#

New Hampshire’s embattled Human Rights Commission (HRC) is getting two new members and, according to Gov. Kelly Ayotte, their first priority is reforming the failing agency.

The Republican governor told reporters after Wednesday’s Executive Council meeting that it’s past time to get the HRC functioning after a damning audit by the Office of Legislative Budget Assistant earlier this year. The report found unresolved cases that were years, and in some cases, decades old. One pending case dates back to the Reagan administration.

The audit also found the understaffed office and its poorly trained investigators have been mismanaged by leadership for years.

“I’ve been quite clear that those audit findings are unacceptable, and where we are right now with the Human Rights Commission is completely unacceptable,” Ayotte told NHJournal.

The Executive Council confirmed business leader Ray Pinard to the commission on Wednesday, and Ayotte nominated Dr. Stewart Levenson to another seat. Under the law creating the agency, Human Rights Commission members are appointed by the governor, and they are responsible for overseeing the staff, including the position of executive director.

But that’s hard to do, critics say, when Executive Director Anhi Malachi has gone AWOL.

Malachi, who’s been the HRC’s director since 2018, has rarely been in the office since last summer. She reportedly suffered a heart attack and has been on medical leave through January of this year. However, after returning to work part-time for a couple of weeks, Malachi again took leave and continues to be out of the office and incommunicado.

Emails obtained by NHJournal through a Right to Know request indicate Malachi is still not communicating with the HRC staff, including current Interim Executive Director Katrina Taylor. Malachi’s lack of communication with her office dates back to the summer, based on the emails. 

After informing staff through an email on July 27, 2024, that she would be out for an extended period, no Malachi emails appeared until January of this year.

It’s not clear how much Malachi worked until she went out on leave again for medical reasons. It’s also unclear whether Malachi informed any staff about her second leave. Taylor, who has been running the agency through the LBA audit, did not find out until Commissioner Elizabeth Asch informed her on Feb. 4, according to the emails.

Malachi’s absence is even more puzzling — and perhaps ethically questionable — after the HRC staff found out last fall that Malachi had been chairing a volunteer board for the city of Concord the entire time.

“Staff brought to my attention the attached and expressed concerns (and disappointment) that it appears Anhi is semi-working in other capacities but is seemingly unwilling or unable to communicate (by way of simple check-in) with HRC,” Taylor wrote to Asch on Nov. 14.

The attached document was a copy of the Sept. 30 meeting minutes of Concord’s Diversity Equity Inclusion Justice and Belonging (DEIJB) Committee. They included a letter from Malachi explaining her temporary absence from the DEIJB, and her promise to continue working with the committee even as she was out of contact with the HRC, where she was paid to work.

Some Republicans say the HRC’s lack of action and the subsequent lack of negative outcomes prove that the entire agency should be shut down. Ayotte doesn’t agree. She’s trying to fix the agency within the current law. She’s keeping the HRC funded in her budget proposal, and she’s waiving hiring freezes to get three more investigators on the job addressing the caseload backlog.

Asked about the HRC’s performance and whether senior staff should be fired, Ayotte noted that the agency doesn’t answer to the governor or the Executive Council. She also hinted that firing would be her preferred solution.

“If (the executive director) were a governor and council appointment, and perhaps that’s a proposal that the legislature might consider as well, then we obviously would take a different tactic here,” Ayotte said.

Ayotte pointed to the appointment of Pinard as a sign that Granite Staters can expect vigorous action — and soon. Pinard is known for turning around businesses, and he has pledged to put in 500 hours of his time to get the HRC reform started. 

“He offered to serve on the HRC following the release of the alarming LBA audit, and I applaud him for stepping up, offering to serve the State of New Hampshire, and willing to put in the time to overhaul the HRC, which he estimates will be 500 hours of his time. A self-described ‘change agent,’ he’s exactly what we need on the HRC right now,” said Executive Councilor Janet Stevens (R-District 3).

Reached Wednesday, Levenson said if confirmed, he wants to focus on building better policies and procedures that will serve the people of New Hampshire for years to come.

“It’s an important job, and unfortunately, I think there have been some issues in the past and that going forward we have to do better, and I think we can,” Levenson said.

