Cook On Concord: The ‘Nevada effect’ remains to be seen

As all political junkies now know, the Democratic National Committee has selected Nevada as the location for a nominating caucus to be held between the Iowa caucus and the New Hampshire primary in 2008. There has been a lot of speculation that the power of U.S. Sen. Harry Reid and the influence of a number of interest groups in Nevada resulted in that state’s selection.

What is interesting from a New Hampshire perspective is the question of whether having another caucus in a western state will diminish the status of New Hampshire’s primary as the first test of potential presidents by secret ballot. New Hampshire, as most people know, has a state law that requires its contest to be scheduled before any similar election in “another state” by at least a week. Secretary of State William Gardner has to determine whether the Nevada caucus is an “equivalent” selection contest and, because it has been placed closer than a week, whether he needs to move the New Hampshire primary ahead — whether ahead of Iowa or just ahead of Nevada.

There has been a lot of crossfire between the heads of political parties over who is to blame for this situation, who has tried hard enough to defend the primary and what the effect of all this will be.

What is certain is that all potential candidates are and will be asked to pledge allegiance to the New Hampshire primary as the most important electoral event in the Western World each time they come to New Hampshire.

Looking back at past elections, New Hampshire certainly has lost some luster, as hand-to-hand combat has given way to media campaigns and as New Hampshire’s record as an always accurate predictor of the ultimate result has been tarnished.

What Secretary Gardner does and how the parties react to it will be great political and legal drama over the next year.

Gov. John Lynch has nominated Manchester attorney Thomas S. Burack (law partner of this writer) to replace Environmental Services Commissioner Michael Nolin. Nolin has been somewhat controversial in serving as commissioner since he was appointed by former Gov. Craig Benson, coming to the job from his position as a vice president of Hoyle Tanner & Associates, the prominent Manchester engineering firm.

What is interesting about the appointment and process is not the relative merits of the incumbent and nominee, which certainly can be debated. Rather, what is lasting is what the controversy says about the New Hampshire governmental process.

Nolin’s term has expired, yet he is not out of work, since he is in what is known as “holdover status.” That means that until his successor is confirmed by a vote of at least three members of the Executive Council, he remains in his position.

At this point, Nolin has been lobbying to stay in his job, according to press reports, and has received sympathetic and supportive comment from Councilors Raymond Burton and Raymond Wieczorek. On the other hand, it is assumed that Councilor Ruth Griffin and Councilor Debora Pignatelli will back the governor’s choice, although for different reasons. Councilor Peter Spaulding, at this writing, is uncommitted.

The governor is the chief executive officer of the state. Notwithstanding that designation, he cannot automatically appoint department heads. They serve for a term once confirmed, regardless of a change in governors. History demonstrates many cases of holdovers, when three councilors refused to vote for anyone other than the incumbent whom the governor refused to reappoint.

This aspect of New Hampshire state government is part of the inherently weak executive system and diffusion of power designed into the New Hampshire Constitution. It may be impractical to have all department heads change when governors change, given the fact that the governor has a two-year term, but the ability of a governor to shape his own team and have officeholders with his own philosophy is limited severely by this system.

Would not a system with an automatic vacancy within a certain time after the end of a term not be preferable?

Interestingly, Burack is a nominee with extraordinary credentials. A native of Jackson, he is a graduate both of Dartmouth College and the University of Virginia Law School, served as an environmental adviser to former U.S. Sen. Gordon Humphrey, a very conservative Republican, clerked for then-New Hampshire Supreme Court Justice David Souter, another Republican, was counsel to the Republican State Committee, has headed the Land and Community Heritage Investment Program, headed the Business & Industry Association’s WasteCap Program and has practiced environmental law and is familiar with related policy issues throughout his career.

Nolin has a record as commissioner that has been controversial with some and praised by others. He is a bright, amiable, well-connected and, by all accounts, able person, who has been accessible and available.

The question, of course, is whether Governor Lynch gets to name his own team or not. What all of this says about the New Hampshire system depends on one’s point of view. At least one of the councilors supporting the incumbent has said a lot about the need to allow governors to name their own team members in other contexts.

The betting is that Burack ultimately will be confirmed and the governor will get his way. However, at this writing, that is not absolutely clear. I’d vote for him!

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.