2006 SESSION

06-2835

05/01

SENATE BILL 375-FN

COMMITTEE: Internal Affairs

ANALYSIS

This bill:

I. Defines “executive branch official” to include elected members of the executive branch, executive branch employees, and volunteers.

II. Defines and regulates the misuse of position and the acceptance of gifts and campaign contributions by executive branch officials.

III. Establishes ethical standards for volunteer service.

IV. Establishes an executive branch ethics committee with jurisdiction over executive branch officials, other than classified employees.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

06-2835

05/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Paragraph; Code of Ethics; Definition of Executive Branch Official Added. Amend RSA 21-G:21 by inserting after paragraph II the following new paragraph:

II-a. “Executive branch official” means a member of the executive branch elected by the public or the general court, or a commissioned, unclassified, nonclassified or classified executive branch employee. The term also includes volunteers serving in an official capacity in the executive branch.

2 Code of Ethics; References to Public Employees Deleted. Amend RSA 21-G:22 through RSA 21-G-27 to read as follows:

21-G:22 Conflict of Interest. [Public employees and public] Executive branch officials shall avoid conflicts of interest. [Public employees and public] Executive branch officials shall not participate in any matter in which they, or their spouse or dependents, have a private interest which may directly or indirectly affect or influence the performance of their duties.

21-G:23 Misuse of Position. No [public official and no public employee] executive branch official shall:

I. Disclose or use confidential or privileged information acquired in the performance of his or her duties for the state for personal benefit or for financial gain. [Public officials and public employees shall not]

II. Use [their positions] his or her position with the [government] state to secure privileges or advantages for [themselves] himself or herself, which are not generally available to governmental employees, or to secure governmental privileges or advantages for others.

21-G:24 Acceptance of Campaign Contributions. [A public official or a public employee] An executive branch official who is a candidate for an elective office that is not subject to the reporting requirements of RSA 664 and who accepts a [financial contribution or other form of] political contribution from [an] any person or entity which is or is likely to become subject to that [public official’s or public employee’s] executive branch official’s duties shall make a disclosure of such contributions to the secretary of state within 5 days of receipt of such contributions. The disclosure shall be in writing and on such form as the secretary of state shall prescribe.

21-G:25 Acceptance [and Giving] of Gifts Prohibited. [Any public employee, public official, and any public employee’s or public official’s spouse or dependent who gives, solicits, accepts, or agrees] No executive branch official shall solicit, accept, or agree to accept a gift from a person who is subject to or likely to become subject to or interested in any matter or action pending before or contemplated by the [public employee or] executive branch official or by the governmental body with which that [employee or] official is affiliated [shall disclose the gift in the statement of financial disclosure filed under RSA 21-G:28]. Nothing in this section shall be construed to prohibit gifts made to the state of New Hampshire and accepted in accordance with the law.

21-G:25-a Ethical Standards for Volunteer Service. Volunteer public service in the executive branch is an honorable tradition which should be encouraged. Accordingly, such service is not to be used by volunteers or their business associates to obtain, directly or indirectly, inequitable opportunities for non-public personal communications with executive branch decision makers to influence those executive branch decision makers in the performance of their duties.

21-G:26 Employment Restrictions. For 6 months after leaving office or employment with the state, no [public] executive branch official shall appear as a lobbyist:

I. To promote or oppose directly any specific legislation pending or proposed before the general court [on behalf of]; or

II. To directly promote or oppose action or inaction on any matter, contract, license, permit, or administrative rule pending before the executive branch or with regard to any matter over which that executive branch official had personal and direct responsibility while in state government.

21-G:27 Supplemental State Agency Ethical Codes. In addition to this code, each agency may promulgate a supplemental ethics code to address issues specific to that agency. In the event of a conflict[, the provisions of this code shall supersede the agency code] with the provisions of this code, a stricter provision of an agency code shall govern. To the extent that this code or an ethics code adopted by an agency shall apply to classified employees, this code, or an agency code, shall be interpreted to be consistent with the provisions of the classified employees’ collective bargaining agreement and the state personnel rules.

3 New Sections; Executive Branch Ethics Committee Established. RSA 21-G:29 is repealed and reenacted to read as follows:

21-G:29 Executive Branch Ethics Committee Established; Jurisdiction; Membership.

I. There is hereby established an executive branch ethics committee to issue guidelines, interpretive rulings, and advisory opinions relative to standards for ethical conduct in the executive branch and to resolve, through procedures established under RSA 21-G:32, issues, questions, or complaints involving executive branch officials who are not classified employees.

II. The jurisdiction of the committee shall consist of matters arising under the executive branch code of ethics, RSA 21-G:21-27, RSA 15-A, RSA 15-B, and rules or guidelines adopted thereunder, as applied to executive branch officials who are not classified employees.

III. The committee shall consist of 7 members, nominated in the following manner:

(a) Two members, one from each political party as defined in RSA 652:11, jointly nominated by the secretary of state and the state treasurer.

