State Corrections Department appeals reinstatement of officer in use-of-force case

Commissioner objects to finding on alleged use of chokehold

By Pat Grossmith-Granite State News Collaborative

The N.H. Department of Corrections is asking the state Supreme Court to order a new hearing after an appeals board ordered reinstatement of a corrections officer.

The officer was fired for allegedly using excessive force on a cuffed and shackled inmate who said he was suicidal.

Thomas Macholl was a longtime Connecticut state trooper before being hired in New Hampshire in 2016 as a corrections officer. He had never faced disciplinary action until April 27, 2023, when he was fired before being reinstated by the state Personnel Appeals Board. The state Corrections Department is currently appealing that reinstatement. (SEIU 1984 photo)

The corrections department contends the Personnel Appeals Board erred when it denied it a full evidentiary hearing in the termination of Lt. Thomas Macholl.

“I do disagree with the finding,” said Corrections Commissioner Helen Hanks. She said it is important for residents of the prison — she does not describe those incarcerated as inmates or prisoners — to be treated with dignity and respect. “In this particular instance, it did not exist,” she said.

However, the Personnel Appeals Board — a panel appointed by the governor whose four members include two attorneys —  found that “no reasonable factfinder could determine that Lt. Macholl had used inappropriate or excessive force on the inmate.”

The board ruled that Macholl was terminated unjustly and ordered the corrections department to reinstate him. Macholl had worked at the state prison for seven years. The appeals board said that until April 27, 2023, Macholl had an exemplary record and had been regularly promoted. 

The appeals board didn’t let Macholl off the hook entirely. It ordered that he be suspended without pay for 20 days for failing to comply with the corrections department’s Suicide Prevention Policy. To terminate him for violating that policy would be “an unjust result,” according to the board’s order on Macholl’s motion for summary judgment dated March 27, 2024.

Macholl was a longtime Connecticut state trooper before being hired in New Hampshire in 2016 as a corrections officer. He had never faced disciplinary action until April 27, 2023, when he was fired.

The corrections department asked for a rehearing on the appeals board decision, but the board rejected the request on May 21, 2024. A month later, the corrections department filed its appeal to the state Supreme Court.

"While the Department of Corrections has appealed this matter to the Supreme Court, we remain confident that the Personnel Appeals Board reached the correct and lawful decision when it concluded that Lt. Macholl used appropriate force for a lawful purpose and overturned his termination,” said Gary Snyder, the State Employees Association attorney who represented Macholl, in an email statement. “We are confident the Supreme Court will uphold the Board's decision on appeal and hope that the Department will recognize its error and return Lt. Macholl to his position in accordance with the Board's order." 

Hanks said the appeals board did not allow the corrections department to present evidence, including interviews or video recordings of the incident, to the board. She said the board relied on paper filings and an investigative report from the N.H. Attorney General’s Public Integrity Unit, which reviewed the corrections department’s videos and its investigative file of the incident.

The public integrity unit concluded there was insufficient evidence to show, under a probable cause standard, that Macholl “was outside the bounds of permissible force when he detained J.M. (the prisoner). Accordingly, this Office will take no further action and this matter is now closed,” wrote Senior Assistant Attorney General Dan Jimenez in a letter Dec. 22, 2023, to attorney Stacie Moeser of the N.H. Police Standards and Training Council.

The incident unfolds

The Granite State News Collaborative obtained videos of the incident from the corrections department. The videos have no sound. In them, the inmate’s face is obscured, and his identity is blacked out in the investigative report that the collaborative obtained from the Public Integrity Unit. He is not identified in any of the documents, including in the Personnel Appeals Board decision.

Jane Graham, strategic communications administrator for the N.H. Department of Corrections, said the agency checked with the attorney general’s office on requirements in the state’s right-to-know law, and got clearance on a privacy basis to withhold the prisoner’s identity and to blur his face.

According to the records obtained by the news collaborative, on April 27, 2023, the prisoner was involved in what the corrections department calls a “use of force incident” at the Northern New Hampshire Correctional Facility in Berlin. According to the corrections department, that morning Macholl arrived early to assist transport officers because he anticipated issues with a particular inmate. Three days earlier, the transport officers had attempted to take the same man to the New Hampshire State Prison in Concord, but he told them he was suicidal.

Macholl followed corrections department protocol that day, notifying medical personnel of the man’s suicidal ideations and waiting for them to make an assessment. The inmate was evaluated, determined not to be suicidal, and ordered to be transferred again to the Concord prison. 

He was being sent back to the prison because on April 10, 2023 — the day he arrived in Berlin — he beat up his cellmate, according to the investigative report. He was to be placed in the secured housing unit — what’s known as solitary confinement, or “the hole” — on his arrival at the Concord prison.

The morning of the second attempt to transport the man, the inmate again said he was suicidal, screaming it repeatedly. That time, Macholl did not notify medical staff. Instead, he told the man he would be evaluated in Concord, and with the help of two other correctional officers proceeded to drag the man, who passively resisted by going limp, from the cell, down a hallway and into the transport van.

Hanks said while the public integrity unit determined Macholl did not use an illegal chokehold under the law, it did not address or exonerate Macholl for violating the department’s internal use-of-force policy and procedure directives.

“It took three correctional officers to drag the resident down the hallway and forcibly place him in the transport van,” according to the appeal filed by Senior Assistant Attorney General Mary A. Triick.

Once in the van, which is not equipped with cameras, the man continued to say he was suicidal and began banging his head against the plexiglass divider, according to the documents.

