MARBLEHEAD POLICE INVESTIGATIVE REPORT

INCIDENT ON WLY 1, 2019, VEHICLE DAMAGE

Terence M. Delehanty, Esq. [ LEADS, LLC [ July 19, 2021

LOGISTICAL INFROMA TION .................................................................................... 1

INVESTIGATIVE SCOPE ............................................................................................ 1

WITITTSS LIST ......................................................................................................... 1-2

DOCUMENTS RECEIVED Al\'D REVIEWED ................................................................... 2

INTERVIEWS ......................................................................................................... 3-43

CHIEF PICARIELLO .................................................................................................... .3-5

CA.PT AIN FREEMAN .................................................................................................... 5-7

OFFICER DIMARE ................................................................................................... 7-11 OFFICER l\!1ICHAUD ................................................................................................. 11-13 OFFICER BATES ..................................................................................................... 13-15 OFFICER McDONALD .............................................................................................. 15-16 OFFICER MORRIS .................................................................................................. 16-18 LIEUTENANT EVERETT....................................... . ........................................ 18-20 SERGEANT OSATTIN .............................................................................................. 20-23 SERGEANT CONRAD ................................................................................................ 23-26 OFFICER FRITINI ................................................................................................... 26-27 SERGEANT BRADY ................................................................................................ 27-29 LIEUTENANT LUNT ................................................................................................ 30-32 LIEUTENANT OSTR0VITZ ......................................................................................... 32-34 OFFICER GAGNON .................................................................................................. 34-36 OFFICER COMEAU ................................................................................................. 36-38 OFFICER G.AJ.,L0 ................................................................................................... 38- 39 DISPATCHER COLLINS ............................................................................................. 39-40 DISPATCHER KAUFMAN .......................................................................................... 40-41 DISPATCHER LAPHAM ............................................................................................. 41-42 DISPATCHER SWARTZ ............................................................................................. 42-43

FINDINGS OF FACT .............................................................................................. 43-46

ANALYSIS AND CONCLUSION ................................................................................ 46-56

RECOJ\1J\1ENDATIONS .......................................................................................... 56-57

EXIIIBITS ............................................................................................................ 58

INFORMATION:

On or about December 16, 2020, Chief Robert Picariello ("Chief Picariello"), Marblehead Police Department ("Department"), engaged the services of Law Enforcement and Development Strategies, LLC ("LEADS"), to investigate an incident involving members of the Department that took place the Town of Marblehead ("Town"), in or around the first week of July 2019. This investigation began on January 14, 2021 and proceeded through and including July 14, 2021.

The matter to be investigated involved two (2)Marblehead Police Officers, one of whom scratched a swastika on the other officer's personal motor vehicle which was parked in the vicinity of Police Headquarters, 11 Gerry Street Marblehead, Massachusetts.

II. SCOPE THE INVESTIGATI.ON/SERVICES:

To perform a fact-finding review of an incidentthat took place in or around the first week of July 2019, between two (2) Marblehead Police Officers, one of whom scratched a swastika on the other officer's personal motor vehicle (the "Incident"). The investigation will include a determination as to which officers were involved in the Incident, which officers were mvare of the Incident prior to November 2020, when such officers fast became aware of the Incident, and what action, if any, was taken by such officers (the "Investigation").

This Investigation will detennine whether any Marblehead Police Officer violated the Department's Policies or Rules and Regulations, and make recommendations consistent with current trends and best practices in the policing industry.

III. WITNESSES INTERVIEWED:

1. Chief Robert Picariello 2. Captain Matthew Freeman 3. Officer Andrew Dimare 4. Officer Nicholas Michaud 5. Officer Tyler Bates 6. Officer Jason McDonald 7. Officer John Mon-is 8. Lieutenant Michael Everett 9. Sergeant Eric Osattin 10. Sergeant Jason Conrad 11. Officer Nicholas Fratini

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12. Sergeant Sean 13. Lieutenant vv,,- .. ,,~.,

14. Lieutenant David Ostrovitz 15. Officer Daniel Gagnon l 6. Officer Neil Comeau 17. Officer Christopher Gallo 18. Dispatcher Teresa Collins 19. Dispatcher Scott Kaufman 20. Dispatcher Gregory Lapham 21. Dispatcher Harry Swartz

IV. DOCUMENTS AND INFORMATION RECEIVED AND REVIEWED:

Exhibit 1- Time line of the Incident submitted by Chief Picariello Exhibit 2- Email between the Town of Marblehead Labor Counsel Marc J. Miller and

Gary Nolan, Esquire, personal attorney for Police Officer Christopher Gallo, dated November 13, 2020

Exhibit 3- Email from Chief Picariello to Officer Timothy Tufts dated November 16, 2020, requesting a report with respect to the Incident

Exhibit 4 - Email from Chief Picariello to Officer Andrew Dimare dated November 16, 2020, requesting a report with respect to the Incident; and Officer Dimare's

email response dated November 16, 2020. Exhibit 5 - Formal Notice from Chief Picariello to Officer Timothy Tufts dated November

20, 2020, placing Officer Tufts 011 Administrative Leave. Exhibit 6 - Formal Written Notice of Suspension Without Pay for five (5) days from Chief

Picariello to Officer Timothy Tufts dated December 16, 2020 Exhibit 7 - Correspondence dated December 16, 2020, from Chief Picariello to the Board of

Selectmen requesting that the Board convene a hearing to dete1mine if any disciplinary action should be in1posed upon Officer Tufts with respect to his conduct related to the Incident.

Exhibit 8- Officer Timothy Tufts' Resignation email communication dated December 16, 2020

Exhibit 9 - Press Release dated December 16, 2020 Exhibit 10 - Relevant Rules and Regulations, Policies and Procedures of the

Department Exhibit 11 - Emails from Sergeant Osattin to Captain Freeman and Chief Picariello

respectively dated April 3, 2017 and October 18, 2017 Exhibit 12-Officer DiMare's Amazon receipt and pictures of Officer Dimare's personal

motor vehicle taken at the request of Terrence Delahanty (the "Investigator") and sent by Officer Dimare to the Investigator on March 26, 2021.

INTERVIEWS:

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All of the interviews of Marblehead Police Officers in this Investigation were coordinated directly by this Investigator. Interviews began on January 22, 2021, and continued through and including March 27, 2021. Interviews regarding this Investigation were scheduled in one to two hour sessions. The Investigator interviewed Department officials at varying ranks who had first or second-hand knowledge oftbe Incident.

All Town employees who were interviewed were informed that the Investigator was hired to perform an independent, neutral and non-biased fact-finding investigation. Their honesty and candor were pivotal to ensuring the fairness of the Investigation.

The Investigator explained to each person interviewed that the Investigator is a Massachusetts licensed attorney-at-law, and that he does not represent the Town, the Department, its police officers, or any of its members or persons of the community.

All interviews were conducted over the Zoom platform due to the COVID-19 pandemic and at the request of the Union's (MASS COP, Local 437) Legal Counsel Alan Shapiro, ("Attorney Shapiro"), unless otherwise noted. All interviews were conducted solely by this Investigator.

The interview portions set forth in this report are summaries and not verbatim transcripts.

Meeting and Interview of Chief Robert Picariello

On January 6, 2021, at 2:00 pm, Chief Picariello met with this Investigator in the Chief's office to discuss an ovecview of the Incident and to obtain any and all documents that may be related thereto. We again mcton March 19, 2021, in the Chiefs office for the purpose formally interviewing him regarding the Incident.

Chlef Picariello has been a member of the Department for the past 35 years, serving as Chief for the last 14. Chief Picariello advised me, beginning on or around June 2020, Captain Freeman had been investigating a use of force matter involving Officer Gallo that occurred in May of 2020, in the vicinity of Miller Plaza, Pleasant Street, Marblehead, Massachusetts. While the use of force investigation was continuing, on November 13, 2020, @ 11 :09 am, Officer Gallo's attorney, Gary Nolan ("Attorney Nolan"), notified the To~rn's Labor Counsel Marc J. Miller ("Attorney Miller"), via email of the Incident that occurred on or about July 1, or 2 of 2019. Said email stated in pertinent part the following:

... "it is my understanding that there are allegations by other officers that Officer Tufts had, within months of this incident, engaged in actions that raise concerns along these lines, including carving a swastika onto the paint finish of another officer's car with an empty energy drink can. This incident was witnessed by multiple officers."

Shortly after Chief Picariello received this email forwarded to him by Attorney Miller, Captain Freeman came into the Chief's office and advised him that he had just been infonncd

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by Officer Dimare of an incident involving Officer Tufts and that Officer Tufts had scratched a swastika into the paint of Officer Dimare's personal motor vehicle. Chief Picariello responded to the Captain that he was also just made aware of the same incident via email from Attorney Miller.

In tum, Chief Picariello reviewed the Incident with Jason Silva, Town Administrator ("Silva"), and Attorney Miller. On Monday, November 16, 2020, at 8:02 am, Chief Picariello sent an email to Officer Tufts stating in pertinent part the following:

"It was brought to my attention that an incident occurred in the past several months between you and Officer Dimare which involved his car and a drink can. I need a full report on that incident ASAP."

On Monday, November 16, 2020, at 8:04 am, Chief Picariello sent an identical email requesting a full report on the Incident to Officer Andrew Dimare. Officer Dimare emailed his report dated November 16, 2020, at 2:47 pm to Chief Picariello.ill

Officer Tufts failed to respond. Officer Tufts' Attorney, Alan Shapiro, communicated with Attorney Miller, regarding Officer Tufts' report of the Incident, and his continuing employment status as a police officer with the Town. It was determined, if Officer Tufts failed to file his report, in accordance with MGL c. 31, a hearing by the Board of Selectmen (the "Board"), would be requested by the Chiefregarding Tufts' conduct in July of 2019, to determine what discipline, if any, up to and including termination, should be imposed upon

Officer Tufts .

Chief Picariello, by written notice dated November 20, 2020, placed Officer Tufts on Administrative Leave without pay. The notice set forth that Officer Tufts was not authorized to exercise any police powers; he was not allowed to enter the confines of the police station unless accompanied by the Officer in Charge; he was not to contact anyone involved in the investigation; he was restricted from accessing any Department computer, or its software, report, document or file, and be was required to tum in his duty weapon. From on or about November 20, 2020 through December 15, 2020, Chief Picariello, Attorney Miller and Attorney Shapiro were in continuing discussions regarding Officer Tufts' employment status as a Marblehead Police Officer. On December 15, 2020, Chief Picariello was advised that Officer Tufts intended to resign.

Since Tufts' resignation was not fo1thcoming, on December 16, 2020, Chief Picariello delivered ·written notice to Officer Tufts suspending him for five (5) days without pay, and written notice to the Board requesting that a hearing be held to detennine what discipline, if any, should be in1posed upon Officer Tufts with respect to his conduct related to the Incident. At 2:43 pm, December 16, 2020, Chief Picariello received an email from Officer Tufts notifying the Chief of his resignation as a Marblehead Police Officer, effective immediately. By this time, the Chief was coordinating a press release to inform the community of the Incident, engaging in conversations with the Anti-Defamation League to conduct additional

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specific and targeted training, all the while engaging the services of an independent outside source to investigate the Incident.

During the period from on or about November 20 through December 16, Chief Picariello spoke with Officer Dimare and inquired if he wanted to pursue criminal charges against Officer Tufts for the vandalism of his personal motor vehicle. Officer Dimare stated to Chief Picariello that he "just wanted the whole thing to be over with."

During this Investigator's separate interviews with Lieutenant Everett and Sergeant Osattin with respect to this Incident, both stated that they had concerns relative to Officer Tufts' use of force. Sergeant Ossatin informed this Investigator that he was concerned of Officer Tufts' use of force while in training for Defensive Tactics. Sergeant Ossatin believed that Officer Tufts was overly forceful with the instructor. Chief Picariello inquired of the instructor regarding this matter. The instructor was not concerned. The Chief specifically remembers the instructor saying that if mistakes are going to be made, the best place to make them is in training. Chief Picariello instructed Captain Freeman to visit the Police Training Academy to speak with the Director, to determine if the Director had any concerns with Officer Tufts' use of force while he was a recruit officer. Captain Freeman did so, and reported back to the Chief that the Director had no concerns.

Interview of Captain Matthe,v Freeman

Captain Freeman was interviewed in his office at Marblehead Police Headquarters. Captain Freeman began working with the Department in 1989 as an auxiliary officer, he was appointed a reserve officer in 1994, at7.d appoii1ted as a full-tilne officer in 1998, He ,vas promoted to Lieutenant in 1999/2000 and promoted to Captain in 2013. He is the second in command of the Department, and in charge of Internal Affairs.

Captain Freeman stated that Officer Dimare came to Captain Freeman's office one afternoon before 3:45 pm on or around November 13, 2020, and asked to speak with him. Freeman explained that it is not uncommon for officers to go to him directly to ask questions on various issues. Dimare said it had been suggested that it would be better for him if "internal affairs heard it from him first" and that he did not want the Town to be blindsided in an upcoming disciplinary termination hearing for an officer involved in a separate incident. Dimare then shared with Freeman that over the summer of 2019, sometime between 11:30 pm and 11 :45 pm, he was going home from duty, and Officer Tufts was coming into work. Dimare had found a tin can on the ground and put it under the windshield wiper of Tufts' personal motor vehicle as a joke. In response, Tufts walked over to Di.mare's personal motor vehicle and used either the can or his finger to etch something that resembled a swastika in the pollen on Dirnare's vehicle. Freeman stated that he initially misunderstood Dimare because he thought it was an Incident that occurred last summer (2020), but later learned that the Incident occurred in the summer of 2019. Freeman thanked Dimare for the information. He inunediately walked down to Chief Picariello's office and told the Chief what he just learned from Dimare. Freeman stated that they were both equally "stunned" and thought that

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this was "crazy", that they were in disbelief that a Marblehead Police Officer would do such a thing. Freeman knew that this matter was very disturbing to the Chief.

During the interview, Captain Freeman stated that he did not request Dimare or anyone else to write a report since Chief Picariello had sent an order to both Dimare and Tufts to submit a report with respect to the Incident Freeman was awaiting instructions to start the investigation of the Incident, however, he was informed that the Department hired an independent outside investigator.

Freeman stated that he thought highly of Dimare. He further stated that Dimare was a great police officer, and believed that placing the can under Tufts' wiper was not malicious but a joke. To the best of Freeman's knowledge, neither officer (Dimare or Tufts) is Jewish; however, he made it clear that he did not concern himself with people's religious beliefs, so he did not know for certain. With respect to Officer Tufts, Freeman stated that he liked him as a police officer, that he was exceptionally quiet and always respectful. Keeping in mind that they work different shifts, Freeman found Tufts to be punctual, competent, dependable and said that he would want Tufts on a serious call - Freeman stated that he believed Tufts "would move heaven and earth" to get to an officer who needed assistance. Freeman did express that Tufts could have shaved and cut his hair more often for his liking, and that on a few occasions the Chief had to call Tufts in to address the issues with his hair. Other than that, he described Tufts' appearance as impeccable.

Freeman stated he does not socialize with any Department members, but was stunned nonetheless to learn that Tufts did something like this.

Freeman believed that Dimare did not report the Incident to anyone else before reporting it to him. During the conversation, Dimare did not advise Captain Freeman if any other police officers or employees were present during the time of the Incident in July of 2019. Freeman did not recall if Dimare witnessed Tufts drawing the swastika on his personal motor vehicle. However, in Freeman's mind, there was no question that Dimare was aware that Tufts was responsible for the vandalism to his car.

Freeman described the Department's culture as the same as any other police department, stating, "You have some offbeat humor, but the organization members have always treated each other and the public with respect." When asked if he had heard either Tufts or Dimare speak negatively about people based on their race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record, handicap (disability), mental illness, sexual harassment, sexual orientation, active military personnel, or genetics, Freeman stated that he had not.

During the interview, Freeman stated that he had conducted an lntemal Affairs investigation on Officer Tufts when he was involved in a police cruiser accident. During that investigation, he found Tufts to be honest and accountable. Other than that incident, Tufts had no disciplinary issues since becoming a Marblehead Police Officer.

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I presented Freeman a situation an officer down the street \Vitnesses someone carving a swastika someone's car, and asked him, what action, if any, would the police officer be required to take. Freeman answered, "we would stop, identify the suspect, locate and talk to the victim to see if they want to go forward with criminal charges ... " Freeman stated that in this particular case, the victim is a police officer who is free to activate a criminal case himself, or request that another officer activate a criminal case for him. He further stated that if the victim is unwilling to make a complaint, he's unsure what duty he has to report the incident.