After years of operating with little oversight and producing even fewer results, New Hampshire’s Human Rights Commission (NHHRC) is now set for a major overhaul. Critics say it’s long overdue.

A brutal report released in February found the agency has unresolved cases of alleged discrimination going back to the Reagan administration. Its performance is so poor that it takes on average more than two years to resolve a single case.

All the while, the agency, nominally led by Executive Director Ahni Malachi, shuffled key staff without any approval and provided annual reports that were years late.

Even with red flags about the commission’s operations, such as the years’ late reports, Executive Councilor Janet Stevens (R-District 3) told NHJournal she and the other councilors had no idea of the scope of the problem until the February performance audit released by the Office of the Legislative Budget Assistant.

For example, they were unaware that Malachi had simply stopped showing up for work, replacing herself with an “interim” director — all without oversight or scrutiny.

“The Council was not formally notified of the NHHRC Executive Director’s (Ahni Malachi) failure to fulfill the agency’s statutory responsibilities until the release of the Legislative Budget Assistant audit,” Stevens said.

The Human Rights Commission has rarely gone to the Executive Council in the time Stevens has been in her post. There was one software contract last year that needed Executive Council approval, and three appointments to the commission. The only other instances the Human Rights Commission interacted with the council is when it submitted its annual reports, sometimes a year or more late.

The LBA audit found pending cases that were years, and in some cases decades, old. The understaffed office included poorly trained investigators being mismanaged by leadership for years.

“We found the Commission did not perform necessary management control responsibilities such as developing a strategic plan; defining objectives; developing performance measures; identifying, analyzing, and responding to operational risks; and resolving prior audit findings. As a result, there was an increased risk the Commission would not achieve its objectives,” the audit stated.

Under the law that created the Human Rights Commission, the governor nominates the commissioners and the commission chair to oversee the agency, and those nominations are voted on by the Executive Council. It is the commission itself, made up of volunteers, that hires the executive director.

The Executive Council was never kept in the loop when Malachi left her post last summer due to a health problem and Investigator Katrina Taylor was made Interim Executive Director. Since Malachi and Taylor are both hired employees and not appointed, the Executive Council has no direct oversight of their jobs. That is left to the Human Rights Commission and its chair.

In January, weeks before the LBA audit was released, Human Rights Commission Chair Christian Kim resigned his post. The resignation occurred during the transition between outgoing Gov. Chris Sununu’s administration and incoming Gov. Kelly Ayotte’s. Both Ayotte and Sununu were informed of the resignation. Kim did not respond to NHJournal’s requests for comment. The commission currently does not have a permanent chair. 

Republican Ayotte announced her intention to fix the Human Rights Commission and get it serving the people of New Hampshire. 

“The long-term issues at the Human Rights Commission are unacceptable. My office is working with the attorney general to ensure the Commission is efficient and effective in investigating discrimination claims,” Ayotte said.

Ayotte wants to see more direct oversight of the Executive Director position by the Governor’s Office and Executive Council. Stevens said that is the right direction.

“Given the critical nature of these executive branch leadership positions, (Executive) Council oversight would ensure proper management and adherence to statutory obligations from the outset,” Stevens said.

The Human Rights Commission is administratively attached to the Department of Justice, and not an integrated part of the DOJ or Attorney General’s Office, under the law that created the commission. Attorney General John Formella said his office is working with commission staff to address the audit findings. 

“Right now, we are doing a lot of work to help them through this audit, the results of the audit, and to start developing plans to address the audit,” Formella told the Executive Council last week.

Stevens wants to see a remediation plan put into place that includes frequent and transparent reports about the commission’s progress in fixing the problems. 

“I remain committed to ensuring accountability and corrective action within the New Hampshire Human Rights Commission,” Stevens said.

For years, supporters of parents rights and opponents of race-based education materials have complained that the state’s Commission for Human Rights (HRC) is where their complaints go to die.

A new audit of the commission finds the state-run agency is a vast graveyard for civil rights complaints, with unresolved cases going back to the Reagan era.

The performance audit, performed by the Office of the Legislative Budget Assistant and due to be presented to the House Finance Committee on Friday, found the agency has unresolved cases of alleged discrimination going back to the Reagan administration.

