By DAMIEN FISHER, InDepthNH.org
The New Hampshire Department of Corrections, caught hiding evidence in order to justify firing a veteran corrections officer, argued Thursday that the state’s Personnel Appeals Board is wrong for overturning the termination.
“The board, here, abused its discretion,” Mary Triick, the Assistant Attorney General representing the DOC, told state Supreme Court justices on Thursday.
The PAB has twice ruled the DOC erred when it fired Lt. Thomas Macholl, but he still hasn’t been allowed to return to work. Macholl was fired because he allegedly used an illegal chokehold on an inmate, but the PAB found evidence that Corrections administrators hid evidence that exonerated Macholl and pushed the termination forward.
Triick argued before the New Hampshire Supreme Court on Thursday that the DOC is entitled to an evidentiary hearing in the case, and the PAB broke the rules by failing to hold such a hearing. Triick said while the facts of the incident are not in dispute, DOC is entitled to bring forward evidence to show Macholl’s state of mind during the use of force.
“You can’t make a justice determination without knowing the broader context,” Triick said.
But Gary Snyder, the SEA union lawyer representing Macholl, said Triick and the DOC want to argue new alleged violations in order to justify an unjust firing.
“The DOC’s termination of Lt. Macholl is perhaps one of the most egregious errors I’ve seen this agency make in the 10 years I’ve been representing employees,” Snyder said.
The DOC’s appeal seeking an evidentiary hearing fundamentally misconstrues the PAB rules and legal precedent at play, Snyder said. While Triick said the PAB erred in issuing a summary judgment without an evidentiary hearing, Snyder pointed out none of the facts are in dispute. In cases without a factual dispute, no evidentiary hearing is required under PAB rules.
“The PAB took all undisputed facts into consideration,” Snyder said.
Macholl was fired in the spring of 2023, won his appeal to get his job back in April of this year, and won the May appeal of the appeal.
The PAB’s April ruling called the DOC use of force investigation “disturbing.” According to the evidence presented, Macholl’s bosses knew there was no illegal chokehold, but hid that fact from investigators with the Public Integrity Unit of the New Hampshire Attorney General’s Office. The DOC even reportedly tried to prevent a key witness, Captain Scott Towers, from talking to PIU investigators for more than a month.
“PIU Investigators find it troubling that, within a day of the incident, Assistant DOC Commissioner [Pau] Raymond specifically asked Capt. Towers to review the video footage and render a professional/expert opinion. … It was Capt. Towers opinion that the video did not support that a chokehold was used, yet when he asked Assistant Commissioner Raymond if he wanted this documented he was told no. As a result, nowhere in the file, is there any record of this information, which is, without question, exculpatory in nature,” the PIU report states.
No one inside the DOC administration has been held accountable for the actions detailed in the PIU report.
The four available Supreme Court justices heard the case on Thursday, with suspended Associate Justice Anna Barbara Hantz Marconi absent.