CHAPTER Eth 100 ORGANIZATION
PART Eth 101
PURPOSE AND SCOPE
Eth
101.01 Purpose.
(a) The purpose of the rules of the committee is
to implement the provisions of RSA 21-G:29 – 35 and establish a process for
resolving issues should questions arise regarding past or future conduct.
(b) The purpose of this chapter is to set forth
definitions to be used throughout this title, to describe the organization,
composition, and functions of the executive branch ethics committee, and how
public information in the committee’s possession can be accessed.
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Eth
101.02 Scope.
(a) The rules of this committee shall apply to
every state executive branch official, as defined in RSA 21-G:21, II-a and Eth
102.06, whether paid employee or volunteer, who is not a classified employee,
and any former executive branch official against whom a complaint was filed
within 180 days of the official terminating his or her position.
(b) The rules of this chapter shall apply to the
committee and any person who wishes to obtain non-confidential information or
inspect or copy public documents in the possession of the committee.
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PART Eth 102 DEFINITIONS
Eth
102.01 “Agency” means “agency” as
defined in RSA 21-G:21, I, namely, “any executive branch agency, department,
division, board, commission, or entity of the executive branch.”
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Eth
102.02 “Agency head” means “agency head”
as defined in RSA 15-A:2, II, namely, “the commissioner or equivalent leader of
any department, and the highest ranking member of any commission, board,
institution, bureau, or office which is not a subordinate component of a
department or equivalent agency, by whatever name called, other than the
legislative and judicial branches of state government.”
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Eth
102.03 “Classified employee” means any
state employee whose position is part of the state classification system maintained
by the department of administrative services, as listed at https://das.nh.gov/HRJobClassifications/ClassSpecifications.aspx.
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Eth
102.04 “Committee” means the executive
branch ethics committee established pursuant to RSA 21-G:29, I.
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Eth
102.05 “Constitutional official” means
“constitutional official” as defined in RSA 15-B:2, II, namely, “the secretary
of state, the state treasurer, their deputies, assistants, and all employees of
their departments.”
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Eth
102.06 “Executive branch official” means
“executive branch official” as defined in RSA 21-G:21, II-a, namely, “the
governor, members of the executive council, every commissioned, unclassified,
or nonclassified executive branch employee other than
one elected by the legislature, every constitutional official as defined by RSA
15-B:2, II, and any person other than a classified employee who conducts
business on behalf of the governor, an executive branch official, or executive
branch agency, including a volunteer.”
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PART Eth 103 DESCRIPTION OF THE COMMITTEE
Eth 103.01 Composition and Functions.
(a)
The committee consists of 7 members nominated as set forth in RSA
21-G:29, III, and approved by governor and council as set forth in RSA 21-G:29,
IV.
(b)
The committee is statutorily authorized to:
(1) Issue ethics guidelines consistent with RSA
21-G:21 – 35, RSA 15-A, and RSA 15-B, as provided in RSA 21-G:30, I(a);
(2) Issue interpretive ethics rulings, as
provided in RSA 21-G:30, I(b);
(3) Render advisory opinions relative to
standards for ethical conduct, as provided in RSA 21-G:30, I(c) and RSA
21-G:31-a;
(4) Receive sworn complaints alleging ethics
violations, investigate such allegations, make findings of fact and conclusions
of law with respect to such allegations, and make recommendations and referrals
based upon the foregoing, as provided in RSA 21-G:30, I(d);
(5) Initiate a complaint on its own motion
against any individual the committee has reason to believe has violated any
law, guideline, or rule within the committee's jurisdiction, as provided in RSA
21-G:31, I;
(6) Investigate unauthorized disclosures of
information by any committee member or assistant, as provided in RSA 21-G:30,
I(e);
(7) Report to the appropriate authority any
allegations the committee determines to have been substantiated, as provided in
RSA 21-G:31, III(d); and
(8) Refer a case to the department of justice for
criminal prosecution, as provided in RSA 21-G:31, III(d).
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Eth 103.02 Organization.
(a) As required by RSA 21-G:29, III, membership of
the committee includes:
(1) The governor’s nominees, of whom one
is a Democrat, one is a Republican, and one has no political party
affiliation;
(2) The secretary of state’s nominees, of whom one
is a Democrat and one is a Republican; and
(3) The state treasurer’s nominees, of whom one
is a Democrat and one is a Republican.
(b)
The governor designates one of his/her appointees to act as chair.
(c) The committee members, by majority vote, elect
a vice-chair and secretary from the remaining members.
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Eth 103.03 Prohibition Against Certain Political
Activity. A committee member shall
not actively participate in local or state partisan political activity but
shall not be prohibited from attending political events.
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Eth. 103.04 Meetings. The committee shall request to meet with the
legislative ethics committee established under RSA 14-B at least twice yearly,
and at such additional times as called for by the chair or by majority vote of
the committee, to facilitate uniformity in the interpretation of statutory
provisions.
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Eth 103.05 Quorum. A quorum for a meeting or hearing consists of
4 members.
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Eth 103.06 Committee Votes.
(a)
All actions of the committee require an affirmative vote of 4 or more
members except as provided in (b) and (c) below.
(b)
A vote to summarily dismiss a complaint is required to be a unanimous
vote of the members present and voting.
(c)
A vote pursuant to RSA 21-G:31, VII requires a simple majority of the
members present and voting, a quorum being present and subject to (e) below.
(d)
In the event that, due to the recusal of committee members, the number
of participating members is fewer than 4, the remaining participating members shall
designate a sufficient number of alternates to increase the number to 4 for
that case only. Even when alternates are
selected, no more than 3 persons serving on the committee either as members or
alternates shall be from the same party.
(e)
When selecting alternates pursuant to (e) above, the following order of
priority is observed:
(1) The alternate is of the same party as the
committee member for whom the alternate is appointed and previously served as a
full member on the committee;
(2) The alternate is of the same party as the
committee member for whom the alternate is appointed and has not previously
served as a full member on the committee;
(3) The alternate is not of the same party as the
committee member for whom the alternate is appointed and has previously served
as a full member on the committee; and
(4) The alternate is not of the same party as the
committee member for whom the alternate is appointed and has not previously
served as a full member on the committee.
(f)
Appointments of alternates under (d) and (e) above are made so as to
avoid having more than 3 members of any party serving on the committee at the
same time. Alternates serve on the
committee for that case only.
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Eth 103.07 Attendance at Meetings By Members of the
Public. Pursuant to RSA 91-A:2, II,
members of the public may attend and record committee meetings except for those
parts of the meetings which are nonpublic sessions pursuant to RSA 91-A:3 and
RSA 21-G:31, V.
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Eth 103.08 Notice of Meetings.
(a) Notice of the time and place of committee
meetings, excluding emergency meetings, is given in accordance with RSA 91-A:2,
II.
(b)
Information about the time and place of committee meetings shall also be
available:
(1) By telephone at the number stated in Eth
104.01(b); and
(2) By TTY/TDD through the number stated in Eth
104.01(c).
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Eth 103.09 Record of Committee Actions.
(a) Minutes are kept of committee meetings and of
official actions taken by the committee.
(b) These minutes record those members who
participate in each vote and separately record the position of members who choose
to dissent, recuse themselves or concur.
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PART Eth 104 PUBLIC REQUESTS FOR INFORMATION
Eth 104.01 Office Location, Mailing Address, Telephone
Numbers and TTY/TDD Number.
(a)
The committee’s office and mailing address is:
Executive Branch
Ethics Committee
c/o Department of
Justice
33 Capitol Street
Concord, New
Hampshire 03301
(b)
The committee may be reached by telephone at the NH department of
justice at (603) 271-3658.
