§ 21-H:8 — Powers and Duties of Commissioner

The commissioner shall be the chief administrative officer of the department and shall have the following powers and duties:
I. The commissioner shall manage all operations of the department and administer and enforce the laws with which he or the department is charged. He shall report directly to the governor.
II. To perform his duties, the commissioner shall have every power enumerated in the laws, whether granted to the commissioner, the department or any administrative unit of the department. In accordance with these provisions, the commissioner shall:
(a) Biennially compile a comprehensive program budget which reflects all fiscal matters related to the operation of the department and each program and activity of the department.
(b) Adopt all rules of the department, pursuant to RSA 541-A, whether the rulemaking authority delegated by the legislature is granted to the commissioner, the department or any administrative unit or subordinate official of the department either by this chapter or by existing statutes.
(c) Exercise general supervisory and appointing authority over all department employees, subject to applicable personnel statutes and rules.
(d) Delegate authority to subordinates as the commissioner deems necessary and appropriate, except that rulemaking authority shall not be delegated. The commissioner shall provide by delegation for the assistant commissioner, warden, or a division director to exercise authority in the commissioner's absence. All such delegations shall be made in writing, shall be disseminated to all division directors, shall clearly delineate the authority delegated and the limitations thereto, and shall be kept on file in the commissioner's office. The assistant commissioner shall assume the duties of the commissioner in the event that the commissioner becomes incapacitated and is unable to perform such duties.
(e) Adopt practices which will improve the efficiency of the department and the provision of services to the citizens of the state.
(f) Provide cooperation, at the request of the heads of administratively attached agencies in order to:
(1) Minimize or eliminate duplication of services and jurisdictional conflicts;
(2) Coordinate activities and resolve problems of mutual concern; and
(3) Resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies.
(g) Give bond, and require division directors to give bond, to the state as specified in RSA 93-B.
(h) Where functions of departments overlap or a function assigned to one department could better be performed by another department, recommend appropriate legislation to the next regular session of the general court.
(i) Be responsible for the operation of the special school district established under RSA 194:60 for the purpose of providing appropriate education services to eligible offenders held in facilities operated by the department.
III. The commissioner shall adopt such reasonable internal practices and procedures, which shall not be considered rules subject to the provisions of RSA 541-A, as may be necessary to carry out the duties of the department and its divisions, consistent with this chapter. These procedures shall include at least the following elements:
(a) A comprehensive manual of procedures for the operation of the state prison and other adult correctional facilities of the department, including provisions for the humane treatment of inmates.
(b) A classification system for evaluating probationers and parolees to establish the appropriate level of supervision.
(c) Criteria used to determine when probationers will be reported to the court for violations of probation or when parolees shall be reported to the parole board for violation of the conditions of parole.
(d) A policy on notification of law enforcement agencies for parolees who abscond from supervision.
(e) Criteria for determining when a parolee who has absconded to another state shall be returned to this state.
(f) A policy on and procedures for an internal clemency board to review each request for sentence modification pursuant to RSA 651:20 and to provide a recommendation on each request to the sentencing court.
IV. [Repealed.]
V. The commissioner shall have the authority to adopt rules, pursuant to RSA 541-A, necessary to assure the continuation or granting of federal funds or other assistance not otherwise provided for by law.
VI. The commissioner may enter into contracts with the state's counties, the governments of other states, the federal government, or other appropriate government agencies or facilities and make proper and necessary arrangements with them for the transfer and reception of inmates and allow transfers to state prisons of any person. Any person who is confined awaiting trial on a felony charge may be transferred to the state prison from the county correctional facility, upon the recommendation of the superintendent of the county department of corrections, and with the approval of the county commissioners of said county. The superintendent may transfer a prisoner, without the approval of the county commissioners, if the superintendent determines the transfer is necessary for public safety or emergency reasons. The county commissioners shall review any such transfer at their next regular meeting. If the county commissioners reject the transfer, the prisoner shall be returned to the facility from which the prisoner came as soon as practicable.
VII. (a) The commissioner may order the assignment and transfer of persons committed to his or her custody to correctional facilities of the department or correctional facilities operated by state governments in other jurisdictions, or public facilities under contract with the department. The commissioner shall not enter into a contract with a private or for-profit entity for the sole purpose of housing state prisoners.
