Confabulation

Humans have a deep need to make sense of their experiences. We accomplish this by telling stories to ourselves and each other. 

It’s biological. According to Nobel prize-winning psychologist Daniel Kahneman, “The normal state of your mind is that you have intuitive feelings and opinions about almost everything that comes your way.” As new sensory input is added to our existing memories and beliefs, human brains constantly strive to maintain a coherent model of the world around us. 

Even though we seldom have access to every piece of relevant information, life has to go on. Our brains are therefore designed to make sense of things that don’t necessarily make sense yet, by telling stories anyway.

Human brains consist of two hemispheres. No one knows why. The famous “left brain” and “right brain” are connected by a thick bundle of nerve fibers, like an industrial extension cord, called the corpus callosum.

Even with the recent development of imaging technologies like MRI, CT, and PET scans, most aspects of brain function remain a mystery. However, previous generations had even less data, particularly regarding healthy brains. Scientists had to rely either on autopsies or on their observation of patients with localized brain injuries. 

During the 1960s and 1970s, before the advent of powerful new medications, some epilepsy patients with overwhelming symptoms were treated by severing their corpus callosum. This stopped the electrical firestorms in their brains. But it also radically altered how the patients’ minds worked.

Eminent neuroscientist Michael Gazzaniga has spent his career tracking this cohort of patients to see what their experiences teach us about how the human brain processes information from each hemisphere. Here’s Steven Pinker’s description of one of Gazzaniga’s famous experiments:

Language circuitry is in the left hemisphere, and the left half of the visual field is registered in the isolated right hemisphere, so the part of the split-brain person that can talk is unaware of the left half of his world. The right hemisphere is still active, though, and can carry out simple commands presented in the left visual field, like “Walk” or “Laugh.” When the patient (actually, the patient’s left hemisphere) is asked why he walked out (which we know was a response to the command to the right hemisphere), he ingenuously replies, “To get a Coke.” When asked why he is laughing, he says, “You guys come up and test us every month. What a way to make a living!”

In The Happiness Hypothesis, philosopher Jonathan Haidt uses the word “confabulation” for the phenomenon Gazzaniga observed:  even people with healthy brains “readily fabricate reasons to explain their own behavior.” 

In a technical psychological sense, “confabulation” is pathological. German psychiatrist Karl Bonhoeffer coined the term in 1900. He used it to describe when a person gives false answers, or answers that sound fantastical or made up. Confabulation is a common symptom of various disorders in which made-up stories fill gaps in memory.

Haidt uses the metaphor of a “press secretary” to explain the role of the reasoning module of our brain and its relationship to our conscious mind. We can’t resist offering explanations, even when our brains are operating with incomplete information. 

Haidt wrote his book long before Donald Trump’s election. Sarah Huckabee Sanders may have removed any distinction between the confabulation of actual press secretaries and the behavior of pathological liars.

Lawyerly confabulation can also be pathological.

When I began seeking answers and accountability three years ago, the Washington Attorney designated Assistant Attorney General Suzanne LiaBraaten to represent the State’s interests in   

connection with my disputes. Although other lawyers from the Attorney General’s Office have subsequently appeared, including Solicitor General Noah Purcell, Ms. LiaBraaten has remained the State’s point person. She should be very familiar with the record by now.

In December 2018, I filed bar complaints regarding the conduct of the two experienced employment lawyers who were involved in violating Rule of Professional Conduct 4.2, which prohibits lawyers taking advantage of a person who is represented by counsel by having him interrogated without his lawyer’s knowledge. These bar complaints are currently pending with investigators at the Office of Disciplinary Counsel of the Washington State Bar Association. 

On January 18, 2019, Ms. LiaBraaten filed a written “Preliminary Response” to the bar complaints on behalf of her colleagues Chief Deputy Attorney General Shane Esquibel and his flunky Assistant Attorney General Kari Hanson. Among other misleading and inaccurate statements in the Preliminary Response, Ms. LiaBraaten made the following assertion:

“While Mr. Leishman was on home assignment based upon his alleged misconduct, the reasonable accommodation process was put on hold.”