(c)
Access for in-state TTY/TDD users is through Relay New Hampshire by
dialing 711 or by dialing 1-800-735-2964.
(d) The committee’s email address is: ethics@doj.nh.gov
(e)
The committee’s website is at http://doj.nh.gov/ethics-committee.
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Eth 104.02 Communication with the Committee.
(a)
Persons wishing to make a submission to the committee, other than a
complaint, or make a request of the committee may:
(1) Send or submit a letter to the mailing
address stated in Eth 104.01(a) or (d);
(2) Send an email to the address listed in Eth
104.01(d);
(3) Call the number stated in Eth 104.01(b); or
(4) Communicate by TTY/TDD using the number
stated in Eth 104.01(c).
(b)
Submissions, other than complaints, or requests may initially be oral or
in writing, but any submission or request that requires committee action shall
be reduced to writing. All complaints
shall be submitted on a form provided by the committee, as outlined in Eth
203.02.
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Eth 104.03 Custodian of Records. The records of the committee shall be
maintained at the department of justice, which shall respond to requests to
examine those portions of the committee’s records which are governmental
records, per RSA 91-A:4.
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Eth 104.04 Inspection and Copies of Records.
(a) Pursuant to RSA 91-A:4 members of the public
may inspect and copy those records of the committee, including meeting minutes,
which are governmental records and not exempt from disclosure under RSA 91-A:5,
RSA 21-G:31, V, or other applicable law.
(b) Ethics guidelines and opinions issued by the
committee, and meeting minutes, shall be available at no charge online through
the committee’s website as listed in Eth 104.01(e).
(c)
Persons desiring copies of committee records shall describe as
particularly as possible the information being sought and pay the cost of
making the copies.
(d)
If records are requested that contain both public information and
information exempt from disclosure pursuant to RSA 91-A or other law, the
committee shall redact the exempt information and provide the remaining
information.
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Eth 104.05 Access to Committee Administrative Rules.
The public may:
(a)
Inspect and copy the official version of the committee’s administrative
rules at the committee’s office;
(b)
Receive a copy of the rules by calling or writing the committee; and
(c)
Access the rules on the committee’s website at http://doj.nh.gov/ethics-committee.
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CHAPTER Eth 200 RULES OF PRACTICE AND PROCEDURE
PART Eth 201 PURPOSE
AND SCOPE
Eth
201.01 Purpose. The purpose of this chapter is to provide the
procedure for requests for advisory opinions, complaints, investigations, and
hearings conducted by the committee. The provisions of these rules are intended
to supplement the procedures established by RSA 21-G, RSA 541-A, and any other
procedures established under any other applicable statute.
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Eth
201.02 Scope. The rules in this chapter shall apply to:
(a) The processing of any complaint received or
made by the committee, including:
(1) Examining
and potentially summarily discharging a complaint pursuant to RSA 21-G:31,
I(a);
(2) Initial
reviewing of and potentially dismissing a complaint pursuant to RSA 21-G:31,
I(b);
(3) Conducting
an investigation of a complaint pursuant to RSA 21-G:31, II, to determine what
action will follow; and
(4) Conducting
a hearing on the merits of a complaint pursuant to RSA 21-G:31, III, including
making any recommendations for discipline, referring the matter to the department
of justice for criminal prosecution, or both;
(b) Rulemaking commenced by the committee;
(c) Petitions to the committee for the adoption,
repeal, or amendment of any of its rules;
(d) Petitions for declaratory rulings;
(e) Requests for advisory opinions; and
(f) Ethics guidelines.
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PART Eth 202 DEFINITIONS
Eth
202.01 Definitions.
(a) “Advisory opinion” means a written opinion of
the committee, issued in response to a
written request by an executive branch official, that provides advice on
the application of one or more sections of RSA 15-A, RSA 15-B, and RSA
21-G:21-35 to a specific set of circumstances identified by the requester.
(b) “Appearance” means a written notification to
the committee that a party or a party’s representative intends to actively
participate in a hearing.
(c) “Clear and convincing evidence” means a
demonstration that a fact or legal conclusion is not merely probable but is
highly probable.
(d) “Committee” means the executive branch ethics
committee established pursuant to RSA 2l-G:29, I.
(e) “Complainant” means the person who submits a
complaint to the committee.
(f) “Complaint” means a written, signed
allegation made under oath by a complainant or initiated by the committee that
a person subject to the committee’s jurisdiction pursuant to RSA 21-G:29, II,
has committed one or more acts constituting a violation of RSA 21-G:21 – 35,
RSA 15-A, or RSA 15-B.
(g) “Frivolous” means clearly insufficient, without
a basis in law or fact.
(h) “Guideline” means a written opinion of the
committee explaining one or more sections of RSA 15-A, RSA 15-B, and RSA
21-G:21-35 under general circumstances, issued for the purpose of providing
guidance to executive branch officials.
(i) “Hearing” means
“adjudicative proceeding” as defined in RSA 541-A:1, I, namely, “the procedure
to be followed in contested cases, as set forth in RSA 541-A:31 through RSA
541-A:36.”
(j) “Motion” means a request to the committee for
an order or ruling directing some act to be done in favor of the party making
the motion, including a statement of justification or reasons for the request.
(k) “Party” means “party” as defined in RSA
541-A:1, XII, namely, “each person or committee named or admitted as a party,
or properly seeking and entitled as a right to be admitted as a party.” The
term “party” includes the respondent and any intervenor in a proceeding,
subject to any limitations established pursuant to RSA 541-A:32, III.
(l) “Person” means “person” as defined in RSA
541-A:1, XIII, namely, “any individual, partnership, corporation, association,
governmental subdivision, or public or private organization of any character
other than a committee.”
(m) “Preliminary investigation” means the process
the committee will follow in the event a complaint is not dismissed pursuant to
RSA 21-G:31, I, to include a full discussion on the merits of the complaint
and, as necessary, the gathering of additional information beyond that supplied
by the complainant.
(n) “Presiding officer” means the chair or the
individual to whom the committee has delegated the authority to preside over a
proceeding.
(o) “Respondent” means the executive branch
official subject to the jurisdiction of the committee about whom a complaint
has been made.
(p) “Scurrilous” means abusive or defamatory.
(q) “Retaliatory” means accusing someone of
misconduct in order to get revenge for, or to get back at that person for
action he or she took against the accuser.
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PART Eth 203 COMPLAINTS
Eth
203.01 Complaints.
(a) Any person who believes that a person subject
to the jurisdiction of the committee has violated the provisions of RSA 21-G:21
– 35, RSA 15-A, or RSA 15-B may submit a complaint to the committee on the
“Executive Branch Ethics Committee Complaint Form” provided by the committee.
(b)
The “Executive Branch Ethics Committee
Complaint Form” may be obtained on the committee’s website or by contacting the
committee by email or phone.
(c) Pursuant to RSA 21-G:31, I, nothing shall
prevent the committee from bringing a complaint on its own motion.
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Eth
203.02 Complaint Form.
(a) The complainant shall supply the following
information on the “Executive Branch Ethics Committee Complaint Form”:
(1) The
complainant’s name, address, daytime phone or cell number, and email;
(2) The
complainant’s title, position, and agency, if applicable;
(3) The name of
the executive branch official (s) against whom the complaint is being filed;
(4) The
executive branch position that the respondent(s) held at the time of the alleged
violation;
(5) The work
address, email, and phone number of the respondent(s); and
(6) Whether the
respondent is or is not a classified employee.
