The basics of Mayor Fleetwood’s attack on the Municipal Court

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A reader comment, under my brief article reporting city attorney James Erb being found guilty of “unethical behavior” by the Superior Court, says she backs the mayor because he is trying to eliminate workplace abuse in the Municipal Court. This is a reply to her comment and a summary of what we actually know about this situation. For starters, we do not know if there has been workplace abuse, as there has not been a single comment from a single employee. We have heard only one side of this story and that only from union bosses. We also know the city has been unhappy with the independence of Municipal Court Judge Debra Lev. The mayor and city attorneys would prefer someone more aligned with their own interpretations of our regulations and visions for the city.

This issue seems to stem from two decades of the city's frustration. In 2001, the city created the Municipal Court and in November of that year, Deb Lev beat Stark Follis in a landslide for the judge position. Some of us old timers remember Follis being favored by the city and they were certainly upset that Lev won. She was not one of the good old boys. However, she has been popular with voters as she has been reelected every four years since then and is running unopposed this November. 

Yet today, we have city attorney and wanna-be judge, James Erb, who, after losing two elections - judge and county prosecutor - has not only failed to advance his career, but has been found guilty of “unethical behavior” for attempting to bully our repeatedly-elected municipal judge, Deb Lev.  In the past, it was apparently only the restraining hand of former city attorney, Peter Ruffatto, who resigned in March, that kept attorneys Alan Mariner and James Erb in check. With Ruffatto gone, they have convinced Fleetwood to allow them to attack the court, possibly for some reasons of advantage to the executive. And they have now been convicted of “unethical behavior” in Superior Court. Chaos now reigns as people are confused about what is actually happening and why. 

Here are the basics of this confusing mess we find in our city government.

Key and unique to our system of government is that of separate but equal branches to provide checks and balances.  These branches are: the legislative branch which makes laws, the executive branch that carries them out, and the judicial that defines what laws mean in specific situations. 

Crucial to these three branches being able to work together is that each branch must police, manage, and control their own processes. Without that autonomy, one branch could interfere with, dominate, or corrupt another branch, thereby subverting its independence. There are constitutional provisions on both the national and state levels that define when one branch can interfere to “correct” another branch - such as the legislative branch stepping in to impeach the executive. 

In this local situation, there are two issues, the first being whether there are work place problems at the court, and the second being who is responsible for investigating and fixing those problems. In fact, the state court system has the legal responsibility of investigating and fixing work place problems in every Superior, District and Municipal Court of every county and city in the state of Washington. However in this case, our executive branch, the mayor and his city attorneys, have tried to interfere in our judicial branch.  

The only information the Weekly and Herald have reported is what the union representatives have said about possible work place problems. The appropriate process would have been for the union to have reported these possible work place abuses to the state court system. For reasons that have not been explained, this union chose to approach Mayor Fleetwood, who, as an attorney, should have redirected the union to the judicial branch. He did not. 

We are a nation of laws, whose structures and constitutions exist to guide us when solving problems. We have all agreed, for instance, that individuals cannot go into someone’s home with a gun because they suspect the neighbor is abusing their partner or children. Likewise, we have agreed that no branch of the government can simply suspect another branch is corrupt and go in, take over, and start “fixing” things, i.e. ordering people to stop working, or leave, or cooperate, or be fired. There is a legal system and process we have already agreed to employ. In this case, the executive branch of the mayor and city attorneys is neither the system, the process, nor even the right branch of government to be involved. 

It is a basic tenet of our democracy.  

In closing, I encourage you to read a letter we posted a week ago from Mary Kay Becker, a retired state appeals court judge.   She served 25 years on our Washington Court of Appeals and is truly a voice of authority on this issue.  She is well known and respected in Bellingham.

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About John Servais

Citizen Journalist and Editor • Fairhaven, Washington USA • Member since Feb 26, 2008

John started Northwest Citizen in 1995 to inform fellow citizens of serious local political issues that the Bellingham Herald was ignoring. With the help of donors from the beginning, he has [...]

