116 N.H. 531 | N.H. | 1976
To the Governor and the Honorable Council:
The undersigned justices of the supreme court return the following answers to the questions contained in your resolution adopted September 2, 1976, and filed here on the same date.
Your first question is:
“Does the authority to suspend and/or remove the Warden of the New Hampshire State Prison reside exclusively in the Board of Prison Trustees or in the Governor and Council?”
The starting point of the inquiry is RSA 4:1 which provides as follows:
“Removal of Public Officers for Cause. Except as otherwise specifically provided, no official of the state outside of the state classified service shall be discharged or removed except by the governor and council for malfeasance, misfeasance, or inefficiency in office, or incapacity or unfitness to perform his duties, or for the good of the department, agency or institution to which he is assigned. The attorney-general, or the appointing authority of such official may petition the governor and council for his removal, setting forth the grounds and reasons therefor. The governor and council shall hold a public hearing upon such petition, giving due notice thereof to such official not less than thirty days before the hearing, and shall, if they find, upon due hearing, good cause for removal of such official, order his removal from office.”
As stated in Corson v. Thomson, 116 N.H. 344, 358 A.2d 866 (1976), this statute was enacted by Laws 1950, ch. 5, pt. 25, § 3 and replaced R.L. 27:48 as inserted by Laws 1947, ch. 231. Among other changes made in 1950 was the insertion of the words “Except as otherwise specifically provided.” Basically therefore in the absence of some specific provision to the contrary, the removal of all such officials falls within the authority of the Governor and Council.
The statute covering the powers of the trustees of the prison relating to the appointment of officers of the prison contains the words “and to remove them”. RSA 622:5. This provision has appeared on the statute books since 1926. P.L. 400:6. However, as in Corson, the enactment of Laws 1947, ch. 231 impliedly repealed those words and they have never been legally reenacted although
The legislative intention to place the removal power in the Governor and Council is further indicated by the legislative history of R.L. 14:3 (1942) which before 1950 provided: “The executive head of [the state prison] shall be chosen by the trustees of that institution ... and may be removed by said trustees for cause ....” In the Reorganization Act of 1950, the legislature deleted that portion of R.L. 14:3 which allocated the authority to remove the warden to the trustees, although the appointment power was retained. Laws 1950, ch. 5, pt. 11:8. The deletion of the removal provision coincident with the insertion of the “Except as otherwise specifically stated” language into what is now RSA 4:1 makes plain a legislative intent to render that statute controlling in the present situation.
The answer to your first question therefore is that the Governor and Council have the exclusive authority to remove the warden.
Your second question is as follows:
“If the authority is found to reside in the Governor and Council, must the Governor and Council act on suspension and/or removal of the Warden only upon petition from the Board of Prison Trustees or can the Governor and Council act to suspend and/or to remove on their own motion?”
RSA 4:1 states in pertinent part:
“The attorney general, or the appointing authority of such official may petition the governor and council for his removal setting forth the grounds and reasons therefor. The governor and council shall hold a public hearing upon such petition ....”
We find in this provision a legislative intent to require a petition by the attorney general or the board of trustees before public removal hearings may be held by the Governor and Council. Our interpretation of the statutory language is buttressed by the legislative history of 1947 Senate bill 33, (ultimately Laws 1947, ch. 231), which is detailed in Corson v. Thomson, 116 N.H. 344, 358 A. 2d 866 (1976). Senate bill 33 as originally adopted dealt only with the removal of the director of the fish and game department, and called for a joint hearing before the Governor and Council and the commission. However, in its final form, when revised to extend the removal provisions to other officials, it provided that removal be by the Governor and Council, but further specified
The answer to your second question is that the Governor and Council may act only upon the petition of the attorney general or the board of prison trustees.
September 22, 1976
