WILLIAMSTOWN, Mass. — A pair of concurrent investigations into the Williamstown Police Department found "credible testimony about … racially charged incidents in the Department" but raise issues about the credibility of the self-described whistle-blower who brought those incidents to light.

 

In the aftermath of the August 2020 release of a federal discrimination lawsuit against the town by then-Sgt. Scott McGowan, the Select Board promised to order an independent investigation into what the lawsuit characterized as "an atmosphere in which racial harassment and hostility to persons of color are tolerated and perpetrated at the highest level" and "a blind eye to sexual assault and sex discrimination" at in the department.

 

On Aug. 10 of last year, Boston attorney Judy A. Levenson submitted the results of her probe that began in February. Four days earlier, on Aug. 6, private investigator Paul J. L'Italien gave the town the results of his five-month investigation into McGowan after the sergeant was the subject of a March 1, 2021, letter of no confidence signed by full-time members of the police force.

 

Levenson had asked Pembroke's L'Italien, a licensed PI and retired law enforcement officer with more than 27 years of experience, to look into the allegations against McGowan in the letter of no confidence.

 

iBerkshires.com submitted a public information request to the town on Jan. 11, and, on Friday, the town released redacted versions of the reports from both investigations.

 

Asked Friday for his reaction to the reports, Police Lt. Mike Ziemba said he did not see the reports until well into his tenure as the interim chief of the department. Once he saw them, they did prompt a couple of specific actions, but other changes already were in progress before he read Levenson's findings.

 

"The reports confirmed for me the amount of work that needed to be done to fix the problems at hand," Ziemba said. "That's what has been happening.

 

"The current department today does not, in any way, operate the way it did during the time period of the events detailed in the reports."

 

On a couple of key points, Levenson's investigation was stymied by the refusal of potential witnesses to be interviewed. Her 37-page report indicates that some of the accusations McGowan made against then-Chief Kyle Johnson and then-Town Manager Jason Hoch are without basis.

 

But there remains much in Levenson's conclusions to raise concern about the atmosphere in the department during Johnson's tenure as chief, which came to an end in December 2020 on the same day McGowan announced he was dropping his lawsuit against the town, Johnson and Hoch.

 

"Chief Johnson initiated, participated in and tolerated sexually charged and offensive comments and conduct within the Department," Levenson's report reads on Page 2, continuing, "Chief Johnson initiated, participated in and tolerated racially charged and offensive comments and conduct within the Department."

 

Levenson interviewed 12 witnesses, including McGowan, Hoch and Johnson – some on more than one occasion. She also reviewed the transcript or observed the interviews of 13 witnesses queried by L'Italien, a group that included former Police Chiefs Michael Kennedy and Arthur Parker.

 

Levenson notes on Page 10 of her report that she uses the evidentiary standard of "preponderance of the evidence," which means that her factual findings are "more likely than not true." Generally speaking, there are three standards of evidence in American jurisprudence, in ascending order of rigor: preponderance of the evidence, clear and convincing and beyond a reasonable doubt (the standard in criminal prosecutions).

 

Her report notes that Johnson, who was promoted to acting chief in 2004 at age 33 and subsequently chief, was "relatively young" for the supervisory position and promoted from within the historically small department.

 

"Soon after Johnson was appointed Chief in 2004, a work culture developed within the Department that several members described as including 'inappropriate horseplay,' 'unprofessional conduct,' 'juvenile locker room behavior,' 'stupid' and 'immature behavior,' " the report reads.

 

Johnson's own account as reported by Levenson appears to back up that assessment.

 

In discussing an allegation in McGowan's lawsuit that Johnson "rubbed his clothed penis" against McGowan and other members of the department, Johnson appears to brush off the incidents as jokes.

 

" '[If] somebody was sitting at a desk typing or something, their elbow sticking out, you walk by and you bump them and they scream out and laugh and you just go on your, you on your way,' " the report quotes Johnson as saying. " 'It's not like there was these deviant sexual advances happening throughout the department. It wasn't a regular thing in that it was done all day every day. But when there was an opportunity like that, that's, that's what happened, unfortunately.' "

 

That aligns with a January 2020 town response to McGowan's original complaint with the Massachusetts Commission Against Discrimination in which the town admits to "unprofessional and juvenile locker room behavior" at the WPD.

 

Levenson's report includes her findings on some of the more high-profile allegations in McGowan's MCAD complaint and subsequent whistle-blower suit:

 

• McGowan alleged that Johnson harassed a Black patrol officer between 2002 and 2016. Levenson reports that the officer in question declined invitations for an interview. "However, the detailed nature of McGowan's account and Johnson's failure to deny or affirm the incident lend credence to these allegations."

 

• McGowan alleged that in 2016 a Black officer requested a transfer to a different police department due to racial hostility in the WPD. Again, the officer in question declined "multiple requests for an interview," Levenson reports. But she concludes, "credible testimony about other racially-charged incidents in the Department lends credence to this allegation that a racially hostile environment may have been at least a contributing factor for the officer's requested transfer."

 

• McGowan brought to light a 2012 incident in which a dispatcher at the WPD shouted the "N word" in the presence of a Black Williams College student who was visiting the station. Levenson reports that the dispatcher in question claimed, "it wasn't meant in any hateful or derogatory whatever, it was just a slang that's said millions of times. It's just something in songs and everything else." Johnson removed the part-time dispatcher from duty for two weeks, but Levenson reports, "No follow up education or training for the individual or Department-wide appeared to take place." On the other hand, she notes that, "No credible evidence supported McGowan's allegation that he advocated for the dispatcher's termination."

