Allan Herschlag lives in Concord.

Rep. McWilliams recently wrote that if elected Tara Reardon would need to recuse herself from any lobbying activity before the legislature by her husband Jim Bouley. For the record I have called out both on what I believe to have been lapses in their ethical judgment. I should further note that I am no fan of the legislature’s policy of declaring a conflict and then being allowed to participate and vote on that legislation.

HB 1388, which takes effect on Jan. 1, is legislation establishing criteria when a legislator is required to recuse due to a conflict of interest. Earlier versions of HB 1388 required recusal when a legislator, “Is acting as counsel or serving as an attorney for any party which has a conflict of interest in the official legislative activity; Serves in any official capacity with fiduciary limitations in an organization whether nonprofit or for profit which is the subject of the official legislative activity.”

And in a version of the bill amended by the senate, part three of a three-part test requiring recusal stated, “The organization has lobbied, testified, or otherwise attempted to influence the outcome of the official legislative activity.”

Yet the final version of the bill states it is not a conflict for those “contracted” by an organization. If the legislator or the legislator’s family member is “contracted” by the organization, the legislator is not required to recuse. “The person is a contractor (such as an attorney, accountant, or investment manager or advisor) whose sole relationship to the organization is providing professional advice (without having decision-making authority or a title of authority within the organization) with respect to transactions from which the contractor will not economically benefit either directly or indirectly (aside from customary fees received for the professional advice rendered).”

The bill also changes the definition for a conflict requiring recusal from a special interest to that of a substantial interest and creates a three-part test where all three parts have to be met for recusal.

HB 1388 allows a legislator (or a family member) who is “contracted” (paid) by an organization, but not an employee of the organization to lobby, testify and vote on legislation effecting the organization that is paying them. HB 1388 appears to violate our state’s constitution and the stated purpose of HB 1388.

Part II, article 7 of the New Hampshire constitution: “No member of the general court shall take fees, be of counsel, or act as advocate, in any cause before either branch of the Legislature; and upon due proof thereof, such member shall forfeit his seat in the Legislature.”

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HB 1388 purpose, that the general court has adopted principles of public service including the principle requiring “independent, objective judgment in performing a legislator’s duties and deciding all matters on the merits free from conflicts of interest and both real and apparent improper influences.”

Rep. McWilliams wrote, there is no distinction between a legislator’s conflict of interest and a conflict by a family member. Both require recusal by the legislator.

How is it possible that a family member (or a legislator) who is employed as a “contractor” for an organization is allowed to testify and vote while being paid by that organization? How is it possible that it isn’t a conflict of interest? But unfortunately that is precisely what as approved, HB 1388 allows.

Three years. That is how long the house and senate worked on this bill. And after three years HB 1388 flies in the face of the New Hampshire constitution and contradicts the stated purpose of the bill.

If the purpose of this bill is to assure the public that legislators won’t be voting on issues they have a special or significant interest in, that conflicts of interest will disqualify a legislature from participating and voting on a bill, that your interests take precedence over special interests, than HB 1388 has failed.