How the state budget enhances the Legislature’s emergency powers

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The final House-Senate compromise added to this year’s state budget was a deal to give the Legislature more power during a declared state of emergency. This was an issue of heated debate, as many legislators thought the House and Senate needed a more active role in governing during a state of emergency. The compromise doesn’t go as far as some House members wanted, but it does enhance legislative authority in some important ways.

The Legislature’s existing emergency powers

Under existing law (RSA 4:45), both the governor and the Legislature have the power to declare a state of emergency. The Legislature can exercise this power by passing a concurrent resolution of both the House and Senate.

Once a state of emergency is in effect, the Legislature has the power to terminate it by passing a concurrent resolution in each chamber. 

One might have thought that the Legislature was powerless to act once an emergency had been declared. That is not the case. If a majority of legislators believes a state of emergency is no longer justified, or never was, it can convene and vote to end the emergency at any time. 

If the Legislature votes to end a state of emergency, the governor has the authority to declare “a new emergency for different circumstances.” That is, once the Legislature has ended a state of emergency, the governor cannot declare the same emergency for the same reasons again. Any new emergency would have to be based on “different circumstances.”

What the Legislature doesn’t have the authority to do under existing law is repeal a specific emergency order other than the emergency declaration itself. This was a big frustration for some House Republicans during the COVID-19 emergency. It also doesn’t have a process in place for reviewing states of emergency. It can convene itself at any time, but there is no calendar or schedule in place to generate periodic reviews automatically. 

Emergency powers enhanced in the budget

The Committee of Conference amendment rewrites RSA 4:45 to enhance legislative emergency powers in three specific ways.

  1. It requires the governor to notify the House and Senate of “impending” emergency orders “as soon as practicable” and to “provide a description of such orders.” This notification requirement ensures that legislative leadership will be informed prior to a declaration of emergency.  
  2. It gives the Legislature the power to terminate “any emergency order” in addition to the emergency declaration. This creates essentially a line-item veto for the Legislature. The General Court can keep a state of emergency in place but rescind any particular emergency order it doesn’t like. Currently, its only option is to repeal the state of emergency itself. Under the proposed change, legislators could partially co-manage an emergency by negotiating with the governor over the orders it would like to see. With the power to repeal any order, lawmakers would have a significantly increased say in what orders are made. 
  3. It requires the governor to call a legislative session 90 days into a state of emergency, and then every 90 days for the duration of the emergency if it lasts longer than the first 90 days. At each of these sessions, the Legislature is required to vote by concurrent resolution on whether to terminate the state of emergency. This forces a legislative vote every 90 days on whether to maintain or repeal a state of emergency.

These changes are not as comprehensive as some House members would have liked. But they elevate the General Court’s role during a state of emergency from spectator to co-manager. 

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How a bipartisan bill would fix New Hampshire’s qualified immunity problem

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A bill to be considered by the House of Representatives this week would end the legal doctrine of qualified immunity in New Hampshire. This policy brief offers a quick explainer of the bill and the broader issue of qualified immunity it addresses.

What is qualified immunity?

Qualified immunity is a legal doctrine created by the U.S. Supreme Court in interpreting a federal statute, 42 U.S.C. § 1983 (“Section 1983”). Congress originally enacted Section 1983 in 1871 as the Ku Klux Klan Act, and it was designed to provide citizens a remedy in federal court when state officials violated their constitutional rights. But qualified immunity, which appears nowhere in the text of Section 1983, frustrates that purpose. 

In simple terms, it holds that all government employees are presumed to be immune from civil prosecution for violating a citizen’s civil rights unless those rights have previously been “clearly established.” Courts have taken that to mean that a government employee is immune unless a previous U.S. Supreme Court case, or a federal circuit court in the same jurisdiction, showed that precisely the same behavior in the same circumstances was found to have been a civil rights violation.

Importantly, government employees are presumed to be immune from prosecution for civil rights violations regardless of whether their behavior was reckless. Courts have held that even if a police officer acted recklessly, the officer is protected under the qualified immunity doctrine because there was no previous case establishing that the specific behavior was a civil rights violation.

