By NANCY WEST, InDepthNH.org
CONCORD – Former longtime New Hampshire lawmaker Peter Hoe Burling wants to know what the House Speaker and Attorney General knew about former Republican Rep. Troy Merner not living in the Coos County district he represented. And he wants to know when they knew it.
Burling has filed right-to-know requests with the offices of Speaker Sherman Packard and Attorney General John Formella to find out the timing of what they knew and why Merner continued to illegally hold his House seat for more than a year after he moved from Lancaster out of district to Carroll 15 miles away.
Burling questioned why the Attorney General’s Office had a credible allegation about Merner’s move, but waited six months until the investigation was completed before notifying Speaker Packard, a Londonderry Republican, in a letter Sept. 18. Packard then asked Merner to resign immediately, which he did. Merner also resigned from the Lancaster board of selectmen where he was chairman.
“My real sense of outrage is how is it when confronted with a verifiable complaint, a state Rep is voting in a district he was not qualified to vote in,” Burling said, adding the New Hampshire Constitution is clear that Merner was required to resign when he moved out of district and not run again for that seat.
Burling, a Democrat, served in the House for 14 years and the Senate for four.
The House of Representatives is closely divided between the number of Republicans and Democrats so votes on session days could be even closer depending on which lawmakers might be absent that day, Burling said.
Burling said he heard there were more than 20 votes where Merner’s vote impacted the outcome.
But even if there were only one or two, that’s too many, he said.
Merner did not respond to requests for comment.
House Democratic Leader
One that House Democratic Leader Matt Wilhelm, D-Manchester, found particularly concerning was Packard’s tie-breaking vote to find the bill to have the school voucher program administered by the state Department of Education deemed inexpedient to legislate.
House Rules bar legislation that was voted inexpedient to legislate in the first year from being introduced in the House in the second year of the session.
Of all the motions decided by zero or one vote margins this year, in which a Roll Call was taken, only one resulted in an ITL motion being adopted, HB 626.
House Rules allow late introduction of legislation “based on urgent or compelling need or events unforeseen prior to the filing deadline,” if approved by a majority of the Rules Committee, which is scheduled to meet on Oct. 10.
Wilhelm intends to bring the language of HB 626 to Rules and request late introduction, because the ITL motion would have failed without Merner’s vote and Speaker Packard’s vote to break a tie and pass the motion to effectively kill the bill.
“Rep. Merner’s illegal vote likely affected the outcome of many motions that were decided by zero or one vote margins and on one bill, HB 626, his vote directly caused the bill to be killed,” Wilhelm said in an email Tuesday.
“HB 626 brings taxpayer accountability to the EFA voucher program by moving administration to the NH Department of Education. Currently, the state sends millions of dollars a year – 10 percent of all EFA funds – to a private company to administer the program, which is inefficient, unaccountable, and takes funding away and opportunity from our children in our public schools,” Wilhelm said.
Poll Worker Concern
Kathy Lavoie, who is a volunteer poll worker in Lancaster and active in town matters, questioned Merner during the November 2022 election about where he was living and again after the March 2023 town meeting vote.
A Republican, Lavoie said she had previously served with Merner on the conservation commission and found him easy to work with.
It wasn’t personal, she said, but it was her duty as a poll volunteer to raise questions about his domicile.
Lavoie said after the November 2022 election she suspected Merner wasn’t telling the whole story of his domicile and she contacted the Democratic Party headquarters to explain her concerns.
She did say she didn’t believe the Republicans would take the matter seriously. Nothing came of the complaint to the Democratic party.
Colin Booth, spokesman for the Democratic Party, said Tuesday, “No one I’ve spoken to here has any record of Lavoie reaching out. Not sure who she spoke to or how she reached out…”
After the March town meeting when Merner gave Lavoie a different address than the one on the town rolls from the November 2022 election, she decided she had to call the Attorney General’s Office, which she did on March 22.
“I didn’t hear back from the Attorney General’s Office until Sept. 18. I didn’t know they were investigating,” Lavoie said.
At the November 2022 voting, Merner listed his former residence in Lancaster which Lavoie knew he had sold. “He told me he had a lease back,” agreement, Lavoie said.
For the March town meeting election he gave a different Lancaster address.
“The address he gave I said was a newlywed couple who lived there and was he living with them. He said, ‘This is my address.’” Lavoie then decided it was time to call the Attorney General’s Office.
“This is a small town. A lot of people know where a lot of people live,” Lavoie said.
Lavoie is also the treasurer of the conservation commission and chairman of the town budget committee.
While the attorney general’s letter notes House members decide who will sit as a member of the House, the state Constitution clearly states a representative must live in his or her district.
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.
Right-to-Know
Burling said he has already received notice from the Attorney General’ Office denying his right-to-know request.
“We’re talking about votes (Merner) took that were recorded votes,” Burling said. “Think of all the unrecorded votes, the voice votes, committee votes. Here is a guy who had no business being in a House seat having the chance to vote nay or yea, let alone committee or caucus votes.
“He should never have been allowed on the ballot or take the office and been sworn in. The New Hampshire Constitution is so crystal clear as to the qualifications to serve in the House. He did something terribly wrong,” Burling said.
Burling said, “The Department of Justice needs to look in the mirror and ask the question, why did it take so long following the receipt of the complaint and …knowing he was casting votes on important matters, why didn’t they move more expeditiously.”
Speaker Packard responded in an email: “When we learned that the Department of Justice had concluded Merner resided outside of his district, Merner was contacted and urged to resign immediately, which he did.
“The Speaker’s Office is not aware of members living outside their district. If citizens have information about any such situations they should take action and file a complaint so the matter can be investigated, and our constitutional provisions can be upheld,” Packard said.
Formella’s spokesman Mike Garrity, said, “We do not discuss investigations until we have reached a conclusion, especially in a case like this where we are also investigating potential crimes associated with the domicile.
“Beyond that, we have no further comment outside of what we stated in our September 18th letter.”
In denying Burling’s right-to-know request, Brendan A. O’Donnell, Election Law Unit Chief, said the denial was because of the ongoing investigation into Merner’s voting in Lancaster.
“This Office additionally notes that, following the completion of each investigation, this Office issues a public document that sets forth the results of the investigation and a description of actions taken following the investigation.
“To the extent that any investigative records contain information that will ultimately end up in a final, public record, those investigative records are additionally exempt from disclosure as draft documents not in final form,” O’Donnell told Burling in an email.
