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.

 

Source.  #12617-A, eff 9-6-18

 

         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.

 

Source.  #12617-A, eff 9-6-18

 

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.”

 

Source.  #12617-A, eff 9-6-18

 

          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.”

 

Source.  #12617-A, eff 9-6-18

 

         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.

 

Source.  #12617-A, eff 9-6-18

 

         Eth 102.04  “Committee” means the executive branch ethics committee established pursuant to RSA 21-G:29, I.

 

Source.  #12617-A, eff 9-6-18

 

         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.”

 

Source.  #12617-A, eff 9-6-18

 

         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.”

 

Source.  #12617-A, eff 9-6-18

 

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).

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          Eth 103.05  Quorum.  A quorum for a meeting or hearing consists of 4 members.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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).

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

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.

 

Source.  #12617-A, eff 9-6-18

 

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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

          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.

 

Source.  #12617-A, eff 9-6-18

 

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)