Freeman was asked if he thought Tufts was treated differently than a private citizen would be treated had such citizen vandalized a vehicle in the same manner. Freeman stated, "No." If a victim does not want to move forward with charges, then in such event, it has been the Department's practice not to file charges. It should be noted that Captain Freeman's answer was given in the context of a non-domestic vandalism case.

Department Rules and Regulations The following rules and regulations were reviewed and discussed with Captain Freeman during his interview:

Disparaging Remarks 7.2 Freeman was shown Rule 7.2 Disparaging remarks. I inquired of Captain Freeman as to his interpretation the word "speaks" - literally, or more liberally to include speech, whether verbally or in writing, symbols and o~jects that are more generally included in the First Amendment cases. Freeman responded that he interpreted the word "speak" in Rule 7.2 to "literally mean the spoken words" and not a symbol, object or gesture.

Criminal Conduct 11.11 "Officers shall not commit any criminal act (felony or misdemeanor), or violate the regulatory or criminal laws or statutes of the United States or any state or local jurisdiction (by-law/ordinance), whether on or off duty." Freeman confirmed that the act of carving or scratching a symbol on the car of another would be a violation of Rule 16.11. the rule against criminal conduct.

Report Rule Violations 13.5 During the interview, Freeman stated that he does not agree that any policy currently existing in the Department requires an officer to report any incident immediately. He further explained that the Department had received accreditation. for policies; he does not know every policy verbatim but guessed that there is probably no policy requiring an immediate report. After being shown this section of the Rules and Regulations, Freeman stated that if interpreted literally, officers have an obligation to report the criminal act (vandalism) committed by Tufts. However, from a practical point of view, he could understand why Dimare would feel that he did not have to rep01ithe Incident ifhe had addressed the matter directly with Tufts and did not want to move forward with criminal charges.

At the conclusion of the Interview, Captain Freeman was asked if he read anything posted on social media by any Marblehead Police Officers relating to this Incident since it occurred in

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July of 2019. Freeman stated that he had not, and qualified his answer by saying he is not on social media except for when he posts for the Department on its social media pages. Asked if there was anyone else he thought should be interviewed, he stated, "No."

Interview of Officer Am:irew Dimare

Officer Dimare began working for the Department in March of 2015. Before joining the Department, Dimare worked for several months with the Essex County Sheriff's Department as a dispatcher. He has lived in Marblehead his entire life except for his attendance at Roger Williams University in Rhode Island.

Dimare was asked to provide the facts as he recalled them regarding the lncident. Dimare stated that based on a receipt from Amazon, he believed the Incident occurred on either July 1 or July 2, 2019. Dimare explained that his and Tufts' personal motor vehicles were parked across the street from the police station in the church parking lot. Both of their cars were parked facing the station. Officer Tufts typically sat in his car for 15 to 20 minutes before his shift; Dimare and Officer Michaud were transitioning their equipment from their Department cruisers to their personal motor vehicles. Thereafter, both officers began to walk towards the station when Dimare saw an empty can that had been flattened lying on the ground. He picked it up and placed it under Tufts' windshield wiper as a joke. As Dimare began to walk away Tufts got out of his motor vehicle, took the can from under the wiper, and looked at it Dimare turned and saw Tufts draw something with the can on the hood of his car. Dimare then walked over to his motor vehicle and observed the marking on his motor vehicle to be a swastika. He tried wiping it off with bis hand but a white residue remained and he believed that it \vould come offvlith so1T1e soap and water. According to Dimare, Tufts looked at hhn and said, "don't fuck with my car." Dimare stated he was in disbelief and walked away heading towards the police station. Dimare went inside for roll call. When he arrived at the roll call room, Dimare said something to the effect "l don't believe he just did that; Tufts just scratched a swastika into my car"; Dimare did not recall who was present in the roll call room during this conversation. He further stated that the other officers in the roll call room were taken aback and asked why Tufts would do that. Dimare then went home and realized the paint on his motor vehicle was damaged and purchased some scratch remover from Amazon.

Dimare explained that he knows Officer Michaud was there for part of the Incident and remembers him coming up to his car and observing the damage but is unclear if Officer Michaud was present throughout.

After Dimare's shift ended, he went home and ordered the scratch remover from Amazon on July 2, 2019. He applied a couple of coats to the damaged area on his motor vehicle and stated during his interview "you really can't see anything unless you know what you're looking for." He further informed me that he had not taken a11y pictures of the damage, but believed Officer Gallo may have taken several pictures based on what Gallo told him. Dimare said he believed Gallo intended to use the Incident to get Tufts fired or force him to

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resign. When asked why Gallo would want to do that, Dimare explained, "they were in the middle of an IA something or other between the two of them, and he didn't want to work with Officer Tufts anymore, and he was going to use this as leverage." He stated that Gallo approached him sometime in early November 2020, and said that he was going to the Town with the swastika Incident Dimare explained that at the time Gallo was on administrative leave for an alleged excessive force incident and could not come into the station.

Gallo had contacted Dimare and asked him to retrieve some items from Gallo's locker; Dimare did and delivered them to Gallo's home in Marblehead. It was during this time that Gallo asked Dimare if the swastika Incident was true, and if it was, he was going to notify the Town. Sometime after Officer Dimare's conversation with Officer Gallo, Sergeant Brady and Lieutenant Lunt approached Dimare and encouraged him to "say something before this got out ... " Dimare went to Captain Freeman the following day. He did not remember the date on which he met with Lieutenant Lunt and Sergeant Brady, or the date he met with Captain Freeman.

When asked why he did not come forward sooner to report the Incident, Dimare stated that he was able to remove the damage; also, he knew Tufts well from going to the Academy with him and perceived Tufts' actions as an attempt "to be funny."

Tufts' closest friend at work and did not feel it would be appropriate to report the Incident, and that he would have handled the situation differently if Tufts had defaced a cruiser and not his personal vehicle.

Aithough Dimare said that l1e felt like he was Tufts' closest friend at ~1ork, he said they had never socialized together or visited each other's home, except on occasion to drop off food at Tufts' home for his lunch or dinner break when they worked together. He stated that Tufts recently offered to pay for the damage to his car, but he declined Tufts' offer.

When asked if he had prepared a report of this Incident to anyone, excluding his email to the Chief, or his meeting with and his verbal report to Captain Freeman, Dimare answered, "No." When asked previously by the Chief ifhe wanted to press charges against Tufts, Dimare declined to do so. When asked during this interview if he has changed his mind regarding his filing criminal charges against Tufts, Dimare responded, "No."

Dimare was asked ifhe ever heard Tufts make any disparaging comments about people based on their race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record, handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation. He stated "No" but then said that he had heard Tufts comment about "people overseas, specifically the Middle East", but thought that it was related to what Tufts experienced during his military service in that area of the world. Dimare could not remember anything specific but said he never heard Tufts make any disparaging remarks about anyone "here", meaning in the United States.

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Dimare was then asked if he has heard any other employee of the Department make negalive or disparaging comments based on a person's race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record, handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, and he responded that he has not.

When asked about whether the culture inside the Department is respectful, Dimare stated, "Everyone is pretty respectful." He stated that, "No one uses disparaging remarks to other officers in the workplace, and no one speaks about the members of the public disparagingly." Asked if anyone has made fun of him or treated him negatively or aggressively because of the Incident, Dimare responded, "No."

When presented with a hypothetical situation whereby an officer driving down a street witnesses a person carving or scratching something into Mrs. Jone's car, and asked what he would do, Dimare answered, "1 would stop, identify the suspect and locate and talk to the victim to see if she wants to go forward with criminal charges; if she said yes, I would file the complaint; if she said no, I would do a report on it and have it on file at the station .... "

During a follow up interview on March 26th, 2021, Dimare was asked to take a picture of the damage to his motor vehicle in its cun-ent state and send it to me through Attorney Shapiro. Later that day I did receive a picture, which is attached to this report as Exhibit 12.

When asked ifhe saw anything posted on social media by any Marblehead Police officers relating to his Incident since it happened, Dimare responded, "No."

Attorney Shapiro was given an opportunity to clarify any issue previously discussed. He stated that the swastika is a hate symbol and asked Dimare if he agreed. Dimare stated that he did agree. Attorney Shapiro then asked whether Officer Dimare perceived what Officer Tufts did to him as a hate attack. Dimare responded "No," explaining that he and Tufts spent six months in the Police Academy together and got to know each other - "flipping the windshield wipers up is something we would do to each other. I don't think he meant to do anything hateful towards anybody.

. I don't think he is hateful in any way." Attorney Shapiro asked ifhe has ever heard Tufts make any anti­Semitic comments, and Dimare responded "No."

Rules and Regulations Dimare stated that during his training period, he received, reviewed, and signed off on a copy of the Department's Rules and Regulations. He also stated that Lieutenant Ostrovitz develops new policies monthly for review and digital sign off.

Criminal Conduct 11.11 Dimare was provided with a copy of this rule and instructed to read/review it. Upon his completion, he was then asked if there was any doubt in his mind that Officer Tufts' conduct violated it. Dimare responded that there was no doubt that he did.

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Disparaging Remarks 7.2 Dimare was asked what his interpretation was of the word "speak" used in this particular rule. Dimare stated that the word "speak" would mean written or verbal.

Report Rule Violations 13.5 When asked if the other officers who knew about the Incident violated this rule, Dimare stated, ti As it's written, I guess so." He expanded his answer when asked to by saying he felt he should have been made aware of it, saying "we don't comb through these with a fine-tooth comb, we get to know what we need ... and you would think since this has been going through the rumor mill for the past two years that someone would have told me that.. I feel misled."

Interview of Officer Nicholas Michaud

Officer Michaud was selected to be interviewed based on the email exchange between Officer Dimare and Chief Picariello dated November 16, 2020.ill1

Michaud started working for the Department in 2008, as a dispatcher. In August of 2012, Michaud attended the Police Academy to become a full-time police officer with the Department. He graduated in February 2013, and has been a patrol officer ever since. Michaud is currently assigned to the 4 pm to midnight shift. He works with Captain Freeman on the Department's social media accounts, is a certified Motorcycle Officer, and is assigned to the NEMLEC (Northeast Metro Law Enforcement Council) CISM (Critical Incident Stress Management) team.

Michaud stated that he considers both Officers Dimare and Tufts co-workers and has never socialized with Tufts while off duty. Michaud stated that he has socialized with Dimare occasionally while off duty. Michaud was asked ifhe has ever had any problems with Tufts, and he responded that he had in the spring of 2019. Tufts talked about getting a VA home loan, and Michaud tried to explain that he did not need a down payment with a VA home loan. Tufts got angry and threw a chair in Michaud's direction. No one was hurt during the event and the event was not reported to any supervisors; Michaud stayed away from Tufts from that point forward.

Michaud stated that he knew what happened to Di.mare's car in the summer of2019 because he observed Tufts' aftermath and heard Dirnare's comments. Michaud did not remember Dimare's exact comments but remembers Dimare showing him a swastika the size of a half­dollar on the hood of his car. Michaud described Dimare as upset and shocked that someone would damage his car. Michaud did not recall what precipitated Tufts' actions but remembered Dimare telling him that Dimare placed a can under Tufts' windshield wiper before Tufts carved the swastika on Dimare's car. Michaud stated that the Incident took place in the lot across the street from Police Headquarters and believed that it was right around 11 :45 pm because it was just before shift change. Michaud explained that he and Dimare were going off-duty, and Tufts was coming on-duty for the midnight shift. Michaud

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and Dimare were unloading their cruisers, and it was right around this time that the Incident took place.

Thereafter, Michaud and Dimare then went into the roll call room, and Dimare commented about Tufts carving something into his car. Michaud noted, since the Incident occurred at the time of the shift change, there would have been a number of police officers in the roll call room, however, he could not recall who had been in attendance to have heard Dimare's comments. Michaud explained that with his current schedule he serves his first two nights with Dimare, Peters, and Fratini; and the second two nights with Defelice and Peralta. He went on to say that the shift assignments have not changed much since 2019, however, it may have been Officer McDonald, not Peters, as Officer McDonald sometimes works that shift in the sunm1er. Michaud did not recall other officers' reactions in the roll call room and did not want to speculate on their responses. Michaud described Dimare as being more in disbelief and stum1ed rather than being upset. Upon completion of roll call , Michaud and Dimare walked out of the room, and Michaud asked Dimare if he would do anything about the Incident. Dimare responded that he was going to get Tufts to pay for the damage. Michaud did not know if Tufts ever paid for the damage and did not recall whether he asked Dimare if he would press charges.

Michaud was asked if he has any or has seen any pictures of a swastika on Dimare's car, and he responded, "No" to both questions.

When asked if Michaud reported the Incident to any supervisor, he responded that he did not, since it was Dimare's car and he figured Dimare would report it to a supervisor. Michaud stated that he has never known Tufts to carve a swastika into anything else nor damage other people's property, however, he has always considered Tufts to be unpredictable. Michaud was asked if he ever heard Tufts make any disparaging comments about people based on their race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record, handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, active military personnel, and genetics. He responded that he had not. Michaud was then asked ifhe has heard any other member of the Department make negative or disparaging comments based on their race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record, handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, active military personnel, and genetics. He responded that he has not. When asked, Michaud stated that several Department members were Jewish and that they have never come to him or said anything to him about being uncomfortable in the workplace; however, it should be noted, Michaud stated that because they were of ranks higher than his, they more than likely would not come to him if they were uncomfortable. When asked if he discussed this Incident with any other Department members, Michaud explained that he is a private person and does not like discussing other people's business with other police officers because he would not like it done to him.

Given a hypothetical situation involving vandalism of property and asked how he would handle it, Michaud stated that if the victim did not want to press charges, then the

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Department would not pursue charges. He said that his evaluation would be different if this were a domestic situation. Michaud was asked if Tufts received better treatment than an ordinary citizen in this particular case, and he responded, "No."

Michaud was asked if he read or saw anything posted on social media by any Marblehead Police Officer relating to this Incident since it occurred in July 2019, Michaud responded, 111 don't recall seeing anything posted on social media." When asked if there was anyone else he thought should be interviewed, and he stated, "Dimare, Tufts, and the Chief."

Rules and Regulations Attorney Shapiro, asked a clarifying question as to whether Michaud received any training regarding the rules and regulations. Michaud responded, "No. We were given the rule book, told to read it, and then sign for it."

Report Rule Violations 13.5 When asked about this rule, Michaud explained that although he has signed off on the rules and regulations, he does not recall every one, but he knows the rule now.

Criminal Conduct 11.11 When reviewing this rule, Michaud was asked if Tufts' conduct was criminal, and he stated, "It could be perceived as such, yes."

Disparaging Remarks 7.2 When asked how he interpreted the word "speak" in this rule, Michaud answered that it means verbalization (actual spoken words).

Interview of Officer Tyler Bates

Officer Bates was interviewed because he was working on July 1, 2019, from 4:00 pm until 12:00 am, commonly referred to as the PM shift.

Bates started working as a full-time patrol officer for the Department in March of 2019, when he graduated from the Police Academy. Bates is a graduate of Norwich University in Vermont, where he earned a Bachelor of Science degree in Criminal Justice. Bates' shifts rotated initially before he was permanently assigned to the day shift. According to the attendance records, during the summer of 2019, Bates was assigned to the day shift but was working overtime on the PM shift on July 1, 2019.

Bates was asked if he had a personal relationship with Officers Tufts or Dimare; he said he did not have a personal relationship with either officer.

Bates was then asked if he knew what happened to Dimare's car. He responded, "I don't know when I heard it, but what I heard is that Officer Tufts drew a swastika in the snow on Officer Di Mare's car. I don't know why he did it. ... that's all I heard." Asked if he remembered what time of year it was, he believed it was cold because he heard it happened in the snow. Bates was then asked if he knew about the Incident before November of 2020, or after November 2020, and he stated, "probably after November" but that he "really could

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not put a time stamp on it" He believed he heard it inside the police station but did not recall who exactly told him about the Incident

Bates also stated that he could not say who knew about ii, but that "now obviously everyone knows about it" When asked ifhe knew why Tufts would do something like this, Bates responded, "Honestly, I couldn't imagine why anyone would do something like that l don't know his personality ... " Bates also stated that has never seen any pictures of the damage done to Dimare's car.

Bates, when asked if he reported the Incident, responded that he never talked to either Dimare or Tufts about the Incident, and he was not sure if it was a "rumor." Bates stated that he did not know if any supervisors knew of the Incident. He said he never personally had any incidents with Tufts and never heard of any history of harassment. Bates said he never heard Tufts or any other Departtnent member talk negatively about anyone based on race, religious creed, national origin, ancestry, sex, gender, age, handicap or disability, mental illness, or sexual orientation.