(b) The complainant shall identify the nature of
the ethical violation by indicating which of the following statements applies:
(1) The
executive branch official participated in a matter in which he or she, or a
spouse or a dependent, had a personal interest that might have directly or
indirectly influenced the performance of his or her duties, pursuant to RSA
21-G:22;
(2)
The executive branch official disclosed or used confidential or
privileged information acquired in the course of his or her official duties for
personal benefit or gain, pursuant to RSA 21-G:23,I;
(3)
The executive branch official used his or her position with the State to
secure privileges or advantages for himself or herself that are not generally
available for State employees, pursuant to RSA 21-G:23, II;
(4)
The executive branch official, who is, or was, a candidate for a
political office that is not subject to the reporting requirements of RSA 664,
accepted a contribution from a person or entity that is, or is likely to
become, subject to that executive branch official’s duties, and the
contribution was not disclosed to the secretary of state within five days,
pursuant to RSA 21-G:24;
(5)
The executive branch official violated the provision of RSA 21-G:25,
which specifies and prohibits certain types of per se conflicts of interest, and which may be viewed at http://www.gencourt.state.nh.us/rsa/html/l/21-G/21-G-25.htm;
(6) The executive branch official directly hired,
evaluated, supervised, set compensation for, or terminated any full-time or
part-time employee or member of any
state board or commission who is a spouse, a parent by birth or adoption, a
child by birth or adoption, a step-child, a sibling or half-sibling by birth or
adoption, or an in-law, pursuant to RSA 21-G:26-a;
(7)
The executive branch official violated a supplemental ethics code
adopted by an agency, pursuant to RSA 21-G:27;
(8) The executive branch official failed to make
complete and timely financial disclosures as required by RSA 15-A, which may be
viewed at http://www.gencourt.state.nh.us/rsa/html/l/15-B/15-B-mrg.htm;
(9)
The executive branch official received a gift of more than insignificant
economic value that is prohibited by RSA 15-B, or
(10) Other, with an explanation when the complainant
believes the conduct violated RSA 21-G:21-27, RSA 15-A, RSA 15-B, or is
otherwise within the jurisdiction of the committee.
(c) The complainant shall provide the following
information:
(1)
A concise narrative description of the conduct being complained of,
including the date(s) or time frame when the conduct took place;
(2)
Whether the complained of conduct has been or is the subject of any
lawsuit, administrative adjudicatory proceeding, complaint to any regulatory
body or criminal proceeding and, if so, a description of the type of
proceeding; and
(3)
The name and contact information of any witness(es)
to the complained of conduct.
(d) The complainant shall place his or her
notarized signature, printed full name, and the date of signing below the
following preprinted statement: “By signing and filing this complaint, you are
stating under penalty of law that the information you are providing is true and
correct to the best of your knowledge.”
(e) A complaint form that is not in compliance
with any of the requirements above shall be considered deficient and will not
be considered by the committee. Within
60 days of receipt of the complaint, the committee shall inform the complainant
of the deficiency or deficiencies and how they can be corrected.
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Eth
203.03 Processing of Complaints by
the Committee.
(a) Upon receipt of a non-deficient complaint,
and before any other action is taken by the committee, the committee shall
provide a copy of the complaint to the respondent(s), and inform the respondent
of the date of the next committee meeting and that he or she may submit a
written response to complaint.
(b) After promptly examining such complaint, the
committee shall, pursuant to RSA 21-G:31, I(a), summarily discharge the
complaint if it determines by unanimous vote that the complaint is:
(1)
Frivolous;
(2)
Filed against a person who is neither a current executive branch
official nor a former executive branch official against whom the complaint was
filed within 180 days of his or her leaving office; or
(3)
Without merit and is one or both of the following:
a.
Scurrilous; or
b.
Retaliatory.
(c) If a complaint is not summarily discharged
pursuant to (b) above, the committee shall review the complaint and any
attachments to determine whether:
(1)
The alleged conduct falls outside the committee’s jurisdiction;
(2)
The facts, as described in the complaint, are insufficient to support a
finding that the respondent engaged in misconduct; or
(3)
Both of the foregoing.
(d) If the committee determines that any of (c)
(1) – (3) above apply, the complaint shall be dismissed pursuant to RSA
21-G:31, I(b). Such dismissal, along
with an explanation of the basis for such determination, shall be reported to
the complainant and the respondent.
(e) If the complaint is not dismissed pursuant to
(b) through (d) above, the committee shall conduct a preliminary investigation,
as follows:
(1)
If, after review of the complaint and any response provided by the
respondent, the committee determines it has sufficient information to address
the merits of the complaint, it shall proceed to a vote pursuant to (f) below;
(2) If the committee determines that additional
information is necessary, it shall:
a. Appoint one of its members to gather the
information; or
b.
If interviews are necessary, request the assistance of an investigator
employed by the New Hampshire department of justice;
(3) Upon completion of the investigation, the
committee member or investigator shall provide a written report of
investigation to the committee;
(4)
Upon review of the report of investigation, the committee shall, as
necessary, request that committee member or investigator conduct further
investigation or that he or she appear before the committee to answer
questions; and
(5)
Any committee member who participates in the investigation shall not
participate in any further actions of the committee, as a member of the
committee, concerning the subject matter of that investigation.
(f) Upon completion of the preliminary
investigation, the committee shall, by recorded vote, conclude one of the
following:
(1)
No violation occurred, and no further action is appropriate;
(2)
A violation occurred but no formal action by the committee is warranted;
or
(3)
There are reasonable grounds to believe a violation occurred, and formal
proceedings shall be instituted.
(g)
A vote not to proceed with formal
committee action pursuant to (f)(2) above shall be based on a finding that:
(1) The violation was inadvertent or the
underlying conduct would have no impact on the public’s perception of public
officials; and
(2)
The underlying conduct did not adversely impact any other person.
(h) If the committee votes not to proceed with
formal committee action pursuant to (f)(2), the committee shall send a letter
to the respondent identifying the violation and warning that future violations
may be pursued through formal proceedings.
A copy of the letter shall be sent to the complainant, the respondent,
and the respondent’s state employer or appointing authority at the time of the
violation.
(i) If the committee
determines that a formal hearing should be conducted pursuant to (f)(3) above,
it shall issue a formal statement of charges to be decided at such
hearing. The statement of formal charges
shall comply with the requirements of RSA 541-A:31, III, and Eth 208.03.
(j) Upon the committee’s request, the matter shall
be prosecuted by the committee member,
the department of justice investigator or assistant attorney general who
conducted the preliminary investigation on behalf of the committee.
(k) Upon completion of the hearing, the committee
shall conclude by recorded vote that:
(1)
No violation occurred and no further action is appropriate;
(2)
No further action is appropriate because there is not clear and
convincing evidence that a violation occurred;
(3)
Although clear and convincing evidence that a violation occurred exists,
the nature of the violation does not warrant formal disciplinary action based
on the criteria in (l) below and shall be resolved by informal methods; or
(4)
There is clear and convincing evidence that a violation occurred and the
violation was of a serious nature based on the criteria in (l) below, so as to
warrant formal disciplinary action.
(l) In determining whether a violation is
sufficiently serious to warrant formal disciplinary action under (k) (3) or (k)
(4) above, the presence or absence of the following shall be considered as
aggravating factors:
(1)
The violation involved the misuse of influence or confidential
information;
(2)
The violation involved financial gain;
(3)
The violation resulted in economic loss to one or more individuals;
(4)
The respondent engaged in similar conduct in the past;
(5)
The violation poses a serious adverse impact on the public’s confidence
in its public officials; and
(6)
The need for individual or public deterrence.
