The public records officers who blew the whistle about Seattle Mayor Jenny Durkan’s missing text messages earlier this year have filed claims against the city, alleging they felt compelled to resign after being subjected to hostile conditions and retaliation in the mayor’s office.
The claims by Stacy Irwin and Kimberly Ferreiro each seek $5 million in damages. Under state law, claims must be filed at least 60 days before the city can be sued. Irwin and Ferreiro plan to sue if their claims aren’t resolved in that time, said their lawyer, Susan Mindenbergs.
“The City is not able to comment on pending claims or litigation,” Durkan spokesperson Anthony Derrick said Wednesday.
In early 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 last June, during racial-justice protests and unrest on Capitol Hill.
Triggered by a complaint that Irwin made, with support from Ferreiro, the ethics commission’s investigation determined that the mayor’s office had broken the state’s Public Records Act (PRA) 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.
The legal counsel for the mayor’s office, Michelle Chen, engaged in “improper governmental action” by using narrow interpretations of certain requests to exclude Durkan’s texts from those requests, the commission’s investigation found. Chen also directed the records officers not to inform requesters that Durkan’s texts were missing and to instead provide them with some exchanges “re-created” from the phones of employees the mayor had texted with, the investigation determined.
Durkan had 60 days under Seattle law to reply to the commission’s investigation with steps to address Chen’s conduct.
In a letter to the commission in May, a lawyer representing Chen criticized the investigation as rushed and unfair, arguing it failed to account for: advice about the missing texts that Chen received from the Seattle City Attorney’s Office; potential bias by Irwin and Ferreiro; and efforts by Chen to improve records work in Durkan’s office.
Chen’s lawyer, Darwin Roberts, said Wednesday: “Ms. Chen strongly denies the allegations by Ms. Irwin and Ms. Ferreiro. She looks forward to the facts of this matter becoming public in any suit they might bring.”
The mayor’s office hired retired Judge Bruce Hilyer through the City Attorney’s Office to conduct an independent review, and Hilyer determined the commission’s investigation was conducted appropriately. He recommended that Chen no longer oversee public records, that the mishandled records requests be reopened and that the mayor’s office overhaul its records system.
In a July 2 letter to the commission’s executive director, Wayne Barnett, Durkan agreed that “the underlying actions fell short” of the city’s obligations under the PRA, writing that “no government should be looking to narrowly apply the law.” The mishandled requests have been re-evaluated and a systematic overhaul has begun, she wrote, noting that Chen has technically been on loan from the City Attorney’s Office.
Chen’s time in the mayor’s officewill end in August, and the city’s human resources department has recommended that she receive a written reprimand, additional training and removal from records work, Durkan wrote. While Chen has been removed from records work for the mayor’s office, Durkan believes other actions are up to the City Attorney’s Office, she wrote.
“I do want to note that while I agree Ms. Chen’s actions here did not comport with the PRA, I believe it would be deeply unfair to define Ms. Chen by these actions,” the mayor added.
“During her tenure, Ms. Chen has provided invaluable work and dedicated service to the City. This is particularly true over the last 16 months of historical challenges for our City,” Durkan said.
The claims filed by Irwin and Ferreiro allege they were demanded to “perform illegal acts” and were “subjected to scorn, ridicule, abuse and hostility from Ms. Chen and managers” in retaliation for their trying to comply with the PRA.
That created “a hostile work environment which no reasonable person could be expected to endure,” the claims say. Irwin went on leave in February and Ferreiro in March “due to stress and anxiety,” the claims allege. Irwin resigned on July 1 and Ferreiro on April 2, according to the claims.
Durkan’s office initially attributed the loss of her texts to an “unknown technology issue,” then acknowledged that her phone at some point was set to delete texts older than 30 days.
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 $123,000 on the work.
Texts from eight other officials, including the city’s fire chief and then-police chief, are also missing from periods that include last June. The city has attributed some of those missing texts to password and software problems.
The Seattle Times sued over the matter last month, alleging the city violated the law by withholding, destroying, losing or otherwise failing to retain Durkan’s records after they were requested by reporters.
Durkan has said she didn’t know her texts weren’t being retained and has said transparency is a priority for her. In March, the city launched a pilot project in the mayor’s office for automatically preserving texts and other data in the cloud.
In her whistleblower complaint, Irwin wrote: “I have knowingly broken the law following Michelle’s advice and while I tried to push back, ultimately she has proven her power.”
She added: “Michelle is a fear-based leader and occasionally likes to remind us we work at the will of the mayor, which to us was a subtle reminder that they could let us go at any time.”
Roberts, Chen’s lawyer, said: “It’s nonsense to suggest Ms. Chen ordered Ms. Irwin or Ms. Ferreiro to hide public records … Ms. Chen at all times sought to act according to the law, under the legal advice she received from the City Attorney’s Office, regarding how to process the pending PRA requests. Ms. Chen also tried to help recover copies of the Mayor’s text messages that the City’s systems lost, and advocated for improvements to the City’s systems to better preserve records.”