Category Archives: People

Brookline people and their stories

Diversity Commission: messengers and victims

A regular meeting of the Diversity, Inclusion and Community Relations Commission on Wednesday, January 27, started at 6:30 pm in the Denny Room at the Brookline Health Center. The agenda included review of the commission’s recent statement on institutional racism in the Brookline work force, which was read by Alex Coleman, chair of the commission, at a public hearing held by the Board of Selectmen on January 5.

Town government, according to the commission statement, has a “culture of institutional racism” that “the Board of Selectmen…allowed.” The statement read by Dr. Coleman called on the Board of Selectmen, “as the elected leaders of the town, to exercise your responsibilities and duties, as commissioners of the Police and Fire Departments…to stamp out this culture.”

Attacking messengers: The commission’s January 27 meeting began with a statement from Bernard Greene, who is the delegate from the Board of Selectmen. Mr. Greene said his board was “actively taking steps to determine the facts” about complaints of racial mistreatment. However, he claimed the commission’s statement “has not been helpful to efforts to deal with these problems.”

Mr. Greene objected to what he called a “pathetic process that resulted in the statement.” He said he was “here to request that this commission rescind that statement and disavow it to the board and to the public.” After it does that, he said, “maybe the board can then begin to fulfill a useful role in addressing those problems.” Mr. Greene then left, saying he had “another meeting.”

Commission members had previously received a message from Joslin Murphy, the town counsel, sent by e-mail to Dr. Coleman on January 15. Ms. Murphy claimed the statement was “causing damage to the Town’s reputation as a community and employer.” She demanded “that the Commission take immediate steps to retract this statement and publicly acknowledge that it was not factually supported at the time it was made.”

Another objection to the commission’s statement circulated at the meeting, written by Neil Gordon, a Brookline constable and a Precinct 1 town meeting member. In it, Mr. Gordon said he could “find no meaningful substance behind the statement.” He asked “where the commission reviewed” employment practices of the Board of Selectmen and whether “the process by which the Board of Selectmen appointed Joslin Murphy as Town Counsel [was] tainted by a ‘culture of institutional racism’ that was allowed by that board.”

Blaming victims: Dr. Coleman described contacts with Ms. Murphy, recalling that “she was saying we had no facts supporting” the statement. However, it was delivered in the context of a two-hour public hearing including several personal descriptions of alleged racial mistreatment by Brookline employees. He recounted telling Ms. Murphy, “We look forward to working collaboratively.”

Ms. Murphy is one of several defendants in a federal civil rights lawsuit brought on behalf of a group of plaintiffs that now includes eight Brookline employees and residents. According to allegations made in this lawsuit, “…the Town of Brookline appointed a white woman with multiple relationships within the workforce, Defendant Joslin Murphy, as the town’s chief legal counsel” in 2014. [Amended complaint, paragraph 132, p. 42]

Plaintiffs in the lawsuit allege blaming victims as a theme of racial mistreatment, writing, for example, that Brookline “allowed false rumors to spread that [a plaintiff's] complaint was meritless; it encouraged [other employees] to shun and ostracize him.” [Amended complaint, paragraph 8, p. 5] In another instance, an alleged breach of confidence identified a plaintiff “as the one who had protested the use of racist language and caused [the plaintiff] to be ostracized within the department.” [Amended complaint, paragraph 19, p. 9]

Responses: With 11 of 12 members participating, the commission did not seem inclined to a change of mind about its statement. Tony Naro stated, “The way Town Counsel has addressed the Commission through [Dr. Coleman] is disrespectful…Our statement was an opinion…[Others] should not threaten us, bully us and demand that we retract the statement.” Dr. Coleman commented, “We are not a fact-finding group.” Malcolm Cawthorne said, “We stand by our statement.”

Several commission members suggested ways that the commission might describe the background of its statement, but only Sandy Batchelder proposed to reopen and possibly revise the statement. No one proposed to rescind or retract it. Kelly Race said, “We should take a vote on whether we stand by our statement…It was the opinion of the commission.”

Speaking from the audience, Frank Farlow, a Precinct 4 town meeting member and co-chair of Brookline PAX, agreed, saying, “It was the unanimous opinion of a large commission after extended discussion.” Commission members decided not to compose an immediate reply to criticisms but instead to resume reviews at their next regular meeting in February.

– Beacon staff, Brookline, MA, January 29, 2016


Statement to the Board of Selectmen on institutional racism in the Brookline work force, Commission for Diversity, Inclusion and Community Relations, Town of Brookline, MA, January 4, 2016

Letter to commission chair Alex Coleman, from Joslin Murphy, Brookline town counsel, January 15, 2016

Amended complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 26, 2016

Board of Selectmen: complaints of racial mistreatment, Brookline Beacon, January 27, 2016

Board of Selectmen: hearing airs racial tensions, Brookline Beacon, January 6, 2016

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Board of Selectmen: complaints of racial mistreatment

A regular meeting of the Board of Selectmen on Tuesday, January 26, started at 7:00 pm in the sixth-floor meeting room at Town Hall. Neil Wishinsky, the board’s chair, read a statement about complaints of racial mistreatment lodged by staff of the fire and police departments. While expressing concerns over the issues, Mr. Wishinsky’s statement did not mention new efforts to address them.

Civil rights lawsuit: In a document filed at the federal court in Boston on the day of the meeting, the civil rights lawsuit brought on behalf of firefighter Gerald Alston was joined by police officers Prentice Pilot and Estifanos Zerai-Misgun. Five other Brookline workers and residents–all alleging racial mistreatment–also joined: Cruz Sanabria, Juana Baez, Rogelio Rodas, Demetrius Oviedo and Deon Fincher.

The Brookline police officers rejected an offer of mediation made by Daniel O’Leary, Brookline’s chief of police, writing that “Racism cannot be mediated.” According to the officers, “The Chief and the Selectmen made promises regarding ‘zero tolerance’ for racism on the force, but we have experienced two separate occasions already where we reported these incidents and the perpetrators remain on the job, without consequence.”

The amended complaint in the lawsuit now names several Brookline staff alleged to have engaged in racial mistreatment, although it does not add them to the list of defendants. A central issue raised in the lawsuit remains an alleged “racist and unconstitutional policy” claimed to be “longstanding” in town government. Brookline’s Diversity, Inclusion and Community Relations Commission testified to the board on January 5 that the town government has “a culture of institutional racism” which “the Board of Selectmen…allowed.”

Some allegations can grow more chilling as one understands them better. For example, “Other police officers referred to [Mr. Zerai-Misgun] repeatedly as an FI, the police designation for a suspicious individual….” [Amended complaint, paragraph 18, p. 8] The abbreviation means a target of “field interrogation”–suggesting that an African-American may be targeted by race.

Complaints of racial mistreatment: An African-American member of the Diversity, Inclusion and Community Relations Commission has described, at a public meeting of the commission on December 16, how he was personally targeted. The commission meeting was attended by Bernard Greene, a member of the Board of Selectmen who is African-American. The amended complaint also recounts other incidents involving Mr. Greene.