Bates stated during the interview that he considered a swastika to be a hate symbol. Bates was asked if he believed Tufts received preferential treatment, and he responded that he did not. After given a hypothetical situation in which a stranger vandalized someone's car, and the victim did not want to go forward with charges, Bates was asked how the police should proceed. He stated that although there had been times when he had gone ahead with charges, he would generally do a report and consult with the Department's Criminal Investigation Division.

When asked about the Department's culture, Bates responded that everyone has gotten along with each other since he has worked there. He further responded that everyone has been respectful and helpful.

Rules and Regulations Bates was asked if he was familiar with the rules and regulations of the Department, and he indicated that he was. He stated that the Department uses the "PMAM" software where staff can review the rules and regulations and record that they did so.

Disparaging Remarks 7.2 Bates was asked what his interpretation of the word "speak" is in this rule. He stated that the word "speak" could mean a verbalization, or an action taken.

Criminal Conduct 11.11 After he reviewed this rule, Bates was asked if Tufts' conduct was criminal. He stated "yes, if it fell under a hate crime." When asked if he felt Tufts' conduct was criminal based on his understanding of this rule even if the Incident was not a hate crime, Bates stated, "Yes."

Report of Rule Violations 13.5 Bates stated that he was somewhat familiar with this rule. When asked, given this rule, if he would have been obligated to report the incident to his

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OIC, Bates responded, "I'm not sure if l was obligated 'cause I didn't hear from the victim or the offender what happened ... All I heard were rumors."

Interview of Officer Jason McDonald

Officer McDonald was interviewed because he worked on July 1, 2019, from 4:00 pm until 12:00 PM, commonly referred to as the PM shift. McDonald was appointed as an intermittent reserve officer in 2001. He was appointed a full-time pennanent police officer in 2004, and attended the full-time Academy in 2005. He holds a bachelor's degree from Salem State College.

McDonald described his relationship with Officer Tufts and Officer Dimare as "strictly a professional work relationship," and he never had a personal or social relationship with either officer.

McDonald relayed his understanding of what happened to Dimare's car as follows: "Everything I heard about that Incident was all hearsay. I didn't read any official report on it. I was under the impression ... that Officer Tufts scratched a swastika into Officer Dimare's vehicle. I was under the impression that he used some object in the snow and carved it through the snow but pushed it down too hard. It went into the paint of the car ... '' McDonald did not remember who told him about the Incident because there were so many news articles and so many different officers talking about the Incident at the station. McDonald did say that he did not find out about the Incident until Tufts went on leave in November of 2020.

McDonald did not know why Tufts would do something like this, nor did he know if he was in uniform when the Incident took place. McDonald did describe Tufts as a loner and would not talk to you unless you initiated a conversation with him. McDonald never saw the damage or any photographs of the damage, nor did he know if Dimare was reimbursed for the damage.

McDonald stated he never heard Tufts make disparaging remarks about a person's race, color, religious creed, national origin, ancestry, sex, gender identity, disability or handicap, mental illness, or sexual orientation. When asked if Tufts made any disparaging remarks about a person's age, McDonald spoke about a call Tufts was on with a woman with what he believed to be some signs of dementia. McDonald stated, "I don't remember exactly what he said, but it was something along the lines of she called the police because she thought somebody stole a loaf of bread out of her freezer or something." McDonald thought Tufts was joking about the call.

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McDonald was asked if he heard any other Department members make disparaging remarks against any of the categories previously described. He responded that in his 20 years on the Department, there has been a lot of joking around internally but never geared towards any of the protective categories listed.

McDonald was asked ifhe felt that Tufts received preferential treatment and responded that he did not know what kind of treatment Tufts got. McDonald was given a hypothetical situation wherein he was driving up Gerry Street in Marblehead and saw someone carving something into Mrs. Jones' car, and asked what he would do. McDonald responded that he would arrest the vandal even if the victim did not want to press charges. McDonald was then asked if there had there been times in his career when someone committed vandalism and was not charged. He responded, "Yes, sure. I know when houses get egged, and the homeowner doesn't want the kid charged."

Rules and Regulations The following rules and regulations were discussed with McDonald during his interview:

Disparaging Remarks 7.2 When reviewing this rule, McDonald was asked what his interpretation of the word "speak" was, and he stated "orally."

Criminal Conduct 11.11 McDonald was asked based on what he knew of the Incident, if he thinks Tufts violated this rule. McDonald, after some conversation, stated, "Like I said, if he was drawing something in the snow on the car, I would be under the impression tl-iat he felt as though it would just clear off as soon as you wipe it away, and that there was no criminal intent there."

Report of Rule Violations 13.5 McDonald could not say that he was familiar with the rule and went on to say, "Perhaps it's common sense, and it doesn't need to be known that it's a rule." McDonald was then asked that if it was his understanding that he is required to report any rule violation that he becomes aware of, and McDonald responded, "Yes."

Interview of Officer John Morris

Officer Morris was interviewed because he was on the duty roster for July 1, 2019, from 3 :45 pm until 11 :45 pm, commonly referred to as the PM shift. Morris started working for the Department in 2017. In March of 2017, he attended the Police Academy and upon graduation began working as a full-time patrol officer.

Monis stated that Tufts was his training officer over three years ago and that their relationship was strictly professional. He stated that his relationship with Officer Dimare was more personal, although they do not socialize outside of work.

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Morris remarked that he became aware of the Incident before it appeared in the newspaper. However, he did not know that it involved a swastika until it was in the newspaper some time after Tufts was placed on leave. He went on to say that he thought it was a prank and couldn't remember when he "found out about the Incident through someone in the Department," but believes it was before November 2020. Morris indicated that he did not tell anyone else about the Incident, nor did he notify any supervisor about the Incident.

When asked why he thought Tufts did what he did, Morris responded, "I think he made a very bad mistake. I think it was childish. I think it was just a dumb thing to do. I don't think it was anti-Semitic, as much as a swastika is an anti-Semitic symbol." Morris further stated that he did not see or have any photographs of the damage. Morris had never heard of Tufts doing anything like this before.

Morris replied to this Investigator's question that he has never heard Tufts or any other member of the Department talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or make sexually harassing comments to anyone.

When asked about the Department's culture and how officers treated each other, Morris stated, "ifs probably the same as any other department, everyone treated each other with respect."

When asked if Tufts received preferential treatment from the Department, Mo1Tis stated, "It's possible we wouldn't even charge somebody for this and he, you know, obviously ended up losing his-- I know he resigned, but he probably would've lost his job anyway. He was in the papers and everything. I don't think he received preferential treatment, no." Morris was then given a hypothetical scenario involving two private citizens with the same fact pattern as the Incident and asked what action(s) he would have taken. Morris stated he would "pull over and interview him [the suspect]. Get all the information, speak to the victim, see what they want to do, and go from there if they wanted to press charges. If not, I would speak to my OIC and tell them what happened, tell them what I saw and, if we decided we wanted to press charges, I think we would press charges. If not, then we would document it and leave it at that."

Morris stated that he is not on social media and has never seen any posts or comments about the Incident on social media.

Rules and Regulations The following rules and regulations were discussed with Morris during his interview:

Disparaging Remarks 7.2 Morris was asked how he interprets the word "speak" in this rule. He responded by saying it means speaking the words or putting something on Facebook or another social media platfonn, and later clarified that it means any verbal or vvritten communication.

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Criminal Conduct 11.11 When asked based on what he knew of the Incident prior to 2020, if Officer Tufts' conduct was a violation under this paiticu1ar rule, Morris stated: "what I knew before, I'd say no ... given what l knew after, I'd say yes."

Report of Rule Violations 13.5 Morris stated that be was "kind of'' familiar with this rule. When asked if he would have been obligated to report the Incident stated ifhe found out about it before reading it in the newspaper, Morris stated, "Yes."

Interview of Lieutenant Michael Everett

Lieutenant Everett has been with the Department since October 2005. He started his career as a permanent intermittent reserve officer. In July 2007, he was hired as a full-time police officer and was assigned to the Patrol Division. In 2012, Everett was promoted to the rank of Lieutenant. Everett is currently assigned to a split shift between the B division (day shift) and C division (pm shift) and is the shift commander.

Everett was interviewed because he was on duty July 1, 2019, working the 4:00 pm until 12:00 am shift, and he supervises Officer Dimare on at least two of his shifts.

Everett was asked about his relationship with Officer Tufts and stated, "I have a pretty good relationship with him. lfI asked him to do something, he did it. Ifl asked him to correct a report, he did so. I didn't hang out with him off-duty or anything like that. I didn1t get to know him too, too well." When asked about his relationship with Dimare, he stated, "He is a good kid, he does what I ask him, and he is thorough, a good officer."

Everett did not remember when he learned of the Incident, stating, "I think it was a day, it could have been a few days after the Incident because I had heard officers in the hallway speaking about it, through the grapevine, so to speak." To the best of his recollection, Everett spoke to Dimare privately and Dimare told him what happened.

When asked if he asked Dimare if he wanted to press charges, Everett responded, "I didn't use that terminology. I said, how would you like me to handle it? Do you want me to address him?" Dimare specifically said that he didn't want Everett to do anything, that he wanted to deal with Tufts directly and he was going to buff out the damage himself.

Everett said when the issue came up again, he initially thought the Incident happened in the winter because it was a year and a half ago; he thought the symbol was drawn in the snow on the car and later learned it was in pollen. Everett said, "My opinion, l don't think he necessarily meant to scratch the car itself. I think he did it in the pollen, and in turn, it did scratch the vehicle. Based on my conversation with Dimare, I think that's what upset him. 1 think the words he used were, 'He's a fucking idiot. I'm going to deal with it myself. I'm just going to buff it out.'" Everett stated he did not beBeve the Incident was motivated by hate, and said "speaking frankly, they were busting each other's balls ... .it was stupid." Everett believed Tufts was in uniform when the Incident took place. He did not know if Tufts or

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anyone else had reimbursed Dimare for the damage, he does not have pictures of the damage, and has never seen any photographs of the damage.

Everett was asked if he reported the Incident to anyone else above his level in command. He responded, "I did not," and explained, "I specifically did (not) because Dimare asked me to keep it between him and Tufts. I felt like, as a supervisor, I didn't want to jeopardize our relationship and the fact that he requested that, I felt as a patrolman he wants to deal with another patrolman ... "

Everett was asked if he ever had any problems with Tufts from a supervisory perspective and he described an incident when Tufts became upset when a juvenile spit on him. Everett said, "I get it. He was spit on. Anyone would be upset about that, but I was just concerned that he would use excessive force on the juvenile. I was like, 'easy Tufts, easy, easy."' At that point, Everett monitored the situation, and the juvenile was taken into custody without incident Everett stated that his concerns in that incident were the force continuum, escalating force, and de-escalating force when necessary. Everett said other incidents were addressed by Sergeant Osattin and were documented in an email dated October 1 st11, 2017. 1

Everett was asked if, as far as he knew, Tufts ever vandalized any property or left disparaging remarks or symbols before this Incident, and he responded, "No." Everett was further asked if any Department member has made disparaging remarks, drawings, or hate symbols. He responded, "No, I've never seen anyone draw anything like that" and went on to say that it surprised him that Tufts would choose that symbol. Everett was asked if Tufts or any other member of the Department made disparaging remarks about a person's age, race, color, religious creed, national origin, ancestry, sex, gender identity, disability or handicap, mental illness, or sexual orientation, and he responded, "No."

When asked ifhe could describe the Department's culture, specifically how employees treat one another, Everett responded that there will always be some teasing and a lot of camaraderie. He felt there are cliques within the organization and said people are respectful to one another.

Everett was asked if in retrospect would he have done anything differently. He answered that he would have immediately reported the Incident to the Captain. During the interview, Everett ex.pressed concern about how everything has played out, stating that he followed what he thought was the best course of action at the time, respecting the v;.rishes of Dimare, who was the victim.

Everett was given a hypothetical scenario involving two private citizens with the same fact pattern as the Incident and asked what action(s) he would have taken if the victim did not want to pursue charges. Everett responded, "At thai point, we'd still document it, obviously, but essentially maybe they would try to figure it out between them in terms of a money exchange, that person might pay for damages ... " When asked ifhe thought Tufts received preferential treatment, he responded by saying, "I wouldn't say preferential treatment."

1 Attorney Sharpiro sent two emails, one dated one dated April 3rd, 2017 and the other October 18th, 2017.

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Rules and Regulations The following rules and regulations were discussed with Everett during his interview:

Disparaging Remarks 7.2 Everett was asked what his interpretation is of the word "speak" in this rule. He stated, "to say something directly to another party."

Criminal Conduct 11.11 Everett was asked if, given what he knew of the Incident, Tufts violated this rule and regulation. Everett responded by saying, "it depends on-- yes, there was damage done to the vehicle ... I guess it would come down to the intent."

Report of Rule Violations 13.5 When asked about this rule, Everett could not say that he was familiar with it, and said, "perhaps it's common sense, and it does not need to be known that it's a rule" He was then asked specificaUy that if it was his understanding that any rule violation that an officer becomes aware of would have to be reported? After a discussion with Everett over this section, he said "Yes, the Incident was informally reported to me, and a report should have been filed."

Interview of Sergeant Eric Osattin

Sergeant Osattin has been with the Department for about 15 years. He began his career as a dispatcher and soon after that, was appointed a reserve intermittent officer. In 2008, he was appointed a full-time police officer and attended the Police Academy. He was promoted to the rank of sergeant in 2014, and has been assigned since that time, to split shifts between the PM and midnight shifts as a patrol supervisor or shift commander. Osattin has some ancillary responsibilities related to managing detail assignments and IT infrastructure.

Osattin has supervised Officer Tufts and Officer Dimare over the last few years. His opinion of Tufts' job performance ranged from acceptable to satisfactory or better. He said Tufts

· · needed some coaching early on, saying "there were issues with Officer Tufts from the beginning." Osattin attempted to address those issues on many occasions with his su ervisors and with Tufts directly.

Osattin set clear expectations and boundaries with Tufts and said he did follow any orders that were given to him.

Osattin had a concern "about what I would have thought was his overall attitude at times." In Osattin's opinion, Tufts had a different understanding of the job and what

his roles were in that job. Osattin believed that Tufts seemed more focused on the action side of a very diverse job, stating that Tutls had "higher interest ••••II force than what I would say is appropriate for someone on the job." He remembered having concerns about Tufts' behavior during an in-service training when Tufts took another officer "to the ground hard, very hard, and nearly missed striking his head on the table" during a drill. Osattin also recalled Tufts going after the defensive tactics instructor with what he described as "an uncalled-for chokehold." Osattin felt that Tufts actions were counter to what they were being trained to do. Osattin addressed this immediately through a shift report to the Captain and the Chief. He also stated that there were two other concerning incidents involving Tufts, one

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of which was descdbed as a potential excessive force issue with a juvenile. Osattin was asked to forward any documents or emails regarding these incidents through hfa Union Attorney.2

Osattin was not involved with Tufts or Dimare outside of work in a social capacity.

Osattin was asked what his opinion is of Dimare's work product. He responded, "Dimare is a model police officer. I would quite possibly say he is the best patrol officer in our department based on an overall level, both his ambition, hls understanding of the job, his mindset, his personality."

Osattin relayed his understanding of what happened to Dimare' s car as follows: "my knowledge of this came probably about the time it became public to the rest of the department or maybe slightly before. It's probably no more informative than what has been public. I know they had some interaction, I believe late in the evening or towards the end of a shift. What sounds like as a joke or in some sort of jest, Officer Dimare ended up placing a can under Officer Tufts' windshield of his personal vehicle in what I always understood to be non-nefarious and generally in jest. .. l don't know what Officer Tufts' state of mind was, if he was angered by it or what, but he then took the can and used it to draw a swastika on the hood of Officer Dimares' car. After l found out about it, I did eventually see the swastika on the vehicle on hls hood as it was still there. In my initial understanding of when it happened, I was led to believe that it actually happened in the wintertime and that he had done it in the snow. I realized that it had gone through and scratched the metal of the car."

Osattin learned about the Incident in about November 2020, through Lieutenant Everett.

Osattin did voice his concerns with numerous anti-Semitic incidents in the Town over the years and feels that anti-Semitism has been prevalent in the Town and to some degree in the Department. He docs not believe there is an inherent problem with racism or anti-Semitism in the Department, "but clearly after this, it does exist." Osattin expressed frustration that "the Incident came up with someone who myself and another member of the senior staff had voiced issue with in job performance."