The agency, until recently led by Ahni Malachi, has performed so poorly that it takes, on average, more than two years to resolve a single case.

Much of the problem rests on the agency’s management, according to the audit.

“We found the Commission did not perform necessary management control responsibilities such as developing a strategic plan; defining objectives; developing performance measures; identifying, analyzing, and responding to operational risks; and resolving prior audit findings. As a result, there was an increased risk the Commission would not achieve its objectives,” the audit states.

Interestingly, Malachi has found the time to also run the City of Concord’s Committee on Diversity, Equity, Inclusion, Justice, and Belonging (DEIJB), where she recently defended a $40,000 contract that went to a former get-rich-quick website operator.

Malachi, who served as the commission’s executive director since 2018 but was recently replaced by an acting executive director, was not available for comment.

Ahni Malachi

Created in 1965, the state’s Commission for Human Rights is tasked with enforcing the state’s anti-discrimination laws. People who believe they have been victims of racial discrimination, sexual harassment, workplace discrimination, or housing discrimination can take their complaints to this agency.

The commission is tasked with investigating and resolving those complaints in a reasonable amount of time. But that is not happening.

Currently, 237 unresolved cases are backlogged at the agency according to the audit, with some going back to 1984. It takes a year and a half on average before a complaint is even be assigned to an HRC investigator, the audit found, and close to another year before the case is resolved.

Compounding the issues within the agency is the fact that lengthy delays in resolving discrimination complaints often see the statute of limitations expire before a decision is made, meaning people are losing their right to take the complaint to court instead.

“Our review of 228 cases closed during State fiscal year 2023 found the Commission took an average of 840 days (2.3 years) to close a case. We found 62 of 228 cases (27.2 percent) reviewed were closed after the three-year statute of limitations that would have allowed complainants to have their cases heard in Superior Court,” the audit states. 

The 92-page audit includes damning anonymous statements from attorneys who deal with the agency.

“Over the last few years, the investigators in my cases never reached out or talked to my witnesses. In other words, cases were delayed for years and then decided without talking to witnesses,” one lawyer said.

“This agency should either be completely overhauled or eliminated. As constituted, it serves no purpose,” one lawyer said.

“Because the investigators are not experts in the law, they fail to ask for evidence from the employers that would be required,” another lawyer said.

“I’ve been told in several cases that none of the witnesses I listed were contacted,” another lawyer said.

Many problems found in the audit were present in a similar 2019 audit of the agency, soon after Malachi took office.

While the commission deals with complex legal issues, Malachi is not an attorney. She came to the commission after working as a public relations manager at WMUR.

Acting Executive Director Katrina Taylor, is also not an attorney but rather a former manager at a fireworks store. She declined to discuss the audit ahead of Friday’s House hearing.

The circumstances under which Malachi was replaced by Taylor remain murky, and nobody with the agency would answer questions about the staffing move. However, in a public letter to the City of Concord, Malachi said she suffered an uncommon but not rare type of heart attack known as a “spontaneous coronary artery dissection,” or SCAD.

The state Commission for Human Rights has not made any disclosures to the public about staffing changes. And staffing continues to be a problem, as the current leadership has failed to fill the agency’s vacancies. Of the 21 positions budgeted for at the commission, only nine were filled as of this month. Of those nine, six are investigators.

Despite having so few investigators on staff and a 237 case backlog, the commission’s leadership chose to divert its focus even more by assigning the investigators extra administrative tasks. Investigators were assigned to redesign the agency website, compile agency statistics, and peer review other investigators reports.

Investigators at HRC generally do not have legal backgrounds and are instead trained using outdated materials that reference laws and regulations no longer in effect, according to the audit. 

“The Commission does not provide its investigators with adequate training or tools. Training new investigators consisted primarily of using an outdated and deficient Investigator Manual,” the audit states.

Worse, the training manuals include real unredacted cases as examples for new investigators, meaning personal information that should be confidential, like the names, mailing addresses, email addresses, witness names, and phone numbers from actual complaints, are in the manuals.

That likely violation of state and federal privacy laws caught the commission’s leadership by surprise, according to the audit.

“Commission management appeared to be unaware of personal information in the manual, or misunderstood what should be considered confidential information,” the audit states.