“Following the meeting, Selectman Bernard Greene met with the Police Chief and other town officials to formulate a plan to discredit the officers’ allegations. Selectman Greene later executed that plan by sending a confidential e-mail to selected town residents…Selectman Greene intended for his e-mail to be confidentially distributed among a select group of politically active residents as part of a broader whispering campaign to discredit and smear the officers and their supporters.” [Amended complaint, paragraph 31, p. 13, and paragraph 38, p. 15]

These allegations sound at least as serious as ones directed at Stanley Spiegel, a Precinct 2 town meeting member who was named as a defendant in the lawsuit. However, Mr. Greene has not been named as a defendant. The Brookline Department of Public Works and Office of Human Resources are implicated in other incidents described in the amended complaint.

“Deon Fincher was hired by the Town of Brookline as a laborer in 2009…Mr. Fincher was the only Black worker in [the] sanitation division…All the teams alternated between driving and collecting trash, except for one…On Mr. Fincher’s team, Mr. Fincher threw trash full time…In 2010, he injured his shoulder and required an operation…Mr. Fincher complained that the repetitive throwing motion was damaging his shoulder…The Town’s Human Resources director refused to assign Mr. Fincher another job…The head of the division…was hostile to Mr. Fincher when he attempted to assert his contractual rights. Mr. Johnson yelled at Mr. Fincher for requesting a union representative. White employees did not receive the same hostility.” [Amended complaint, paragraphs 87-96, pp. 29-31]

Sandra DeBow-Huang, director of the Office of Human Resources, has been named as a defendant in the civil rights lawsuit. Kevin Johnson, the highway, sanitation and fleet maintenance director in the Department of Public Works, has not been named as a defendant.

– Beacon staff, Brookline, MA, January 27, 2016


Prentice Pilot and Estifanos Zerai-Misgun, Racism cannot be mediated, statement to Brookline Board of Selectmen, January 26, 2016

Amended complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 26, 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

Board of Selectmen: hearing airs racial tensions, Brookline Beacon, January 6, 2016

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Federal civil rights lawsuit: motions to dismiss

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

Board of Selectmen: hearing airs racial tensions

A regular meeting of the Board of Selectmen on Tuesday, January 5, started at 7:05 pm in the sixth-floor meeting room at Town Hall. While North Korea was testing its first thermonuclear bomb, the board conducted a public hearing about what it called “diversity issues involving the town”–also an explosive catastrophe, at least on a local scale.

A standing-room-only audience of around 200 gathered in a hearing room with only about 100 seats. For many Brookline residents it was an evening of despair–airing incident after incident of racial discrimination, targeting and harassment–lasting more than two hours.

Commission statement: At its meeting the previous evening, the Diversity, Inclusion and Community Relations Commission had reviewed testimony and reports it received about racial issues affecting the Brookline work force. Alex Coleman, chair of the commission, read a statement to the Board of Selectmen that the commission had authorized.

Dr. Coleman said the commission, which began in January, 2015, “spent the last year trying to move forward.” Hopes for progress had been dashed at a December 16 meeting, when two Brookline police officers testified in open session that their department was afflicted with racial tensions, from which they personally suffered. Town government, according to the commission statement, has “a culture of institutional racism” that “the Board of Selectmen…allowed.”

The statement read by Dr. Coleman called on the Board of Selectmen, “as the elected leaders of the town, to exercise your responsibilities and duties, as commissioners of the Police and Fire Departments…to stamp out this culture. This is a matter of extreme urgency, which the Board of Selectmen needs to address with actions, not words, now.” Members of the board listened but did not comment.

Police testimony: Prentice Pilot, one of the two African-American police officers who spoke out on December 16, told the Board of Selectmen he had worked on the force for 17 years. He recalled another minority police officer who “went to the chief about racial incidents” a year ago, apparently joining Officers Pilot and Zerai-Misgun then, but got no action. In response to his recent complaint about a racial insult, he said, “the chief had a preliminary investigation” but called it “inconclusive.”

After his recent testimony to the Diversity, Inclusion and Community Relations Commission, Officer Pilot said, the commission “asked Selectman Greene to get more of the story…I haven’t heard anything from him.” Mr. Greene, the first African-American ever elected to the Board of Selectmen, became the board’s delegate to the commission and was present when Mr. Pilot testified on December 16.

Officer Pilot said a recent report on the racial climate in the Police and Fire Departments, sent to commission members, offers “insights from the Police Department leadership: no major incidents” in the department. “The chief,” he said, “had a free diversity report when the three of us went to him in December of 2014.” Applause from the audience lasted most of a minute.

Estifanos Zerai-Misgun, the other African-American police officer who spoke out on December 16, described “the chief’s assurance” of respect in the department. “He gave me his assurance a year ago,” said Officer Zerai-Misgun. “Nothing has changed…All you say is that you’re waiting…Nobody has contacted me.” He told the Board of Selectmen, “It is not a safe environment there. The chief failed me last year…Now you’re failing me today.”

Lee Smith, an African-American former police officer in Brookline, told the board about experiences starting in April, 1998. He also left a much longer version of his remarks in writing. As a beginning Brookline officer, he said, after he wrote a parking ticket a superior officer “chewed me up,” telling Mr. Smith, “That ticket belongs to a friend of mine.” Mr. Smith explained that there was a covert system of marking tickets to indicate they were supposed to be discarded and ignored, which he had not followed.

At a “diversity meeting” held more than 15 years ago, Mr. Smith said, fellow officers ridiculed the training, “complaining, ‘why do we have to be here for this?’” Written materials were distributed at the training, according to Mr. Smith. “I saw guys ripping it up, tossing it in the trash.”

Harassment complaints: Leslie Epps, who operates Finesse Florist on Washington St., told about experiences as an African-American living in Brookline and running a retail business. “I’ve experienced such racism,” said Ms. Epps. “I have filed complaints. These complaints have disappeared. There has been intimidation: ticketing my vehicle falsely, targeting my shop.”

Ms. Epps described herself as “keynote speaker” at the most recent Martin Luther King Day event in Brookline. Now, she said, “I have stress disorder…at the hands of Brookline police.” Not one to give up. Ms. Epps told the Board of Selectmen, “This is my country. I will not be moved…I am looking for restorative justice.”

Cruz Sanabria of Rice Street, a Marine veteran and a public school teacher in Boston, who was a member of the former Human Relations Commission, described harassment from neighbors and antagonism from Brookline police officers. In one incident, he said, he was falsely cited for a crime.

According to Mr. Sanabria, he was charged with “assault with a dangerous weapon…It was dismissed.” Mr. Sanabria told the Board of Selectmen, “The horror I went through is worse than anything else I have had in my life…You put me in a position that I shouldn’t have been in. Why? Because I’m Puerto Rican.”

Reactions: Brookline residents who are not members of a minority had strong reactions. Bob Miller of Copley St., a Precinct 8 town meeting member and a teacher at Heath School, told the Board of Selectmen, “I’ve heard talk about racism in Brookline,” calling it “an issue that can destroy the town that I love.” He urged “the strongest possible actions to let it be known that this will not be tolerated.”

Pat Bartels of Wolcott Rd. said her family “moved to Brookline because we believed it was going to be a caring and liberal community.” Her two children, she said, are graduates of Brookline High School. “Their friends were from Bulgaria, Cape Verde, Korea…from all over the world…Those are the values they shared.”