(m) If the committee concludes that no formal
disciplinary action is warranted, as provided in (k) (3) above, the committee
shall send a letter to the respondent that identifies the nature of the
violation found and explains the reasons for the committee’s action. A copy of the letter shall be sent to the
complainant, the respondent, and to the respondent’s state employer or
appointing authority at the time of the violation.
(n) If the committee concludes formal
disciplinary action is warranted, as provided in (k) (4) above, it shall make a
recommendation to the respondent’s state employer or appointing authority for
discipline in accordance with that employer’s or appointing authority’s
disciplinary authority, if a majority of
the members agree upon such a recommendation.
(o) If, at any point in the complaint process, a
majority of members conclude that the case should be referred to the department
of justice for criminal prosecution, it shall make such a referral. If the committee is informed by the
department of justice that continuing with the proceeding might interfere with
a criminal prosecution, it shall suspend its proceeding until such time as it
would not so interfere.
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PART Eth 204 PRESIDING OFFICER; RECUSAL OF COMMITTEE
MEMBERS AND WAIVER OF RULES
Eth
204.01 Presiding Officer.
(a) All hearings conducted by the committee shall
be presided over by the chair of the committee serving as a presiding
officer. In the event that the chair is,
for any reason, not available, the vice chair shall serve as presiding
officer. If the vice chair is, for any
reason, not available, a member of the committee shall serve as presiding
officer.
(b) A presiding officer shall, as necessary to
develop a complete record and provide a full and fair proceeding:
(1) Regulate
and control the course of the hearing;
(2) Facilitate
an informal resolution of the hearing;
(3) Administer
oaths and affirmations;
(4) Receive evidence at hearings and exclude
irrelevant, immaterial, or unduly repetitious evidence;
(5) Rule on
procedural requests, including adjournments or postponements, at the request of
a party or on the presiding officer’s own motion;
(6) Along with
other committee members, question any person who testifies so as to fully
develop a record;
(7) Cause a
complete record of any hearing to be made, as specified in RSA 541-A:31, VI;
and
(8) Take any
other action consistent with applicable statutes, rules, and case law necessary
to conduct the hearing and complete the record in a fair and timely manner.
(c) The presiding officer shall, after
consultation with the committee to the extent practicable, rule on all
non-dispositive procedural motions. If
the presiding officer determines that the action requested in a motion is not
procedural in nature or could have the effect of determining the outcome of the
matter in whole or in part, the presiding officer shall refer the motion to the
committee for its decision.
Source. #12617-A, eff 9-6-18
Eth
204.02 Recusal Committee Members.
(a) Upon his or her own initiative or upon the
motion of any party, a committee member, including the presiding officer,
shall, for good cause recuse him- or herself from any hearing. If a member recuses him- or herself, no
explanation of the reason for recusal shall be required from the member.
(b) If a committee member is unsure whether
particular circumstances constitute good cause for recusal, other committee
members shall make themselves available to discuss the issue if requested.
(c) If a committee member or a party to a hearing
believes that a member should recuse him- or herself but has not, the member or
party shall inform the committee, in writing, of the basis for such
belief. Such submission shall be made
before the committee takes up the underlying matter. If the committee determines by majority vote
that good cause for recusal exists, the member shall be recused.
(d) Good cause for recusal shall exist if any of
the following apply to a committee member in a particular hearing:
(1) The
committee member was in some way personally, directly or indirectly, involved
in the underlying action(s) that gave rise to the complaint;
(2) The
committee member has personal knowledge of facts material to the determination
of the complaint;
(3) The
committee member has a direct or indirect interest in the outcome of a
proceeding, including, but not limited to:
a.
A financial interest with the complainant or respondent;
b.
A family relationship with the complainant or respondent, including but
not limited to:
1. Spouse;
2. Son or daughter
by birth or adoption;
3. Stepson or
stepdaughter;
4. Parent,
including step-parent;
5. Parent by
birth or adoption;
6. Grandparent;
7. Grandchild;
8. Brother or
sister by whole or half blood or by adoption;
9. Aunt or
uncle;
10 Niece or
nephew;
11. Mother-in-law,
father-in-law, sister-in-law, brother-in-law, daughter-in-law, or son-in-law;
or
12. Former
spouse; and
c.
The complainant or respondent is a member of the household of the
committee member;
(4) The
committee member had a prior or on-going business relationship with a party or
material witness that would cause an objective, disinterested observer fully
informed of the facts to entertain significant doubt about the member’s ability
to be impartial;
(5) The committee member has made statements or
engaged in behavior which objectively demonstrates that he or she has prejudged
the facts of a case; or
(6) The committee member personally believes that
he or she cannot fairly judge the facts of a case.
(e) Mere general knowledge of the issues, the
complainant, respondent, or any witness shall not constitute good cause for
recusal.
Source. #12617-A, eff 9-6-18
Eth
204.03 Waiver of Rules by Presiding
Officer. The presiding officer, upon
his or her own initiative or upon the motion of any party, shall waive any
requirement or limitation imposed by this chapter upon reasonable notice to
affected persons when the proposed waiver appears to be lawful and would be more
likely to promote the fair, accurate, and efficient resolution of issues
pending before the committee.
Source. #12617-A, eff 9-6-18
PART Eth 205 FILING, FORMAT AND DELIVERY OF DOCUMENTS
Eth
205.01 Date of Issuance or Filing. All written documents governed by these rules
shall be rebuttably presumed to have been issued on
the date noted on the document and to have been filed with the committee on the
actual date of receipt by the committee, as evidenced by a date stamp placed on
the document by the committee in the normal course of business.
Source. #12617-A, eff 9-6-18
Eth
205.02 Format of Documents.
(a) Except complaints under Eth 203.01, all
correspondence, pleadings, motions, or other documents filed under these rules
shall:
(1) Include the
title and docket number of the proceeding, if known;
(2) Be
typewritten or clearly printed on durable paper 8 1/2 by 11 inches in size;
(3) Be signed
by the proponent of the document, or, if the proponent appears by a
representative, by the representative; and
(4) Include a
statement certifying that a copy of the document has been delivered to all
parties to the proceeding in compliance with Eth 205.03.
(b) A party or representative’s signature on a
document filed with the committee shall constitute certification that:
(1) The signer
has read the document;
(2) The signer
is authorized to file it;
(3) To the best
of the signer’s knowledge, information, and belief there are good and
sufficient grounds to support it; and
(4) The document
has not been filed for purposes of delay.
Source. #12617-A, eff 9-6-18
Eth
205.03 Delivery of Documents.
(a) Copies of all petitions, motions, exhibits,
memoranda, or other documents filed by any party in a proceeding governed by
these rules shall be delivered by that person to all other parties in the
proceeding.
(b) All notices, orders, decisions, or other
documents issued by the presiding officer or committee shall be delivered to
all parties in the proceeding.
(c) Delivery of all documents relating to a
proceeding shall be made by personal or commercial delivery or by depositing a
copy of the document, by first class mail, postage prepaid, in the United
States mail.
(d) The presiding officer shall permit documents
to be submitted electronically in a particular case if he or she determines
that electronic submissions will facilitate the proceedings.
(e) When a participant appears by a
representative, delivery of a document to a party shall be to the party’s
representative at the address stated on the appearance filed by the
representative.
(f) Any communication required shall be sent to
the last address provided to the committee.