However, an employer cannot unilaterally place “on hold” the interactive disability reasonable accommodation process required by the Washington Law Against Discrimination and the Americans with Disabilities Act. To the contrary, employers have an independent affirmative duty to participate in good faith in an interactive reasonable accommodation process. See, e.g., Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 779-80, 249 P.3d 1044 (2011) (“reasonable accommodation envisions an exchange between employer and employee”). Ms. LiaBraaten’s representation was false.

Last year I submitted a request to the Attorney General’s Office under the Public Records Act seeking a copy of “All records showing that the reasonable accommodation process was placed on hold while I was on home assignment.” Over the next five months, the Attorney General’s Office repeatedly requested additional time to respond. The Attorney General's staff referred to the purported “intricacies” of my PRA request, and represented that personnel in the office were diligently engaged in efforts to locate responsive documents, if any. 

However, when they finally responded, Ms. LiaBraaten’s colleagues at the Attorney General’s Office were unable to identify a single responsive record. The State’s failure to locate any corroborating evidence comes as no surprise – it’s impossible to escape the conclusion that Ms. LiaBraaten manufactured her post-hoc rationalizations out of whole cloth, presumably for the purpose of deceiving the Office of Disciplinary Counsel about her co-workers’ misconduct. 

As usual, last night after rehearsal with Vancouver Men’s Chorus I went out to the piano bar to listen to showtunes and sing along. It was the first anniversary of the weekly Showtunes Night at its current venue, so the crowd was large and in excellent voice. Several talented soloists took the mic – not me, obviously – and wowed the crowd. In the best performance I heard all night, one of the regulars sang “For Forever” from Dear Evan Hansen.

Like much of theater from Aristophanes through Shakespeare, the plot of Dear Evan Hansen centers on a misunderstanding. Evan is a high school social misfit. Conner, the older brother of Evan’s secret crush, is a troubled stoner. After Connor’s suicide, his parents erroneously leap to the conclusion that Evan and Connor had been close friends. For example, Connor was the only person at school who signed the cast on Evan’s broken arm. Connor’s distraught parents invite Evan over for dinner in hopes of making a connection to their son that they failed to achieve when he was alive. 

“For Forever” is a lovely piece of music, and Patrick sang it exceptionally well last night. But for me it represents the worst moment in the play. Previously, Evan had responded to inquiries from Connor’s mother with vague nods that offered her some of the comfort she desperately needed. Then as Evan starts singing “For Forever,” he tells an elaborate story about breaking his arm while climbing a tree on an imagined idyllic roadtrip with his best bud Connor. The song’s fantasy also re-writes the reality that Evan actually broke his arm in a failed suicide attempt. 

Evan is human. He can’t resist confabulating his casual acquaintance with Connor into a deeply meaningful friendship. Sure enough, once the previously isolated Evan starts weaving this increasingly detailed story, it brings him the attention and community he’d never known before. Connor’s sister becomes Evan’s girlfriend.

By the end of the play it all unravels. Of course.

I’ve written in previous blog essays like "Lilies That Fester" and "Some Days We Are All Less Smart" about how lawyers can easily enter into an unhealthy relationship with the truth. As I wrote last year about Ms. LiaBraaten herself in "7-Eleven Law School is accredited!,"

Being a lawyer is a moral hazard. There's always a tension between our duty of “vigorous advocacy” on behalf of the client, and our duty of “candor to the tribunal.” Everyone recognizes there can be grey areas. But not as much grey as some lawyers delude themselves into seeing.

I’m a big believer in second chances. (And third chances, and fourth chances, and….) Over the last year I repeatedly urged Ms. LiaBraaten to correct the false statements in her submission to the bar association. However, like her colleagues at the Attorney General’s Office, Ms. LiaBraaten refuses to acknowledge even the possibility of wrongdoing by anyone who has ever worked for the State, other than me. 

Washington Rule of Professional Conduct 8.1(a) provides that a lawyer shall not “knowingly make a false statement of material fact” in connection with any “disciplinary matter involving a legal practitioner.” On February 11, 2020, I filed a complaint with the Washington State Bar Association regarding Ms. LiaBraaten’s misconduct.

When does your version of events stop being storytelling, and become a plain old lie?  When you know it’s not true, but you keep telling same old story anyway.

