N.H. Ethics Committee Has Fielded Dozens Of Complaints, But Issued No Violations

May 16, 2017

New Hampshire's Executive Branch Ethics Committee had a rare moment in the spotlight recently, after it weighed in on a complaint involving Gov. Chris Sununu’s use of his official Twitter account.

If you haven’t heard much about this committee, you’re not alone. While it launched with some degree of fanfare, hailed as a tool to bring more accountability to Concord, the committee has spent much of the last decade maintaining a remarkably low profile.

To understand why that is, let's go back to the beginning: In 2005, Gov. John Lynch won his first term in office on promises to restore faith in New Hampshire government, which, he told the crowd at his inaugural address, should be “as clean as our mountain streams and as open as our blue skies.”

Under Lynch’s predecessor, Gov. Craig Benson, executive branch staffers sometimes blurred the boundaries between personal interests and their public roles. Lynch promised to hold state officials to a higher bar – in part, by launching an “independent ethics commission to investigate ethics complaints against executive branch appointees and to toughen penalties for violating our state ethics code."

“An ethics commission by itself will not guarantee the good behavior of public servants, our own individual integrity is the only sure guarantor of that,” Lynch said in his inaugural address. “But such a commission will hold us to the highest standards. Our citizens deserve nothing less.”

It took more than a year of legislative maneuvering to make that happen, and the Executive Branch Ethics Committee debuted for the first time in 2007.

From the beginning, this seven-member panel was designed to serve as a resource and a kind of conscience-check for state officials. On that end, it’s delivered: It’s published dozens of advisory opinions, answering questions on everything from how to ensure ethical hiring practices to how to avoid conflicts of interest in the form of free Red Sox tickets, firearms or gift baskets.

But the committee was also supposed to be a place where the public could turn when they thought executive branch officials — including the governor and corner office staff, agency heads and people appointed to serve on state boards or commissions — were breaking the rules.

And when it comes to that watchdog role, the committee’s never shown any real teeth.

It’s never held a public hearing on any of the 46 ethics complaints it’s been asked to look into, according to information provided by the committee. All but two of those complaints have been dismissed outright, without additional investigation by the committee or its staff.

“I can say this, when we have dismissed a complaint at that early stage, it has been not a close call,” says Joseph DiBrigida, a Manchester attorney who serves as the ethics committee’s chairman. “It has been consensus or unanimous of the members on the committee who have discussed it. Most of the time, those things are pretty glaring. Most of the time, it's not a hard decision to reach.”

Deputy Attorney General Ann Rice, legal counsel for the ethics committee, says a lot of complaints end up being dismissed simply because they’re out of the committee’s hands: They’re against someone who isn’t an executive branch official, or they don’t relate to the specific ethics laws the committee is supposed to police.

“It’s really governed a lot by what kinds of complaints come in,” Rice says. “So if there’s a misunderstanding of what the committee can do, that’s certainly a problem.”

The two complaints that did provoke a closer look from the ethics committee ended up being dismissed, according to records provided by the committee at NHPR’s request.

In one of those cases, the committee said the then-chairman of the state’s Real Estate Appraiser Board misused his position by advertising on his business’s website that he could provide review services “for a variety of purposes” including “for new licenses and upgrades for the New Hampshire Real Estate Appraiser Board.”

In the end, the committee “found that the violation was technical and voted to dismiss the complaint,” according to a letter closing out the case, because the official repeatedly said he didn’t mean to give himself an unfair advantage and removed the language from his website after he was told it might be an issue. The committee cautioned the official to “use caution” when referring to his state position in the future.

It’s hard for anyone outside of the committee to know how many complaints were dismissed because they fell outside of the committee’s purview, or how many the committee decided to dismiss for other reasons, because much of its work is kept secret. In fact, state law says ethics complaints must be kept secret until the committee gets a chance to review them and decide whether to investigate – if the committee decides to move forward with an investigation or a public hearing, then the process becomes more public.

DiBrigida, the ethics committee chairman, sees why some might have concerns about the committee’s confidentiality rules. But he thinks the law provides the right balance.

“I guess the statute is structured to be consistent with the idea of being innocent until proven guilty, and so it errs on the side of confidentiality and not impugning someone's reputation or record unless there is real substance to it,” DiBrigida says. “If I had seen a lot of founded complaints where there was real wrongdoing going on, I might have a different response.”

When the ethics committee dismissed the recent complaint the New Hampshire Democratic Party filed against Gov. Chris Sununu, DiBrigida devoted two paragraphs of the committee’s three-paragraph response to cautioning the party against making the complaint public in the first place.

Even if the committee decides to deliberate behind closed doors, Democratic party official Kathy Sullivan says the public would be better off if complaints against officials from both parties were open from the outset.

The state’s political culture tends to be too lenient when it comes to holding officials accountable, she says, and the law right now makes it impossible to know whether the ethics committee is really doing a thorough job vetting for potential wrongdoing.

“I think in New Hampshire we rely too much on what I call the 'He's a Good Guy' theory, which is — ‘Oh, so-and-so would never do anything wrong, because he's a good guy,’ ” Sullivan says. “I don't think we in New Hampshire always take the rules as seriously as we should when it comes to these issues.”

Beyond its lack of a track record in investigating ethics complaints, the committee is dealing with other more basic problems.

For starters, it’s been operating for the last decade without any administrative rules. That means there’s no formal roadmap for how it should investigate the complaints it receives, or how it should conduct a public hearing, if it were to ever hold one.

The ethics committee’s progress on those rules has been slow in part because it’s had trouble making quorum for its monthly meetings, and that’s because it’s also been operating for years without a full bench of members.

Right now, only four of its seven seats are filled, and three of those four are in holdover status – the term of DiBrigida, its chairman, technically expired in 2015.

“Fortunately, if you're in holdover status you still can function,” DiBrigida says. “And that's really the only way we've been able to function.”

While DiBrigida acknowledges the ethics committee isn’t living up to its full potential, he says something is still better than nothing.

“It's definitely an improvement over what existed before,” DiBrigida says. “But I don't think it's fully utilized, or at least not utilized in the right way. Or maybe there just aren't that many complaints or concerns to be filed.”

For now, the public just has to trust the ethics committee’s word for it.