Shifra-Lilith Freewoman of Longwood Ave. was less forgiving. In Leslie Epps’s shop, she said, “She treated me like gold…It breaks my heart. Everybody black that I know has encounters with police in this town.” The problem, according to Ms. Freewoman, has been that “words don’t translate into clear action.” She told the Board of Selectmen, “If this board can’t do it, then let’s elect another board.”

Years ago: Andrew Leong of Marion Terrace described his experiences inside the Brookline Police Department many years ago. He is a professor of law at the University of Massachusetts in Boston. “We are sick and tired of more studies, more training,” said Prof. Leong. “I did that training 27 years ago.”

At the time, he said, “a black officer told me, ‘I’m so glad you came and spoke…All those racist things [are] happening to me on this police force.’” Referring to Officers Pilot and Zerai-Misgun, Prof. Leong said, “They are risking their jobs. What do we want? We want them to be on paid administrative leave.” Applause from the audience again lasted for most of a minute.

– Beacon staff, Brookline, MA, January 6, 2016


James Pearson and Tony Munroe, North Korea says successfully conducts first H-bomb test, Reuters (UK), January 6, 2016

Statement to the Board of Selectmen on institutional racism in the Brookline work force, Commission for Diversity, Inclusion and Community Relations, Town of Brookline, MA, January 4, 2016

Lee Smith, Statement at Brookline Board of Selectmen hearing, January 5, 2016

Diversity Commission: police and fire department report, Brookline Beacon, December 20, 2015

Civil rights lawsuit: town and individuals accused

The Board of Selectmen scheduled a special, closed session to start at 5:00 pm on Tuesday, December 15, well in advance of a regular meeting starting a 7:30 pm. The purpose, generally lawful for a closed session, is litigation strategy. In a departure from usual practice, the board’s agenda specifies the focus: a civil rights lawsuit recently filed against the Town of Brookline and others, including individuals.

Gerald Alston, a Brookline firefighter who has been on extended leave, began disputes with the Town of Brookline more than five years ago, after his supervisor allegedly made an insulting comment that was recorded in a telephone message. The case has gone from an internal report to a complaint filed with a state agency, to a suit filed in a state superior court and most recently to a federal civil rights suit.

Parties: Mr. Alston’s civil right lawsuit was filed Tuesday, December 1 by Brooks A. Ames, a Brookline lawyer whose wife, Mariela Ames, is a Precinct 15 town meeting member. It is directed at the town, at the Board of Selectmen, at an employee union, at two town employees and at six Brookline residents who are or have been involved with town government–as follows (from official court records):
• Defendant, Town of Brookline
• Defendant, Board of Selectmen of the Town of Brookline
• Defendant, Betsy DeWitt, In her Individual and Official Capacities
• Defendant, Ken Goldstein, In her [sic] Individual and Official Capacities
• Defendant, Nancy Daly, In her Individual and Official Capacities
• Defendant, Jesse Mermell, In her Individual and Official Capacities
• Defendant, Stanley Spiegel
• Defendant, Sandra DeBow, In her Individual and Official Capacities
• Defendant, Joslin Murphy, In her Individual and Official Capacities
• Defendant, Local 950, International Association of Firefighters
• Defendant, Neil Wishinsky, In his Individual and Official Capacities
• Assigned to: Judge George A. OToole, Jr.
• Cause: 42: 1983 Civil Rights Act

Ms. DeWitt, Mr. Goldstein and Ms. Mermell were members of the Board of Selectmen during some of the events alleged in the complaint filed in federal district court. Ms. Daly and Mr. Wishinsky are current members of the Board of Selectmen. Dr. Spiegel is a Precinct 2 town meeting member and a member of the Advisory Committee. Ms. Murphy is the town counsel. Ms. DeBow, now Ms. DeBow-Huang, is director of the town’s Human Resources office. Local 950 represents Brookline’s firefighters in collective bargaining and labor disputes.

Court filing and allegations: Mr. Alston’s court filing alleges that the Town of Brookline has a longstanding pattern of racial injustice in labor practices. [Court filing, paragraph 1]

“He brings this case on behalf of himself and all others who have been damaged by Brookline’s longstanding and well-established policy, custom and practice of opposing racial equality, enforcing racial subordination, engaging in affirmative action and favoritism towards white residents and employees, and retaliating against persons who protest racial discrimination.” [Court filing, paragraph 1]

Mr. Alston’s court filing alleges the insult that it says began a sequence of disputes occurred when his supervisor in 2010 “was upset that Mr. Alston had gone out on an injury leave.” It says that the former supervisor had believed, “without any evidence or basis in fact, that Mr. Alston had faked an injury.” The injury in 2010 was confirmed by medical records, it claims. [Court filing, paragraphs 2 and 77]

After Mr. Alston wrote a report about the incident, the court filing says, “Brookline took no action except to inform [the former supervisor] that Mr. Alston had made a complaint.” Afterward, the court filing claims, “Brookline’s Board of Selectmen protected [the former supervisor] from any adverse consequences, pursuant to policy.” [Court filing, paragraph 5]

The remainder of the 55-page court filing recounts a perverse litany of protests and rebuffs that it says illustrates a longstanding pattern of racial injustice in labor practices. For example, it claims that “Brookline fought to prevent the civil rights commission charged with enforcing the Town’s bylaw against racial discrimination from fulfilling its charge to investigate and resolve complaints.” [Court filing, paragraph 12]

“The Town of Brookline’s policy of disregarding the Fourteenth Amendment [due process and equal protection] is enforced by the Brookline Board of Selectmen through their agents in the Town administration, including but not limited to the office of town counsel, the town administrator, the department of human resources and other town department heads. The Town of Brookline’s policy is also enforced by the town moderator, town meeting, the school committee and the superintendent.” [Court filing, paragraph 32]

The former Human Relations/Youth Resources Commission was disbanded through actions at the 2014 annual town meeting under Article 10. A replacement group created under that article is called the Diversity, Inclusion and Community Relations Commission. There is a correspondingly named town department. Unlike the former commission, the current commission lacks authority to investigate labor complaints such as Mr. Alston’s.

In the course of working through administrative channels, the court filing alleges that Mr. Alston met with resistance, saying, “While the investigation was ongoing, the Town pressured Mr. Alston to agree to drop his complaint…Mr. Alston told the director that he wanted the Town to follow its policies. The human resources director called Mr. Alston an ‘asshole’ and hung up on him.” [Court filing, paragraph 87]

“Several years later…based on public pressure, the Town relented and placed Mr. Alston on a paid administrative leave. That paid leave has now extended for nine months and constitutes an acknowledgment by the Town that the Town’s racially hostile environment is the fundamental obstacle to his safe return to work. [Court filing, paragraph 100]

In the court filing, Mr. Alston is seeking from the U.S. District Court for Massachusetts a declaration “that the Defendants violated the First and Fourteenth Amendments to the United States Constitution.” He also seeks “damages sufficient to compensate Plaintiff, in an amount to be proven at trial” and punitive damages. The filing seeks class action certification and “a reparations fund for persons harmed by the Town’s policy.” [Court filing, Relief Requested]

– Beacon staff, Brookline, MA, December 14, 2015


Complaint and jury demand, Gerald Alston v. Town of Brookline, et al., case 1:15-cv-13987, U.S. District Court for Massachusetts, filed December 1, 2015 (1 MB, as obtained from court records)

Agenda, Board of Selectmen, Town of Brookline, MA, for December 15, 2015

Cases of interest, U.S. District Court for Massachusetts (PACER registration needed for docket access)

Public Access to Court Electronic Records (PACER), United States Courts

Brock Parker, Brookline firefighter sues town over alleged racial slur, Boston Globe, August 30, 2013

Human Relations Youth Resources Commission: Coping with changes, Brookline Beacon, April 24, 2014

Board of Selectmen: firefighter Gerald Alston, Jr., speaking, Brookline Beacon, December 6, 2014

Education news: Advisory thinks, Chester blinks

The large, first-floor south meeting room at Town Hall, home to the Advisory Committee during town meeting seasons, witnessed another episode in the long-running struggles over regimented testing in public schools, starting at 7:30 pm Tuesday, October 20.

