117 N.H. 390 | N.H. | 1977
To His Excellency the President of the Senate and the Honorable, Council:
The undersigned justices of the supreme court submit the following answers to the questions contained in your resolution adopted May 4,1977, and filed with us on May 5,1977.
Your first question is “Can removal proceedings pursuant to RSA 4:1 take place with four members of the Executive Council sitting instead of the full five-member Executive Council.” The answer to this question is “Yes.” A majority of the Council constitutes a quorum. Opinion of the Justices, 98 N.H. 530, 98 A.2d 635 (1953) ; N.H. Const, pt. II, art. 46, 62; RSA 21:15. Inasmuch as the second question is asked only in the event the answer to the first is in the negative, there is no occasion to answer the second question.
Your third question is whether the reason advanced by Councilor Streeter for his withdrawal is a sufficient basis to withdraw himself from participation in the hearing. This is a personal decision by the councilor and it does not appear to involve a matter which relates to action to be considered by the Governor and Council. Opinion of the Justices, 98 N.H. 537, 104 A.2d 208 (1954) ; see Opinion of the Justices, 102 N.H. 183, 152 A.2d 870 (1959). We respectfully request to be excused from answering the question because it “is not within the spirit or letter of the constitutional provision for advisory opinions. N.H. CONST, pt. II, art. 74.” Opinion of the Justices, 116 N.H. 358, 360 A.2d 889 (1976).
Your fourth and last question is “In an RSA 4:1 removal proceeding, must a member of the Executive Council be present for
Extended absences from administrative hearings by an administrator charged with making a decision have been held not to invalidate the decision provided he reviews the evidence and bases his decision on the record. Browning-Ferris Indus. v. State, 115 N.H. 190, 339 A.2d 1 (1975); Annot., 18 A.L.R.2d 606 (1951) and Supp. 1976. However in removal proceedings under RSA 4:1, the latitude may not be as great. We are of the opinion that a short absence would not disqualify a councilor provided the transcript of the testimony was read and provided further that the evidence was such as not to require personal observation of the witness. See Van Teslaar v. Bender, 365 F. Supp. 1007 (D. Md. 1973).
This is the second request for an advisory opinion in this matter. N.H. Const, pt. II, art. 74 does not contemplate that this court should be required to give advisory opinions seriatim in interlocutory matters arising during proceedings under RSA 4:1.