Source. #12617-A, eff 9-6-18
PART Eth 206 TIME
PERIODS
Eth
206.01 Computation of Time.
(a) Unless otherwise specified, all time periods
referenced in this chapter shall be calendar days.
(b) Computation of any period of time referred to
in these rules shall begin with the day after the action which sets the time
period in motion, and shall include the last day of the period so computed.
(c) If the last day of the period so computed
falls on a Saturday, Sunday, or legal holiday, then the time period shall be
extended to include the first business day following the Saturday, Sunday, or
legal holiday.
Source. #12617-A, eff 9-6-18
PART Eth 207 MOTIONS
Eth
207.01 Motions and Objections.
(a) Motions shall be in written form and filed
with the committee, unless made in response to a matter asserted for the first
time at a hearing or on the basis of information which was not received in time
to prepare a written motion.
(b) Oral motions and any oral objection to such
motions shall be recorded in full in the record of the hearing. If the
presiding officer finds that the motion requires additional information in
order to be fully and fairly considered, the presiding officer shall direct the
moving party to submit the motion in writing, with supporting information.
(c) Objections to written motions shall be filed
within 10 days of the date of the motion;
(d) Failure by an opposing party to object to a
motion shall not in and of itself constitute grounds for granting the motion.
(e) The presiding officer shall act on the motion
in accordance with Eth 204.01(c).
Source. #12617-A, eff 9-6-18
PART Eth 208 NOTICE
OF HEARING; APPEARANCES; PRE-HEARING CONFERENCES; JOINDER AND SEVERANCE
Eth
208.01 Commencement of Hearing. A hearing shall be commenced by an order of
the committee giving notice to the parties as required by Eth 208.03.
Source. #12617-A, eff 9-6-18
Eth
208.02 Docket Numbers. A docket number shall be assigned to each
matter to be heard, and it shall appear on the notice of hearing and all
subsequent orders or decisions of the committee.
Source. #12617-A, eff 9-6-18
Eth
208.03 Notice of Hearing.
(a) A notice of a hearing issued by the committee
shall contain the information required by RSA 541-A:31, III, namely:
(1) A statement
of the time, place, and nature of any hearing;
(2) A statement
of the legal authority under which a hearing is to be held;
(3) A reference
to the particular laws or rules involved, including this chapter;
(4) A short and
plain statement of the issues presented, which shall be the formal charges
required pursuant to RSA 21-G:31, II(c); and
(5) A statement
that each party has the right to have an attorney represent them at their own
expense.
(b) Upon request the committee, shall, when
possible, furnish a more detailed statement of the issues within a reasonable
time, not to exceed 45 days.
Source. #12617-A, eff 9-6-18
Eth
208.04 Appearances and Representation.
(a) The respondent and each party or the party’s
representative shall file an appearance that includes the following
information:
(1) A brief
identification of the matter including the docket number, if known;
(2) A statement
as to whether or not the representative is an attorney and, if so, whether the
attorney is licensed to practice in New Hampshire; and
(3) The party
or representative’s address and daytime telephone number.
Source. #12617-A, eff 9-6-18
Eth
208.05 Prehearing Conference.
(a) Upon any party’s request, or upon the presiding
officer’s own initiative, the presiding officer shall schedule a prehearing
conference in accordance with RSA 541-A:31, V when such a conference will
facilitate the proceedings.
(b) Prehearing conferences shall include, if
applicable, consideration of:
(1) Offers of
settlement;
(2) Simplification
of the issues;
(3) Stipulations
or admissions as to issues of fact or proof by consent of the parties;
(4) Limitations
on the number of witnesses;
(5) Changes to
standard procedures desired during the hearing by consent of the parties;
(6) Consolidation
of examination of witnesses; or
(7) Any other
matters which aid in the disposition of the proceeding.
Source. #12617-A, eff 9-6-18
Eth 208.06 Consolidation. Whenever it shall appear to the committee,
upon motion or its own initiative, that 2 or more proceedings involve related
issues, the committee shall, as fairness and efficiency permit, consolidate
those proceedings for hearing, or decision, or both.
Source. #12617-A, eff 9-6-18
Eth 208.07 Severance. Whenever it shall appear to the committee,
upon motion or its own initiative, that injury to the substantial rights of a
party or undue delay may be thereby avoided, the committee shall, as fairness
and efficiency permit, sever one or more issues from a proceeding, and dispose
of those issues in another proceeding.
Source. #12617-A, eff 9-6-18
PART Eth 209 ROLE OF COMPLAINANTS AND INTERVENTION
Eth
209.01 Role of Complainants and
Committee Staff in Hearings.
(a) Unless called as a witness or granted
intervenor status, a complainant shall have no role in a hearing on the
complaint conducted by the committee.
(b) The investigator or other person designated
by the attorney general shall present the case against the respondent to the
committee.
Source. #12617-A, eff 9-6-18
Eth
209.02 Intervention.
(a) A non-party, including the complainant, may
intervene in a matter pending before the committee under the provisions of RSA
541-A:32, by filing a motion stating facts demonstrating that the non-party’s
rights or other substantial interests might be affected by the proceeding or
that the non-party qualifies as an intervenor under any provision of law.
(b) If the presiding officer determines, pursuant
to RSA 541-A:32, I, that such intervention would be in the interests of justice
and would not impair the orderly and prompt conduct of the hearing, the motion
for intervention shall be granted.
(c) Unless limited by the presiding officer under
RSA 541-A:32, III, an intervenor shall be entitled to participate in a hearing
as a party.
Source. #12617-A, eff 9-6-18
PART Eth 210 REQUESTS
FOR INFORMATION OR DOCUMENTS AND SUBPOENAS
Eth
210.01 Voluntary Production of
Information.
(a) Each party shall attempt in good faith to
make complete and timely response to requests for the voluntary production of
information or documents relevant to the hearing.
(b) When a dispute between parties arises
concerning a request for the voluntary production of information or documents,
any party may file a motion to compel the production of the requested
information under Eth 210.02. However,
no depositions shall be taken as part of discovery in any case pending before
the committee.
Source. #12617-A, eff 9-6-18
Eth
210.02 Motions to Compel Production
of Information.
(a) Any party may make a motion requesting that
the presiding officer order the parties to comply with information requests.
The motion shall be filed as soon as is practicable after the aggrieved party
has been informed that his or her request for information has been denied or
concludes that the request has been denied.
All such motions shall be made prior to the date scheduled for the
hearing.
(b) The moving party’s motion shall:
(1) Set forth
in detail those factors which it believes justify its request for information;
and
(2) List with
specificity the information it is seeking to discover.
(c) When a party has demonstrated that such
requests for information are necessary for a full and fair presentation of the
evidence at the hearing based upon the scope of the hearing and the
jurisdiction of the committee, the presiding officer shall grant the motion.
Source. #12617-A, eff 9-6-18
Eth
210.03 Mandatory Pre-Hearing
Disclosure of Witnesses and Exhibits. At least 5 days before the hearing the parties
shall exchange a list of all witnesses to be called at the hearing with a brief
summary of their testimony, a list of all documents or exhibits to be offered
as evidence at the hearing, and a copy of each document or exhibit.
Source. #12617-A, eff 9-6-18
Eth 210.04 Subpoenas.
(a)
A subpoena for the attendance of witnesses or the production of evidence
in disciplinary proceedings shall, pursuant to RSA 21-G:31, VI, be issued only
upon the order of the chair as presiding officer, or if the chair is not the
presiding officer, the committee or legal counsel.
(b)
A subpoena shall be issued on the initiative of the presiding officer or
in response to the motion of a party.
