Lawyers representing the Town of Brookline and the Board of Selectmen have answered the federal civil rights lawsuit filed on behalf of firefighter Gerald Alston with a motion to dismiss charges. A separate motion to dismiss has been filed on behalf of some defendants sued as individuals: Neil Wishinsky, board chair, Nancy Daly, board member, Ken Goldstein, Betsy DeWitt and Jesse Mermell, former board members, Joslin Murphy, town counsel, and Sandra DeBow, human resources director.
Representing the Town of Brookline, the Board of Selectmen and those sued in official capacities are Patricia Correa, the first assistant town counsel, and Douglas I. Louison of Louison, Costello, Condon & Pfaff in Boston. Representing those moving to dismiss charges against them as individuals are Mr. Louison and Joseph A. Padolsky of the same firm. As of January 15, no representation and no response had been filed for defendants Stanley Spiegel, a Precinct 2 town meeting member, and Local 950, International Association of Firefighters.
Filed with the two motions to dismiss on behalf of defendants was an 82-page memorandum of assertions and arguments. It attacks Brooks Ames, the lawyer who filed the case for Mr. Alston, questioning whether he is eligible to represent Mr. Alston and indicating that the case relates to “a long-standing media campaign that has been waged against the Town and its officials” and it seeks to “revive long-standing policy debates.” [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Sections II.C and D, pp. 22 and 25]
Brooks Ames controversy: The defendants’ memorandum suggests Brooks Ames may not be eligible to represent Gerald Alston, citing Chapter 268A of Massachusetts General Laws. That might be so if Mr. Ames were to qualify as a former “municipal employee” who “participated” in some “particular matter” involving Mr. Alston.
An exhibit included with the defendants’ memorandum shows that while Mr. Ames was a member of the former Human Relations–Youth Resources Commission he chaired a meeting in September, 2013. The meeting heard a report about a racial discrimination lawsuit that had been filed on behalf of Mr. Alston in Norfolk Superior Court–not by Mr. Ames. [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Exhibit 11, pp. 3-6]
According to meeting minutes, a discussion developed around Mr. Alston’s situation that also considered racial incidents involving other town employees. Actions taken at the meeting were to invite the chiefs of the police and fire departments to a future meeting and to send a letter to the Board of Selectmen seeking information about Mr. Alston’s complaint.
In Section 18, Chapter 268A of Massachusetts General Laws makes it illegal for a former “municipal employee” to act “as agent or attorney for or receive compensation” in connection with a “particular matter” in which “the city or town is a party or has a direct and substantial interest and in which he participated as a municipal employee.” In Section 1(g), Chapter 268A defines “municipal employee” broadly: “a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis.”
However, neither the motions to dismiss Alston v. Brookline nor the supporting materials appear to show whether Mr. Ames “participated” in investigating Mr. Alston’s complaint on behalf of the Town of Brookline. Events from the period suggest that the Board of Selectmen did not support his involvement. Lack of participation in such matters was instead a factor alluded to by Mr. Ames when resigning from the former commission in 2014.
Claims of wrongdoing: The motions to dismiss respond to only parts of the original complaint in Alston v. Brookline, highlighting relief sought under federal law in 42 USC 1981, originally from the Civil Rights Act of 1866 and most recently the Civil Rights Act of 1991. However, Mr. Alston’s complaint also cites equal protection and due process violations under the Fourteenth Amendment, free speech violations under the First Amendment and issues under 42 USC 1983, originally from the Civil Rights Act of 1871, and under 42 USC 1988, from the Civil Rights Attorney’s Fees Award Act of 1976. [Complaint, Alston v. Brookline, Federal case 1:15-cv-13987, paragraph 29]
The memorandum in support of motions to dismiss objects to only some of the allegations of unlawful harm in the original complaint filed for Alston v. Brookline. It says, for example, “allegations regarding the promotions of [Mr. Alston's supervisor, accused of a racial insult]…did not amount to constitutional misconduct against [Mr. Alston] and…do not state a claim.” [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Section II.C, p. 23]
The original complaint filed for Alston v. Brookline said, in part, that the Board of Selectmen “did not investigate [the supervisor's] intimidating and retaliatory conduct towards Mr. Alston after learning of Mr. Alston’s complaint [about the racial insult]…it “promoted [the supervisor]…just months after he [made the insult].” [Complaint, Alston v. Brookline, Federal case 1:15-cv-13987, paragraphs 6 and 7]
A related claim filed for Alston v. Brookline said, in part, “The Town Defendants violated the Fourteenth Amendment guarantee of equal protection and freedom from racial discrimination by…engaging in…favoritism towards white…employees…The…unconstitutional…practice…caused Mr. Alston to suffer damages compensable pursuant to 42 USC 1981 and 1983.” [Complaint, Alston v. Brookline, Federal case 1:15-cv-13987, paragraphs 149 and 151]
The memorandum in support of the motions to dismiss also objects to relitigating previous rulings. [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Section II.D, p. 24] However, the memorandum does not include evidence of relitigation. For example, the action that Mr. Alston filed in 2012 with the state Commission Against Discrimination complained about behavior within the Fire Department and the Human Resources Office. It did not allege wider discrimination tolerated or practiced by the Board of Selectmen. [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Exhibit 5, p. 2]
Although the motions to dismiss might be partly successful, they do not appear to resolve key elements of the lawsuit, including alleged involvement in discrimination by current and former members of the Board of Selectmen.
– Beacon staff, Brookline, MA, January 15, 2016
Memorandum in support of partial motion to dismiss, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 12, 2016
Complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed December 1, 2015
Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015
Human Relations: harassment complaints and resignations, Brookline Beacon, June 12, 2014