Do Gay Androids Dream of Electric Brunch?

Yesterday in “Artificial Emotional Intelligence,” I described how the intersection of social anxiety and Post-Traumatic Stress Disorder has resulted in a strange phenomenon:  in my memory, the images of most other gay guys I know are saved as something like cartoon Muppets. For example, the piano player at Showtunes Night looks like a non-green Kermit the Frog. 

To keep things interesting, my memories aren’t limited to fuzzy gay puppets. I get other fantastical creatures, too. One of the other Americans in Vancouver Men’s Chorus tends to be a bright blue Disney character, but with Frank’s Latin features and black glasses. Usually Frank resembles the Genie from Aladdin. Sometimes he’s more like Dory the fish.

Last Wednesday at Showtunes Night I ran into a Second Tenor I hadn’t seen since December. We’ll call him “Chard.” I barely recognized him – Chard got a fabulous new haircut while he was away visiting his family in China. (I told him the corresponding trim at Supercuts for straight eleven-year-olds on a budget is called “The Bart Simpson.”)

While I sat listening to songs by Gershwin and Sondheim, I observed Chard fiddling with his phone nearby. Interestingly, whenever I looked away he remained a real human in my mind. So I conducted an experiment. I closed my eyes for a few minutes, opening them briefly every twenty seconds. While my eyes were closed, I remembered an actual human face – but a different face each time. Every time I opened my eyes I thought, “Who’s that cute Asian guy? Oh, it’s just Chard.”

The Muppet-memory phenomenon mostly applies to gay guys I already know, such as the men of Vancouver Men’s Chorus and the other regulars at Showtunes Night. They give my subconscious something to work with in order to generate each image. In contrast, as I confessed in “Artificial Emotional Intelligence,” most gay strangers don’t look like cartoon Muppets in my memory. They’re human. But they all look the same.

However, last week I realized the buff bearded bartender at Pumpjack also appears to be an actual human being, even when he’s not in the room where I can see him. Because I’ve interacted with him every Wednesday for ages, my initial hypothesis was that he must be straight.

That left me confused. At least on a subconscious level, I have preternaturally accurate gaydar. I asked my friend Trish for her opinion. In my experience, nice straight girls who’ve hung out in musical theatre for too long either have infallibly protective gaydar, or they cluelessly fall in love with all the boys in the chorus. Trish said she assumed the bartender is gay. So we had one and an half votes against my heterosexual non-Muppet hypothesis.

As a parent, you’re not supposed to have a favourite child. To compensate, you can have other kinds of favourites. Everyone knows I prefer our dog Bear over the shaggier, fatter, and dumber Buster.

The singer in our section of Vancouver Men’s Chorus with my favourite voice is Zack. He’s also a talented musician. Zack arranged the Sinead O’Connor number for our June concert “R-E-S-P-E-C-T: Celebrating Women’s Music.” The Second Tenors have the best part in the song.

While chatting at Pumpjack last week about the upcoming concert, I realized that in my mind Zack is a human being rather than a Muppet – but he looks exactly like the similarly buff and bearded bartender who works on Showtunes Night. So do several other guys I know.

Apparently the kaleidoscope in my subconscious is convinced there’s an infinite number of cute gay Asian guys out there. But only one cute gay lumberjack.

More Showtune Night Stories:

"Missing Marie's Crisis" (5/6/17)

"Get Out and Stay Out" (10/18/17)

"Six Degrees of Kristin Chenoweth" (10/31/18)

"Comfort Animals" (4/24/19)

"I am Third" (5/29/19)

"Spongeworthy" (6/13/19)

"Maybe I Love Showtunes Too Much" (9/17/19)

"Artificial Emotional Intelligence" (2/25/20)

"A New Brain"  (5/5/20)

Artificial Emotional Intelligence

Four years ago, abusive treatment by the State of Washington and its tools triggered a debilitating case of Post-Traumatic Stress Disorder. Among other things, PTSD weirdly amplified many of the anxiety symptoms I’d successfully coped with for years. My insomnia and teeth-grinding intensified. My mild case of trichotillomania (compulsive hair-pulling) became a painful distraction that has only gotten worse over the years. 