According to a narrative of the incident, Macholl grabbed the man and applied a mandibular pressure point technique (applying pressure to a spot directly below the ear lobe) to the right side of the inmate’s head. Once he pulled the man out of the van, cameras recorded Macholl with his left arm around the area of the man’s throat while applying the mandibular pressure point to the right side of his head.

Macholl continued to apply the pressure to the inmate as he pulled him from the van and took him back to a cell. 

According to Commissioner Hanks, video shows Macholl lifting up the man, who is cuffed and shackled; at one point, his toes are not touching the ground.

When interviewed by Dan Hammer and Yail Balderrama, investigators with the Department of Corrections, the inmate described what happened from the time he was removed from the “tank” (the holding cell), taken to the transport van and then brought back.

While in the tank, the inmate said in the interview, he looked at the monitoring camera, put the “slice to my throat” and repeatedly screamed "I'm suicidal” while banging on the door. Eventually, Macholl and two other correctional officers came into the cell and cuffed him. Continuing to scream “I’m suicidal,” the inmate said, “Macholl starts dragging me down to the van.”

He said he was “really, really scared. I thought I was going to get my ass whooped at the car.”

Two inmates were already in the van when he reached it, he said. 

“They are dragging me to the van, and we are basically fighting,” the inmate told the investigators. “He dragged me, threw me on it, and I was like trying to pull my face out as he was trying to bump me up and he was trying grip me, and that's when he went underneath and started choking me, and I was screaming too when he choked me and he cut me off. Yo, I thought I was gonna die.”
The inmate told investigators that inside the van, Macholl “was choking me, I started blacking out, he was choking me. All of a sudden he let go and I breathed for air, and when I went down I breathed for air and I was like buckle, buckle, I unbuckled myself. I was like ‘Help! I'm suicidal, help!’ And he was like,’Oh, he unbuckled it,’ so that's when I started banging my head on the window, and it wasn't because I was screaming ‘suicidal’ that handlebar (the corrections officer who was the driver) said this, because he should of said this in the beginning, it’s because I believe that in all my heart he didn't want to die on the way over. He didn't want to mess up, turn the wheel back, get distracted, get into a car crash and die himself because he didn't care. At that point, he didn't care about the inmates in the car or me, He cared about his own life. Cuz that's when he said, ‘I can't transport.’ That's when Lt. Macholl rough-handled me, grabbed me out and started dragging me when I was in that road right there with no camera. He stuck something right here, in my neck, and it was bleeding a little bit.”

A Public Integrity Unit photograph of the unnamed inmate’s neck taken the day of the  use-of-force incident shows a mark underneath his right ear. The photo is included in the use-of-force report investigating the incident.

What the inmate described is the mandibular pressure point technique. A video of corrections department Capt. Scott Towers demonstrating the technique (Insert link to video demonstration) on a mannequin was made as part of the investigation and released to the Granite State News Collaborative. A photograph taken the day of the incident of the inmate’s neck and released by the Public Integrity Unit shows a mark underneath his right ear.

In his interview with investigators, the inmate said Macholl pressed some sort of object into his neck — not a finger. “It's not the first time I have had someone put something to my throat, do you know what I am saying? That was not a finger.” Macholl’s other hand, he told the investigators, was around his throat. 

The inmate said that he could breathe. After Macholl told him to walk, the inmate said, he began to shuffle a bit, and “it hurt, it hurt.” Hammer asked what it felt like. The inmate said, “A lot of pain and I could honestly feel the cut, feel like it went in and it felt like a lot of pain, a lot of pain.”

Macholl didn’t release the pressure until the inmate was back in the holding tank, according to the appeal.

The inmate said his voice was “croaky” afterward, but he didn’t know if that was because of the chokehold or because he had been screaming. 

“I was screaming, I might have lost my voice. I know it was hard for me to speak, and I tried to speak. It was hard for me to speak. I didn't have a lot of air in me. Could have been from me holding my breath, I don't know. On camera it might show that he was choking me. I really don't know, it happened like this (snaps fingers),” he said. 

The two inmates who also were in the van were interviewed as well. One said the lieutenant did not use a chokehold while the other said he used a “loose chokehold.” Both said Macholl did not use excessive force. Their names were not released.

Once the inmate was back in the holding cell, “it was only at this point, after force had been used to move the resident out of his cell and the resident had escalated from suicidal ideations to self-harming behavior, that Lt. Macholl notified medical personnel and called for backup officers to respond,” Senior Assistant AG Triick wrote in the appeal.

After he was put into the holding cell, someone brought in a camera to record what was happening. That should have been done when the incident first began, Commissioner Hanks said.

At that time of the incident, Hanks said, “unfortunately” corrections officers did not have body-worn cameras. Since July 2023, however, all of the state’s over 360 officers are fitted with a camera.

Macholl was fired for violations of multiple corrections department policies, including the use-of-force policy and the suicide prevention and intervention policy.

In its decision ordering reinstatement of Macholl, the Personnel Appeals Board said the Public Integrity Unit (PIU) noted in its report that Capt. Scott Towers, who is considered the most knowledgeable and qualified corrections department employee to analyze use-of-force incidents, was asked by Assistant Corrections Commissioner Paul D. Raymond Jr. for his expert opinion on the matter.

“Captain Towers was shown two out of four video angles of the incident and concluded that neither view supported a conclusion that Lt. Macholl had used inappropriate or excessive force. The Assistant Commissioner specifically told Captain Towers not to document his opinion on the matter. When he was interviewed by the PIU, Captain Towers was able to review two other video angles, which led him to state with even more conviction that Lt. Macholl did not use excessive force or an illegal chokehold,” according to the appeals board.

