41 CFR Part 105–71—Uniform Administrative Requirements for 

Grants and Cooperative Agreements with State and Local Governments, 105–71.103, 

Applicability, states: 

(a) General. Sections 105–71.100 through 105–71.152 of this subpart apply to all grants and subgrants to 

governments, except where inconsistent with Federal statutes or with regulations authorized in 

accordance with the exception provision of §105–71.105.... [the guidance then lists numerous block grant 

and entitlement programs that are not subject to the Common Rule] 

GSA applied the OMB Circulars and the Common Rule from the beginning. In a letter dated July 

28, 2003, addressed to the Governor of New Hampshire, GSA’s Director of Budget instructed 

the State that it would be required to conform to OMB Circulars A-87; Circular A-102; the 

Uniform Administrative Requirements for Grants and Cooperative Agreements to State and 

Local Governments (the “Common Rule”); OMB Circular A-133, Audits of States, Local 

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Governments, and Non-Profit Organizations; and, for Title I funds, the Cash Management 

Improvement Act. In managing the HAVA grant payments, EAC has applied OMB guidance and 

GSA’s Common Rule to the HAVA payments made to all of the states. The EAC OIG has done the 

same in all of the audits it has conducted of HAVA funds. 

In its response, the EAC indicated that it would work with the NHSOS to resolve the issues in 

the report. The NHSOS complete response is included as Appendix A-1 and the EAC’s complete 

response is included as Appendix A-2. 

We would appreciate being kept informed of the actions taken on our recommendations as we 

will track the status of their implementation. Please respond in writing to the findings and 

recommendations included in this report by October 20, 2017. Your response should include 

information on actions taken or planned, targeted completion dates, and titles of officials 

responsible for implementation. 

To fulfill our responsibilities under Government Auditing Standards, the Office of Inspector 

General: 

•	 Reviewed McBride, Lock & Associates, LLC's approach and planning of the audit; 

•	 Evaluated the qualifications and independence of the auditors; 

•	 Monitored the progress of the audit at key points; 

•	 Reviewed the audit report, prepared by McBride, Lock & Associates, LLC to ensure 

compliance with Government Auditing Standards; and 

•	 Coordinated issuance of the audit report. 

McBride, Lock & Associates, LLC is responsible for the attached auditor’s report and the 

conclusions expressed in the report. We do not express any opinion on the conclusions 

presented in McBride, Lock & Associates, LLC's audit report. 

The legislation creating the Office of Inspector General requires that we report to Congress 

semiannually on all audit reports issued, actions taken to implement our recommendations, 

and recommendations that have not been implemented. 

If you have any questions regarding this report, please call me at (301) 734-3104. 

Attachment 

cc: Director of Grants and Payments 

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Performance Audit Report 

Administration of Payments Received Under the Help America Vote Act by 

the New Hampshire Secretary of State 

Prepared for 

The United States Election Assistance Commission (EAC)
 

Office of Inspector General
 

By 

McBride, Lock & Associates, LLC 

July 2017 

McBRIDE, LOCK & ASSOCIATES, LLC 

CERTIFIED PUBLIC ACCOUNTANTS 

KANSAS CITY 
 

 

Performance Audit Report
 
 

Administration of Payments Received Under the Help America Vote Act by 

the New Hampshire Secretary of State 

TABLE OF CONTENTS 

Page 

EXECUTIVE SUMMARY 1 

BACKGROUND 2 

AUDIT OBJECTIVES 4 

SCOPE AND METHODOLOGY 5 

AUDIT RESULTS 5 

APPENDICES: 

Appendix A-1: Response of the New Hampshire Secretary of State to the Draft Report 

Appendix A-2: Response of the U.S. Election Assistance Commission 

to the Draft Report 

Appendix B: Audit Methodology 

Appendix C: Monetary Impact as of September 30, 2015 
 

 

 

 

 

 

 


 


 


 

	 

	 

	 

	 

	 


 

U.S. Election Assistance Commission
 

Performance Audit Report
 

Administration of Payments Received Under the Help America Vote Act by 

the New Hampshrie Secretary of State
 

EXECUTIVE SUMMARY 

McBride, Lock & Associates, LLC was engaged by the United States Election Assistance 

Commission (EAC) Office of the Inspector General to conduct a performance audit of the New 

Hampshire Secretary of State’s Office (Office) from inception on May 1, 2003 through September 

30, 2015 to determine whether the Office used payments authorized by Sections 101, 102, and 251 

of the Help America Vote Act of 2002 (the HAVA) in accordance with HAVA and applicable 

requirements; accurately and properly accounted for property purchased with HAVA payments 

and for program income; maintained state expenditures at a level not less than the level maintained 

in the fiscal year ending prior to November 2000; and met HAVA requirements for Section 251 

funds for an election fund and for a matching contribution. 

In addition, the Commission requires states to comply with certain financial management 

requirements, specifically: 

•	 Comply with the Uniform Administrative Requirements for Grants and Cooperative 

Agreements with State and Local Government, 41 CFR 105-71, (originally Office of 

Management and Budget Circular A-102, also known as the “Common Rule”). 

•	 Expend payments in accordance with cost principles set forth in Cost Principles for State 

and Local Governments, Office of Management and Budget Circular A-87, (now codified 

as 2 CFR 225) for establishing the allowability or unallowability of certain items of cost 

for federal participation. 

•	 Follow the requirements of the Federal Cash Management and Improvement Act. 

•	 Submit detailed annual financial reports on the use of Title I and Title II payments. 

•	 Comply with the provisions of Audits of States, Local Governments and Non-Profit 

Organizations (Office of Management and Budget Circular A-133). 

We conducted this performance audit in accordance with Generally Accepted Government 

Auditing Standards. Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions 

based on our audit objectives. We believe that the evidence obtained provides a reasonable basis 

for our findings and conclusions based on the audit objectives. 

Based on the audit procedures performed, except for the matters discussed below, we concluded 

that the Office generally accounted for and expended the Grant funds in accordance with the 

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requirements mentioned above for the period from May 1, 2003 through September 30, 2015. The 

exceptions are as follows: 

1.	 The Office did not have established policies and procedures addressing award 

administration, financial reporting, allowable costs and cost principles and equipment 

management. 

2.	 The Office's equipment management is inadequate in regards to the maintenance of 

property records and the performance of a physical observation of inventory. 

3.	 The Office did not receive approval in advance by the awarding agency for capital 

expenditures for improvements to a building. 

4.	 The Office did not adequately support all salaries and wages charged to the grant award. 

We have included in this report as Appendix A, the Secretary of State’s written response to the 

draft report. Such response has not been subjected to the audit procedures and, accordingly, we do 

not provide any form of assurance on the appropriateness of the response or the effectiveness of 

the corrective actions described therein. 

BACKGROUND 

The Help America Vote Act of 2002 (HAVA) created the U.S. Election Assistance Commission 

(Commission) to assist States and insular areas (hereinafter referred to as States) with improving 

the administration of federal elections and to provide funds to States to help implement these 

improvements. The Commission administers payments to States authorized by HAVA under Titles 

I and II, as follows: 

•	 Title I, Section 101 payments are for activities such as complying with HAVA 

requirements for uniform and nondiscriminatory election technology and administration 

requirements (Title III), improving the administration of elections for federal office, 

educating voters, training election officials and pool workers, and developing a State plan 

for requirements payments. 

•	 Title I, Section 102 payments are available only for the replacement of punchcard and lever 

action voting systems. 

•	 Title II, Section 251 requirements payments are for complying with Title III requirements 

for voting system equipment; and addressing provisional voting, voting information, 

Statewide voter registration lists, and voters who register by mail. 

Title II also requires that states must: 

•	 Have appropriated funds equal to five percent of the total amount to be spent for activities 

for which requirements payments are made. 

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• Maintain the expenditures of the State for activities funded by the requirements payment 

at a level that is not less than the expenditures maintained by the State for the fiscal year 

ending prior to November 2000. 

•	 Establish an election fund for amounts appropriated by the State for carrying out activities 

for which requirements payments are made, for the Federal requirements payments 

received, for other amounts as may be appropriated under law and for interest earned on 

deposits of the fund. 

The Awardee – The New Hampshire Secretary of State 

The HAVA funds were awarded to the New Hampshire Secretary of State. The New Hampshire 

Secretary of State is designated as the chief election officer for the State. The Secretary of State 

publishes an election procedures manual which provides guidance to local election officials 

regarding: voter qualification; voting system certification; what constitutes a vote; procedures for 

military or absentee ballots; tabulating and reporting election results. 

Help America Vote Act State of New Hampshire State Plan 

The State of New Hampshire’s HAVA State Plan committee consisted of 17 individuals representing 

a cross-section of election stakeholders. The committee was appointed by the chief State Election 

Official for New Hampshire, the Secretary of State. 

The main objectives of the project funded by HAVA, as set forth in the state plan, were to establish a 

computerized statewide voter registration list, ensure accessibility of voter registration, voting systems, 

voting information and voting locations, prepare and distribute training resources to voters and election 

officials, enforce election law. 

The New Hampshire Secretary of State’s Office established and is maintaining an election fund for the 

exclusive purpose of carrying out activities of HAVA. The fund is non-lapsing and accrues interest 

earned. Additionally, the Office has managed all expenditures funded by HAVA and has not distributed 

any of the requirements payments to the local units of government. 

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AUDIT OBJECTIVES 

The objectives of our audit were to determine whether the Office: 

1.	 Used payments authorized by Sections 101, 102, and 251 of the Grant in accordance with 

Grant and applicable requirements; 

2.	 Accurately and properly accounted for property purchased with Grant payments and for 

program income; 

3.	 Met HAVA requirements for Section 251 funds for creation of an election fund, providing 

required matching contributions, and meeting the requirements for maintenance of a base 

level of state outlays, commonly referred to as Maintenance of Expenditures (MOE). 

In addition to accounting for Grant payments, the Grant requires states to maintain records that are 

consistent with sound accounting principles that fully disclose the amount and disposition of the 

payments, that identify the project costs financed with the payments and other sources, and that 

will facilitate an effective audit. The Commission requires states receiving Grant funds to comply 

with certain financial management requirements, specifically: 

•	 Comply with the Uniform Administrative Requirements for Grants and Cooperative 

Agreements with State and Local Government, 41 CFR 105-71, (originally Office of 

Management and Budget Circular A-102, also known as the “Common Rule”). 

•	 Expend payments in accordance with cost principles set forth in Cost Principles for State 

and Local Governments, Office of Management and Budget Circular A-87, (now codified 

as 2 CFR 225) for establishing the allowability or unallowability of certain items of cost 

for federal participation. 

•	 Follow the requirements of the Federal Cash Management and Improvement Act. 

•	 Submit detailed annual financial reports on the use of Title I and Title II payments. 

•	 Comply with the provisions of Audits of States, Local Governments and Non-Profit 

Organizations (Office of Management and Budget Circular A-133). 

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SCOPE AND METHODOLOGY 

We audited the Grant funds received and disbursed by the Office from May 1, 2003 through 

September 30, 2015 as shown in the following table: 

HAVA HAVA HAVA 

Description Section 101 Section 102 Section 251 Total 

Funds Received from EAC 

State Matching Funds 

Program Income 

$ 5,000,000 

-

1,067,513 

-$ $ 13,021,803 $ 18,021,803

- 820,945 820,945 

- 2,105,717 3,173,230 

Total Funds 

Less Disbursements 

Fund Balance 

$ 

$ 

6,067,513 

(2,291,435) 

3,776,078 

-$ $ 15,948,465 $ 22,015,978

- (9,104,836) (11,396,271) 

-$ $ 6,843,629 $ 10,619,707

AUDIT RESULTS 

We conducted this performance audit in accordance with Generally Accepted Government 

Auditing Standards. Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions 

based on our audit objectives. We believe that the evidence obtained provides a reasonable basis 

for our findings and conclusions based on the audit objectives. 

Based on the audit procedures performed, except for the matters discussed below, we concluded 

that the Office accounted for and expended the HAVA funds in accordance with the requirements 

mentioned above for the period from April 10, 2003 through September 30, 2015. The exceptions 

to applicable compliance requirements are described below. 

Finding No. 1 – Documentation of Policies and Procedures 

The Office lacks complete, documented policies with respect to internal controls. 

Federal regulations, specifically 41 CFR 105-71.120(b)(3) - Post-Award Requirements/Financial 

Administration, Standards for Financial Management Systems, Internal Control, require that: 

a)	 A State must expend and account for grant funds in accordance with State laws and 

procedures for expending and accounting for its own funds, and 

b)	 Effective control and accountability must be maintained for all grant and subgrant cash, 

real and personal property, and other assets. 

A key aspect of maintaining an effective system of internal controls is the documentation of related 

policies and procedures to ensure these criteria are current, approved, communicated, incorporated 

into training materials, and updated when appropriate. 

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Key policies and procedures affecting award administration, financial reporting, allowable costs 

and cost principles, and equipment management have not been addressed in policy and procedure 

documentation. The Office relies heavily on electronic controls implemented in the accounting 

system and Administrative Rules established by the State. Due to the few personnel involved in 

award administration, accounting and financial reporting, policies and procedures have developed 

informally over the years. 

Inadequate documented policies and procedures may result in a lack of awareness and compliance 

with management's directives, and could allow noncompliance with grant terms and conditions to 

occur and not be detected. 

The Office has had minimal experience with federal awards including the processes associated 

with federal reporting and administration of significant contracts. Accordingly, the Office has 

relied on Administrative Rules established by the State. Further, as a small office, much of the 

training has occurred informally rather than the use of written documentation of policies and 

procedures. 

Recommendation 

We recommend that the EAC require the Office to implement procedures to ensure that all 

significant accounting, financial management and grant administration policies and procedures are 

documented. Additionally, these procedures should be reviewed and updated on a regular basis. 

Secretary of State Response: 

Both the finding and recommendation rely on the premise that the EAC has regulatory authority 

over states in implementing HAVA. On the contrary, 42 USC 15329 prohibits the EAC from 

issuing any rules, promulgating any regulations, or taking any other action which imposes any 

requirements on any State. 

Further, PL 107-252 Section 253 Condition for Receipt of Funds [42 USC 15403] (c) Methods of 

compliance Left to Discretion of State.- provides that “The specific choices on the methods of 

complying with the elements of a State plan shall be left to the discretion of the State.” 

To further buttress this position, PL 107-252 Section 305 Methods of Implementation Left to 

Discretion of State [42 USC 15485] provides that “The specific choices on the methods of 

complying with the requirements of this title shall be left to the discretion of the State.” 

This finding lacks any actual findings but has rather stipulated that something “may” happen or 

something “could” happen simply because processes and procedures chosen to be used by the SOS 

are not documented. Having documentation will not necessarily improve how the SOS operates 

as evidenced by the lack of any substantive findings within this entire audit report. 

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Auditor’s Response: 

The response does not provide any additional information to refute the conditions that are cited in 

the finding. No modification is made to the finding as initially stated. 

Finding No. 2 – Inadequate Equipment Management 

The Office’s equipment management is inadequate in regards to the maintenance of property 

records and the performance of a physical observation of inventory. 

The Uniform Administrative Requirements for Grants and Cooperative Agreements with State and 

Local Governments 41 CFR § 105-71.132 (d) (The “Common Rule”) section states that, (1) 

“Property records must be maintained that include a description of the property, a serial number 

or other identification number, the source of property, who holds the title, the acquisition date, and 

cost of the property, percentage of Federal participation in the cost of the property, the location, 

use and condition of the property, and any ultimate disposition data including the date of disposal 

and sale price of the property and (2) A physical inventory of the property must be taken and the 

results reconciled with the property records at least once every two years.” 

