Brookline seeks to fire black cops who complained of racism, unsafety

Attorneys Oren Sellstrom (left) and Hillary Schwab (right) represented Prentice Pilot (center) and Estifanos Zerai-Misgun in a hearing last week.

In a hearing held last Friday, the town of Brookline argued that it has the right to fire two black police officers who have refused to return to work until the department resolves what the officers say is a level of racism in the department that makes the work environment unsafe for them.

The officers, Prentice Pilot and Estifanos Zerai-Misgun, have been on unpaid leave since December 2015, as they and the police leadership and town clash over what — if any — redress still is required.

While the dispute originally was sparked by several allegedly racist actions by other officers and a superior officer, the town and police chief’s handling of the situation since has caused some to question not just the conduct of the accused officers but also that of the town and police leadership.

Attorney Hillary Schwab of Fair Work, P.C., representing the officers, stated that the town violated its own policy by failing to properly investigate complaints, “and by doing so has sent a message that the town doesn’t really care about these issues.”

Schwab and Oren Sellstrom of the Lawyers’ Committee for Civil Rights and Economic Justice, who also is representing the officers, say the police department and town have made only nominal efforts to address the officers’ concerns for their personal safety, while dismissing the severity of the alleged incidents and belittling the officers for their concerns.

Meanwhile, the town asserts that it has acted appropriately and that the officers’ prolonged absence and unwillingness to return by a February 2017 date, when ordered by the police commissioner, represents insubordination and neglect of duty. As such, their attorney says, it is grounds for dismissal.

“The fact that on February 8, 2017 the officers did not return to work is a violation of the chief’s direct order,” said Joseph Padolsky, town attorney, “The town has an obligation to its citizens. … We ask …that they [the officers] be discharged from their employment.”

Schwab countered, stating, “It is not neglect of duty for these officers to protect their personal safety when the town refuses to do it for them. The town has never taken the officers’ safety seriously.”

Schwab said that despite Zarai-Misgun’s statement to Brookline Police Chief Dan O’Leary that he feared retaliation if it emerged that he had filed complaint, O’Leary identified him to all of the police supervisors as the source of complaint. Racism and retaliation especially are threatening in police work, Schwab added, given that officers must be able to rely on each other to have their back in dangerous circumstances.

Allegations

In late 2014, three black Brookline police officers — Pilot, Zarai-Misgun, and a third officer — spoke to the police chief about racially discriminatory comments from others in the department. There are only six black officers on the 130-strong force, Schwab says.

A year later, Pilot and Zerai-Misgun brought further charges of discriminatory treatment. Their allegations included being targeted by racial slurs, suggestions that their race impedes their capability at their jobs and other demeaning comments.

Zerai-Misgun said in one instance, an officer told him, “I almost ran you over — I can’t see you when it’s dark unless your eyes are open.” In a later incident, a supervisor allegedly told Pilot to “do some n—-r jumping jacks” and he would put in a good word for him.

Investigations

In response to the officers’ complaints, the town counsel ordered an investigation, conducted by Reginald Nunnally, former executive director of the Massachusetts Supplier Diversity Office. When report was released in June 2016, Town Counsel Joslin Murphy told the Brookline TAB that the investigation found probable cause for one of Zerai-Misgun’s accusations but did not support the rest, and were inconclusive on Pilot’s allegations of racial discrimination.

In one instance, Nunnally found probable cause of sexual — not racial — harassment. This derived from a sergeant’s claim that he did not tell Pilot to perform “n—–r jumping jacks” but rather “nude jumping jacks.” It has become a case of one person’s word against the other. Regardless, the town and police did not take action against the supervisor for either kind of harassment, Sellstrom said.

The police had commissioned their own investigation — a diversity climate report on the department, conducted by Gerard Cox, an external management consultant who had formerly worked with the Brookline police. In June 2016, the police released the report and issued a statement that “the reports find that no hostile racial climate or culture of racism exists in the Brookline Police Department,” but nonetheless steps would be taken to enhance cohesion in the work environment.

Sellstrom questions the validity of the investigations, noting that during the five months of investigation, the head of Human Resources was not interviewed but allowed to submit written testimony, which he believes was carefully scrutinized and prepared by others.

“We believe it [the investigation] was essentially a sham designed to come to the conclusion it did,” he told the Banner.

He noted as well that the report found evidence of an “old boy Irish network” and racial bantering.

Town, police response

Following its investigation, the police department said it would take actions including “teaching officers to communicate effectively with each other without offensive banter, executive coaching to senior officers, making a point to display pictures of officers of color and women throughout the station, making criteria for special unit selections public, creating a forum for officers to learn about cultures of diverse populations that make up the force, and providing leadership and multicultural training for supervisors and developing a strategy to maintain a diverse workforce,” according to information obtained by the Brookline Tab.

Town attorney Padolsky said that police department responses have included advisement to staff to avoid racial joking, agreement to develop a training program, statements of support for the officers and offers to work with them to find a way that they can return.

Schwab and Sellstrom say that the officers have been open to mediation but that the town’s initial approach easily could be construed as intimidation, because it entailed sending armed officers unannounced to the officers’ homes to deliver letters, in violation of the lawyers’ requests that communications go through them.

Officers and their attorneys argue that the town and police department’s response efforts, such as diversity classes, do not go far enough and that various statements downplay threats to officers’ safety as mere “banter.”

“They put their heads in the sand and say nothing is wrong,” Pilot told the Banner. “If you fail to acknowledge why I say I feel unsafe and then begin to belittle what I say is going on…”

Sellstrom said they continually presented the town with proposals they believed would resolve the problem and allow for the officers’ return, but that instead of taking these up, the town sought to punish Pilot and Zerai-Misgun.

Pilot has served for 18 years on the force. One resident who turned out to the hearing in solidarity said his daughter attended a DARE program run by Pilot at the Runkle School and described him as “a gem.”

“My fear for my safety is not from the public, it is from within the department,” Pilot said.

Moving forward

Last week, hearing officer James Lampke said that, at an unspecified point, he will provide written findings and recommendations to the town board of selectmen, a group that has the authority to fire police officers.

Meanwhile, the officers also have a pending lawsuit against the town. Last week, a judge rejected the town’s request to dismiss the case, stating that “contrary to defendants’ counsel’s assertion, this appears to be a quintessential continuing violation case.”

The suit is scheduled to go to trial in summer 2018 at the Norfolk Superior Court.