The absurdity of this doctrine is self-evident, as numerous court cases have shown. For example, a U.S. District Court in Texas ruled last year that a prison guard violated an inmate’s constitutional rights by pepper spraying him in the face for no reason. Yet the court held that the guard was protected by qualified immunity because no previous case had established that assaulting a prisoner with pepper spray, as opposed to a baton or Taser, was unconstitutional.

“Despite recognizing that an unprovoked assault violates the Constitution, the majority grants the guard immunity because we have not decided a similar case involving pepper spray,” the dissenting judge lamented.

What does House Bill 111 do?

HB 111, introduced by Democrat Paul Berch and Republican Tony Lekas, does two things.

  1. It establishes a cause of action in state court to sue the state, and its political subdivisions, for a violation of rights. (Note: suits are to be against the government, not the individual employee.) It makes clear that the state or political subdivision cannot claim immunity by asserting that the rights violated by the state agent were “not clearly established.” That language ends qualified immunity for government employees.
  2. It holds government employees named in such civil lawsuits shall not be held financially liable. This ensures that employers, not government employees, bear the financial burden of paying damages to citizens whose rights were violated.

How would this make government in New Hampshire more accountable?

The broad and unjustified protections offered by the qualified immunity doctrine reduce the incentive for government to offer adequate employee training. If employees are largely protected from civil lawsuits, then why bother training them on issues related to citizens’ rights?

If HB 111 becomes law, citizens would still have the burden of proving that their rights were violated. But government employees would no longer enjoy default protection by claiming that, without a previous court case involving virtually identical behavior and circumstances, they couldn’t possibly have known it was illegal to violate a citizen’s rights.

Ending qualified immunity protections would therefore create a strong incentive for government to better train employees on constitutional rights, while also giving citizens a way to hold government accountable in state courts when such violations occur.

Right now, even though the New Hampshire Constitution contains a lengthy Bill of Rights intended to protect citizens against specific government actions, state law provides no cause of action when those protections have been violated. HB 111 would make it easier for citizens to hold government accountable when it violates rights guaranteed by the state constitution.

The ‘flood of lawsuits’ prediction

Defenders of qualified immunity claim that ending it would result in a flood of frivolous lawsuits. The New Hampshire Police Association and the New Hampshire Municipal Association suggested in testimony before the House Judiciary Committee in February that without qualified immunity, any government employee could be sued for anything. As examples, they cited “anybody fixing a road,” or building inspectors issuing an occupancy permit.

But the bill does not create a cause of action for bad workmanship or general poor performance. It creates a cause of action only for a violation of constitutional rights. There is no constitutional right to a properly filled pothole.

There is strong evidence, however, government employees in New Hampshire regularly violate citizens’ rights. New Hampshire Public Radio reported last year that state and local police agencies settled 87 civil rights claims totaling $4.3 million from 2010-2020.

Even in New Hampshire, government does violate people’s civil rights, on a distressingly regular basis. House Bill 111 would provide a way for citizens to hold government accountable in state courts when this happens.

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Eight police reform proposals

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In our republican form of government, all public employees, including police officers, exercise only the powers granted them by the people. All public employees serve the citizens and are accountable to them. The powers granted to public employees are altered from time to time as the people demand.

High-profile abuses of police power in recent years have led to widespread demands for increased accountability. In this paper, attorney Chuck Douglas offers eight proposals for reforming New Hampshire police practices and making officers more accountable to the people.

The eight proposals are:

  1. Make police discipline files public.
  2. Outlaw chokeholds or neck compression, regardless of the circumstances.
  3. Mandate body cameras and verbal warnings.
  4. Require officers to intervene, stop, and report misconduct.
  5. Improve screening and treatment for PTSD.
  6. Pursue more and better de-escalation training.
  7. Adopt better use-of-force policies that require force to be reasonable, necessary, and proportionate to the crime and circumstances.
  8. End officer immunity from civil lawsuits.