The inventory listing as provided did not include the acquisition date, cost of property, location of 

equipment, percentage of federal participation or ultimate disposition data. The conduct of a 

physical inventory performed within the past two years was not documented. 

The Office was not compliant with federal regulations regarding the maintenance of an inventory 

listing identifying all required data, and the conduct of a bi-annual physical inventory. 

The Office does not have documented policies and procedures regarding the maintenance of 

inventory. 

Recommendation 

We recommend that the EAC require the Office to create a documented set of policies and 

procedures which comply with federal regulations, the inventory listing be expanded to include all 

federally required fields, and a physical inventory be conducted and documented on at least a 

biannual basis. 

Secretary of State Response: 

Refer to paragraphs 1 through 3 in our response to Finding No 1. 

SOS completes an annual physical inventory with forms and fields prescribed by DAS. Although 

those fields do not include the specified source and amount of funding used to acquire the asset, 

the information is readily available in the database that SOS has created to track all costs expended 

from the Election Fund and was provided to the auditors prior to the start of the audit. SOS 

provided a subset of the complete inventory to the auditors as a majority of the assets on the 

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complete list provided to DAS were unassociated with HAVA. The list of HAVA inventory items 

that were provided to the auditors were also physically on-site, in one room, and readily available 

to be inspected. Those assets were inspected by the auditor and were all accounted for. 

Auditor’s Response: 

The response does not provide any additional information to refute the conditions that are cited in 

the finding. No modification is made to the finding as initially stated. 

Finding No. 3 – Preapproval of Capital Expenditure 

The Office did not receive approval in advance by the awarding agency for capital expenditures 

for improvements to a building. 

Office of Management and Budget Circular No. A-87, Cost Principles for State, Local, and Indian 

Tribal Governments, Attachment B.15.a.(1) defines capital expenditures as “the acquisition cost 

of capital assets (equipment, buildings, land), or expenditures to make improvements to capital 

assets that materially increase their value or useful life.” 

Further, OMB A-87 Attachment B.15.b.(3) states, “Capital expenditures for improvements to land, 

buildings or equipment which materially increase their value or useful life are unallowable as a 

direct cost except with the prior approval of the awarding agency.” 

Chapter 240:1, X, Laws of 2003 included $1 million in HAVA funds for a 4,145 square-foot 

HAVA facility on the second floor of the building. The Office, did not request federal pre-approval 

to use HAVA funds for the Capital Expenditure. 

Without prior approval of the awarding agency, the $1 million in HAVA funds for the HAVA 

facility is considered to be unallowable as a direct cost. 

The Office contends that in its reading of the federal HAVA law, the Office is not required to 

comply with OMB A-87 Attachment B.15.b.(3). 

Recommendation 

We recommend that the EAC address and resolve the following recommendations that the Office: 

(a) Transfer into the election fund $1 million in HAVA funds for the unallowable Capital 

Expenditure as cited above. 

(b) Seek approval for the $1 million in HAVA funds spent on the HAVA facility. 

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Secretary of State Response: 

Refer to paragraphs 1 through 3 in our response to Finding No 1. 

The SOS is unaware of any lawfully adopted regulation that required pre-approval of HAVA funds 

for a capital expense. Even assuming there was, and without waiving the right to challenge the 

lawfulness of any such requirement, the SOS has taken steps to obtain retroactive approval from 

the EAC. That request has been pending before the EAC since 2011. Thus, it has satisfied 

recommendation (b). 

The auditor cites OMB A-87 for the proposition that the State was required to obtain pre-approval 

for the use of HAVA funds to construct a HAVA Facility. As discussed in detail in the 

accompanying letter and Attachments, the EAC is statutorily prohibited from adopting regulations 

or rules which impose any requirements on the states. OMB A-87 clearly falls within that category. 

OMB A-87 regulation requires the federal agency to explicitly adopt and issue regulations quickly. 

It has been over 13 years since the EAC held its first meeting. (See Attachment A - Timeline #3 

& #9) On August 1, 2017, EAC staff made it clear in Funding Advisory Opinion FAO-08-07 that 

the EAC “had not yet published the Common Rule in the Code of Federal Regulations (CFR).” 

While EAC staff generated FAQs in 2006 suggesting that pre-approval was required for 

expenditure of HAVA funds on capital expenses, there is no evidence that that requirement was 

lawfully adopted by the EAC. As a federal agency, the EAC is subject to the federal “The 

Government in the Sunshine Act”, the “Administrative Procedure Act”, and the “Freedom of 

Information Act”. The FAQs were (a) not adopted by the EAC Commissioners in a “Public” vote 

in FY 2004, (b) cannot be found in the Federal Register in association with the EAC, and (c) was 

not subject to public comment. 

On June 11, 2004, the EAC voted in favor of “Application of OMB Circular Financial 

Management Controls to Title II Requirements.” Even if that vote was lawful, it only applied to 

Title II disbursements. The HAVA facility that is the subject of this audit finding was funded 

exclusively with Title I funds and thus would not be governed by that vote. 

In a March 18, 2009 letter, the EAC Executive Director told the SOS that the GSA, the EAC 

predecessor funding agency, in a letter dated July 28, 2004, informed the Governor of New 

Hampshire that the Common Rule and the OMB circular A-87 applied to HAVA funds. The SOS 

has been unable to confirm this. However, the GSA’s Catalogue of Federal Domestic Assistance 

(CFDA) site mentions no such requirement and the SOS has found no such reference to a HAVA 

rulemaking process by GSA in the Federal Register. (See Attachment B - OMB Circulars). 

Well before the EAC discussed the applications of the OMB Circulars, the SOS was immersed in 

planning for the implementation of HAVA. (See Attachment A – Timeline #11). A significant 

piece of that planning was how to train all of the election officials in the State: 300 town and ward 

moderators, 236 town and city clerks, 77 ward clerks, about 900 selectmen, approximately 900 

supervisors of the checklist and registrars, and about 1,600 inspectors of elections fell on the SOS. 

(Among the 50 states, New Hampshire has by far the largest number of elected election officials, 

at about 2,400.) Without training facilities, achieving HAVA compliance would have been 

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extremely difficult, thus, the SOS included plans for such a facility in its initial plans. By using the 

HAVA Facility, the State has been able to provide hands-on election official computer training to 

2,246 trainees in 141 days of training, as well as many other HAVA training and HAVA 

coordination events. The State expects to train another 350 election officials at the HAVA Facility 

before the end of 2017. 

Spending funds to build the HAVA Facility was reasonable, practical, and justifiable. If there is 

any burden on the state to establish that the $1 million capital expenditure for a HAVA training 

facility was allocable, allowable, and reasonable under PL 107-252, the SOS has supplied 

extensive justification that is more than adequate to explain its decisions. New Hampshire adopted 

a method of complying with HAVA statutes that, assuming a minimum of 40 years of useful life 

of the HAVA Facility, would cost 20% of what would have been spent if a rental option had been 

chosen. Adopting the rental option would have cost the Election Fund about $5 million whereas 

the capital expenditure approach cost only $1 million. This $4 million savings is material when 

considering that Congress is unlikely to appropriate more than $18 million in federal funds to New 

Hampshire for HAVA; and HAVA obligations are expensive and are expected to last indefinitely. 

Among the options available, the state has clearly selected the mechanism to provide meeting, 

office, storage, staging, and training facilities in the most prudent and cost effective manner 

available. (See Attachment C - Justification & Attachment D - Letter to EAC) 

After it became clear that the EAC would assert that the OMB Circular A-87 applied, the SOS 

attempted to gain retroactive approval for the capital expenditure for the HAVA Facility in a 

cooperative manner. The following timeline demonstrates New Hampshire’s good faith effort to 

address and resolve the matter. 

•	 On February 17, 2009, the EAC sent a letter stating, “Concerning the failure to obtain 

preapproval for the building alternations, the EAC will consider retroactive approval if the 

Department submits the following information: (total costs, HAVA costs, HAVA funds 

source, justification, basis for allocation, etc.)” (See Attachment A - Timeline #31) 

•	 On May 1, 2009, the Secretary of State’s office sent a letter to the EAC initiating the 

approval process for the $1 million capital expenditure and supplying justification. (See 

Attachment A - Timeline #35 & Attachment D - Letter to EAC) 

•	 On August 10, 2010, the EAC Director of Grants (sic) asked about conducting a site visit 

prior to a potential “ratification.” He mentioned his hope to “get the ratification in front of 

the Commissioners by early September.” (See Attachment A - Timeline #39) 

•	 On September 9, 2010, two EAC staffs conducted a site visit at the HAVA facility, 

interviewing 7 individuals familiar with the construction and use of the HAVA facility to 

address HAVA requirements. (See Attachment A - Timeline #40) 

•	 On September 13, 2010, the State sent supporting information about the use of the HAVA 

Facility, as well as the uncharged use of the rest of the Archives Building for improving 

elections. The State included sample announcements of training conducted at the HAVA 

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facility since 2007. (See Attachment A - Timeline #41 & Attachment E - Unreimbursed 

Assistance) 

•	 On January 4, 2011, the EAC Director of Grants (sic) replied, “EAC has not made a 

decision. I submitted my recommendation to allow the expense, but we lost our quorum 

before it went to a Commissioner vote... We’ll be in touch.” (See Attachment A – Timeline 

#43) 

•	 On December 14, 2014, a quorum of EAC Commissioners was restored. No action was 

taken on ratifying New Hampshire’s HAVA Facility. (See Attachment A - Timeline #42) 

•	 On July 21, 2017, the EAC Director of Grants (sic) advised the SOS that such EAC 

ratification process must wait until after the EAC IG audit is completed. (See Attachment 

A - Timeline #51) 

A summary of the justification for HAVA Facility appears in Attachment C - Justification that 

allowability, reasonableness, and allocability - concepts appearing in Federal “guidance.” 

The SOS has supported the $1 million capital expenditures for the HAVA Facility in a May 1, 

2009 letter to the EAC. (Attachment D - Letter to EAC & Attachment E - Unreimbursed 

Assistance) 

With a great deal of information, a site visit, and a number of interviews already conducted, the 

next action, a ratification (retroactive approval) of the $1 million capital expenditure, would appear 

to be in the EAC Commissioner’s hands. The SOS, under no obligation, is happy to answer any 

remaining questions that the EAC may have in order to obtain EAC ratification. 

Auditor’s Response: 

The Office’s response indicates that a request for an approval of the capital expenditure has been 

in place since 2011. Additional information has been provided relevant to the conditions cited in 

the finding. The EAC should consider the request made in 2011 as part of the corrective action 

needed to resolve the finding. 

Finding No. 4 – Inadequate Payroll Documentation 

The Office had four instances of not having adequate support of salaries and wages. 

Office of Management and Budget Circulars and Guidance, Cost Principles for State, Local, and 

Indian Tribal Governments 2 CFR § 225, Appendix B.8.h.(3) states that “Where employees are 

expected to work solely on a single Federal award or cost objective, charges for their salaries and 

wages will be supported by periodic certifications that the employees worked solely on that 

program for the period covered by the certification. These certifications will be prepared at least 

semi-annually and will be signed by the employee or supervisory official having first-hand 

knowledge of the work performed by the employee.” 

11
 
 

 

 

 

 

	 

	 


 

Appendix B.8.h.(4), states that “Where employees work on multiple activities or cost objectives, 

a distribution of their salaries or wages will be supported by personnel activity reports or equivalent 

documentation which meets the standards in subsection (5)... Such documentary support will be 

required where employees work on... (b) A Federal award and a non Federal award” 

Appendix B.8.h.(5), states that “Personnel activity reports or equivalent documentation must meet 

the following standards: (a) They must reflect an after the fact distribution of the actual activity of 

each employee, (b) They must account for the total activity for which each employee is 

compensated, (c) They must be prepared at least monthly and must coincide with one or more pay 

periods, (d) They must be signed by the employee, and (e) Budget estimates or other distribution 

percentages determined before the services are performed do not qualify as support for charges to 

Federal awards but maybe used for interim accounting purposes.” 

14 employees were selected from 12 different payroll periods from award inception through 

September 30, 2015. There were two instances of the Office not maintaining a timesheet for an 

employee. There were two instances of the Office not maintaining an OMB Circular A-87 work 

effort certification. There was one instance of the timesheet not having a supervisor signature. 

It was determined that payroll costs totaling $2,446 were unsupported. 

Semi-annual certifications are maintained for most employees. However, the timesheets did not 

provide an after-the-fact distribution for part-time employees. In some instances, approved 

timesheets were not maintained for some of the part-time employees. 

Recommendation 

We recommend that EAC address and resolve the following recommendations that the New 

Hampshire Secretary of State’s Office: 

1)	 Transfer into the election fund $2,446 for the questioned payroll charges as cited above. 

2)	 Implement written policies to ensure that all employees who expend efforts on Federal 

activities record their time in a manner consistent with federal regulations and that these 

records are maintained. 

Secretary of State Response: 

It is important to put this finding in context. This audit covers a period of 13 years, which equates 

to approximately 8,788 pay periods (13 years x 26 pay periods per year). In that context, this 

finding is de minimis. Moreover, the deficiencies all stem from the mid-to-late 2000’s—more than 

10 years ago. The lack of any more recent deficiencies strongly suggests that the problems have 

been resolved. 

Two of the records cited in this finding are related to missing a time sheet; one from 2005 and one 

from 2006. Since the payroll officer and supervisors of those employees are still employed by 

12
 
 

 

 

 


 

SOS, both the payroll officer and supervisors are prepared to execute witnessed affidavits 

testifying to the valid nature of the payments. 

One item is solely based on the name missing from the six-month affirmations for the second half 

of 2007. These affirmations are based on the unrecognized authority of the OMBs, but were 

created voluntarily to assist in an eventual audit. These documents can easily be amended to 

include the missing information. 

One employee’s timecard did not have a supervisor’s signature for a pay period. Since the payroll 

officer and supervisors of that employee are still employed by SOS, the payroll officer and 

supervisors are prepared to execute witnessed affidavits testifying to the valid nature of the 

payments. 

Auditor’s Response: 

The proposed corrective actions are relevant regarding the missing time sheets, affirmations and 

timecard signature and should be considered by the Commission in the resolution process. 

We provided a draft of our report to the appropriate individuals of the Office of the New Hampshire 

Secretary of State. We considered any comments received prior to finalizing this report. 

The Office responded to the report’s findings and recommendations on August 18, 2017. The EAC 

responded on July 20, 2017 and stated they will work with the Secretary’s Office to ensure 

appropriate corrective actions are taken. The Office’s complete response is included as Appendix 

A-1 and the EAC’s complete response as Appendix A-2. 

McBride, Lock & Associates, LLC performed the related audit procedures between May 3, 2016 

and July 17, 2017. 

(Original Signed by McBride, Lock & Associates, LLC) 

McBride, Lock & Associates, LLC 

July 17, 2017 

13
 

 


 


 

APPENDIX A-1

Response of the New Hampshire
 

Secretary of State to the Draft Report
 
 

 

 

 

 

 

 

 


 


 


 


 

William M. Gardner NEW HAMPSHIRE Robert P. Ambrose 

Secretary of State DEPARTMENT OF STATE Senior Deputy Secretary of 

State 

David M. Scanlan 

Deputy Secretary of State 

August 18, 2017 

Patricia L. Layfield, Inspector General 

U.S. Election Assistance Commission 

Office of the Inspector General 

1335 East-West Highway, Suite 4300 

Silver Springs, MD 20910 

Dear Ms. Layfield, 

The Office of the New Hampshire Secretary of State is pleased to have reviewed and provide the 

following comments on the draft report entitled Performance Audit Report - Administration of 

Payments Received Under the Help America Vote Act by the New Hampshire Secretary of State, 

dated July, 2017. 

