This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NHPR and other outlets to republish its reporting.
New Hampshire House Democrats are pushing for a bill to require swifter communication between the Attorney General’s Office and the Legislature, weeks after the office revealed it had been investigating Rep. Troy Merner for living outside his district, prompting his resignation.
The House Rules Committee voted Tuesday to allow the legislation to be submitted as a late bill. The filing deadline for House bill requests for the 2024 legislative session officially ended on Sept. 15, but the Rules Committee has the power to override the deadline for special requests.
Proposed by Rep. Lucy Weber, a Walpole Democrat, the bill would require the attorney general to notify the House “as soon as they got some kind of confirmation that a member may be sitting who is not residing in the district where they’re supposed to be,” she said to the committee. She said the bill would be narrowly tailored to include only residency issues; the Attorney General’s Office would not need to disclose any other aspects of a criminal investigation of a House member.
The bill comes as House Democrats have expressed frustration that the Attorney General’s Office did not disclose its investigation of Merner to lawmakers until after the legislative session ended in June. Under Part 2, Article 14 of the state constitution, lawmakers may represent only the districts they live in; if they no longer live in the district, they “cease” to be a representative.
“This is a very specific situation,” said Weber. “And I think it would be helpful to have a clear delineation of what the responsibilities are.”
Merner, a Republican, represents Lancaster, but the Attorney General’s Office found that he had not been living in that town since August 2022. Instead, Merner had maintained an office in Lancaster while living in Carroll, a town in a different House district, the office found.
The Attorney General’s Office informed the speaker’s office of its conclusions on Sept. 18 after a multi-month investigation.
Democrats say Merner was constitutionally required to resign from his district when he moved out of it. And they say that some motions that passed by only one vote this spring would have had a different outcome had the Attorney General’s Office disclosed its investigation earlier and had Merner not been allowed to vote.
“It is explicitly the responsibility of the New Hampshire House to judge the qualifications of its members,” said House Democratic Leader Matt Wilhelm in a statement Tuesday. “In the case of former Rep. Troy Merner, credible information relative to those qualifications was withheld for months after being obtained by law enforcement, enabling him to continue illegally voting on over 100 pieces of legislation.”
In a statement Tuesday, a spokesman for the Attorney General’s Office, Michael Garrity, said the office would not comment on the ongoing investigation.
But Garrity said: “The Attorney General’s Office would oppose any legislation that seeks to interfere with the administration of justice or that violates the separation of powers.”
The Attorney General’s Office did not immediately respond to a request for comment Tuesday.
The transparency bill has not yet been drafted. With Tuesday’s vote, it will move forward as a “legislative service request” along with hundreds of other bill requests, and will be drafted by the nonpartisan Office of Legislative Services and released near the end of the year.
Despite joining Democrats to advance the bill, some Republican lawmakers cast doubt on whether they would support the bill when it comes to the House. Rep. Jeanine Notter, a Merrimack Republican, said the bill could allow representatives “to be presumed guilty until they are proven innocent” and ousted from the House simply because of an investigation by the Attorney General’s Office. House Majority Leader Jason Osborne said he had similar objections.
The Rules Committee voted down a Democratic attempt to advance another bill as a late item, 4-5. House Bill 626 would have required the Department of Education to administer the state’s “education freedom account” system, rather than the current nonprofit organization, the Children’s Scholarship Fund. That bill, which Democrats say is necessary to add accountability for the EFA program, was killed by the whole House by one vote in April.
Ordinarily, bills that are voted “inexpedient to legislate” may not return in the next legislative year. But on Tuesday, Democrats argued that the Rules Committee should create an exception because the bill could have had a different outcome had Merner not been allowed to vote.
“Based on the attorney general’s investigation, it’s clear that Rep. Merner’s vote was illegitimate, and without Merner’s vote, the motion of (inexpedient to legislate) would have failed,” Rep. David Luneau, a Hopkinton Democrat, said to the committee, using the official phrase for killing a bill.
“This is an important bill to many members of the House, as its multiple strong votes indicate,” Luneau continued. “Had it been laid on the table, or otherwise stalled but not found (inexpedient to legislate), it would have been refiled for this year.”
Rep. Steve Shurtleff, a Penacook Democrat and former House speaker, said “a lot of us” considered Merner a “good friend.” But he argued that if Merner had participated in a vote while knowing he was not representing his own district, the House should allow the bill to be re-filed.
But Deputy House Speaker Steve Smith pointed to other examples where representatives had left their districts and not resigned promptly, and said that allowing bills to return for that reason would set a bad precedent.
“If I can find one other representative serving illegitimately, do we then come back to this body and undo this vote?” he said. “I don’t like the cycle of getting into that.”
Smith said there are other options for the bill. “Can this not be filed for 2025? Is it that urgent? Is there no bill sitting around that an amendment could go on? With a little artful authoring, it’s usually possible to get what you want out of a bill tagged onto another one.”
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