Osattin was asked if he thought this was a hate crime, and he stated, "There are two different definitions or multiple different definitions of what a hate crime is. In terms of the current legal theory and legal definition, where Officer Dimare is not Jewish, and unless you can point to something directly that Officer Tufts did as a symbol of Jew-hatred, specifically in retaliation or direct intent towards acknowledging some level of hatred towards the Jew, maybe it may be his superior, without that, then under the eyes of the law, it doesn't qualify as a hate crime. I believe under the current International Holocaust Remembrance definition of anti-Semitism, it still would qualify."

Osattin stated during his interview that "l have to be able to temper both my frustrations with what has happened in the past with these incidents and this specific Incident and how it relates to the overall atmosphere of our Department, and the conduct within, and the

2 Attorney Sharpiro forwarded two emails, one dated April 3rd, 2017 and the other October 18'\ 2017

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management within. As I said, I believe there's probably anti-Semitism in our Department. This might not be the only incident of that, but that doesn't mean we are an anti-Semitic department." He was asked to elaborate on that and stated, "I don't think there's a subculture, I think there are people who inherently have their own personal biases or have their ovvn upbringing, and it's hard to say. There have been at times where I've heard things that I had felt were wrong or were bigoted. Whether people thought things were just jokes, they're not. I have specifically had people tell me after an incident in certain neighborhoods, or involving Jews in public, I've had people directly tell me, 'It was one ofyour people'." Osattin believes this behavior "hits a line, a threshold where we are not identifying someone based on their conduct, but on their unrelated personal belief structure or ethnicity. That's been :frustrating me. That's why I say that I believe it exists; it doesn't interfere with my ability to do my job or my conduct on the job." Osattin did take this Incident personally and explained that just using that symbol, in his opinion, makes it a hate incident. He did say he is not sure if Tufts recognizes the symbolism and its imprntance and said, "It doesn't seem possible for me to rationalize ... someone who has made it this far, and could get into this career field, and the training that we do receive, should be enough to recognize its importance."

Osattin also expressed frustration with how this investigation was commissioned or at least with how it was officially announced. He spoke about a letter sent by a group of citizens explicitly outlining their wishes for this investigation. He raised concerns that the issue under investigation was being "parlayed" to address other problems. Osattin stated, "my response is I think overall, the community isn't an overall racially diverse community, and it's not necessarily by our choice, our design that we don't have that. We have had it. We've had in the past, have had people of color and other ethnic descent." Osattin stated that he did not think the Department is averse to diversity, but said "we get what we get" (referring to the Civil Service system).

Osattin spoke about police training, saying he firmly believes that police need more education and not just training. His articulated why education was important, stating "which is the idea of really understanding and teaching certainly the police officers, ... educat111g in the history of these issues and allowing people to really discuss, fairly discuss, and openly discuss their feelings on it. Viewing it and openly discussing their feelings through critical analysis and reasoning. Where people really can learn and understand it, and through that, that's how you develop people who are unbiased or apply biases appropriately and recognize what an appropriate bias is, is 1 have a pledge to crime, not against any individual purpose. I'm looking at this person through the lens of the act or what I see from the evidence, not their background. That's gained from education, not through training."

Osattin was asked if he had ever heard Tufts talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or if he sexually harassed anyone. Osattin stated, "No." He was then asked if he has ever heard anyone else in the Department make disparaging remarks against any of the categories that were previously mentioned, and he said, "Yes." When asked if he was comf01table sharing that information, he stated, "without remembering

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specific involvements or information ... I say this is, 1 won't say commonplace, but as 1 said, where certain biases exist, 1 believe they exist everywhere and are not systemic. We are no different from any other organization or any other group where certain things do come up, and you do hear about them. To that end, yes. I can leave it at that." Osattin was then asked if he has ever heard anyone in the Department use anti~Semitic comments or remarks. He answered by saying, "directly anti-Semitic, no, but as l said before, the specific comment that has been made to me, yes, that was troubling. I think it's emblematic of a larger issue with that person. They think it's a joke; it's not a joke."

\Vhen asked if he wanted to add anything about the Department's culture, Osattin responded that he's learning that "cultures within police departments are quite dynamic and interesting throughout all of them, and ours is no different. There are factions, there are elements of dysfunctionality often, and it can be quite frustrating. There are some terrific people in our Department. Just outstanding, superb people and people whom I consider very close friends, and people whom I have among the utmost respect of anyone I have ever met in my life. There are people whom I am just utterly disgusted at their character and their ability to do this job .... "

Regardless of the issues Osattin has had with people inside the Depruiment, he believes the Department and its officers strive to serve the Town well and respond appropriately to the residents' concerns.

Osattin was frustrated that this Incident took so long to come out.

Rules and Regulations The following rules and regulations were discussed with Osattin during his interview:

Disparaging Remarks 7.2 Osatlin was asked what his interpretation of the word "speak" was in this rule. After a brief discussion, Osartin stated, "l think it's easily construed not just to mean speak, but actions or displays."

Criminal Conduct 11.11 Ossatin was asked given what he knew of the Incident if he thinks Tufts violated this rule. Osattin stated, "In one sense, yes. In another sense, it's also I think the victim's interest is still applicable." Osattin strongly felt that violation of this rule would be dictated by whether or not the Department had a willing victim to go forward with the charges.

Report of Rule Violations 13.5 When asked about this rule, Osattin stated he felt it went back to the previous rule (whether the victim wanted to go forward). He also pointed out that historically there have been many other rules that have been loosely enforced, or gravely violated without consequence. Osattin went on to say "you can hammer anyone at any given time on a gazillion of these (policies)", and was concerned about what he feels is a laissez-faire attitude at the top of the Department.

Interview of Sergeant Jason Conrad

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Sergeant Conrad was hired as an intermittent police officer in March 1999, imd served two years before entering the Police Academy in April 2001. Conrad served on the North Shore Drug Task Force as a patrol officer during the first half of his career. ln August of 2007, he was promoted to the rank of Sergeant and currently serves on the midnight shift. As a Sergeant, Comad has ancillary duties regarding the breathalyzer, coordinating the crossing guards, and serving as a Community Impact Officer. He is also trained in the subject matter of graffiti and has coordinated with other agencies in the investigation of graffiti in the Town.

Conrad supervises patrol officers Chris Adkerson, Chris Gallo, Dan Gagnon, Jake Morris, Neil Comeau, and Tyler Bates. In 2019, Comad supervised Officer Tufts on at least two shifts.

Conrad did not have a personal relationship with Tufts, and described him as "quiet, definitely reserved", Conrad reprimanded Tufts on one occasion y email sent to Captain Freeman. Any ot er issues were described as minor and dealt with on the shift level.

Conrad described his relationship with Officer Dimare as good and felt Dimare was a good officer.

Conrad has never socialized off ~duty with either Tufts or Dimare.

Conrad relayed his understanding of what happened to Dimare's car as follows: "what I remember from 2019 around the time of the Incident, I don't know which shift it was, I don't know what time of day it was ... I do remember coming out from the station towards the parking lot where our vehicles are parked. Officer Dimare was speaking to I believe it was Officer Michaud. I'm pretty positive it was Officer Michaud. l'm not sure if there was anybody else there talking to them. I don't believe so. I had just walked into a conversation. I'd said, 'what's up,' or something, and I think it was Officer DiMare who said that Tufts scratched his car. He was screwing around or messing around and scratched his car. I asked him something along the lines of, well, will it buff out? I never went over there; I never checked. He goes, I don't know, we'll see, and they just continued with their conversation."

Conrad stated that he never really engaged with Dimare and Michaud in conversation. When he heard of the Incident during their brief conversation in July 2019, he felt that Tufts was screwing around and inadvertently scratched Dimare's car.

Asked when it came up again, Conrad answered when the investigation started - the patrol officers talked about it in roll call, and he walked into a conversation about a swastika. He asked, "what about a swastika?'' and either Dimare or Comeau said, "Yes, when Tufts scratched the swastika in Dimare's car." Conrad had no idea what they were talking about until Dimare said "it was like two years ago", and he realized it was the same incident he had heard about in July 2019.

Conrad was asked if he told Dimare to report the Incident, and he answered, "No, this was already after an investigation was already going on." Conrad was asked ifhe found this information out as a result of the continuing Gallo investigation, and he responded, ''I believe

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when Gallo came back or was about to come back, that's when it was the news around the station that the news has been dropped about the swastika and Tufts and Dimare. It was right around that period ... "

Conrad was asked if Gallo had said anything to him about the swastika, and he responded, "No," and that they had not talked about it at all. He has not seen any photographs of the damage or the damage in person.

Conrad has been trained regarding the subject matter of graffiti. He has coordinated efforts with other agencies to investigate graffiti incidents. He was asked if Tufts could be connected to any other graffiti in the Tovvn and Conrad said, "No, there's nothing like that."

Conrad was asked· if he ever heard Tufts or any other member of the Marblehead Police Department talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or sexually harass anyone. Conrad responded, "No." When asked ifhe heard anyone make any anti-Semitic remarks in the Department, including Officer Tufts, he responded, "anti-Semitic, no. There's nothing along those lines."

Conrad was asked to describe the Depa1tment's culture, and he stated that he was connected to many police departments and believes Marblehead is a great Department. He continued by saying, "I think, by and large, we have a pretty standup respectable department." He acknowledged that everybody has ''drama" with one person or another, but they all get along by in large.

Conrad was asked if it was the Department's custom and practice not to go forward with charges if the victim did not want to go forward with charges. He said the Department would still press charges in the case of a domestic. Given a hypothetical vandalism incident between two strangers, and asked if the Department would press charges if the victim chose not to, Conrad responded, "that's a case-by~case situation, but that would be on my shift. I can only speak to my shift. There would at least be a paper on it. It would be a log entry report."

Conrad was asked if he saw anything posted on social media by a Marblehead Police Officer or if he saw any Marblehead Police Officer comment on social media about this Incident. He responded, "No, in light of the cu11'ent climate, I tend to avoid looking at any of that."

Rules and Regulations The following rules and regulations were discussed with Conrad during his interview:

Disparaging Remarks 7.2 Asked how he interprets the word "speak" in this rule, Conrad stated, "At first glance, you'd say verbally. I think that may probably come towards other things or whatever; whether it be a hand symbol or something, I think that."

Criminal Conduct 11.11 Conrad was asked given what he knew of the Incident if he thinks Tufts violated this rule. He stated, "From what I know, the act in which he did, obviously it's

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a felony." Conrad felt that regardless of what Tufts scratched into the car, he purposely defaced Dimare' s car.

Report of Rule Violations 13.5 When asked if anyone who knew about the Incident had a duty to report it, Conrad stated, "the exact wording I probably wasn't aware (of). Now that I have it in front of me, I can see it."

Interview of Officer Nicholas Fratini

Officer Fratini was appointed to the Department in January of 2017, and graduated from the Police Academy in or about November 2017. He holds a bachelor's degree in Criminal Justice from Eastern Kentucky University. Fratini is currently assigned to the 4 pm to 12 am shift, commonly referred to as the PM shift. Fratin.i is supervised his first two nights by Lieutenant Ostrovitz, and the second two nights by Lieutenant Everett and Sergeant Osattin.

Fratini described his relationship with Officer Tufts as strictly professional, as Tufts "barely talked." He never had any problems with Tufts.

He described his relationship with Officer Dimare as friendly, and added that they graduated high school together, but they do not socialize outside of work.

Fratini relayed his understanding of what happened to Dimare's car as follows: "Dimare had put a soda can on Officer Tufts' car, and Officer Tufts had taken a piece of that soda can and tried to draw something in the pollen on Officer Dimare's car." When asked ifhe knew what that something was, he responded, "the swastika." Fratini believes he heard of the Incident in the smnmer of 2019, via what he referred to as 4'scuttlebutt around the station, gossip.'' When asked if anyone in the Department has spoken to him about this Incident, he said not in a very long time and went on to say, "I had completely forgotten about it. Then when it hit the news, I was working that night, and I got text messages from police officers at other departments, friends, family."

Fratini said he did not see the Incident happen; he never had pictures of the damage, nor did he see any pictures of the damage. When asked ifhe knew why Tufts would use the swastika, he stated, "l don't have an answer to that." He also said he never heard or knew Tufts to use the symbol of a swastika or damage anyone else's property prior to this Incident.

When asked why he did not report the Incident to a supervisor, Frantini stated, "At the time I had heard about it, other people had known about it. I thought if Officer Dimare wanted to report it, it was on him to do it being the victim and knov-.1ing who did it"

Fratini was asked ifhe ever heard Tufts or any other Marblehead Police Officer talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or sexually harass anyone. Fratini responded, "No." Asked if he heard anyone make any anti-Semitic remarks in the Marblehead Police Department, including Tufts, he responded, "No."

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Fratini described the atmosphere or culture inside the Department as respectful. He also described the culture between the Department and the public as respectful.

Fratini stated the only other person be spoke to about this Incident was his girlfriend. Fratini was asked if he saw anything posted on social media by a Marblehead Police Officer or if he saw any Marblehead Police Officer comment on social media about this Incident. He responded, "No."

Rules and Regulations The following rules and regulations were discussed with Fratini during his interview:

Disparaging Remarks 7.2 Fratini was asked how he interprets the word "speak" in this rule. He indicated that he would interpret it to include any words spoken or written, or any symbols used. He added; "if you are not supposed to say it, why would you write it?"

Crin1inal Conduct 11.11 Fratini stated that in the act of damaging Dimare's car, Tufts committed vandalism.

Report of Rule Violations 13.5 When asked if anyone who knew about the Incident had a duty to report it, Fratini stated, "based on the law, yes."

Interview of Sergeant Sean Brady

Sergeant Brady was hired as a permanent reserve intermittent officer in August of 2001, became a dispatcher in July of 2004, and was hired as a full-time officer in 2005. He attended the Reading Police Academy from December 2005, until May of 2006. Brady was appointed as a detective in August of 2007, and has been assigned to that unit since. He was promoted to Sergeant in 2011.

Brady had supervised Officer Tufts on occasion and never had any problems with Tufts, stating "He hardly worked overtime, so the shifts I supervised .. were midnight shifts, which was his regular shift. I never had any issues, but Marblehead on midnights .. .It's pretty quiet, but I never had an issue with him." Brady had supervised Dimare "a bunch." When asked for his supervisory insight of Dimare, Brady stated "he's an excellent police officer. He's young; he's aggressive but not crazy. He makes a lot of car stops; he does his job; anything you ask the kid to do, he'll do it. I've never had a problem with him."

Brady was also asked if he had ever socialized or had any personal relationships with either officer. He responded, "No" but said he knew Tufts' father, who is a private contractor and had performed worked for Brady in 2007.

Brady relayed his understanding of what happened to Dimare's car as follows: "1 thought it was like July 1st of 2019 when I looked at the schedules. Sometime after that, I had heard that something happened where he scratched his car. I don't remember hearing that it was a swastika at that time ... I forget who I heard it from or whether it was in roll call or someone was talking about it. I didn't pay much attention to it. Then recently, probably back in ...

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December or late November, I had heard that he had drawn a swastika on the car. I don't think it was intentional. It was in the pollen, but it left scratches on it. Now, it was being brought up by Officer Gallo." Brady said he was later told of the Incident by Lieutenant Lunt. Lunt told Brady to have Dimare see him (Lunt) about it; Brady relayed the message to Dimare and saw Dimare head into Lunt's office. Brady has no knowledge of what transpired after that, but believes the Incident was reported to the Captain Freeman.

Brady stated he did not pay attention to what he heard in 2019, because "you hear a lot of things in the police station and most times, it is not true or it's an exaggeration''; he did not hear about the swastika until Lieutenant Lunt told him so in November of 2020.

Brady stated that he did not talk to Dimar.e about the Incident until recently, after Lunt had told him about the swastika. When he spoke to Dimare in the parking Jot, Brady went over to his car and could see there were scratches on it. Brady stated, "You couldn't make out what it was. I know he tried to buff it out or get it off, and I don't know, he didn't have complete success \vith it."

Brady stated he did not have any photographs, nor did he see any photographs of the damage.

Asked why he did not report the Incident to anyone, Brady said, "When I heard about it, it was after, and no, I didn't report it .. .I didn't poke into someone's business to find out hey, did they report this to the captain?" By the time Brady found out what actually took place, a higher-ranking officer, Lieutenant Lunt, knew of the situation.

Brady was asked if he ever heard Tufts or any other Department member speak negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mentai illness, or sexual orientation, or sexually harass anyone. Brady responded, "No." Asked ifhe heard anyone make any anti-Semitic remarks in the Marblehead Police Department, including Tufts, he responded, "No."