This Office is proud of its accomplishments in the implementation of the Help America Vote Act 

(ACT), and its furtherance of the goals underlying that ACT within the State of New Hampshire. In 

keeping with New Hampshire tradition, the Office has expended the federal funds frugally, in a 

fiscally sound manner, to ensure their most efficient use. While we disagree with the findings in the 

audit, we believe that the report, as a whole, reflects sound management of the funds. 

The four findings and associated recommendations in the audit are all premised on the assumption 

that the US Election Assistance Commission (EAC) has the authority to obligate the states to the 

regulations beyond those set forth in the ACT itself; specifically regulations set forth in 41 CR 105-

71, Office of Management and Budget (OMB) Circulars A-87, A-133, and A-102. The New 

Hampshire Department of State (SOS) has long objected to that premise, as outlined below and 

explained in detail in the attachments. Section 209 of HAVA states that the EAC “shall not have 

any authority to issue any rule, promulgate any regulation, or take any other action which imposes 

any requirement on any State or unit of local government, except to the extent permitted under 

section 9(a) of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg-7(a)).” 

In response to that objection, the EAC has asserted that since it was yet to be formed when the first 

HAVA payment was released to the states by the General Services Administration (GSA), the 

promulgated rules of the GSA allow the OMB circulars to be used for at least Title I funds. (See 

Attachment B - OMB Circulars #6). However, while the GSA was statutorily obligated to issue the 

first payment, HAVA, section 902 states that that those first disbursements are to be considered 

State House Room 204, 107 N. Main St., Concord, N.H. 03301
 

Phone: 603-271-3242 Fax: 603-271-6316
 

TDD Access: Relay NH 1-800-735-2964
 

www.nh.gov/sos email: NHVotes@sos.nh.gov
 
 

 

 

 

 

 

 

 

 

August 18, 2017 Response to EAC IG Audit 

payments made by the EAC – which is statutorily prohibited from issuing any rule or promulgating 

any regulation. 

OMB Circulars are not binding on the recipient of HAVA funds unless and until the EAC 

implements regulations incorporating those Circulars. Even then, if a statute passed by Congress 

prescribes policies or procedures that differ from those in the Circular, the provisions of the statute 

govern. (OMB Circular A-87 Section 1.4 - Relationship of Circular A-87 to Agency Regulations 

and Federal Statutes) (https://www.dol.gov/oasam/boc/ASMB_C-10.pdf) 

Despite that statutory prohibition, in 2004, the EAC purportedly voted to adopt the OMB Circulars 

as applicable to Title II funds. However, that vote was conducted in a “Tally” forum, rather than a 

“Public” form, in violation of the Freedom of Information Act, The Government in the Sunshine 

Act and the Administrative Procedure Act. It is unknown whether the EAC voted to adopt OMB 

Circulars as applicable to Title I funds. New Hampshire does not recognize such extra-legal action 

in opposition to 42 USC 15329. (See Attachment A - Timeline #11) 

Two of the audit findings characterize the HAVA disbursements to New Hampshire as “grants” and 

refer to federal regulations governing the use and accounting for grant funds. The SOS disputes 

both that characterization and the application of those regulations. While HAVA contains 

provisions for both payments and grants, the disbursements made under Title I and Title II are 

consistently referred to as payments or requirements payments. 

Indeed, on September 25, 2008, the GAO released Decision B-316915 which referred to 

Requirements Payments as “statutory formula payments.” The decision stated that if a state were to 

file a statement certifying it had met certain preconditions, the funds were required to be paid. 

Nowhere in the opinion was the word “grant” used in the discussion of funds that were to be paid or 

considered to be paid by the EAC. 

In July, 2009, the National Association of Secretaries of State (NASS) adopted a resolution to 

request the EAC respect the letter and spirit of HAVA law, finding that 1) Under HAVA, a 

“payment” is not a “grant,” and a “grant” is not a “payment;” and 2) In effectuating its duties under 

HAVA, the EAC should create an accurate administrative record by using the term “payment” when 

the federal law means “payment”, and it should use the term “grant” when the federal law means 

“grant.” On July 16, 2014, NASS reaffirmed its position by reauthorizing and adopting this 

resolution. (See Attachment F - NASS Resolution) 

This Office acknowledges that on May 9, 2017, the GAO released Decision B-328615 that HAVA 

Payments may be referred to as “grants.” While we disagree with the analysis and conclusion, it 

does not alter our position that the EAC’s application of federal regulations beyond those set forth 

in the ACT itself is unlawful with respect to the State’s use and accounting of HAVA funds. 

SOS has fully complied with the requirements set forth in Section 902(a) of the ACT, which 

requires that it “keep such records with respect to the payment as are consistent with sound 

accounting principles, including records which fully disclose the amount and disposition by such 

recipient of funds, the total cost of the project or undertaking for which such funds are used, and the 

amount of that portion of the cost of the project or undertaking supplied by other sources, and such 

other records as will facilitate an effective audit.” It has always spent HAVA funds with attention 

to allowability, applicability, and reasonableness. It has complied with applicable NH law in 

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August 18, 2017 Response to EAC IG Audit 

respect to budgets, estimated revenues, appropriations, revenues received, and expenditures made. 

All transactions have been completed using state systems controlled by the Department of 

Administrative Services (DAS) and used by the NH State Comptroller to issue the consolidated 

annual financial report. At no time has DAS notified SOS that any transactions were submitted that 

reflected negatively on that report. 

Since 1986, New Hampshire is one of a very few states that has not been sued by the federal 

Department ofJustice for noncompliance with federal laws. The reason is clear; SOS takes HAVA 

law seriously, has historically operated in good faith in these matters, and has spent countless hours 

with minimal staff complying with the HAVA mandates all within the timeline prescribed by 

HAYA law. The balance in our election fund remains greater than fifty percent (50%) ofthe 

requirements payments and/or payments received. 

We appreciate the courtesies that the auditors extended to my staff during their visit. Ifyou have 

any questions about our response, please call me at (603) 271-3242. 

Sincerely, 

William M. Gardner, Secretary of State 

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August 18, 2017 Response to EAC IG Audit 

SOS Response to Finding No. 1 - Documentation of Policies and Procedures: 

Both the finding and recommendation rely on the premise that the EAC has regulatory authority 

over states in implementing HAVA. On the contrary, 42 USC 15329 prohibits the EAC from 

issuing any rules, promulgating any regulations, or taking any other action which imposes any 

requirements on any State. 

Further, PL 107-252 Section 253 Condition for Receipt of Funds [42 USC 15403] (c) Methods of 

compliance Left to Discretion of State.- provides that “The specific choices on the methods of 

complying with the elements of a State plan shall be left to the discretion of the State.” 

To further buttress this position, PL 107-252 Section 305 Methods of Implementation Left to 

Discretion of State [42 USC 15485] provides that “The specific choices on the methods of 

complying with the requirements of this title shall be left to the discretion of the State.” 

This finding lacks any actual findings but has rather stipulated that something “may” happen or 

something “could” happen simply because processes and procedures chosen to be used by the SOS 

are not documented. Having documentation will not necessarily improve how the SOS operates as 

evidenced by the lack of any substantive findings within this entire audit report. 

SOS Response to Finding No 2 - Inadequate Equipment Management: 

Refer to paragraphs 1 through 3 in our response to Finding No 1. 

SOS completes an annual physical inventory with forms and fields prescribed by DAS. Although 

those fields do not include the specified source and amount of funding used to acquire the asset, the 

information is readily available in the database that SOS has created to track all costs expended 

from the Election Fund and was provided to the auditors prior to the start of the audit. SOS 

provided a subset of the complete inventory to the auditors as a majority of the assets on the 

complete list provided to DAS were unassociated with HAVA. The list of HAVA inventory items 

that were provided to the auditors were also physically on-site, in one room, and readily available to 

be inspected. Those assets were inspected by the auditor and were all accounted for. 

SOS Response to Finding No 3 – Preapproval of Capital Expenditure: 

Refer to paragraphs 1 through 3 in our response to Finding No 1. 

The SOS is unaware of any lawfully adopted regulation that required pre-approval of HAVA funds 

for a capital expense. Even assuming there was, and without waiving the right to challenge the 

lawfulness of any such requirement, the SOS has taken steps to obtain retroactive approval from the 

EAC. That request has been pending before the EAC since 2011. Thus, it has satisfied 

recommendation (b). 

The auditor cites OMB A-87 for the proposition that the State was required to obtain pre-approval 

for the use of HAVA funds to construct a HAVA Facility. As discussed in detail in the 

accompanying letter and Attachments, the EAC is statutorily prohibited from adopting regulations 

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August 18, 2017 Response to EAC IG Audit 

or rules which impose any requirements on the states. OMB A-87 clearly falls within that category. 

OMB A-87 regulation requires the federal agency to explicitly adopt and issue regulations quickly. 

It has been over 13 years since the EAC held its first meeting. (See Attachment A - Timeline #3 & 

#9) On August 1, 2017, EAC staff made it clear in Funding Advisory Opinion FAO-08-07 that the 

EAC “had not yet published the Common Rule in the Code of Federal Regulations (CFR).” 

While EAC staff generated FAQs in 2006 suggesting that pre-approval was required for expenditure 

of HAVA funds on capital expenses, there is no evidence that that requirement was lawfully 

adopted by the EAC. As a federal agency, the EAC is subject to the federal “The Government in 

the Sunshine Act”, the “Administrative Procedure Act”, and the “Freedom of Information Act”. The 

FAQs were (a) not adopted by the EAC Commissioners in a “Public” vote in FY 2004, (b) cannot 

be found in the Federal Register in association with the EAC, and (c) was not subject to public 

comment. 

On June 11, 2004, the EAC voted in favor of “Application of OMB Circular Financial Management 

Controls to Title II Requirements.” Even if that vote was lawful, it only applied to Title II 

disbursements. The HAVA facility that is the subject of this audit finding was funded exclusively 

with Title I funds and thus would not be governed by that vote. 

In a March 18, 2009 letter, the EAC Executive Director told the SOS that the GSA, the EAC 

predecessor funding agency, in a letter dated July 28, 2004, informed the Governor of New 

Hampshire that the Common Rule and the OMB circular A-87 applied to HAVA funds. The SOS 

has been unable to confirm this. However, the GSA’s Catalogue of Federal Domestic Assistance 

(CFDA) site mentions no such requirement and the SOS has found no such reference to a HAVA 

rulemaking process by GSA in the Federal Register. (See Attachment B - OMB Circulars). 

Well before the EAC discussed the applications of the OMB Circulars, the SOS was immersed in 

planning for the implementation of HAVA. (See Attachment A – Timeline #11). A significant 

piece of that planning was how to train all of the election officials in the State: 300 town and ward 

moderators, 236 town and city clerks, 77 ward clerks, about 900 selectmen, approximately 900 

supervisors of the checklist and registrars, and about 1,600 inspectors of elections fell on the SOS. 

(Among the 50 states, New Hampshire has by far the largest number of elected election officials, at 

about 2,400.) Without training facilities, achieving HAVA compliance would have been extremely 

difficult, thus, the SOS included plans for such a facility in its initial plans. By using the HAVA 

Facility, the State has been able to provide hands-on election official computer training to 2,246 

trainees in 141 days of training, as well as many other HAVA training and HAVA coordination 

events. The State expects to train another 350 election officials at the HAVA Facility before the 

end of 2017. 

Spending funds to build the HAVA Facility was reasonable, practical, and justifiable. If there is 

any burden on the state to establish that the $1 million capital expenditure for a HAVA training 

facility was allocable, allowable, and reasonable under PL 107-252, the SOS has supplied extensive 

justification that is more than adequate to explain its decisions. New Hampshire adopted a method 

of complying with HAVA statutes that, assuming a minimum of 40 years of useful life of the 

HAVA Facility, would cost 20% of what would have been spent if a rental option had been chosen. 

Adopting the rental option would have cost the Election Fund about $5 million whereas the capital 

expenditure approach cost only $1 million. This $4 million savings is material when considering 

that Congress is unlikely to appropriate more than $18 million in federal funds to New Hampshire 

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August 18, 2017 Response to EAC IG Audit 

for HAVA; and HAVA obligations are expensive and are expected to last indefinitely. Among the 

options available, the state has clearly selected the mechanism to provide meeting, office, storage, 

staging, and training facilities in the most prudent and cost effective manner available. (See 

Attachment C - Justification & Attachment D - Letter to EAC) 

After it became clear that the EAC would assert that the OMB Circular A-87 applied, the SOS 

attempted to gain retroactive approval for the capital expenditure for the HAVA Facility in a 

cooperative manner. The following timeline demonstrates New Hampshire’s good faith effort to 

address and resolve the matter. 

	 On February 17, 2009, the EAC sent a letter stating, “Concerning the failure to obtain 

preapproval for the building alternations, the EAC will consider retroactive approval if the 

Department submits the following information: (total costs, HAVA costs, HAVA funds 

source, justification, basis for allocation, etc.)” (See Attachment A - Timeline #31) 

	 On May 1, 2009, the Secretary of State’s office sent a letter to the EAC initiating the 

approval process for the $1 million capital expenditure and supplying justification. (See 

Attachment A - Timeline #35 & Attachment D - Letter to EAC) 

	 On August 10, 2010, the EAC Director of Grants (sic) asked about conducting a site visit 

prior to a potential “ratification.” He mentioned his hope to “get the ratification in front of 

the Commissioners by early September.” (See Attachment A - Timeline #39) 

	 On September 9, 2010, two EAC staffs conducted a site visit at the HAVA facility, 

interviewing 7 individuals familiar with the construction and use of the HAVA facility to 

address HAVA requirements. (See Attachment A - Timeline #40) 

	 On September 13, 2010, the State sent supporting information about the use of the HAVA 

Facility, as well as the uncharged use of the rest of the Archives Building for improving 

elections. The State included sample announcements of training conducted at the HAVA 

facility since 2007. (See Attachment A - Timeline #41 & Attachment E - Unreimbursed 

Assistance) 

	 On January 4, 2011, the EAC Director of Grants (sic) replied, “EAC has not made a 

decision. I submitted my recommendation to allow the expense, but we lost our quorum 

before it went to a Commissioner vote... We’ll be in touch.” (See Attachment A - Timeline 

#43) 

	 On December 14, 2014, a quorum of EAC Commissioners was restored. No action was 

taken on ratifying New Hampshire’s HAVA Facility. (See Attachment A - Timeline #42) 

	 On July 21, 2017, the EAC Director of Grants (sic) advised the SOS that such EAC 

ratification process must wait until after the EAC IG audit is completed. (See Attachment A 

- Timeline #51) 

A summary of the justification for HAVA Facility appears in Attachment C - Justification that 

addresses allowability, reasonableness, and allocability - concepts appearing in Federal “guidance.” 

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August 18, 2017 Response to EAC IG Audit 

The SOS has supported the $1 million capital expenditures for the HAVA Facility in a May 1, 2009 

letter to the EAC. (Attachment D - Letter to EAC & Attachment E - Unreimbursed Assistance) 

With a great deal of information, a site visit, and a number of interviews already conducted, the next 

action, a ratification (retroactive approval) of the $1 million capital expenditure, would appear to be 

in the EAC Commissioner’s hands. The SOS, under no obligation, is happy to answer any 

remaining questions that the EAC may have in order to obtain EAC ratification. 

