On Brookline

BROOKLINE’S WHISTLEBLOWER POLICY

By Arshag Mazmanian

My initial Email to Town Administrator Kelliher on July 21, 2006, questioning whether the Town was in compliance with the Whistleblower statute (G.L. Chapter 149, Section 185) included the following:

“If there has been such a failure to comply with subsection (g), I wonder how many former and current employees may have failed to object to certain matters because of their being unaware of the Town’s obligation regarding their rights under s. 185. Also, I wonder how many employees may have quit or been terminated or been disciplined or not promoted under circumstances where they might have received protection under s. 185 had they known of it in the manner provided by subsection (g)? Perhaps such persons may have civil rights claims against the Town. Residents of the Town might have been benefited had such employees been aware of their rights under s. 185. This would seem to be a top priority for Brookline. While it may be an embarrassment for Town officials, the civil rights of Town employees and the public benefits afforded by s. 185 must be promptly addressed.”

This Email was promptly brought to the attention of each Selectman and Town Counsel by Kelliher with his Memorandum of July 24th. His letter of August 11th responding to my earlier public records request closed with: “With the incoming Human Resources Director [Sandra DeBow] starting next week, I am confident that this matter will be thoroughly addressed in a timely fashion.” He copied the Board, DeBow and Town Counsel.

DeBow then drafted a proposed Anti-Retaliation Policy, perhaps with the assistance of her staff and possibly others. This draft was presented to the HR Board on October 3rd, which approved it with minor changes. The HR Board’s five members included three attorneys, one an Assistant Attorney General. I am not aware what materials were provided to the HR Board other than the draft Policy; nor am I aware of the materials that DeBow and her staff may have reviewed in preparing the draft Policy.

DeBow presented the draft Policy to the Selectmen on Oct. 24th. (From the commencement of her employment in mid-August the draft Policy was produced in about a month and a half.) The Selectmen (with Merrill absent) devoted all of 10 minutes to DeBow’s presentation. While Selectman Hoy asked questions and made comments somewhat pertinent, those of Chair Allen and Selectman Daly were not.

These three Selectmen-attorneys had the benefit of a copy of the Whistleblower statute going back to July 24th. But it isn’t clear from their comments and questions that they studied the statute with care. No vote was taken on the draft Policy in case the Selectmen might have more comments; in addition, the School Committee separately considering the matter might have comments.

The Selectmen next considered the matter on Dec. 12th, at which time all Selectmen were present. DeBow presented the Policy with no changes since Oct. 24th, and the Board unanimously approved. Apparently, the Selectmen in the interval of these meetings could not come up with any comments or questions regarding the Policy, such as the matters I described in Part IV of this Series.

The only materials presented to them at each of these meetings was the draft Policy, unchanged. They were not furnished an explanation of the statute by Town Counsel. The Town Administrator did not provide any memorandum; nor did DeBow and her staff. The Selectmen had copies of the Whistleblower statute since July 24th. What meaningful thought did these Selectmen-attorneys (Allen, Merrill, Hoy and Daly) give to the draft Policy and the Whistleblower statute?

The School Committee considered the draft Policy separately, including by a subcommittee. The Committee approved the draft Policy on Dec. 14th, with no changes other than deleting the names of individuals, designating supervisors by position only. The only materials furnished to the Committee for its consideration was the draft Policy. Members were not furnished the same materials that Kelliher had provided to the Selectmen with his July 24th memo and his letter of August 11th to me. The Committee Chair is an attorney and another member has a law degree. There is no indication in minutes of these meetings that the contents of the Whistleblower statute were addressed by the members in their deliberations.

Town Administrator Kelliher was prompt in acting following my e-mail of July 21st. But it is not clear what role if any he played in the drafting of the Policy. As noted above, he did not provide to the Selectmen his views or comments on the draft Policy. As the equivalent of a corporate CEO, it would seem that he should have had some role in the draft Policy with his long municipal experience and legal training.

What role did Town Counsel play? Did she get involved with the preparation or a legal review of the draft Policy? Town Counsel is the equivalent of a corporate General Counsel. There are four attorneys in her office. Would it not have been appropriate for her office to have been involved to provide legal expertise? Might Town Counsel’s office have noted the points raised by me in Part IV of this Series concerning whether the Policy complies with the letter and spirit of the Whistleblower statute?

Did the Brookline Professional Administrators Association participate in this process to make sure that ALL Town employees would be entitled to ALL of the benefits under the Whistleblower statute? Recall how this Association quite vociferously rushed to defend one of its own in the matter of the DeMaio indemnificaltion.

Compare Brookline’s policies against sexual harassment and workplace safety that provide strong encouragement to Town employees for their benefit and protection with the Whistleblower Policy which fails to do so (as described in Part IV). There has been failure at the Town level, in spite of the many legally trained persons who reviewed Brookline’s Whistleblower Policy.

And where has the Attorney General’s Office been since the enactment of the Whistleblower statute in 1993 in its enforcement role? Apparently very few of Massachusetts’ 350 cities and towns are in compliance with the statute. Is the AG’s Office in compliance with respect to its own employees? Are other state (and county) public employers in compliance? Shouldn’t ALL Massachusetts public employees be afforded the rights and benefits of the Whistleblower statute?

My grade for all of these officials is: “INCOMPLETE!”

Part VI may be necessary to address what might have to be done to bring Brookline’s Whistleblower Policy into compliance with the Whistleblower statute in the event Town officials do not do the right thing by its employees in a prompt fashion. Viewer interested in the subject might Google “Massachusetts Whistleblowing Policies” for some interesting links, including sites of attorneys specializing in employment law. Our employees deserve better so that they may better serve our Town.