The city employees who blew the whistle about Seattle Mayor Jenny Durkan’s missing text messages sued the city Friday, alleging they were “constructively discharged” from their jobs in retaliation for their refusal to break the state’s public records law.
The seven-page complaint — filed in King County Superior Court by Stacy Irwin and Kimberly Ferreiro — contends that in response to their repeated efforts to “honestly comply” with the records law, the former public records officers were “routinely subjected to scorn, ridicule, abuse, and hostility” from the mayor’s former legal counsel, Michelle Chen, and other unidentified “managers at the City of Seattle.”
“The history of abuse and hostility, retaliation and the demand to perform illegal actions created a hostile work environment which no reasonable person could be expected to endure,” the women’s attorneys, Susan Mindenbergs and Jeffrey Needle, wrote in the suit.
A spokesperson for Durkan’s office referred questions about the lawsuit to the Seattle City Attorney’s Office, which did not immediately respond to requests for comment late Friday.
In May, a Seattle Ethics and Elections Commission investigation report revealed that Durkan’s texts from late August 2019 to late June 2020 had not been retained. Several high-profile lawsuits that have been filed against the city focus on decisions the mayor and other officials made in June 2020, during racial-justice protests and unrest on Capitol Hill.
Triggered by a complaint that Irwin made in March, with support from Ferreiro, the ethics commission’s investigation determined Chen had broken the state’s Public Records Act and diverged from best practices while dealing with requests from reporters and others for Durkan’s communications.
The investigation didn’t examine how or why the mayor’s texts went missing; it focused on how requests for those records were handled.
Under state law and guidelines, local elected officials’ texts and other communications about public business must be kept for at least two years before being transferred to the state archives for further assessment.
Darwin Roberts, a lawyer representing Chen — who submitted her resignation from the city last month — has criticized the investigation as rushed and unfair.
“The allegations in the lawsuit are false,” Roberts added in an email Saturday. “Ms. Chen absolutely did not engage in any supposed ‘cover up.'”
“Ms. Chen was following the legal advice of the City Attorney’s Office and assumed all existing text messages would be released to the public,” Roberts said. “Ms. Chen had no incentive to retaliate against Irwin or Ferreiro because Ms. Chen was not trying to hide anything.”
Emails also indicate that Chen told Irwin and Ferreiro she was seeking advice on handling records requests for the missing texts from Durkan’s chief of staff.
A retired judge subsequently hired by the mayor’s office determined the ethics investigation was conducted appropriately. Durkan has since acknowledged that “the underlying actions fell short of the obligations under the PRA.”
According to their lawsuit, after the two records officers discovered in August 2020 that 10 months of the mayor’s texts were missing — including many that “would have been potentially responsive to many pending requests for public records” — Chen directed them to take various illegal actions.
Those included instructing Irwin and Ferreiro not to inform records requesters that Durkan’s texts were missing and to “recreate” certain messages from the phones of people with whom the mayor had been texting, the lawsuit states.
The records officers also were told to “alter” the re-created text messages to “obscure the fact that these versions of the text messages were not sent by the mayor,” and to narrowly interpret 48 pending requests to exclude Durkan’s texts from 28 of them, the suit says.
Chen also instructed Irwin and Ferreiro “not to produce records responsive to a PRA request from The Seattle Times because she did not like the content of the responsive records,” according to the lawsuit.
The newspaper separately filed its own lawsuit against the city in June, alleging it mishandled requests from reporters for Durkan’s and other officials’ text messages during the tumultuous period last summer when police abandoned the East Precinct and used tear gas on protesters.
After the issue of missing texts became public in May, Durkan’s office initially attributed the loss of the records to an “unknown technology issue,” even though emails indicate her office had known for months that Durkan’s texts were set to automatically delete on a phone she started using in July 2020.
Neither Durkan nor the IT department has taken responsibility for selecting that setting, which violates state law and the city’s retention policies. A written report by a consultant who conducted a forensic analysis is pending, and the city has spent at least $201,000 for that work.
Texts from eight other officials, including the city’s fire chief and then-police chief, are also missing from periods that include June 2020. The city has attributed some of those missing texts to password and software problems.
Irwin and Ferreiro, both of whom had worked at the city since 2014, left their jobs earlier this year. Their lawsuit follows claims each filed against the city in July seeking $5 million in damages.
Both contend they have suffered “extreme emotional distress, depression, anxiety, loss of sleep, and loss of self-esteem” as a result of working under hostile conditions in the mayor’s office, as well as “lost wages, past and present, and medical bills.”