City Attorney’s Office disqualified as lawsuits on well-being of these employees continue
The Bellingham City Attorney’s Office has been disqualified from representing the city and Bellingham Mayor Seth Fleetwood in a lawsuit filed against them in late May by Bellingham Municipal Court Judge Debra Lev.
At a Thursday, July 1, hearing in Skagit County Superior Court, Judge Elizabeth Yost Neidzwski granted Lev’s motion to disqualify all of the city attorney’s office from representing the city of Bellingham and Fleetwood. Neidzwski found that there was a conflict of interest, because the city attorney’s office represents and provides legal advice for all three branches of city government, and that if the city attorney’s office were to continue representing the city and Fleetwood, it would violate the Washington State Rules of Professional Conduct.
“My goal continues to be ensuring a safe and healthy work environment for all city employees and to ensure the continuity of essential court services. We are having productive conversations among the parties involved and continue to make progress in addressing those goals,” Fleetwood said in a statement Saturday, July 3, to The Bellingham Herald.
“Thursday’s court ruling, while disappointing, is a side issue that does little to help achieve those goals,” he said. “The city will have capable representation as we continue to seek clarity through the courts about who is responsible for the well-being of city employees, including those who work at the Municipal Court.”
“All I have wanted through this entire ordeal is for the mayor’s office to recognize that it is not above the law,” Lev said in a statement sent to The Herald by her lawyers, Philip Talmadge and Aaron Orheim.
“The citizens of Bellingham elected three branches of government, not one. An independent judiciary is the bedrock of democracy and the foundation of civil liberties. I will not ‘submit’ to the mayor’s illegal violations of city, state and constitutional laws.
“I look forward to resolving any labor issues as provided by law, without any further threats, intimidation, interference or unethical behavior from the executive branch,” the statement read.
Lev filed a lawsuit in Whatcom County Superior Court against Fleetwood and the city May 27, alleging that their investigations of court working conditions violated the separation of powers between the executive, legislative and judicial branches of government.
In early June, Neidzwski granted a temporary injunction in Lev’s lawsuit, stopping the city from compelling court staff to participate in the investigation. It also stopped the city from disciplining, firing, suspending or denying employees’ access to court buildings or computer accounts, according to Whatcom County Superior Court records.
The injunction is temporary, and the case will continue to be litigated.
Six court employees represented by a union walked off the job in late May alleging intolerable working conditions. The walk-off and escalating situation led to an emergency closure of the city’s municipal court May 28 to June 1.
As of Friday, July 2, the employees were still refusing to return to work, their union representative said.
The union representing the municipal court employees who walked off the job filed an unfair labor practice complaint 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.
An independent investigation commissioned by the city and mayor that was conducted without participation from Lev and other management members at the municipal court found evidence that supports the employees’ claims of labor law violations and a toxic work environment.
The Bellingham City Council also voted 6 to 1 at its June 21 meeting to have the city administration start negotiations with Whatcom County for court services, in case the city council chooses to close the Bellingham Municipal Court.
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 Whatcom County District Court handled gross misdemeanor offenses for Bellingham until 1998, when the city took on the additional caseload, according to Herald archives. In 2001, Bellingham residents voted to elect Bellingham’s first full-time Municipal Court judge, the archives show.
Lev became Bellingham’s first elected Municipal Court judge in 2002, according to the city’s website and Herald archives. 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.
The hearing
During the Thursday hearing in Skagit County, Orheim, one of Lev’s attorneys, said the rules of professional conduct, which all attorneys must follow, were clear in this case.
Orheim said the city attorney’s office should have recused, or removed, themselves from representing the city and Fleetwood long ago, but instead chose sides in the matter.
“They’ve decided to side with Mayor Fleetwood against Judge Lev to the detriment of the Bellingham Municipal Court and the citizens of Bellingham,” Orheim said during the hearing. “All sides of this conflict, the city attorney’s office has chosen to side with the mayor and at this point, they’re far in too deep.”
But James Erb, a senior assistant Bellingham city attorney, said there was not a conflict of interest in this case, and at no point had himself or City Attorney Alan Marriner provided any advice or representation to Lev in regards to the lawsuit. Erb said while Lev and her attorneys have argued it’s a separation of powers issue, he said it is a labor and employment dispute related to alleged misconduct and mismanagement at the city municipal court.
