At its meeting on July 16, 1993, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 93-076 containing proposed rules of the Adult Parole Board (Board). The Board responded by letter dated August 11, 1993.

At its meeting on December 17, 1993, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 93-076 The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:3-e, VI:

Due to the number of bases for objection, some of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee's staff. Copies of the Board's rules can be obtained from the Board at NH State Prison, Post Office Box 14, Concord, NH 03302-2569. Copies can also be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at a charge of $0.20 per page.

The following summarizes the bases upon which the final objection has been entered:

1. Uniform System of Drafting and Numbering

The Committee objected that Par 100 through Par 500 are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that the rules are, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating RSA 541-A:3-a, VIII as discussed below.

Pursuant to RSA 541-A:3-a, VIII, the agency must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in Ls-A 400 of the Rulemaking Manual. The Committee had made a preliminary objection that the rules were contrary to legislative intent by the violation of RSA 541-A:3-a, VIII and contrary to the public interest by not being clear and understandable and capable of uniform enforcement. The Committee recommended that the rules be amended generally so that, for example, the rules use "may" and "shall" properly; use proper capitalization; use proper numbering for rules; provide criteria and procedure for discretionary decision-making; define words or phrases in a manner consistent with everyday meanings; and include all procedural rules in Par 200.

The Board did not amend the rules containing these problems in response to the objection. Therefore the Committee made a final objection, on the same bases as for the preliminary objection, to the rules as noted in the annotations which the Committee determined do not conform to the uniform system of numbering and drafting.

2. Par 102.03

The Committee objected that Par 102.03 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that Par 102.03 is, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, as discussed below.

This section governs petitions for rulemaking by the Board. It requires that all petitions for rulemaking be in writing and submitted to the Board's Executive Assistant. It further states that, "all properly submitted petitions shall be considered" at the next Board meeting. The Committee determined that there are neither criteria nor procedure for determining whether a petition has been properly submitted, and a citizen could not know from reading this rule all that is required.

3. Par 103.03(c)

The Committee objected that Par 103.03(c) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that Par 103.03(c) is, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3. Finally, the Committee objected that Par 103.03(c) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, as discussed below.

The Board stated in Par 103.02 that parole records will be kept confidential, and are exempt from the requirements relative to public access pursuant to RSA 91-A. On this subject, Par 103.03 indicates that there is certain information that will be given out on specific request. However, paragraph (c) states that "the board may, in its discretion, provide additional information that will further the rehabilitation of the parolee or increase public safety." In addition to this violating Ls-A 402.09(c) and Ls-A 402.17 for the use of "may" and "in its discretion," it was unclear to the Committee whether the Board has authority, regardless of the reason, to release additional information other than to law enforcement agencies without obtaining authorization from the inmate.

4. Par 200

The Committee objected that Par 200 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that Par 200 is, pursuant to Committee Rule 402.02(a) and Committee Rule 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:2, I(b), and by allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively, as discussed below.

This chapter concerns how parole and parole revocation hearings are conducted. Many aspects of the hearing process are not addressed by these rules, even though in the Committee's view those aspects are being enforced every time the Board conducts a hearing. For example, the rules do not indicate whether an inmate can have a representative at such hearings, how motions are handled, who has the burden of proof or what the standard of proof is, who presents their case first, or whether subpoenas are available to the parties. The Committee determined that agencies, including the Board, are required by RSA 541-A:2, I(b), to have rules that set forth the agency's practice and procedure and which describe the "nature and requirement of all formal and informal procedures available." [Emphasis added.]

5. Par 202.05

The Committee objected that Par 202.05 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, as discussed below.

This section provides that parole hearings will not be open to the public. It also provides that "a senior custodial officer shall be assigned by the prison and shall be present to provide security." The Committee noted that the Board is an autonomous agency separate and distinct from the Department of Corrections. The Department could agree to provide security if requested or it may even be required to provide security pursuant to its own statutes, but in the Committee's view RSA 651-A does not appear to grant authority to the Board to command the Department to provide such security. Therefore, the Committee objected that the rule is beyond the authority of the Board.

6. Par 202.06

The Committee objected that Par 202.06 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that Par 202.06 is, pursuant to Committee Rule 402.02(a) and Committee Rule 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:3-a, VIII, and RSA 541-A:18, IV, and by allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively, as discussed below.

