When the Watchdog Looks Away
By Jeffrey T. Clay
In December 2023 I filed a detailed criminal complaint with the New Hampshire Department of Justice alleging that officials from the Town of Newmarket and their legal counsel had concealed and falsified public records—acts that, if proved, would violate New Hampshire’s tampering-and-falsification statutes.
Nearly two years later, the Department’s Public Integrity Unit (PIU) has yet to open a meaningful investigation.
Instead, the PIU told me it “does not intercede in matters that are in active litigation.” The phrase sounds procedural, but there is no law that supports it. Under RSA 7:6-c, the Attorney General is empowered to investigate any alleged criminal conduct by a state or local official. The statute contains no exception for cases that also happen to involve civil lawsuits.
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When I pressed the issue in February 2024, PIU attorney Dan Jimenez confirmed in writing that once the civil case concluded, the Department would review the matter. The case has now concluded—the New Hampshire Supreme Court has issued its order—but the Department remains silent. New explanations are being offered, new delays introduced, and the promised review has not occurred.
At best, this is bureaucratic paralysis. At worst, it suggests selective enforcement—an unwillingness to scrutinize the conduct of government insiders and their attorneys. Either way, the pattern damages public confidence in the state’s highest law-enforcement agency.
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The cost of inaction
The Department’s failure to act promptly had real-world consequences. Had investigators engaged when the evidence first surfaced, the dispute might never have grown into years of costly litigation. Instead, the state’s inaction allowed a transparency issue to reach the Supreme Court—consuming judicial time and taxpayer dollars while leaving the underlying allegations unexamined.
For citizens who rely on government to police itself, that delay carries a chilling message: persistence, not merit, determines whether official misconduct will be addressed.
Parallel tracks, not excuses
Civil and criminal proceedings are not mutually exclusive. Courts across the country, including the U.S. Supreme Court in United States v. Kordel (1970), have long recognized that agencies may pursue civil and criminal remedies simultaneously when the facts warrant. The DOJ’s “active litigation” policy is therefore a choice, not a legal requirement—and a poor one.
When allegations involve falsified records or deception of public tribunals, delay only benefits those accused. Evidence goes stale, memories fade, and accountability disappears. Public-integrity investigations should proceed because civil cases are pending, not in spite of them.
A matter of public trust
New Hampshire’s Constitution, Part I, Article 8, promises open, accountable government. That promise rings hollow if the agency tasked with enforcing honesty in public office refuses to investigate credible allegations for nearly two years. The Public Integrity Unit was created to ensure that local politics and personal connections do not stand between the public and the truth. It cannot fulfill that mission by waiting for controversy to expire on its own.
Citizens should not have to beg the Attorney General’s Office to honor its own commitments. Transparency is not optional; it is the foundation of democratic legitimacy. The Department owes the public a clear explanation of why it has delayed and when it will act.
New Hampshire deserves a justice system that investigates wrongdoing wherever it leads, not one that hesitates when the trail points toward government itself. Justice delayed is justice denied—not just for one complainant, but for every resident who depends on the integrity of the institutions that bear that name.
About the author:
Jeffrey T. Clay is a former New Hampshire resident and long-time advocate for government transparency, accountability, and veterans’ rights. He now divides his time between New England and Florida, continuing his work on public-access and ethics reform issues.