The appeals board concluded that “no reasonable factfinder would conclude that Lt. Macholl had used unlawful or excessive force to gain the inmates’ compliance. All the witnesses who were actually present, with the exception of the inmate on whom the pain compliance technique was used, agreed that Lt. Macholl had not used a chokehold or other excessive force.”

The board also said the video evidence was “deemed generally unreliable to reach the conclusions reached by the NHDOC to determine that Lt. Macholl had acted inappropriately.”

Hanks said board members never viewed the videos themselves but relied on the Public Integrity Unit’s report to reach its decision. In a statement, the Personnel Appeals Board said it “does not provide comment on cases” and couldn’t confirm or deny whether its members viewed the actual videos.

According to Graham, the strategic communications administrator, very few disputes from the corrections department wind up in front of the Personnel Appeals Board — normally one a year, at most. This year has been an exception: Two cases went through the appeals process.

These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org. 

State Board of Education gets halfway through updating its minimum standards for schools

The board has not yet tackled key issues that have drawn sharp criticism

By Rhianwen Watkins-Granite State News Collaborative

The N.H. Board of Education voted Wednesday morning to approve the first half of a new set of minimum standards for schools, a document which has gone through several rewrites and drawn sharp criticism from educators and the public.

The board has yet to approve the second half of the revised standards - the half which includes the majority of educators’ concerns about the revisions, including a change in wording from “shall” to “may” for many curriculum requirements. 

When the board invited the public to comment on its proposal to revise the standards, opinion ran 200-1 against the proposed changes.

Once the board signs off on the revised standards, the proposal goes to the Joint Legislative Committee on Administrative Rules, which will ultimately decide if the proposal, as a whole, is adopted, based on whether it complies with state law. 

JLCAR is scheduled to review the proposal on Sept. 19, and the education nonprofit Reaching Higher said in a press release that JLCAR could “approve them, send them back to the (education department) for changes, or issue a preliminary objection, which would pause the process.”

By law, the education minimum standards must be updated every 10 years, and the current update effort has been led by Education Commissioner Frank Edelblut. The entire process has faced overwhelming criticism from school superintendents, teachers, teachers union members, parents and lawmakers. 

The state Department of Education has introduced multiple drafts of an update, and educators have raised concerns over key elements, such as replacement of the word “courses” with “learning opportunities,” which educators say is too vague.

A key issue is a wording change in the second half of the standards, from “shall” to “may” when referring to curriculum components. Educators say “may” makes these components optional, and could remove the state’s responsibility to adequately fund education. Educators say that will cause further division and worsen a lack of equity among school districts.

Another concern on part of educators, in prior drafts of the proposal, was the removal of class size requirements. However, Kimberley Houghton, communications administrator for the N.H. Department of Education, said the board reinstated maximum class sizes for different grade levels, in response to educators’ requests. 

Educators have voiced their mounting concerns throughout the four-year process, hoping for changes in the final proposal.

Christine Downing, director of curriculum, instruction and assessment for the Cornish, Grantham and Plainfield school districts, and state Rep. David Luneau, D-Hopkinton, were both at Wednesday’s meeting. In written testimony, Downing offered a list of specific changes she wanted to see before the final proposal is approved. Items on the list were discussed extensively among Luneau, Downing and the board. 

Though some minor changes were made, Christina Pretorius of Reaching Higher said  “the changes that they made weren't the substantive ones that we have been seeing concerns about.” Those are in the second half of the proposal, which board has yet to approve.

After the discussion on standards, educators voiced their opinions.

“Public schools are the great equalizer — and the 306 Rules are intended to hold our state to that,” said Megan Tuttle, president of NEA-New Hampshire, in a statement after the vote. “Educators fought for a seat at the table in the public school standards revision process to share our experience and expertise. Unfortunately, not all of our concerns have been addressed. … As the 306 Rules revision process continues, public education leaders will continue to hold lawmakers accountable and work to ensure New Hampshire maintains strong standards for strong public schools because our students deserve it.”

Deb Howes, president of AFT-New Hampshire, had similar criticisms.

“It is really problematic that our State Board is attempting to vastly reshape public education through rulemaking in ways they couldn't get lawmakers to do over the past two years,” Howes said. 

“The State Board has already been alerted that this rules proposal conflicts with existing state law in many ways,” she said. Board members “should have taken more time and carefully considered the mountain of feedback they have already received from Granite Staters who value robust public schools for all before plowing ahead and voting to approve this proposal.” 

The N.H. Attorney General’s office raised concerns in May about the constitutionality of a former version of the education 306s, and many of those concerns have not been addressed yet. 

Past versions of the proposal have also been criticized by Andru Volinsky, lead lawyer on the Claremont Supreme Court ruling that set requirements for access to equal education in New Hampshire. Volinsky said proposals to revise the 306 rules did not uphold those laws because of wording changes, elimination of class size requirements, and other revisions that have faced backlash from the public.

Nicole Heimark, executive director at Reaching Higher, focused on how the new standards might affect the quality of education in New Hampshire.

“New Hampshire’s public schools have long been the pride of our communities and held to high standards that have resulted in rigorous, meaningful educational opportunities for all of our students,” she said in the organization’s press release. “This proposal could put our public schools on a very different path, one with lower expectations for students and public schools. Granite State students, families, and educators deserve standards that reflect the very best of us, but there are a lot of open questions and concerns with this proposal that we’ll be watching as the rules go to the next phase of the process.”

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org. 