Earlier that day, Mitchell Chester, the state’s current education commissioner, had set off a policy bomb. It blew up a campaign to replace the testing used in Massachusetts public schools for the past 18 years–a campaign that had been led by Dr. Chester himself.

Tarnished icons: The mystique of regimented testing has been burnished and tarnished so often that it was surprising to hear a usually sophisticated Advisory Committee weave around the topics. However, it has been about fifteen years since a town meeting campaign that most recently introduced them into Brookline politics. Only a few current Advisory members have been involved long enough to remember.

Although precursors can be found in ancient China, medieval Europe and mid-nineteenth century Massachusetts, regimented testing is largely a twentieth-century phenomenon. A quantitative approach helped give standard tests a claim to objectivity, shrouding heavy cultural bias. The tests reward informally acquired language skills and penalize lack of those skills, tending to make them tests of home and community backgrounds.

When anyone thought to look, a secret emerged: test scores strongly tracking home and community incomes. Trends were discovered with IQ tests in the 1920s, Iowa tests in the 1930s and SAT tests in the 1940s. The more recent tests do likewise, including state-sponsored regimes. Scores from the early years of the Massachusetts MCAS tests showed strong associations with community incomes.

MCAS test scores versus community incomes

BostonMetroMcasPlotAbs01
Source: Significance of test-based ratings, EPAA, 2001

Dumping PARCC: Dr. Chester, of the state education department, has been serving as national board chair of Partnership for Assessment of Readiness for College and Careers (PARCC). Despite a glorified title, PARCC is a commercial test series produced by a division of Pearson PLC, a London-based publishing company. Its cachet has been fully computerized test administration and scoring.

Many observers have described the superficially clever construction of PARCC tests, seemingly designed to confuse and mislead. To people familiar with The Times of London or The Nation magazine, they suggest the prompts for British-style crossword puzzles.

In the United States, supposed merits of PARCC were quickly unmasked. As one experienced teacher put it, “Test manufacturers…tell us…their tests require critical thinking. They are lying. They prove [it with] relentless emphasis on test security.” Pearson will not allow teachers to see the questions that students were asked. If their tricks were to become known, they might easily be foiled.

In his day job as education commissioner, Dr. Chester had been in deep and obvious conflict of interest with his night job as chair of the PARCC board. When finally dumping PARCC on October 20, he arrived late to the party at a national trend. Over two-thirds of the state-level jurisdictions that tried PARCC have dumped it. Even by the obtuse standards of educational testing, PARCC was flagged as a loser.

Dr. Chester’s loyalists sententiously claim “there was no ultimatum given [by] Peyser and Baker”–meaning the new governor and his education secretary. Such pre-emptive denials tend to say the opposite. Politicians may not be great at higher math, but they can count.

Thinking about testing: At the fall town meeting scheduled for November 17, Article 16 seeks support for H. 340, pending in the General Court. Filed by Rep. Marjorie Decker of Cambridge, it would forbid, for three years, the use of “MCAS or another standardized test” as a “condition for high school graduation.” That is what many call “high-stakes uses” of test scores. Rep. Frank Smizik, who represents Brookline Precincts 2-4 and 6-13, is a cosponsor of H. 340 and also a co-petitioner for Article 16.

At Advisory Committee on October 20, Brookline resident Lisa Guisbond spoke for Article 16. She is executive director of Citizens for Public Schools, a Boston-based nonprofit founded to support progressive, public education. “With high-stakes uses of test scores,” she said, “the teaching focus is narrowed to the subjects tested…you lose access to a broad curriculum.”

In Brookline schools, that probably tends to happen with students who are identified as at risk of not graduating because they have trouble with one or more of the tests. Many of those students benefit from programs that try to strengthen their abilities in the areas tested. Inevitably, however, teaching to the test crowds out other areas of knowledge, as well as aspects of a topic that are not going to be tested.

Committee member Amy Hummel sounded eager to “put a moratorium on it.” Since 1993, she said, when a law authorizing MCAS was passed, “there are so many things that are different…MCAS is one vegetable in the pot…In my family, it’s converse to learning.” Few other committee members seemed to have such clear perspectives on regimented testing.

Some committee members tried to extrapolate from personal experience but found it difficult. Committee member Janet Gelbart remembered “studying for (New York state) Regents Exams…taking courses to learn how to take exams” but said her daughter was graduated from Brookline High School “long before MCAS.”

Many committee members seemed to discount educational experiences with testing regimes and instead resort to their hunches about policy. Committee member Fred Levitan said he failed “to see how stopping testing allows people to study it.” Clifford Brown saw “no reason to stop the use of testing.” Lee Selwyn said he couldn’t understand “shutting it down for three years.”

Advisory Committee members seemed confused when voting on the topics. When Sean Lynn-Jones first counted votes on a motion to approve Article 16, he found 9 in favor and 9 opposed, but some committee members said they did not understand what was proposed. After more explanation, a recount found 9 in favor, 10 opposed and 2 abstaining–putting the committee on record as narrowly opposing Article 16.

– Beacon staff, Brookline, MA, October 21, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Michael Jonas, Chester abandons PARCC, Commonwealth Magazine, October 20, 2015

Andy Hargreaves, Mary Bridget Burns and Shanee Wangia, The success of schools in Massachusetts cannot be explained by testing, Diane Ravitch on Education, June 18, 2015

An act relative to a moratorium on high stakes testing and PARCC, H. 340, Massachusetts General Court, 2015

David A. Goslin: The Search for Ability, Russell Sage Foundation, 1963

Craig Bolon: School-based standard testing, Educational Policy Analysis Archives 8(23), 2000

Craig Bolon: Significance of test-based ratings for metropolitan Boston schools, Educational Policy Analysis Archives 9(42), 2001

Lisa Guisbond, Testing reform victories, the first wave, National Center for Fair and Open Testing, 2014

Forum: regimented testing in Brookline public schools, Brookline Beacon, October 27, 2014

Craig Bolon, Dr. Lupini moves to Brookline, Brookline Beacon, June 21, 2014

School Committee: Driscoll plans, policies, technology and testing, Brookline Beacon, May 27, 2014

School Committee: celebrations, programs, policies and test scores, Brookline Beacon, May 12, 2014

Advisory Committee: return of the leafblowers

On Thursday, October 8, the Advisory Committee got off to an uncertain start at 7:30 pm in the first-floor south meeting room at Town Hall. With Sean Lynn-Jones away, Carla Benka, the vice chair, led a session that focused mainly on leafblowers.

