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Debate over subpoena authority for Department of Education centers on due process and access to reports
Summary
HB 520 would authorize the Department of Education to issue subpoenas in investigatory and adjudicatory licensing proceedings; supporters said it aligns NH with other states and helps investigations, while unions and educators opposed the change citing due-process and scope concerns.
Representative Bob Lynn told the Senate Judiciary Committee House Bill 520, requested by the Department of Education, would give the department authority to issue subpoenas in connection with professional-licensing disciplinary investigations of educators.
Lynn said that many other state regulatory agencies have subpoena power and that surrounding states’ education agencies already have that authority. “If there’s a regulatory agency such as the Department of Education that has the authority to regulate and discipline certain licensed individuals … they ought to have an ability to compel production of information or witnesses,” Lynn said.
Supporters including Representative Caitlin Catawba said the power is critical to investigating serious allegations that threaten student safety, such as sexual assault or inadequate supervision. “When there’s a serious allegation … the DOE needs to have this tool to be able to subpoena so that they can properly investigate these very serious allegations and to keep our kids safe,” Catawba said.
Opponents — including Brian Hawkins of NEA New Hampshire and Deborah Haas of the American Federation of Teachers New Hampshire — said the department has not shown a systemic inability to obtain necessary records and that the investigatory subpoena authority would raise due-process and scope concerns. Hawkins noted that the bill would allow subpoenas during the investigatory stage only at the department’s request and would not give the educator the same subpoena power at that stage. He said the department already provides discovery in adjudicatory hearings and that cases reaching adjudication are rare.
Diana Fenton, an attorney for the Department of Education, told the committee that district investigation reports are work product owned by the district and that the department has sometimes been required to review reports on-site at law firms without copies. “Without the report, we are hamstrung to move forward on a credentialing matter,” Fenton said. She emphasized the department revised rules (Ed 511) last year to provide due process for credentialed educators.
Committee members heard competing claims about frequency of needed access and whether protective guardrails in the bill are sufficient. Testimony closed with committee members and stakeholders indicating they may continue working on language and conditions for subpoena authority.
