New Hampshire Code of Administrative Rules
Eth - Executive Branch Ethics Committee (See RSA 21-G:32 pursuant to 2006, 21:3, effective 6-2-06.)
Chapter Eth 200 - RULES OF PRACTICE AND PROCEDURE
Part Eth 203 - COMPLAINTS
Section Eth 203.03 - Processing of Complaints by the Committee

Universal Citation: NH Admin Rules Eth 203.03

Current through Register No. 40, October 3, 2024

(a) Upon receipt of a non-deficient complaint, and before any other action is taken by the committee, the committee shall provide a copy of the complaint to the respondent(s), and inform the respondent of the date of the next committee meeting and that he or she may submit a written response to complaint.

(b) After promptly examining such complaint, the committee shall, pursuant to RSA 21-G:31, I(a), summarily discharge the complaint if it determines by unanimous vote that the complaint is:

(1) Frivolous;

(2) Filed against a person who is neither a current executive branch official nor a former executive branch official against whom the complaint was filed within 180 days of his or her leaving office; or

(3) Without merit and is one or both of the following:
a. Scurrilous; or

b. Retaliatory.

(c) If a complaint is not summarily discharged pursuant to (b) above, the committee shall review the complaint and any attachments to determine whether:

(1) The alleged conduct falls outside the committee's jurisdiction;

(2) The facts, as described in the complaint, are insufficient to support a finding that the respondent engaged in misconduct; or

(3) Both of the foregoing.

(d) If the committee determines that any of (c) (1) - (3) above apply, the complaint shall be dismissed pursuant to RSA 21-G:31, I(b). Such dismissal, along with an explanation of the basis for such determination, shall be reported to the complainant and the respondent.

(e) If the complaint is not dismissed pursuant to (b) through (d) above, the committee shall conduct a preliminary investigation, as follows:

(1) If, after review of the complaint and any response provided by the respondent, the committee determines it has sufficient information to address the merits of the complaint, it shall proceed to a vote pursuant to (f) below;

(2) If the committee determines that additional information is necessary, it shall:
a. Appoint one of its members to gather the information; or

b. If interviews are necessary, request the assistance of an investigator employed by the New Hampshire department of justice;

(3) Upon completion of the investigation, the committee member or investigator shall provide a written report of investigation to the committee;

(4) Upon review of the report of investigation, the committee shall, as necessary, request that committee member or investigator conduct further investigation or that he or she appear before the committee to answer questions; and

(5) Any committee member who participates in the investigation shall not participate in any further actions of the committee, as a member of the committee, concerning the subject matter of that investigation.

(f) Upon completion of the preliminary investigation, the committee shall, by recorded vote, conclude one of the following:

(1) No violation occurred, and no further action is appropriate;

(2) A violation occurred but no formal action by the committee is warranted; or

(3) There are reasonable grounds to believe a violation occurred, and formal proceedings shall be instituted.

(g) A vote not to proceed with formal committee action pursuant to (f)(2) above shall be based on a finding that:

(1) The violation was inadvertent or the underlying conduct would have no impact on the public's perception of public officials; and

(2) The underlying conduct did not adversely impact any other person.

(h) If the committee votes not to proceed with formal committee action pursuant to (f)(2), the committee shall send a letter to the respondent identifying the violation and warning that future violations may be pursued through formal proceedings. A copy of the letter shall be sent to the complainant, the respondent, and the respondent's state employer or appointing authority at the time of the violation.

(i) If the committee determines that a formal hearing should be conducted pursuant to (f)(3) above, it shall issue a formal statement of charges to be decided at such hearing. The statement of formal charges shall comply with the requirements of RSA 541-A:31, III, and Eth 208.03.

(j) Upon the committee's request, the matter shall be prosecuted by the committee member, the department of justice investigator or assistant attorney general who conducted the preliminary investigation on behalf of the committee.

(k) Upon completion of the hearing, the committee shall conclude by recorded vote that:

(1) No violation occurred and no further action is appropriate;

(2) No further action is appropriate because there is not clear and convincing evidence that a violation occurred;

(3) Although clear and convincing evidence that a violation occurred exists, the nature of the violation does not warrant formal disciplinary action based on the criteria in (l) below and shall be resolved by informal methods; or

(4) There is clear and convincing evidence that a violation occurred and the violation was of a serious nature based on the criteria in (l) below, so as to warrant formal disciplinary action.

(l) In determining whether a violation is sufficiently serious to warrant formal disciplinary action under (k) (3) or (k) (4) above, the presence or absence of the following shall be considered as aggravating factors:

(1) The violation involved the misuse of influence or confidential information;

(2) The violation involved financial gain;

(3) The violation resulted in economic loss to one or more individuals;

(4) The respondent engaged in similar conduct in the past;

(5) The violation poses a serious adverse impact on the public's confidence in its public officials; and

(6) The need for individual or public deterrence.

(m) If the committee concludes that no formal disciplinary action is warranted, as provided in (k) (3) above, the committee shall send a letter to the respondent that identifies the nature of the violation found and explains the reasons for the committee's action. A copy of the letter shall be sent to the complainant, the respondent, and to the respondent's state employer or appointing authority at the time of the violation.

(n) If the committee concludes formal disciplinary action is warranted, as provided in (k) (4) above, it shall make a recommendation to the respondent's state employer or appointing authority for discipline in accordance with that employer's or appointing authority's disciplinary authority, if a majority of the members agree upon such a recommendation.

(o) If, at any point in the complaint process, a majority of members conclude that the case should be referred to the department of justice for criminal prosecution, it shall make such a referral. If the committee is informed by the department of justice that continuing with the proceeding might interfere with a criminal prosecution, it shall suspend its proceeding until such time as it would not so interfere.

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