By PAULA TRACY, InDepthNH.org
CONCORD – A Senate bill related to making public police decertification hearings might be replaced with a House version of the bill that is expected to be amended to include releasing the unredacted “Laurie List” of dishonest police.
The House Judiciary Committee Tuesday morning heard Senate Bill 41, but the only speaker urged that the bill be retained and allow for another, clearer measure to move forward, House Bill 471.
State Rep. Ned Gordon, R-Bristol, chair of the committee, noted that 81 people had signed up in support of the bill, three were in opposition but only one person testified.
That was ACLU-NH legal director Gilles Bissonnette, who supported the bill but urged the committee to retain it and allow the similar House Bill 471 to be amended and proceed. It is still in the Senate Judiciary Committee.
A copy of the proposed amendment is here http://gencourt.state.nh.us/bill_status/billtext.aspx?sy=2021&txtFormat=amend&id=2021-1118S
All sworn New Hampshire police officers, including state police, are certified by the state Police Standards and Training Council.
Police decertification is usually a process that is done in secret, Bissonnette explained.
“The public is kept in the dark about what happens in these hearings and there’s no public review of the process really unless the officer, potentially being decertified, chooses to grant the public access. So, this bill would remedy this and create a process that’s more in line with how disciplinary hearings are conducted for judges and lawyers, which are public,” Bissonnette said.
He noted former Attorney General Gordon MacDonald, now Supreme Court Chief Justice, approved of this type of legislation.
Quoting MacDonald, Bissonnette read: “I would support legislative change which aligns the Police Standards and Training Council’s certification hearings with the statutes that allow other professional licensure boards to conduct public hearings. It is the right thing to do.”
Bissonnette said while SB 41 is good HB 471 as amended is better.
“It is better to use that as the vehicle,” Bissonnette said. “That language is frankly a little cleaner.”
Both bills require police disciplinary hearings be open to the public unless certain confidential information may be revealed. Only that information would be sealed.
The difference between the two bills, Bissonnette also noted, is that an amendment being considered to HB 471 would add the public disclosure of the Laurie List, which is now called the Exculpatory Evidence Schedule.
The amendment is the result of confidential negotiations between Solicitor General Dan Will and ACLU-NH along with five news outlets that signed on to the compromise in a public records lawsuit seeking disclosure of the unredacted Laurie List.
Bissonnette previously said the amendment is supported by the New Hampshire Union Leader and the news outlets he represents in the public records lawsuit — the Keene Sentinel, the Nashua Telegraph, Seacoast Newspapers and the Concord Monitor.
“All of this was done in the hope to resolve the public disclosure on the EES (Laurie List) once and for all,” Bissonnette said. “I believe this amendment as well is consistent with the LEACT commission recommendations concerning the EES.”
Bissonnette withdrew last fall from representing the lead petitioner in the lawsuit, the New Hampshire Center for Public Interest Journalism, that is now represented by attorney Andru Volinsky.
Solicitor General Will and ACLU-NH, the Union Leader and the four news outlets that Bissonnette still represents, recently filed a partially assented to motion to delay further proceedings in the lawsuit until July 1 to wait and see if the legislature passes the amended HB 471 arguing if it does pass, the lawsuit will be unnecessary because the Laurie List would become public.
See motion to stay and House Bill 471 amendment here. http://indepthnh.org/wp-content/uploads/2021/04/Partially-Joint-Motion-to-Stay-1.pdf
Volinsky filed an objection to the motion to delay the lawsuit saying under the amendment, any officer on the list could tie up the release of his or her listing by filing litigation that presents a due process claim and prevent release of the listing until that litigation is completed, which could take years.
“Finally, as if all of the tilting towards the listed officer were not enough, the whole EES (Laurie List) is made completely discretionary” by the amendment, Volinsky wrote.
On Tuesday, Hillsborough Superior Court South Judge Charles Temple granted the partially assented to motion to stay the public records lawsuit until July 1.
“This stay is intended to allow the legislative process to come to a conclusion. It avoids unnecessary litigation of the one remaining issue in this case. However, the Court will not stay this case on an indefinite basis if the legislature fails to act in a timely manner. A stay until July 1, 2021 is reasonable and appropriate under these circumstances,” Temple wrote.
The list of 280 plus police contains the redacted names of the officers who are potentially compromised in testifying because of sustained discipline in their confidential personnel file indicating dishonesty or excessive use of force.
Bissonnette recommended retaining SB 41 in committee and allowing HB 471 to proceed.
Rep. Gordon asked if the word “confidential” in the bill that was being heard is defined some place in statute.
Bissonnette said it is not defined in this bill but perhaps that is because it is modeled after the standards in the courts for when confidential information is sealed.
New Hampshire Superior Court rules of criminal procedure contain a list that could be considered confidential.
For example, a witness might have information that if made public could harm them or they may be a confidential informant.
Bissonnette said the bill would create a mechanism in those circumstances to allow that some sensitive information is sealed “but it really should be a rare event.”
“This is really modeled hereafter how the courts seal information,” Bissonnette said, rather than the current Police Standards process.
Gordon then asked about the language “compelling interest” and whether harm has to be found and by whom.
Bissonnette cited the Keene Sentinel case of a few decades ago and said he would be happy to circulate that standard to the committee.
Gordon said SB 41 does not specify who gets to decide whether a portion of a hearing should be closed. Bissonnette said that is one of the reasons why HB 471 is better.
A sentence was tacked on in the latter bill to say that the Police Standards and Training Council in a non-public session could hear and consider the request for closure. That is not in SB 41, Bissonnette noted.
“Mechanically, the way it should work is the PSTC council is doing that task in deciding whether something is confidential or not. Someone should not have to file a 91-A action,” related to the state’s right-to-know law, Bissonnette said.
“That is really, again, designed to model after the court process where the trial judge or the district judge makes the decision for information to be sealed. That decision should be private…in order to protect the interests of those involved,” Bissonnette said.
Rep. Paul Berch, D-Westmoreland, said his concern is the difference between the person who has an interest and the subject of the hearing.
“That person may be represented or part of the proceeding, but only a party can ask that the matter be closed. Let’s say I am a witness and I am part of the proceeding and there is grounds where I think my stuff should be kept private. Say I am a minor…am I reading it correctly that only a party can ask for closure,” Berch asked.
Bissonnette asked if he was speaking about SB 41, which Berch affirmed.
“I think the way I read it it is a party to the … hearing process” but he did not preclude the chance for a third party to have their interests pursued.
Bissonnette said the model ACLU-NH supports is that the process is changed to model the court process, and that is more clearly achieved by HB 471 rather than SB 41.