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Bar News - May 4, 2007


Executive Branch Ethics Committee Goes to Work

 

Established by a new law (RSA: 21-G), the seven-member Executive Branch Ethics Committee began meeting in January 2007 under the chairmanship of Attorney David L. Nixon. Nixon, of Nixon Raiche Vogelman Barry & Slawsky in Manchester, was appointed to lead the committee by Gov. John Lynch.

           

The committee, whose members will serve three-year terms on a staggered basis, is tasked with issuing guidelines and interpreting the code of ethics which applies to executive branch officials who are not classified as employees.

           

The members of the committee, none of whom may be employed in the executive branch or be registered as a lobbyist, were appointed by the governor, the secretary of state and the treasurer.

           

The current membership of the committee includes: Nixon, chair; Dale S. Kuehne, vice chair, of St. Anselm College; John E. Blair, secretary (former adjutant general of the NH National Guard); L. Douglas O’Brien, a corporate executive; Patricia B. Quigley, a Manchester attorney and member of the NHBA Ethics Committee; and Deborah J. Schachter, of the NH Charitable Foundation. There is currently a vacancy on the committee due to the resignation of John Barthelmes, who was recently appointed as commissioner of the Department of Safety.

           

Opinions issued by the committee and other information about its operations will be included on the Dept. of Justice Web site at www.doj.state.nh.us.

           

The following are excerpts of the advisory opinions issued by the Committee as of Bar News press time.

 

Advisory Opinion 2007-001

Feb. 21, 2007

 

Question Presented:

           

May a member of a professional licensing or regulatory board/commission who is a member of the regulated profession or who is otherwise subject to the regulations set by the board/commission vote on the adoption or amendment of such regulations without violating the conflict of interest prohibition of RSA 21-G:22?

 

Summary Answer:

           

Yes. Unless the member of the board/commission has a specific conflict of interest arising from the issue being considered, he or she may participate in votes on regulations.

 

Advisory Opinion 2007-002

Feb. 21, 2007

 

Question Presented:

           

May a department solicit sponsorship from regulated companies/persons for training to be conducted by the State?

 

Summary Answer:

           

No, unless prior approval from the governor has been obtained. Such solicitation raises serious concerns about the potential to cause a conflict of interest. It seems all too likely that sponsorship gifts from those subject to department regulation would be made with the hope of currying favor with officials or employees who have regulatory authority over those solicited. The Committee, therefore, strongly recommends against the practice of soliciting sponsorships from regulated persons/entities, unless such solicitation is approved in advance by the governor as a gift by the sponsor to the State.

           

To the extent that there should arise circumstances where sponsorship gifts are appropriate, their acceptance must be approved by the governor under RSA 4:8 as a gift to the state.

 

Advisory Opinion 2007-003

Feb. 21, 2007

 

Question Presented:

           

May a state employee who has earned frequent-flyer mileage as a result of state-reimbursed travel use the benefit for personal purposes?

 

Summary Answer:

           

Yes. State employees who pay for travel for state purposes and are then reimbursed for the travel costs by the state may use frequent-flyer benefits for their personal use provided the benefits were obtained under the same conditions as those offered the general public and at no additional costs to the state.

 

Advisory Opinion 2007-004

Feb. 21, 2007

 

Question Presented:

           

Is it acceptable for a public official or a state employee to use Department/Agency letterhead to send an employment reference for a person who was not employed by, and who has not done work for, the Department/Agency?

 

Summary Answer:

           

Yes. Provided the public official/employee had personal knowledge of the individual seeking the recommendation by virtue of working with the individual in a government capacity and issuing a letter of recommendation is a reasonable extension of the public official/employee’s responsibility.

 

Advisory Opinion 2007-005

Feb. 21, 2007

 

Question Presented

           

May a state employee accept free transportation to an event that the employee is attending in his or her official capacity from a person who is employed by an entity regulated by his or her agency?

 

Summary Answer

           

Yes. The state employee and the leadership of the department are, however, cautioned to reject the gift of free transportation if a conflict of interest would result.

 

Advisory Opinion 2007-006

Feb. 21, 2007

 

Question Presented:

           

An employee of the state has agreed to accept employment with a private corporation. That employment will begin in several months and the employee will remain in his or her state employment during that period of time. The future employer responded to a Request for Proposals (“RFP”) issued by the employee’s Department/Agency. The employee was not involved in issuing or evaluating the RFP. The future employer has been awarded the contract. The departing state employee will recuse himself or herself from any contract administration and does not expect to work on the state contract after beginning employment with the corporation. Has the employee satisfied all requirements of the ethics law?

 

Summary Answer:

           

Yes. The employee has satisfied all requirements of the ethics laws and appears to have taken the necessary steps to avoid any potential conflict of interest.

 

Advisory Opinion 2007-007

Feb. 21, 2007

 

Question Presented:

           

Are members of a statutorily established executive branch advisory commission who are not appointed by the governor, Governor and Executive Council, the president of the Senate, or the speaker of the House required to file a statement of financial interest?

 

Summary Answer:

           

Yes. A person who accepts an appointment by a private organization or authority to a statutorily established executive branch advisory commission is subject to the duty to file a statement of financial interest because he or she is volunteering to act on behalf of the governor or an agency engaged in state business.

 

Facts:

           

Councils and foundations, private organizations that have an interest in the public policy and practice at issue, but which are not part of the state government, appoint certain members of an advisory commission that advises a state executive branch official. Executive or legislative branch officials appoint the remaining members of the commission. All of the members of the commission have an equal opportunity to influence public policy and practice.

 

Advisory Opinion 2007-008

April 11,2007

 

Question Presented:

           

May an elected executive branch official vote on the confirmation of an individual nominated to an executive branch position when the elected official’s campaign received a political campaign contribution from the nominee at the most recent election?

 

Summary Answer:

           

Yes. There has been full, lawful disclosure of the contribution in question, there is no statute, court ruling or ethical rule which would disqualify the executive branch official from voting on the nomination presented for consideration.

 

Until the Web site page for the Committee is operational, contact Orville B. Fitch, II, Deputy Attorney General for copies of the full text of opinions issued by the Executive Branch Ethics Committee at bud.fitch@doj.nh.gov or at 603-271-1238. For formal inquiries, write to the Committee, care of the Attorney General’s Office, 33 Capitol Street, Concord, NH 03301.

 

 

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