You can download and read the full report (in pdf format) here: Josiah Bartlett Center Eight Police Reform Proposals

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An online reverse auction can save N.H. up to $22.2 million a year on prescription drugs

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A new Josiah Bartlett Center for Public Policy study finds that switching to an online reverse auction for the state’s pharmacy benefits management contract can save New Hampshire taxpayers save up to $22.2 million a year.

The study by Dr. Wayne Winegarden, director of the Center for Medical Economics and Innovation at the Pacific Research Institute, finds that New Hampshire can expect to save an estimated $17.8 million — $22.2 million a year by using an online reverse auction to generate more competitive bids for pharmacy benefits management. Over the three-year life of the state’s existing pharmacy benefits management contract, the savings would total an estimated $42.5 million — $53.1 million. (Under the contract, the annual costs are different from year to year.)

“At a time when budget savings are needed, New Hampshire could save millions of dollars annually by adopting an online reverse auction to purchase PBM services,” Dr. Winegarden said. 

Josiah Bartlett Center President Andrew Cline emphasized the value of always looking for cost savings through improved systems, not simply cutting budget line items.

“This study shows the importance of always looking for opportunities to increase taxpayer value by improving system operations,” Cline said. “Adopting a modern, internet-based bidding system for the state’s pharmacy benefits management is a great example of how taxpayers and public employees can save money without reducing services.” 

Pharmacy benefit managers (PBMs) administer prescription drug benefits for commercial and government health plans. PBMs negotiate prices with drug manufacturers, maintain the plan’s drug formulary (the list of approved drugs), and process claims. 

New Hampshire used a traditional Request for Proposal (RFP) process when it signed a three-year, $212.5 million PBM contract with Express Scripts in 2018. Using an online reverse auction rather than a traditional RFP process could have saved the state tens of millions of dollars over the life of the contract, this analysis shows.

In an online reverse auction, pre-qualified suppliers provide competing bids (typically over multiple rounds) to a single buyer. It is the reverse of the more familiar forward auction, in which buyers compete to purchase a product or service from a single seller. For PBM services, New Hampshire would be the single buyer inviting several PBMs (the multiple sellers) to bid on providing PBM services to the state over a defined time period.

Online reverse auctions have saved governments and private businesses billions of dollars and have become a standard procurement method for large organizations. New Hampshire should adopt them for its PBM contracting as well as any other services for which they could produce savings. 

The full study can be read here (pdf): JBC Reverse Auction For PBM services Study Winegarden

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Five guidelines for reopening New Hampshire’s economy

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New Hampshire’s economy spent March and April of 2020 rapidly contracting. Cell phone data and reported restaurant and retail store revenue show that consumers voluntarily began staying home in the early March. Then on March 27 the governor issued a stay-home order and ordered “non-essential” businesses closed to in-person interactions.

That one-two punch put nearly 160,000 Granite Staters out of work in a matter of weeks. The state’s unemployment rate rose from less than 3% in March to approximately 15% in April, according to state figures released this week. 

Those numbers are not just statistics on a financial spreadsheet. Each application for unemployment benefits represents a real person who has been made idle involuntarily. 

Those Granite Staters — our friends, neighbors, and family members — have lost the ability to provide for themselves and their families. Some of their employers have stayed open with skeleton crews, some have closed temporarily, some permanently. 

New Hampshire’s economy is in serious long-term danger because roughly 96% of New Hampshire businesses are small businesses. Small businesses tend to have low cash reserves. A JP Morgan Chase study of nearly 600,000 small businesses in 2015 found that the median small business holds less than one month’s worth of cash reserves. A quarter hold less than two week’s worth. If small businesses remain closed by state order much longer, many won’t survive. 

Again, that’s not just a financial story. It’s a human one. Businesses provide the goods and services people need, and the revenue businesses generate pays the rent, the mortgage, the grocery bills, the gas bills, etc., for all of their employees. 