CORRECTION: This story has been updated to reflect that, at Wednesday’s meeting, the state board had approved only the first half of the minimum standards document that was under consideration. Action has not yet been taken on the second half, which includes the majority of educators’ concerns about the revisions, including a change in wording from “shall” to “may” for many education requirements. Kimberley Houghton, communications administrator for the N.H. Department of Education, also clarified that standards for maximum class sizes, which had been softened in a prior draft of the document, have been reinstated into the proposal in response to educators’ requests. The original version incorrectly stated this information. We regret the error.

Lack of audit for state’s Education Freedom Account program raises concerns

Despite law requiring legislative review, Department of Education has erected roadblocks

By Sarah Donovan, Granite State News Collaborative

New Hampshire legislators and public education advocates say they’re increasingly concerned that financial information about the state’s Education Freedom Account program is being hidden from public view.

Since its inception in 2021, the taxpayer-funded voucher-like program has distributed $44,918,979 to families sending their children to private schools and other alternatives to their local public schools.

A bill signed into law by Gov. Chris Sununu in July 2022 (House Bill 1135) requires the Office of the Legislative Budget Assistant — an arm of the state Legislature — to complete a performance audit of the N.H. Department of Education’s operation around the program, which a third party runs through a contract signed with the education department. 

Under the bill, which took effect in October 2023, the audit is supposed to review the eligibility of participants and the program’s expenditures program, and to identify and recover possible ineligible reimbursements. Also to be audited are the “procedures and controls” for disbursing the money to the Children’s Scholarship Fund, and demographic and geographic data about students who were in the program in the 2020-21 school year. The New York-based Children’s Scholarship Fund is the third-party contractor that administers the Freedom Accounts.

Legislators on the House-Senate Joint Legislative Performance Audit and Oversight Committee, meeting March 18, voiced frustration with the lack of an audit. At the meeting, officials of the Office of Legislative Budget Assistant notified the panel that they’d been unable to obtain the information needed to complete the audit that the law requires. 

At the meeting, as reported by New Hampshire Bulletin, the Office of Legislative Budget Assistant said it reached out to the education department in January to begin the audit process. However, the department said it did not have access to the data needed for the audit, because the Children’s Scholarship Fund is a private contractor, not a public agency. That opinion was backed by a ruling from the state attorney general’s office.

The legislative budget agency said it then reached out independently to the Children’s Scholarship Fund without consulting the education department, and the fund’s officials said that they could hand over the data after receiving approval from the education department. Shortly after that, the Children’s Scholarship Fund sent a follow-up letter to the budget agency, stating it could not share the data the agency had requested, New Hampshire Bulletin reported. 

State Sen. Cindy Rosenwald, D-Nashua — a member of the larger Joint Legislative Fiscal Committee, which oversees the Office of Legislative Budget Assistant and has discretion to investigate any matters that relate to state expenditures — said Education Commissioner Frank Edelblut told the legislative budget assistant it was unconstitutional for it to reach out to the Children’s Scholarship Fund, because the agency is connected to the Legislature and lacks authority to do so. Edelblut’s opinion was backed up by an opinion issued by the attorney general’s office.

Nevertheless, Kimberly Houghton, the education department’s communications administrator, told the Granite State News Collaborative, “The New Hampshire Department of Education continues to cooperate with the Office of Legislative Budget Assistant as it proceeds with the audit of the Children’s Scholarship Fund. Our agency welcomes the ongoing process to provide accountability and transparency for Education Freedom Accounts.”

Houghton did not clarify what the budget office can audit in regard to the education department, or how the audit would violate student privacy laws, cited among the reasons the information could not be provided to the budget office.

Christine Young, director of audits for the budget office, stated in an email that “in accordance with longstanding practice, our Office does not comment on ongoing audits.”

‘Defying the Legislature’

The failure to get a complete financial picture of the Education Freedom Accounts program has frustrated some lawmakers, including Sen. Debra Altschiller, D-Portsmouth.

“The commissioner of education …  is defying the Legislature. That’s what's happening,” Altschiller said.

’The commissioner of education …  is defying the Legislature,’ says state Sen. Debra Altschiller, D-Portsmouth, a member of the Joint Legislative Oversight Committee, about the slow-moving Education Freedom Account program audit process. (Courtesy)

Like Rosenwald, Altschiller is a member of the Joint Legislative Oversight Committee, and at several meetings of that committee, she has questioned the operation of the Education Freedom Accounts program, including the sudden disappearance of financial information on the state education department website that was once public. The information included a report listing how much money each vendor involved in the program has received. 

At an April 15 meeting of the committee, Altschiller asked Caitlin Davis of the education department why the information was removed from the agency’s website.

Davis replied, “The CSF is not required to provide that to the Department of Education, and while we’ve had it on the Department of Education in the past, it is not specific Department of Education data, and so we removed that from our website because of the number of informational requests we get about that that we don’t have additional information we can provide.” 

Davis said that if people have questions, they can contact the Children’s Scholarship Fund. 
Also at the meeting, Altschiller asked why the Children’s Scholarship Fund contract differs from contracts with other state departments. 

For example, she said, the Department of Health and Human Services —  the largest department in state government — “hires a plethora of third-party contractors,” Altschiller said, and information about those contracts is available. 

In an interview with the Granite State News Collaborative, Altschiller specifically cited Waypoint, a nonprofit organization that provides a range of social services through Health and Human Services. The nonprofit deals with highly sensitive information but can satisfy the requirements of an audit, she said, and it is not unreasonable to require an audit for a state contract that shows where the money is being spent and if it is being used effectively. 

She said she has received no answers to the questions she’s asked at Joint Legislative Oversight Committee meetings — answers she was told would be provided at further meetings but still has not been provided. Altschiller said that she anticipates as much obfuscation at future meetings.