SOS Response to Finding No 4 - Inadequate Payroll Documentation: 

It is important to put this finding in context. This audit covers a period of 13 years, which equates 

to approximately 8,788 pay periods (13 years x 26 pay periods per year). In that context, this 

finding is de minimis. Moreover, the deficiencies all stem from the mid-to-late 2000’s—more than 

10 years ago. The lack of any more recent deficiencies strongly suggests that the problems have 

been resolved. 

Two of the records cited in this finding are related to missing a time sheet; one from 2005 and one 

from 2006. Since the payroll officer and supervisors of those employees are still employed by SOS, 

both the payroll officer and supervisors are prepared to execute witnessed affidavits testifying to the 

valid nature of the payments. 

One item is solely based on the name missing from the six-month affirmations for the second half of 

2007. These affirmations are based on the unrecognized authority of the OMBs, but were created 

voluntarily to assist in an eventual audit. These documents can easily be amended to include the 

missing information. 

One employee’s timecard did not have a supervisor’s signature for a pay period. Since the payroll 

officer and supervisors of that employee are still employed by SOS, the payroll officer and 

supervisors are prepared to execute witnessed affidavits testifying to the valid nature of the 

payments. 

The following documents are attached and are part of our response: 

Attachment A - Timeline 

Attachment B - OMB Circulars 

Attachment C - Justification 

Attachment D - Letter to EAC 

Attachment E - Unreimbursed Assistance 

Attachment F - NASS Resolution 

Attachment G - Administrative Procedure Act 

Attachment H - Sunshine Act 

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Attachment A - Timeline
 

1. Oct. 29, 2002 – Effective date of Help America Vote Act of 2002. 

a.	 HAVA Section 203 - Appointments of the members of the Commission 

shall be made not later than 120 days after the date of the enactment of 

this Act, i.e. February 26, 2003. 

b.	 Section 209: “Limitation on Rulemaking Authority” 

c.	 Section 253(c): “The specific choices on the methods of complying with 

the elements of a State plan shall be left to the discretion of the State 

d.	 Section 301: Required compliance: States must implement accessible 

voting system by Jan. 1, 2006. 

e.	 Section 303: Required compliance: States must complete statewide voter 

registration system by January 1, 2004, unless they obtain a waiver (which 

extends the deadline to not later than January 1, 2006. 

f.	 Section 305: “Methods of implementation Left to Discretion of States”. 

g.	 Section 902: “Each recipient of the grant or other payment made under 

this Act shall keep such records with respect to the payment as are 

consistent with sound accounting principles, including records which fully 

disclose the amount and disposition by such recipient of funds, the total 

cost of the project or undertaking for which such funds are used, and the 

amount of that portion of the cost of the project or undertaking supplied by 

other sources, and such other records as will facilitate an effective audit.” 

2.	 December 13 and 14, 2002 – At a Washington DC informational meeting for the 

states to discuss the recently-adopted HAVA legislation, Congressional staff from 

the House Administration Committee, which was responsible for drafting HAVA, 

advised the states to immediately set aside matching funds and to proceed with 

development of their HAVA State Plans, given the tight deadlines for compliance. 

3.	 February 26, 2003 – The HAVA deadline to establish the EAC. “The 

appointments of the members of the Commission shall be made not later than 

120 days after the date of the enactment of (HAVA).” The EAC held its first 

meeting in March of 2004. 

4.	 April 29, 2003 – GSA target date for states to complete applications for Title I 

funds. See Attachment B from http://www.federalgrantswire.com , site referenced 

in GSA’s CFDA website. 

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Attachment A - Timeline
 

5.	 May 14, 2003 – Secretary of State received and deposited $5 million in HAVA 

Title I funds. 

6.	 June 30, 2003 – Effective date of HB 25, New Hampshire’s two-year capital 

budget for fiscal years 2004-2005. This bill called for spending $1 million in 

federal funds to create the HAVA facility as part of a $2.5 million capital 

improvement to the Department of State’s Archives and Records Management 

building. 

7.	 July 15, 2003 - Effective date of HB 577, adopted by the 2003 Legislature with 

an effective date July 15, 2003, created the Election Fund (RSA 5:6-d.) This 

legislation states, “The secretary of state shall not expend any monies in the 

election fund unless the balance in the fund following such expenditures shall be 

at least 20 times the estimated annual cost of maintaining the programs 

established to comply with the Help America Vote Act of 2002.” This law placed 

constraints on spending which required very careful long term planning and 

budgeting aimed at keeping costs to a minimum. 

8.	 September 30, 2003 - The SOS submitted to the EAC its 2003 HAVA State 

Plan, which was later published in the Federal Register by the EAC. Under 

HAVA law, this enabled the State to receive the HAVA requirements payments. 

9.	 March 23, 2004 - The EAC held its initial organizational meeting and elected 

officers. 

10.	 March 25, 2004 – GSA’s Catalogue of Federal Domestic Assistance (“CFDA”) 

website indicated HAVA Title I funds constituted “Direct Payments for 

Specified Use.” 

a. Under the title of “Regulations, Guidelines and Literature”, the CFDA 

states: 

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Attachment A - Timeline
 

i.	 “Title 1, Part 1 of Subtitle D of Title II (Sections 251-257), Title III of 

Public Law 107 – 252, the Help American Vote Act of 2002, 

Section 101, Section 103, Section 301 and Section 906.” There is 

no mention of a need to certify compliance with OMB Circulars. 

b.	 Under the heading entitled “Audits”, the CFDA states as follows: 

i.	 “Title IX, Section 902, states that with respect to any grant or 

payment made in accordance with this Act by GSA, the Election 

Assistance Commission must be regarded as the office making the 

grant or payment, for the purposes of audits. In accordance with 

the provisions of OMB Circular A-133 (Revised June 24, 1997), 

“Audits of State, Local Governments, and Nonprofit Organizations,” 

nonfederal entities that expend financial assistance of $300,000 or 

more a year in Federal awards will have a single or a programspecific audit conducted for that year. Nonfederal entities that 

expend less than $300,000 a year in Federal awards are exempt 

from Federal audit requirements for that year, except as noted in 

Circular Non A-133.” 

11.	 June 11, 2004 – EAC Commissioners voted in a “tally vote” in favor of 

“Application of OMB Circular Financial Management Controls to Title II 

Requirements,” according to the EAC‘s Fiscal Year 2004 Annual Report. This 

“voting forum” was not “Public”, according to the EAC’s 2004 Annual Report. 

The “tally vote” event, however, qualifies as a “meeting” in the federal Sunshine 

Act, which describes a meeting as “the deliberations of at least the number of 

individual agency members required to take action on behalf of the agency where 

such deliberations determine or result in the joint conduct or disposition of official 

agency business.” No meeting agenda or meeting minutes are available on the 

EAC website for this “tally vote.” 

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Attachment A - Timeline

12.	 July 13, 2004 – In a letter dated March 18, 2009, the EAC stated that it had 

“informed the Governor and the Secretary of State of these OMB A-87 

requirements in its Requirements Payments award letter dated July 13, 2004. In 

addition, the EAC established additional guidance for states on the management 

of HAVA funds in its Frequently Asked Questions Regarding Appropriate Use of 

HAVA Funds (FAQs), which reiterates the OMB Circular A-87 requirement for 

preapproval for capital expenditures.” The SOS cannot verify a letter was sent 

on July 13, 2004 by the EAC or received by the Governor or the SOS. Whether 

or not the letter was sent or received, the date of the letter was well after critical 

HAVA decisions had to be made. 

13.	 July 21, 2004 - The EAC released and the state received its Title II Section 251 

requirements payment in the amount of $11,596,803. 

14.	 September 30, 2004 – EAC’s Fiscal Year 2004 Annual Report text referred to 

Title 1 as “Election Reform Payments” and Title II as “Requirements Payments”, 

always distinguishing between Title I and Title II funds as “payments” and other 

categories as “grants,” in a manner consistent with HAVA text. 

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Attachment A - Timeline
 

15.	 December 27, 2004 – NH Attorney General approves Secretary of State’s 

execution of competitively bid contract with Covansys to implement statewide 

voter registration system. 

16.	 April 6, 2005 – Secretary of State signed competitively-bid contract for “designbuild” of Archives addition, including HAVA space. 

a.	 Vital Records addition had to be built anyway, since the Division had to be 

moved out of the Department of Health and Human Services Building 

b.	 Adding a second floor for HAVA offices and specialized computer training 

lab would save money in the long run 

17.	 January – June, 2005 – Secretary of State, Covansys and supervisors of the 

checklist and clerks convene to write specifications for statewide voter 

registration system. 

18.	 June 30, 2005 – Effective date of Capital Budget adopted by 2005 legislature 

approving an additional $1.2 million in State General Funds for Archives addition, 

including HAVA space. 

19.	 December 16, 2005 – NH Attorney General approves Secretary of State’s 

execution of competitively bid contract with IVS of Kentucky to implement 

accessible voting system. 

20.	 January – May, 2006 – No training room available in Concord for about 1000 

system users. Training sessions on Regional Drive to introduce clerks and 

supervisors of the checklist to statewide voter registration system. For each 

training session, it required one half day for two information technology staff to 

set up and one half day for two information technology staff to break down – a 

high cost approach not contemplated in New Hampshire’s State Plan. 

21.	 July 1, 2006 – Deadline for compliance with HAVA Sections 301 (accessible 

voting system), 302 (provisional ballots), and 303 (statewide voter registration 

system), in advance of the 2006 election cycle. 

22.	 January, 2007 – HAVA staff moved into Archives building, taking over HAVA 

Addition space, including training area, somewhat later. 

23.	 June 5, 2007 – OIG issues audit report on Maryland expenditure of HAVA funds, 

stating, “Our audit cites the Uniform Administrative Requirements for Grants and 

Cooperative Agreements promulgated by the U.S., General Services 

Administration (GSA) in Section 41 of the Code of Federal Regulations (CFR), 

Part 105-71. We use this citation because GSA disbursed the HAVA funds on 

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Attachment A - Timeline 

behalf of EAC and because the EAC was not authorized to issue regulations.” 

HAVA Section 902 states that “With respect to any grant or payment made under 

this Act by the Administrator of General Services, the Election Assistance 

Commission shall be deemed to be the office making the grant or payment for 

purposes of this section.” 

24. March 20, 2008 - In addressing financial accounting issues, the Deputy 

Secretary of State for California testified before the Election Assistance 

Commission (EAC) on March 20, 2008: “Quite simply I believe EAC guidance on 

their website is wrong. Further, much of the guidance comes from EAC staff 

without any endorsement of the Commissioners. A regulatory scheme has 

developed which is troubling for a commission that specifically was not given rule 

making authority. (Emphasis supplied.) I am not suggesting that EAC should 

never answer our questions or adopt voluntary guidance positions. I did suggest 

that EAC should review the Frequently Asked Questions (FAQ) on their website 

under HAVA Funds Management and decide whether some of the answers need 

to be issued more formally as Voluntary Guidance and some the answers need 

to revisited and removed from their website... I will note that (EAC) 

Commissioner Hunter at the meeting indicated that she has put her legal skills to 

work on analyzing the circulars. She is coming up with somewhat different 

conclusions than what the FAQs express.” 

On March 20, 2008, the Chair of the EAC Board of Advisors and Michigan 

Election Director stated in testimony before the EAC in Denver, Colorado, “There 

is no necessity for EAC to create such an expansive regulatory scheme, 

especially when EAC specifically is not granted rule making authority.” He 

further recommended that the EAC, “Review and revise the FAQs that do not 

conform to HAVA. The FAQs are not formal advisory guidance issued by EAC.” 

Given that the EAC has not formally adopted the Frequently Asked Questions 

regarding Appropriate Use of Help America Vote Act Funds on the EAC’s own 

website, we are unable to confirm that the auditor has a sound basis for their 

reading of federal law. 

25.	 September 18, 2008 – In an EAC Commissioners meeting, the transcript reveals 

that the EAC had asked the Office of Management and Budget some questions 

to which they set up a joint telephone call. After the telephone call, the EAC 

Counsel reported, “I don’t recall there being a discussion of the enforceability of 

the circulars against the states.” The question of enforceability remained 

unresolved by the EAC Commissioners at that time. 

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Attachment A - Timeline
 

26.	 Sept. 25, 2008 - GAO issued Decision B-316915: “EAC has no evaluative role... 

Whether the State will certify is the only uncertainty and only affects EAC 

payment and state’s receipt of its formula amount... Here, by operation of law, 

the state may fulfill the preconditions and be entitled to receipt of the funds 

through no actions on the part of the agency.” 

a.	 “..., the EAC must pay states statutory formula payments if they file a 

statement certifying that have met certain pre-conditions. We conclude 

that these HAVA funds are amounts “required to be paid”...” It is 

noteworthy that the GAO uses the term “statutory formula payments” to 

describe HAVA Title II Requirements Payments. 

b. “EAC is to make the requirements payment to the state only if the state 

certifies it has met certain preconditions including a state plan, an 

administrative complaint procedure, and matching requirements.” 

c.	 In footnote #4, the GAO states, “As has been its practice, the EAC did not 

enter into grant agreements with states in order to obligate or issue the 

requirements payments.” 

27.	 2008 - General Services Administration published its Annual Catalogue of 

Federal Domestic Assistance (CFDA) Report to Congress, pursuant to Public 

Law 98-169, this is “the basic reference source of Federal Programs.” The 

CFDA describes HAVA Section 251 payments as follows: 

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28.	 July 27, 2008 - National Association of Secretaries of State (including many 

lawyers) adopted a resolution stressing HAVA law: 

a.	 Section 209, “The (EAC) shall not issue any rule, promulgate any 

regulation, or take any other action which imposes any requirement on 

any State...” 

b.	 Section 253(c ) “The specific choices on the methods of complying with 

the elements of a state plan shall be left to the discretion of the states.” 

c.	 Section 305: “The specific choices on the methods of complying with the 

requirements of this title (HAVA, Title III) shall be left to the discretion of 

the states.” 

29.	 July 28, 2008 - NH Assistant Attorney General James Kennedy sends letter to 

the New Hampshire Secretary of State indicating the OMB circulars are 

unenforceable. “Under HAVA, the EAC cannot comply with the APA 

(Administrative Procedures Act) because it does not have the authority to 

promulgate rules. In adopting OMB Circular A-87 to its audit review, the EAC 

has stepped outside it statutory mandate. ...Therefore, the EAC cannot, 

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Attachment A - Timeline 

pursuant to OMB Circular A-87, require that States request pre-approval for 

capital expenditures over $5,000...” 

30.	 September 25, 2008 – GAO issues Decision B-316915 which refers to HAVA 

Requirements Payments as “statutory formula payments.” On Page 3, Footnote 

#4 states, ”As has been its practice, the EAC did not enter into grant agreements 

with states in order to obligate or issue the requirements payments. EAC OGC 

Memorandum.” “... States must simply file a statement that the governor, or chief 

executive officer of the state, “hereby certifies that it is in compliance with the 

requirements” under HAVA. 42 U.S.C. #15403(a) Whether a state will so certify 

is the only uncertainty and only affects EAC payment and the state’s receipt of its 

formula amount.” 

There is no mention of the states’ need to agree to abide by OMB Circulars or 

other regulations. Contrary to the EAC Executive Director’s statement on Page 2 

of his March 18, 2009 letter, the GAO does not affirm the EAC’s determination 

that HAVA’s Section 251 payments are grants.” 