Free economic exchange is not a luxury to be disregarded in times of crisis. It is how Americans feed, clothe, and shelter themselves. It is how most of us define who we are. It is how people generate the business profits that fund scientific research and the tax payments that fund government services. It is, by itself, essential for the creation and maintenance of any prosperous and healthy society.  

Getting people back to work, then, ought to be an urgent priority for state and local policymakers. 

The government has a vital role to play in minimizing the possibility that a deadly new disease will overwhelm our health care system. But achieving that goal can and should be done in a way that produces the smallest possible negative impact on the economy. Here we suggest five ways to achieve both of those important goals. 

To reopen the economy with minimal risk to the health care system, government policy should follow five guidelines:

  1. Exercise the minimum intervention necessary
  2. Focus on safe practices, not categories of businesses
  3. Enable innovation and adaptation
  4. Reduce costs and burdens on employers & business owners
  5. Prioritize information and flexibility over control

Read the full report here: JBC Reopen Report

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Will legislators add new unfunded liabilities to State Retirement System?

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On public policy, New Hampshire should always beat Vermont, as a matter of principle. That goes double for the handling of money. The state that sends a self-proclaimed “socialist” to the U.S. Senate should never get to say it’s more responsible with a dollar.

New Hampshire has bragging rights here. The Granite State is 12th in the Mercatus Center’s ranking of states by fiscal condition. Maine is 34th, Vermont 39th, Massachusetts 47th. 

And yet there’s one area where New Hampshire and Vermont are uncomfortably close: the Pew Center’s national ranking of the best-funded state retirement systems. Both states are down in the 30s, with less than 70 percent of their pension liabilities funded. 

So Vermont officials might have watched approvingly on Wednesday when the House advanced a bill that would worsen the financial position of the New Hampshire Retirement System. 

Instead of edging the State Employee Retirement System closer to the point at which it might some day have enough money to pay what the state owes its retirees, House Bill 1205 would edge us slightly in the opposite direction.

The state’s retirement system ended the 2019 fiscal year 64.8% funded. The system hasn’t been above 70% funded since 2004. Vermont has two state retirement systems, one for state employees, which is just over 70% funded, and a separate system for teachers, which is funded at about 54%. Pew’s latest ranking (using 2017 data), puts Vermont at 64.3% funded.

By contrast, Maine is a Northern New England lighthouse beacon of frugality, with 82% of its obligations funded. 

HB 1205 would nudge New Hampshire downward by eliminating an existing 10% reduction in retiree benefits that kicks in for Group 1 employees (general government employees and teachers) at age 65. The bill would cost the retirement system $37 million, according to its fiscal note. It would cause a slight (less than half a percentage point) increase in government contributions to the system (that is, taxpayer contributions).

When the mandatory cut was passed into law in 1988, 65 was the Social Security retirement age. The age has since inched up to between 66 and 67 years for retirees born in 1938 or later, but state law has kept the pension reduction pegged to age 65.

As a technical update, one can see the logic behind HB 1205. But that logic doesn’t generate its own money. The bill includes no funding to pay for its increased cost.

It’s a $37 million “giveaway,” Rep. Carol McGuire said when speaking against the bill. 

McGuire wasn’t able to convince her colleagues to vote against the bill. But she did succeed in tabling a bigger one, HB 1341. That bill contains a lot of changes, the largest being that it would raise the contribution rate for a large chunk of Group II employees by changing the formula for calculating their pensions. Municipalities would be hit with a large, mandatory increase in their retirement contributions. 

The bill as originally drafted would have added $142 million in unfunded liabilities to the State Retirement System. An amended version on the House floor on Wednesday had no fiscal note, but legislators say it would cost less than the original. 

Supporters tried and failed to remove the bill from the table on Wednesday, so it remains in limbo for now.

Though New Hampshire’s general frugality has kept the state from issuing the sorts of lavish unfunded promises to state employees that have made jokes of the retirement systems in Connecticut, Illinois and New Jersey, most state pension funds are more fully funded than ours. 