“The relief requested by Judge Lev here is extraordinary, and it is unprecedented,” Erb said during the hearing. “The rule that Judge Lev seeks here would have enormous and costly consequences for government law offices across our city. … Judge Lev seeks disqualification because our client, the city, has taken a position that is adverse to Judge Lev’s position on these issues.”
Erb said granting Lev’s motion to disqualify the city attorney’s office would not lead to a speedy resolution in the matter, would not result in the city municipal court resuming normal operations and could ultimately result in the city’s taxpayers paying attorneys fees for multiple private law firms to represent the city in the various aspects of litigation involved in these issues.
The professional conduct rules state that an attorney can’t represent a client where there is a conflict of interest, including a situation where the representation of one client will be directly adverse to another client. Neidzwski determined that both the city and Lev were clients of the city attorney’s office and that an attorney-client relationship existed between the office and Lev.
Because the city attorney’s office has taken a strong position against Lev and in favor of the city and Fleetwood, Neidzwski found that it was appropriate to disqualify the city attorney’s office from further representing the city and mayor in the lawsuit.
“This is a clear win for the citizens of Bellingham, the rule of law, and professional ethics. We look forward to working with new counsel for the mayor to resolve any lingering controversies fairly and legally,” Orheim, one of Lev’s attorneys, said in a prepared statement.
Deficient complaints
The union that represents the municipal court employees who walked off the job in late May filed an unfair labor practice complaint June 2 alleging multiple state law violations.
The Guild of Pacific Northwest Employees represents seven Bellingham Municipal Court staff members, which includes court clerks and administrative personnel. 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 complaint was filed with the Washington State Public Employment Relations Commission, which handles these complaints for public employees in the state.
On June 29, the state public employment relations commission issued a deficiency notice to the union, according to commission Executive Director Mike Sellars.
In the deficiency notice, a commission administrator notified the union that it would need more information, including detailed facts and dates, regarding each of the alleged labor law violations.
Sellars said the union has 21 days to correct the deficiency or the complaint will be dismissed.
“I am delighted by (Employment Relations Commission’s) decision that the guild’s claims of labor violations were deficient, as (the commission) found that the guild was unable to present the evidence necessary to substantiate such claims. This was followed soon after by the Superior Court’s decision that the City Attorney’s office, working under the leadership of the mayor, committed numerous violations of the Rules of Professional Conduct in the handling of these issues. Unfortunately, instead of supporting my efforts to address employee concerns, the mayor’s office has acted illegally and in complete opposition to my efforts to resolve these matters,” Lev said in a prepared statement sent Friday by Carrie Blackwood, Lev’s attorney who is handling the labor issues. “Despite these derailing actions, I have taken all of the concerns raised by employees seriously, and remain committed to maintaining a workplace where employees can feel safe, heard and respected.”
The Guild of Pacific Northwest Employees union representative Dean Tharp said they weren’t “overly concerned” with the deficiency notice, and that the union understood the employment relations commission wants more information.
Tharp said the union was still hoping to resolve the safety issues they were concerned with, but that as the issues go on, those become harder to resolve.
In addition to the unfair labor practice complaint, the union has 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.
The union also filed a discrimination complaint June 3 with the city’s human resources department alleging that Lev discriminated against protected classes of citizens, Tharp said.
The city has hired Summit Law Group to handle the labor complaints, according to court records.
Judicial conduct complaints
In early June, 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.
Other parties, including Lev who said through one of her attorneys that she self-reported this issue, have also said they have filed complaints with the judicial conduct commission.
The state judicial conduct commission is an independent agency of the judicial branch, created under the Washington State Constitution, according to Reiko Callner, executive director of the commission. The commission’s job is to investigate and, where appropriate, prosecute cases involving ethical misconduct on the part of a judge in Washington state.
Callner said the state judicial conduct commission can neither confirm nor deny that they received or are investigating any complaints involving Lev. That information is not public, Callner said, as it is a confidential process.
But the commission does “investigate every single complaint that we get” and conducts its own independent investigation in regards to the complaint or complaints, Callner said.
The commission generally ends up dismissing a large majority of the complaints it receives, because they generally don’t deal with ethical misconduct, Callner said. An investigation of a complaint or complaints can take anywhere from a short amount of time to years, depending on how complex the issues are, she said.
If the commission comes to an agreement that the judicial conduct code was violated or if the commission files a statement of charges against a judge, those decisions are public, Callner said.
Dismissals of complaints are not public, unless a judge was publicly alleged to have committed wrongdoing and requests the commission to issue a statement saying the facts were investigated and the complaint was dismissed, Callner said.