This section governs witnesses at parole hearings. Paragraph (d) states that "the board shall, if the witness so requests, permit any witness to present his or her views concerning the case out of the presence of the inmate under consideration, and such testimony may be excluded from the recording of the hearing." As has been discussed above, the use of the word "may" violates Ls-A 402.09(c), Ls-A 402.17, and RSA 541-A:3-a, VIII. The Committee determined that the most significant problem with this provision is that RSA 541-A:16, VI, requires that the entirety of all oral proceedings must be recorded verbatim. The Committee also determined that it was unclear as to whether the inmate will have the opportunity to cross-examine such witnesses, as is required by RSA 541-A:18, IV.

7. Par 302.01(b)

The Committee objected that Par 302.01(b) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that Par 302.01(b) is, pursuant to Committee Rule 402.01(c) and Committee Rule 402.02(b)(2), contrary to legislative intent by violating the overall purpose of RSA 651-A as stated in RSA 651-A:1, and by allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively, as discussed below.

This section governs the reasons for denial of parole. Paragraph (b) provides that one reason parole could be denied is if "release at this time and/or under the present circumstances could have an adverse effect on institutional discipline." It was unclear to the Committee what is meant by "institutional discipline" or how it is determined that it could be adversely affected by the granting of parole to an inmate. Additionally, it was unclear to the Committee what authority the Board has to consider "institutional discipline" as a factor in deciding whether to grant or deny parole, as that issue appears to be one for which the Department of Corrections, a separate and autonomous agency, has control.

As paragraph (b) has been drafted, it seemed to the Committee that a model prisoner deserving of parole in every way could be denied parole because of the effect that granting parole would have upon "institutional discipline." This does not appear to the Committee to be consistent with the purpose of parole as stated in RSA 651-A. In fact, RSA 651-A:1 states in pertinent part that it is legislative intent that the parole system "provide a means of supervising and rehabilitating offenders without continued incarceration and a means by which prisoners can be aided in the transition from prison to society." In the Committee's view, this statement of intent supports the conclusion that the parole system is oriented to the individual, and not the institution.

8. Par 401.02(j)

The Committee objected that Par 401.02(j) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively. The Committee also objected that Par 401.02(j) is, pursuant to Committee Rule 402.02(a) and Committee Rule 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:12, III(e), and RSA 541-A:18, IV, and by allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively. Finally, the Committee objected that Par 401.02(j) is beyond the authority of the Board, as discussed below.

This part governs conditions and restrictions that may be placed upon parolees. Paragraph (j) provides that parolees shall not associate "with criminal companions or such other individuals as may be ordered by the court or parole board, or directed by the parole officer, unless specifically authorized by the parole officer." Again, the Committee determined that the use of the word "may" to reserve discretion for the Board violates Ls-A 402.09(c), Ls-A 402.17, and RSA 541-A:3-a, VIII.

The Committee also determined that, as drafted, the rule grants the parole officer the authority to overrule a court order or Board order. The Board appears to have authority to allow a parole officer to overrule a Board order, but as drafted, this provision amounts to a delegation of rulemaking authority to the parole officer, in violation of RSA 541-A:12, III(e). The Committee determined that it is a violation of that statute because the Board has not specified the criteria to be used to determine whether to overrule the Board or not, leaving it to the parole officer to do so. However, the Committee concluded that the Board does not have authority to overrule, directly or indirectly, an order of any court.

9. Par 401.05

The Committee objected that Par 401.05 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:15, II, as discussed below.

This section governs "field" modifications of the conditions of parole for a specific parolee by parole officers. The section gives specific authority to parole officers to modify such conditions, and indicates that such modifications will be in effect unless overruled by the Board. Thus, a parole officer can modify a parolee's conditions of parole without Board involvement and the parolee would be required to comply with them unless and until the Board overrules them.

Pursuant to RSA 541-A:1, VI, a "license" is defined as "the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law." [Emphasis added.] It is clear to the Committee that an inmate cannot legally reside outside a correctional institution without having received approval or permission as required by law. Additionally, pursuant to RSA 541-A:15, II, "an agency may not revoke, suspend, modify annul, withdraw or amend a license unless the agency first gives notice to the licensee of the facts or conduct upon which the agency intends to base its objection, and gives the licensee an opportunity, through an adjudicative proceeding, to show compliance with all lawful requirements for the retention of the license." Thus, the Committee concluded that parole cannot be modified until after the parolee has had notice and an opportunity for a hearing.