Town To Decide Whether To Appeal Decision On Firefighter Alston

BROOKLINE, MA — The town expects to make a decision in the next week about whether to appeal a commission ruling to reinstate a firefighter who came forward to report a racial epithet left on his voicemail and who then claimed he was harassed and ultimately fired unjustly as a result.

The Massachusetts Civil Service Commission ruled in an 83-page report that the town failed to show just cause in firing firefighter Gerald Alston, who reported racial discrimination after his supervisor left him a voicemail that included the racial epithet nearly a decade ago. The commission asked that Alston be reinstated. The town had 30 days from Feb. 14 to appeal that. Following the decision, a number of residents implored officials to apologize and move forward.

"The town is ready willing and able to resolve Mr. Alston's claims without the need for extended litigation," said Select Board Chairman Neil Wishinsky in a statement during a Select Board Meeting Tuesday night. "Your comments are extremely important to us and I assure you that we will consider them when the board deliberates the question of whether or not to appeal the civil service decision."

Wishinsky said the town's council had reached out to Alston's lawyer, Brooks Ames, in an effort to begin a resolution, suggesting a mediated resolution through the federal court mediation program.

There is also a separate, federal lawsuit against the town and four sitting select board members that Alston has brought, alleging they engaged in discrimination and retaliation for his speaking out.

"In order to fully resolve these matters, there's the potential appeal of the civil service commission decision, plus the federal lawsuit, without the need for further litigation. Mr Alston and the defendants named in the lawsuit must reach an agreement and settle," Wishinsky said in his statement.

The Select Board invoked a "Rule of Necessity under the State Ethic's Law" to allow the board to act on matters pertaining to the lawsuit on behalf of the town, despite several of them personally named in the lawsuit.

In 2010 then-firefighter Alston came forward to report that the N word was left on his voicemail by a white supervisor. He had the voicemail to prove it and that claim was not disputed. What was disputed was the handling of the incident and the later promotion of the supervisor, who was also recognized by the White House for his work as a firefighter.

The commission ruled the town failed to prevent retaliatory behavior against Alston and enabled the lieutenant to use his position to lobby many other members of the force against Firefighter
Alston, while painting himself as the victim.

The commission said it was the town's own actions and inaction that made it impossible for Firefighter Alston to return to work, which formed the basis of the Town's decision to fire him, which it did in 2016.

In 2013, Alston, with the aid of attorney Brooks Ames, filed a case in federal court claiming a pattern of systematic racism within the town. In 2016, he lost his job after an investigation. His case gathered steam with within the town when two Brookline police officers joined his lawsuit saying they, too, had experienced race-related harassment within the Police Department. They later decided to pull out of that lawsuit and file a complaint with the state. Both of those officers later settled with the town and wrote letters to the police chief thanking him and appearing to retract some of their earlier claims. [Note: This sentence has been changed from an earlier version to clarify the nature of the letters, Patch regrets the error].

PREVIOUSLY ON PATCH:

• Commission Rules Brookline Should Reinstate Black Firefighter (Feb. 14)
• Residents Ask Town To Apologize For Firing Black Firefighter (Feb. 19)
• Brookline Settles With Police Officer On Racial Discrimination (Feb. 2018)
• Brookline Settles With 2nd Officer On Racial Discrimination Claim (Sept. 2018)

The full statement from Wishinsky:

The recent civil service commission decision concerning Gerald Alston has led to a broad and reinvigorated conversation in the community about Mr. Alston and his past employment as a Brookline firefighter. Since the commission's decision was issued, this board has read or listened to extensive public comment that has followed.

Many members of the public have asserted that the decision should not be appealed and that the town should resolve without engaging in further litigation

Your comments are extremely important to us and I assure you that we will consider them when the board deliberates the question of whether or not to appeal the civil service decision.

I expect that the decision will be made in the next week or so as the deadline for the appeal is approaching.

The recent civil service commission decision concerned Mr. Alston's appeal of the decision to terminate him from his employment as a Brookline firefighter. Separately, Mr. Alston is pursuing a lawsuit in the federal court, alleging that the town and certain town officials, including four of the five members on the dias here, discriminated and retaliated against him in his employment. The lawsuit names these town officials, including three former members of this board, in their individual and official capacities and seeks punitive damages.

The rule of necessity was established by the courts to allow public officials to participate in official decisions from which they were otherwise disqualified in circumstances such as these when no other official or agency is available to make that decision.

Moving forward, the town is ready, willing and able to resolve Mr. Alston's claims without the need for extended and expensive litigation.

To this end, the town's council has reached out to Mr. Alston's council to begin that conversation.

However, in order to fully resolve these matters, there's the potential appeal of the civil service commission decision, plus the federal lawsuit, without the need for further litigation. Mr Alston and the defendants named in the federal lawsuit must reach an agreement and settle. This board is the only town body with authority to settle these matters, and we're required to take collective action to do so. Therefore, the Rule of Necessity should be invoked in order to proceed with the resolution of Mr. Alston's claims should he be willing to participate in a resolution.

The town's council has already reached out to Mr. Alston's council to suggest a mediated resolution through the federal court mediation program.

It's my hope sincere home that these discussions can take place that and healing can soon begin.

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Jenna Fisher can be reached at Jenna.Fisher@patch.com or by calling 617-942-0474. Follow her on Twitter and Instagram (@ReporterJenna).