By KATHARINE WEBSTER, InDepthNH.org
A newly released audit found that more than half of the staff positions at the state Commission for Human Rights are unfilled leading to long delays in investigations of complaints about discrimination in employment, housing, public accommodations and K-12 education.
The audit by the Office of the Legislative Budget Assistant found that the agency “was inefficient and ineffective in investigating complaints and closing cases in a timely manner.”
Only nine of 21 staff positions are filled, leaving investigators to do administrative work while cases languish, according to the audit, released online a week ago and presented to the Joint Legislative Fiscal Committee on Friday.
The audit found that it took an average of 18 months just to assign a complaint to an investigator and more than 2 years and 3 months to close a case. In fact, more than one-quarter of cases were not closed within the three-year time limit to bring suit in Superior Court, meaning complainants were denied justice.
The delays are “unconscionable,” said Rep. Marjorie Smith, D-Durham, the ranking Democratic member of the House Judiciary Committee, who spoke at the hearing.
“It’s the worst audit (result) I’ve ever seen,” committee chair Rep. Kenneth Weyler, R-Kingston, said after the hearing. Weyler, who has served on the committee for over a decade and is in his third term as chair, said he reads every audit.
Gov. Kelly Ayotte’s communications director, Caroline Hakes, did not respond to emails sent earlier this week asking whether the commission’s open positions are subject to the governor’s hiring freeze.
One lawyer who responded to an anonymous survey of attorneys who had brought cases to the commission said that “The commission is not working.”
“We can go through full-blown court litigation and get a jury verdict for our client (or a good settlement) much more quickly than the case could ever make its way through the commission,” the lawyer said.
According to the audit, of 259 cases that were pending at the end of fiscal 2023, only 1.2 percent involved education, 3.5 percent involved housing discrimination, and 7.7 percent involved public accommodations (places and entities that offer goods and services to the public).
The vast majority of complaints – 87.6 percent – involved discrimination in employment, with many of them coming to the state commission through a contract with the U.S. Equal Employment Opportunity Commission (EEOC). Education complaints can be filed directly in court or with the civil rights office within the U.S. Department of Education, while housing discrimination complaints can go to the U.S. Department of Housing and Urban Development.
The audit also found that the commission is operating under long-expired rules and has failed to address concerns cited in the last audit in 2019, senior audit manager John Clinch told the committee.
Managers have not set targets, such as how long it should take to conduct an initial review of a complaint and assign it to an investigator or set timelines to complete each step of the process, and the commission does not track cases to see whether they are on track.
The audit also found that the commission failed to provide investigators with proper training, that it was sometimes “prematurely dismissing cases contrary to (law),” and that it had inadequate procedures for conducting interviews and investigations.
According to one attorney who responded to the survey, which was included in the audit report, an investigator failed to interview a single witness after their client filed a complaint of racial discrimination at work. Another lawyer complained that “entire files have been lost; original pleadings have been lost; commission deflects or refuses to accept blame for losing files and for failing to properly process files.”
The commission, represented at the hearing by Katrina Taylor, a long-time investigator who was promoted to acting assistant director last month, accepted nearly all of the audit’s findings and recommendations.
Taylor said that adopting new administrative rules that reflect current state and federal laws was a priority, and she thanked the legislators for adding six positions to the commission’s staff during the last budget cycle. The commission has also finalized a contract with a company for case-tracking software.
Senior Assistant Attorney General Sean Locke, who advised the commission during the audit process, noted that 11 years ago, the Legislature cut the commission’s staff by one-third and kept it at that level until the last budget cycle, contributing to the rolling backlog of complaints.
He also said many of the delays in resolving cases were out of the commission’s control because the parties requested more time. He recommended that the new rules include firm time limits, especially to amend cases – for example, by adding retaliation complaints.
Outside the hearing room, Taylor and Locke said that the commission’s work has been hampered by high turnover among state employees, especially during the pandemic, and the loss of the former assistant director, who left last year around the same time the executive director went on extended medical leave.
“It was a perfect storm,” Locke said.
Smith said after the committee meeting that the House Judiciary Committee would also hold a hearing on the audit and follow up to make sure the commission makes progress.
She said the commission’s work is more vital than ever, given that federal offices that enforce civil rights in education, housing and employment could be dismantled by the Trump administration.
“Are we going to depend on the EEOC? It might go away,” she said.
Sue McKevitt, who worked as assistant director and chief investigator for the commission from 1980 to 1993, moved to the state Department of Education that year, where she worked until 2010 to ensure that K-12 and technical schools were following federal and state civil rights laws. Much of that work was done under a contract with the U.S. Department of Education’s Office of Civil Rights, similar to the current contract with the EEOC.
In 2021, the state Legislature assigned the task of overseeing civil rights in public education to the Commission for Human Rights, further burdening an already overwhelmed agency, McKevitt said. The long wait times to assign and investigate complaints discourage them from being filed in the first place, she said.
“What eighth grader is going to file a complaint when 18 months later, they’re going to be in a different school?” McKevitt said in an interview last week.
“I fully support the New Hampshire Commission for Human Rights. They are under extraordinary pressure to do the right thing under circumstances that make it almost impossible to do so,” she said. “The commission needs help.”