31.	 February 17, 2009 – Letter from EAC Staff stating, “Concerning the failure to 

obtain preapproval for the building alternations, the EAC will consider retroactive 

approval if the Department submits the following information: (total costs, HAVA 

costs, HAVA funds source, justification, basis for allocation, etc.)” 

32.	 March 18, 2009 – Letter from the EAC Executive Director to the New Hampshire 

HAVA Coordinator states, “...GAO affirmed the EAC’s determination that HAVA’s 

Section 251 payments are grants.” Contrary to EAC Executive Director’s 

statement on Page 2 of his March 18, 2009 letter, the GAO does not affirm the 

EAC’s determination that HAVA’s Section 251 payments are grants. 

The letter further states, “The General Services Administration, the EAC’s 

predecessor funding agency, informed the Governor of New Hampshire that the 

Uniform Grants and Cooperative Agreements with State and Local Governments 

and the OMB Circular A-87 applied to HAVA funds on July 28, 2004. The EAC 

also informed the Governor and the Secretary of State of these requirements in 

its Requirements Payments award letter dated July 13, 2004. In addition, the 

EAC established additional guidance for states on the management of HAVA 

funds in its Frequently Asked Questions Regarding the Appropriate Use of HAVA 

Funds (FAQs) which reiterates the OMB Circular A-87 requirement for 

preapproval of capital expenditures. The FAQs were posted on the EAC website 

in 2006.” 

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Attachment A - Timeline
 

33.	 March 27, 2009 – NH Secretary of State certified compliance with Title III of 

HAVA (Accessible voting systems and statewide voter registration system 

available in all towns). 

34.	 March 30, 2009 – Letter from SOS Assistant Secretary of State to EAC 

Executive Director regarding audit findings by the NH Legislative Budget 

Assistant for the 10 months ending April 30, 2007. 

35.	 May 1, 2009 – Letter from SOS to EAC Executive Director initiating approval 

process for the $1 million capital expenditure for the HAVA Facility and 

explaining the economic basis for the decision to build the HAVA Addition. 

36.	 July 19, 2009 – National Association of Secretaries of State (including many 

lawyers) adopted resolution distinguishing between the terms “grants” and 

“payments” used in HAVA. “Payments,” as used in HAVA Sections 101, 251 and 

261 are explicitly not subject to federal regulations, rules or requirements. 

37.	 Sept. 2, 2009 – NH Assistant Attorney General appeared before the EAC 

Commissioners in Washington, DC to explain why the EAC should not be 

imposing federal regulations on the States by requiring States’ compliance with 

OMB Circulars (not permitted under HAVA Section 209). 

38.	 April 28, 2010 – GAO issued B-318831: “EAC violated the purpose statute, 31 

U.S.C. #1301(a) when it obligated certain grant programs to its fiscal year 2004 

requirements payment appropriation. EAC used its requirements payments 

appropriation because of language in a conference report and the Office of 

Management and Budget apportionment. The plan language of the 

appropriation, however, was clear that the appropriation was legally available 

only for requirements payments. To correct its purpose violation, EAC should 

adjust its accounts and charge its grant obligations to its salaries and expenses 

appropriation...” 

a. In its administrative spending, the EAC had inappropriately conflated 

“grants” with “requirements payments.” A footnote cited Lincoln v. Vigil, 

508 U.S. 182, 194 (1993): “there is a distinction to be made between 

utilizing legislative history for the purpose of illuminating the intent 

underlying language used in a statue and resorting to that history for the 

purpose of writing into law that which is not there.”) 

39.	 August 10, 2010 - The EAC Director of Grants (sic) asked about conducting a 

site visit prior to a potential “ratification.” He mentioned his hope to “get the 

ratification in front of the commissioners by early September.” 

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Attachment A - Timeline
 

40.	 September 9, 2010 - Two EAC staffs conducted a site visit at the HAVA facility, 

interviewing 7 individuals familiar with the construction and use of the HAVA 

facility to address HAVA requirements. 

41.	 September 13, 2010 - The SOS sent supporting information about the use of the 

HAVA addition, as well as the uncharged use of the rest of the Archives Building 

for improving elections. The State included sample announcements of training 

conducted on the HAVA facility since 2007. 

42.	 2011 through Dec. 14, 2014 – EAC lacked a quorum of commissioners. 

43.	 Jan. 4, 2011 – EAC Director of Grants (sic) announced she has recommended to 

the EAC that they allow a $1 million federal HAVA payment toward construction 

of an addition to the Archives and Records Building for HAVA training, storage 

and staff. 

44.	 Nov. 4, 2011 – SOS formally protested need to comply with OMB Circulars in 

order to receive HAVA funds, arguing OMB circulars have CSR numbers and are 

federal regulations. 

45.	 Nov. 18, 2011 – SOS received and deposited an additional $1,425,000 in Title II 

HAVA funds, following protest. 

46.	 July 16, 2014 – NASS re-authorized 2009 resolution distinguishing between the 

terms “grants” and “payments” used in HAVA, preventing applications of federal 

regulations to HAVA Sections 101, 251 and 261. 

47.	 May 10, 2016 – The EAC Inspector General submitted question to EAC 

Commissioners regarding applicability of OMB circulars as criteria for federal 

audits of New Hampshire spending under HAVA Section 251. 

48.	 Sept. 12, 2016 – EAC Inspector General’s contract accountants submitted 

amended “Prepared by Client” (PBC) list of materials needed for New Hampshire 

audit, requesting information based on state financial standards, reversing 

earlier request for information format set forth in OMB circulars. 

49.	 May 9, 2017 – Government Accountability Office (GAO) issued Decision B328615, consistently referring to regulations in OMB circulars as “guidance.” It 

decided HAVA Title I and II payments were “grants,” which is in contrast to the 

term “statutory formula payments” that the GAO used to describe HAVA Title II 

Requirements Payments in Decision B-316915 issued September 25, 2008. 

50.	 July 21, 2017 - EAC Director of Grants (sic) advised the SOS that such EAC 

ratification process must wait until after the OIG audit is completed. 

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Attachment A - Timeline

51.	 August 1, 2017 - EAC acknowledges it “has not yet published the Common Rule 

in the Code of Federal Regulations (CFR).” A footnote to the EAC’s Funding 

Advisory Opinion FAO-08-07 states, “The General Services Administration and 

the Election Assistance Commission informed States upon the award of Help 

America Vote Act funds that the funds were subject to the requirements 

contained in the “Common Rule.” The Common Rule contains the uniform 

administrative requirements for grants and cooperative agreements with states 

and local governments. As EAC has not yet published the Common Rule in the 

Code of Federal Regulations (CFR), it refers states to 41 CFR Part 105-71, 

which contains GSA’s publication of the Common Rule. The document is 

referred to as the Common Rule because all Federal agencies use the same, or 

common, administrative requirements that were contained in OMB Circular A102. “ 

a.	 HAVA Section 902 states that “With respect to any grant or payment made 

under this Act by the Administrator of General Services, the Election 

Assistance Commission shall be deemed to be the office making the grant 

or payment for purposes of this section.” Hence, it appears that the GSA 

may not adopt rules that are applicable to HAVA funds. 

52.	 August 5, 2017 - The Federal General Services Administration refers to Section 

251 Requirements Payments as “Direct Payments for a Specified Purpose” – not 

“Grants” (one of the options). Hence, the term payments are placed in a category 

of “payments”. 

Page 12 of 13 

 


 

-~ 

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Home Programs Agencies Regional Agency Offices General Info Privacy 

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C - DIRECT PAYMENTS FOR A SPECIFIED USE 

B - PROJECT GRANTS 

B - Cooperative Agreements (Discretionary 

Grants), B - Project Grants 

Attachment A - Timeline
 

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Attachment B – OMB Circulars 

Applicability and Enforceability 

1.	 EAC refers often to the GSA being their “predecessor funding agency” relying 

on faulty assumptions regarding the GSA’s authority to promulgate rules. 

a.	 PL 107-252 Section 902 Audits and Repayment of Funds. [42 USC 15542] (b) 

Audits and Examinations.- (4) Special Rule for payments by General 

Services Administration.- “With respect to any grant or payment made under 

this Act by the Administrator of General Services, the Election Assistance 

Commission shall be deemed to be the office making the grant or payment for 

purposes of this section.” 

2.	 If a statute passed by Congress prescribes policies or procedures that differ 

from those in the Circular, the provisions of the statute govern. 

a.	 ASMB C-10 Implementation Guide for OMB Circular A-87: Section 1.4 

Relationship of Circular A-87 to Agency Regulations and Federal Statutes: 

OMB Circular A-87 is a directive to the heads of Federal executive 

departments and agencies instructing them concerning the cost principles to 

be applied in cost-based awards to state, local, and Indian tribal 

governments. The Circular directs agencies to issue implementing 

regulations. ... However, if a statute passed by Congress prescribes policies 

or procedures that differ from those in the Circular, the provisions of the 

statute govern. 

I.	 PL 107-252 Section 209 Limitation of Rulemaking Authority. [42 USC 

15329] The Commission shall not have any authority to issue any rule, 

promulgate any regulation, or take any other action which imposes any 

requirement on any State or unit of local government, except to the extent 

permitted under section 9(a) of the National Voter Registration Act of 1993 

(42 U.S.C. 1973gg-7(a)). 

II.	 This is not a cost-based award but rather a disbursement based on 

formulas 

b.	 Rules and Regulation – Federal Register Vol 72 No 14 Tuesday, January 23, 

2007 

c.	 Thursday, December 26, 2013, OMB released the “Supercircular” or 

“Omnicircular” called the Uniform Administrative Requirements, Cost 

Principles, and Audit Requirements for Federal Grants. This streamlines 

OMB Circulars A-21, A-87, A-110, A-122, A-89, A-133, and A-50. 

d.	 § 200.110 Effective/applicability date. (a) The standards set forth in this Part 

which affect administration of Federal awards issued by Federal agencies 

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Attachment B – OMB Circulars 

become effective once implemented by Federal agencies or when any future 

amendment to this Part becomes final. Federal agencies must implement the 

policies and procedures applicable to Federal awards by promulgating a 

regulation to be effective by December 26, 2014 unless different provisions 

are required by statute or approved by OMB. 

3.	 The New Hampshire SOS has been unable to find references to the GSA’s 

formal adoption of HAVA requirements in the form of OMB circulars or to 

determine whether or not there was due process and public disclosure 

pursuant to the Federal Administrative Procedure Act or the Sunshine in 

Government Act. The GSA has referenced A-133 as it applies to the single 

audit, but has not stated the need to follow other OMB Circulars in its formal 

publication, the Catalogue of Federal Domestic Assistance (CFDA). The GSA 

categorizes these HAVA payments as “Direct Payments for a Specified Use,” 

not “Grants.” 

If regulations existed, and particularly if the GSA had formally adopted such 

regulations, the GSA should have included them in the applicable CFDA entry for # 

39.011 (Title I payments applicable to the HAVA Facility) and #90.401 (Title II 

payments). See Timeline #4, #10, #27, and #52. Also, an announcement of 

forthcoming meetings to adopt such OMB circulars as they applied to HAVA should 

have been posted in the Federal Register to achieve compliance (e.g. with the A133), the Federal “Sunshine in the Government Act” and “Administrative Procedures 

Act.” The SOS can find no such announcements or records. 

The GSA’s Catalogue of Federal Domestic Assistance refers users to the Federal 

Grants Wire for further information: 

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*. 

FederalGrantsW1re * Search Federal Grants 

HOME ABOlJT US ARTICLES BOOKS DIRECTORY 

Home General Services Administration Election Reform Payments 

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2. New Rule in New Hampshire I New Hampshire Drivers with no tickets in 3 years should read this now comparisons.org 

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The purpose of the Title 1, Section 101 of the Help America Vote Act of 2002, is to improve the administration of 

elections for Federal office. The purpose of Section 102 is to replace a punch card voting system or a lever voting 

system. 

General information about this opportunity 

Last Known Status 

Deleted 05/26/2005 (This appropriation was for FY 2003) 

Program Number 

39.011 

Federal Agency/Office 

GENERAL SERVICES ADMINISTRATION 

Type(s) of Assistance Offered 

Direct Payments for Specified Use. 

Attachment B – OMB Circulars
 

Page 3 of 10
 

 


 

What is the process for applying and being award this assistance? 

Pre-Application Procedure 

None. This program is excluded from coverage under E.O. 12372. 

Application Procedure 

GSA. Office of Financial Management Systems, will develop a website for applying for payments under the Act. The 

website will establish a 7-step process that allows States to submit their information to receive and report on funding: 

Step One - Registration. The State will enter contact information including name, address and email address. Once the 

information has been verified, GSA will establish and issue a user ID and password to access the web site. The user ID 

and password will be emailed to the States. The Web site address is http://www.finance.gsa.gov/ helpamericavote. 

Step Two - EFT Setup. The State will use the user ID and password, issued in step one, to access the web site. Banking 

information required for an Electronic Funds Transfer (EFT) will be submitted. All funds will be disbursed via EFT. Step 

Three - Certification. The request must provide certification that the State will use funds in accordance with current 

law and guidelines stated in Sections 301 {if applicable) and 906. States may not receive funding unless they adhere to 

those stated guidelines. If a State is requesting reimbursement it must also submit certification that its current vot ing 

machines are consistent with the guidelines stated in Sections 301 and 906. During this step the State will submit 

information about the number of qualifying precincts. States may elect to make an initial application for Section 101 

funding only and later amend their application to request Section 102 funding, as long as they do so by April 29, 

2003. Step Four - Minimum disbursements. After steps one, two, and t hree are completed and approved, the 

minimum payment amount under Section 103 will be issued, $5 million for each State and $1 million for each 

territory. When processed, the funding will be disbursed by the Department of Treasury, via Electronic Funds Transfer 

{EFT), and deposited directly into the bank account specified in step two. States are encouraged to establish the 

Election Fund described in Section 254(b)(l) of the Act, and to deposit funding received under Title I into this account. 

Section 104(d) of the Act requires t hat when a State has established an election fund described in Section 254{b), the 

State shall ensure that any funds provided to the State under this title are deposited and maintained in such fund. 

Step Five - Final disbursement calculations. After all applications are received, the calculations under Sections 101 and 

102 will be performed. This step will occur after the April 29, 2003, application cutoff. Step Six - Final disbursements. A 

second payment will be issued to States qualifying for more than the minimum payment. This step will occur by May 

31, 2003. The funding will be disbursed by the Department of Treasury, via Electronic Funds Transfer (EFT), and 

deposited directly into the bank account specified in step two. Step Seven - Reporting. Each funding recipient will be 

required to submit verification of actual purchases. Information regarding actual funds expended will be reconciled 

against funding provided. This information will be provided to the Election Assistance Commission once they become 

operational. Although exact reporting requirements have not been established, Stat es are advised to track spending 

by Sections 101 and 102 categories. 

Attachment B – OMB Circulars
 

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Attachment B – OMB Circulars
 

This website references A-133 for auditing, citing HAVA Section 902, but makes no 

mention of other OMB circulars. A-133 states as follows: 

6. Required Action. The specific requirements and responsibilities of 

Federal agencies and non-Federal entities are set forth in the Attachment 

to this Circular. Federal agencies making awards to non-Federal entities, 

either directly or indirectly, shall adopt the language in the Circular in 

codified regulations as provided in Section 10 (below), unless different 

provisions are required by Federal statute or are approved by the Office of 

Management and Budget (OMB). 

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Attachment B – OMB Circulars 

7. OMB Responsibilities. OMB will review Federal agency regulations and 

implementation of this Circular, and will provide interpretations of policy 

requirements and assistance to ensure uniform, effective and efficient 

implementation. 

