On Brookline

BROOKLINE’S WHISTLEBLOWER POLICY

By Arshag Mazmanian

The Minutes for the Selectmen’s Oct. 24, 2006 meeting briefly states that HR Director Sandra DeBow presented the “Town’s Proposed Anti-Retaliation Policy” and outlining that it is in accordance with the Whistleblower statute. She requested a vote by the Board by the end of November “so that the policy can be implemented into the annual employee’s policy packet that is distributed in the beginning of the year.”

In response to a public records request, I was informed that the only materials furnished to the Selectmen for this portion of the meeting was a draft of the policy. Presumably the Selectmen retained the materials provided them by Town Administrator Kelliher with his Memorandum of July 24th referenced in Part II.

The portion of the meeting on the policy ran approximately 10 minutes and viewing the video reveals much more than do the Minutes.

HR Director DeBow stated that when she was hired, she was told that this matter was a high priority; that there were very few models available for guidance; that the approach taken was a quick, user-friendly reiteration of the statute; that the employee must “reasonably believe” in a violation complained of; that a written notice from the employee is required; that certain key terms, “employer”, “employee”, “supervisor”, were broadly defined.

She also stated that a provision was included that was not provided for in the statute dealing with an employee making a false accusation, that an employee cannot knowingly make false accusations and expect not to have any disciplinary action taken.

Selectman Hoy questioned whether problems might arise as to whether an employee reasonably believes a violation took place; that this might have a “chilling effect” as someone in authority later might determine the complaint not to be reasonable, such that the employee may be retaliated against. DeBow responded that reasonableness is the standard set because “we like to deal with reasonable people … and we would do an investigation to make sure.”

Hoy stated that he thinks of negligence law when he hears reasonable. DeBow stated that a false accusation is so only if knowingly made; that if a person is only mistaken, the Town would not retaliate. As to “reasonable”, that is what the statute calls for.

Chairman Allen asked if other municipalities designate contact persons outside of town hall, as an employee might be reluctant to contact the Town Administrator. DeBow responded that there is more than one person an employee may contact in addition to the Town Administrator: herself; Superintendent of Schools; and the HR Director for the Schools; that an employee may contact any of these persons, whether or not an employee of the Schools. Chair Allen asked if a union representative could present a complaint on behalf of an employee.

“Yes,” DeBow responded.

She stated that an oral discussion might initially be involved but the complaint would have to be put in writing to fit under the protection of the law. Chair Allen inquired about the role of Department Heads. DeBow responded that once the policy is approved, procedures will be discussed with Department Heads regarding notifying the named supervisors of complaints from employees. Selectman Daly pointed out that the policy doesn’t restrict any employee from making a complaint but only restricts supervisors and Town from retaliating against a complaining employee.

Hoy expressed his concern that under negligence law it is not that difficult that something be deemed unreasonable but that is the state law. DeBow responded that “reasonable” is part of the statute and it was written that way to prevent frivolous complaints. Hoy pointed out that frivolous is different from unreasonable; DeBow agreed. Chair Allen stated that the Board would hold off voting on the policy in case it has more comments, including from the School Committee.

The Selectmen next considered the policy at its Dec. 12, 2006 meeting; according to the brief Minutes, HR Director DeBow appeared, stating no changes to the policy and sought approval to include the policy in the “employee package going out in the beginning of the year.”

The Selectmen voted unanimously: “To adopt an Anti-Retaliation Policy.”

In response to a public records request, I was informed that no materials other than the policy had been furnished to the Selectmen for this meeting. This portion of the meeting took less than 2 minutes, according to the video. DeBow stated there were no changes to the draft policy; that the School Committee was expected to approve the draft policy the next day; that approval by the Board was desired to mail out the policy early in January to employees. The Selectmen then unanimously approved the policy.

The rather sparse Minutes for the Oct. 24th meeting on the policy seems not to be within the spirit, if not the letter, of the Open Meeting Law regarding the maintenance of records of public meetings with the substance of discussion noted.

The purpose of this lengthy recitation of what was said at these meetings will be considered in Part IV regarding the substance of the policy approved by the Selectmen and whether it complies with the letter and spirit of the Whistleblower statute.