(c)
A party who moves for a subpoena shall attach a copy of the proposed
subpoena to the motion. The requesting
party shall be responsible for the service of the subpoena and payment of any
witness fee and mileage expenses that may be required.
(d)
The person to whom the subpoena is directed may, within 10 days after
service of the subpoena, or before the date specified by the presiding officer
in the subpoena for compliance therewith, whichever is earlier, file a motion
to quash or modify the subpoena.
(e)
If the presiding officer determines that the motion to quash or modify
the subpoena fails to refute the rationale for the subpoena and the motion is
denied, in whole or in part, the person to whom the subpoena is directed shall
comply with the subpoena, within the time prescribed in the subpoena, unless
the presiding officer expressly provides additional time to comply.
(f)
A subpoena shall be served by any person who is 18 years of age or
older, and in the manner authorized for service of subpoenas in the New
Hampshire superior court. The time and
date of service shall be written on the reverse of the original copy of the
subpoena by the person making service and a copy shall be immediately returned
to the committee by the person making service.
(g)
Should any person fail to comply with a subpoena issued pursuant to this
section, the presiding officer may either issue an order adverse to the party
who fails to comply or take any other action necessary to ensure the full and
fair presentation of evidence at the hearing.
Source. #12617-A, eff 9-6-18
PART Eth 211 POSTPONEMENT
REQUESTS AND FAILURE TO ATTEND HEARING
Eth
211.01 Postponements.
(a) Any party to a hearing may make an oral or
written motion that a hearing be postponed to a later date or time. Such a request shall be made at least 10 days
prior to the hearing date. Any such
motion made less than 10 days in advance of a hearing shall be accompanied by
an affidavit demonstrating good cause for the late request.
(b) Good cause for late filing shall include but
not be limited to:
(1) Serious
illness;
(2) Death of a
family member; or
(3) Conflicting
court schedules.
(c) If a postponement is requested by a party to
the hearing, it shall be granted if the committee determines that good cause
has been demonstrated. Good cause shall include the unavailability of parties,
witnesses or attorneys necessary to conduct the hearing, unless such
unavailability is due to action or inaction on the part of the party, or any
other circumstances that demonstrates that a postponement would assist in
resolving the case fairly.
(d) If the presiding officer or the committee
determines that scheduling or other conflicts of availability exist, which will
prevent a quorum of the committee members to participate, the presiding officer
shall postpone the hearing to a later date or time.
(e) If the later date, time, and place are known
at the time of the hearing that is being postponed, the date, time, and place
shall be stated on the record. If the later date, time, and place are not known
at the time of the hearing that is being postponed, the presiding officer shall
issue a written scheduling order stating the date, time, and place of the
postponed hearing as soon as practicable.
Source. #12617-A, eff 9-6-18
Eth
211.02 Failure to Attend Hearing.
(a) If any party to whom notice has been given in
accordance with Eth 208.03 fails to attend a hearing, the presiding officer
shall, unless good cause is shown, declare that party to be in default, and
hear the testimony and receive other evidence.
(b) The defaulted party may file a motion to
strike the default within 10 days.
(c) The committee shall grant the motion if the
committee finds that the non-appearing party has demonstrated in the motion
that he or she failed to attend because of circumstances outside his or her
control and had no ability to notify the committee, or have a third party
notify the committee, prior to the hearing.
Source. #12617-A, eff 9-6-18
PART Eth 212 RECORD,
EX PARTE COMMUNICATIONS, EVIDENCE AND DECISIONS
Eth
212.01 Record of the Hearing. The committee shall record the hearing by
audio recording or other method that will provide a verbatim record. The recording shall be retained by the
committee for 4 years from the date of the hearing.
Source. #12617-A, eff 9-6-18
Eth
212.02 Ex Parte Communications. Once a notice of hearing has been issued in
an adjudicative proceeding, the presiding officer and each participating
committee member shall not communicate with any party or person concerning the
merits of the case except upon notice to the other parties and an opportunity
for such party or parties to participate.
In accordance with the rules of this chapter, no party shall cause
another person to make such communications or otherwise engage in conduct
prohibited by RSA 541-A:36. Nothing
shall prohibit any member of the committee from communicating with the
committee’s legal counsel.
Source. #12617-A, eff 9-6-18
Eth
212.03 Standard and Burden of Proof. In order to find an ethical violation the
committee shall be convinced by clear and convincing evidence that such
violation occurred. With respect to
motions filed before the committee, the moving party shall have the burden of
persuading the committee that his or her motion should be granted.
Source. #12617-A, eff 9-6-18
Eth
212.04 Testimony; Order of Proceeding.
(a) Any person offering testimony, evidence, or
arguments shall state for the record his or her name, and role in the
proceeding. If the person is representing another person, the person being
represented shall also be identified.
(b) Unless otherwise determined by the presiding
officer, evidence shall be offered in the following order:
(1) The party
bearing the burden of proof and such witnesses as the party may call;
(2) The party
or parties opposing the party who bears the burden of proof and such witnesses
as the party may call.
Source. #12617-A, eff 9-6-18
Eth
212.05 Inquiry By Presiding Officer. The presiding officer and other committee
members recognized by the presiding officer shall question witnesses and make
such inquiry of witnesses, parties, or counsel, as he or she believes necessary
to develop a sound record for decision.
Source. #12617-A, eff 9-6-18
Eth
212.06 Evidence. Receipt of evidence shall be governed by the
provisions of RSA 541-A:33.
Source. #12617-A, eff 9-6-18
Eth
212.07 Proposed Findings of Fact and
Conclusions of Law.
(a) Upon request of any party, or, if the
presiding officer determines that proposed findings of fact and conclusions of
law would serve to clarify the issues presented at the hearing, the presiding
officer shall order the parties to submit proposed findings of fact and
conclusions of law by a specific date and time.
(b) In any case where proposed findings of fact
and conclusions of law are submitted, the decision shall include rulings on the
proposals.
Source. #12617-A, eff 9-6-18
Eth
212.08 Closing the Record.
(a) After the conclusion of the hearing, the
record shall be closed and no other evidence shall be received into the record,
except as allowed by (b) below and Eth 212.09.
(b) Before the conclusion of the hearing, a party
may request that the record be left open to allow the filing of specified
evidence not available at the hearing. If the presiding officer determines that
such evidence is necessary to a full consideration of the issues raised at the
hearing, the presiding officer shall keep the record open for the period of
time necessary for the party to file the evidence.
(c) Unless waived by the other party or parties,
the party filing the evidence shall, to the extent required by due process,
make the proponent of such evidence available for cross-examination.
Source. #12617-A, eff 9-6-18
Eth
212.09 Reopening the Record. At any time prior to the issuance of the
decision on the merits, the presiding officer, on the presiding officer’s own
initiative or on the motion of any party, may reopen the record to receive
relevant, material, and non-duplicative testimony, evidence, or arguments not
previously received, if the presiding officer determines that such testimony,
evidence, or arguments are necessary to a full and fair consideration of the
issues to be decided, and such testimony, evidence, or arguments were not
available prior to closing of the record.
Source. #12617-A, eff 9-6-18
Eth
212.10 Decisions.
(a) A committee member shall not participate in
making a decision unless he or she personally heard the testimony in the case,
unless the decision does not depend on the credibility of any witness and the
record provides a reasonable basis for evaluating all the testimony and other
evidence.
(b) The committee shall keep a decision on file
in its records for at least 4 years following the date of the final decision or
the date of the decision on any appeal, unless the director of the division of
records management and archives of the department of state sets a different
retention period pursuant to rules adopted under RSA 5:40.