Recent returns indicate that loading the system with more unfunded promises would be particularly risky this year. The retirement system’s rate of return on investment was only 5.7% last year, below the assumed 7.25% and well below the previous year’s 8.9%. That translates into a $229 million (32%) drop in investment income from 2018 to 2019.

The retirement system has a plan to move toward full funding over the next two decades, but it relies on hitting investment revenue targets. Consistently lower market returns, like last year’s, and adding large unfunded liabilities would throw off the plan.

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Janus ruling reversed years-long growth in state employee union membership

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Last year’s U.S. Supreme Court ruling in Janus v. AFCSME triggered a 5.9% reduction in New Hampshire state employee union membership, state payroll data obtained by the Josiah Bartlett Center for Public Policy show. The sudden drop reversed a years-long trend of rising union enrollment in state government.

Prior to the Janus decision, New Hampshire was one of 22 states plus the District of Columbia that forced non-union employees to pay union fees. Janus forbade states from collecting those fees.

New Hampshire halted this “agency fee” collection immediately after the ruling last June. In the following 12 months, state employee unions collectively lost 420 members, or 5.9% of their enrollment.

The vast majority of those losses (92.4%, or 388 members) came from the State Employees Association, according to state payroll figures.

Because the state withholds union dues from paychecks, union membership is trackable through payroll records. Those records show that in the previous five years, state employee unions had grown steadily, adding an average of 184 members a year.

Twelve months later, payroll records show that the Janus decision wiped out nearly half of those gains in just one year. The Josiah Bartlett Center obtained the data through right-to-know requests.

The inescapable conclusion is that hundreds of New Hampshire state employees had been joining labor unions only because they were being forced to hand over their money whether they joined or not.

Finally free to decide for themselves whether to support a union, they’ve chosen, along with more than 2,000 other state employees, to keep their money.

“Agency fees” and free speech

“Agency fees” were withheld from state employee paychecks and given directly to the unions on the theory that collective bargaining agreements benefitted all employees.

In Janus v. AFCSME, the Supreme Court held that state government “extraction of agency fees from nonconsenting (sic) public-sector employees violates the First Amendment.”

The court concluded that agency fee collection “violates the free speech rights of nonmem­bers by compelling them to subsidize private speech on matters of substantial public concern.”

As of the date of the Janus decision, 2,161 non-union N.H. state employees had been compelled to pay $1,012,055.83 in agency fees during the previous 12 months, payroll data the Josiah Bartlett Center obtained last year showed.

Instead of seeing those employees rush to join, unions lost withholdings from another 420 employees the next year. The figures show that agency-fee payers were not the only ones bankrolling unions reluctantly, in violation of their First Amendment rights. So were hundreds of union members.

The Janus drop

To see whether the decline in membership since the Janus ruling was an outlier, we obtained the union membership figures for the five years leading up to the court’s decision.

Conveniently, the Janus decision was handed down on the final week of New Hampshire’s fiscal year, which gave us the ability to look at union membership at the end of each state budget year.

State payroll data show a steady increase in union dues withholdings from 2013-2018. During those five years, state employee unions gained 922 dues-paying members. In no year did union membership drop.

Then, in the fiscal year following the Janus decision, state employee unions lost 422 dues-paying members, or 45% of the enrollment they had gained during the previous five years.

The financial losses that accompanied this membership decline appear to be small, however. According to state figures, unions lost only $5,388.50 for the year.

A drop, not a disaster

The drop in membership is not the financial catastrophe some advocates on both sides had predicted. Long-term effects won’t be known for years, but the immediate effect, though notable, is less dramatic than many had anticipated.

The largest financial losses came with the abolition of agency fees. New Hampshire state employee unions lost more than $1 million a year in agency fee collections from non-members after the Janus decision. But they managed to hold on to 94 percent of their members, losing only a few thousand dollars in membership dues.

The payroll data suggest that most state employees find value in union membership while a smaller portion either doesn’t want to associate with a union or has concluded that the costs outweigh the benefits.

The state payroll data spreadsheets can be viewed here: Union Dues 2013 Through 2019 Web.