The SOS can find no evidence of compliance with the above A-133 requirements #6 

and #7 by either the GSA or the EAC. 

4.	 There was never an official process to ensure the OMB Circulars were 

applicable to Title I and Title II funds or enforceable. 

The SOS has found no available evidence that the EAC Commissioners determined 

that Title I funds were subject to OMB Circulars. There is no clear record in 2004 of 

such a vote, and if there were, it would have been in a “Tally” voting forum executed 

contrary to the “Government in the Sunshine Act” and the Federal “Administrative 

Procedures Act”. (See Attachment G - Administrative Procedure Act & Attachment 

H - Sunshine Act) 

On June 11, 2004, the EAC Commissioners decided in a “Tally” voting forum that 

OMB Circulars applied to Title II funds. This was contrary to the federal 

“Government in the Sunshine Act” and the “Administrative Procedures Act”. Later in 

2006, EAC staff issued FAQs citing the OMB circulars. However, none of this was 

conducted in an official manner. 

On July 28, 2008, the New Hampshire Attorney General sent a letter to the SOS 

stating that the OMB circulars were unenforceable. “”Under HAVA, the EAC cannot 

comply with the APA (Administrative Procedures Act) because it does not have the 

authority to promulgate rules... Therefore, the EAC cannot, pursuant to OMB 

Circular A-87, request pre-approval for capital expenditures over $5,000.” 

According to a September 1, 2008 EAC Commissioners meeting transcript, the EAC 

Commissioners did not know whether the OMB circulars were enforceable. In the 

transcript, the EAC General Counsel acknowledged that they had not received any 

response in writing to a written question to the Office of Management and Budget 

(OMB) asking whether the OMB circulars were enforceable. 

On July 19, 2009, the National Association of Secretaries of State (including many 

lawyers) adopted a resolution distinguishing between the terms “grants” and 

“payments” used in HAVA. “Payments,” as used in HAVA Sections 101, 251 and 

261, are explicitly not subject to federal regulations, rules or requirements. 

On Sept. 2, 2009, a NH Assistant Attorney General appeared before the EAC 

Commissioners in Washington, DC to explain why the EAC should not be imposing 

federal regulations on the States by requiring States’ compliance with OMB Circulars 

(not permitted under HAVA Section 209). 

Page 6 of 10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

	 

	 

Attachment B – OMB Circulars
 

On April 28, 2010, the GAO issued B-318831: “EAC violated the purpose statute, 31 

U.S.C. #1301(a) when it obligated certain grant programs to its fiscal year 2004 

requirements payment appropriation. EAC used its requirements payments 

appropriation because of language in a conference report and the Office of 

Management and Budget apportionment. The plain language of the appropriation, 

however, was clear that the appropriation was legally available only for requirements 

payments. To correct its purpose violation, EAC should adjust its accounts and 

charge its grant obligations to its salaries and expenses appropriation...” 

5.	 In formal testimony before the EAC, the states witnessed that the EAC’s 

Frequently Asked Questions (FAQs) had been issued by staff and not by the 

EAC Commissioners. 

In addressing financial accounting issues, the Deputy Secretary of State for 

California testified before the Election Assistance Commission (EAC) on March 20, 

2008: “Quite simply I believe EAC guidance on their website is wrong. Further, 

much of the guidance comes from EAC staff without any endorsement of the 

Commissioners. A regulatory scheme has developed which is troubling for a 

commission that specifically was not given rule making authority. (Emphasis 

supplied.) I am not suggesting that EAC should never answer our questions or 

adopt voluntary guidance positions. I did suggest that EAC should review the 

Frequently Asked Questions (FAQ) on their website under HAVA Funds 

Management and decide whether some of the answers need to be issued more 

formally as Voluntary Guidance and some the answers need to revisited and 

removed from their website... I will note that (EAC) Commissioner Hunter at the 

meeting indicated that she has put her legal skills to work on analyzing the circulars. 

She is coming up with somewhat different conclusions than what the FAQs express.” 

On March 20, 2008, the Chair of the EAC Board of Advisors and Michigan Election 

Director stated in testimony before the EAC in Denver, Colorado, “There is no 

necessity for EAC to create such an expansive regulatory scheme, especially when 

EAC specifically is not granted rule making authority.” He further recommended that 

the EAC, “Review and revise the FAQs that do not conform to HAVA. The FAQs are 

not formal advisory guidance issued by EAC.” Given that the EAC has not formally 

adopted the Frequently Asked Questions regarding Appropriate Use of Help 

America Vote Act Funds on the EAC’s own website, we are unable to confirm that 

the auditor has a sound basis for their reading of federal law. 

6.	 The EAC IG has agreed that the EAC was not allowed to issue regulations, but 

relied on the GSA to do so. 

On June 5, 2007, the EAC IG issued an audit report on the administration of HAVA 

funds by the Maryland State Board of Elections, stating in a footnote on Page 4, 

“Our audit cites the Uniform Administrative Requirements for Grants and 

Cooperative Agreements promulgated by the U.S., General Services Administration 

(GSA) in Section 41 of the Code of Federal Regulations (CFR), Part 105-71. We 

Page 7 of 10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

	 

	 

Attachment B – OMB Circulars
 

use this citation because GSA disbursed the HAVA funds on behalf of EAC and 

because the EAC was not authorized to issue regulations.” 

However, the GSA’s adoption of the OMB circulars (regulations) is contrary to HAVA 

Section 902, which states: 

“With respect to any grant or payment made under this Act by the Administrator of 

General Services, the Election Assistance Commission shall be deemed to be the 

office making the grant or payment for purposes of this section.” 

A plain reading of the law leads to the conclusion that the GSA could not take an 

action with respect to HAVA that the EAC could not take. 

7.	 During a critical HAVA execution period of October, 2002 through May, 2004, 

the SOS worked with the facts set forth in Attachment A - Timeline #1 through 

#10. This was before the EAC Commissioners discussed the application of 

OMB Circulars. (See Attachment A - Timeline #11) There was no basis for the 

SOS to conclude that it was obligated to comply with OMB circulars that had 

not been formally adopted in compliance with the Government in the Sunshine 

Act or the Federal Administrative Procedure Act. (See Attachment G -

Administrative Procedure Act & Attachment H - Sunshine Act) 

To enable due process, federal agencies are required to follow procedures set forth 

by the Federal Administrative Procedures Act (APA). These generally include the 

following steps: 

 Publication of notice of proposed rulemaking 

 Agencies must accept comments from the public regarding the proposed rule, 

usually for a period of at least thirty days. 

	 Agencies are required to respond to all public comments, and sufficient public 

opposition to or criticism of a proposed rule may result in modifications or redrafting. 

In addition, Government in the Sunshine Act defines the term “meeting”, and 

requires notice of all public meetings and minutes of public meetings. A “notational” 

procedure is not prohibited by the Sunshine Act. However, good cause such as 

personnel related discussions and decisions is needed for a private proceeding. 

The National Association of Secretaries of State has passed two resolutions 

commenting on the EAC’s authority to treat payments as grants. So clearly, there 

has been a strong expression of interest on the part of NASS to comment on any 

proposed action that would treat HAVA payments as grants and by extension, to the 

federal government’s adoption of rules, regulations, and requirements relating to 

HAVA. (See Attachment A - Timeline #28, #36, and #46.) 

Page 8 of 10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

	 

	 

	 

	 

	 

	 

	 

	 


 

	 

	 

	 

	 

	 

	 

	 

	 

Attachment B – OMB Circulars
 

If the Federal Administrative Procedure Act was not followed, what was omitted is 

not enforceable. 5 USC §552(a)(1)(E) states, “Except to the extent that a person 

has actual and timely notice of the terms thereof, a person may not in any manner 

be required to resort to, or be adversely affected by, a matter required to be 

published in the Federal Register and not published. For the purpose of this 

paragraph, matter reasonably available to the class of persons affected thereby is 

deemed published in the Federal Register when incorporated by reference therein 

with the approval of the Director of the Federal Register.” 

8.	 After it became clear that the EAC would assert that the OMB Circular A-87 

applied, the SOS attempted to gain approval for the capital expenditure for the 

HAVA Facility in a cooperative manner. The following timeline demonstrates 

New Hampshire’s good faith effort to address and resolve the matter. 

	 On February 17, 2009, the EAC sent the SOS a letter stating, “Concerning the 

failure to obtain preapproval for the building alternations, the EAC will consider 

retroactive approval if the Department submits the following information: (total 

costs, HAVA costs, HAVA funds source, justification, basis for allocation, etc.)” 

(Timeline #31.) 

	 On May 1, 2009, the SOS sent a letter to the EAC initiating the approval process 

for the $1 million capital expenditure for the HAVA Facility and providing 

extensive justification for it. 

	 On August 10, 2010, the EAC Director of Grants (sic) asked the SOS about 

conducting a site visit prior to a potential “ratification.” He mentioned his hope to 

“get the ratification in front of the commissioners by early September.” 

	 On September 9, 2010, two EAC staffs conducted a site visit at the HAVA facility, 

interviewing 7 individuals familiar with the construction and use of the HAVA 

facility to address HAVA requirements. 

	 On September 13, 2010, the SOS sent supporting information about the use of 

the HAVA Facility, as well as the unreimbursed assistance from the Divison of 

Vital Records and the Archives for improving the administration of elections. The 

SOS included sample announcements of training conducted on the HAVA facility 

since 2007. 

	 On January 4, 2011, the EAC’s Director of Grants (sic) replied, “EAC has not 

made a decision. I submitted my recommendation to allow the expense, but we 

lost our quorum before it went to a Commissioner vote... We’ll be in touch.” 

	 A quorum of EAC Commissioners was restored on December 14, 2014. No 

action was taken on approving the HAVA Facility. 

Page 9 of 10 
 

 

 

 

 

 

 

 


 

	 

Attachment B – OMB Circulars

	 On July 21, 2017, EAC Director of Grants (sic) advised the SOS that such EAC 

approval process must wait until after the EAC IG audit is completed. 

A summary of the justification for HAVA Facility appears in Attachment C -

Justification that addresses allowability, reasonableness, and allocability - concepts 

appearing in Federal “guidance.” The SOS has supported the $1 million capital 

expenditures for the HAVA Facility in a May 1, 2009 letter to the EAC. (Attachment D 

- Letter to EAC & Attachment E - Unreimbursed Assistance) 

With a great deal of information, a site visit, and a number of interviews already 

conducted, the next action, a ratification (retroactive approval) of the $1 million 

capital expenditure, would appear to be in the EAC Commissioner’s hands. The 

SOS, under no obligation, is happy to answer any remaining questions that the EAC 

may have in order to obtain EAC ratification. 

Page 10 of 10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment C - Justification 

Allowable, Reasonable, and Allocable 

(Refer to May 1, 2009 SOS letter to the EAC’s Executive Director, Attachment D) 

The HAVA Facility is allowable because it complies with State and Federal law 

regarding use of HAVA funds. The use of the capital improvement is necessary for the 

efficient and effective performance and administration of the federally sponsored HAVA 

programs. This cost falls specifically within the identified uses of HAVA funds in Title I. 

The construction of the HAVA Facility enables the State to efficiently and effectively 

satisfy the activities set forth in section HAVA Section 101(b)(1). 

The HAVA Facility is necessary to enable the State to support and manage the 

implementation of HAVA requirements. This space is used for office space and election 

official training facilities for accessible voting machines and the statewide voter 

registration system. This facility is used to support activities focused on election 

improvement. 

House Bill 25, New Hampshire’s 2003 Capital Budget, was enacted on July 8, 2003. 

(The Legislature adopts a 2-year capital budget in odd-numbered years.) This called for 

spending $1 million in federal funds to create the HAVA Facility as part of a capital 

improvement to the Department of State’s Archives’ building. This 2003 bill also 

incorporated the allocation of $1,549,330 in non-HAVA state funds for other 

modifications to the Archives building, for a total project appropriation of $2,549,330. 

House Bill 25, the 2005 Capital Budget bill that became effective July 1, 2005 

appropriated an additional $1,150,000 in non-HAVA state funds, raising non-HAVA 

state funding to $2,699,330 and the total project appropriation to $3,699,330. 

The HAVA Facility is reasonable because the cost does not exceed that which would 

be incurred by a prudent person under the circumstances prevailing at the time the 

decision was made to incur the cost. This real estate cost is ordinary and necessary for 

the operation of the Department of State and the performance of its HAVA 

responsibilities. 

The cost is reasonable based on an analysis of the alternative to lease comparable 

space from a commercial owner. The lease alternative as set forth below considers 20 

and 40-year lease horizons, without inflation adjustments. 

We evaluated an alternative to constructing the HAVA Facility in which the state would 

expend HAVA funds on lease payments at market rates for equivalent space. Relying 

on New Hampshire Department of Administrative Services’ commercial market data and 

other sources, Class A space comparable to the HAVA Facility was offered in a range of 

$15.50 per square foot to $21.00 per square foot per annum. We calculated the average 

of this Class A range at a lease rate of $18.25 per square foot per annum for the first 

10.5 years. 

Page 1 of 3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment C - Justification
 

If we were paying applicable local market rates of $18.25 per square foot (triple net) 

over 10.5 years, the rental costs would have totaled $794,285. (Multiply $18.25 per 

square foot per annum X 4145 square feet X 10.5 years.) 

HAVA funds do not pay for the cost of utilities, insurance, repairs, maintenance, roads 

and grounds, and janitorial services. In the 10.5 years that the facility has been used, 

security, roads and grounds, insurance, repairs and maintenance and utility (provided at 

no charge to the HAVA fund) have been estimated at a minimum of $261,135. This 

relies on a cost of $5 per square foot (the lowest rate in the national range) X 4,145 sq. 

ft. = 20,725 X 10.5 = $261,135. Based on industry studies (BOMA), this figure is 

expected to rise over the lifetime of the building, such that the state’s subsidy - repair 

and maintenance, utilities, security, roads and grounds, and cleaning - eventually 

exceed the total of administrative, design and construction costs. 

Rental cost at market rates of $18.25 for 10.5 years $794,285 

Imputed cost of utilities, insurance, repairs, maintenance, $261,135 

roads and grounds, and janitorial services 

Total market cost for 10.5 years $1,055,420 

If one relies on the above market rates and estimated savings, the value from the HAVA 

facility has yielded a total of about $1,055,420 in comparable market value to the HAVA 

projects since HAVA staff moved in January, 2007: 

The cost of rents and other services would be expected to rise to reflect inflation after 

each lease period ends. However, if the next thirty years remained roughly the same, 

the 40-year cost to HAVA would exceed $4 million In addition, the State subsidy of 

security, roads and grounds, utilities, repair and maintenance and cleaning will amount 

to well over $1 million during the 40-year period. As it stands, the 40-year all-in real 

estate cost for the HAVA addition will not exceed $1 million in HAVA funds, resulting in 

at least an 80% savings when compared with comparable market figures. 

In addition, there are many other election improvement uses provide by the Archives 

Building. (See Attachment E - Uncharged Uses) Since Archives indefinitely retains the 

marked checklists, another use includes accessing these checklists to check the 

accuracy of data entry into the statewide voter registration system (HAVA Section 303). 

The use of HAVA funds for this facility constitutes the most effective use of HAVA funds 

to achieve the goals described in the HAVA State Plan. The long term cost savings 

resulting from this investment should help satisfy the Election Assistance Commission 

goal identified in your letter dated March 18, 2009 “to ensure that Federal funds are 

used efficiently and effectively...” 

