Chairman Ingbretson's November 28, 2012 "Special Report To The Speaker"

[italicized comments in square brackets were added by me.]

HOUSE COMMITTEE ON REDRESS OF GRIEVANCES SPECIAL REPORT TO THE SPEAKER

(PRINTED AT THE REQUEST OF SPEAKER O'BRIEN)

History:

Part I, Article 31 of the New Hampshire Constitution provides:

• The legislature shall assemble for the redress of public grievances and for making such laws as the public good may require.

Part I, Article 32 of the New Hampshire Constitution provides:

• The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.

Pursuant to these provisions, the Legislature historically considered and acted upon petitions from citizens.  The Legislature would form a committee to consider an individual petition which was entered by a legislator on behalf of a citizen, hear from the petitioner and other parties and subsequently recommend legislation as a remedy.  This practice continued through the 19^th century and was provided for in statute until 1925. After the Merrill v Sherburne decision, the number of petitions slowly decreased through the 19^th century until the practice ceased in the early 20^th century.  For a fuller explanation of this history, see April 4, 2003 Memo contained in Appendix A.  [I actually found one from 1945.] The House Committee for Redress of Grievances was established in 2011 to continue this historical duty of the Legislature.

Development of Process & Procedures:

With the establishment of a formal Committee for Redress of Grievances in 2011, in addition to House Rules, unique rules of process and procedure were required to manage this committee.  The Chairman, working with researchers and staff, established forms and procedures for petitioners and legislative sponsors to follow in the creation of petitions, developed an approach and style for the drafting of petitions by the Office of Legislative Services, produced rules and forms for committee procedures, developed forms and protocols for noticing petitioners and respondents, and adopted an approach and for executing committee reports.

Copies of all relevant committee processes and documents are contained in Appendix B.

Summary of Committee Work:

During the 2011-2012 Session, the committee heard 28 petitions, issuing reports to the full House on 27, one petition having been withdrawn by the petitioner. [Personally, I believe these should have been handled as if they were bills or resolutions, which means they should have been sent to the full House.]

Of the 27 reports, 20 were Founded and 7 were Unfounded.

Of the 20 Founded reports, 1 was unanimous and 19 were split or had a minority report; of the 7 Unfounded reports, 3 were unanimous and 4 were split or had a minority report.

The majority of the petitions claimed violations of due process relating to the Judicial Branch Family Division as well as guardians ad litem in divorce cases.  Other petitions involved alleged abuses of parental rights, best interests of the child and other abuses of discretion or power by decision-makers.  The petitions sought relief against judges, marital masters, guardians ad litem, and agency staff disproportionately from the Department of Health and Human Services.

A minority of the petitions involved issues not related to family law; these petitions were split between complaints against state and municipal officials.  In the former category were complaints against the Attorney General's Office, the Banking Department and the Department of Labor and in the latter category were complaints against law enforcement officials, teachers, and municipal assessors and a municipal board.

Recommendations:

The revival of the petitions process after many dormant years and the establishment of a standing committee to address the petitions created many challenges, particularly in the area of process and procedure.  The Chair recognizes certain areas which will need to be addressed in the future and therefore makes the following recommendations:

• Expediting Petitions: Committee attendance became an issue and the committee required numerous substitute members to complete its work; this is a problem in that members making recommendations on the petitions may not have been present during the hearings or work sessions.  To this end, the Chair recommends a smaller truly dedicated committee in the future and a closer proximity between final hearings and reports. Any committee hearing petitions for the redress of grievances must act swiftly in the first year thus enabling the corrective legislation, if any, to be handled in that same year without special allowances through the Rules Committee.

• Committee Composition: A related issue involved committee members who were unfamiliar with committee process or with the issues involved in the petitions.  The Chair recommends that a future committee be composed of a more even mix of experienced members and new members, as well as members who have particular experience from other committees in the subject matter which come before the committee, such as family law or municipal law.  The Chair also stresses the importance of having an experienced committee clerk to manage the voluminous public records submitted to the committee and utilized in making recommendations on the petitions as well as following up on notification issues and minutes.  [Speaker O'Brien encouraged chairs to appoint first-year members as clerks. Our clerk struggled with her job, even though she was strongly committed to it.] Finally, the Chair suggests that each standing policy committee identify a member to sit on the Redress Committee for those petitions which concern their policy area who will be made available to the Committee as needed.

