Workplace culture and birthday dinner at fault for state agency’s mishandling of ICE plans in Merrimack, report says

Poor communication, “hands-off” leadership and a birthday dinner contributed to a state agency’s deficient public records response and failure to alert Gov. Kelly Ayotte of the federal government’s plans for an immigration processing facility in Merrimack, according to a new report.

The review published Friday by the state Department of Justice and Division of Personnel found that Ayotte and Sarah Stewart, the former commissioner of the Department of Natural and Cultural Resources, had no knowledge of the proposal, which the Trump administration has since scrapped.

Division-level employees knew of the plans and their potential implications several weeks before the information became public, but reviewers determined they did not intentionally withhold it from the governor’s office. They did not recommend any further investigation or disciplinary measures.

The fiasco unfolded following the American Civil Liberty Union of New Hampshire’s publication of state documents that laid out plans for Immigration and Customs Enforcement (ICE) to buy and repurpose the warehouse as an immigrant processing site. Upset ensued in Merrimack and across the state.

Stewart later resigned at Ayotte’s request, and the project was called off in February, shortly before Homeland Security Secretary Kristi Noem was fired from the Trump administration.

Agency culture

Twelve interviews and a review of over 10,000 emails, texts, meeting notes and other documents revealed that the culture within the Department of Natural and Cultural Resources led staff not to report sensitive information to higher-ups.

An ICE consultant first contacted the Division of Historical Resources, a nine-person segment of the agency, on Jan. 12. The federal government is required to assess the impact of projects on historic properties under Section 106 of the National Historic Preservation Act.

While the so-called “106 reviews” are routine, investigators said this review should have been run further up the flagpole.

While lower-level employees notified their direct superiors after receiving the 106 review request and the ACLU’s right-to-know request, Benjamin Wilson, the director of the Division of Historical Resources, did not inform Stewart.

“A lack of awareness of, and sensitivity to, important issues led to Director Wilson’s incorrect decision not to elevate this specific 106 review request to the Commissioner,” the report said.

When on Feb. 2 the federal government made another inquiry requesting access to a state database for further research on the site, Wilson indicated his team “may have to follow up with the Governor’s Office” but did not do so before the ACLU published the records from its right-to-know request a day later. Wilson later said his concern was not the potential ramifications of the request but about licensing for the state database.

From the top down, however, communication within the agency was sporadic at best. Stewart’s “hands-off approach to leadership” gave staff an impression of “passivity and disconnectedness,” according to the report, and they didn’t know what issues were appropriate to raise. Stewart told investigators that she didn’t like to micromanage but thought she had made it clear that employees should inform her of important items.

“Many interviewees described feeling a lack of strong leadership at the helm of DNCR,” the report said.

Stewart also failed to consistently provide biweekly reports to the governor’s office of department goings-on, a process that is expected of all state agencies. Because of that, Wilson told investigators, he felt the reports had become only “good news” and “fluff.” Other staff in his division echoed that sentiment, so they didn’t consider including the interactions with ICE in those reports.

The reviewers recommended that the agency formalize its reporting requirements and foster a more robust culture of communication, erring on the side of overreporting than underreporting. That has already improved under Interim Commissioner Adam Crepeau, who replaced Stewart, reviewers said.

They also noted that the “lack of awareness of sensitive issues” at the Division of Historical Resources was even more concerning due to a separate event in 2023. The division received political backlash after it approved a historical marker in Concord about Elizabeth Gurley Flynn, a labor-rights activist who was a founder of the ACLU and a member of the Communist Party. That controversy eventually escalated to a lawsuit.

Birthday plans led to shoddy 91-A response

Wilson had also taken on duties of responding to right-to-know requests under RSA 91-A, investigators found, despite the agency’s hire of general counsel last summer, whose job description includes processing right-to-know requests.

However, staff interviews revealed that the attorney was largely siloed within the Division of Parks and Recreation and was “not permitted” to be available for legal questions and projects across the rest of the department. Anyone who wanted to request his help, the report said, had to go through Stewart first.

When a lower-level staffer received the ACLU’s request on Jan. 26, she sent it to Wilson. He filled the request in less than 24 hours, assembling a packet with a smattering of emails and the state’s recent 106 review files. His response was inadequate, however, as he failed to include all relevant emails and a prior 106 review of the same site, which the ACLU had requested.

His colleagues later told investigators they thought Wilson had handled it inappropriately — “lightning fast.”

When asked by investigators why he responded so quickly, Wilson said it was his birthday and he wanted to clear his desk before leaving for a family dinner celebration.

“He admitted that because of this motivation, he did not carefully analyze the 91-A request and that he thought it seemed very simple,” the report said. “He further admitted that his haste to process the 91-A request led to a deficient response.”

That disclosure, reviewers said, concerned them — especially given that less than a week prior, he’d issued guidance to a friend in another state authority on how to respond to a right-to-know request. He advised them to notify the requester that they’d received it, take up to the allotted 30 days to compile the records, “stick to exactly what the request is asking for” and get signoff from legal counsel before sending them.

Wilson did none of that.

“That guidance is remarkable in that just six days later, Director Wilson failed to follow virtually every aspect of his advice,” the report said.

Wilson still holds his position.

No indication of ‘nefarious intent’

In the aftermath of the ACLU’s publication, as the state scrambled to figure out what was happening, who knew what and when they knew it, a rumor emerged that Wilson was either a friend or neighbor of someone at the ACLU. Some speculated that he may have solicited the request and filled it so quickly to “decrease the chance that an ICE facility would actually open and/or to harm your administration,” investigators wrote in their report to Ayotte.

Wilson denied this, they said, and his “intense regret” over the incident seemed genuine. Investigators found nothing in his emails or phone to substantiate the rumor.

As for the path forward, the Department of Justice and Division of Personnel recommended that all right-to-know requests be forwarded to the attorney, that the entire agency undergo training of the right-to-know law and that it should submit more frequent progress reports to the governor’s office.