When it came to social anxiety, PTSD had the effect of moving me several notches further away from “normal” on the autism spectrum, particularly in my interactions with other gay men. I’ve lost much of my already dubious ability to read ordinary social cues. Faces are a blank. Nowadays I can’t tell if someone is hitting on me, or challenging me to a duel.   

My Bellingham physician diagnosed me with PTSD in November 2015. I joined Vancouver Men’s Chorus two months later, just as my legal career was falling apart.

During my first six months in VMC, I was in such a state of shock that I was essentially catatonic. At break time I would either remain in my chair, or stand clutching a wall. VMC being VMC, and Canadians being Canadian, of course everyone was terribly nice. But I was completely paralyzed.

Gradually I got to know a few other Second Tenors. I also learned some simple coping mechanisms, many of them adapted from the experiences of people living with Aspergers Syndrome, like Temple Grandin and John Robison. For example, I generally only to talk to someone after he initiates the conversation.

After I’d been singing with VMC for a few months, I realized I hadn't become friends on Facebook with many guys from the chorus, because I couldn’t tell whether we had that kind of relationship. Then I figured out a trick:  I could draw rough comparisons between the folks I met in Vancouver and the guys I’d sung with for fifteen years in Seattle.   

Obviously Vancouver Second Tenor “Chris Lam” corresponds to Seattle Second Tenor “Christian Tam.” That’s easy. But I was also able to match each of the friendly bearish Baritones who sit on the far side of the room during VMC rehearsal with his counterpart across the room in Seattle Men’s Chorus.

After four years in VMC, I still can barely speak to most of the guys in the chorus. Although I’ve been single the whole time, I haven’t been on a date or kissed anyone from VMC. (TMI, but that may be ten times longer than any comparable period of drought while I was single and singing in Windy City Gay Chorus or Seattle Men’s Chorus.) By the way, Fabyo doesn’t count – he’s a Brazilian personal space invader, married, and kisses everyone. 

I do have a small quota of hugs available for special occasions. Actually I’ve made a lot of progress, particularly when social interactions occur in a comfortable setting or with the benefit of musical or chemical enhancement. However, I can’t talk to folks during break at rehearsal yet, other than briefly chatting with someone I already know well. But that’s because the snacks are served in a crowded room with low ceilings – the kind of noisy environment that immediately overwhelms me. 

Every time I think I’m getting better, I realize how far I still have to go.

Over Winter Break, I decided it was time to shave off the beard I’d worn since Labour Day. I wondered whether shaving would place me in a majority or minority of the chorus. Then I had a startling realization – after a few weeks without seeing them, I couldn’t remember what most of the VMC guys look like with enough level of detail to determine whether they have facial hair.

I’ve written before about the quirkiness of the human brain’s ability to retain and process visual memories. As I slowly emerge from the fog of PTSD, the vague blur of gay faces has reached the point where, in my memory at least, everyone in VMC looks like a cartoon Muppet.

Most of the guys are very individualized Muppets or similar cartoon creatures, reflecting my subconscious’ weirdly filtered perception of their actual personality and appearance. I know my contemporary John has a beard, because in my mind he looks sorta like Groundskeeper Willie from The Simpsons, with a kilt and a wild white mane. Conversely, I know young Dawson is clean shaven, because he’s a Hummel figurine with alabaster skin and hand-painted rosy cheeks. With most other guys in the chorus, however, I’m left with a vague impression they could be either a smooth Muppet or one with tastefully trimmed gay facial hair. 

To test the phenomenon, I took a chorus roster and tried to quiz myself – shaved or unshaven? When I got to rehearsal and compared my results with the real live men of Vancouver Men’s Chorus, I realized I might as well have flipped a coin. 

Perhaps it was the showtunes, or the medicinal ginger hard cider, but the gay Muppet effect was particularly intense when I went out to the pub after VMC rehearsal two weeks ago. Throughout the evening, my friend Trish would gleefully listen as I closed my eyes and described what I was seeing:

·         Sean, the piano player, resembled a non-green version of Kermit the Frog.

·         One of the tenors was Freddy from Scooby Doo, ascot and all. By last call he was still Freddy, but drawn in anime style.

