Investigation reports finding this evidence supporting Bellingham Municipal Court claims
Evidence supports employees’ claims of labor law violations and a toxic work environment at the Bellingham Municipal Court, according to an independent investigation commissioned by the city and Mayor Seth Fleetwood that was conducted without participation from Judge Debra Lev and other management members.
Lev sued Fleetwood and the city May 27, alleging that their investigations of court working conditions have violated the separation of powers between the executive, legislative and judicial branches.
Lev is the only judge of the Municipal Court, which has jurisdiction over city code violations, misdemeanor criminal charges and civil infractions.
Those reported work conditions led six Municipal Court employees to walk off the job May 27 due to what a Guild of Pacific Northwest Employees, Local 1937, representative said were hazardous and unsafe working conditions.
On April 13, after court employees notified their union and the city of Bellingham of their concerns, the city and Fleetwood hired Sarah Hale, an Oregon attorney who is licensed to practice in Washington, to investigate the employees’ complaints against Lev, Jail Alternative Program Manager Kathy Smith and Court Administrator Darlene Peterson to determine if court staff had violated city policies or state law.
Hale filed a summary of her investigation Monday, June 14, and The Bellingham Herald obtained a copy of the 23-page report from the city.
Hale’s report stated that, “my ability to conduct this investigation has been significantly limited by the lack of participation and cooperation by Judge Lev and others in court management. Although in late April Judge Lev, Ms. Peterson, and Ms. Smith had agreed to participate in the investigation, abruptly in early May, I understand they changed their mind after I interviewed Guild Employees.”
A statement sent to The Bellingham Herald Friday, June 18, by attorney Carrie Blackwood, speaking on behalf of Lev’s attorney’s at Barron Smith Daugert, PLLC, and Talmadge/Fitzpatrick, said Lev did not participate in the investigation because she is “required to uphold and promote the independence of the judiciary.”
“I won’t submit to anyone telling me to break the law, not even if that directive comes from the mayor,” Lev said in the statement.
Despite not speaking with Lev or other members of the court management, Hale’s report said she found:
▪ Evidence to support allegations that employees did not consistently receive required breaks mandated by the collective bargaining agreement with the city and the union. Some of the employees interviewed by Hale said the court’s schedule and workload were such that it was difficult to take breaks regularly, if at all.
▪ Evidence that the culture and climate of the workplace in the court was “generally negative,” with employees who were interviewed reporting favoritism, targeting of certain employees and disrespectful and unfair treatment. Employees also reported negative experiences with court management’s efforts to curtail gossip and cliquish behavior and threats to job security with reminders that employees “work at the pleasure of the Judge.” Hale also noted that a review of employees’ job performance reviews were “roundly positive” and there had been no reports of discipline over the past 12 months.
▪ “Compelling evidence” that employees were under workplace surveillance, including being physically followed around the courthouse and video surveillance to monitor employees’ activities.
▪ Evidence of one court management member making preferential comments based on the religious preferences of employees.
▪ “A preponderance of evidence” that a court management member made disparaging comments about the union and an employee who had served as a union steward.
▪ After the start of the investigations, some of the employees were retaliated against by court management, including increased surveillance and derogatory comments about an employee who resigned after making a complaint to Human Resources.
▪ Substantiating evidence on some of the claims that a member of court management shared confidential medical information about why employees were calling out sick, as well as information about employee’s COVID-19 vaccination status.
However, Hale’s report said she did not find evidence to support claims of age discrimination, which were included among the complaints.
“My goals in this matter continue to be ensuring a safe and healthy workplace for all city employees, including court employees who are city employees ‘for all purposes” under state law, and maintaining continuity of essential court services,” Fleetwood said in a statement emailed to The Herald with Hale’s report.
“I wish that Judge Lev had chosen to participate in the independent investigation. I am hopeful that she will take responsibility for the workplace concerns, take swift and significant actions to address them, and work cooperatively with my administration to resume normal operations at the Municipal Court.”
Speaking on behalf of Lev’s legal team, Blackwood’s statement called the investigation “improper” and “confusing,” and went on to add that, “the resulting report reflects multiple factual inaccuracies and presents mostly the recitation of various allegations as opposed to substantiated findings, demonstrates repeated misunderstandings of various labor and employment matters, and further disparages Lev for her failure to participate, despite the reality that doing so is counter to existing law.
“The continued disparagement of Lev by the city and its agents is inconsistent with the inarguable fact that the mayor’s commission of such an investigation of the court is in violation of well-established separation of powers principles. Additionally, in an attempt to prevent the city from moving forward with their unhelpful actions, Lev informed the mayor at the outset that she could not submit to an unlawful investigation.”
The state District and Municipal Court Judges’ Association had not received a copy of Hale’s report and therefore “takes no position regarding the thoroughness or accuracy of any report done at the behest of the mayor,” past president Michelle Gehlsen told The Herald in an email Thursday, June 17.
Temporary injunction
After hearing of the employee’s complaints in April, Fleetwood and the city “took the complaints seriously,” Fleetwood’s statement said, and arranged for the independent investigation.
After the employees walked out on May 27, an emergency situation forced the closure of the court from May 28 to June 1.
“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.
The closure came just days after Lev filed a lawsuit in Whatcom County Superior Court against the city of Bellingham and Fleetwood alleging that the city’s investigations into court working conditions violated the separation of powers between the executive, legislative and judicial branches of government.
Gehlsen said the proper place for court employees to register complaints if the presiding judge is the subject of the complaint, as Lev in part was in this case, was to the Commission on Judicial Conduct, which works to protect the integrity of the judicial process and would investigate any allegations made against a judge.
Lev’s legal team said she “did appropriately self-report this particular issue to this body.”
Gehlsen added employees could also file a union grievance.
On June 4, Skagit County Superior Court Judge Elizabeth Yost Neidzwski granted a temporary injunction, stopping the city and Fleetwood from investigating working conditions at the Bellingham Municipal Court. The case moved to Skagit because all of Whatcom’s Superior Court judges have endorsed Lev’s candidacy for another four-year term. She is running unopposed.
“We have a fundamental disagreement with Judge Lev as it relates to who is responsible for the well-being of city employees including those who work at the Municipal Court,” Fleetwood’s statement read. “We have a responsibility to investigate workplace complaints, to hold accountable those who are responsible for misconduct, and to ensure collective bargaining agreements are upheld and relevant state law and city policies are followed.
“For these reasons, we will continue to seek recourse through the courts.”
On Wednesday, June 17, Judge Neidzwski denied a motion by Lev’s legal team to shorten time, and the next scheduled hearing was set for Friday, June 25.
That hearing will be on the plaintiff’s motion to disqualify the counsel representing the city and Fleetwood — the city attorney — due to what Blackwood’s statement called “an unethical conflict of interest.”