Brady was asked to explain how this Incident has affected him and stated that he was raised Catholic but he has Jewish people in his family and went on to say . He was a Marine. He's not very talkative, so to get the norm is difficult. I thought he was just scre¥.ring around .... I heard Dimare put a can on his car or something. It was just a dumb joke that he did." Brady went on to say he does not know why Tufts did what he did, and he doesn't think that Tufts was anti-Semitic, stating, "I didn't think that he hated Jewish people." Brady recognized the swastika as a hate symbol, but he did not believe this to be a hate incident, and fm1her replied that it is hard to explain that to the public.

Brady conducted Tufts' background check when he was hired and did not find anything hateful in his background including his Facebook page at that time.

Brady described the culture of the Department as "good ... a good bunch of guys." He said he never had any problems in the Department other than minor issues like an officer getting a detail over another officer. He described the way the Police Department treats the public as "very good", stating, "Our chief expects us to ... follow through with stuff on investigations and help people, we do it."

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Brady was asked if the Department has ever investigated anti-Semitic symbols before, and he said they have. He described some incidents of anti-Semitism, anti-LGBTQ+, and vandalism of a house of worship. The Department had investigated and charged people when they could. Brady also mentioned instances when the perpetrators are kids and the Department has opted to educate them instead of pressing criminal charges.

When asked ifhe felt that the Department handled those incidents appropriately, he stated, "Yes, I think so. They've been investigated. A lot of times, we were not able to charge somebody, but when we have identified someone, we have the probable cause, we take out the charges, and it goes through the court system."

In response to a question as to whether Tufts received preferential treatment compared to a .regular citizen who committed similar acts of vandalism, Brady responded, "No." He went on to say that if Tufts had not resigned, he would have been terminated. He felt Tufts was treated more harshly than if he was not a law enforcement officer. Brady stated that incidents are evaluated on a case-by-case basis. In many cases, he said if the victim did not want to go forward, the Department would not press charges; and in other cases, the Department will go forward without a willing victim, and those cases usually get dismissed in court.

Brady stated he had not seen anything posted or commented on social media by a Marblehead Police Officer.

Brady stated that he has attended many ADL (Anti-Defamation League) functions with the Chief, and has known him for over 20 years, and said "some people want to call him anti­Semitic. .. I absolutely kx1ow that is not true." Brady said he knows that at least one officer inside the Department is critical of how things have been handled and stated, "I know as soon as the Chief found out about this, I was in his office, and he got the report from Dimare. Tufts was immediately put out, and that he talked to counsel. They were going to move forward with tennination. I don't know how much more serious we should take it."

Rules and Regulations The following rules and regulations were discussed with Brady during his interview:

Disparaging Remarks 7.2 Brady was asked what his interpretation was of the word "speak" in this rule. He stated, "Any way you communicated would be speak" whether it was verbal or written.

Criminal Conduct 11.11 When reviewing this rule, Brady raised a question about Tufts' intent to destroy the car maliciously. It was clarified that the rule violation did not have the same standard of proof as a crime and was asked if Tufts would have violated this rule by his action regardless of intent. Brady stated, "Yes."

Report of Rule Violations 13.5 Asked if anyone who knew about this Incident would have had a duty to report it, Brady stated, "Yes, it should have been reported and then moved up the chain of command and ultimately, to the chief to decide ... "

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Interview of Lieutenant Jonathan Lunt

Lieutenant Lunt has been with the Department 24 years. Lunt stated has probably held every position in the Department except for civilian dispatcher. He has been a patrol officer, mountain bike officer, assigned to the motorcyde unit, detective, sergeant, and lieutenant. Lunt is currently assigned as a shift commander, working two day-shifts and two pm-shifts. He supervises Officers McDonald, Roads, and Clark on the day shift; and Officers Peralta, Michaud, and Dimare on his pm shift.

Lunt described his work relationship with Tufts by saying he did not have one as Tufts has never been assigned to Lunt' s rotation and they have only occasionally worked together on overtime. When working with Tufts on overtime, Lunt said he was quiet

... I don't think I ever had a casual conversation with him." Lunt described an incident that Tufts had on a call. He said the call was a simple parking complaint, and Tufts made comments about the caller needing to manicure her driveway better because it wasn't clear that it was a driveway

Lunt said that he once felt compelled over the summer of 2020, as the senior lieutenant to inform the C tain and the Chief of his concerns about Tufts, who he described at the time as

isheveled." He met with the Captain and was directed up the chain of command to the Chief. According to Lunt, the Chief said, "l haven't seen anything with him; I can't just have him take an eval or something like that." Lunt responded, "I'm just making you aware; something's wrong with this kid."

When asked about his relationship with and an opinion of Officer Dimare, Lunt stated, "He works my 4-to~ 12 shift. I would say ... of our newer set of officers, he's probably one of the best. He's very proactive. He's one of the ones if you need something done, you go to him, and there are no questions; he does it He's an excellent officer. I have nothing bad to say about him whatsoever." Lunt further replied that he did not have a personal or social relationship with Dimare.

Lunt relayed his understanding of what happened to Dimare' s car as follows: "I heard Officer Tufts carved a swastika in the hood of his jeep." He went on to say that he learned of the Incident in "October-ish 2020" when officers started talking about it in the station. Lunt spoke to Sergeant Brady about it, and Brady said something to the effect of "Dimare' s out in the guard room. Do you want me to have him come in?" Lunt said "Yes," Brady sent Dimare to his office, where Lunt asked Dimare if what he was hearing around the station was true. Dimare confirmed it, and Lunt told him to "get out in front of this and go see the Captain." Lunt said that he did not report the Incident to anyone because he directed Dimare to see Captain Freeman, and was aware that Dimare did.

Asked why he thought Tufts would use that symbol, Lunt responded, "l couldn't even speculate. I can't fathom anybody would even do that and think that any part of that would be okay." Lunt did not think it was a hate incident, saying, "Dimare is not Jewish at all, so I would not categorize it as a hate crime. It's obviously a crime, but I don't think it was intended to be a hate crime."

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Asked if he would consider the swastika a hate symbol, Lunt responded, "Absolutely say it's a hate symbol. My wife's Jewish. I celebrate all the Jewish holidays with her and her family, so I'm personally offended by it. I can't imagine that, Jewish or not, that people wouldn't be offended by that. I can't think of a worse thing to drnw or carve into anybody's vehicle ... "

Lunt was not sure if Tufts was in unifom1 at the time of the Incident.

When asked about the Department's culture, Lunt stated, "You mean as far as racists or bigots or anything like that? I don't see that whatsoever here." When asked if anyone ever said anything anti-Semitic to him or anyone else, Lunt stated, "No." He went on to say, "For the most part; everybody gets along. On occasion, like with any other job, people can have a beef here or there or an argument or something like that, but I'd say overall, everybody gets along very well."

Lunt stated he does not have, nor has ever seen any photographs of the damage; however, he did see the damage firsthand in or about October of 2020. Lunt stated that at first glance he couldn't see it, but as he examined it more closely, he could see a faint carving of a swastika.

Lunt was asked if he ever heard Tufts talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, sexual orientation, or sexually harass anyone, and responded, "No."

Lunt was asked if he recalled any incidents in Marblehead involving anti-Semitic marks. Lunt said there had been and described an incident wherein a gentleman defaced Temple Emanu-El with swastika signs. There had also been reported incidents of swastikas drawn in the bathrooms in one or two schools. Lunt believed the only incident in which someone was charged was the Temple Emanu-El incident, but said the Departmeni did everything they could have done to identify a perpetrator(s) in the other cases.

Lunt was unaware if any other supervisor knew about the Incident before it became public knowledge. He stated that he did not believe Tufts received preferential treatment during this investigation, saying, "Just because a crime is committed, if the victim doesn't want to press charges, they just want it documented, that happens. The only time we would have to take out a charge would be a domestic .... "

Lunt was asked if Officer Gallo ever mentioned anything to him about the Incident, and he responded, "Yes, Officer Gallo and I have talked about it. I've known Chris my entire life ... he shared information with me about the incident that he was involved in, and Officer Tufts was involved in. We discussed his being out of work, his administrative leave, and this had come up in conversation with him. Yes." Lunt did not recall the specific details of the conversation and said that to the best of his memory it took place in October or November, right around the same time Lunt found out about the Incident and spoke to Dimare.

Lunt believed that Gallo would bring the swastika Incident to the Chief in response to Tufts "trying to throw Officer Gallo under the bus for something Officer Tufts did."

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Rules and Regulations Lunt stated that he has not received any formal training on the Department's policies and procedures. The following rules and regulations were discussed with Lunt during his interview:

Disparaging Remarks7.2 Lunt was asked what his interpretation was of the word "speak" in this rule, and he stated, "Verbal or written."

Criminal Conduct 11.11 Lunt was asked if he thinks Officer Tufts' conduct during this Incident violated this rule, and he responded, "Absolutely."

Report of Rule Violations 13.5 When asked if he believes after reading this rule that the officers who were aware of the Incident, and didn't report up the chain of command, violated this rule, Lunt stated, "I would start by saying that until recently, I wasn't aware of this rule. When I talked to the Chief, I asked him- I think I said previously that he didn't tell me what rule was being broken. I went and found this myself. Until, I don't know, a couple of weeks ago, I wasn't aware of this, but reading it, I would say that, if that's the case, yes. I would have to say including myself ... "

Interview of Lieutenant David Ostrovitz

Lieutenant Ostrovitz began his career in policing with the Northeastern University Depaiiment of Public Safety and was hired in 1997, by the Department as a part-time permanent intermittent police officer. He was hired full-time in 1999, and attended the Police Academy from May to October of that year. Ostrovitz was promoted to Lieutenant in 2014. He bas been involved in Community Police and Crime Prevention programs throughout his career; in 2011, he \Vas assigned additional duties as the elder service liaison and accreditation manager.

The Department becan1e certified by the Massachuset1s Police Accreditation Commission (Ml3AC) in 2018, and was fully accredited by MPAC in 2019.

Ostrovitz works as a shift supervisor on two day shifts and two pm shifts. He currently supervises Officers Mastrangelo, Morley, Clark, and McDonald on the day shift; and Peters, Peralta, Fratini, and Defelice on the PM shift.

Ostrovitz never supervised Officer Tufts other than when they were on overtime together. He described Tufts as a very quiet person who did not talk a lot, saying, "I just assumed it was mostly because we have a substantial age difference. He was very, very quiet. As far as his police work went, I don't recall any outstanding problems in the two times that we worked together." Asked about Officer Dimare, Ostrovitz stated that he had a similar work relationship with him as he has had with Tufts, and went on to say, "He's got a great work ethic. He's definitely, I would say, very enthusiastic about doing his job, doing it professionally. He's very motivated to go out and do a good job. He's very polite, he's very respectful, and I can't say that I've ever had any issues with him." Ostrovitz does not socialize with either officer.

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Ostrovitz relayed his understanding of what happened to Dimare' s car as follows: "what J've heard is that Officer Tufts scratched or carved a swastika into I think the hood of his vehicle." He became aware of the Incident after receiving an email from the Chief that placed Tufts on administrative leave (it has been the Department's practice to send an email to the supervisors when an employee is placed on leave). After Tufts was placed on leave, the Incident became a topic of conversation within the Department. Ostrovitz stated that he is "on the lower end of the gossip train", and has not heard directly from Tufts, Dimare, or any other officers what took place during the Incident.

When asked why Tufts would do something like this, Ostrovitz stated, "I have no idea. I've never knov,;n him to be somebody who would do something like that I don't know what his knowledge is of ... whatthat represents." Ostrovitz said that the symbol that was drawn on Dimare's car is a symbol of anti-Semitism. Asked how this Incident has affected him and his family, he stated, "It bothers me that somebody would do that, but I don't feel like there is this overwhelming problem or any kind of a problem with anti-Semitism. I don't even know that Officer Tufts even knows what that represents. I try and not really give the benefit of the doubtbut not rule out the fact that someone like him is too young. Does he even know what it means? Where has he seen that? What's his knowledge of that? Where did he pick that up?" When asked if he thought this was a hate incident, he responded "you could not rule it out."

Ostrovitz was asked if he was aware of other anti-Semitic incidents in Marblehead, and he acknowledged that there had been some involving vandalism. When asked how he felt the investigations were handled, he responded, "1 have no questions about or any concerns about any ii1vestigation that weive been in." Ostrovitz feels the matters have been taken seriously and thoroughly investigated. He described the Department's relationship with the Jewish institutions in town as "very good."

Ostrovitz described the Department's culture as fun, competitive, and sometimes very competitive but respectful. He said that everyone comes together when "the shit hits the fan" and "those are the things that I hang my hat on, and that's why I do this job."

Ostrovitz stated he has never heard any anti-Semitic remarks inside the Department.

Ostrovitz said he did not report the Incident because it was already being handled when he found out about it. When asked if he knew of any other supervisor who knew about the Incident prior to it becoming public knowledge, Ostrovitz stated that he was not 100% sure, but believed Lt. Everett might have known.

Ostrovitz stated he never heard of Tufts vandalizing anything before this Incident. Asked if he ever heard Tufts talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or sexually harass anyone, Ostrovitz responded, "no."

· When asked if any other member of the Department had made any disparaging remarks against any of the class of individuals referenced by this Investigator, Ostrovitz stated, "l 'm

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sure, over the course time, there has been that stuff, a bell We've had our share colorful people and made comments ... no question about it that those people have come and gone over time, but I've never really seen it manifest itself in how it affects their job." Ostrovitz could not provide specific details and said it had not happened in the last several years.

When asked if he felt Tufts received preferential treatment in this situation, Ostrovitz stated, "I've thought about this a little bit. I think when it comes to the public, that always seems to be what we'll do is what the victim want[ s] to do ... Sometimes, when it comes to domestic violence, we know that we can't always let their feelings guide what we do. For most other crimes, if two people have come together and something has happened, and then the victim has stood with it, we let the victim guide us on. When we ·write a report, we always tell them, hey, and we can come back to this at any time and revisit it and let them have a chance. Sometimes they come back; sometimes they don't. In hearing what I've heard which I have not been privy to any of the official investigation or anything like that, I can see how it went that way, that it was left to be settled amongst them."

It was made dear during the interview that Ostrovitz may have had a different opinion if the victim was Jewish and the crime was a hate crime by statute; however, he felt that with a malicious destruction case, the victim's desire not to press charges would be taken into consideration.

Rules and Regulations The following rules and regulations were discussed with Ostrovitz during his interview:

Disparaging Remarks 7.2 Ostrovitz was asked what his interpretation was of the 'Nord

"speak" in this rule. He stated "verbally" and went on to say, "but I suppose you could expand it to actions or overt actions." As the accreditation manager, Ostrovitz feels that this rule could be more clearly stated.

Criminal Conduct 11.11 Ostrovitz was asked if Tufts violated this rule by his action, regardless of intent, and he stated, "Yes."

Report of Rule Violations 13.5 Ostrovitz was asked if the officers had a responsibility to report the Incident to their Officer in Charge. Ostrovitz stated, "It almost looks like this is really geared towards somebody ai the patrol level. You could definitely interpret it that way because I don't have an Officer in Charge. If it said immediate supervisor, then as a Lieutenant, I might be obligated under the rest of that language, but when it says, Officer in Charge, it really looks like it's directed towards the patrol reporting to their Officer in Charge."

Interview of Officer Daniel Gagnon

Officer Gagnon has been a Marblehead Police Officer for the past 10 years. He graduated from the MBT A Transit Police Academy and served for a time as the School Resource Officer (SRO). He is assigned to the midnight shift with Officers Gallo, Bates, Ackerson,

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Morris, and Comeau; two shifts are supervised by Sergeant Conrad, and two by Sergeant Osattin.

Gagnon worked two nights with Tufts for some time and felt they had a good working relationship. He stated, "Tim was a big military guy, that's all he talked about, he never brought up any feelings of hate towards any specific group."

Gagnon did not have a social relationship with Tufts. Gagnon described his relationship with Dimare as similar to that of Tufts - strictly professional.

Gagnon stated that he heard rumors of what happened to Dimare' s car but was unable to recall when. He said the Incident started to come to light in November or December of 2020. As the Union President, Gagnon had conversations with Union members involved in the Incident, and that was when he became aware that the damage to Dimare's car was a swastika.

Gagnon was asked for his opinion as to whether this was a hate Incident or Tufts meant this as a hate incident when he vandalized Dirnare's car. He stated, "Officer Dimare isn't Jewish, so if you look at it from a textbook version, it's not a hate crime because he didn't target a specific group. It's obvious it's vandalism, it's the destruction of property, it's a lot of things. I don't think his intent was hate. I think it was something stupid that he did, maybe to cause alann or something."

Gagnon has no pictures and has not seen any pictures of the damage to Di.mare's car. He was aware that Tufts made an offer to Dimare to pay for the damage he caused.