·         During the evening Trish introduced me to one of her friends I’d seen at the bar before. After he left, all that remained in my memory was a pair of clunky cartoon glasses.

·         Yogi was made of dough, like the dutiful son in the Pixar short “Bao.”

·         Luke looked like The Count from Sesame Street, but with glasses and in a tan colour palette. I’m not sure whether Luke has facial hair – I’ll have to check next week.

Back at Pumpjack the following Wednesday, I focused on the men who weren’t cartoon Muppets. I deduced that the phenomenon mostly applies to gay guys I already know, because they give my subconscious something to work with as it generates each image. (If I force the mental process, everyone becomes a faceless pastel drawing. If I really force it, they become stick figures.)

During the evening I noticed a cute gay couple at a table across the room. Even with my eyes closed they looked like human beings. Later their cute friend came and joined them. Also human. Then I noticed the same cute couple was sitting at a neighboring table. Later the same cute friend joined them. Soon all six cute gay guys started chatting with each other. Some had hoodies, some had black-framed nerd glasses. Whatever – apparently cute gay strangers are human but interchangeable.

Many of VMC’s cartoon Muppets are cute too. Which led to this horrifying revelation: either way, unless a cute gay guy is standing in my physical presence, in direct lighting, with my eyes open, I can’t tell you what he actually looks like.

After four years of PTSD-amplified social anxiety, I continue to figure out life hacks. Recently I realized the gay Muppet effect only applies to still photos, not to mental video footage. If I try to remember what a guy looked like while I observed him doing something, he’s blurry but human. Meanwhile, if I recall a specific photograph of him from Facebook, my brain applies something like an Instagram filter – rendering him as a Flemish oil painting, or in stained glass, or as a psychedelic poster. This allows me to triangulate enough data to generate a useful composite image. Now I can almost tell the bearish Baritones apart, even when I’m not over on their side of the room. 

Overall, my mental health is slowly improving. Hopefully soon I’ll be able to endure the noise enough to join the rest of VMC for snacks and conversation at rehearsal break. I’ll know whether someone is challenging me to a duel. Maybe someday I’ll meet a cute guy for coffee. Maybe I’ll even remember what he looks like. 

But I’ll miss closing my eyes and listening as Kermit the Frog plays the piano and sings Billy Joel songs on Wednesday nights.

Up tomorrow:  Do Gay Androids Dream of Electric Brunch?

More Showtune Night Stories:

"Missing Marie's Crisis" (5/6/17)

"Get Out and Stay Out" (10/18/17)

"Six Degrees of Kristin Chenoweth" (10/31/18)

"Comfort Animals" (4/24/19)

"I am Third" (5/29/19)

"Spongeworthy" (6/13/19)

"Maybe I Love Showtunes Too Much" (9/17/19)

"Do Gay Androids Dream of Electric Brunch?" (2/26/20)

"A New Brain"  (5/5/20)

Deaf Power

Last year while my lawsuit against the State's lawyer-investigators was pending before the Washington Court of Appeals, a former colleague asked me about the outlook for my appeal. Like Defendants’ newest attorney, my friend happens to be one of Washington’s A-list of top appellate lawyers. I explained that my legal position was definitely right, but that wasn’t enough to guarantee I would win. Of course not, he replied – the true purpose of the legal system is to protect “property, power, and privilege.” (Those are his words, not mine – only Harvard graduates think they can get away with that much alliteration.)

During the House impeachment hearings, Slate’s legal expert Dahlia Lithwick wrote that the challenge of speaking “truth to power” in the Trump era has degenerated into “speaking truth to nonsense.” I’ve personally endured years of legal argle-bargle substituting for actual arguments from the lawyers representing the State and its sleazy investigators at Ogden Murphy Wallace PLLC. 

As an unprivileged pro se litigant, I’ve developed a simple hypothesis:  regardless of the justice of your cause, and regardless of any tribunal’s diligence and good intentions, the first time you try to bring wrongdoing to a tribunal’s attention they’re going to get it wrong. The real question is what happens the next time.

