Skagit judge stops city from investigating working conditions at Bellingham Municipal Court
A temporary injunction has been granted in a civil lawsuit stopping the city of Bellingham and Mayor Seth Fleetwood from investigating working conditions at the Bellingham Municipal Court.
The temporary injunction comes roughly a week after Bellingham Municipal Court Presiding Judge Debra Lev filed a lawsuit in Whatcom County Superior Court against the city and Fleetwood alleging that the city’s investigation into court working conditions violates the separation of powers between the executive, legislative and judicial branches of government.
Six court employees represented by a union also walked off the job last week alleging intolerable working conditions. The walk-off and escalating situation led to an emergency closure of the city’s municipal court through the end of the day Tuesday, June 1.
Lev’s lawsuit, which sought an immediate temporary injunction to the city’s actions, was moved to Skagit County late Tuesday after the attorneys were notified all of the Whatcom County Superior Court judges had endorsed Lev in her upcoming re-election campaign.
In a Friday morning hearing, June 4, in Skagit County Superior Court, Judge Elizabeth Yost Neidzwski found that Lev had met the burden for enacting a temporary injunction.
In the hearing, Aaron Orheim, one of Lev’s attorneys, said the emergency issue in the case was caused entirely by the city and mayor overstepping the separation of powers doctrine. Orheim said the issue is unambiguous, and 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.
Orheim said the constant threat from the mayor and city had to be stopped in order for the court to be able to fulfill its obligations to the public.
But James Erb, a senior assistant Bellingham city attorney, said the case was not about the separation of powers of government and was in fact about serious misconduct and mismanagement at the Bellingham Municipal Court. Erb said the relief requested in this case would result in immunity from consequences for favored court management employees to continue committing misconduct.
Orheim said the city was treating the accusations of misconduct as if they were already proven to be true, and said the case was about who should be and has the authority to deal with the employees’ concerns about workplace issues. Orheim said State Supreme Court General Rule 29 was clear in determining that the presiding judge had the authority over judicial branch employees.
Erb said that the authority should ultimately end with the mayor and the city because, with respect to the accusations involved, Lev is alleged to be one of the people violating the employees’ rights. Erb said if the injunction were to be granted, the employees would have no recourse and continue to suffer the alleged abuse.
Ultimately, Neidzwski, the Skagit County judge, sided with Lev.
In order to grant an emergency temporary injunction, Lev had to show that there was a clear legal, equitable right, that there was a well-grounded fear of immediate invasion of that right and that the facts complained of are resulting or would result in actual injury.
Neidzwski determined that the legal right involved in this case is a separation of powers issue and that the judiciary, or court, should and does have the authority and responsibility for supervising, disciplining and maintaining the workplace environment. Neidzwski said that by placing at least two Bellingham Municipal Court staff members on paid administrative leave and threatening the employees with termination if they didn’t comply with the city’s investigation, the city violated the right to separation of powers between the three branches of government.
Because other court employees walked off the job due to the suspended court personnel returning to the office, the court had to enact an emergency closure, which resulted in an actual, substantial injury, Neidzwski said. Because all of the conditions for a temporary immediate injunction had been met, Neidzwski granted Lev’s motion.
The injunction is temporary, and the case will continue to be litigated.
Lev is ultimately 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.
“We are gratified that the court vindicated the rights of the Bellingham Municipal Court as a separate branch of city government. That decision is supported by well-established constitutional law in Washington. The mystery here is why the mayor and the city attorney are so oblivious to such basic separation of powers principles,” one of Lev’s attorneys, Philip Talmadge, said in a statement sent Friday to The Bellingham Herald.
Fleetwood, the mayor, said the city’s position from the beginning has remained the same in a statement sent Friday to The Herald.
“Our concern is for the employees. We are duty-bound by state and local laws and union agreements to investigate employee complaints about working conditions,” Fleetwood said in the prepared statement. “Accordingly, in April, after learning of the complaints, I authorized an independent fact-finding investigation, which is nearing completion. The investigation report will show if any of the allegations of misconduct and mismanagement at the court have merit. If so, we will need to take corrective actions to remedy those violations to ensure that all city employees enjoy a healthy work environment. That is my only goal.”
Multitude of complaints
The union that represents the municipal court employees who walked off the job last week has filed an unfair labor practice alleging multiple state law violations, a grievance alleging multiple issues, a discrimination complaint with the city of Bellingham and a complaint with the Washington State Commission on Judicial Conduct.
The Guild of Pacific Northwest Employees represents seven Bellingham Municipal Court staff members, which includes court clerks and administrative personnel. On Thursday, May 27, four employees exercised their right to walk off the job, while another two who were out on previously scheduled time off, have said they won’t return to the office until the situation and safety concerns have resolved themselves, according to union representative Dean Tharp.
Tharp said one employee quit recently, while another has threatened to quit and two others have said they are seeking different jobs due to the escalating 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. Tharp 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.
On Wednesday, June 2, the union filed an unfair labor practice complaint against Lev and Court Administrator Darlene Peterson with nine separate charges alleging violations of state law. The unfair labor practice was filed with the Washington State Public Public Employment Relations Commission, which handles these complaints for public employees in the state.
The union alleges Lev and Peterson violated the court employees’ rights to have a union representative present at a meeting where employee conduct and expectations were discussed, that there were multiple changes to the employees’ working conditions that were made unilaterally and not bargained over, that employees were threatened with termination if they didn’t follow the new rules, that there was retaliation against the union and members engaged in union activity that ultimately led one employee to resign and that employees were required to sign a contract that prohibits them from discussing complaints or concerns about working conditions with other employees, according to a copy of the unfair labor practice.