The HAVA Facility has been completed, a certificate of occupancy has been issued, 

and over 1014 election officials have been trained to date in 79 training sessions held at 

Page 2 of 3 
 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment C - Justification
 
 

the HAVA Facility, with 350 more planned in 2017. The Secretary of State, the State’s 

chief election official, has certified that New Hampshire has implemented the 

requirements of Title III of the Help America Vote Act. EAC staff have visited the HAVA 

Facility and interviewed seven individuals who have been familiar with the use of the 

building since HAVA staff moved in. There is abundant evidence that the HAVA Facility 

has been an efficient and effective staging area for the achievement of HAVA goals. 

We have relied primarily on many decades of state policy aimed at state building 

ownership, maintenance, repair, insurance and roads and grounds. Secondly, we have 

checked the general guidance offered by OMB Circular A-87. The A-87 describes 

reasonable costs as follows: “A cost is reasonable if, in its nature and amount, it does 

not exceed that that which would be incurred by a prudent person under the 

circumstances prevailing at the time the decision was made to incur the cost...In 

considering reasonableness of a given cost, consideration shall be given to: “The 

restraints or requirements imposed by such factors as: sound business practices...” 

Given that the savings resulting from this course of action will represent at least 5 times 

the cost of the expenditure within the minimum expected useful lifetime of the HAVA 

addition, it would appear that this approach would be the single most compliant 

approach with the spirit of both state policy and federal guidance. 

The $1 million cost is allocable under the purposes set forth in Title I, Section 101: 

meeting HAVA Title III requirements; improving election administration; educating 

voters; training election officials, poll workers and volunteers; developing the HAVA 

State Plan; improving, acquiring, leasing, modifying and replacing voting systems; 

improving elections accessibility; and establishing toll free hot lines for elections. The 

HAVA Facility is 100% designated to support HAVA requirements. The HAVA Facility is 

used to support the performance goals in the State Plan and effectuate the activities set 

forth in section 101(b)(1) of HAVA. See attached State Plan pages 39-41. 

Page 3 of 3 
NEW HAMPSHIRE 

DEPARTMENT OF STATE 

Robert P. Ambrose 

Senior Deputy Secretary ofState 

William M. Gardner 

Secretary ofState David M. Scanlan 

Deputy Secretary ofState 

May 1, 2009 

Mr. Thomas R. Wilkey 

Office of the Executive Director 

Election Assistance Commission 

1225 New York Avenue, Suite 1100 

Washington, DC 20005 

Re: Approval for $1 million capital improvement for HAVA Facility 

Dear Mr. Vvilkey: 

This letter follows a letter from Edgardo Cortes dated February 17, 2009, 

requesti.ng that the State of New Hampshire seek retroactive approval for a capital 

improvement project for the construction of a Help America Vote Act of 2002 (HA VA) 

facility, built with Title I HAVA funds, located! at 71 S. Fruit Street, Concord, New 

Hampshire (the "HAVA facility"). This construction project involved attaching an 

addition to New Hampshire's Archives and Records building to serve as the HAVA 

Facility. Other construction modifications were made to the Archives Building using 

non-Hi\.VA state funds. 

On May 14, 2003, the State of New Hampshire deposited the $5,000,000 Title I 

HAVA payment into the State's Election Fund. The Sta;e commenced the above project 

on July 9, 2003, prior to the date of the first presidential appointment to the Election 

Assistance Commission. 

In a letter dated March 30, 2009, I advised that in the interest of full disclosure 

and cooperation, we would comply with the request. Nevertheless, as I expressed in my 

March 30, 2009 letter, it is our position that such approval is not mandated by HAVA. 

Accordingly, and without waiving our position that such approval is not required, please 

find herewith the information you have requested. 

State Honse, Room 204, 107 N. Main St., C:mcord, NH 03301 

Phone: 603-271-8238 Fax: 603-271-8242 

TDD Access: Relay NH 1-800-735-2964 

www.sos.nh.gov email: NHVotes@sos.nh.goy 
Mr. Thomas R. Wilkey 

·Page 2 

Following the outline Edgardo Cortes provided LS in his February 17, 2009 letter, 

we hereby submit the information requested with respect to the HAVA Facility 

constructed with Title I HAVA funds: 

(a) Total budgeted cost ofmodifications to the Archi'res and Records Building, 


including the HAVA Facility: $3,699,330. 


(b) Total budgeted cost financed with HAVA funds for the HAVA Facility: 


$1,000,000. 


(c) The source of HAVA funds is entirely HAVA TiUe I (Section 101). These funds 


have all been expended for the stated purpose. 


(d) The justification is based on the following assessment that it is both allowable 


and reasonable: 


The HANA Facility is allowable because it complies with State and Federal law 

regarding use of HAVA funds. The use of the capital improvement is necessary for the 

efficient and effective performance and administration of the federally sponsored HAVA 

programs. This cost falls specifically within the identified uses of HAVA funds in Title 

I. 

The Title I ground rules are flexible relative to how the payments are to be used, 


as long as the payments are not used for the reasons set forth in HAVA Section 


lOl(b)(2). The construction ofthe HAVA Facility enables the State to efficiently and 


effectively satisfy the activities set forth in HAYA Secti:m lOl(b)(1). 


The HAVA Facility is necessary to enable the State to support and manage the 

implementation of HAVA requirements. This :space is used for office space and serves as 

a training facility for election officials. Training includes, but is not limited to the 

operati6n and implementation of accessible voting machines and use of the statewide 

voter registration system. This facility is used to support activities focused on election 

improvement. 

House Bill 25, New Hampshire's 2003 Capital Budget, was enacted on July 8, 

2003. (The Legislature adopts a 2-year capital budget in odd-numbered years.) This 

called for spending $1 million in HAVA funds to create the HAVA Facility as part of a 

capital improvement to the Department of State's Archives' building. This 2003 bill also 

incorporated the allocation of $1,549,330 in non-HAVA state funds for other 

modifications to the Archives building, for a total project appropriation of $2,549,330. 

House Bill 25, the 2005 Capital Budget bill that became effective July 1, 2005, 

appropriated an additional $1,150,000 in non-HAVA state funds, raising non-HAVA 

state funding to $2,699,330 and the total project appropriation to $3,699;330. 
Mr. Thomas R. Wilkey 

Page3 

The HA VA Facility is reasonable because the cost does not exceed that which 

would be incurred by a prudent person under the circumstances prevailing at the time the 

decision was made to incur the cost. This real estate cost is ordinary and necessary for 

the operation of the Department of State and the performance of its HA VA 

respons,ibilities. 

The cost is reasonable based on an analysis of the alternative to lease comparable 

space from a commercial owner. The lease alternative c,s set forth below considers 20 

and 40-year lease horizons, without inflation adjustmens. 

We evaluated an alternative to constructing the HAVA Facility in which the State 

would expend HA VA funds on lease payments at market rates for equivalent space. 

Relying on the New Hampshire Department of Administrative Services' commercial 

market data and other sources, Class A space comparable to the HAYA Facility was 

offered in a range of $15.50 per square foot to $21.00 per square foot per annum. We 

calculated the average of this Class A range at a lease rate of $18.25 per square foot per 

annum. 

On a 20-year horizon, paying a market lease rate of $18.25 per square foot per 

annum and assuming no inflation, total costs would amount to $1,512,925. (Multiply 

$18.25 per square foot per annum X 4145 square feet X 20 years.) 

On a 40-year horizon, paying a market lease rate of $18.25 per square foot per 

annum and assuming no inflation, total costs would amount to $3,025,850. (Multiply 

$18.25 per square foot per annum X 4145 square feet X 40 years.) 

The State's comparable imputed lease costs for the HA VA Facility, calculated on 

the same basis (after building-related taxes, insurance and maintenance costs), are far 

lower than $18.25 per square foot per annum, depending on the term of the horizon. 

Based on a 20-year horizon, without inflation risk, the HA VA Facility's 

comparable imputed lease charge is $12.07 per square foot per annum. (Multiply 

$12.0628 per square foot per annum X 4145 square feet X 20 years= $1,000,006.) 

Based on a 40-year horizon, without inflation risk, the HAVA Facility's 

comparable imputed lease charge is $6.03 per square foot per annum. (Multiply $6.0314 

per square foot per annum X 4145 square feet X 40 years= $1,000,006.) 

We believe that using a 40-year horizon is the most appropriate method, given 

that HA VA requirements endure indefinitely and the Government Accounting Standards 

Board Statement No. 34 calls for depreciation of new buildings on a straight-line basis 

over 40 years. Imputing lease costs, using a 40-year horizon, without inflation risk, the 

HAVA Facility costs about one third of the market lease rate at the time HAVA staff 

occupied the HAVA Facility. 
Mr. Thomas R. Wilkey 

.Page 4 

HAVA funds do not pay for the cost of utilities and other maintenance services 

for the Facility. Over a 40-year period, these Election Fund savings amount to 

approximately $942,710, based on data on comparable :;ervices charged to other state 

agencies obtained from the New Hampshire Department of Administrative Services. 

The use of HAVA funds for this Facility constitJtes the most effective use of 

HAVA funds to achieve the goals described in the HAVA State Plan. The long term cost 

savings resulting from this investment satisfies the Election Assistance Commission goal 

identified in your letter dated March 18, 2009 '"to ensure that Federal funds are used 

efficiently and effectively ... " 

The HAVA Facility has been completed, a certificate of occupancy has been 

issued, and over 1014 election officials have been trained to date in 79 training sessions 

held at the HAVA Facility. The Secretary of State, the State's chief election official, has 

certified that New Hampshire has implemented the requirements of Title III of the Help 

America Vote Act. Hence, it is facially evident that the HA VA Facility has been an 

efficient and effective staging area for the achievement of HAVA goals. 

(e) The basis for allocating costs is as follows: 

The $1 million cost is allocable under Title I, Section 101. 

Thi;; HAVA Facility is specifically designated to support HAVA requirements. 

The Hi\VA Facility is used to support the performance goals in the State Plan and 

effectuate the activities set forth in section lOl(b)(l) of HAVA. See attached State Plan 

pages 39-41. 

If you have any questions, please contact me and I will be happy to supply 

additional information concerning the HAVA Facility. 