Truth:     When the Washington Legislature passed the “Brenda Hill Bill” to protect private citizen whistleblowers, it did not intend to grant absolute immunity from civil liability for injuries caused by dishonest government vendors. See Leishman v. Ogden Murphy Wallace PLLC, 10 Wn.App.2d 826, 451 P.3d 1101 (2019); Answer to Petition for Review.

In November 2017, a busy King County Superior Court judge dismissed my lawsuit against Defendants, on the grounds that their taxpayer-paid assignment involved communicating with the firm's government agency customers. 

In the judiciary, the role of the Court of Appeals is to correct legal errors. Sure enough, the appellate court reversed the lower court’s erroneous statutory interpretation. The second time was the charm. It only took two years for the courts to get it right.

Now the case is pending before the Washington Supreme Court. This third time around I’m hoping for something more than merely getting the law right. Our Supreme Court should take this opportunity to provide clear guidance to lower courts and the public – not just about the proper interpretation of Washington’s whistleblower protection statute, but also about how the legal system should respond when lawyers start lying, and then won’t stop.

Truth:         Representatives of the State of Washington injured me, including some of the State’s top lawyers and the attorney-investigator they hired. See “My Story So Far”; Notice of Claim; Complaint.

Before filing any lawsuit against the State, you must first give notice of your claim to the Office of Risk Management. This agency is responsible for investigating, processing, and adjudicating claims for damages caused by State employees. The mission of the Office of Risk Management includes protecting the State from frivolous claims – but the Office is also responsible for ensuring that victims of official wrongdoing are fairly compensated, regardless of the exalted status of the accused employees.

The first time around, we didn't follow the Office of Risk Management's normal procedure. That’s part of the problem. In May 2016, Washington Attorney General’s Office wrongfully terminated me after weeks of stonewalling my employment attorney's attempts to discuss a reasonable accommodation of my disability. When she sent the State’s lawyers a detailed demand letter describing how my employer had discriminated against me on the basis of my disability, officials at the Attorney General’s Office responded by initiating a series of secret high-level damage control meetings. The State’s lawyers never addressed my attorney’s concerns. Instead, they proposed that we meet with a mediator who wasn’t available until October 2016. 

As I wrote last year in “Pandora’s Box,” during those months of delay the combination of PTSD and anxiety pushed my stress levels beyond the capacity of even my overdeveloped coping mechanisms. I became suicidally depressed for the first time in thirty years. Eventually folks remembered to have me fill out the Office of Risk Management’s mandatory claim form – after we’d already reached agreement on the terms of a settlement that was based on the very limited information available to the mediator, my attorney, and me. 

Nowadays my mental health is much improved. Through painful litigation and numerous requests under the Public Records Act, I’ve finally obtained copies of the damning evidence that the lawyers representing the Attorney General’s Office concealed from my attorney and me. After unsuccessfully seeking to resolve our disputes by negotiation, this week I filed a formal claim form with the Office of Risk Management seeking additional compensation from the State for both my original injuries as well as for subsequent misconduct by the Attorney General’s Office and Western Washington University. I look forward to seeing whether things work out differently the second time around.

Truth:        Senior lawyers at the Attorney General’s Office acted unethically when they directed their investigator to interrogate me alone in his office after they knew I had hired a lawyer to represent me in the matter. See In re Discipline of Haley, 156 Wn.2d 324 (2006) and Undisputed Timeline; “Bar Discipline.”

In Washington, every lawyer is a member of the Washington State Bar Association. WSBA’s mission is “to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” Among other functions, WSBA administers the state’s lawyer attorney discipline system. 

Washington Rule of Professional Conduct 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

According to the Washington Supreme Court, strict compliance with RPC 4.2 is essential to maintaining public confidence in the integrity of the legal profession. In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 599, 48 P.3d 311 (2002).

In December 2018, I filed bar complaints regarding the conduct of Assistant Attorney General Kari Hanson and her supervisor Chief Deputy Attorney General Shane Esquibel. These lawyers violated RPC 4.2 when they directed their investigator to interrogate me alone in his office for over an hour even though they knew I’d hired an attorney to represent me in my employment dispute with the State. 

In response to my bar complaints, inept bureaucrats at WSBA completely dropped the ball. At the request of the Attorney General’s Office, WSBA misapplied the Supreme Court’s rules and stalled the investigation. Then the WSBA staff inexplicably misplaced the file for eight months.