A pdf of this brief can be downloaded here: Janus Effect Union On NH Union Membership.

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State employees to save $1 million a year after Janus ruling

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The top two contributors to the re-election campaign of U.S. Rep. Annie Kuster, D-N.H., in this quarter are public-sector labor unions: the Service Employees International Union (SEIU) and the American Federation of State, County, and Municipal Employees (AFSCME). Each union has given Rep. Kuster $5,000 this quarter (not 5,000 quarters).

And until June 27, each of those unions used agency fee provisions in their collective bargaining contracts to take money without consent from public employees who did not wish to give it.

The State Employees Association of New Hampshire is otherwise known as SEIU Local 1984. As of June 27, when the U.S. Supreme Court ruled in Janus vs. American Federation of State, County, and Municipal Employees, the SEA was collecting agency fees from 2,104 state employees, according to data obtained by the Josiah Bartlett Center for Public Policy through a state right-to-know request.

An agency fee is money a public-sector union could take out of a non-member’s pay, ostensibly to cover the cost of collective bargaining. Officially, unions could not use agency fees for political activities. But the extra revenue made these organizations larger and more politically powerful, even if they never spent it directly on lobbying, campaign donations or political ads.

Mark Janus, the Illinois state employee who sued AFSME and won his Supreme Court case last month, successfully argued that being forced to contribute to the union violated his First Amendment rights not just because the union endorsed candidates and policies with which he disagreed. He disagreed with the union’s collective bargaining activities too, and its goal of pushing government spending ever higher.

The Supreme Court agreed with him that the “extraction of agency fees from nonconsenting public-sector employees violates the First Amendment.”

On the date of the ruling, 2,161 New Hampshire state employees were unconstitutionally being compelled to pay $37,913.60 per pay period to unions they chose not to join, according to state data.

From July 6, 2017 to July 6, 2018, state employees were forced against their will to contribute a total of $1,012,055.83 from their paychecks to just two unions, the State Employees Association and the Teamsters.

The payroll records show that through unconstitutional contracts that allowed the state to collect union fees from non-members, public-sector unions in New Hampshire were able to inflate their budgets by nearly 1/5 and their number of financial contributors by nearly 1/3.

This was a forced transfer of money and power from individual state employees to labor unions. That transfer compelled employees to support political positions they did not consent to support.

The Janus ruling made those agency fee clauses immediately null. As a result, individual state employees will have greater leverage when deciding whether to join a union. From now on, the choice of whether any of their pay goes to support a labor union is theirs and theirs alone.

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An Assessment of the New Hampshire Coastal Risk and Hazards Commission Report

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January 2017

By Michael Sununu

Among the many drivers of unsound public policy in this day and age, perhaps the most odious is the alarmism over changes in climate that are supposedly driven by human activity. Time and again, we have seen costly, unjustified, and economically destructive public policy implemented in the name of climate protection, proclaiming that humanity can and should micromanage the earth’s climate, the largest and most complex system mankind will ever encounter. The justification for these costly actions is based on flimsy evidence, exaggerated claims, and a profound ignorance of the natural evolution and cycles of our climate systems. National, state, and local governments have all acted to impose damaging regulatory regimes, costly mandates, and harsh anti-development initiatives in the name of climate change, and New Hampshire has not been immune to the consequences.

On November 30, 2016, the New Hampshire Coastal Risk and Hazard Commission (“NHCRHC”) released its final report (http://www.nhcrhc.org/wp-content/uploads/2016-CRHC-final-report.pdf). This report is 124 pages of alarmist hand wringing, with a litany of recommendations that would expand government and strangle development in the Seacoast area. The apparent goal of the authors is to prod state legislators, bureaucrats and local officials to institutionalize acceptance of anthropogenic global warming (AGW) in state law and state regulations, based on the premise that sea level rise (SLR) threatens our Seacoast in an unprecedented fashion. The unstated result of these actions would be to cede control from local towns to the state, impose huge barriers to development and undermine the economy in the region.