Sincerely yours, 

~~~ Assistant s:~:tary ~tate HAVA Coordinator 

cc: Edgardo Cortes 

Enclosure: State Plan, pages 39-41 
New Hampshire Secretary ofState 

State Plan 

Section 10: How Title I payments will be sp1ent 

Effect of Title I Payments 

If the State received any payment under title I, a description of how such payment will 

affect the activities proposed to be carried out under the plan, including thi~ amount of 

funds available for such activities. -- HAVA Section 254 (m) (10) 

Section 101. Payments to States for activities to improve administration of 

elections. 

New Hampshire is eligible for and has received $5 million under Section 101. These funds 

will be used for implementation and maintenance for activities tc meet the following 

requirements: 

301: Accessible voting machines, $1,210,000 

303: Statewide centralized database system 2,910,000 

254(3), 301, 302, 303: Voter education, election official training 290,000 

402: Administrative complaint procedure 280,000 

Physical accessibilily of polling places 20,000 

Program management 290,000 

Total 

Any activities carried out under the Plan will be aimed at improving t.1-ie administration of 

elections for Federal office, and the election process as a whole. Sub::equently,, all activities 

undertaken by the Div1sion with Title I monies will comply with the requirements under Title 

IIL 

Upon receipt of Title I monies, it is the intent of the Secretary of StatE to use the funds for one or 

more of the foilowin.g: 

A. Section 301: Improving, acquiring, leasing, modifying or replacing voting systems and 

technology and methods for casting and counting votes. Establishing voting system 

standards. 

9/30/2003 39 
New Hampshire Secretary nfStme 


Stale Plan 
 -------------------------------~~-" 

• 	 Establish management staff to plan, implement and manage the programs required for 


HAVA compliance. 


• 	 The Department of State will undertake studies and analysis and hire consultants as 


required to prepare a Request for Proposal for the purchase of voting systems accessible 


to the disabled for each polling place in the State andl integrated with existing voting 


systems. 


• 	 The State will induce vendors to develop test sites to permit 2valuation. 

• 	 Purchase accessible voting machines. 

• 	 Educate voters concerning voting procedures, voting rights, and voting technology. 

• 	 Train,election officials, poll workers, and election volunteers 

• 	 Develop improved training systems with the goals oJf training more election officials and 


poll workers close to the election. 


• 	 Establish voting system standards consistent with HAVA Section 301. 

B. Section 303: Planning, designing the statewide centraliized database system 

• 	 Conduct studies and analysis, hire consultants as required tc. prepare for Request for 


Proposal for statewide centralized database system. 


• 	 Establish management staff to plan, implement and manage ll:he programs required for 


HAVA compliance. 


• 	 Engage town and city clerk.s or supervisors of the checklist to enter and upload data as 


required for the new system. The process and personnel to be used for data entry will 


be pesigned to ensure the accuracy and reliability of the statewide database and will 


recognize the authority of the supervisors of the checklist to make all fina.l 


determinations as to entering or deleting any person from the checklist. 


• 	 Acquire and implement centralized database system.. 

• 	 Educate voters concerning voting procedures, voting rights, and voting technology. A 


preliminary investment is needed to increase voter ouh·each through voter education, 


public service announcements. Modifications of the Departrnent of State forms, web 


site, free-access system and training materials used by voters are necessary to comply 


with the Act. 


9/30/2003 40 
New Hampshire Secretary ofSrate 

--._ State Plan 

• 	 Develop improved training systems with the goals of training more election officials and 

poll workers close to the election about changes in election lcw, registration 

requirements, etc. 

• 	 Train election officials, poll workers, and election volunteers 

C. Section 402: Begin planning process and engage legal staff to establish administrative 

complaint procedures. 

• 	 Administrative rules will be drafted to implement a:n admir:istrative complaint 

procedure that is compliant with HAVA. 

• 	 The draft will be reviewed by the HAVA State Plan Committee. 

• 	 The rules will be submitted to the Joint Legislative Committee on Administrative Rules 

(JLCAR) for revision and approval. 

• 	 Upon receipt of JLCAR approval, the administrative rules 'IAdl be adopted and 

published. 

9/30/2003 41 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

	 


 


 

	 

	 

	 

	 


 

	 


 


 

	 

	 

	 

	 

Attachment E - Unreimbursed Assistance
 

Unreimbursed Assistance from other State Agencies 

Flowing from the location of the HAVA Facility Adjacent to 

State Archives and the Division of Vital Records 

Improvements to Election Administration Since 2000 

A. Support from the Department of Administrative Services, without expectation of 

reimbursement from (HAVA) Election Fund: 

a.	 Department of Administrative Services covers the cost of building 

insurance, maintenance, repairs, utilities, roads and grounds, 

housekeeping, and other expenses. Unlike private sector leases, real 

estate taxes are not assessed. 

B. Support from Division of Archives and Records, without expectation of
 

reimbursement from (HAVA) Election Fund:
 

a.	 Storage of boxes containing ballots. Fully allocated costs are estimated 

by Archives around $10 per box per annum. Periodic potential increase in 

boxes for early recounts due to MOVE Act. Boxes must be retained for 22 

months. 

b.	 Van, vehicles, staging area and parking spaces needed for HAVA and 

MOVE Act training throughout the state. These services require available 

staff to maintain logs, allocate vehicles, gas up and maintain the vehicles. 

c.	 Improvements in ballot Chain of Custody, an election administration 

improvement trend driven by the 2000 General Election and effects of 

HAVA. This renders the use of the Research Library at 71 S. Fruit St. to 

recount ballots. Proximity of secure storage in Archives vaults is useful for 

ballot security. 

d.	 Use of Archives Research Library (large room not funded by HAVA) for 

large meetings of election officials. The Secretary of State is able to clear 

the room and use it for HAVA meeting purposes, on short notice if 

necessary. The last meeting involved a group of 150 invited election 

officials. 

Page 1 of 2 
 

 

 

 

 

 

 

 

	 

	 

	 

	 

	 

	 

	 

	 

Attachment E - Unreimbursed Assistance 

e.	 Access to historical record of marked checklists supplied by cities and 

towns from general elections and presidential primaries. This is a critical 

resource in investigating the accuracy of registration, absentee voter, 

affidavits, and voter history records in the statewide voter registration 

system (HAVA Section 303) and following up on investigations. 

f.	 Access to necessary additional storage space and staging area for 

accessible voting system. 

C. Support from	 the Division of Vital Records, without expectation of 

reimbursement from (HAVA) Election Fund: 

a.	 Death information 

b.	 Supply, maintenance and upgrades of personal computers and PC 

software for all towns and cities, including Internet access to these towns 

(many of which required a great deal of effort to achieve this.) HAVA 

required PCs and Internet access to be in place, but HAVA funds were not 

used to purchase or maintain PCs at the town and cities that were used 

for the statewide voter registration system. 

Page 2 of 2 
Attachment F - NASS Resolution 

NASS 


-..:,1tlCln,1l /\.,~oci.1tinn 

,,, ~. rrt·lari•'" nl 5L1ft' 

NASS Resolution on Help America Vote Act of 2002 (HAVA) Grant and Payment Distinction 

Approved July 19, 2009 

WHEREAS, the Help America Vote Act of 2002 ("HA VA") established the Election Assistance 

Commission (EAC) to assist in the administration of federal elections and charged the EAC with 

distributing payments to states under its authorized funding programs (Pub. L. No. 107-252, 116 Stat. 

1666 (Oct. 29, 2002); 42 U.S.C. sections 15301-15545. See HAVA Sections 101, 251and261); and 

WHEREAS, the Help America Vote Act of 2002 ("HA VA") also charged the EAC with distributing 

grants to other entities under its authorized funding programs (See HAVA Sections 271 and 295); and 

WHEREAS, HAVA authorizes the EAC in making a grant or payment to audit or examine the recipient 

of such a grant or payment made under HAVA, and in so doing makes an express categorical distinction 

between "grant" and "payment" (See HAVA Section 902); and 

WHEREAS, in conducting audits of grants and payments, the EAC has no rule-making authority, and 

therefore, in performing its functions must act in accordance with the express statutory provisions of 

HAVA (See HAVA Section 209); and 

WHEREAS, in enacting HAVA, Congress expressly used the terms "payments" and "requirements 

payments" in Sections 101, 251, and 261 of the Act; and 

WHEREAS, Congress also used the terms "grants" and authorized the EAC to award "grants" in Sections 

271 and 295 of the Act; and 

WHEREAS, Congress does not interchange the use of the term "payments" and/or "requirements 

payments" in Section 101, 251, and 261, with the use of the term "grant" in Sections 271 and 295; and 

NOW THEREFORE BE IT RESOLVED that the National Association of Secretaries of State finds that: 

1. Under HAVA, a "payment" is not a "grant," and a "grant" is not a "payment;" and 

2. In effectuating its duties under HAVA, the EAC should create an accurate administrative record 

by using the term "payment" when the federal law means "payment", and it should use the term 

"grant" when the federal law means "grant." 

Adopted the 19th day ofJuly 2009 

in Minneapolis, MN 

EXPIRES: Summer 2014 

Hall of States, 444 N. Capitol Street, N.W., Suite 401, Washington, DC 20001 

(202) 624-3525 Phone (202) 624.3527 Fax www.nass.org 
Attachment F - NASS Resolution 

NASS 


National Association 

of Secretaries of State 

NASS Resolution on Help America Vote Act of 2002 (HAVA) Grant and Payment Distinction 

Approved July 2009; ReathorizedJuly 2014 

WHEREAS, the Help America Vote Act of 2002 ("HA VA") established the Election Assistance 

Commission (EAC) to assist in the administration of federal elections and charged the EAC with 

distributing payments to states under its authorized funding programs (Pub. L. No. 107-252, 116 Stat. 

1666 (Oct. 29, 2002); 42 U.S.C. sections 15301-15545. See HAVA Sections 101, 251and261); and 

WHEREAS, the Help America Vote Act of 2002 ("HA VA") also charged the EAC with distributing 

grants to other entities under its authorized funding programs (See HAVA Sections 271 and 295); and 

WHEREAS, HAVA authorizes the EAC in making a grant or payment to audit or examine the recipient 

of such a grant or payment made under HAVA, and in so doing makes an express categorical distinction 

between "grant" and "payment" (See HAVA Section 902); and 

WHEREAS, in conducting audits of grants and payments, the EAC has no rule-making authority, and 

therefore, in performing its functions must act in accordance with the express statutory provisions of 

HAVA (See HAVA Section 209); and 

WHEREAS, in enacting HAVA, Congress expressly used the terms "payments" and "requirements 

payments" in Sections 101, 251, and 261 of the Act; and 

WHEREAS, Congress also used the terms "grants" and authorized the EAC to award "grants" in Sections 

271 and 295 of the Act; and 

WHEREAS, Congress does not interchange the use of the term "payments" and/or "requirements 

payments" in Section 101, 251, and 261, with the use of the term "grant" in Sections 271 and 295; and 

NOW THEREFORE BE IT RESOLVED that the National Association of Secretaries of State finds that: 

1. Under HAVA, a "payment" is not a "grant," and a "grant" is not a "payment;" and 

2. In effectuating its duties under HAVA, the EAC should create an accurate administrative record 

by using the term "payment" when the federal law means "payment", and it should use the term 

"grant" when the federal law means "grant." 

Adopted the 16th day ofJuly 2014 

in Baltimore, MD 

EXPIRES: Summer 2019 

Hall of tates, 444 N. Capitol Street, N.W., Suite 401, Washington, DC 20001 

(202) 624-3525 Phone (202) 624.3527 Fax www.nass.org 
 

 

 

 

 

Attachment G - Administrative Procedure Act 

Federal Administrative Procedure Act 

From U.S. Government Printing Office 

https://www.gpo.gov/fdsys/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partI-chap5-

subchapII-sec553.pdf 

Title 5 U.S.C. §551, 552 & 553 

Page 1 of 4 

 


 

§552. Public U1forn1ntio11; nge11cy rltles, opi1Uo1is, 

orders, records, and proceedings 

(a) Each agency shall make available to the 

public lnfonnatlon as follows: 

(1) Each agency shall separately state and cur­ rently publtsb tn the Federal Reb'1ster for the 

guidance of the publlc- (A) descriptions of Its central and fleld orga­ nlzatlon and the established places at wblch, the employees (and to the case of a unlformed 

service, the members) from whom, and the 

methods whereby, the publlc may obtain Infor­ mation, make submlttals 01· requests, or ob­ tain declslons: 

(B) statements of the general course and 

method by whlch Its functions are channeled 

and determined, lnclndl ng the nature and re­ quirements of all formal and lnformal procedures avallable: 

(C) rules of procedure, descriptions of forms 

avallable or the places at wblch forms may be 

obtained, and tnstructlons as to the scope and 

contents of all papers, reports, or examina­ tions: 

(D) substantive rules of general appllcablltty 

adopt.ed as authorlzed by Jaw, and statements 

of general poltcy or Interpretations of general 

appltcablltty formulated and adopted by the 

agency: and 

-(E) each amendment, revts1on, or repeal of 

the foregoing. ~~~~~~~~~~~-

Except to the extent that a person 11as actual 

and timely notice oft.he terms thereof. a person 

may not In any manner be required to resort to. or be adversely affected by. a matter required to 

be publtshed ln the Federal Register a nd not so 

publtshed. For t.he purpose of this paragraph. 

ma tter reasonably avallable co the class of per­ sons affected thereby ls deemed pubHshed 111 the 

Federal Register when Incor porated by reference 

therein wtth the a pproval of the Director of the 

Federal Register. (2) Each agency, tn accorclance with publtshed 

rules, shall make avallable for publlc lnspectton 

and copylngAttachment G - Administrative Procedure Act
 

Page 2 of 4
 

 


 

§552 TITL E 5-GOVERNMENT ORG 

(A) nnal optn1ons, Including concurring and 

dlssentlng opinions, as well as orders, made 1n 

the adjudlcatlon of cases: 

(B) those statements of pol!cy and interpre­ tations which have been adopted by the agen­ cy and are not published In the Federal R.eg­ lster; 

(C) admln1stratlve staff manuals and 1nstructlons to staff tha t affect a member of the / 

public: 

(D) copies of all records, regardless of form 

or format, which have been released to any 

person under paragraph (3) and whJch, because 

of the nature of their subject matter, the 

agency detennJnes have become or a re likely 

to become the subject of subsequent requests 

for substantially the same records; and 

(E) a general Index of the records referred to 

under subparagraph ( D); 

§ M 3. Rule making 

(a) Th1s section applies, according to the pro­ vtslons thereof, except to the extent that there 

ts lnvolved-

(1) a mllltary or foreign affairs function of 

the UnJted States; or 

(2) a matter relat1ng to agency management 

or personnel or to pub Ile property, loans, 

grants, benents, or contracts. 

(h) General notice of proposed rule making / 

shall be publlshed tn the Federal Register, un- less persons subject thereto are named and ei- ther personally served or otherwtse have actual 

notice thereof tn accordance W1th Jaw. The no- / 

tlce shall tnclude-

(1) a statement of the tune, place, and na­ ture of public rule making proceedings: 

(2) reference to the legal authority under / 

wh1ch the rn1e ts proposed: and 

(3) either the terms or subst.ance of the pro­ posed rule or a. description of the subjects and 

1ssues Involved. 

Attachment G - Administrative Procedure Act
 

Page 3 of 4
 

 


 

Except when notice or heartng ts required by 

statute. tb1s subsect1on does not apply-

(A) to Interpretative rules, general statements of policy. or rules of agency organlzatlon, procedure. or practice: or 

(B) wben the agency for good cause finds 

{and incorporates the flnding and a biief stat.ement of reasons tberefor 1n the rules 1ssued) 

that notice and public procedure thereon are 

1mpract.1cable. unnecessary, or contrary to the / 

pubHc lnterest. 

(c) After notice required by tb1s section. t he 

agency shall give interested persons an opport unity to part1c1pate ln tbe rule mah'1ng through 

subm1ss1on of written data, \flews, or arguments 

with or without; opportunlty for oral presentation. After cons1derat1on of the relevant matter presented, t:Jle agency shall incorporate ln 

the rules adopted a concise general statement of 

their basts and purpose. When rules are required 

by statute to be made on the r ecord after oppor­ tunity for an agency heartng. sections 556 and 

557 of this t1 tle apply lnstead of this subsection . 

(d) The r equired publication or service of a 

substantive rule shall be made not less than 30 

da.ys before its effective date. except- \ 

(1) a substantive rule which gr ants or recognizes an exemption or relieves a restriction: 

(2) interpretative rules and statements of 

policy; or 

(3) as otherwise provided by the agency for 

good cause found and published with the rule. 

(e) Each agency shall give an interested person 

the right to petition for the issuance , amend­ ment, or repeal of a rule. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383.) 

A.M.Exor..t:EN'rs 

1995---Subsec. (j). Pub. L. 104-66 amended subsec. (j) 

generally. Pctor t;o amendment, subsec. (j) read as fol­ lows: ·-Each agency-subject to the requirements of t;hls 

section shall annually report. to Congress regarding its 

compliance with such requirements. including a t.abulation of the total number of agency meec;ings open to 

the public. the wtal muuber of meetings closed to the 

public. the reasons for closing such meeting-s, and a description of any litigation brought agalns the agency 

under th1s section, including any costs assessed against 

the agency ln such llt.lgatlon (whether or not. paid by 

the agency)." 

Attachment G - Administrative Procedure Act
 

Page 4 of 4
 
 

 


 


 


 


 

Attachment H - Sunshine Act 

Government in the Sunshine Act
 

From General Services Administration Portal
 

https://www.gsa.gov/portal/getMediaData?mediaId=217779
 

Title 5 U.S.C. §552
 

Page 1 of 2 
 

 


 


 

Attachment H - Sunshine Act
 

Page 2 of 2
 

 


 

APPENDIX A-2 

Response of the 

U.S. Election Assistance Commission
 

to the Draft Report
 
EAC RESPONSE TO THE DRAFT AUDIT: 

DIG Performance Audit Report on the Administration ofPayments 

Received Under the Help America Vote Act by the New Hampshire 

Secretary ofState for the Period May 3, 2003 through September 

30, 2015. 

July 20, 2017 

MEMORANDUM 

To: Patricia Layfield, Inspector General ('\ 

From: Brian Newby, Executive Director ~~ 

Subject: Draft Performance Audit Report- "Administration of Payments Received 

under the Help America Vote Act by the New Hampshire Secretary of 

State 

Thank you for this opportunity to review and respond to the draft audit report for the 

New Hampshire Secretary ofState. 

The Election Assistance Commission (EAC) appreciates the auditor's detailed findings 

and recommendations outlined in the draft audit report and will work with the 

Secretary's Office to ensure appropriate corrective actions are taken in a timely and 

complete manner. 
APPENDIX B 

Audit Methodology 
 

 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 


 

Appendix B 

AUDIT METHODOLOGY 

Our audit methodology included: 

•	 Assessing audit risk and significance within the context of the audit objectives. 

•	 Obtaining an understanding of internal control that is significant to the administration of 

the HAVA funds and of relevant information systems controls as applicable. 

•	 Identifying sources of evidence and the amount and type of evidence required. 

•	 Determining whether other auditors have conducted, or are conducting, audits of the 

program that could be relevant to the audit objectives. 

To implement our audit methodology, below are some of the audit procedures we performed. 

•	 Interviewed appropriate Office employees about the organization and operations of the 

HAVA program. 

•	 Reviewed prior single audit reports and other reviews related to the State’s financial 

management systems and the HAVA program for the period under review. 

•	 Reviewed policies, procedures and regulations for the Office management and accounting 

systems as they relate to the administration of the HAVA program. 

•	 Analyzed the inventory lists of equipment purchased with HAVA funds. 

•	 Tested major purchases and the supporting documentation. 

•	 Tested randomly sampled payments made with HAVA funds. 

•	 Evaluated compliance with the requirements for accumulating financial information 

reported to the Commission on the financial status reports and progress reports, accounting 

for property, purchasing HAVA related goods and services, and accounting for salaries. 

•	 Verified the establishment and maintenance of an election fund. 

•	 Verified the State expenditures met the Maintenance of Expenditures requirement 

•	 Observed the physical security/safeguards of selected equipment purchased with HAVA 

funds and ensure compliance with federal regulation. 

•	 Verified that the matching requirement was timely met and matching expenditures met the 

prescribed criteria and allowability requirements of HAVA. 

•	 Verified program income was properly accounted for and not remitted to the State’s 

general fund. 

65
 
APPENDIX C 

Monetary Impact 
 


 

Appendix C 

MONETARY IMPACT AS OF SEPTEMBER 30, 2015 

Additional 

Questioned Funds for 

Description Costs Program 

Unapproved Capital Expenditures $1,000,000 $ ­

Unsupported Payroll Costs 2,446 ­

Total $1,002,446 $ ­

66