After the Supreme Court granted review in my separate lawsuit against the Ogden Murphy Wallace defendants, I renewed my request that WSBA immediately investigate the serious and well-documented allegations of misconduct by some of the State’s most senior attorneys. I also filed a new bar complaint documenting additional examples of unethical conduct by lawyers at the Attorney General’s Office. The public needs to be confident that unethical lawyers will be held to account, regardless of their employer.

I had the honor of being elected by my peers to serve on WSBA’s Board of Governors a decade ago. In recent years, critics of the bar association have contended that the organization is no longer capable of protecting the public and regulating the legal profession. I’ve been trying to keep an open mind. We will soon discover whether WSBA is up to the challenge.

Truth:     The Washington Constitution forbids the Attorney General’s Office from using tax-payer funds to represent private individuals, including State employees accused of unethical conduct. See Sanders v. State, 166 Wn.2d 164, 207 P.3d 1245 (2010) and Timeline of Undisputed Evidence; “Toxic Entitlement.”

Washington has very strict laws prohibiting the use of public resources for private benefit. Government attorneys in the Attorney General’s Office are therefore forbidden from representing individuals accused of ethical lapses. Sanders v. State, 166 Wn.2d 164, 207 P.3d 1245 (2010) (government attorneys may not represent state employees accused of unethical conduct); State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433 (1926) (when the Attorney General is “cognizant of violations of the constitution or the statutes by a state officer, his duty is to obstruct and not to assist”).

In Washington, the Executive Ethics Board has jurisdiction over allegations of misconduct by employees in the executive branch of government, including the Attorney General’s Office. Ordinarily, the Executive Ethics Board take the misuse of public resources very seriously. For example, in one case the Board fined a former Assistant Attorney General $500 for using government office equipment to prepare an eleven-page filing for his wife’s private lawsuit. 

Last year I submitted requests to the Attorney General’s Office under the Public Records Act regarding its role in the bar disciplinary proceedings involving Chief Deputy Attorney General Shane Esquibel and Assistant Attorney General Kari Hanson. It turns out lawyers from the Attorney General’s Office have spent thousands of tax dollars on legal fees defending their colleagues. This constitutes an illegal misappropriation of public resources. I therefore submitted complaints to the Executive Ethics Board. 

The staff of the Executive Ethics Board threw my complaints away. Literally.  

Kate Reynolds, the “Executive Director” who provides staff support to the governor-appointed Board, sent me an email informing me that she would “not be taking any further action on your complaints.” According to Ms. Reynolds, “how state employees carry out their actual job duties” is not subject to review under the Executive Ethics Act, as long as the employees were following “agency policies.”

Ms. Reynolds’ “we were just following orders” analysis is frivolous. Bob Ferguson can no more order his underlings to violate their ethical duties than he can adopt a policy directing them to shoot someone in the middle of Fifth Avenue. Likewise, Ms. Reynolds’ decision to simply ignore my ethics complaints is lawless. The Executive Ethics Board has adopted rules and procedures under which the Board will review the staff’s decision to formally “dismiss” a citizen complaint. However, Ms. Reynolds contends there wasn’t anything to dismiss, so there’s nothing I can do.

Interestingly, although the Executive Ethics Board is an independent state agency, it is housed within the Washington Attorney General’s Office. Ms. Reynolds ultimately reports through the chain of command to Bob Ferguson himself – just like Chief Deputy Attorney General Shane Esquibel, Senior Counsel Kari Hanson, Assistant Attorney General Suzanne LiaBraaten, Special Assistant Attorney General Mark Fucile, and the other government attorneys accused of unethical conduct.

This week I filed new ethics complaints against Ms. Reynolds’ office mates. If she ignores me again, before taking her to court perhaps I’ll appear before the Executive Ethics Board during the public comment period at the Board’s next meeting, and let them know Washington has a very serious ethical problem.

I have one final powerful audience out there.

When I started my advocacy efforts almost three years ago, I shared the jumbo “venti” version of my story in the form of a “Dear Bob” letter to Washington Attorney General Bob Ferguson. This week I went back and re-read my public “J’accuse.” It’s 10,824 words, which is much longer than anything else I’ve published on this blog. It’s still pretty good writing.