Beginning in 2000 with a petition article from Jerome Sadow, unsuccessful on first try, this is the fourth visit by leafblowers to town meeting. Article 10 for the fall town meeting, starting November 17, calls for a total ban on the machines–however powered and however used. Article 11 calls, on the other hand, for extensions to seasons of allowed use. Noise remains the most common complaint.

Sound and noise levels: Ordinary conversations typically involve sound levels around 60 decibels A-weighted (dBA), at a distance of 3 ft. Perceived loudness doubles with each 6 dBA increase. Federal noise exposure limits, intended to prevent hearing damage, have long been 85 dBA for an 8-hour workday. At that intensity, conversation is almost impossible. The noise would sound around 20 times louder than ordinary conversation.

Introduced in the 1970s, small leafblowers have long been loathed because of noise, although performance has gradually become more tolerable. Some of the earliest machines emitted literally earsplitting noise: as loud as 95 dBA, measured at a distance of 50 ft. Unprotected operators, who work much closer to machines, experienced up to 115 dBA, comparable to peak noise from a 737 jet on takeoff, measured about 200 ft from a runway.

Demographic shifts: As Brookline’s populations changed, more people tended to be working longer hours. They tended to have less free time and more surplus income. Rather than do their own lawn care and gardening, they turned increasingly to landscapers, who brought increasing amounts of power equipment, including leafblowers.

By the middle 1990s, Brookline had a noise bylaw limiting lawn and garden equipment to a maximum noise level of 80 dBA at a distance of 50 ft. Many leafblowers then in use were noisier than permitted, but there was little enforcement. In 2000, that situation prompted Mr. Sadow to propose limiting leafblower noise to 72 dBA. However, only a few leafblowers then available could meet such a standard.

Leafblower limits: After a long review by a moderator’s committee, the fall town meeting of 2001 voted to limit leafblower noise to 72 dBA for units manufactured in 2002 or later and to limit hours of operation: 8 am to 6 pm on weekdays and 9 am to 6 pm on weekends. The Police Department got more sound level meters, and enforcement became somewhat more attentive.

The slow phase-out of older, noisier leafblowers and the continued increases in use left many residents unsatisfied. At the fall town meeting of 2008, a package of revisions to Brookline’s noise control bylaw, introduced by the Board of Selectmen, lowered the maximum allowed noise level for leafblowers manufactured in 2009 and later to 67 dBA, measured at 50 ft. However, hours of permitted use were extended: 7 am to 7 pm weekdays and 8:30 am to 6 pm weekends and holidays. Those standards remain in effect today.

After seeking stronger measures from the 2008 fall town meeting and leaving empty-handed, Andrew Fischer, a Precinct 13 town meeting member, returned at the 2011 fall town meeting proposing restrictions specific to leafblowers in a new bylaw. It set seasons of allowed use: between March 15 and May 15 and between September 15 and December 15, allowing emergency uses out-of-season by town workers. It also set penalties: from a warning on a first offense to a $200 fine on a third or later offense.

For his efforts, Mr. Fischer was rewarded by opposition from all members of the Board of Selectmen and from all but one member of the Advisory Committee. They tried to shoo him away with a resolution, merely asking residents and contractors to be “considerate…sensitive…[and] reasonable.” Mr. Fischer argued that lapses from those fine sentiments had been at the heart of continuing problems with leafblowers. He won the day.

Another round of review: This fall, Richard Nangle, a Precinct 15 town meeting member, with other petitioners, is seeking a total ban on leafblower use in Brookline, under Article 10. At Advisory, Mr. Nangle argued that enforcement of Mr. Fisher’s leafblower law has not worked. Leafblowers continue in use out-of-season, landscapers sometimes claim they are “exempt” from laws and police are rarely able to catch violators. Only ten percent of complaints logged over three years resulted in citations.

Local landscapers led by Faith Michaels and Peter Gately, who are behind Article 11 seeking to extend the leafblower seasons, spent most of their efforts opposing Article 10. They claimed leafblowers have been key elements in making money as landscapers. Erin Gallentine, the director of Parks and Open Space, was equally emphatic, citing time and motion studies. Under Article 11, landscapers want to end the spring season on June 15, not May 15, and want to end the fall season on December 31, not December 15.

Leafblowers, they all said, do a better and more efficient job than rakes and brooms. However, Ms. Michaels and Ms. Gallentine were unable to explain why total clearance of leaves should be critical today, when 40 years ago and earlier–before leafblowers came to Brookline–it wasn’t. Somehow, previous generations had managed to live safely and happily despite some stray leaves.

After 20 minutes into a stem-winding report from the subcommittee on public safety, Janice Kahn, the chair, disclosed that it had no position on Article 10, seeking a ban–despite two sessions of public hearings. Charles “Chuck” Swartz, a Precinct 9 town meeting member, sought to send Article 10 to a committee, when it had already arrived at a committee: the Advisory Committee.

Subcommittee member David-Marc Goldstein described regulations in Cambridge and Arlington. Unlike Brookline, those communities limit numbers of leafblowers in simultaneous use, according to sizes of lots. It did not seem to occur to subcommittee members that anything between the status quo and a total ban might come within the scope of Article 10, and they did not propose such limits for Brookline.

Alan Balsam, the health director, undercut one argument against leafblowers: debris they blow into the air along with leaves. Dr. Balsam said the Advisory Council on Public Health had “found no compelling health threat.” Ms. Michaels dealt with another concern, worker exposure to noise. Units her company and others said they now use, rated for 65 dBA noise at 50 feet, expose workers to 83 dBA, below the federal limit for 8-hour industrial exposure.

Recommendations: Slogging through a total of six motions from Advisory Committee members, Ms. Benka organized recommendations. The committee opposed a leafblower ban under Article 10. That got only three votes. Under Article 11, the committee supported a minor change authorizing the public works commissioner to allow leafblower use in emergencies, but it opposed extending regular leafblower seasons.

– Beacon staff, Brookline, MA, October 11, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Records of town meetings since 2000, Town of Brookline, MA, 2015

Leaf blower information, Town of Brookline, MA, 2012

Leaf blower study group, Town of Lincoln, MA, 2015

Leaf blowing, Department of Public Works, City of Cambridge, MA, 2014

Craig Bolon, Recycling: from wartime campaigns to secular religions, Brookline Beacon, October 6, 2015

Advisory Committee: don’t lock up town land

The first Advisory Committee warrant review for the fall, 2015, town meeting got underway at 7:30 pm on Thursday, October 1, in the first-floor south meeting room at Town Hall. The committee tackled Article 6, likely to be one of the most contentious. It recommended against adding more restrictions on use of town land–specifically, Larz Anderson Park–until community needs for school expansion are better understood.

Lakeside view at Larz Anderson Park

LarzAndersonLake
Source: Brookline Recreation Department

Larz Anderson Park: The land now known as Larz Anderson Park was conveyed to the Town of Brookline through the will of Isabel Weld Perkins Anderson, wife of Larz Anderson, III (1866-1937), after she died in 1948. The Weld family, from whom she was descended, had owned the former Windy Top estate since the 1840s. It also owned the site of today’s Hancock Village, using it for a private golf course until 1945.

