By NANCY WEST, InDepthNH.org
CONCORD – A Dec. 6, 2022, email from Deputy General Counsel Myles Matteson to Terry Pfaff, COO of the General Court, outlined a credible complaint that former Republican Rep. Troy Merner didn’t live in the Lancaster district he was elected to represent in the House.
The email, copied to former Associate Attorney General Anne Edwards, said when Merner was interviewed at his new wife’s home in Carroll, he denied living there full-time.
“During the course of the interview, (Merner) was not consistent in describing where he had been residing over the prior months, though he indicated that he claimed domicile at his office address of 80 Elm Street, Lancaster.
“He stated that he spends some nights there as it has a sleeping area. He did not provide further details substantiating his claim to be living at his office address. He did state that he was ‘in transition’ and looking to move back to Lancaster with his wife,” Matteson wrote.
The email memorialized a conversation Matteson and Edwards had with Pfaff that day. It was before the legislative session began and Merner ended up serving illegally in the House until after the session ended and he resigned and was arrested.
“The analysis is ongoing and is not tied to domicile at a single point of time, but a vacancy would occur at any point that a person establishes domicile outside of the district,” Matteson wrote.
The Attorney General’s Office and House Speaker Sherman Packard, R-Londonderry, have refused to release the Matteson email, which first became public in a New Hampshire Public Radio report Friday night.
Matteson said the complaint was filed by former state Rep. Herb Richardson, who has since died.
Matteson said when the investigator noted that Merner’s driver’s license address had not been updated and still listed his former house, Merner said he had a PO Box in Lancaster.
“When the investigator informed him that he can’t live at a PO Box, he responded that he hasn’t gotten around to it because ‘he is a guy,’” Matteson said.
According to the email, Merner stated that he knows of many individuals who vote in Lancaster who aren’t domiciled there. “When the investigator asked if he would provide names or information, he refused,” Matteson wrote.
Much of the information in the email was first detailed in the affidavit filed to arrest Merner that was previously released by the Attorney General’s Office. The arrest affidavit can be read here: https://indepthnh.org/wp-content/uploads/2023/11/merner-affidavit-signed.pdf
Merner, 63, was charged with one class B felony count of wrongful voting, and misdemeanor charges of theft by deception, unsworn falsification and tampering with public records. Merner will be arraigned Dec. 28 in Coos County Superior Court.
Some information was released this week by the “Speaker’s Office,” but not under Packard’s name.
The “Speaker’s Office” sent a letter to House members Monday explaining its actions over the last year relative to Merner concluding: “I am hopeful that this correspondence will provide you with some insight into the reasonable approach that the Speaker’s Office took in relation to this important matter. The integrity of the New Hampshire General Court is paramount to our representative form of government.”
Matteson’s Dec. 6, 2022 email said the investigator from the Attorney General’s Office also interviewed Lancaster Town Manager Benjamin Gaetjens-Oleson.
“Mr. Oleson appeared and verbally confirmed that this subject made him uncomfortable and when Rep. Merner had discussions with him about marrying and moving in with his wife in Carroll, Mr. Oleson warned him that it was going to cause an upheaval with the locals. Mr. Oleson said that he had fielded many complaints regarding Rep. Merner’s residency but feels that he has no power to do anything because Rep. Merner, as a Lancaster selectman, is also his boss.”
The investigator asked Oleson what Merner should have done when he moved to Carroll. “And he explained that Rep. Merner should have resigned his seat and someone else would have been put in his place. He did confirm that Rep. Merner is very active in many local and civil groups and he works hard for the town.”
Matteson’s e-mail stated that under RSA 652:12, a vacancy occurs if a person elected to an office “ceases to have domicile in the state or the district from which he or she was elected.”
Speaker Packard did not respond to a request for comment Saturday. Merner has declined numerous requests for an interview.
Merner has been charged with one class B felony count of wrongful voting, and misdemeanor charges of theft by deception, unsworn falsification and tampering with public records.
According to the affidavit filed for Merner’s arrest, Dick Tracy, an investigator for the Attorney General’s Office, received the call from Richardson on Nov. 16, 2022, that Merner was then living in Carroll with his new wife, out of the Lancaster district.
Richardson stated that Merner claimed he currently lives at 80 Elm St. in Lancaster, but Richarson said he knew that wasn’t true… “Richardson stated that ‘everyone in Lancaster knows that state Rep. Merner lives in Carroll.’”
It was four months later on March 22, 2023, that the second complaint was made to the Attorney General’s Office about Merner’s residency from Lancaster poll worker Kathy Lavoie of Lancaster that led to another investigation into Merner’s domicile and eventual notification to Speaker Packard on Sept. 18. Lavoie has since been appointed to the selectboard seat that was held by Merner in Lancaster.
In the closely divided House, Merner’s vote killed at least one bill, HB626, that would have the school voucher program administered by the Department of Education rather an outside organization.
Chichester attorney Paul Twomey represents former state Senators Peter Burling of Cornish, a Democrat, and Mark Hounsell, a former Republican now Independent from Conway, who filed right-to-know requests trying to find out whether the Republican leadership knew and encouraged Merner to vote illegally.
They have yet to receive Matteson’s Dec. 6, 2022 email.
Burling said Saturday after reading the Matteson email: “Isn’t that as crystal clear as you can get. It sure looks like it to me.”
Burling said Speaker Packard should not have sworn Merner in after receiving the email and call “until he got to the bottom” of Merner’s domicile.
Burling pointed to the 2016 case in which a previous Republican House Speaker, Shawn Jasper referred a similar complaint against former Republican Rep. Don Leeman of Rochester to a committee which found he wasn’t properly domiciled and was required to resign.
“Beyond anything else the Speaker’s Office owed the duty of notifying the Democratic leader so the runner up in that race could defend her victory,” Burling said.
Cathleen Fountain, the Democrat from Dalton who lost to Merner, is running for that seat again in a special election Jan. 23, the same day as the first-in-the nation presidential primary.
Fountain is running against Republican Sean Durkin. That district represents Stratford, Northumberland, Lancaster and Dalton.
“The first thing is you can’t change the past, but we move towards the future to ensure this is a one-time situation that doesn’t repeat,” Fountain said.
Fountain said she trusts the Attorney General’s Office investigators and has faith they will obtain the information they need. She understands they need to keep it quiet until it is complete.
“I leave it to the voters. They need total representation,” Fountain said.
Fountain had planned to run again in 2024 anyway, and retired Sept. 15 from Tri-County Cap, four days before the news became public that Merner was forced to resign.
Fountain voiced deep gratitude for “Herb Richardson and Kathy Lavoie for calling out” Merner on his move out of district.