Crisis In Court
Wednesday, June 9, 2021
CRISIS IN COURT: Whatever details may emerge from the City of Bellingham’s independent investigation, Bellingham Municipal Court Judge Debra Lev appears to have lost control of the administration of her court. Municipal court employees walked off the job in late May—charging violations of employees’ rights, intolerable working conditions and other grievances—prompting an emergency temporary closure of the court. Lev then filed a lawsuit against the City of Bellingham, charging that the city’s independent review of these employees’ claims substantially interferes with her supervising authority over municipal court personnel, and that the court is an independent branch of city government under her control.
A Skagit County judge agreed last week to stop the city’s independent investigation into the work conditions at Municipal Court, granting a temporary injunction. Attorneys for Lev claimed the city overstepped its authority and violated the separation of powers doctrine protected under the state’s constitution. But the city has a statutory duty to investigate the claims, Mayor Seth Fleetwood said in a statement.
“Our position from the outset has remained the same. Our concern is for the employees,” Fleetwood said. “We are duty-bound by state and local laws and union agreements to investigate employee complaints about working conditions.”
According to a background statement of facts, Municipal Court staff and their union representatives contacted the city’s Human Resources department in early April with complaints about bullying working conditions at the court. The complaints included alleged misconduct and mismanagement by the Court Administrator Darlene Peterson, Jail Alternative and Diversion Manager Kathy Smith, and Judge Lev. City administrators determined it would be appropriate to retain the services of an independent fact-finder to look into the claims.
Before the investigation began, however, city administrative staff met with Lev to discuss the complaints and investigation. Over successive days, this cooperative engagement deteriorated, and court administrators refused to participate. The city placed Peterson and Smith on paid administrative leave, igniting concerns about separation of powers and the authority of Lev over her court.
“Judge Lev did not agree to cooperate,” the city alleged in its statement. “Instead, she argued that she has sole authority over employees and working conditions in the courthouse because the court is a separate branch of government. She also made it clear that she knew who the complainants were and that she didn’t want them to work in her court anymore.” The city alleges Lev took retaliatory action against those employees.
The City Attorney’s Office researched the separation of powers doctrine advanced by Judge Lev and disagreed with her analysis of the issue.
“Mayor Fleetwood is the chief executive and administrative officer of the city with the prime responsibility of coordination and supervision of the activities of all departments and employees of the city, including municipal court employees,” the City Attorney’s office noted. The allegations against court administrators are serious and may include alleged violations of state laws and city policies. “If true, these allegations create the risk of liability for the city.”
Bellingham’s City Charter declares, “The mayor shall have the power to appoint and remove, subject to applicable civil service provisions, and except as otherwise provided in this Charter or by state law, all appointive officers of the city under the mayor’s jurisdiction or may authorize the head of a department or office responsible to the mayor to appoint and remove subordinates in such department or office.” However, the Charter appears to be in collision with Washington State Supreme Court General Rule 29, which asserts the presiding judge has administrative supervision over judicial branch employees and “cannot be delegated to persons in either the legislative or executive branches of government.”
The city administration appears to have overstepped the limits of their authority by threatening termination of uncooperative deputy court administrators under review before their investigation was complete. And City Hall is likely powerless when one of the subjects of the investigation is the presiding judge of the court.
Meanwhile, the union representing the employees has also filed a complaint of unfair labor practices against Judge Lev and court administrators. The union detailed a hostile work environment.
“Our members have been forced to work in the most bizarre and oppressive conditions imaginable,” Bellingham Local 1937 of the Guild of Pacific Northwest Employees complained in a statement. “After learning our member’s concerns, the Bellingham Human Resources department prudently hired an outside investigator to interview all parties. During the investigation, the city required all employees to refrain from retaliating against others. This is standard procedure for any investigation. Clearly, this directive was not followed.”
Commenting to the Bellingham Herald, union president Jael Komac observed, “Judge Lev may have the authority to supervise the employees of the court, but clearly she 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.
“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,” Komac said in a statement.
“The investigation report will show if any of the allegations of misconduct and mismanagement at the court have merit,” Fleetwood explained. “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.”
In all probability, the city will not prevail on this matter through the courts—the separation of powers doctrine is strong; however, the tragedy is that this preliminary investigation flew from the boardroom to the courtroom in the first place.
Lev is up for reelection in November. She is unopposed.