HB 1486

AN ACT making the penalty for the offense of official oppression a felony and creating a civil cause of action against public officials for abuse of office or improper influence.

SPONSORS: Rep. Marple, Merr 11; Rep. D. White, Hills 25; Rep. Christiansen, Hills 23; Rep. Gilman, Graf 1; Rep. Mosher, Hills 30; Sen. Roberge, Dist 9

This bill changes the penalty for official oppression from a misdemeanor to a class B felony.

This bill also creates a civil cause of action for abuse of office and improper influence against public officials, allows the recovery of attorney's fees and exemplary damages, and provides that public officials be held to a fiduciary standard in relation to the exercise of their office.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Paragraphs; Civil Cause of Action Created; Fiduciary Standard of Conduct Imposed. Amend RSA 640:2 by inserting after paragraph II the following new paragraphs:

III. A civil cause of action is hereby created against any public servant for violating the provisions of paragraph I of this section. Such civil action may be initiated by any New Hampshire taxpayer or voter. Upon the filing of such a civil action, the court shall provide an expedited hearing process to review the pleadings and ensure that such action is legally sufficient to state a claim for relief. A prevailing plaintiff shall be entitled to court costs and reasonable attorney's fees. The court, at its discretion, may award punitive damages or may order the individual removed from public office and set a time period during which the person found liable under this section shall be barred from public office or public employment in New Hampshire.

IV. Public servants shall be held to the same fiduciary standards imposed on corporate officers and directors under RSA 293-A.

643:1 Official Oppression. A public servant, as defined in RSA 640:2, II, is guilty of a [~~misdemeanor~~] class B felony if, with a purpose to benefit himself or another or to harm another, he knowingly commits an unauthorized act which purports to be an act of his office; or knowingly refrains from performing a duty imposed on him by law or clearly inherent in the nature of his office.

3 New Section; Official Oppression; Misuse of Information; Civil Cause of Action Added; Fiduciary Standard of Conduct Imposed. Amend RSA 643 by inserting after section 2 the following new section:

I. A civil cause of action is hereby created against any public servant for violating the provisions of RSA 643:1 and 643:2. Such civil action may be initiated by any New Hampshire taxpayer or voter. Upon the filing of such a civil action, the court shall provide an expedited hearing process to review the pleadings and ensure that such action is legally sufficient to state a claim for relief. A prevailing plaintiff shall be entitled to court costs and reasonable attorney's fees. The court, at its discretion, may award punitive damages or may order the individual removed from public office and set a time period during which the person found liable under this section shall be barred from public office or public employment in New Hampshire.

II. Public servants shall be held to the same fiduciary standards imposed on corporate officers and directors under RSA 293-A.

The Administrative Office of the Courts, Judicial Council, and the Departments of Corrections and Justice have determined this bill may increase state and county expenditures by an indeterminable amount in FY 2001 and each year thereafter. There will be no fiscal impact on county and local expenditures or on state, county and local revenue.

The Administrative Office of the Courts stated this bill changes the status for the offense of official oppression from a misdemeanor to a class B felony offense. The Office has determined the legislation will have little, if any, fiscal impact on the Branch, as it will not significantly impact caseload.

The Judicial Council assumed that any cases arising from the enactment of this law for which the Indigent Defense Fund may be liable, will, in the first instance be handled by the Public Defender or contract attorneys who accept these cases on a fixed fee basis, $250 for each misdemeanor and $687.50 for each felony charge. If an Assigned Council attorney must be used, the hourly rate of $60, with a fee cap of $3,000 for felony cases and $1,000 for misdemeanors will apply. If a motion to exceed the fee cap is approved and/or "services other than counsel" are approved, these will also be chargeable to the Indigent Defense Fund. The Council is unable to predict the number of cases or trials which may arise as a result of the passage of this legislation, therefor, they are unable to estimate the dollar amount of the anticipated costs of such representation.

The Department of Corrections is unable to predict how many, if any, individuals would be incarcerated as result of this legislation. The average cost of incarceration for FY 1999 was $19,358 per inmate. The average cost of probation/parole supervision was $842 per inmate.

The Department of Justice has stated it is not possible to predict how many civil actions authorized by this bill would be brought and require defense.