The union is seeking a cease and desist order for Lev and Peterson in regards to the unfair labor practice complaints.
The union also filed seven grievances over the alleged unilateral work changes, violations of employees’ rights and union discrimination and retaliation, a copy of the grievances shows.
Tharp said the filing of grievances is an internal process where the union can file grievances against the actions of the employer for not obeying or enforcing the contract the union has with the city or protecting employees’ interests.
“So it really has to do with a violation of the contract, whereas the (unfair labor practice) is a violation of state law,” Tharp said in an interview with The Herald.
On Thursday, June 3, the union filed a discrimination complaint with the city’s human resources department alleging that Lev discriminated against protected classes of citizens.
The union alleges there is a long history of the court not hiring male employees, that a woman was not hired because she may have children in the future, that disparaging comments have been made about older workers and that a new hire was “thought to have fine prospects” based on her religious affiliation, a copy of the discrimination complaint shows.
The union is requesting an investigation into the discrimination complaints.
On Friday, the union also filed a formal complaint with the state Commission on Judicial Conduct alerting them to the situation and asking that an investigation be launched immediately, Tharp said.
The Herald has reached out to the judicial commission for comment and more information.
Asserting authority
Tharp and union president Jael Komac said in an interview Friday that for more than a decade Lev has relied on the city to be involved in handling business with the union and that seeking the injunction was the first time she has asserted her authority in regards to employee hiring, discipline and union issues.
“Judge Lev has not exercised this apparent authority she has to supervise the employees in almost 19 years,” Komac, who works for the city public works department, said. “I’m just grateful that the city has taken action to protect the employees because she certainly hasn’t. It seems like she’s just oblivious to what’s happening around her in her office. So she can’t have it both ways. If you’re responsible, then act like it and do something.”
Tharp said court employees worked in fear and in a hostile work environment and it was made clear to them that they were not to bring complaints to Lev.
Court employees allege that Katherine Smith, the jail alternatives and diversion manager, created an unsafe and hazardous workplace environment where employees were subjected to surveillance, followed and feared and experienced retaliation, Tharp said.
Komac said the decision by employees to walk off the job is a drastic step. She said the employees wouldn’t have done it if they didn’t feel there was a “serious risk to their safety.”
“This is not something minor. This is shocking that the judge took this action in court, when all she needed to do was just participate with the other branches of the city and just participate in the investigation,” Komac said. “This is not something that we took lightly and we really feel that there is a safety issue with this person.”
Tharp said the court employees are still out of the office due to the safety concerns and that in light of the Skagit County judge’s ruling on the temporary injunction, the safety concerns are now magnified.
“Judge Lev may have the authority to supervise the employees of the court, but she clearly has not been interested in exercising it in 19 years. Someone has to take responsibility for her inaction and inability to follow worker protection and anti-discrimination laws in the Bellingham Municipal Court. We appreciate the city’s actions to put the safety of their employees before all else,” Komac said in a statement sent Friday to The Herald. “Shame on Judge Lev for not working with the other branches to protect all of her employees. She is clearly oblivious to what is happening around her and that should be of grave concern to everyone. Since Judge Lev is named as the subject of some of the employee complaints, we will watch to see how she conducts the internal investigation of herself.”
Lev declined to comment on the pending litigation, but in a previous Herald story 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.
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.
Court resumes
Bellingham Municipal Court has resumed limited operations after the emergency closure Friday, May 28, through Tuesday, June 1.
The Washington State Administrative Office of the Courts received notice that Bellingham Municipal Court would be closed, with the notice stating that Washington State Supreme Court General Rule 21 had been enacted.
“Emergency conditions or events have become such that the safety and welfare of the management-level employees are threatened and the court is unable to operate and demands immediate action to protect the court and its management-level employees,” the closure notice stated.
General Rule 21, the emergency court closure rule, allows a court to close due to weather, technological failure or other hazardous or emergency conditions or events that threaten the safety and well-being of staff and employees and prevent the court from operating. It says the closure may be ordered by the presiding judge of the court.
The court closure was enacted by Lev, the presiding city municipal court judge, out of concern for Bellingham Municipal Court employees who were still working in the building, according to Judge Rebecca Robertson, co-chair of the state District and Municipal Court Judges’ Association Council on Independent Courts and a Federal Way Municipal Court Judge. Lev was concerned remaining court employees could be subject to arrest or retaliation by the executive branch, Robertson said.
Because several court employees walked off the job, Lev was almost unable to conduct court because there wasn’t enough staff to hold hearings or process paperwork, Robertson said. Employees from Seattle, Lynwood and Tukwila volunteered their time to come up and work in Bellingham Municipal Court so court could continue operating and so hearings could continue to be held, Robertson said.
On Wednesday, June 2, Lev issued a temporary order stating that only one courtroom would be operated at a time and only one court calendar would be heard in the morning and one in the afternoon, according to a copy of Lev’s emergency temporary order.
The temporary order also rearranged some court calendars and prioritized cases, such as those with the greatest impact on public safety, arraignments, domestic violence cases, in-custody hearings, pleas and resolutions and warrant quash hearings, the order states. Some other court calendars and hearings, such as trials, infraction hearings and pretrial conferences, have been canceled until further notice, the order shows.
The order states it will be in effect for as long as the emergency persists, the record states.
This story was originally published June 4, 2021 at 11:50 AM.