“The only people asking questions are people in the Joint Legislative [Oversight] Committee,” she said, and they are not getting adequate answers.  “The EFAs are a black hole. They’re not required to give us any information, and don’t,” Altschiller said.

Some information available

Some information is available to the public on the Children’s Scholarship Fund New Hampshire website, including the gender demographic of students in the program, a breakdown of the number of students by grade level, the number of graduates from the program, other “exits” from the program and public school re-enrollments. Financial information is also available on the website — expenditure reports, an independent audit, and a parent handbook that outlines qualifications for the program, among other data. Also provided is the number of “switchers,” students who previously went to public school and are now in the EFA program. 

All of that general information can be found on the 2023 Education Freedom Account Financial Fact Sheet, as well as under the EFA Reporting and Fact Sheets on the Children’s Scholarship Fund NH website.

What is not included is the number of “non-switchers” taking part since the program's inception. “Non-switchers” are students who were already in a private school and are now receiving Education Freedom Account grants.

The program is open to any student who is a New Hampshire resident and is eligible for enrollment in a public elementary or secondary school, and whose annual family income is at or below 350% of the federal poverty level, or about $109,000 for a family of four.

The Children’s Scholarship Fund’s NH website also contains a 2022-23 EFA Vendor & Category Spending Data report that includes an itemized list of the amounts each private school and other vendors received during the 2022-23 school year. 

Who has access to the data?

Since certain information is contained on those websites, it’s unclear why the education department has not given the Office of the Legislative Budget Assistant the information it is seeking.

The Children’s Scholarship Fund 2024 contract with the state says it “shall provide available information in the form of data, reports and written and verbal testimony as requested by Education Freedom Savings Account Legislative Oversight Committee, State Board of Education, the NHED, or Parent and Education Service Provider Advisory Commission within 45 days of the request.”

The contract states that this requirement corresponds with governing federal and state laws regarding student data privacy. 

Kate Baker Demers, executive director of the Children’s Scholarship Fund NH, said the budget agency was seeking personally identifiable information and the education committee told the agency it wouldn’t provide families’ tax returns.

“They [the Office of Legislative Budget Assistant] were still working on the scope of the audit during that time of discussion when the commissioner told them they couldn’t have a piece of this from us — the tax returns,” said Baker Demers. “And so people took that to mean they couldn’t audit the program, which is not true. 

“One, we already audit the program. And two, they can definitely audit the Department of Ed’s part of the program. And then if the Department of Ed needs something, they can tell us to give it to them. 

“But for example, if we had to give them tax returns, they’d have to be redacted, because there’s privacy laws that tell me I have to do things with people’s private information, right? For example, I can’t give you a list of students that has their names on it, right? The student privacy laws would prohibit me from doing that,” said Baker Demers. 

‘The public has a right to know’

However, Gregory Sullivan — an attorney who specializes in media law, is president of the Manchester-based law firm Malloy & Sullivan, and is president of the New England First Amendment Coalition — said that he’s never seen a case similar to the Children’s Scholarship Fund audit argument. He’s been in the legal field for 46 years.

“From a legal point of view, this Children’s Scholarship Fund New Hampshire is subject to the Right-to-Know law, chapter 91-A,” Sullivan said. “So never mind a legislative budget assistant — any person should be able to request and receive specific information from CSF. It’s that simple.”

“If you’re a private organization, but you are dealing with taxpayers’ money, then the public has a right to know everything there is to know about those finances,” Sullivan said.

State Rep. Rick Ladd, R-Haverhill, right, chair of the House Education Committee and vocal supporter of the Education Freedom Account Program, says that, while he’s not familiar enough with the EFA audit process, he adds ‘the LBA is asking for the information.’ He’s shown here at the N.H. Department of Education’s 2024 Excellence in Education Awards with Education Commissioner Frank Edelblut, left. (Screenshot from the commissioner’s official account on X, formerly Twitter)

While it’s not clear what, if any, information the Office of Legislative Budget Assistant has received so far, it is putting together a “scope statement” for an audit — a statement that defines what the audit will examine, the time frame involved and what the audit’s objectives are. That statement is expected to be presented to the Joint Legislative Performance Audit and Oversight Committee when it meets Aug. 27.

While it’s a sign that the audit process might be getting underway, Sen. Rosenwald is not hopeful. “[There’s a] serious lack of accountability. There’s really no transparency in this program because there’s no data,” Rosenwald said.

She said lack of transparency about the Education Freedom Account data “makes you wonder what they’re afraid of” revealing.

But state Rep. Rick Ladd, R-Haverhill, chair of the House Education Committee, sees the Education Freedom Account program in a more positive light because, he said, it gives children an educational opportunity they may otherwise not have.

“The program is aimed at providing the best option for students,” said Ladd, adding that he’s “all on board for increasing the income eligibility.” An effort to raise the income eligibility limits to as high as 500% of the poverty level, or $158,000 for a family of four, failed in the last legislative session after the House and Senate couldn’t reach a compromise. In 2023, the median household income for a family of four in New Hampshire was $151,546, according to U.S. Census Bureau data analyzed by the U.S. Justice Department.

Asked if he was concerned about lack of program oversight, Ladd said he was not familiar enough with the audit process to comment on it, but does know that “the LBA is asking for the information.” 

“I’m looking forward to seeing any report come out of the Legislative Budget Office,” Ladd said.

These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.

With deadline looming, debate and concern over school minimum standards continue

An update to the 306s is meant to be completed by September, but the State Board of Education hasn’t even begun discussing the second half of the document and critics remain worried about lack of transparency in the process. 