“Dear Bob” seethes with the raw rage of PTSD that I’ve subsequently learned to focus. Somewhat. Nevertheless, I stand behind every word. My legal analysis remains sound. The factual allegations are totally accurate, even though I wrote my letter without the benefit of the secret files the State and its investigator refused to share with me voluntarily. Subsequent disclosures obtained through litigation and under Washington’s robust Public Records Act corroborated every detail. 

Even with the benefit of hindsight and numerous “smoking gun” emails, there are only two additional points I would add to my original “Dear Bob” letter. First, I discovered my horrifying experience cannot be dismissed as the result of mere misunderstanding or miscommunication, or even incompetence. Bob’s minions – including his top lieutenant, Chief Deputy Attorney General Shane Esquibel – knowingly violated some of an attorney’s most important professional duties. Then they intentionally misled my lawyer and me, before embarking on the illegal taxpayer-funded coverup that continues today.

My second chilling epiphany involved one of the many examples of the State’s anti-gay bias described in my “Dear Bob” letter: 

Channeling one Western employee’s bias, your representatives determined it was “insensitive and inappropriate” for me to use the analogy of the Seattle Men’s Chorus’ first conductor search in thirty-five years during a public Board discussion about the Trustees’ own presidential search process. To the contrary, I see your subordinates' reliance on this item as a further example of your office’s deeply institutionalized homophobia, and its unlawful demand that I squeeze back into the closet….  

It was wrong to fire me because some fragile middle-aged white man in Bellingham could not handle being exposed to part of a conversation about the search experience at one of Seattle’s leading arts organizations. Regardless of whether bias comes from the Attorney General’s Office itself or from its client, you know perfectly well an employer cannot facilitate invidious discrimination.

Years later, documents produced under the Public Records Act revealed that the fragile Baby Boomer critic of my gay arts analogy was the President of Western Washington University himself. Senior officials at the Attorney General's Office intentionally and misleadingly attempted to erase former President Bruce Shepard from the story. The State should be ashamed of covering up evidence that Bruce Shepard personally insisted on destroying my life, just as he did to others in the university community.

Here’s how my “Dear Bob” letter ended:

Remember back when Facebook asked for your “motto”? I picked an Italian phrase that, while a favorite since college, has taken on even deeper meaning for me in the last year – e pur si muove. That’s what Galileo is reputed to have said when the Inquisition forced him to recant his contention that the earth moves around the sun. But after confessing the then-Catholic dogma that the earth rests motionless at the center of the universe, he supposedly muttered e pur si muove:  “It still moves.”

I’m still gay and that’s great, regardless of what some bigoted old men in Salt Lake said to me thirty years ago, or what a bunch of ignorant government lawyers say to me now.

I’m still both an excellent lawyer and a disabled person, regardless of what some insensitive and incompetent State bureaucrats said to Ogden Murphy.

I’m still the victim of discrimination that injured my family in your name, regardless of what those serial whitewashers at Ogden Murphy said in their shameful tax-payer funded Report.  

And I’m still confident my friends – and the jury – will recognize the truth when they hear it. 

The Ogden Murphy Report amplified a bunch of bureaucrats’ lies, and sent them back to reverberate in the echo chamber you preside over. Some day you may find the courage and decency to do something about this tragedy. Meanwhile I intend to continue telling my story.

After the Oso landslide evidence spoliation scandal and the Department of Correction prisoner early release fiasco became public, Bob Ferguson commissioned internal reviews to determine what his office did wrong. Has the Attorney General done anything to examine how his subordinates handled my disability accommodation request and my sexual orientation discrimination complaint? Or was Bob in the loop all along?

Since I wrote my “Dear Bob” letter, Washington Attorney General Bob Ferguson has remained mute as well as deaf. It’s probably for the best. I moved on to a new audience long ago. 

When powerful men ignore injustice, the way to speak truth to power is to find someone else who will listen. Ultimately it’s for the voters to decide what kind of Attorney General they want.  

In the meantime, Bob, I’m not talking to you anymore. I’m talking to everyone else.

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce