Bellingham and Municipal Court Judge Debra Lev reach settlement agreement in lawsuit
The city of Bellingham and Bellingham Municipal Court Presiding Judge Debra Lev have reached a mediated settlement agreement that resolves a lawsuit Lev filed against the city and lays out policies and procedures for dealing with workplace-related complaints.
At its Monday night meeting, the Bellingham City Council passed a unanimous motion to ratify and confirm the mediated settlement between the city and Lev. The council’s motion also authorized Bellingham Mayor Seth Fleetwood and the city’s legal counsel to take action to implement the settlement.
In a joint statement by Lev and Fleetwood released Monday, Sept. 27, the parties said they “have reached a mutual agreement that resolves legal issues relating to governance of the Bellingham Municipal Court that have been pending in Whatcom County Superior Court.”
“The settlement agreement ensures that the co-equal branches of City government will respect the independence and legal responsibilities of each other. It resolves the lawsuit in a manner that upholds the law, reduces litigation costs and serves the public interest,” the statement continued. “Judge Lev and Mayor Fleetwood look forward to working together to ensure the success of this agreement.”
The city will pay all costs and fees of an independent investigator suggested by the Washington State Supreme Court, all reasonable attorney fees for Lev’s attorneys who handled the lawsuit and her attorneys who handled the labor relations matters.
Dispute history
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.
At the same time that Lev filed her lawsuit, six former Bellingham Municipal Court employees represented by a union walked off the job, 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.
In early June, a Skagit County Superior Court Judge 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 case was moved to Skagit County after all four Superior Court judges in Whatcom County recused, or removed, themselves from hearing the case due to their endorsements of Lev in her upcoming reelection campaign. Lev is running unopposed this fall for another four-year term as the city’s only Municipal Court judge.
Also in early June, 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.
By late June, 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 then 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. As of late July, there had been no formal request from city government regarding the negotiations.
On June 29, the Washington State Public Employment Relations Commission found the union’s unfair labor practice complaint deficient and gave the union 21 days to provide more information, according to commission Executive Director Mike Sellars.
The Bellingham City Attorney’s Office was also disqualified from representing the city and Bellingham Mayor Seth Fleetwood in Lev’s lawsuit in early July. A Skagit judge 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. Had the city attorney’s office continued to represent the city and Fleetwood, it would violate the Washington State Rules of Professional Conduct, the judge determined.
During this time, the court employees who raised concerns about their working conditions refused to return to work, and Lev fired them on July 12. In exchange for the union withdrawing the unfair labor practice complaint, as well as the grievance and discrimination complaint, the city agreed in late July to find or attempt to find the fired court employees comparable jobs in other city departments.
Lev had also asked for a permanent injunction against the city and Fleetwood in late July, but the hearing set for early September was never held, court records show.
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.
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 mediated settlement
The settlement agreement for Lev’s lawsuit comes after the City Council and the parties’ legal counsels held two special executive sessions last week as a continuation of the City Council’s Sept. 13 meeting.
The five-page settlement agreement, dated Sept. 23, lays out the general rules that apply to who has authority over the city’s Municipal Court, who governs court employees and the processes for bringing forward and investigating workplace complaints.
While the settlement acknowledges that court employees are city employees, it affirms that the Washington State Supreme Court’s General Rule 29 applies to the Bellingham Municipal Court. The rule states 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. It also says the powers of presiding judge can’t be delegated to someone in the legislative or executive branch.
The executive branch is responsible for controlling wages and issues related to wages, which is what Lev argued in her lawsuit and the settlement confirms.
As part of the settlement, the city recognized the authority of the court’s presiding judge regarding hiring, supervision, discipline, termination and other court working conditions in compliance with the state Supreme Court rule and state laws regarding municipal courts, while the presiding judge recognized the city has authority regarding wages and wage-related benefits.
The settlement also affirms that only the state Supreme Court can “censure, suspend, or remove a judge or justice for violating the Supreme Court’s Code of Judicial Conduct.” It states any complaint relating to a judicial officer of the court will be referred to the state Commission on Judicial Conduct, which has jurisdiction to investigate and act on complaints of judicial misconduct.
If there are claims of employment discrimination, including a hostile work environment, the complaints are to be directed to the presiding judge or court administrator, the settlement states. If the concern is about the judge, the employee can report the concern to the Commission on Judicial Conduct. The city and court will work together to address such concerns, the document states.
The settlement does not limit a city employee’s right to raise employment claims and if such claims or grievances arise, the city and court will work together to address the claims.
The agreed-upon settlement states that the city can’t compel a court employee to participate in an investigation regarding matters that are within the presiding judge’s authority as outlined in the state Supreme Court’s general rule. The court also can’t prevent a court employee’s voluntary cooperation with an investigation that arises from a court employee’s claim, the settlement documents show.
The city agreed it will provide assistance, if requested in writing by the presiding judge, regarding workplace concerns raised by court employees and lawful investigations, including by providing data and information related to such concerns. If there is a disagreement regarding remedies for such concerns, the mayor and presiding judge will meet and will work to resolve the disagreement, which can include alternative dispute resolution processes, the settlement states.
The court will retain the final decision on personnel actions in accordance with the state Supreme Court rule and the processes outlined in the settlement agreement regarding obligations to work with the court employees’ unions. Employees also retain their rights to use alternative dispute resolution processes, litigation and applicable grievance processes under a collective bargaining agreement and referral to the Commission on Judicial Conduct and other agencies, the settlement document states.
The mediated settlement agreement does not limit the authority of other agencies, such as the federal Equal Employment Opportunity Commission.
An independent investigation using an investigator recommended by the administrative arm of the state Supreme Court is being conducted to determine if any violations of law or policy occurred, according to a previous statement from Carrie Blackwood, one of Lev’s attorneys.
As part of the settlement, the city has agreed to cooperate with the completion of the court’s independent investigation into the former court employees’ employment complaints. The city will provide the full investigative file related to its investigation into court working conditions to the independent investigator and will comply with any requests for records the investigator has.
If the investigator requests follow-up input from employees or interviews with other employees, Fleetwood will use “reasonable best efforts” to encourage the employees to respond to the investigator’s inquiries, the settlement document states.
The filling of court vacancies that resulted from the dispute will be expedited and prioritized until they’re filled, the settlement agreement states. The parties will meet to resolve outstanding hiring process and procedure issues, and if they can’t resolve those issues within a reasonable time frame, Lev and Fleetwood will meet. If they still can’t resolve the issues, then further mediation will take place, the document shows.
“The Mayor, City and Judge Lev seek to resolve the Litigation without further expenditure of resources or disruption to the Court or the City through this Settlement Agreement,” the mediated agreement states. “This Settlement Agreement recognizes that the Parties seek to resolve differences in a forward-looking manner, without acknowledging the claims or defenses of the other party.”
The settlement agreement also states that they will present a stipulated judgment that dismisses Lev’s lawsuit without prejudice.
This story was originally published September 28, 2021 at 1:47 PM.