By Kelly Burch, Granite State News Collaborative

With a September deadline looming, the State Board of Education has not finished updating the first half of the minimum standards for public school approval — which are reviewed every 10 years — and has not even begun considering the “back half” of the document. 

At a July 11 meeting of the board, there was “no vote, and no indication of when they'd take it up,” said Christina Pretorius, policy director for Reaching Higher NH, a nonpartisan nonprofit focused on education in the Granite State. The board will not meet again until Aug.14, the last scheduled meeting prior to a Sept. 10 deadline. 

Under state law, rule updates like those to the minimum standards, known as the 306s, must be submitted to the Joint Legislative Committee on Administrative Rules — JLCAR — six months after a draft proposal is filed with the state. Based on that, the 306s have a Sept. 10 deadline for the “front half” of the document, which deals with operational essentials like class size, and a Sept. 17 deadline for the “back half,” which deals with specifics of the curriculum. 

The Department of Education has divided the lengthy document into two sections to streamline revisions. 

Policymakers watching the process are concerned that, after more than a year of public commentary and a behind-the-scenes consulting process that started in 2020, the state is approaching the deadline with a 306 document that reduces standards, removes equity protections, and opens the door to privatization of public schooling. 

They’re also still concerned that many changes to the draft documents are happening out of public view. 

“The central, key questions about how public schools are going to be operating from here on out haven’t been addressed yet,” Pretorius said. “The department and state board haven’t addressed the meatiest pieces of [the 306s] — the big questions around weakening requirements, class sizes, and replacing ‘shall’ with ‘may.’”

The Department of Education “currently expects to meet the … deadlines, but if not, it will seek an extension,” said Kimberly Houghton, spokesperson for the department. 

Christie Downing, a curriculum director who has worked extensively on the 306 revision but is no longer formally involved, would like the board to seek an extension so it can better integrate feedback from teachers and administrators. 

“Let’s not rush it for the sake of … an arbitrary deadline,” she said. 

Continued concerns about transparency

There are continued concerns about the transparency of the process and the ability for public input, issues that critics have pointed out for more than a year. Many changes in the draft document are made out of public view. 

“One trend that we’re seeing is there is a lot of work being done behind the scenes” by board Chairman Drew Cline and Education Commissioner Frank Edelblut, Pretorius said.

The department releases an updated draft to state board members prior to each meeting, Houghton said, but that document is not made public until after the meeting. That has made it difficult for members of the public — even those most involved with the process — to submit their input. 

“I’m struggling right now to even keep up with what they are looking at,” said Downing. “When I provide feedback, it’s like they’ve already moved on from that. I don’t think I’m the only one who's experiencing that.”

At the July 11 meeting, some board members expressed confusion about the document that the board was considering, the changes that had been made, and even whether they had the most up-to-date document. (Listen to a recording of the meeting here).

Even for people who are familiar with the education system, understanding the changes between drafts can be “like drinking from a firehose,” Pretorius said.

A focus on the ‘front half’

After the July meeting, the education department released yet another side-by-side document detailing changes to the front half of the 306s. Many of the updates are on “the periphery,” Pretorius said, and don’t address more than 200 comments from the public, all but one of which was in opposition to the current draft. In addition, the changes did not address language that Statehouse lawyers flagged as possibly unconstitutional. 

"One of the things that’s really striking is they’re having these really technical conversations … but there’s nobody in the room who’s an expert on these issues to help shed light and guide them through that process,” Pretorius said. 

Fred Bramante, president of the Durham-based National Center for Competency-Based Learning, was hired to facilitate the revisions in part based on his expertise about competency-based education, yet he said that his team is “largely sitting on the sidelines right now.”

“I did talk to the commissioner. I got the impression that they’ve resolved pretty much all of the issues,” he said. 

One concern that remains outstanding, Bramante said, is the debate over shifting the word “shall,” which is legally binding, to “may,” which is not. Bramante said he believes the department will take up that issue in the future.

“They’re not going to do it in this round,” he said. “They’re going to have to open up rulemaking again. That’s what I think.”

According to the July 10 draft, students can advance in their education when they’ve demonstrated “proficiency” in a subject. Current 306 regulations don’t outline when a student can advance, but a previous draft of the revisions, introduced by Bramante’s group, required students to show “mastery” of a subject. Critics have said that using the word “proficiency” instead allows students to advance without fully grasping a subject. 

“Someone could make a case that that’s lowering the standards,” Bramante said. 

Although the mastery-vs.-proficiency debate has received attention, Bramante said that educators he spoke to didn’t have a strong opinion about the word choice. 

“I asked every single time there was a superintendent in the room and none of them cared,” he said. 

Bramante did not know how the department planned to address ongoing concerns about class size. 

More time for the second half of the document?

With a focus on the front half of the document, the state board has not even begun discussing the back half of the 306s yet, and there’s no set timeline for doing so. 

“Once the work on the front half is complete, efforts will then be focused on the back half,” said Houghton, the department spokesperson.

The rules outlined in the 306s are effective for 10 years from the time they are adopted. Currently, “there are sections in the 306s that have already expired,” Pretorius said, while other sections have been updated recently and won’t expire for seven years or more. 

In the back half of the document, five of 19 sections expired in March 2024, according to Downing’s written testimony. The remaining sections will expire between 2026 and 2032.  

Rather than “rushing some things … when in reality you don’t need to rush them,” Downing said, she would like to see the board take this year to be “more thoughtful" the second half of the 306 revision process.. 

At the July board meeting, Downing submitted a proposal to have teacher working groups assist the board in updating the back half of the 306s. The process would extend through November, according to her plan, which she first shared with the board in April. 