Gagnon was asked if Officer Gallo ever mentioned the Incident to him, and he responded, "Yes, in a Union capacity." He said that this conversation took place "probably a week before Tufts was put on admin leave."

Gagnon stated that he felt the Depatiment was a "pretty good place to work." Gagnon believes the culture is respectful towards the public and each other inside the Department.

Gagnon was asked if he ever heard Tufts or any other member of the Department talk negatively about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or sexually harass anyone. Gagnon responded, ''No." Asked if he heard anyone in the Department, including Tufts, make any hateful or anti-Semitic remarks, Gagnon stated, "No."

When asked if he felt Tufts received preferential treatment during this Incident, Gagnon stated, "No, discretion lays heavy on things." He said that if an incident like this happened outside of the Department, it would be documented, but if the victim did not want to go forward with charges, then charges would not necessarily be filed in court.

Gagnon stated he had not seen any Marblehead Police Officer post or comment on social media about this Incident. He fwther said that he had not been "privy" to any documents that anybody may have written.

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Rules and Regulations Attorney Shapiro asked Gagnon several questions relating to the distribution and training of the Department's Rules and Regulations. Gagnon described how the Deprutment distributed the Rules and Regulations in the past, and how they are currently being distributed through a document management database called PM/ AM. Gagnon said that no one had been trained on the specific rules that were discussed during the interview.

The following rules and regulations were discussed with Gagnon during his interview:

Dispa:raging Remarks 7.2 Gagnon was asked what his interpretation was of the word "speak" as it is used in this rule. He stated that in his position as a Union representative, it would mean "verbal."

Criminal Conduct 11.l l Asked if Tufts violated this rule by his action regardless of intent, Gagnon stated, "Yes."

Report of Rule Viofations 13.5 Gagnon was asked, after reading this rule, if the officers who were made aware of the Incident had a responsibility to report it to their Officer in Charge. He stated, "Based on this, yes, absolutely."

Intervie·w of Office:r Neil Comeau

Officer Comeau started his law enforcement career by sponsoring himself through the Lowell Police Academy. When he was in the Academy, he was hired by the Salem State Police Department in 2011. In 2014, he was hired by the Department and has been assigned to the patrol division, primarily on the midnight shift, since that time.

When Officer Tufts was first assigned to midnights, Comeau and Tufts worked the same group (all four shifts together) for about six months. Before Tufts left the Department, Comeau and Tufts regularly worked two shifts together. Comeau described their relationship as a professional one. He said that Tufts "really did not talk much, never hung out after work or anything like that," describing Tufts as quiet, saying he kept to himself.

Comeau described his relationship with Dimare as similar to his relationship with Tufts. Dimare and Comeau work different shifts and would only see each other in passing, and only rarely interacted socially.

Comeau stated that he was talking to one of the dispatchers, he guessed around the time Tufts was placed on leave in November of 2020, and Tufts' suspension came up in the conversation. Comeau asked the dispatcher if Tufts got suspended for the Incident with Gallo, and the dispatcher responded, "No, it's from when he drew a swastika on Dimare's car." Comeau responded, "He scratched his car again?" Comeau had heard rumors of this Incident but it was so long ago, he mistakenly thought that there were two separate incidents. The dispatcher corrected him, saying that the Incident happened in the summer of 2019. Comeau believed this conversation happened when Tufts was placed on leave in November of 2020.

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Comeau was asked if the dispatcher stated oec:an1e aware of the ,rn.,,u...,,,a or whom he heard about and he responded, "No. That's the way a lot of the stuff happens around the Department; things can trickle around, so you hear a lot of different rumors happen about this person or that person. You never really know what's 100%." Comeau was asked if he reported the Incident to anyone once he found out about the swastika, and he explained that he did not because, by the time he found out, Tufts had been already put on leave. Comeau did not report it when he originally heard the rumors because he didn't think it was significant and assumed that Dimare and Tufts would work it out. Comeau never viewed the damage, possessed or viewed photographs of the damage to Dimare's car.

Comeau was asked if he heard anyone in the Department make any hateful or anti-Semitic remarks, and he stated, "No." He was asked if he ever heard Tufts or any other member of the Department make disparaging remarks about anyone based on race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or sexually harass anyone. Comeau responded, "No."

Comeau described the culture of the Department by saying there are cliques, but his shift is "pretty tight and close with each other." Overall, Comeau felt that everyone is respectful to each other, and said, "I guess, an informal Department in the sense that you can feel comfortable talking to the captain or the lieutenant before going up the chain ... " He also stated that he felt the culture of the Department towards the public was respectful.

Comeau did not feel Tufts received preferential treatment, and believes the matter was "handled how it should've been handled once the right people were informed about it, I think they took the appropriate action." When asked if this Incident would have been handled differently had it happened between two Marblehead citizens, Comeau said, "You know that so many different events can happen in so many different ways. You can have a victim call and say, 'I know this person did this to my car, they vandalized my car, but I don't want to see anything done. I want to maybe have them just take care of the ind dent, take care of whatever they did, and we'll just squash it there but document it. I think that can happen. It all depends on the nature of the caH."

Comeau did not feel this was a hate incident because Tufts and Dimare went to the Academy together, though he did not know if the two had any kind of personal relationship outside of work. Comeau stated that he "could not speak for Tufts" but believed "it was an odd symbol to draw or to joke around .... " He feels the swastika is a hateful symbol, and that it's "one of those symbols that when you draw something like that, you know that you're trying to target something or you're trying to inflict some sort of a feeling upon that person, especially if they're Jevvish. A person of the Jewish race is going to interpret that signal a lot differently than someone that's not Jewish."

Corneau has investigated at least one anti-Semitic incident at the high school; he did the initial call and report and passed it along to the Detective Unit. Comeau feels that call was handled appropriately.

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Comeau was not aware of any Marblehead Police Officer.

on either posted or commented on a

Rules and The following rules and regulations were discussed with Comeau during his interview:

Disparaging Remarks 7.2 Comeau was asked what his interpretation is of the word "speak" in this rule. He stated, "Maybe they don't say anything derogatory." Comeau seemed focused on verbal communications and not written.

Criminal Conduct 11.11 Comeau was asked if, based on what he knows, Officer Tufts violated this rule, and he said, "Yes, I guess you could interpret the scratching, or if he scratched up his car, I guess that could be malicious damage. You can interpret it as that."

Report of Rule Violations 13.5 Corneau was asked if anyone who knew about this Incident would have had a duty to report it. He stated, "I don't think so. Before knowing what everything was, if it was just a simple scratch on his car, whether intentionally or unintentionally, I thought that would be handled between Dimare and Tufts. If it was known that it was a swastika, it probably should have been reported."

Interview of Officer Christopher Gallo

Officer Gallo was hired as a reserve officer by the Town in 1997, and has been a full-time patrol officer since 1999. He previously served for some time as Department firearms instructor and as a member of its Honor Guard. Gallo has worked the midnight shift for most of his career and was working the midnight shift in the summer of 2019.

Gallo and Officer Tufts grew up together as neighbors; however, Gallo states that he never had a personal relationship with Tufts. He said he got to know Tufts' father well after he did some electrical work on Gallo's house and the two developed a friendship, but his relationship with Officer Tufts remained strictly professional. Gallo felt he had a good working relationship with Tufts, and they got along well on the job.

Gallo stated during his interview that he and Officer Dimare did not have a personal relationship either, but they also worked together well. He described Dimare as a "more talkative social type, and a hard worker."

Gallo stated that he wanted to talk to Dimare about a "rumor", so he asked Dimare to retrieve a bag from his locker and bring it to his house on November 2, 2019. Gallo didn't remember who initially told him about the Incident, and said he had maintained contact with "a whole list" of coworkers in the time he had been out of work. Dimare delivered the bag and Gallo asked Tufts about the swastika Incident, letting Tufts know that he was "going to make an issue out of this." Dimare confirmed that Officer Tufts had carved a swastika into his car on July 2, 2019 - Gallo said Tufts was sure of the date because of "a credit card account or an account at Amazon or something like that."

Gallo stated that sometime after that conversation with Dimare, he saw the damage to Dimare's car. He originally thought it looked like an ax but looked again later and believed

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it to be a swastika. Gallo has a picture of the etching and has been asked to share it for the sake of this Investigation. Gallo called his attorney, Gary Nolan, who intended to bring the Incident to the attention of the Town through Attorney Miller. Eventually, Gallo informed the Union President, Officer Dan Gagnon, and Lieutenant Lunt of the Incident He stated that Lunt has always been fair and takes his job seriously.

When asked if he has ever seen or heard of Tufts or anyone else in the Department doing or saying anything to disparage anyone's race, color, religious creed, national origin, ancestry, sex, gender identity, sexual orientation, age, handicap, disability, or mental illness, Gallo stated, "No."

He described the atmosphere within the Department as "cliquey" and when asked if people treated each other respectfully, said, "Some do, some don't."

Gallo also felt that "in the end" there was no preferential treatment given to Officer Tufts.

Rules and Regulations The following rules and regulations were discussed with Comeau during his interview:

Dis1lrnaging Remarks 7.2 Ga1lo was asked what his interpretation was of the word "speak" in this rule. He initially stated that it meant "talk", and then went on to say "carving a swastika into your car is the idea of speaking, I would think."

Criminal Conduct 11.11 Gallo was asked if, based on what he knows, Officer Tufts violated this rule, and he said, "Yes."

Report of Rule Violations 13.5 Gallo was asked if anyone who knew about this Incident would have had a duty to report it based on his understanding of this rule, and he stated, "Yes." During some conversation about this rule, Gallo said that some rules get enforced more than others.

Intervie·w of Dispatcher Teresa Collins

Dispatcher Collins started her career with the Town in 1995, as a part-time civilian dispatcher. She became a full-time dispatcher a few years later and has remained in that title to this time.

Collins knew Tufts for about 15 years, as he was a Boy Scout with her son. Collins never had any problems with Tufts, She felt that Tufts completely embodied the Scouting principals of respect, trust, honor, and morals. Collins only knew Dimare through their working relationship and respected him as a hard worker and an officer who kept busy.

Collins only recently became aware of the Incident from rumors in the station after Tufts was placed on leave.

\\Then asked if she has ever seen or heard of Tufts or anyone else in the Department say anything to disparage anyone's race, color, religious creed, national origin, ancestry, sex, gender identity, sexual orientation, age, handicap, disability, or mental illness, Collins stated, "No." She also said that she never heard any anti-Semitic comments throughout her career.

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Collins folt that the Department was respectful. asked if the Department was respectful towards wome~ she responded, "Oh yes." She commented that the Department is always professional when dealing with the public.

Interview Of Dispatcher Scott Kaufman

Dispatcher Kaufman started his career with the Town in May of 1988. Since that time, he has been an auxiliary police officer, a park police officer, permanent intennittent police officer, and in 1994, became a full-time dispatcher and has held this position to this time. Kaufman is currently assigned to the PM shift (4 pm to 12am), Monday through Friday.

Kaufman described his relationship with Officer Tufts as "non-existent" - they would talk if they passed in the hallways, but rarely worked together and were assigned to different shifts. Kaufman described his relationship with Officer Dimare as "about the same" as with Tufts, and explained that he does not socialize with the younger officers due to their significant age difference.

Kaufman stated that he heard a couple of variations of what happened to Dimare' s car, but the gist of it was "Tufts took a can of some sort. I don't know if it was a Coke can, or a beer can, or whatever, but took some sort of a can and etched a swastika in the hood of his (Dimare's) car." Kaufman stated that he heard of the Incident around the time Tufts resigned. He said that after it was in the newspaper and on the news, people talked about it at work in general discussion and speculated about what had happened.

Kaufman never saw the damage to Dimare's car. He talked briefly to Dimare about the Incident, only to say that he was sony that it happened. He remembered saying to Dimare that he did not understand why Tufts would put a swastika on the car of someone who is not Jewish. Dimare responded by shrugging his shoulders, filld Kaufman felt Dimare either did not want to talk about, or he was told not to talk about it, and the conversation ended.

Kaufman said that he was "pissed" about the Incident, saying, "You don't think to draw a swastika unless you've got some deep-rooted stuff going on." Kaufman believed Tufts had some personal issues based on how Tltfts talked about some of his military experiences.

Kaufman stated he had never heard Tufts or any other member of the Department make disparaging remarks about someone's race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation; or comments that would be considered sexually harassing. Kaufman added that in almost 34 years, "I'm not going to bullshit you and say I've never ever heard anybody say anything, but nothing that would stick in my mind. I'm sure at some point in time, somebody's made a blonde joke around whatever. Generally, I would say, no."

Kaufman has never heard Tufts or any other Department member make any anti-Semitic remarks.

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Kaufman was familiar with other t,_,..:,,,.r,,,,t,r '"'"'"'"''~ taken place over career in the Town, and he feels the Department did everything it could have to resolve the incidents.

When asked to describe the Department's culture, Kaufman felt it has changed over time, but believes that the newer officers have a different perspective due to generational changes. Regardless, he feels everyone treats each other with respect in the workplace. Kaufman further stated that he thought the public was treated professionally and respectfully, and that complaints are rare.

Interview of Dispatcher Gregory Lapham:

Dispatcher Lapham began his law enforcement career as a Marblehead Auxiliary Police Officer in 1989. He went on to become a park police officer from 1991, until 1997, and then a full-time dispatcher in 1998. He has primarily been assigned to the PM shift ( 4 pm until 12 am).

Lapham s_tated that his relationship with Officer Tufts as "work-only," saying Tufts is not very

talkative,■■■■■■■■■■■■■■■■■■- He spoke very highly of Dimal'e and said Dimare was one of his favorite people to work with. Lapham has socialized with Dimare on occasion.

Whe11 asked ifhc knew what happened to Dimare's car, Lapham, responded, "Honestly, l did not know about what happened to his car until Tim had left the ... Department." Lapham ciarified that he meant when Officer Tufts ·was put on adm_ir,istrative leave. Lapham started to hear things at work, and spoke to other dispatchers about the rumors but never discussed the Incident with any officer or supervisor of the Department. Lapham did not know about _ the swastika until after Tufts resigned and he read it in a post on the Department's Facebook page. Lapham stated, "I even asked Andrew, he actually did that to your car? He goes, 'Yes.' ... I didn't even know it had happened until after he (Tufts) was gone."

Lapham was asked ifbe ever heard Tufts or any member of the Department make disparaging remarks about someone's race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or comments that would be sexually harassing. Lapham responded, "No, I probably can't say I did," and went on to say that over his 23-year career there have been comments made about sex and/or someone's sexual orientation, but far less often since the Town has been making all employees sign the sexual harassment policy. He described the comments as "joking and not harmful or hmiful in any way."

Lapham has never heard Tufts or any other Department member make any anti-Semitic comments or remarks.

Lapham felt the way people treated each other inside the workplace was respectful.

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Lapham described how the Depaitment treats the public as "very professional" based on what he has observed during encounters in the lobby between the officers and the public. He has never seen any officer treat a member of the public disrespectfully when they have come into the police station.

Lapham said he felt the overall atmosphere was toxic because of how the public has come to treat the Department, including dispatchers. He believes it has gotten significantly worse over the last year.

Interview of Dispatcher Harry Swartz

Dispatcher Swartz began his career with the Department 8 years ago. Prior to that, he was a Sergeant with the Town of Newbury Harbonnaster, and then worked as a reserve officer and dispatcher for the Georgetown, Massachusetts Police Department. Swartz was also a paramedic for many years. He is assigned to the AM shift (11 :45 pm to 7:45 am).

Swartz worked with Officer Tufts and considered them to be close; however, it was a work relationship only. He felt that he and Tufts had a close working relationship and said they often talked about business, personal matters, and a variety of other topics. Occasionally they texted each other while off-duty but only to check work schedules or things of that nature. Swartz described Tufts as quiet and thought that Tufts considered him a mentor, but said that Tufts usually seemed "more interested in his (own) side of the conversation" than in what Swartz had to offer. Swartz was shocked to learn of Tufts' behavior because he considered Tufts to be a "gentle guy."

Around the time that Tufts was placed on leave, Swartz heard rumors that "Tim had somehow inscribed a swastika on some part of Andrew Dimare's car .... " Swartz asked Officer Dimare if the rumors were true and Dimare said, "Yes," but seemed disinterested in continuing the conversation so it ended there.

Swartz received a text from Tufts when he was on leave, asking ifhe heard anything. Swartz responded, No" and Tufts asked Swartz to call him. Swartz called Tufts and said, "If you did it, you're an idiot" and the conversation ended. He described the conversation as one-sided but that was not unusual because Tufts was a1ways quiet. Swartz said Tufts knows he is Jewish and has never apologized to him for his actions.

