The Bellingham Municipal Court judge has sued the city of Bellingham and Mayor Seth Fleetwood alleging that their investigations of court working conditions have violated the separation of powers between the executive, legislative and judicial branches. Six Municipal Court employees have also walked off the job due to what a union representative says are hazardous and unsafe working conditions caused by at least one employee.
The Thursday, May 27, walk-off has the potential to bring court operations to a standstill.
“The investigation does not interfere with independent judicial proceedings or core judicial functions,” Fleetwood said in a statement provided by the city in an email to The Bellingham Herald Friday afternoon, May 28. “My administration is investigating allegations of serious misconduct and mismanagement at the Bellingham Municipal Court. The allegations include violations of state law and city policies. The employees allege that a toxic work environment exists at the court, built on bullying, fear and intimidation. Judge (Debra) Lev is a subject of this investigation.”
“I recognize that it is the responsibility of the presiding judge to keep her house in order. However, it is alleged that she failed to do so. This investigation will determine if those allegations are true and, if so, what corrective action may be needed to ensure that municipal court employees enjoy the same type of healthy working environment as all other city employees.
“The investigation is ongoing, following a process that is standard in situations like this including initiating an independent fact-finding investigator. No conclusions have been reached and we are committed to seeing it through, so it is deeply disappointing that Judge Lev refuses to participate in the investigation,” Fleetwood said.
Lev and the District and Municipal Court Judges’ Association’s Council on Independent Courts said they learned about the staff members’ allegations from an earlier version of this story, according to an email Friday morning.
“Now that Judge Lev knows about these allegations, she has requested that the appropriate entity, the Commission on Judicial Conduct, begin an independent review,” according to the email from Judge Rebecca Robertson of Federal Way, Wash., co-chair of the judges’ council.
“Judge Lev, however, was not given the opportunity to investigate or respond to the allegations because the union and staff did not inform her of any complaints, and the mayor refused to speak with her or tell her what allegations were made,” according to the judges’ council statement.
“Their actions risk the safety of the citizens of Bellingham, put justice in jeopardy, and they are freely spending valuable tax dollars taking actions with no legal basis to do so,” the judges’ council statement said.
Lev filed for an injunction against the city and Fleetwood Thursday in Whatcom County Superior Court.
The Guild of Pacific Northwest Employees represents seven Bellingham Municipal Court staff members, including court clerks and administrative personnel, according to union representative Dean Tharp.
The court building is closed due to COVID-19, but hearings are currently being held by phone.
The Bellingham Municipal Court has jurisdiction over violations of the Bellingham Municipal Code, including misdemeanor criminal charges and civil infractions. The most common cases include assault, malicious mischief, theft, driving under the influence, trespassing, violation of protective orders, traffic and parking violations.
In addition to the elected judge, there is a commissioner and local private practice lawyers acting as judges pro-tem appointed by the judge.
The court has 16 employees, according to 2019 salary data provided by the city of Bellingham, responding to a public records request from The Bellingham Herald. The judge’s total pay was $144,338. The commissioner made $108,259 and the court administrator made $122,408.
Lev’s lawsuit states that both Bellingham’s city ordinance and the Washington State Supreme Court General Rule 29 state that the presiding judge has general administrative supervision over judicial branch employees when it comes to things like working conditions, hiring, discipline and termination decisions. The state Supreme Court rule says the powers of a presiding judge can’t be delegated to someone in the legislative or executive branch, according to Superior Court records.
The executive branch is responsible for controlling wages and issues related to wages, the lawsuit and rules state.
According to the lawsuit, the city began investigating “complaints about the working conditions at the municipal court” in April 2021. The city hired Sarah Hale, an Oregon attorney who is licensed to practice in Washington, to investigate the complaints and determine if court staff had violated city policies or state law, according to court records.
The city told court staff that “failure to participate in this investigation may result in immediate termination of your employment with the city,” the records state.
Lev informed the city, through a city attorney, that its actions violated General Rule 29 and separation of powers principles, the records show. In mid-May, the state District and Municipal Court Judges’ Association sent a letter to the city and Fleetwood saying the city’s actions violated the state rule and separation of powers.
“This issue is not ambiguous. While we agree that complaints about workplace conditions by employees should be treated seriously and dealt with appropriately, the executive branch’s human resources department has no authority to direct the cooperation of any employee into their investigation, and does not have the authority to hire or fire court employees,” according to a copy of the state District and Municipal Court Judges’ Association letter.
On Tuesday, May 25, the city informed Katherine Smith, the jail alternatives and diversion manager, that she was placed on administrative leave for failing to cooperate with the city’s investigation, the lawsuit states. Smith’s ability to electronically access court buildings, her computer work station and account was allegedly disabled by the city, the court records state. Smith was hired by the court April 1, 2019, according to city records.
Smith is represented by Teamsters Union Local 231. Union leader Rich Ewing said he can’t comment on the city investigation but told The Herald “our member has been put in an untenable situation” with different instructions from the city and the judge. The union advised her that, under General Rule 29, she should follow the judge’s directions, Ewing said.
The city also allegedly disabled Bellingham Municipal Court Administrator Darlene Peterson’s access to her computer work station and account, the lawsuit states.
The lawsuit states the city “maintains that Mayor Fleetwood has the right to supervise the activities of employees of the municipal court, including investigating workplace complaints, disciplining court employees, placing them on leave and terminating them for issues related to their employment conduct, job performance, or other human resources issues.”