Although she was formally involved with the revisions between October 2023 and January 2024, Downing no longer has an open dialogue with the department, and said she doesn’t know whether it is considering her suggestion. 

Legislative efforts to change the 306 process

Meanwhile, the Legislature has passed two measures that could impact the 306 update, either during this round or in the future. House Bill 1163, which was signed into law on July 3, authorizes the Legislative Oversight Committee on Educational Improvement and Assessment to review and make recommendations about the 306s. The law takes effect 60 days after signing, so it’s unclear whether it will impact this 306 revision, but it will impact future efforts. 

“The department and state board will have to be more responsive to the Legislature with what they are proposing,” Pretorius said.

House Bill 1622, which has passed both houses but not yet been signed into law, would require agencies to report how they incorporated public feedback into the rulemaking process. It also takes effect 60 days after signing. 

“That would be very consequential for this process in particular, because the state board received so much feedback,” Pretorius said. “It would significantly change the way the board needs to talk about the public comment they’ve received.”

Whether or not the State Board of Education meets the September deadline or continues working on the 306s, those watching the process are frustrated with what feels like an ineffective approach to the revision. 

“We’ve been on this journey for three years,” said Downing. “Why are these questions just coming up now?”

These articles are being shared by partners in the Granite State News Collaborative. For more information, visitcollaborativenh.org

What’s behind the demise of work release programs in New Hampshire jails?

COVID and changes in incarceration rates have led to phaseout of programs, but they’re still operating at state prisons 

By Rhianwen Watkins-Granite State News Collaborative

Work release programs have been phased out at New Hampshire's county jails, the result of a shift in the criminal justice system that has reduced the number of eligible prisoners.

As incarceration rates for lower-level offenses have dwindled, jails lack the numbers of inmates needed to continue their work release programs.

When those programs were up and running, jail attendants say, they helped inmates transition back into life after their sentences more easily. They gained job experience, time management skills, meaningful social interactions, improved mental health, and employers whom they worked for even offered them jobs after their sentences ended.

Work release programs give inmates the opportunity to work both within the facility and out in the community under supervised conditions. The opportunity to take part must always be granted by the court, and typically inmates become eligible after a specific amount of time in the facility.

Sometimes work release takes the form of an inmate going back to a job they previously held before incarceration, but often it entails helping out in the community in other ways.

The Rockingham County Correctional Facility in Brentwood had a work release program in operation in the past, said Superintendent Jason Henry. The program typically involved work for municipalities and nonprofits, doing jobs such as painting, fixing roofs, assisting with construction projects, cleaning recycling centers and cemeteries, among many similar jobs.

‘COVID took a big bite out of’ work release programs ‘because of the risk of inmates day after day coming in and out of the facility, especially during the first year to 18 months of the pandemic.’ , says Douglas Iosue, Cheshire County’s jail superintendent. (Keene Sentinel file photo by Hannah Schroeder)

Henry said 14 days has been the typical period used to assess readiness to go out into the community.

So what led to the decline in the work release programs?

“COVID took a big bite out of it, because of the risk of inmates day after day coming in and out of the facility, especially during the first year to 18 months of the pandemic,” said Superintendent Douglas Iosue of the Cheshire County Correctional Facility in Keene. “One thing that changed was eligibility for work release was temporarily suspended, and it's not really caught back on.”

Beyond that, most of the people held in New Hampshire's county jails were awaiting trial, and and due to a shift in how courts are operating, inmates have either been receiving shorter sentences or are not sentenced at all for lower level-offenses, such as petty theft and minor drug offenses. This leaves fewer and smaller jail populations to run work release programs.

In addition, New Hampshire has increasingly turned to alternatives to incarceration, including enactment of its bail reform laws of 2018, which required judges and bail commissioners to determine someone’s safety to the community before placing them in jail before trial and requiring bail. 

The purpose was to reduce the number of people in jail before actually being convicted of crime. Many were not a danger to the community and were being held in jail without the financial means to pay bail or have someone pay it on their behalf, wrote Frank Knaack, policy director of the American Civil Liberties Union New Hampshire, in an April 2023 article advocating for bail reforms.

There were other changes to the court system too —  including the increased use of drug and mental health courts, according to Anthony Naro, senior attorney with a focus on criminal defense at Bernazzani Law in Nashua.

Those courts typically apply to higher-level offenses and repeat offenders. They are three- to four-year programs that seek to focus on rehabilitative services for individuals struggling with drug addiction and more serious mental health issues. Rehabilitation includes mandatory counseling, regular drug testing and strict court supervision.

Naro said bail reform laws and alternative courts have helped lower crime rates, contrary to many beliefs, as jail time without rehabilitation often produces repeat offenders, versus treating drug and mental health disorders head-on, since they are seen as the root causes leading individuals to commit crimes in the first place.

According to data from the N.H. American Civil Liberties Union, total crimes committed statewide were 60,447 and total arrests were 33,481 in 2018, the year the first bail reform law in New Hampshire was passed. The most recent available data shows a drop in statewide crimes to 49,289 and a drop in arrests to 23,767.

Between 2018 and 2021, there was an 18.4 percent drop in crimes and a 29 percent drop in arrests. 

“The last resort should be to take away someone’s liberty,” Naro said.

But the bail reform laws have drawn criticism, particularly from law enforcement agencies. That led to the passage of House Bill 318, which Gov. Chris Sununu recently signed into law. It tightens some of the reforms contained in the 2018 law. It remains to be seen what the new law’s effects will be.