New Hampshire’s Attorney General and Secretary of State have released a scathing letter calling out the town of Windham for its inept, dishonest, and potentially illegal mishandling of ballots during the 2020 general election. The behavior of town election officials was so egregious, the state is taking the unusual step of appointing a monitor to oversee the coming September primary election.

The town received the news Friday in a letter from New Hampshire Attorney General John Formella and Secretary of State William Gardner to Windham town officials.

“(S)imply put, town election officials cut corners. Some of those shortcuts created errors — such as using an uncalibrated folding machine — which were unintentional and perhaps unforeseeable, but ultimately resulted in ballots not being accurately counted,” Formella and Gardner wrote.

Windham became a flashpoint in the national debate over President Donald Trump’s unfounded allegations of widespread election fraud after a recount in a state representative’s race came up with wildly different results from the original count. The Election Day results were recounted at the request of Democratic candidate Kristi St. Laurent, who finished behind the top four Republican candidates. In the recount, each of the four winning Republicans picked up about 300 votes and St. Laurent lost 99 votes, dropping her losing margin from just 24 votes to more than 400 votes.

After the state paid at least $123,000 to bring in outside experts to audit Windham’s total, the problem was traced back to folds in absentee ballots that confused the optical scan on the AccuVote machines.

However, the joint letter states there were serious issues in the way town election officials conducted their behavior before and after the election that had nothing to do with folded ballots.

For example, the town failed to follow the legal requirements for calibrating the machines before the ballot-counting began. Towns are required to use 50 practice ballots to be fed through each machine at least four times. In Windham, officials put six practice ballots through each machine just once.

“The use of six test ballots, each of which was counted only one time by a device, not only violates state law, but also fails to provide the evidence that the device counts accurately as called for by law,” the letter states. Town officials “ignored legal obligations and are of continuing concern as they are indicative of an election that was not executed to the standard of the law or expectations of voters,” Formella and Gardner added.

Windham officials also failed to put securely sealed labels on several boxes of ballots after the vote. And while town officials told the Secretary of State’s Office the proper boxes and labels did not arrive in town before the election, the state’s investigation found a check of the tracking numbers for the shipment indicates all of the boxes and labels arrived in town on time.

Windham’s Town Clerk Nicole Merrill said Monday she was still trying to digest the letter from the state, but that she was also excited to work collaboratively on the upcoming September election.

“We are excited about the monitor and welcome them with open arms,” Merrill said. 

However, Senior Assistant Attorney General Anne Edwards said Monday it is highly unusual for the state to appoint an election monitor in New Hampshire.

“It is not very common for the state to put an election monitor in place,” Edwards said in an email. “In the 25 plus years that I have been involved, the only other time I am aware of us putting an election monitor in place was in Derry for the 2016 General Election.”

That election was marred by several legal problems, according to Edwards, resulting from actions by the Derry Town Moderator Mary Till including “(she) did not follow procedures correctly in that she: failed to identify a central polling place; did not correctly handle the counting of the ballots given that she was a candidate on the ballot; and did not correctly arrange for the delivery of ballots from the separate polling places to the Municipal Center.  She also conducted her own hand recount of the ballot counting device, which is not permitted by New Hampshire law or approved by the Secretary of State or the Ballot Law Commission.”

Windham isn’t the only municipality in the state with issues from the 2020 election. The town of Bedford is embroiled in controversy over town officials’ ongoing attempts to keep information from the public over their mishandling of ballots as well. At least 190 absentee ballots were left uncounted, a fact town officials kept secret from both the town council and the voters of Bedford. 

Windham Town Manager Dave Sullivan said voters should feel confident in the process the town has in place, despite the fact the state will be monitoring the next election due to errors.

“We feel very confident in the process that we have,” Sullivan said.

Merrill is looking forward to addressing the issues in town. Given the difficulties in the 2020 elections statewide, she hopes all New Hampshire voters will benefit from what is learned in Windham. Merrill said voters in her town can trust the process.

“I took an oath and I take it very seriously. We keep everyone’s ballots safe and secure,” Merrill said.

The story was updated to correct a reporting error. The Derry official who led to a state monitor in 2016 was Town Moderator Mary Till, and not the town clerk