By GARRY RAYNO, Distant Dome
The New Hampshire Legislature has an ethics committee, established decades ago to review those thorny issues that may put lawmakers in a dark light.
However, several incidents occurred in the last month that either did not go before the committee or were processed in a way to avoid the sunshine that is the public’s right-to-know.
One involves charity gambling and the money that changes hands in that activity and the other is a question of constitutional responsibility and serving in the legislature.
The gambling issue was resolved legislatively when House Speaker Pro Tem Laurie Sanborn, R-Bedford, resigned as chair of a newly created commission to review recent changes to the charity gambling industry.
Sanborn and her husband, former state Sen. Andy Sanborn, have long been in the hospitality business, but more recently opened a charity casino in Concord at the site of their restaurant.
Normally House leadership would want to avoid something that might create the appearance of a conflict-of-interest, but an industry stakeholder was named chair of the committee, which is equivalent to putting the fox in charge of the chicken coop.
One or two people from the industry should be on the commission, but a person who owns or whose husband owns a casino should not be chair, particularly when she is a lawmaker in the House Republican leadership.
Someone in that position could use his or her position to pressure other lawmakers.
The other issue has more far-reaching implications.
Last week, Rep. Troy Merner of who knows where, was forced to resign from the House because an Attorney General’s Office investigation showed he did not live in his district and had not since August 2022, long before his reelection and voting in Lancaster instead of his new residence in Carroll, which is 15 miles away and not in the district he was elected to represent.
Merner, who was also a Lancaster selectman, continued to vote in the House although he knew he was under investigation, and collected mileage payments as though he still lived in Lancaster. That is a difference of about $15 a day.
While the attorney general’s report notes House members decide who will sit as a member of the august body, the state constitution clearly states a representative must live in his or her district.
The constitution is clear that “lives in” means “lives in” and not “does not live in any longer,” but “I want to serve out my term.”
Under the state constitution, Merner should not have been sworn in last December or been casting votes during the 2023 session, which he did.
The complaint against Merner was filed six months ago, but did not come to light until the attorney general’s report was released last week, although a good question to ask is who in the House leadership knew about the complaint and did nothing to correct the illegality.
At one time, complaints were supposed to become public information once the Legislative Ethics Committee determines there is sufficient evidence to launch an investigation. Evidently that did not happen in Merner’s case or Democrats likely would have challenged his membership.
Constitutionally, Merner should not have been a member of the House and should not have been able to vote on bills and motions this past session.
However, because he voted, his vote was the determining vote on a number of House bills, several of which were some of the most controversial legislation before lawmakers this year like reproductive rights and Education Freedom Accounts.
Let’s begin with House Bill 271, which would have repealed the state’s 24-week abortion ban passed three years ago in the state budget signed by Gov. Chris Sununu.
The bill failed to pass on a 192-192 vote with House Speaker Sherman Packard voting to create the tie and kill the bill. The speaker traditionally does not vote unless it is to break a tie or to create a tie, which he did.
Merner voted to kill the bill. If he had not voted, the vote would have been 192-190 and Packard could not have created the tie and the bill would have passed the House.
Merner was also the deciding vote on a bill that did away with some key working restrictions for students at night during the school year, House Bill 125.
The bill was opposed by all the Democrats voting, but supported by all but four Republicans. Merner voted with the vast majority of his party.
The vote was 183-183 to adopt an amendment to expand night hours for students during the school year, without the speaker voting. Without Merner’s vote, the vote would have been 183-182 to not pass the bill, which Packard could have voted on and tied.
Ultimately the bill was killed on a 195-175 vote.
Two bills that also were decided by ties or one vote were on the state’s controversial Education Freedom Accounts program, which has grown fourfold in three years to over 4,000 students, the vast majority using the program to pay tuition to religious and private schools and homeschooling costs.
One of the bills, House Bill 430, would have required students applying to the EFA program to attend public school, including a charter school, for a year before applying, or if they are entering kindergarten or first grade.
The bill was aimed at preventing the majority of students who were already in religious or private schools or homeschooling programs before the program began from accessing the state money to subsidize their education costs, which is what happened.
The program was touted as an opportunity for lower income families to remove their students from public schools and into alternative education settings more appropriate for their learning abilities.
The vote to pass the bill was 185-185 which failed as Packard again cast his vote to create the tie.
If Merner, who voted with his fellow Republicans against passing the bill, had not voted, it would have been 185 to 183 and Packard could not have created the tie and the bill would have passed.
The bill was tabled and ultimately voted on again and killed on a 194-192 vote.
House Bill 626 would have required the Department of Education to administer the Education Freedom Account program. Currently the Children’s Scholarship Fund New Hampshire administers the program, oversees purchases, qualifies vendors and students, and distributes the grant money to parents.
The fund receives 10 percent of what it distributes for administering the program, which for the first two years was well over $2 million and some lawmakers believe the department could do the work for much less.
The bill initially passed on a partisan 183-180 vote on Feb. 14, but was referred to the House Finance Committee for review and came back to the floor a month-and-a-half later with a 13-12 recommendation to kill the bill and give Republicans a second bite at the apple. The House killed the bill on a 195-194 vote.
Merner voted in favor of killing the bill on the second vote. Without his vote, it would have been a tie, and Packard would most likely break it with a vote to kill the bill.
Most if not all of these bills would have died in the Senate or been vetoed by Sununu, but the House would have had a different record on the issues if the bills had passed or not been killed.
By allowing Merner to continue to vote, House Republican leadership had an additional vote they should not have had. A special election may have resulted in a Republican winning the seat and voting with his or her party, but it may not have.
And a special election could not have occurred before the start of the session and would have made the Republican majority one member thinner than it was.
Allowing Merner to continue to serve is much like the House Republican Leadership voting down allowing disabled and at-risk Democrats to vote remotely as the Senate allows to avoid a potentially lethal case of COVID-19.
It was a political calculation to pad a slim majority to gain an advantage voters did not give Republicans in the 2022 election.
When House and Senate members are sworn in on the first Wednesday in December after the general election, they swear to uphold the state constitution. Apparently, some do not believe that applies to them.
Garry Rayno may be reached at email@example.com.
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.