 

♦ McGowan alleged that Johnson should have terminated a WPD officer in February 2011 after an off-duty sexual assault of a town resident. Levenson's report expresses no opinion about the steps Johnson did take: contacting the State Police Crime Prevention and Control Unit and having the officer sign a "Last Chance Agreement" in April 2011. However, she reported that Johnson and a shift mate of the officer accused of sexual assault each deny McGowan advocated for termination at the time, and, in his role as the local union president, McGowan signed the Last Chance Agreement.

 

♦ McGowan alleged that Johnson and other members of the department degraded a female dispatcher by referring to her as "Bae" and "Baby Girl" from 2014 to 2016. Levenson reported that, "McGowan himself referred to the dispatcher as 'Bae' or 'Baby Girl,' although he claims that he and other members of the Department only did so when 'mocking' Chief Johnson." The independent investigator reported that her probe was inconclusive on whether the dispatcher involved found the nicknames derogatory because she declined to be interviewed for the investigation. But, Levenson notes, "In any event, use of those terms by the Chief, a Sergeant and perhaps other members of the Department, even if as a 'nickname' or even if said in a 'mocking' manner, was inappropriate, lacked leadership and judgment and contributed to fostering a sexually charged workplace environment."

 

♦ Levenson's report reports no basis for McGowan's allegation that Johnson displayed "discriminatory animus" against WPD dispatcher with a handicap or that Johnson and Hoch retaliated against McGowan for being a whistle-blower. On the former allegation, Levenson said the dispatcher in question, " 'do[es] not believe for one moment that [Johnson] had any hidden negative agenda toward handicapped or handicapable people.' " On the latter point, Levenson wrote, "This investigation did not reveal any other credible evidence to support a claim that Johnson placed McGowan on [paid administrative leave] in retaliation for his critiques of sexual harassment or racial hostility within the Department or because of his union activity." And when Hoch chose to promote Ziemba instead of McGowan to a newly created post of lieutenant in 2019, "Credible evidence was not produced to support a finding that Integrity Testing's Assessment Center process was a sham or that the Town Manager's promotion of Officer Ziemba to Lieutenant was in retaliation for McGowan's past conduct critiquing sexual harassment or racial hostility within the Department or for McGowan's union activity," Levenson wrote.

 

♦ Levenson pulls no punches on the issue of a much discussed photo of Adolph Hitler that for decades was present in the locker of a WPD officer. Levenson's report details the history of the "joke" that led to the photo's display in the department and says, "[the] fact that some officers who saw the photo may have regarded it simply as a 'joke' or 'story' underscores the gravity of the issue." Although Johnson has denied knowledge of the Hitler photo until McGowan's MCAD complaint, Levenson reported, "given the approximately 20-year time period the photo existed in the Department, the Department's small size and Johnson's leadership role, it seems improbable that Johnson had not at least heard about the photo." That said, Levenson's report casts doubt on the Hitler photo's presence as evidence that McGowan was blowing the whistle on such activities. "At most, McGowan claims to have briefly mentioned the Hitler photo's existence to Johnson once in 2016, in the course of discussing with Johnson his officer/friend's requested transfer to another department and as an example of alleged racism motivating the officer's transfer," the report reads. And, her report notes, "Despite being a Sergeant with supervisory responsibilities and claiming to be personally offended by a Hitler photo posted inside an officer's closet/locker, McGowan took no steps to have the photo removed, photographed it and used it in his lawsuit."

 

As for McGowan himself, L'Italien's 35-page report found that allegations against the sergeant of "conduct unbecoming an officer" were sustained by L'Italien's investigation, which included 20 witness interviews.

 

"During his interview Sergeant McGowan denied any wrongdoing and asserted that all the allegations made against him in 'the [March 2021 no confidence] letter' are acts of retaliation against him," L'Italien writes. "I find it implausible that so many different people including current and former employees, both sworn and non-sworn who are all in agreement that McGowan has created a hostile work environment could be involved in a concerted effort to retaliate against him."

 

The word "implausible" in the above paragraph is bolded in L'Italien's executive summary.

 

"The current members of the police department (sworn and non-sworn) are all in agreement that it is Sergeant Scott McGowan and McGowan alone who has created a hostile work environment at the Williamstown Police Department," the summary continues.

 

However, L'Italien's report, like Levenson's, also reflects concerns about the management of the Williamstown Police Department under Johnson.

 

"The key observations I have made during the course of this investigation include instances of failure at many levels of the Williamstown Police Department," L'Italien wrote, putting the word "failure" in bolded italics.

 

"The Williamstown police department does not have an existing employee evaluation system," L'Italien told the Select Board. "The Williamstown police department does not have published

duties and responsibilities for ranks within the department (i.e. Lieutenant, Sergeant, Patrol Officer, Dispatcher)."

 

Both Levenson and L'Italien, in separate letters accompanying reports of their findings, recommend the WPD and town update their human resources policies and enforcement mechanisms for those policies.

 

"The Department should identify and train an Internal Affairs Investigator as described in the IA Policy and disseminate that person's contact information both externally and internally," Levenson wrote.

 

"All supervisory personnel should receive training as it relates to overseeing their subordinates and addressing any matters of shortcoming," L'Italien wrote. "Ineffective supervision is a problem in itself, but, more importantly, it delivers a message to the officers and employees which causes confusion, has an adverse effect on morale and, most importantly, can negatively impact the delivery of safe, efficient and effective police services to the Williamstown community."

 

L'Italien then ends his letter to the Select Board on an optimistic note.

 

"On August 6, 2021, I spoke by phone with [then] Acting Chief Michael Ziemba," the investigator wrote. "He informed me that the policies, procedures and rules and regulations are in the process of being updated and should be completed in the near future."