Source. #12617-A, eff 9-6-18
PART Eth 213 MOTION
FOR RECONSIDERATION
Eth
213.01 Purpose. The rules in this part are intended to set
forth the requirements for submitting a motion for reconsideration of a
decision of the committee prior to appealing the decision.
Source. #12617-A, eff 9-6-18
Eth
213.02 Applicability. The rules in this part shall apply to each
motion for reconsideration of a decision prior to filing an appeal of the
decision with the court having appellate jurisdiction.
Source. #12617-A, eff 9-6-18
Eth
213.03 Filing and Content of Motion.
(a) A motion for reconsideration shall be filed
within 30 days of the date of a committee decision or order.
(b) A motion for reconsideration shall:
(1) Identify
each error of fact, error of reasoning, or error of law which the moving party
wishes to have reconsidered;
(2) Describe
how each error causes the committee’s decision to be unlawful, unjust,
unreasonable, or illegal in respect to jurisdiction, authority or observance of
the law, an abuse of discretion or arbitrary, unreasonable, or capricious;
(3) State
concisely the factual findings, reasoning, or legal conclusion proposed by the
moving party; and
(4) Include any
argument or memorandum of law the moving party wishes to file.
Source. #12617-A, eff 9-6-18
Eth
213.04 Standard for Granting Motion
for Reconsideration. A motion for
reconsideration shall be granted if the committee determines that its decision
was erroneous, unlawful, or unreasonable.
Source. #12617-A, eff 9-6-18
Eth
213.05 Decision on Motion for
Reconsideration. The committee
shall, at its next meeting, grant or deny a motion for reconsideration, or
suspend the order or decision pending further consideration.
Source. #12617-A, eff 9-6-18
PART Eth 214 RULEMAKING
Eth 214.01 How Adopted. A committee rule, or any amendment or repeal
thereof, shall be proposed, adopted, and filed in accordance with RSA 541-A.
Source. #12617-A, eff 9-6-18
Eth
214.02 Public Comment for Rulemaking.
(a) A public comment hearing concerning any
proposed rule, amendment to, or repeal of any rule shall be commenced by
placing notice of the hearing in the rulemaking register so that it shall
appear at least 20 days prior to the hearing date.
(b) Public comment hearing shall be attended by a
quorum of the committee.
(c) The hearing shall be presided over by the
chair of the committee or designee.
(d) Persons who wish to testify at a public
comment hearing shall be asked to write on the speaker’s list:
(1)
Their full names and addresses; and
(2)
The names and addresses of organizations, entities, or other persons
whom they represent, if any.
(e) The presiding officer shall:
(1)
Call the hearing to order;
(2)
Identify the proposed rules that are the subject matter of the hearing
and provide copies of the proposed rules upon request;
(3)
Cause a record of the hearing to be made;
(4)
Recognize those who wish to be heard;
(5)
Refuse to recognize for speaking or revoke the recognition of any person
who:
a. Speaks or acts in an abusive manner;
b. Fails to keep comments relevant to the
proposed rules that are the subject matter of the hearing; or
c. Restates more than once what he or she has
already stated.
(6)
Remove or have removed any person who disrupts the hearing;
(7)
If necessary, postpone or move the hearing, and
(8)
Adjourn or continue the hearing.
(f) A hearing shall be postponed in accordance
with RSA 541-A:11, IV when:
(1)
The weather is so inclement that it is reasonable to conclude that
people wishing to attend the hearing will be unable to do so;
(2)
The committee chair or other person designated by the chair to preside
over the hearing is ill or unavoidably absent;
(3)
There is a lack of a quorum due to illness or unavoidable absence; or
(4)
Postponement will facilitate greater participation by the public.
(g) If a hearing is postponed, notice of the new
hearing date shall be placed in the rulemaking register at least 5 days prior
to the hearing.
(h) A hearing shall be moved to another location
in accordance with RSA 541-A:11, V when the original location cannot
accommodate the number of people who wish to attend the hearing. If a hearing is relocated, the committee
shall post notice of the new location at the originally scheduled location.
(i) A hearing shall
be continued past the scheduled date or to another date in accordance with RSA
541-A:11, III when:
(1)
The time available is not sufficient to give each person who wishes to
speak a reasonable opportunity to do so; or
(2)
The capacity of the room in which the hearing is to be held does not
accommodate the number of people who wish to attend and it is not possible to
move the hearing to another location.
(j) Written or electronic comments, which may be
submitted in lieu of or in additional to oral testimony, shall be accepted up
to 10 days after the adjournment of a hearing, or after the adjournment of a
postponed or continued hearing.
Source. #12617-A, eff 9-6-18
Eth 214.03 Petition for Rulemaking.
(a)
Any person may request the committee to commence a proceeding for the
purpose of adopting, amending, or repealing a rule by filing a written petition
that contains:
(1) A statement of the petitioner’s request for
the proposed rule;
(2) The text of the proposed rule or a statement
of the particular results intended by the petitioner’s interest in the subject
matter of the proposed rule;
(3) An identification of the particular rule
sought to be amended or repealed;
(4) Any data or argument the petitioner believes
would be useful to the committee in deciding whether to commence a rulemaking
proceeding; and
(5) Name, address, and signature of petitioner,
and date.
Source. #12617-A, eff 9-6-18
Eth 214.04 Disposition of Petitions for Rulemaking.
(a)
The committee shall request additional information or argument from the
petitioner for rulemaking or from others if such additional information or
argument is required to reach a reasoned decision.
(b)
The committee shall deny the petition for rulemaking when the adoption,
amendment, or repeal sought would result in:
(1)
A rule that is not within the rulemaking authority of the committee;
(2)
Duplication of a rule or of a statutory provision;
(3)
An inconsistency with the existing rules and the statutory mandate of
the committee;
(4)
A reduction in efficiency or effectiveness of the committee.
(c)
At its first meeting occurring at least 2 weeks after receipt of a
sufficient petition, the committee shall dispose of it in the following manner:
(1)
By notifying the petitioner that the petition is granted and beginning
rulemaking proceedings as required by RSA 541-A:4; or
(2)
By notifying the petitioner in writing that the petition is denied and
the reasons for its denial.
(d)
The denial of a petition for rulemaking shall not entitle the petitioner
to a hearing.
Source. #12617-A, eff 9-6-18
PART Eth 215 EXPLANATION OF ADOPTED RULES
Eth
215.01 Requests for Explanation of
Adopted Rules. Any interested person
may, within 30 days of the final adoption of a rule, request a written
explanation of that rule by making a written request to the committee
including:
(a) The name and address of the individual making
the request; or
(b) If the request is that of an organization or
other entity, the name and address of such organization or entity and the name
and address of the representative authorized by the organization or entity to
make the request.
Source. #12617-A, eff 9-6-18
Eth 215.02 Contents of Explanation. The committee shall, within 90 days of
receiving a request in accordance with Eth 215.01, provide a written response
which:
(a) Concisely states the meaning of the rule
adopted;
(b) Concisely states the principal reasons for and
against the adoption of the rule in its final form; and
(c) States, if the committee did so, why the
committee overruled any arguments and considerations presented against the
rule.
Source. #12617-A, eff 9-6-18
PART Eth 216 DISCIPLINE OF COMMITTEE MEMBERS
Eth
216.01 Grounds for Discipline of
Committee Members.
(a) A committee member shall not:
(1)
Fail to disclose a conflict of interest justifying good cause for
recusal, as set forth in Eth 204.02(d) as soon as the member becomes aware or
should have been aware of its existence;
(2)
Engage in any of the activities prohibited by RSA 21-G:29, VI;
(3)
Fail to attend more than 3 scheduled committee meetings within a
calendar year without good cause which shall include:
a.