(b) Notwithstanding subparagraph (a), if the governor, upon recommendation of the commissioner, declares by executive order that a corrections emergency exists that requires the commissioner to enter into a temporary contract with a private or for-profit entity to secure provisional housing for displaced prisoners, the commissioner may enter into such a contract, pending approval of the governor and the council. Temporary contracts entered into under this section shall not permanently or indefinitely replace a correctional facility operated by the state of New Hampshire or a contract with another publicly-operated facility.
VIII. The commissioner shall appoint probation-parole officers as provided in RSA 504-A:8 through RSA 504-A:12-a.
IX. [Repealed.]
X. The commissioner shall develop, publish, and periodically revise an annual comprehensive plan for the state's correctional system which shall indicate, among other things, the department's goals, objectives, resources, current conditions, and needs. The report shall contain information on any substantial modification of existing facilities, the progress on construction of new facilities, and whether such construction or modification is being undertaken by public or private entities. The commissioner shall annually submit such comprehensive plan to the governor and council, speaker of the house, president of the senate, and governing bodies of municipalities where state corrections facilities are located.
XI. The commissioner and the commissioner of the department of health and human services shall jointly establish procedures for sharing data, at least in the aggregate, on delinquents and offenders for purposes of correctional planning and needs assessments. These procedures shall not be considered rules subject to RSA 541-A and shall be established so as to ensure compliance with state and federal confidentiality and privacy laws.
XI-a. (a) The commissioner shall be the principal administrator of the secure psychiatric unit established pursuant to RSA 622:41. The commissioner shall establish the treatment standards for the unit after consultation with the commissioner of the department of health and human services. The commissioner shall:
(1) Administer the unit;
(2) [Repealed.]
(3) Consult with the commissioner of the department of health and human services regarding transfers to the unit;
(4) Transfer persons in his or her custody to the unit if treatment is needed for mental disturbance;
(5) Discharge persons pursuant to RSA 622:48;
(6) Review, at least annually, the mental health programs with the commissioner of the department of health and human services to determine what policies, standards, or practices should be revised to improve treatment;
(7) Appoint qualified persons to positions established in RSA 622:43, I;
(8) Administer the unit in such a manner as to meet accreditation standards; and
(9) Perform other tasks necessary to carry out the administration of RSA 622:40-48.
(b) The commissioner shall seek accreditation from the National Commission on Correctional Health Care to have the secure psychiatric unit accredited as a behavioral health facility. The accreditation process shall commence before January 1, 2019. The commissioner shall make all reasonable and good faith efforts to achieve accreditation in a timely manner.
XI-b. Whenever it appears to the commissioner that a person who has been committed to the custody of the department of corrections is substantially deprived of his capacity to manage his own affairs and is as a result at risk of substantial harm to himself or his estate and such person does not have a legal guardian, the commissioner shall take such steps as are appropriate to safeguard such person as are consistent with RSA 464-A and RSA 547-B, including the nomination of a guardian when no less restrictive alternative is available.
XI-c. The department of corrections shall have a direct and tangible interest in a limited data set of death, marriage and divorce information of individuals they are charged with collection of fees and control and supervision by the department pursuant to this chapter, RSA 504-A:12,VI, and RSA 504-A:13, limited to name of person, date of birth, social security number, date of vital event, place of vital event, cause of death, marital status, and name of spouse. The commissioner and the secretary of state shall enter into a memorandum of understanding for the purposes of delineating specific procedures and protections for access to this limited data set.
XII. If this section conflicts with other powers and duties specifically granted by statute to the commissioner, the specific powers and duties shall control. If this section conflicts with other statutes specifically limiting the powers of the commissioner, the specific limitations shall control.
XIII. The commissioner shall have discretionary authority to pay burial and wake expenses in an amount not to exceed $10,000 for an employee whose death occurs while on duty with the department of corrections and when the deceased employee's next of kin demonstrates an inability to afford the burial or wake expenses.

Legislative History

1983, 291:1; 461:1. 1985, 337:2. 1988, 170:2, 3. 1992, 143:1. 1994, 212:2. 1995, 181:1; 310:66, 170, I, 182. 1996, 13:7; 232:1. 1998, 386:1, 2. 1999, 296:1, 4. 2008, 203:1; 313:6. 2009, 222:1. 2011, 65:3, eff. July 15, 2011. 2012, 247:40, II, eff. Aug. 17, 2012. 2015, 259:31, I, eff. July 1, 2015. 2018, 353:2, eff. July 2, 2018. 2020, 12:8, eff. July 16, 2020. 2021, 54:3, eff. July 24, 2021. 2023, 79:380, eff. July 1, 2023.