Although it might seem odd now, Brookline’s 1949 annual town meeting struggled over whether to accept the gift of land. Some said Brookline could not afford to maintain it. The large parcel was then occupied by a mansion, by Italianate gardens at the hilltop and by several support buildings–including a handsome garage for classic automobiles that had interested Mr. Anderson.

Eventually doubts were overcome, and the town meeting voted to accept the bequest. That said the land must be used for park, educational or charitable purposes. A location at the edge of town–64 acres bordering Jamaica Plain, far from the town’s population centers–led to use for what has become Brookline’s best known public park. It includes a small lake, picnic and grill facilities, baseball fields and an outdoor skating rink.

Unfortunately, the Brookline DPW description of Larz Anderson Park on the municipal Web site omits nearly all the rich historical context of the site. The DPW map display offers text that will be unreadable with most browsers and monitors. The map information is not page-linkable, does not name, locate or describe the park features and does not outline the park boundaries–a disgrace.

Parkland protection: For many years, most involved in Brookline’s government had thought the major town parks were protected under Article 97 of the Massachusetts state constitution. However, several may not be, including most of Larz Anderson Park. Parkland protection under Article 97 requires a declaration by a town meeting.

At a public hearing held September 30 by the Advisory subcommittee on capital, Joslin Murphy, the town counsel, testified that the status of protection for several Brookline parks is uncertain. Recent cases from state appellate courts say protection is not active simply because of ways land has been acquired or used.

Restrictions in wills, deeds and trusts are not generally permanent, under Massachusetts law. Brookline was sharply reminded of that by the recent Court of Appeals decision affecting Hancock Village. In many circumstances, those restrictions expire after 30 years. Massachusetts General Laws, Chapter 184 (Real Property), Section 23, provides (in part):

“Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes.”

There are other exceptions to the 30-year rule. Conditions of wills and deeds involved with Brookline parks will need review. Brookline also needs to review which parks or parts of them are covered by town meeting declarations protecting land under Article 97. Such protection can be altered, but according to Ms. Murphy that takes a unanimous vote of the supervising board and two-thirds votes of both a town meeting and the General Court. Only votes in the General Court are required by Article 97. Ms. Murphy did not cite any sources for other requirements.

Proposal and background: In Article 6 for the November town meeting, the Park and Recreation Commission is proposing to declare about 55 of the 64 acres at Larz Anderson Park protected under Article 97. That would be needed to satisfy requirements for a state grant, reimbursing parts of planned improvements. The hilltop, now occupied by the town’s skating rink, was protected in 1998. According to Ms. Murphy, most of the remaining park area is probably not similarly protected.

In 2013, under item B.15 of Article 8, the annual town meeting appropriated $0.66 million for a program of improvements at Larz Anderson Park. However, the DPW Division of Parks and Open Space had developed a plan needing more than $1 million. For the balance, the division expected to seek state support. The division has prepared an application for a $0.4 million grant, not yet acted on.

Brookline’s continuing surge in school enrollment became a wild card in the deck. In December, 2014, the town hired a consultant to review needs and possibilities to build new schools. After a surge of school building during the middle and late nineteenth century, school sites have become a foreign topic. During the twentieth century, the only new school site was for Baker School on Beverly Rd., opened in 1939. The new Lincoln School opened in 1994 at the former, private Park School site on Kennard Rd.

It has been more than 75 years since Brookline had to search for a wholly new school site, one that was not in similar use before. Over that time, the town has become fully built-out, and land prices have escalated. If Brookline tried to buy land equivalent to Larz Anderson Park today, $50 million might not be enough. Most of that parkland area apparently remains eligible for use as a school site.

Advisory review: The Advisory subcommittee on capital brought in a recommendation against Article 6, by a vote of 1-4. Amy Hummel took more than ten minutes to present it, mentioning only at the end that all the other subcommittee members opposed Article 6. A prospect of locking up $50 million or more in permanent land value in return for $0.4 million or less in one-time state aid had not convinced them.

Erin Gallentine, the director of parks and open space, tried to sway the committee with arguments about a 1989 “master plan.” She said park improvements were “the next big vision for the community.” The 1989 document has not been available on the municipal Web site–a plan that few committee members had even heard about. The recently prepared grant application has not been available on the municipal Web site either.

Strangely, Ms. Gallentine did not distribute details of the grant application to Advisory Committee members, who were left to imagine what it proposed. Committee member David-Marc Goldstein asked how likely Brookline stood to get $0.4 million. Ms. Gallentine offered a rambling reply that sounded uncertain. An amendment was offered to restrict spending to any amount awarded. John Doggett asked about protecting a smaller part of the park. Ms. Gallentine complained she would have to change the grant application.

Exploring an activity that seemed contrary to restrictions of the Anderson bequest, Leonard Weiss asked how DPW equipment garages came to be built on Larz Anderson land. Ms. Gallentine claimed not to know, saying that had happened “before my time…done by the Park Department.” The former independent department was made into a DPW division through a 1981 town meeting article, after long-time director Daniel Warren retired.

Carla Benka, chair of the subcommittee on capital, described her work years ago to get Larz Anderson Park listed on the National Register of Historic Places. That insures a process of review for most proposed changes. She questioned the relevance of a 1989 plan, comparing school versus open-space priorities and saying, “It’s not right to play favorites…a whole lot has changed in 26 years.”

Several committee members defended Article 6 against detractors, including Mariah Nobrega, Michael Sandman and Stanley Spiegel. However, few votes were there for those views. Ms. Benka joined a majority of more than two to one, recommending that town meeting turn down Article 6.

– Beacon staff, Brookline, MA, October 3, 2015


Larz Anderson Park information and reservations, Recreation Department, Town of Brookline, MA, 2012

Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Sanjoy Mahajan v. Department of Environmental Protection, Massachusetts Supreme Judicial Court, 464 Mass. 604, 2013

Board of Selectmen of Hanson v. Melody Lindsay, Massachusetts Supreme Judicial Court, 444 Mass. 502, 2005

Adele Toro v. Mayor of Revere, Massachusetts Court of Appeals, 9 Mass. App. Ct. 87, 1980

Massachusetts Constitution, as amended through 1990, see Article XCVII (97, approved 1972) and Article XLIX (49, superseded)

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Advisory Committee: new park land for Putterham neighborhoods, Brookline Beacon, April 10, 2015

Craig Bolon, School enrollment: no room in the inn, Brookline Beacon, December 26, 2014

Hancock Village lawsuit: Brookline’s appeal dismissed

Brookline’s first lawsuit over a Chapter 40B housing development Hancock Village has lost, in what looks tantamount to a final outcome. Following a hearing on September 14, 2015, the Massachusetts Court of Appeals issued a speedy decision with a written memorandum, dated September 25. Earlier, adverse superior court rulings were upheld on both their major points: the effects of a 1946 agreement with the John Hancock Life Insurance Company and the effects of 2008 changes to state regulations for Chapter 40B developments.