Illness;
b.
A scheduling conflict brought to the attention of the chair as soon as
the member realizes that such scheduling conflict exists; and
c.
Any other circumstance beyond the control of the member which prevents
the member from attending a meeting; or
(4)
Breach confidentiality provided for by RSA 21-G:30, RSA 21-G:31, and RSA
91-A.
(b) Allegations that a committee member failed to
comply with (a) above shall be submitted in writing to the committee. The committee shall provide a copy of the
written allegation to the respective committee member.
(c) The committee, without the member who is the
subject of the allegation, shall investigate allegations submitted to it.
(d) If the committee’s investigation pursuant to
(c) above reveals that the allegation is founded, the committee shall take one
of the following actions:
(1) Issue a
private reprimand;
(2) Impose a
corrective action plan;
(3) Issue a
public reprimand; or
(4) Recommend
to the governor and executive council that such member be removed from the
committee pursuant to RSA 4:1.
(e) In determining the appropriate action to take
pursuant to (d) above, the committee shall consider:
(1) The
egregiousness of the conduct;
(2) Whether the
committee member acknowledged his or her wrongdoing; and
(3) Any other
factor that indicates the committee member disregards the need to maintain high
ethical standards as a member of the committee.
(f) In evaluating the egregiousness of the
conduct, the committee shall consider the following:
(1) Whether the
conduct adversely impacted the fairness of any proceeding before the committee,
or any action of the committee;
(2) The extent
to which the conduct poses a serious adverse impact on public confidence in the
committee; and
(3) The purpose
of the rule or statute violated.
Source. #12617-B, eff
9-6-18
PART Eth 217 ADVISORY OPINIONS
Eth
217.01 Requests for Advisory Opinions.
(a) Pursuant to RSA 21-G:31-a, any executive
branch official may submit a request for an advisory opinion from the committee
on any matter within the committee’s jurisdiction. Such requests shall be encouraged so that
questions about ethical issues can be addressed before they actually arise.
(b) A request for an advisory opinion shall be submitted
in writing, and shall include all material facts known to the executive branch
official.
(c) The request for an advisory opinion shall be
signed by the executive branch official.
(d) If the committee determines that an oral
presentation or additional information from the requestor or other person might
assist the committee in understanding the facts unique to the request or any
public policy implicated in the request, it shall request that such person or
persons address the committee or supply such additional information. The presentation to the committee shall be
made in non-public session if the committee determines that any of the
statutory bases set forth in RSA 91-A:3, II, has been met and not waived, and
follows the process set forth in RSA 91-A:3, I and III.
(e) The committee shall discuss its contents and
attempt to arrive at a decision with respect to each issue presented as soon as
practicable, given the complexities of the issues presented.
(f) Once a decision has been reached, the chair
shall assign a member of the committee to create a draft advisory opinion for
circulation among all the committee members as soon as practicable, or request
such a draft advisory opinion from department of justice legal counsel.
(g) After revising the draft advisory opinion so
that at least 4 members are in agreement as to its substance and content, the
committee shall issue the advisory opinion to the executive branch official who
requested it. Such a full, unredacted advisory opinion shall remain confidential.
(h) No earlier than the release of the advisory
opinion to the executive branch official, and once all information that could
identify such executive branch official has been redacted, the committee shall
release the redacted advisory opinion to the public by posting it on the
department of justice’s website.
Source. #12617-B, eff
9-6-18
PART Eth 218 ETHICS GUIDELINES
Eth
218.01 Request for Ethics Guideline.
(a) Any person may request that the committee
issue an ethics guideline relating to the meaning of one or more provisions of
RSA 15-A, RSA 15-B, and RSA 21-G:21-27 as applied to a general set of
circumstances.
(b) The request shall be submitted to the
committee in writing.
(c) Within 60 days, the committee shall discuss
the request in a public session and receive public comment.
(d) Once the committee has agreed on the general
content of the guideline, the chair shall assign a member of the committee to
create a draft guideline for review by the committee members, or request such a
draft guideline from the committee’s legal counsel.
(e) After revising the draft advisory opinion so
that at least 4 members are in agreement as to its content, the committee shall
issue the guideline.
(f) Nothing shall prevent the committee from
initiating the process for the drafting and issuance of an ethics guideline on
its own motion.
Source. #12617-B, eff
9-6-18
APPENDIX
Rule |
Specific State Statute the Rule
Implements |
Eth
101 |
RSA
541-A:16, I(a); RSA 21-G:32 |
Eth
102 |
RSA
21-G:21; RSA 21-G:29; RSA 15-A:2; RSA 15-B:2 |
Eth
103.01 |
RSA
21-G:29; RSA 21-G:30 |
Eth
103.02 to Eth 103.03 |
RSA
21-G:29 |
Eth
103.04 to Eth 103.05 |
RSA
21-G:30, II |
Eth
103.06 |
RSA
21-G:30, II; RSA 21-G:31, V and VII |
Eth
103.07 |
RSA
91-A:2; RSA 91-A:3; RSA 21-G:31, V |
Eth
103.08 to Eth 103.09 |
RSA
91-A:2, II |
Eth
104.01 to Eth 104.02 |
RSA
541-A:16, I(a) |
Eth
104.03 |
RSA
21-G:33 |
Eth
104.04 |
RSA
91-A:4, IV |
Eth
104.05 |
RSA
21-G:32; RSA 541-A:14, IV |
Eth
201- Eth 202 |
RSA
21-G:32 |
Eth
203 |
RSA
21-G:31; RSA 21-G:32 |
Eth
204.01 |
RSA
541-A:16, I(b); RSA 541-A:30-a |
Eth
204.02 |
RSA
21-G:31, VII |
Eth
204.03 |
RSA
541-A:22, IV |
Eth
205 – Eth 207 |
RSA
541-A:30-a, III |
Eth
208 |
RSA
541-A:31 |
Eth
209 |
RSA
541-A:30-a, III(g); RSA 541-A:32 |
Eth
210.01 – Eth 210.03 |
RSA
541-A:30-a, III(c) |
Eth
210.04 |
RSA
21-G:31, VI |
Eth
211 |
RSA
541-A:16, I(b); RSA 541-A:30-a, III(h) |
Eth
212.01 |
RSA
541-A:31, VII |
Eth
212.02 |
RSA
541-A:36 |
Eth
212.03 |
RSA
541-A:30-a, III(d) and (e); RSA 21-G:31, III |
Eth
212.04 – Eth 212.05 |
RSA
541-A:16, I(b) |
Eth
212.06 |
RSA
541-A:33 |
Eth
212.07 |
RSA
541-A:35 |
Eth
212.08 |
RSA
541-A:16, I(b); RSA 541-A:30-a |
Eth
212.09 |
RSA
541-A:30-a, III(i) |
Eth
212.10 |
RSA
541-A:30-a, III; RSA 541-A:34 |
Eth
213 |
RSA
541-A:30-a, III |
Eth
214.01 |
RSA
541-A:5–16; RSA 541-A:19 |
Eth
214.02 |
RSA
541-A:11; RSA 541-A:16, I(b)(3) |
Eth
214.03 – Eth 214.04 |
RSA
541-A:4; RSA 541-A:16, I(c) |
Eth
215 |
RSA
541-A:11, VII |
Eth
216 |
RSA
21-G:32 |
Eth
217 |
RSA
21-G:31-a |
Eth
218 |
RSA
21-G:30, I(a) |