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 of all members present 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 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 ade 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 action. In the case of a finding of violation by a former executive branch official, the committee may issue a censure. In the case of a finding of violation by a current executive branch official, the committee may issue a censure or 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 action taken 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. Such subpoena powers may be exercised for the committee by the chairperson or legal counsel to the committee. The fees for witnesses shall be borne by the committee or the party requesting the subpoena.
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.
Source. 2006, 21:3, eff. June 2, 2006. 2015, 82:3, 4, eff. Aug. 1, 2015. 2016, 57:11, eff. July 4, 2016. 2019, 346:150, eff. July 1, 2019.