Governor Sununu signed yet another emergency order, maintaining his pace of three orders per week. Emergency Order #69 allows the State Disaster Medical Advisory Committee (SDMAC) to pack the Public Health Ethics Committee with his appointees.
Related: A September Surge in Coronavirus in N.H. Finds no Surge in the Disease
To provide “guidance” to the governor during his very extended “communicable disease” pandemic.
The Governor’s Emergency Order #69:
- The SDMAC shall serve as the ethics committee created under RSA 141-C:27 (“Ethics Committee”) for the duration of the state of emergency for the purposes of carrying out both the requirements of RSA 141-C:27 and the tasks identified in the CSC Plan.
- The Commissioner shall make any additional appointments to the SDMAC that are necessary to ensure that the SDMAC includes all of the members that are required by law to be included on the Ethics Committee created under RSA 141-C:27.
The SDMAC “consists of representatives from key stakeholders such as State agency officials, legal and medical experts, risk management professionals, community representatives, ethicists, and leaders from health and medical stakeholders and associations. The SDMAC will provide guidance to health care facilities and make recommendations to Governor Sununu during the crisis period.” Their membership can be found here: 
Why does this matter? Why did Sununu need to overturn state statute? Why does he need a different cross-section of the public to advise him? The Legislature created this Ethics Committee to be comprised of a variety of representatives appointed by the AG’s office, the police chiefs’ association, and fire chiefs’ association, not a top-down committee appointed by the Commissioner of the Department of Health and Human Services. Read RSA 141-C:27 for yourself.
Title X Public Health, 141-C Communicable Disease
141-C:27 Ethics Committee. –
I. There is hereby established an ethics committee to offer advice to the commissioner relative to the ethical issues that may be identified in the course of planning for, and responding to, outbreaks of communicable disease that threaten to become epidemic or pandemic.
II. The committee shall consider the ethical implications of any of the powers that may be exercised by the commissioner under the provisions of this chapter including, but not limited to, the confiscation, distribution, and rationing of anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents, and mechanical equipment; the issuance and enforcement of orders of isolation, quarantine, medical examination, and medical treatment; issues relative to information sharing and confidentiality; and the provisions for due process for orders issued pursuant to this chapter.
III. The members of the committee shall be as follows:
(a) The director of the division of public health services.
(b) The state epidemiologist.
(c) The attorney general, or designee.
(d) A representative of a public health network, appointed by the commissioner.
(e) A representative from a college or university public health program, appointed by the commissioner.
(f) A chief of police or a police officer of a local police department, appointed by the New Hampshire Association of Chiefs of Police.
(g) A chief of a local fire department, appointed by the New Hampshire Association of Fire Chiefs.
(h) A physician, licensed under RSA 329, appointed by the New Hampshire Medical Society.
(i) The commissioner of the department of safety, or designee.
(j) A member of a fire department with a minimum of EMT-B certification, appointed by the Professional Firefighters of New Hampshire.
(k) A representative of a hospital, appointed by the New Hampshire Hospital Association.
(l) A county representative, appointed by the New Hampshire Association of Counties.
IV. The commissioner shall appoint a member of the committee to act as chairperson. The committee shall meet initially within 30 days of the effective date of this section and then as regularly as the chairperson shall direct.
V. The commissioner may at any time direct questions to the committee or request guidance on ethical issues.
VI. The committee shall be solely advisory in nature and any guidance, guidelines, or protocols issued by the committee shall not be binding on the commissioner.Source. 2008, 336:4, eff. July 7, 2008.
One can only hope the SDMAC’s recommendations are ethical types, given that Sununu is unfettered by state law in his rule over our lives. But wait!
141-C:28 No Conflict With Emergency Management Powers. – Nothing in this chapter shall be construed to limit or restrict the exercise of the governor’s emergency management powers under RSA 4:45-RSA 4:47.
Source. 2008, 336:4, eff. July 7, 2008.
Under RSA 4:45, Sununu can ignore the recommendations of the Ethics Commission. But, he’s not authorized to override statute law and pack the Ethics Commission with his own people. He could have created another of his now-numerous task forces, but that would not have suited his purpose of creating precedent for executive rule. Again. Just boiling us frogs, just boiling us frogs.
Long live the King!