Comments by Readers

Dick Conoboy

Jul 03, 2021

 To all readers,

I have somewhat of a related question regarding the role of the City Attorney in Bellingham, who by the city charter, provides legal counsel for the city, both the executive and the city council.  https://bellingham.municipal.codes/Charter/VI 

Notwithstanding the council’s ability to approve/disapprove the appointment of a city attorney, is this arrangement not also a conflict in that the city council often has differing positions on legislative issues?  Should the council not have its own attorney to advise that body of problems and alternatives?

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Angelo Tsoukalas

Jul 03, 2021

Great writeup about how our government works Mr. Servais. More people need to know this. As you know the separation of powers is what has kept our country from turning into an autocracy (dictatorship) for over 245 years. Everyone needs to know this, especially the younger people. I learned all this in high school and at UCF in the late 1980s when I received my BA’s in political science and economics. Despite our faults, some very terrible (hopefully they get corrected), the incredible wealth and freedom this country has experienced is unprecedented in the hisotry of the world; even the poor people on welfare are considered rich by most of the world. Venezuelan migrants coming through the border were asked recently what they thought of Socialism & Marxism and said they were getting away from it. When told there are people that want that here, they said they should go to Venezuela and see for themselves how Socialism & Marxism work. It’s too bad we can’t hear what North Korean migrants think because there aren’t any - they’ll shoot them if they try to escape that utopia. 

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Steve Harris

Jul 03, 2021

 Well…this is quite the mess.  There isn’t a complete separation (I’m sure most are aware) as the City Human Resources and Finance Departments (both are Mayor controlled) generally control all employees working for the City.  Judge Lev doesn’t issue pay checks, she doesn’t contract for employee benefits, and the Union representing the  municipal court employees don’t negotiate with Judge Lev over wages and working conditions.  State collective bargaining laws require this to occur with the “employer”, which isn’t Judge Lev. 

So…if an employee has a grievance related to working conditions, collective bargaining laws would require the grievance to be filed with the City HR dept, not Judge Lev.  Herein lies the current problem. There needs to be a distinction made between collective bargaining related issues with employees versus day to day control, discipline, counseling, termination, etc. 

I’ll use my own circumstance as an example:  I work for an elected official who hold an executive branch office in Whatcom County.  He had the ability to hire, fire, counsel, set hours of work, and other working conditions of his employees.  However, all of that needs to comply with civil service rules and the collective bargaining agreements (CBA) of the employees.  If he violates any of the terms of a CBA then the union can file a greivance (for a CBA violation) or an unfair labor practice (ULP) for other violations of WA labor law that aren’t specifically addressed by a CBA.  As Whatcom County, not the elected official, is the employer, HR and the County Exec would have to resolve these issues. 

 

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Jon Humphrey

Jul 03, 2021

I am copying my comment from your previous article. This government, now and going back to the Linville administration, believes it is above the law and doesn’t care what the people think or need. We see it in every issue we work on. This administration is a government by the government for the government. 

Having worked on the public broadband issues for years, and done many public record requests, I can tell you that the COB is not transperant. On top of that James has been gunning for a judge position for years and apparently Seth will help him get it any way he can. The COB does not believe in the rule of law. I have had many issues getting accurate public records from the COB and schools as well. As Angelo says, “It’s like a septic tank, the big chunks always manage to float to the top!”

Also, why are they spending time of this when we still have a homelessness crisis, broadband access crisis, food security crisis, housing crisis, poverty crisis and more? Shouldn’t our mayor and staff be helping convert abandoned buildings for use by the homeless, etc.? Just look at broadband, the COB sat on an entire existing public fiber-optic network througout a pandemic. I literally saw teachers cry over how their students chouldn’t participate via Zoom because of inadequate broadband connections. We offered to hook the gear up for them, but the COB sat on it instead or worse. The overpriced wireless solutions they bought were virtually worthless and the low-income connections they subsidized were even worse. Yet the entire time they had an existing fiber network they could have let the public use! Guess James and Seth’s beef with another member of the upper echelon must have been more important to them. 

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Steve Harris

Jul 03, 2021

I would agree that the Mayor’s Office would be precluded (by separation of powers) in attempting to interfere in HOW Judge Lev handles day-to-day employee issues as long as she is complying with CBA’s and other labor law.  — 

Thanks to John for continuing to update the public on this very concerning issue.  

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