Unfortunately, there is not enough critical analysis and skepticism of the basis for the fears outlined in the report. The result is a document heavy on fearful scenarios, calls to action and demands for spending.

This paper is an attempt to put much of the science in its proper context, educate the reader with real data, raise the types of questions that should have been raised by the NHCRHC, consider the nature of the actual risks involved, and question whether the recommendations are really what the state, the region, and local communities need at this time.

Download the full report: NHCRHC Assessment

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As for state’s integrity, don’t look too closely

Charlie Arlinghaus

November 11, 2015

As originally published in the New Hampshire Union Leader

When it comes to public integrity, New Hampshire is lackluster among states. According to the state rankings of the Center for Public Integrity, “New Hampshire is firmly in the lower tier,” ranked in a tie for 34th with the nominal grade of D-minus. The Center’s State Integrity Investigation found that, as in so many other areas, we aren’t who we think we are.

We think of ourselves as a small state with minimal corruption. The legend has it that our government is small and close to the people, corruption is almost unheard of because so many people involved in the public sector are friends and neighbors, and that the safeguards necessary in more cynical states are superfluous here because everything and everyone is so accessible.

Like many government myths, this one doesn’t stand up to measurement. That helps, perhaps, explain why we avoid measuring things too often.

The State Integrity Investigation didn’t rely on an activist to write a subjective rant. Rather, they developed a comprehensive set of objective measurements — 245 different questions to be scored — and hired experienced journalists in each state to conduct interviews and answer the questions. The results were then peer reviewed by another experienced journalist.

In New Hampshire, the investigation used veteran reporter Ted Siefer, formerly with the New Hampshire Union Leader and lately working with Reuters and other news outlets. Siefer spent more than two years talking to analysts and workers inside and outside government — including me among dozens of others.

The results suggest opacity rather than transparency and won’t come as a surprise to anyone who has spent any time trying to figure out what’s going on inside our government.

New Hampshire has a long tradition of those in charge thinking too much information is a bad thing and not wanting to look too closely at the details. We do generally pay lip service to the idea of public records and have a moderately strong right-to-know law. The flaw, as Siefer points out, is that there is no mechanism to appeal refusals to comply other than the high hurdle of initiating action in state court.

By tradition, New Hampshire’s political class sees no need to police themselves. The most famous incident in New Hampshire’s political history was 30 years ago when infamous House Majority Leader Vinnie Palumbo torpedoed proposed state ethics laws by insisting “gentlemen keep their own scorecards.”

The police later helped with his scorecard on corruption, and he spent a few years as a guest of the state.

The attitude, however, persists. Our campaign finance laws are routinely snickered at around the country as ridiculously archaic with the substance of Swiss cheese. Candidates for high office can avoid any reports until just a few months before the election. Exactly what has to be reported, how described, and permissible uses are the subject of much speculation and multiple interpretations.

The lack of access to information has been on display for the last year-and-a-half in fights between the legislature and executive branch over access to timely budget information. As brilliantly transparent as our tax information is, the spending side is the opposite. Charges back and forth cannot be adjudicated because not only are updates on spending compared to budget not available to the public, those secrets are closely guarded in the Legislature — for example legislative budget writers might normally be expected to have access to agency budget updates.

The new budget transparency law pushed by Sen. Jeb Bradley last session should help but only if appropriately implemented.

A dozen years ago, then-Gov. Craig Benson pushed for but did not receive a significant increase in the funds allocated to the Legislative Budget Assistant’s Audit Division. This little known corner of state government is a staff of 24 that conducts financial and performance audits of state agencies and programs.

Their recommendations often save the state millions of dollars — for example when they recommended competitive bidding of the myriad insurance policies the state buys on itself. They are the group currently charged with figuring out how exactly the state accidentally didn’t spend $20 million appropriated to eliminate the developmental disability waiting list.

Here’s an idea: The current governor might look into Gov. Benson’s old files and dust off his plan on audits. While you’re waiting for that unlikely event to occur, you would do well to read Ted Siefer’s report on state integrity. Be forewarned: It’s a little depressing.

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