Lev’s lawsuit states that the city and Fleetwood have acted through city employees, including Deputy Administrator Brian Heinrich, Human Resources Director Elizabeth Monahan, city attorneys Alan Marriner and James Erb, and Hale.
“This is a most unusual intrusion by an executive branch of government upon the judicial branch of Bellingham city government,” said Philip Talmadge, a Seattle attorney who filed the case on Lev’s behalf. Talmadge said this was one of the most unusual sets of circumstances of interference he has ever seen.
Lev is seeking a judgment that declares her status as the sole supervising authority over municipal court personnel, as well as a permanent injunction barring the city and Fleetwood from forcing municipal court employees to comply with disciplinary investigations and the city and Fleetwood from taking disciplinary action against municipal court personnel without approval from the municipal court presiding judge, the court records show.
But court employees say that Smith’s actions created an unsafe and hazardous workplace environment where employees were subjected to surveillance and feared and experienced retaliation, Tharp, the union representative, said in an interview Thursday with The Herald.
Tharp said there is a multitude of allegations the union is concerned about, such as violations of labor law, judicial misconduct, violations of the federal Health Insurance Portability and Accountability Act, or HIPAA, and potential discrimination.
Smith, who is not represented by the union, allegedly started running security for the court, Tharp said. Security for the court includes things such as cameras that operate within the court building, mainly for the safety of employees while dealing with the public, he said.
During the coronavirus pandemic, Tharp said Smith started using the cameras to surveil the court employees themselves. The cameras could be zoomed in to show the work that was happening on employee’s screens, which was not their intended purpose, Tharp said.
In addition, the employees were being followed into break rooms and bathrooms, they were not allowed to take lunch at the same time as one another, they were not allowed to hold personal conversations or whisper among themselves in the office and if they had to have a work conversation they were to keep it short, Tharp said.
Tharp said employees brought their concerns forward to the union and the city. The city began investigating the concerns and hired Hale, the outside investigator, to put distance between legislative and judicial employees and provide a level of independence to the investigation, Tharp said.
The city then placed Smith on administrative leave while the investigation was being conducted, he said, but Smith showed up for work the following day and was allegedly let into the building by Peterson, the court administrator. Tharp said an additional surveillance screen that showed every camera angle available showed up Wednesday and was being displayed on a screen in the office.
Tharp said this was viewed as a form of intimidation and retaliation against the employees who had brought their concerns forward.
Tharp said Lev, the judge, has “at a minimum allowed, at the worst case condoned” the intolerable working conditions in part created by Smith.
Employees walk off
The escalating situation led employees to walk off the job Thursday, he said.
Tharp said one employee has quit recently, while another has threatened to quit and two others have said they are seeking different jobs due to the situation.
The provision in the union contract allows employees to remove themselves from the workplace and notify their supervisor if they believe they are in harm’s way and the city is asking or ordering the employees to continue working in that environment. The provision also allows the union to intervene on their behalf and work with the city to address the issues, Tharp said.
He said the provision in the union’s contract that allows employees to walk off the job has never been enforced in anyone’s recent memory.
“This is a very bold and courageous step that they took to walk off the job. They saw that the city rules were being defied by the court, by the judge, by the district court administrator and by the particular employee who was ordered by the city to not return to work, and you can imagine how they felt about this,” Tharp said.
Tharp said in this case, an employee who is not represented by the union defied city policies, and then showed up to work after they had been placed on administrative leave, defying policy yet again.
Tharp said the current situation highlights the struggle between the “Constitutional crisis,” in reference to the separation of powers issue, of who is the employer of the employees and what actions the city can take in getting the court to enforce its own policies to address working conditions employees say are intolerable.
Upholding the law
In the press release about the lawsuit, Lev said she has been honored to serve the people of Bellingham as presiding judge, and that she’s “required, both legally and ethically, to uphold the law.”
Lev’s statement said the three separate branches of government is one of the most important principles in the legal system, and that state and local laws prohibit the executive branch from interfering with the judicial branch.
“While historically all three branches of city government have understood and respected the independence and responsibilities of the other branches, the executive branch recently decided to interfere with and disrupt court operations, investigate the court, threaten court staff, and even purported to fire municipal court employees in order to impose the executive branch’s views on court operations and personnel,” Lev’s statement in the news release said. “The executive branch has used public employees, attorneys who are ethically required to follow the law, and public funds to illegally interfere with a separate branch of government. Despite numerous efforts by myself and other judicial officers in Washington state to explain the law and resolve issues lawfully, the executive branch’s misconduct has persisted and even escalated.”
“For this reason, and with great reluctance, I have been forced to seek relief in the appropriate court to uphold the law,” Lev’s statement said.
Lev is running unopposed this fall for another four-year term as the city’s only Municipal Court judge. She became Bellingham’s first elected Municipal Court judge in 2002, according to the city’s website. She previously served as the court’s commissioner for four years and practiced law in the Bellingham area since 1990, including serving as a deputy district attorney.
Tharp said as a union representative he is in constant conflict with the city, but said he believes they have acted responsibly in this case.
“It is out of control in my mind and I worry about the safety of the employees and I worry about the competency of the judge. This is not something normal,” Tharp said. “This is a very scary situation for them, and a very tough situation for me, because now all of a sudden we’re caught between this Constitutional struggle and all we want is for these employees to be able to go to work.”
“We all want to make sure nobody is ever in harm’s way,” Tharp said. “Our goal is not to slow down the court, our goal is just to provide a safe work environment. And again, this is a drastic step.”