(b) Five members, 2 from each political party as defined in RSA 652:11, and one who shall have no declared party affiliation, nominated by the governor.

IV. All nominations under paragraph III shall be confirmed by the governor and executive council.

V. Persons appointed to the committee shall be qualified by excellent personal reputation and by education or experience in public service, in resolving ethical issues facing persons in public service, or in the law. At least one committee member shall be an attorney who is a member of the New Hampshire bar. No executive branch official shall serve as a committee member, and no person who has registered as a lobbyist under RSA 15:1 shall serve as a committee member, or for 6 months following the expiration of such registration.

VI. Committee members shall serve terms of 3 years and until their successors are appointed and qualified. However, initially, the secretary of state and treasurer jointly shall nominate one member for a one-year term and one member for a 2-year term; and the governor shall nominate one member for a one-year term, 2 members for two-year terms, and 2 members for 3-year terms. Initial appointments to the committee shall be made no later than 90 days after the effective date of this section. Vacancies shall be filled for the remainder of any unexpired term. Following their appointment, members may not hold or campaign for elective office, serve as an officer of any political party or political committee, permit their names to be used in support of or in opposition to any candidate or proposition, participate in any way in any election campaign, make a contribution as defined in RSA 664:2 to any candidate for office or political committee, or act as or assist a lobbyist required to be registered under RSA 15:1.

VII. The governor shall designate one of the governor’s nominees as chair, who shall convene the first meeting, which shall take place no later than 30 days after a majority of the membership has been appointed. The members shall elect by majority vote a vice-chair and secretary from the remaining members.

VIII. Committee members shall receive no compensation, except that committee members shall receive mileage at the state employee rate.

21-G:30 Duties.

I. The committee shall be authorized to:

(a) Issue guidelines consistent with the executive branch code of ethics, RSA 21-G:21-27, RSA 15-A, and RSA 15-B, relative to proper and appropriate conduct for individuals relating to the performance of their duties as executive branch officials. Such guidelines shall be consistent with statute.

(b) Issue interpretative rulings explaining and clarifying any law, guideline, rule, or regulation within the jurisdiction of the committee.

(c) Render an advisory opinion, in writing within a reasonable time, in response to a written request by a person subject to any law, guideline, rule, or regulation concerning the application of any law, guideline, rule, or regulation within the committee’s jurisdiction to a specific factual situation pertinent to the conduct or proposed conduct of the person seeking the advisory opinion. Any advisory opinion concerning any person subject to the provisions of this subdivision who acted in reliance thereon, shall be binding upon the committee, and it shall be an absolute defense in any complaint brought under this subdivision that the person complained against acted in reliance upon such advisory opinion. The name of the person seeking an advisory opinion and any information in the opinion that would identify such person shall be non-public. A redacted version of the advisory opinion shall be public.

(d) Receive sworn complaints, investigate allegations of violations of this subdivision or guidelines adopted thereunder by executive branch officials and make appropriate findings of fact and conclusions with respect to such conduct.

(e) Investigate any unauthorized disclosure of information by any committee member or assistant and report to the appropriate authority any allegation which it finds to be substantiated.

II. All actions of the committee shall require an affirmative vote of 4 or more members of the committee before becoming effective, except that a vote to summarily dismiss a complaint shall be unanimous, and a vote to dismiss a complaint after only an internal review and no investigation shall be by an affirmative vote of no less than 5 members of the committee and a vote pursuant to RSA 21-G:31, VII shall require only a majority of the members present and voting. The committee shall request to meet with the legislative ethics committee established under RSA 14-B at least twice yearly to facilitate uniformity in the interpretation of statutory provisions.

III. The committee shall provide the legislative ethics committee with copies of all publicly issued guidelines, procedures, decisions, or opinions.

21-G:31 Complaints; Procedure.

I. Each complaint shall be submitted in writing and signed under oath by the complainant. The sworn complaint shall be filed confidentially with the committee and shall contain the name and address of the complainant. Before any other action is taken by the committee, the executive branch official complained against shall be furnished with a copy of the complaint and a copy shall be sent to each member of the committee for review. The committee may initiate a complaint on its own motion against any individual the committee has reason to believe has violated any law, guideline, rule, or regulation within the committee’s jurisdiction. The committee shall promptly examine each sworn complaint and:

(a) Upon first examination, if by a unanimous vote it determines that a complaint is frivolous, scurrilous, retaliatory in nature, or plainly not within the committee’s jurisdiction, the committee may summarily discharge the complaint without further meeting or proceeding. The committee shall notify the respondent and complainant in writing of its action.

(b) For any complaint not summarily discharged, the committee shall conduct an initial review to ascertain whether the committee has jurisdiction to consider the complaint or whether the complaint is without merit or is unfounded. If the committee concludes by a recorded affirmative vote of no less than 5 members of the committee that the alleged conduct is not within the committee’s jurisdiction, is without merit, or is unfounded, the committee shall dismiss the complaint and shall report such conclusion to the complainant and to the executive branch official, with an explanation of the basis of such determination.

