By GARRY RAYNO, Distant Dome
When they write laws, which legislators do, are those scribes of statutes benefiting from what they write?
That is a question asked through the ages.
The foundational question to begin the inquiry is, “Does it help or hurt you and your family, including your bank account?”
The New Hampshire Legislature has handled the conflict-of-interest question inconsistently over the years leaving the recusal from voting or participating on a bill up to individual lawmakers to decide.
Many would file a “Declaration of Intent” noting their vested interest in the subject, but then participate anyway, although some do refrain from voting.
In an attempt to have a more uniform system, lawmakers last year approved House Bill 1388 which requires a lawmaker to recuse himself or herself when he or she or any member of their household could “be expected to incur a direct and substantial financial benefit or detriment as an outcome of the legislative activity.”
In the past homebuilders were voting on building codes, hospital officials voting on uncompensated care formulas, insurance agents voting on mandatory requirements, state workers voting on pay raises or future retirement system benefits, and child-care providers voting on expanding the system, to name but a few.
There are also many municipal and county officials who serve and have served in the legislature yet few ever recused themselves from voting on bills that impacted local budgets.
A citizen legislature may sound good and be financially efficient, especially in New Hampshire, but with the breadth of today’s reach by lawmakers into classrooms, municipal zoning and planning ordinances and medical facilities the arena is overly ripe for significant conflicts of interest that ought to prevent many of them from voting on bills or participating in committee discussions.
The House Clerk asked the Legislative Ethics Committee for an advisory opinion dealing with the new law, particularly the section on mandatory recusal.
According to the opinion issued March 10 by committee chair and former lawmaker Ned Gordon and printed in the March 21 House Calendar:
“Prior to the enactment of HB 1388, there was no statutory authority or written provision in the Ethics Guidelines requiring recusal in legislative matters. For the most part, when a conflict of interest existed, upon filing a Declaration of Intent form, recusal was contemplated as an option, but it was exercised at the discretion of the legislator. This was consistent with one of the primary objectives of the Ethics Guidelines, which is public disclosure.
“One exception was identified in prior rulings of the Committee. It found that recusal was required in circumstances where a legislator, or a member of the legislator’s household, is being compensated by an organization, holds a position in which they are able to exercise substantial influence over the affairs of the organization, and the organization is attempting to influence the outcome of the legislative activity. This exception was incorporated in HB 1388 and was enacted as RSA 14-C:4-a, II.”
That 2019 ruling was against House Majority Leader Doug Ley, D-Jaffrey, who was also the paid president of American Federation of Teachers — NH.
The ruling found Ley had voted on legislation that directly “intersected with his position” as president of the teachers’ union and told him to recuse himself from future votes on similar legislation.
As a House member, Ley had testified as president of the union on legislation and wrote legislative bulletins sent to union members, the committee found.
The new opinion cites several examples how the requirements have changed including owning land in current use.
“Under the new law, if a bill would change the formula for taxation, increasing or decreasing the amount of taxes to be paid, it may be expected to have a ‘direct and substantial’ financial impact on the legislator, making recusal mandatory. At the same time, not all current use bills would necessarily require recusal,” noting changes in classification or vegetation or the filing process would not require recusal, but would still require disclosure of interest.
The state retirement system is another example, with the ruling noting recusal would be required “if a bill is introduced that changes the retirement benefit or member contribution rate, it is expected to have a direct and substantial financial impact on the legislator or a member of the legislator’s household,” but not for things like the system’s investment strategy, its operating procedures or its staffing.
“Recusal is required when a legislator recognizes that a legislative activity could reasonably be expected to have a direct and substantial financial impact upon them or a member of their household. That could be at a committee meeting or at any time in the legislative process. At that point, the legislator should refrain from any further legislative involvement on the legislative activity and file a Declaration of Intent form with the Clerk of their respective body, noting their recusal,” the opinion states.
There is a very broad exception in the new law however, that recusal is not required in official legislative activity related to the state budget or general revenue bills.
In other words, if you are a business owner and a member of the legislature you still will be able to vote to give yourself a business tax cut.
But what you can’t do — it appears — is vote on bills that directly affect your household income, which brings up the issue of another House Majority Leader, the current GOP leader Jason Osborne, R-Auburn, whose wife is the owner of a homeschooling nonprofit that two school years ago collected $28,750 in Education Freedom Account grant money.
It is impossible to tell what she collected since the 2022-2023 school year because the Children’s Scholarship Fund NH has not released what was spent with vendors for the last school year although it should have closed its books after June 20, 2024. This year’s totals will not be available until the end of the current school year.
However, Osborne’s wife’s nonprofit is still listed as an approved vendor on the scholarship fund’s website.
Osborne has been one of the chief advocates for the program and its expansion and also a frequent sponsor of legislation to expand eligibility.
A Senator’s family also participates in the EFA program accepting state taxpayer money for their children’s education.
First-year Sen. Victoria Sullivan, R-Manchester, as a committee member spoke against a bill that would have required families to qualify yearly for the program to account for any changes in the family’s income in relation to the current salary cap of 350 percent of the federal poverty level.
Currently a family only has to qualify once to be in the program until the child graduates or no longer participates.
Those are but two lawmakers and there are probably more who are taking EFA grants and voting on bills that directly benefit their families.
Likewise, there are numerous state retirement system members who participate in legislation affecting their families’ incomes as well as several state employees who serve in the legislature.
It is not the amount of money that is the issue, it is the influence and impact of the votes of lawmakers who have clear benefits to gain or lose that are the issue.
And when you are in leadership there is the added advantage using your influence to skew the results in your favor.
Changing the laissez faire attitude toward conflicts of interests that has prevailed over the years will take some time, but it cannot come soon enough.
Garry Rayno may be reached at garry.rayno@yahoo.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.