Swaiiz has never heard Tufts make disparaging remarks about someone's race, religious creed, national origin, ancestry, a person's sex, gender, age, handicap or disability, mental illness, or sexual orientation, or sexually harassing comments.

Swaitz has never heard Tufts or any other Department member make any anti-Semitic comments or remarks.

Asked if he thought Tufts felt hatred towards the Jewish community, Swartz responded, "No, if he did, he certainly never exhibited it to me.''

Swartz has not seen anything regarding this Incident posted or commented on by a Department member on any social media platforms.

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Swartz stated that the culture of the Department is very positive and he feels that there is no prejudice in the Department, describing the work environment as "fairly happy." He said everyone puts their differences aside while they are at work.

FINDING OF FACT:

The following facts have been drawn from the records provided and interviews conducted:

1. On July 1, 2019, between 11:30 pm and 11 :45 pm, Officer Andrew Dimare picked up an empty, flattened can and placed it under Officer Timothy Tufts' car windshield wiper.

2. Officer Dimare then walked back towards the entrance of the police station. 3. Officer Dimare looked back towards his vehicle to see Officer Tufts take the can

from his car and use it to scratch the hood of Dimare's car. 4. Officer Dimare then walked back towards the vehlcle and observed that Officer

Tufts had scratched a swastika in the hood of his car. 5. Tufts said to Dimare "don't fuck with my car." 6. Officer Michaud walked over to Dimare's vehicle and observed the damage. 7. Officers Dimare and Michaud walked into the police station and entered the roll call

room, and discussions arose regarding what just happened to Dimare's car. 8. After completing their PM shift and on the way out of the police station, Michaud

asked Dimare if he is going to do something about the Incident. 9. Sergeant Conrad observed Officers Dimare and Michaud talking in the parking lot

and asked them, "what's up?," and Dimare tells Conrad that Tufts scratched his (Dimare) car.

10. Sergeant Conrad does not go over to the car and does not know that the scratch was a swastika (until November of 2020 after Tufts is placed on leave).

11. On July 2, 2019 at 1:03 am, Officer Dimare got home from work and ordered Turtle Wax T~374KTR Color Magic Car Polish from Amazon.

12. Dimare, Michaud and Conrad, for various reasons, did not immediately report the Incident.

13. Lieutenant Everett became aware of the full extent of the Incident within a day or two of it happening.

14. Lieutenant Everett spoke with Officer Dimare about the Incident and asked him how he would like to proceed.

15. Officer Dimare said he wanted to deal with it hlmselfand that he was going to buff out the damage.

16. Lieutenant Everett did not report the Incident to anyone above hls level of command. 17. Lieutenant Everett did not report the Incident because Officer Dimare wanted it to be

dealt with between him and Tufts, and the Lieutenant did not want to betray his trust. 18. Sergeant Brady heard rumors about the Incident in the summer of 2019. 19. Sergeant Brady did not become aware that the damage was a swastika scratched on

Officer Dimare's motor vehicle until he spoke with Lieutenant Lunt in November of 2020.

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20. Sergeant Brady did not report the Incident in the summer of 2019, or in November of 2020.

21. Sergeant Brady did not report the Incident in the summer of 2019, because he did not know if the rumors were true. In November of 2020, Sergeant Brady did not report the Incident because Lieutenant Lunt was already aware of it.

22. Officer Fratini heard rumors of the Incident in the summer of 2019. 23. Officer Fratini did not report the Incident to a supervisor. 24. Officer Monis heard what happened from someone in the Department but did not

remember from whom. 25. Officer Morris was aware of the Incident piior to November of 2020, but did not

know that it involved a swastika until it was reported in the newspaper. 26. Officer Morris did not report the Incident to a supervisor because he was not aware

of the magnitude of it nor was he aware that the damage was permanent. 27. Officer Gallo heard rumors of the Incident from other officers who visited him at

home while he was on administrative leave. 28. Officer Gallo, as a mse, asked Dimare to bring him an item from his locker. On

November 2, 2020, Dimare delivered the item to Gallo's home and Gallo asked about the rumors with respect to the Incident, which Dimare confirmed.

29. Officer Gallo reported the Incident to his personal attorney, Gary Nolan, who in tum notified the Town's Labor Counsel, Attorney Marc Miller, of the Incident by email dated November 13, 2020.

30. Lieutenant Lunt heard rumors about the Incident in October of 2020. 31. Lieutenant Lunt discussed the Incident with Sergeant Brady on or about November

12, 2020. 32. Sergeant Brady asked Officer Dimare to go see Lieutenant Lunt in his office. 33. Lieutenant Lunt talked to Officer Dimare and encouraged him to go speak to Captain

Freeman who oversaw Internal Affairs. 34. On November 13, 2020, Officer Dimare informed Captain Freeman about the

Incident with Tufts. 35. On November 13, 2020, just after speaking with Officer Dimare, Captain Freeman

informed Chief Picariello about his conversation with Officer Dimare regarding the Incident.

36. Attorney Iv1iller forwru·ded an email from Officer Gallo's attorney, Gary Nolan, to Chief Picariello on Friday, November 13, 2020, informing the Town that Officer Tufts drew a swastika on Officer Dimare's car.

37. On Monday, November 16, 2020, Chief Picariello requested reports from Officer Dimare and Officer Tufts regarding the Incident.

38. On November 16, 2020, Officer Dimare submitted his report by email to the Chief. 39. Officer Tufts failed to file a report and on November 20, was placed on

administrative leave. 40. Officer Comeau heard rumors that Tufts damaged Dimare's car prior to November

2020, but those rumors do not include the exact details of the Incident or that it involved a swastika.

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. Officer Comeau found out that the Incident involved a swastika talking to a dispatcher November 2020, after Tufts was placed on leave.

42. Officer Comeau did not report the Incident because what he heard was based on rumors.

43. Sergeant Osattin found out about the Incident from Lieutenant Everett in November of2020,just before it was made public.

44. Officers Bates and McDonald heard about the Incident through rumors in the station in late November of 2020, or soon thereafter.

45. Dispatchers Swartz, Kaufman, Collins, and Lapham heard about the Incident after Officer Tufts is put on leave; there was conversation amongst the dispatchers based on rumors, speculation and what they read in the news.

46. An overwhelming majority of employees interviewed at varying ranks reported that the environment inside the Police Department is respectful and professional when dealing with each other and the public.

4 7. There have been isolated incidents of people not getting along over the years due to issues related to personality clashes and matters related to detail assignments.

48. Every employee interviewed indicated that everyone puts their differences aside when they come to work.

49. One Sergeant, who is Jewish, felt there was some anti-Semitism prevalent in the Town, and to some de ree in the Department. His opinion was based on this Incident, and whe aid to him "it was one of your people" after an incident in a certain neighborhood or that involved people of Jewish nationality, religion, or culture. However, he did not feel that there was a subculture or an inherent problem with anti-Semitism or racism vvithin the Department but rather there are employees that have their own biases that get brought into the Department. He also felt that there is a need for more education and not just training, about the history of the Jewish culture to include the hate they have faced.

50. At least three veteran employees stated over the span of their extensive careers with the Department there were instances when sex-based comments or jokes made may be considered offensive, but the comments were done in a joking manner and not meant to be harmful or hurtful to anyone.

51. The employee(s) who said there were occasional sex-based comments or jokes made in the Department, but also reported that the behavior has been curtailed significantly over the last several years, and credit to the Town for issuing and requiring employee sign-off on the sexual harassment policy.

52. The Department's Rules and Regulc:l.tions were issued in 2005, and updated in 2006. 53. When reviewing the Department's Rules and Regulations during this Investigation

with sworn officers, some seemed confused or not familiar with the rule(s) being reviewed.

54. When reviewing Rule 7.2 Disparaging Remarks, Officers were asked what their interpretation was to the word "speak", answers varied from the actual spoken words, to only spoken and written vwrds, and to symbols or to some combination of all three.

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55. When reviewing Rule l 1.11 Criminal Conduct, officers overwhelmingly responded that they felt Officer Tufts violated this rule. Some officers'answers were conditioned on Officer Tufts' intent (mental state of mind) at the time of the Incident.

56. When reviewing Rule 13.5 Report Rule Violations, some officers admitted not knowing about the rule at all, and responses varied in nature based on their understanding of the rule at the time of the interview.

57. One Lieutenant stated in retrospect he would have done things differently and would have reported the Incident immediately to the Captain.

58. Captain Freeman did not have any knowledge nor was he made aware of the Incident until November 13, 2020, when he was informed of the Incident by Officer Dimare when they spoke in the Captain's office.

59. Chief Picariello did not have any knowledge nor was he made aware of the Incident until November 13, 2020, when he was forwarded Attorney Gary Nolan's email notifying Attorney Miller of the Incident.

ANALYSIS:

As a preliminary matter, 1 find that Officer Tufts' actions of drawing a swastika on Officer Dimare's car were offensive to multiple personnel. While the Town does maintain policy language prohibiting offensive language, Rule 7.5 discussed below, it does not have language that prohibits other forms of conduct based on multiple protected categories including religion. Tufts' conduct on this occasion was highly unprofessional and clearly related to religion. l\1ultiple persm.1nel corroborated they found this behavior offensive. Dimare and other Department members readily admitted the image drawn on Dimare's vehicle was a swastika.

I will methodically below proceed through and discuss each statute and rule or regulation implicated in this Incident. Each such statute, rule or regulation will be analyzed within the categories of Criminal Conduct, Civil Rights, Conflict oflnterest, Policy and Procedure, and Rules and Regulations.

Having considered all the evidence and reasonable inferences drawn therefrom, and giving the appropriate weight thereto, based on the preponderance of the evidence, I make the following findings and conclusions:

Criminal Conduct:

Marblehead Police Department Rule 11.11-Criminal Conduct states:

"Officers shall not commit any crimina1 act (felony or misdemeanor), or violate the regulatory or criminal laws or statutes of the United States or of any state or local jurisdiction (by-law/ordinances), whether on or off duty."

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Administrative reviews discipline that from evidentiary standards than that of a criminal court. The evidentiary standard used to determine whether or not the actions of Officer Tufts violated Rule 11.11 by committing a crime is the Preponderance of the Evidence standard.

Massachusetts General Laws chapter 266 covers property crimes. Sections 126, 126A, 126B, 127 and 127A all address destruction of personal property in varying degrees. Due to the nature of this Incident, our analysis will be limited to chapters 266 § 126A and §127, both covering property damage that was described in this case.

Section 126A states "whoever intentionally, willfully and maliciously or wantonly paints, marks, scratches, etches or otherwise marks, injures, mars, defaces or destroys the real or personal property of another including but not limited to a wall, fence, building, sign, rock, monument, gravestone or tablet, shall be punished by imprisonment in a state prison for a term of not more than three years or by imprisomnent in a house of correction for not more than two years or by a fine of not more than fifteen hundred dollars or not more than three times the value of the property so marked, injured, marred, defaced or destroyed, whichever is greater, or both imprisonment and fine, and shall also be required to pay for the removal or obliteration of such painting, marking, scratching or etching, or to remove or obliterate such painting, marking, scratching or etching; provided, however, that when a fine is levied pursuant to the value of the property marked, injured, marred, defaced or destroyed or when the cost of removal or obliteration is assessed, the court shall, after conviction, conduct an evidentiary hearing to ascertain the value of the property so marked, injured, marred, defaced or destroyed or to ascertain the cost of the removal or obliteration; and provided, hov,1ever, that if the property marked, injmed, marred, defaced or destroyed is a war or veterans' memorial, monument or gravestone, the fine imder this section shall be doubled and the person convicted shall be ordered to perform not less than 500 hours of court-approved community se1vice. A police officer may arrest any person for commission of the offenses prohibited by this section without a warrant if said police officer has probable cause to believe that said person has committed the offenses prohibited by this section." Mass. Gen. Laws Ch. 266 Sec. 126A Defacement of real or personal prope11y; penalties (The General Laws of Massachusetts (2019 Edition))

Section 127 states ''whoever destroys or injures the personal property, dwelling house or building of another in any manner or by any means not particularly described or mentioned in this chapter shall, if such destruction or injury is willM and malicious, be punished by imprisonment in the state prison for not more than 10 years or by a fine of $3,000 or 3 times the value of the damage caused to the property so destroyed or injured, whichever is greater, and imprisonment in jail for not more than 21 /2 years; or if such desrruction or injwy is wanton, shall be punished by a fine of $1,000 or 3 times the value of the damage to the property so destroyed or injured, ,vhichever is greater, or by imprisonment for not more than 21 /2 years; if the value of the damage to the property so destroyed or injured is not alleged to exceed $1,200, the punishment shall be by a fine of 3 times the value of the damage to property or by imprisonment for not more than 21 /2years; provided, however, that where a

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is levied pursuant to the value of the damage to the ""'""""'·rs destroyed or the court shall, after conviction, conduct an e,1identiary hearing to ascertain the value of the damage to the property so destroyed or injured. The words "personal property", as used in this section, shall also include electronically processed or stored data, either tangible or intangible, and data while in transit." Mass. Gen. Laws Ch. 266 Sec. 127 Willful, malicious or wanton destruction or injury to personal property, dwelling house or building of another (The General Laws of Massachusetts (2019 Edition)).

The major distinction between § 126A and § 127 is that 126A is a felony regardless of the person's intent, while§ 127 provides for both felony and misdemeanor provisions depending on a person's intent. Misdemeanors are taken less seriously than felonies and their punislunent are therefore less severe.

Officers Dimare and Michaud's statements were corroborated based on interviews conducted, receipts reviewed, and pictures viewed of the damage caused by Tufts. Also, a negative inference is permissible when a person fails to come forward and give their account of facts. Officer Tufts was sent two emails and called several times for an interview for this investigation and failed to respond. Officer Tufts also refused to submit a report as requested by the Chief, and resigned only after receiving a five-day suspension and the Chiefs request that the Board of Selectman consider further discipline,

Therefore, I find that Officer Tufts, hy etching a swastika on Officer Dimare's car in July 2019, violated the destruction of property statutes of the Massachusetts General law Chapter 266 and, therefore, violated Marblehead Police Department's Rule and Regulation 11. 11.

Civil Rights: Hate Crime

It is undeniable that this Incident involved a hate symbol. Society has recognized the use of the swastika as an offensive symbol of hate and not within community nom1s. When a person with authority such as a police officer uses a symbol of hate like a swastika it creates mistrust, especially among the Jewish members of the community in which they serve. It is evident from publications, letters, and emails that this Incident has caused grave concern for the citizens of the Town of Marblehead, Town leaders, Police Administrators, and Officers of the Marblehead Police Department.

In an effort to determine whether a hate crime or a civil rights violation occurred when Officer Tufts etched a swastika into the paint of Officer Dimare's car, the Supreme Judicial Court's analysis of Commonwealth v. Kelly, 470 Mass. 682 (2015) was applied.

The Supreme Judicial Comt (SJC) stated a hate crime takes place when:

"a crime in which the defendant's conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals."

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In Kelly, was analyzing the statutmy intent 1n,i.,~-''"'"'"'"" General Law(s) Ch. 265 § 37 and 39 which deal with violating a person's constitutional rights. The SJC in Kelly further directs the reader to MGL 22C § 32 which states:

"Hate crime", any criminal act coupled with overt actions motivated by bigotry and bias including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender, gender identity or sexual orientation prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person's exercise of constitutional rights through harassment or intimidation. Hate crime shall also include, but not be limited to, acts that constitute violations of sections thirty-seven and thirty-nine of chapter two hundred and sixty­five, section one hundred and twenty-seven A of chapter two hundred and sixty-six and chapter two hundred and seventy­two ."

Officer Dimare, during his interview, stated that he is not Jewish. He and other officers interviewed felt that Officer Tufts did not perceive Officer Dimare as Jewish. Officer Tufts ignored repeated requests for an interview and so I am unable to determine what omcer Tufts was definitively thinking when he drew the swastika on Officer Dimare's car; hmvever, the preponderance of the evidence indicates that Officer Tufts knew Officer Dimare is not Jewish, and did not perceive him as Jewish.

After considering the definition in MGL Ch. 22c § 32, the SJC statutory interpretation of MGL Ch. 265 § 37 and 39, and based on the interviews conducted, I find that Officer Tufts' actions in July of 2019 lacked the required element of bias and that the overt act was not motivated at least in part by a protected category, in this case religion and nationality, that is necessary to classify this Incident as a hate crime or a Civil Rights violation under Massachusetts Law.

