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Wednesday, July 30, 2014

Hassan vetoes access to privileged, state agency info

CONCORD – Gov. Maggie Hassan on Tuesday vetoed legislation granting legislative auditors access to privileged state agency communication warning it could undermine competitive bidding and leave the state vulnerable in future lawsuits.

In her two-page message, Hassan said the measure (HB 685) could lead future legislators for political reasons to push for audits of certain private contractors. ...

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CONCORD – Gov. Maggie Hassan on Tuesday vetoed legislation granting legislative auditors access to privileged state agency communication warning it could undermine competitive bidding and leave the state vulnerable in future lawsuits.

In her two-page message, Hassan said the measure (HB 685) could lead future legislators for political reasons to push for audits of certain private contractors.

“The changes in House Bill 685 pose serious risks that could drive up the costs of state government by undermining the state’s ability to attract competitive bids for goods and services and the state’s position in pending or threatened litigation; undermine the constitutional separation of powers by making it nearly impossible for agency heads to receive thoughtful, privileged legal advise; and permit future legislatures, if they choose, to politicize the audit process,” Hassan wrote.

State Reps. Lynne Ober, R-Hudson, and Peter Leishman, D-Peterborough, authored the original bill in 2013 responding to the controversy over the State Liquor Commission dumping Law Warehouse of Nashua as its longtime vendor.

The Legislature stripped from the bill several provisions, but one remained, to give the Legislative Budget Assistant’s office access to confidential or privileged information between state agency heads and government lawyers.

Ober and Leishman said the State Liquor Commission withheld from the public details about the $30 million warehouse and shipping pact with Exel Inc., of Bow.

The New Hampshire Supreme Court ruled the SLC had violated the state’s Right to Know Law in requests for information and sent an underlying Law Warehouse lawsuit back to a lower court for further review.

House Judiciary Committee Chairman Marjorie Smith, D-Durham, said Hassan’s veto surprised her, as the bill had strong bipartisan support.

“HB 685 has one goal – better audit reports that lead to better government,” Smith said in a letter she sent to Hassan after learning of the veto.

A trio of Republican state senators in a joint statement criticized Hassan’s decision and vowed to try to get the two-thirds majority vote in the Senate and House to override the veto.

“The governor’s veto message raises a number of non-existent problems to justify her attempt to block transparency in state government. The Legislature, and the people of New Hampshire, have a right to know what is going on within their government,” said Senate Majority Leader Jeb Bradley,
R-Wolfeboro.

The office of the attorney general mediates disputes between agency heads asserting confidentiality and legislative auditors wanted information.

This measure would make the Legislative Fiscal Committee the final arbiter of those disputes and Hassan said that would be a violation of the separation of powers.

The bill states only auditors would have access to the information while doing their nonpublic work so attorney-client privilege would be retained.

But Hassan said in her veto the privilege would be broken at that point.

“It is well-settled law that attorney-client communications once shared with a third party lose their privileged status,” Hassan wrote. “That means legal opinions shared with the Fiscal Committee will become available to opposing counsel in pending or threatened litigation.”

Kevin Landrigan can reached at 321-7040 or klandrigan@nashuatelegraph.com. Also, follow Landrigan on Twitter (@Klandrigan).