Thursday, February 20, 2020

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 wrongThe 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 hiredSee “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. Bobs 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

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