Arguments and rulings: The Appeals Court wrote that the 1946 agreement had expired in 30 years, under state law. In finding that the agreement was not currently recognizable under Massachusetts law, its memorandum cited procedures that had been followed. Quoting from a recent case, the court said that a recognizable agreement would have to be “land use restrictions imposed as a condition to the discretionary grant of regulatory approval.” [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Instead of restrictions imposed during regulatory approval, the 1946 procedures had involved a voluntary agreement by the original developer, the John Hancock Company, offered as an inducement to allow apartment zoning. The Court of Appeals found those procedures similar to ones of a will or trust, saying that the agreement had therefore expired in 30 years.

The main issue in the original superior court case brought by Brookline had been a challenge to a “project eligibility letter” for the Chapter 40B development, issued by the Massachusetts Development Finance Agency. The town contended that the agency had not followed state regulations, saying that a lawsuit was its only recourse, since 2008 changes in state regulations had eliminated administrative remedies.

The Appeals Court disagreed–writing, without explanation, that it was “unpersuaded by the plaintiffs’ argument.” According to the memorandum, “The issuance of a project eligibility letter is a necessary precondition to consideration of a comprehensive permit application, but it is not final action on the permit.” The Appeals Court cited the case relied on by the superior court. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Prospects: Like its ruling on the 1946 agreement, the Appeals Court’s ruling on the 2008 regulations turns on a balance of factors and could conceivably have gone the other way. However, both are plainly stated interpretations of state law, citing recent cases at the Appeals Court. A further appeal to the Supreme Judicial Court is surely possible but would look to be a steep, uphill struggle.

The recent ruling appears to collapse a case that the Board of Selectmen filed later in the Land Court, challenging the comprehensive permit granted by Brookline’s Zoning Board of Appeals. A key argument in that case invoked the 1946 agreement, which the Appeals Court ruled has lapsed.

Other arguments, concerning suitability of the development plan for the Hancock Village site, have typically been difficult to sustain in legal challenges against Chapter 40B projects. The Board of Appeals heard over a year of testimony, received major concessions from the Hancock Village developers and imposed over 60 conditions–reducing the scale of the project.

An alternative: Pursuing an alternate vision for Hancock Village, Regina Frawley, a Precinct 16 town meeting member, filed Article 18 for annual town meeting of May, 2015. It sought a study of acquiring the Hancock Village “buffers” for permanent recreation and open space. Those are unbuilt strips of land near Russett and Beverly Roads that had been set aside, separating Hancock Village from the nearby single-family houses, following 1940s agreements with the Town of Brookline.

So far, no such study has been published. To surprise of many in the community, the Board of Selectmen has failed to appoint an independent, objective study committee–as generally expected when the May, 2015, town meeting approved Article 18. Seeing the lack of progress, Ms. Frawley filed Article 15 for the upcoming November, 2015, town meeting. It seeks an independent, objective study committee to be appointed by the moderator of town meeting and by the Advisory Committee.

Ms. Frawley found the recent Appeals Court decision on the Web and distributed it to people who have been concerned about the proposed Hancock Village development. However, she has not become involved with the Hancock Village lawsuits. She continues to pursue her original vision: to provide Brookline’s southernmost neighborhoods with permanent recreation and open space that, so far, they have never enjoyed.

– Beacon staff, Brookline, MA, September 29, 2015


Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Appeals Court: Brookline v. MassDevelopment, Brookline Beacon, September 15, 2015

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Saga of a song: Happy Birthday to You

A chain of disputes over rights to the Happy Birthday song–a controversy now stretching over more than 80 years–recently enjoyed a revival with a federal lawsuit being heard in California. It was brought by Jenn Nelson, a video producer in New York who has been assembling a documentary about the saga. A key, unresolved issue throughout long controversy has been lack of a clearly established author of the song.

Disputes: Ms. Nelson reluctantly paid a subsidiary of Warner/Chappell Music of Los Angeles, who claim to own interest in a copyright, a royalty of $1,500–so that her video could use the song without wrangling over an infringement lawsuit. After a slow burn, she found a New York lawyer, Randall S. Newman, who was willing to challenge the copyright claim. Mr. Newman filed suit in New York on June 13, 2013, joined by Mark C. Rifkin of Wolf, Haldenstein, Adler, Freeman and Herz. The venue proved questionable, and a new complaint was filed in California later that month.

Circumstances of the Happy Birthday song have been contentious. Disputes began in 1934 with a charge against producer Sam Harris and composer Irving Berlin, who included the song in a Broadway musical without an agreement. Robert Brauneis, a professor at George Washington University Law School, explored origins of the song and legal issues about it in a 92-page journal article published in 2009, plus supplements available from the law school.

Origins: While working at the Louisville Experimental Kindergarten School in the early 1890s, Mildred Jane Hill and Patty Smith Hill composed a song with the same melody and different lyrics. Mildred Hill was a professional pianist and organist who taught at the school. Her sister Patty Hill had trained as a teacher at the school and then become principal. A pioneer in early childhood education, she later became a professor at Columbia University. The sisters collaborated on songs to appeal to and be easily learned by young children.

In 1893, the two sisters submitted a manuscript for publication to the Clayton F. Summy Co., then at 220 Wabash Ave. in Chicago. Mr. Summy published the work in 1893, 1894 and 1896 as editions of Song Stories for the Kindergarten. The first song on the first page of music was titled Good-Morning to All. It had the melody of the Happy Birthday song, but the lyrics said “good morning” instead of “happy birthday.”

Subsequently, the Clayton F. Summy Co. republished Good-Morning to All in 1899 as part of Song Stories for the Sunday School and in 1907 as a free-standing composition. In each case of publication, according the original complaint in the recent lawsuit, Mr. Summy or the Summy company applied for copyright registration and asserted that Mr. Summy or the company was “proprietor” of the work. No Summy publication included the “happy birthday” lyrics, only the “good morning” lyrics.

Changes and infringement: The trail diverged in 1912, after a large, Chicago-area piano manufacturer, The Cable Company, published and began to sell The Beginners’ Book of Songs. For a song titled Good-Morning to You, alternatives to “good morning” were shown in subtitles as “good bye” and “happy birthday.” Key, melody, main lyrics and piano arrangement were the same as Good-Morning to All in Song Stories for the Kindergarten from the Clayton F. Summy Co., still under copyright.

The Beginners’ Book of Songs, cover

BeginnersBookOfSongs1912CableCover
Source: The Cable Company, Chicago, IL, 1912

As published in The Beginners’ Book of Songs, no authorship, permission or copyright was cited for Good-Morning to You. That looks like infringement. However, this 1912 publication also introduced into commercial circulation the “happy birthday” lyrics in combination with the “good morning” melody.

Any later attempt to claim original authorship of the “happy birthday” lyrics, alone or in combination with the “good morning” melody, could suggest plagiarism. So far as can be seen in records from the recent lawsuit, neither Mildred Hill nor Patty Hill claimed authorship or left unpublished manuscripts for the “happy birthday” lyrics or for their combination with the “good morning” melody.

According to Prof. Brauneis and as recited in the original complaint for the recent lawsuit, the Clayton F. Summy Co. did not seek copyright extension for the publication of the Good-Morning to All song occurring in 1893. Later publications notwithstanding, melody and lyrics of that song could have entered the public domain when their 1893 copyright term ended in 1921 without renewal action by the “proprietor,” Clayton F. Summy or the Summy company.

From 1922 to 1927, The Cable Company published the fourth to sixteenth editions of The Everyday Song Book. Song 16 in those editions was titled Good Morning and Birthday Song. It has the melody of Good-Morning to All, transcribed from G to A-flat, with no piano arrangement and with three sets of lyrics: two with “good morning” and one with “happy birthday.” No authorship or copyright was cited. However, a note below the title said, “Special permission through courtesy of the Clayton F. Summy Co.”

Lawsuits and arguments: That situation is now presented to a federal court in the Central District of California. Judge George H. King, the chief judge of the district, has something of a mess to clear, mainly because of lapse of time but also because of several actions during the previous 81 years to prosecute a claimed but vaguely justified copyright.

Supposed rights to the Happy Birthday song may never have been enforceable. No authorship for the “happy birthday” lyrics or for their combination with the “good morning” melody appears to have been claimed at or before publication in 1912. Without an author, there is no copyright interest. [See note, below.] However, arguments in the recent case became tangled–tending to obscure some elements of copyrights.

Judge King does not have a particularly strong record when dealing with intellectual property. In Alfred Mann Foundation v. Cochlear, a patent lawsuit beginning as Central California case no. 07-cv-8108, he was overruled by the Court of Appeals for the Federal Circuit in 2010 [case no. 2009-1447], which found faulty justification from Judge King for holding that plaintiffs in the district court case lacked standing to sue.

The Clayton F. Summy Co. was sold in 1930, into what became a succession of organizations. When lawsuits began in the mid-1930s, the Happy Birthday song had been published several times before, essentially in the form it is currently performed, without claims of authorship or copyright and without prior challenges for infringement. By at least 1922 it was a known work, published in full and combining the “happy birthday” lyrics with the “good morning” melody.

Aggressive copyright prosecutions look to have begun with efforts by Jessica Hill, youngest sister of Mildred and Patty Hill, after Mildred Hill died in 1916 and Jessica Hill, who played no role in creation of their songbook, inherited a potential interest in the songs. In a brief filed July 28, 2015, Warner/Chappell argued that Jessica Hill renewed the copyright to the songbook in 1921.

In an appendix to his journal article, Prof. Brauneis argued that, as a successor in interest, Jessica Hill was entitled to obtain and hold a renewal of copyright and would have held it in trust for other family members. As renewed in 1921, the 1893 copyright for Song Stories for the Kindergarten would have expired in 1949, and the enforceable copyright to the Happy Birthday melody would have expired with it.

After 1921, Mr. Summy and the original Clayton F. Summy Co. would no longer have been the “proprietors” of copyright for Good Morning to All. Instead, Jessica Hill would have become “proprietor.” According to that logic, the Happy Birthday melody, as published by The Cable Company in 1922 and later, would have been yet another pirate edition. Its “permission” was bogus. The “happy birthday” lyrics are a different story.

Neither the 1893 songbook nor later editions of it contained the “happy birthday” lyrics, alone or in combination with the “good morning” melody. So far, briefs for Warner/Chappell have apparently failed to acknowledge lack of documented authorship and copyright coverage for the “happy birthday” lyrics, alone or in combination with the “good morning” melody, between at least 1893 and 1933.

In the 1930s, successor management of the Clayton F. Summy Co. filed for copyrights involving the Happy Birthday song. However, they were for similar works with varying piano arrangements and additional lyrics. They did not address issues arising from combining the “happy birthday” lyrics with the “good morning” melody. At those times and since, there have been allegations of copyright infringement. So far, disputes over the Happy Birthday song have been settled privately, leaving legal issues of copyright unadjudicated.

Potential outcomes: It is possible Judge King will find there have been no enforceable rights to the “happy birthday” lyrics or their combination of with the “good morning” melody, because there has been no clear evidence of authorship for the lyrics or the combination. It is also possible the judge will find potential rights connected with the melody of the Happy Birthday song were abandoned or had expired by 1922 or by 1950, either through acts or through neglect.

If the judge somehow reaches the far side of those legal chasms, he will need to decide whether the 1930s copyright filings reflect rights of original authorship to the combination of the “happy birthday” lyrics with the “good morning” melody or whether instead they concern only rights to derivative works with different piano arrangements and additional lyrics. If inclined toward finding original authorship, the judge would also need to consider potential plagiarism in the filings.

The money involved makes at least a trip to the Court of Appeals and a try at the Supreme Court likely, no matter what Judge King finds. However, pitfalls ahead for Warner/Chappell Music suggest a fair chance that in a few years the Happy Birthday song may be recognized as public-domain. Warner/Chappell Music might have to disgorge years of unearned royalties, depending on findings of culpability.

Ms. Nelson’s lawsuit already has class action recognition. It seeks to restrict copyrights currently claimed for the Happy Birthday song from covering more than specific piano arrangements and additional lyrics, and in addition it seeks injunctive relief, royalty reimbursements with interest and costs. A victory by the plaintiffs would likely draw attention to other older copyright claims, including Sherlock Holmes stories, already public-domain in the UK.

– Craig Bolon, Brookline, MA, August 8, 2015


Note: “Without an author, there is no copyright interest.” Authorship and originality have been ingredients of copyrights since they were authorized by the U.S. Constitution in Article 1, Section 8. In Section 4, the Copyright Act of 1909 provided, “works for which copyright may be secured under this act shall include all the writings of an author.” Section 102 of the Copyright Act of 1976 narrowed the range somewhat, saying, “copyright protection subsists in original works of authorship.” A requirement of originality, expressed in case law, was made explicit under that statute.

Susanna Kim, Why Happy Birthday to You should be copyright-free, lawyers say, ABC News, July 29, 2015

Zachary Crockett, Who owns the copyright to Happy Birthday?, Priceonomics, April 14, 2015

“Until there is a work of authorship, there is no copyright interest,” U.S. Copyright Office, 2014

Good Morning to You Productions Corp., et al., v. Warner Chappell Music, Inc., et al., case 2:13-cv-4460 in the Central District of California (Los Angeles), filed June 20, 2013
(originally filed as Rupa Marya v. Warner Chappell Music, Inc., first filed as case 1:13-cv-4040 in the Southern District of New York)

Class-action complaint, case 1:13-cv-4040 in the Southern District of New York, filed June 13, 2013

Robert Brauneis, Copyright and the world’s most popular song, Journal of the Copyright Society of the U.S.A. 59:335-426, 2009
Links to text and supplements, George Washington University
Formatted text of the article, George Washington University

Jason Mazzone, Copyfraud, New York University Law Review 81(3):1026-1100, 2006

Russ Versteeg, Defining “author” for purposes of copyright, American University Law Review 45(5):1323-1366, 1996

First Publications v. Rural Telephone Service Company, U.S. Supreme Court, case no. 89-1909, 499 U.S. 340, 1991

Geraldine Fabrikant, Sound of a $25 million deal: ‘Happy Birthday’ to Warner, New York Times, December 20, 1988

The Cable Co. (Chicago, IL), Everyday Song Book, 101 Best Songs and 101 Famous Poems (advertisement), Normal Instructor and Primary Plans 31(4):4, F.A. Owen Publishing Co. (Dansville, NY), February, 1922

Clayton Frick Summy, in John W. Leonard, ed., The Book of Chicagoans, A.N. Marquis & Company, Chicago, 1905, p. 558