Varied opinions of work release

Many people have varied opinions about the shift away from heavy incarceration, and about work release programs by extension.  Iosue of the Keene facility thinks terminating work release has been a positive shift.

“We don't like it, not just because of COVID …. but it also is a very risky practice to allow people in and out of the jail day after day in terms of introduction of contraband into a secure correctional facility,” he said.

He favors electronic monitoring, a method jails use to monitor individuals through an ankle bracelet that tracks their location using GPS. In these circumstances, the individual lives at home and is allowed to go to a place of work as long as they are being monitored.

When asked if a monitoring bracelet could hypothetically be used for work release for individuals residing inside the facility to mitigate the instances of contraband coming into the facility, Iosue said it would not be ideal.

“I guess we could,” he said. “Part of it is the cost of ankle monitors. Part of it is having the ankle monitors in the facility ... taking it on and off each time they go in and out would be labor- and time-intensive.”

Other superintendents remain proponents of work release.

Henry said he would like to see Rockingham County’s program get up and running again, but there is a hitch.

In order to operate a work release program, says Jason Henry, superintendent of the Rockingham County jail, ‘you need robust-sentenced inmates and we just don't have that. Ninety percent of my jail is pretrial.’ (Courtesy photo)

“In order to work with this program, you need robust-sentenced inmates and we just don't have that,” said Henry. “Ninety percent of my jail is pretrial.”

He said he feels that, while once too many people were being incarcerated, the courts have swung too far in the opposite direction.

“They still committed crimes and need to be held accountable,” Henry said.

In Worcester, Mass., County Sheriff Lew Evangelidis explained that inmate populations are declining in Massachusetts as well. He feels similarly to Henry.

“I’m always very concerned about victim’s rights. I think they're being forgotten. I think unless people have been victimized by a crime, you don't understand how it impacts you, your family, your community, " said Evangelidis. “But I also believe in giving people second chances and rehabilitating people.”

But Attorney Naro has a completely different outlook.

“Science shows that more jail is not going to help,” Naro said. “I don't think you solve a problem by creating another one,” he said in reference to work release. “People who shouldn't be serving long sentences are no longer serving long sentences. That's a good thing.”

He added: “Six months to a year — that can be devastating on your life. Going to jail for 30 days can be devastating. Thirty days is long enough to get evicted from your apartment, to miss your rent, to lose your job. It’s just long enough to hurt.”

Naro said he thinks  that the need for work release is not there anymore. The focus should shift toward creating and upholding strong pretrial programs in New Hampshire county jails to further reduce sentences. 

This would include rehabilitative measures for pretrial individuals, such as mandatory counseling, regular drug testing, ankle monitoring to supervise them while they go out to look for jobs or continue to work at jobs they already hold, or attend school if enrolled. Some may reside at the jail, but the goal would be to allow them to stay at home as long as they are wearing the ankle bracelet at all times.

“If you do well on pretrial supervision, chances are that, at sentencing, you're going to have a better chance of staying out in the community,” Naro explained. “You can say to the judge, ‘look, I’ve succeeded — you can give me probation, because I can survive and succeed on supervision, because I've done it for the last six, seven, eight months.’”

Some jails in New Hampshire already have pretrial programs, including Merrimack, Rockingham and Strafford counties. 

“We conduct a lengthy evaluation process to see if they meet our requirements for participation,” Henry said about Rockingham’s pretrial program. “The person needs a job, a safe place to live, and is subject to electronic monitoring. We will do home and work checks and drug screenings.” 

In addition to the pretrial program, the Rockingham correctional facility is also creating a new community corrections complex that would accommodate a 90-day in-house treatment program. This would allow individuals who want to dedicate themselves to rehabilitation to live separately from other sentenced individuals. Henry’s goal is to include a work-release component to the treatment program, to allow the individuals to go out into the community.

The project is set to be completed around June 2025.

Programs remain in state prisons

Though work release has come to a halt in county jails, New Hampshire state prisons continue their work release program.

Nicholas Duffy, director of rehabilitative services for the state Department of Corrections, runs a work release program in the state prisons. ’ You don't get many people saying they don't want’ to participate,’ he says. ‘Most people want to engage in it because you're getting those freedoms and people want to have more control of their lives.’ (N.H. Department of Corrections photo)

That program includes three transitional housing centers and a transitional work center, said Nicholas Duffy, director of rehabilitative services for the state Department of Corrections. 

The transitional work center — the TWC — offers work release at a relatively high level of security, allowing inmates to pick up jobs within the prison facility, such as working for the facility warehouse, doing maintenance, cooking and other upkeep positions on the facility grounds. Inmates are typically allowed to go to the TWC two to three years before their minimum parole date.

The next level is allowing inmates to go out into the community to work for employers. These individuals typically reside at transitional housing centers. For some inmates, this happens after proving their readiness in the transitional housing center, or as permitted by the court after a certain period of time — typically one year before  their minimum parole date.

These workers are monitored through cellphones that the facility gives them to track their location as well as through check-ins with prison personnel throughout the day. In addition, job checks are conducted to ensure inmates are at their place of work when they are supposed to be. 

The inmates are also required to do drug testing and stay consistent with treatment programming, said Duffy.

“We're making sure that they're doing everything they need to do to be successful upon release, and some people aren't going to meet that expectation, and they're going to end up getting sent back to the prison, or TWC, depending on the level of production,” he said. “They know that they're taking a risk anytime they're not where they're supposed to be.”

Duffy said that overall, inmates respond well to work release and are enthusiastic about taking part.

“You don't get many people saying they don't want it,” said Duffy. “Most people want to engage in it because you're getting those freedoms and people want to have more control of their lives.”

These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.