II. If the committee, by recorded vote, concludes that the complaint is within its jurisdiction and may have merit, the committee may proceed to conduct a preliminary investigation. Upon completion of its preliminary investigation, the committee shall conclude by recorded vote that:

(a) No violation occurred and no further action is appropriate;

(b) The violation is inadvertent, technical, or of a de minimis nature and shall be addressed by informal methods; or

(c) There are reasonable grounds to believe a violation occurred and formal proceedings shall be instituted to inquire further into the complaint. In that event, the committee shall issue a formal statement of charges and proceed to a hearing on the complaint.

III. Upon completion of the hearing, the committee shall conclude by recorded vote that:

(a) No violation occurred and no further action is appropriate;

(b) No action is appropriate because there is not clear and convincing evidence that a violation occurred;

(c) Based upon clear and convincing evidence, a violation occurred, but such violation does not justify formal disciplinary action and shall be resolved by informal methods; or

(d) Based upon clear and convincing evidence, a violation occurred, and the violation was of a serious nature so as to warrant formal disciplinary action. In the case of a finding of violation by a executive branch official, the committee may recommend disciplinary action by the appropriate body, including but not limited to a recommendation for disciplinary action by the executive branch official’s supervisor, removal from office under RSA 4:1, or, in the case of the governor, executive council member, or other officer of the state, impeachment or other appropriate action pursuant to part II, article 38 of the New Hampshire constitution. In addition to any recommendation for disciplinary action under this subparagraph, the committee may refer the case to the department of justice for criminal prosecution. In the event that conduct may constitute both a criminal act and misconduct subject to the jurisdiction of the committee, the committee may on its own motion or by motion of the attorney general suspend its investigation or a pending hearing for the time period reasonably necessary to avoid compromising a criminal prosecution.

IV. Any person who knowingly or willfully swears falsely to a sworn complaint does so under penalty of perjury, and the committee may refer any such case to the department of justice for prosecution.

V. Except as otherwise provided in this paragraph and notwithstanding any other provision of law, all proceedings, information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the committee in the course of its work, shall be confidential. The committee shall first examine any sworn complaint and shall conduct its initial review and preliminary investigation of complaints in a confidential manner, unless otherwise requested by the executive branch official complained against. The committee shall conduct formal proceedings, other than its deliberations, in public session. The committee’s deliberations on complaints shall be conducted in nonpublic session. Upon completion of the preliminary investigation conducted under paragraph II or at the conclusion of formal proceedings under paragraph III, the committee shall make available for public inspection all records, other than its work product and internal memoranda relating to the complaint.

VI. In proceedings under this subdivision, the committee shall have the power to issue subpoenas and administer oaths.

VII. Any member of the committee who is directly or indirectly involved in any complaint before the committee or who otherwise has personal knowledge of facts material to the determination of the complaint shall not participate in any proceedings regarding the complaint. In the event that recusals under this paragraph reduce the number of participating members to fewer than 4, the remaining participating members shall designate an alternate or alternates sufficient to increase the committee to 4 members, to serve on the committee for that case only.

21-G:32 Rules; Procedures and Standards. The committee shall adopt, publish, and make available to the public rules governing its procedures, including provisions for disqualification of members for conflict of interest and provisions for the committee to discipline its members for breach of committee procedures, as well as guidelines referred to in RSA 21-G:30, I, consistent with the procedures set forth in RSA 541-A.

21-G:33 Committee Administration and Staff. The committee shall be administratively attached to the department of justice, which shall provide appropriate administrative and investigative staff and legal counsel in support of the committee’s activities, at the committee’s request. Files and records of the committee shall be protected against access other than by members of the committee and other persons specifically authorized by the committee.

21-G:34 Penalty.

I. Any person who knowingly or willfully violates RSA 21-G:21-27 or makes unauthorized disclosure of confidential matters or materials contrary to RSA 21-G:31, or interferes with or obstructs lawful activities of the committee, shall be guilty of a misdemeanor and may be subject to disciplinary action as provided in RSA 21-G:31, III(d) and other applicable law.

II. In the case of any person convicted under this section, the court may order restitution.

21-G:35 Severability. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

4 Executive Order Superseded. The provisions of this act and RSA 21-G:21-27 supersede and replace the provisions of Executive Order Number 98-1, dated May 19, 1998.

5 Repeal. The following are repealed:

I. RSA 21-G:21, IV, relative to the definition of public employee.

II. RSA 21-G:21, V, relative to the definition of public official.

6 Effective Date. This act shall take effect June 2, 2006.

LBAO

06-2835

Revised 2/6/06

SB 375 FISCAL NOTE

FISCAL IMPACT:

METHODOLOGY:

• SB375 at GenCourtMobile

Bill Text Revisions

SB375 Revision: 10372 Date: Jan. 21, 2010, midnight

Docket

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