• Committee Objectivity: In the interest of maintaining as much objectivity as possible committee members who have a personal involvement and interest in any petition should be required to recuse himself from questioning individuals and voting on those petition reports.   All members should be similarly encouraged to remain objective and not express opinions on a petition until all hearings and other information is finally digested. [This is aimed largely at me: I did annoy several of the petitioners by criticizing them and/or disagreeing with them.]

• Chair Responsibilities: The committee procedure requires the Chair to both review and sign off on a petition before referral to committee.  Any future chair will need to exercise close oversight of the drafting/sign-off process, particularly in conjunction with the petition sponsor, to insure that the petitions are properly drafted, state specific legislative remedies, and to prevent mistakes from proceeding to the House and the committee. The Chair must emphasize to petition sponsors  their duty to expedite committee time by limiting extraneous testimony and documentation as much as possible assuming the responsibility for the presentation as much as any bill he may present.  [Actually, the more documentation we had, the easier it usually was to figure out what the heck the petitioners were going on and on about. Unfortunately for the petitioners, the documents often failed to prove what they were supposed to prove.] The Chair must become familiar with the Legislative Ethics Committee's INTERPRETIVE RULING 2012-#3, NOVEMBER 14, 2012, protecting private citizens and assure that Sponsors stay within those bounds when writing petitions. A copy of this ruling is in Appendix C.

• Notice to Parties: It is fundamental that notice be sent to the parties involved in the petition. The procedures provide for notice to the petitioner and to named parties; however, great care needs to be taken to insure that all affected parties receive proper notice.  To this end, the Chair recommends that notice letters be expanded to inform the petitioner or respondent of the purpose of the particular meeting and to explain the parties' roles, rights, and responsibilities in the face of a new legislative process.

• Power to Subpoena: The power to subpoena officials rests with the House and the Chair believes that it should remain there to be requested as needed through the Rules committee and the Speaker.

• Committee Reports: The Chair notes that the reports generated by the committee are different from the standard committee report or "blurb."  The committee reports are not voted on by the full House, but rather state the committee's findings and recommendations, much like a chaptered study committee report.  As such, the Chair recommends the development of a consistent House format for committee reports so that the committee may state its findings and recommendations to the full House with a predictable look.

• Statutory Recommendation: The Chair finds that the information and oversight provided through the Redress process has already provided a check on official behavior and a sense of relief to citizens. It is an invaluable element for a legislature that wants the agencies it creates and individuals it hires to be fully responsible to New Hampshire's citizens. In order to ensure that the benefits of the committee continues into the future and not become the victim of political whim, the Chair recommends that the process for redress of grievances be made permanent in statute.

In conclusion, the Chair believes that the committee has been successful in performing its constitutional duty to hear petitions for redress of grievances. The recommendations for redress of twenty founded petitions now rest with the new legislators in the House.  Following up by correcting the wrongs done through legislative action still remains if we are to actually fulfill our constitutional obligations.

Respectfully Submitted,

Rep. Paul Ingbretson, Chair

INTERPRETIVE RULING 2012-#3 (November 14, 2012)

Supplementing Interpretive Ruling 2011-#1 Relating to Obligations of Legislators in Connection with Proposed Petitions for the Redress of Grievances

Further questions have arisen regarding the obligations of legislators in connection with requests from members of the public to present petitions for redress of grievances on their behalf. Specifically, the questions are

1. what obligations legislators may have when asked to include in a Grievance Petition information that involves private health or financial information of third parties, i.e., persons who are not the object of the redress sought by the request; and

2. what obligations legislators may have in connection with dissemination of such information though unofficial channels.

The Committee has reviewed applicable provisions of the New Hampshire Constitution, statutes, rules, and Ethics Guidelines governing the conduct of legislators in the performance of their duties as such, and interprets them as follows.

1. Obligation to exercise caution and due diligence in considering what information should properly be included in a Grievance Petition. Legislators should exercise caution and due diligence about the propriety of including, and the accuracy of, private health or financial information of third parties, i.e., persons who are not the object of the redress sought by the request. Where a request proposes to include such information in a Grievance Petition, it is not sufficient for a legislator simply to include the information as submitted, without exercising independent judgment about whether the information is protected by law from disclosure, whether the information appears to be accurate, and whether including it is necessary to support granting the relief sought in the requested Petition.

2. Obligation to exercise caution and due diligence in considering whether to further disseminate, through unofficial channels, private health or financial information of third parties contained in Grievance Petitions. Legislators should not further discuss or disseminate such information through unofficial channels without first exercising independent judgment about whether the information is protected by law from disclosure, whether the information appears to be accurate, and whether it is necessary to support granting the relief sought in the Petition.

Martin L. Gross, Chairman For the Committee