Conflict of Interest:

The Marblehead Police Depaitment addresses a violation of the Conflict ofinterest Laws in Rule 4.03 of the Rules and Regulations. Since the rule points to the statute, it must be determined if any Marblehead Police Officer violated M.G.L. c. 268A. I find the most applicable provision of 268A to be§ 23 (b)(2)(ii), which governs preferential treatment of public employees. Specifically, it must be decided whether a fellow Marblehead Police Officer, Officer Tufts, received preferential treatment by the Marblehead Police Department when he drew a swastika on Officer Dimare's car.

Section 23(b)(2)(ii) of the law prohibits a public employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others

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unwarranted privileges or exemptions which are of substantial value and not properly available to similarly situated individuals.

It has been determined by the Ethics Commission that not arresting a person is considered "substantial value" within the meaning of the statute, especially when such penalties for first offense violations of the law may include fines, incarceration, legal fees, insurance increases and suspension or loss of license. Destruction of Property offenses would fit into that definition of substantial value. (See Jn The Matter of Edward McGovern, State Ethics Commission, January 5, 2016.)

However, the inquiry needs to go further into whether similarly situated individuals would have been treated differently than Officer Tuf1s before detem1ining whether or not this rule and regulation was violated.

Several officers and supervisors knew of the Incident immediately after it occurred. No investigation was initiated until Chief Picariello was made aware of the Incident on November 13, 2020. To date, no criminal charges have been filed against Officer Tufts.

All police officers interviewed, including Captain Freeman and Chief Picariello, stated that throughout tl1eir careers on various occasions and under certain circumstances, like those in this case, it had become the custom and practice of the Police Department not to file charges on property damage cases when the victim chose not to go forward.

Officer Dimare was the victim in this case. Lieutenant Everett asked him within a few days of the Incident how he wanted to proceed, and Officer Dimare opted to handle it himself directly with Officer Tufts. When Chief Picariello found out about the Incident, he asked Officer Dimare if he wanted to press charges against Officer Tufts and Officer Dimare declined. During Officer Dimare's interview he was asked if he had changed his mind as to whether he wanted to press charges against Officer Tufts, and he stated that he had not. The Chief stated during his interview that if Officer Dimare wanted to press charges, the Chief would sign the complaint himself so that the officers, including Dimare, would not be put in an awkward position.

After careful consideration of the officers' statements, I find that the Marblehead Police Department did not provide preferential treatment to Officer Tufts by not charging him with a crime because the victim (Officer Dimare) did not want to press charges and a practice had been developed by the Marblehead Police Department not to press charges when the victim does not want to go forward (except for domestic situations).

Marblehead Police Department Policy and Procedures; Rules and Regulations

The following Policy and Procedures and Rules and Regulations were considered throughout this review:

Chapter 4 Professional Conduct and Responsibilities

4.02 Conduct Unbecoming an Officer 4.03 Violating Conflict oflnterest

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Chapter 7.0 Public Statements:

7.2 Disparaging Remarks 7 .3 Courtesy

Chapter 11.0 General Requirements

11.11 Criminal Conduct

Chapter 13.0 Reports:

13.5 Report of Rule Violations

Did Officers of the 11.11 and 13.5?

Ruic 4.02:

Violate Rule 7.2, 7.3,

Marblehead Police Department Rule 4.02 Conduct Unbecoming an Officer states in part: "Officers shall not commit any specific act or acts of immoral, improper, unlawful, disorderly or intemperate conduct, whether on or off duty, which reflects(s) discredit or reflect(s) unfavorably upon the officer, upon other officers or upon the police department. Officers shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the department and its member. ... "

As outlined above in the Criminal Conduct section, Officer Tufts' conduct was unlawful and therefore violates the tenets of this rule.

His conduct also reflected discredit and reflected unfavorably upon other officers and the Police Department as evident by public comments on social media and in an open letter dated January 13, 2021, to the Marblehead Board of Selectmen, Town Administrator Jason Silva, Chief Picariello and to this Investigator.

Therefore, there is sufficient evidence that Officer Tufts violated this rule when he drew a swastika on Officer Dimare's car.

Rule 4.03:

Marblehead Police Department Rule 4.3 - Violating Conflict of Interest Laws states "Officers shall not violate any provisions of the General Laws c. 268A." Since this rule refers to the statute, please see the detailed discussion under the Conflict-of-Interest section on page 49. For recommendation as it pertains to this rule, see the Recommendations section, paragraph number 8.

Rule 7.2:

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Marblehead Police Department Rule 7.2- Disparaging Remarks states "Officers shall not speak slightingly of any minority, race, nationality, gender, or religion, nor make derogatory remarks about individuals on account of their marital status or sexual preference while on duty or while off duty in a public place."

As indicated in the Finding of Facts section of this report and in the interviews themselves, the officers' understanding of the word "speak" varied significantly. Some interpreted it to mean spoken words, others indicated that it meant spoken or written words, while others understood it to mean spoken and written words or symbols. When words are open for interpretation, the courts and finders of fact will give the words their ordinary meaning. The Merriam/Webster dictionary defines the word "speak" as "to utter words or articulate sounds with the ordinary voice."

Since the evidence in this case shows that Officer Tufts etched a swastika on the hood of Officer Dimare's vehicle, and the only words that were uttered by Officer Tufts to Officer Dimare were "don't fuck with my car", I find that there is insufficient evidence to support that Officer Tufts violated Rule 7.2 Disparaging Remarks.

Please see the Recommendation Section, paragraph 2 as it relates to this rule.

Rule 7.3:

Marblehead Police Department Rule 7.3 - Courtesy states that "Officers shall not be discourteous or inconsiderate to the public, to their supervisors, or to their fellow officers and employees of the police department as well as other law enforcement and governmental agencies. They shall be tactful in the performance of their duties and are expected to exercise the utmost patience and discretion even under the most uying circumstances ..... "

Officer Dimare placed a flattened can under the windshield wiper of Officer Tufts' car. Officer Dimare felt he could joke with Officer Tufts based on their prior relationship and the fact that placing a can u11der the wiper of another officer's car was something they had done during the Academy and is meant to be an inconvenience. Based on the circumstance and the intent of Officer Dimare, I do not find that he violated Rule 7.3 of the Marblehead Police Department Rules and Regulations.

Officer Tufts' reaction is deserving of a more critical review. Using the can to etch a swastika, a universal symbol of hate, into the hood of Officer Dimare's car goes beyond being discourteous or inconsiderate. Inconsiderate means "careless of the rights or feelings of others." In my opinion, Officer Tufts' actions violated Rule 7.3 - Courtesy of the Marblehead Police Department Rules and Regulations.

Rule 13.5:

Marblehead Police Department Rule 13.5 - Report Rule Violations states "Officers shall, upon observing or otherwise becoming aware of a violation by another officer or employee of the department's Rules and Regulations or Policies and Procedures, as set forth in this Manual or by other departmental directives or as governed by law, report said violations to

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their Officer in Charge who will be responsible for appropriate actions, report submission and follow-up."

Detem1ining if any officer(s) violated this rule largely depends upon who knew about the Incident, when they became of aware of the Incident, and how they became aware of the Incident.

It is my opinion that there is an expectation and affirmative duty for supervisory personnel (Sergeants, Lieutenants, Captain and the Chief) to act and investigate rumors of misconduct. Both Massachusetts antidiscrimination statutes and EEOC protocols call for an immediate investigation; they also extend liability to the community when a supervisor knew of an incident and failed to take an appropriate action and report or investigate the matter. It is my recommendation that the Rules and Regulations of the Marblehead Police Department should be treated similarly to reduce internal conflict and protect the Town, Department and individual officers from liability and public criticism.

There were four officers and two supervisors who had either firsthand knovl'ledge of or heard about the Incident from a person with firsthand knowledge.

Officer Tufts committed the act and had full knowledge of the scope and severity of the damage to Officer Dimare's car.

Officer Dimare observed the damage immediately after Officer Tufts committed the act and so he had firsthand knowledge of the Incident Officer Dimare knew that Officer Tufts violated the Department's Rules and Regulations criminal conduct section (see Interview of Officer Dimare). Officer Dimare should have reported this Incident to the OIC on the night it happened, and did not; therefore, he vioiatcd this ruie. In my opinion the following mitigating factors should be considered:

l. Officer Dimare did eventually come forward and report the Incident to Captain Freeman.

2. Officer Dimare came forward because he was concerned that the Town might be blindsided at an upcoming arbitration.

3. Officer Dimare was a victim of a horrible incident that has undoubtedly caused him stress from being unexpectedly thrown into the public spotlight.

4. Officer Dimare wanted to handle the situation himself. 5. Officer Dimare did not feel like a victim of a crime. 6. Officer Dimare is a dedicated, well-respected member of the Department.

Officer Michaud saw the damage to Officer Dimare's car immediately after the Incident occurred. Based on his interview, Officer Michaud knew that Officer Tufts violated the Criminal Conduct Rule. Officer Michaud should have reported this Incident to the Officer in Charge on the night he became aware of it and he did not; therefore, he violated this rule. In my opinion the following mitigating factors should be considered:

1. Officer Michaud felt it was Dimare's issue and Dimare should choose whether to report it to a supervisor.

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2. Officer Michaud is a private person and does not like getting involved in other people's business,

Sergeant Conrad encountered Officers Dimare and Michaud in the parking lot shortly after the Incident occurred and was told by Officer Dimare that Officer Tufts scratched his car. He never checked the car or learned that the damage was a swastika, and as a supervisor he had a duty to investigate. At a minimum, Sergeant Conrad knew that Officer Tufts damaged Officer Dimare's car, and in my opinion Sergeant Conrad should have rep01ied this Incident up the chain of command, especially since he felt that Officer Tufts' committed a felony (see Interview of Sergeant Conrad).

Lieutenant Evel'ett talked to Officer Dimare a day or two after the Incident. Lieutenant Everett knew the extent of the Incident including that it involved a swastika. This rule requires an officer to report a violation upon observing or otherwise becoming aware of the violation by another officer to the Officer ln Charge. Lieutenant Everett arguably was the Officer In Charge and therefore had no duty to report it to the Officer In Charge; however, the rule does not end there. The Officer in Charge is responsible for appropriate action, report submission, and follow-up. Lieutenant Everett in my opinion violated this rule by failing to take appropriate action and not submitting a report detailing the action taken and any follow-up.

In my opinion the following mitigating factors should be considered:

L Lieutenant Everett took full responsibility during his interview. 2. Lieutenant Everett stated during his interview that in retrospect he should have done

things differently and reported the Incident immediately to the Captain. 3. Lieutenant Everett did not report the Incident because Officer Dimare asked him not

to, and Lieutenant Everett didn't want to jeopardize his relationship with Officer Dimare.

Officer Gallo heard of the Incident through rumors when he was out on leave. Officer Gallo confirmed those rumors by using a ruse to get Officer Dimare to come to his house. He then reported the Incident to his personal attorney, Gary Nolan; and Attorney Nolan who in turn notified the Tov.11's Labor Counsel, Marc Miller. Although Officer Gallo didn't report the Incident directly to an Officer in Charge because he was on leave, he did report the Incident and it was relayed to the Town's representative, Therefore, in my opinion Officer Gallo did not violate this rule.

There were at least three supervisors who knew of the Incident through rumors from other officers in the station prior to Officer Tufts being placed on leave.

Sergeant Brady heard that Tufts scratched Dimare's car and did not recall from whom he heard it. An officer scratching another officer's car is a rule violation in of itself and therefore Sergeant Brady would have been obligated to at least report the Incident through his chain of command, if not further investigate the rumors,

In my opinion the following mitigating factors should be considered:

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1. Sergeant Brady said that he hears there a lot of rwnors that he around the station. 2. A lot of the rumors are either not trne or exaggerations.

Lieutenant Lunt heard about the Incident through rumors in the station a few weeks before he encouraged Officer Dimare to report it to Captain Freeman. However, according to the language of Rule 13.5, that action was insufficient to be in compliance with the rule. Much like my analysis for Lieutenant Everett, Lieutenant Lunt should have submitted a report detailing what actions he took, including any follow up.

Sergeant Osattin learned of the Incident by Lieutenant Everett right before the Incident became public. Since Sergeant Osattin found out about the Incident from his Lieutenant and at about the same time the Chief became aware of the Incident, it is my opinion that Sergeant Osattin had no obligation to report the Incident under this rule and regulation.

There was one supervisor who learned about the Incident after Officer Tufts was placed on leave.

Lieutenant Ostrovitz learned of the Incident through an email from the Chief when Officer Tufts was placed on leave. Therefore, it is my opinion that Lieutenant Ostrovitz had no further obligation or duties under this rule.

The following non-supervisory officers heard about the Incident through rumors inside the police station before Officer Tufts was placed on leave.

Each of the officers listed below had an obligation to report the Incident to his Officer in Charge. The rule states "Officer shall, upon observing or otherwise becoming aware of a violation by another officer or employee ... " It is my opinion that by not reporting the Incident, they violated this rule.

In my opinion the following mitigating factors should be considered:

1. An Officer in Charge already had knowledge of the Incident before any of the officers listed below heard the rumors.

Officer Fratini

Officer Comeau

Officer Morris

The following non-supervisory officer beard about the Incident in his capacity as Unio11 presideut.

Officer Gagnon talked to the involved officers separately and heard the details of the Incident through those conversations. Since Officer Gagnon gained most if not all of his knowledge through potentially protected conversation as a Union representative, I cannot definitively say he did or did not violate this rule. Town's labor counsel should give a legal opinion of whether the information Officer Gagnon gained through these conversations was protected.

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The following non-supervisory officers and dispatchers heard about the Incident through rumors inside the police station after Officer Tufts was placed on leave.

Officer Tufts was placed on leave after Chief Picariello became aware of the Incident. Since the officers and dispatchers listed below heard rumors of the Incident after it had been addressed by Chief Picariello, they had no duty or obligation under this rule to report it.

Officer Dates

Officer McDonald

Dispatchers Kaufman

Dispatcher Lapham

Dispatcher Swartz

Dispatcher Collins

Recommendations:

1. The Town of Marblehead should consider updating the sexual harassment policy to include anti-discrimination and anti-harassment definitions.

2. When discussing the rule and regulation prohibiting disparaging remarks during the interviews there was considerable discussion over the word "speech" in this rule. The Marblehead Police Department should consider clarifying the intention of this rule I rec01nmend that the Town modify it to include language that can give the readers a clear understanding of what is prohibited. I suggest including in the definition "any words either spoken or written as well as any symbols that are offensive to the community."

3. Rule 13.5 Report of Rule Violation. As pointed out by the accreditation manager this rule states officers should report the Incident to their OIC, but Lieutenants do not have OIC's and therefore felt this rule applied to the patrol officer. To ensure everyone understands the intent of this rule the Marblehead Police Depa11ment should consider modifying the rule to require any dispatcher, officer or supervisor to report any rule violations in writing to their immediate supervisor and to the chief of police, or some similaT language.

4. The Marblehead Police Department should consider holding a workplace harassment and discrimination training which should be perfmmed by a trainer approved by the Massachusetts Commission Against Discrimination. Marblehead has already taken the initial steps to curb discriminatory behavior by requiring employees to review and sign off on the Town's sexual harassment policy. This additional requirement would reinforce the updated policy and help employees further understand what is and is not appropriate in the workplace.

5. The Marblehead Police Department should consider training at least one employee in Workplace Investigation through the Massachusetts Commission of Discrimination

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and/or Association of Workplace Investigators. This training is drastically different than the Internal Affairs Investigations training typically conducted by Massachusetts police departments.

6. Since the rules and regulations were drafted in 2005 and updated in 2006, I would recommend that they are reviewed, modified, and updated to include the Police Reform obligations and conditions under M.G.L. 6E. Once the rules are updated, it is recommended that officers receive training on the rules, which shall include periodical vvritten or electronic testing on their knowledge and understanding of the rules. Testing helps identify whether the administration has properly conveyed to the officers what behavior is prohibited under each rule and regulation or policy and procedure.

7. I would recommend that the Marblehead Police Department consider a community meeting(s) with representative members of the Jewish Community so that an honest, open discussion can happen about what transpired, how it affected them, and what the Depai.iment has done to ensure an incident like this is isolated and does not reflect the Department's values.

8. Conflict oflnterest Rule on page 16-25 of the Marblehead Rules and Regulations attempts to restate G.L. c. 268A. The concern is that the language will need to be updated every time the law changes by statute or interpretation. Itwould be far less onerous on the Department if the exact statutory language was not used. Since the manual was in effect on 9/28/2005 and reviewed on 9/28/2006, it is likely the statutory language has been modified. I would recommend the Marblehead Police Department consider only citing the statute in this rule and providing training through the Ethics Commission or other qualified persons, so officers are thoroughly familiar with what is prohibited under G.L. c. 268A.

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