LYNNWOOD, Wash., August 20, 2022— A third-party investigation by Haggard & Ganson LLP into one of Lynnwood’s councilmembers concludes that “claims of race and sex discrimination” by one complainant is substantiated but the claim of a hostile work environment by the other “not substantiated.” The council will decide in September on possible disciplinary actions against one of its own, if any. The Council is currently in its annual recess until September 6, 2022. 

On August 8, 2022, the City Council was informed of the outcome of the investigation and reviewed a report containing redactions of complainants’ and witness’s names as required by State law RCW 42.56.250(6). The investigation originated from complaints of alleged discrimination submitted by two city employees against Councilman Jim Smith.

“After participating in and reviewing the documentation provided, I was pleased to see that there was not any merit to the discrimination claims by two City employees,” Councilman Smith told the Lynnwood Times on his thoughts of the report’s findings. “All communication protocols were followed, and all emails were polite, succinct, and were appropriate. Our service to our community is the responsibility of not only our employees, but our elected officials as well.”

After an executive session that included the City’s attorney on May 9, the Lynnwood City Council voted unanimously, 6-0, to launch an investigation into allegations of inappropriate conduct by a councilmember.

“I move to authorize the City to initiate an investigation of allegations of inappropriate conduct of a councilmember,” President George Hurst motioned that was seconded by Councilwoman Julieta Altamirano-Crosby. Councilwoman Shirley Sutton did not attend May 9th’s meeting.

The Haggard Report: The investigation of Jim Smith

The investigation was conducted by a Kathleen Haggard, cofounder of Haggard & Ganson LLP and has over 15 years of experience investigating allegations of discrimination, harassment, retaliation, and school bullying. After interviewing several people including Mayor Frizzell, city staff, Councilman Smith, and current and former Diversity, Equity, and Inclusion Commission (DEIC) members, Haggard’s conclusion was mixed.

The allegations are from two complainants who state that “Jim Smith discriminated against them on the basis of race.” According to the 19-page report, one complainant identifies as a Black woman, City Executive Assistant Leah Jensen, and the other as a Black man, City of Lynnwood Race and Social Justice Coordinator Douglas Raiford. The female complainant, Jensen, also alleges discrimination by Smith “on the basis of sex.”

Jensen “supports the DEIC along with other boards and commissions” and Raiford “serves as the staff liaison to the DEIC.”

Haggard made it very clear in the report that she bases her conclusions “on a preponderance of the evidence standard” under which she accepts “an allegation as fact when it is more probably true than not true.”

Haggard concluded that the “claims of race and sex discrimination” by Jensen are “substantiated” and is based “on the totality of the circumstances.”

She continues in her conclusion that, “Smith, a white man, treated Jensen, a Black woman, as if she must answer to him, then publicly criticized her when she did not comply. At the same time, he opposed the DEIC confirmation of a woman of color in favor of his preferred candidate, a white male, and he failed to support or add value to the City’s work on diversity, equity, and inclusion issues.”

Haggard’s report fails to mention if Mayor Frizzell or Human Resource Director Evan Chinn was ever aware or addressed the issue of Councilman Smith “directing” a member of the staff between the parties involved.

According to the report, Smith has ongoing requests of staff dating back to 2021 for the “list of applicants for boards and commissions” that have been fulfilled. However, Jensen to the latest request on April 12, 2022, according to the report, stated that “Smith’s request that she provide an updated list crossed the line from a request for information to directing her work.”

The lists of applicants for boards and commissions according to the complainant is a semiannual report and therefore would have been available within six weeks of Councilman Smith’s request. She never responded to his request and told the attorney during her interview that “she supports the Mayor, not the councilmembers” and “feels that Smith deliberately tries to intimidate her.”

As a matter of state law, RCW 35A.12.100, and city policy, a councilmember has no authority to direct the work of the Mayor’s employees and in January of 2022, Mayor Frizzell adopted new communications standards, that establish parameters for councilmember interactions with staff.

Councilmember Smith’s statement of “Please send right away” in his second email request of the list of applicants for boards and commissions on April 14^th to the complainant may be understandably and reasonably misconstrued as “directing” city employees.

Haggard’s report does not include an interview with a person of contention within her findings, a Michael Miller, who applied to the DEIC and is referred to as a “white male” and “an older, white, straight man . . . upper middle class.” The Lynnwood Times has confirmed with Miller that he was not interviewed by Haggard nor anyone from the investigation.

Miller applied January 25, 2021, and on January 10, 2022, for the DEIC, and told the Lynnwood Times he was only contacted a couple weeks ago by Douglas Raiford, Lynnwood’s Race and Social Justice Coordinator, that the vacancies on the commission have been filled.

Miller is of mixed race and is a card-carrying member of both the Cherokee and Shawnee people. He also confirmed with the Lynnwood Times that he was never interviewed by any member of the DEIC to fulfill the vacancies on the commission. According to the City and posted on its webpage, the only requirements to being on the DEI commission are that members must live within Lynnwood City limits and be a registered voter, both of which he met. It also states that there is a selection “preference for city of Lynnwood residents over nonresident candidates.”

The DEI commission recommended to the Mayor an applicant who identifies as an LGBTQ+ Asian woman, Arra Rael, who resides outside of the city limits to be appointed to the commission. At the time of Rael’s appointment in May of 2022, the DEIC had five commissioners and two vacancies. At the time, all five existing members reside within the city limits of Lynnwood and identify as female.

According to the City, “The Commission may accept up to two members that reside in the city’s municipal urban growth area” — territory that is located outside of a city only if such territory already is characterized by urban growth.

In April of 2022, one month prior to being appointed to the Lynnwood DEIC, Rael was appointed to the DEI Advisory Committee for the City of Bothell. Rael did not disclose this information during her two interviews with the Lynnwood City Council. As of August 19, 2022, she is still a member of the DEI Advisory Committee for the City of Bothell.

Through a public records request the Lynnwood Times confirmed with the City of Bothell that there was no application for Rael.

“After reviewing the first round of applicants, it was realized there wasn’t representation from our Human Services partners, so we asked them for recommendations,” Aimee Rosse, Public Records Officer wrote to the Lynnwood Times. “One of our largest partners, Center for Human Services, sent the request to Arra, who is on their staff and does DEI work for them. We added Arra to the committee after the application window closed, but before the appointments were finalized.”

According to the City of Bothell, an applicant “Must be a Bothell resident, business owner, employee, property owner or student, or a stakeholder or nonprofit partner with cultural competency skills, experience in diversity work, or connections to the Bothell community.”

During her interview with the city council for the DEIC appointment, Rael admitted that she was a registered voter in Marysville as she lived in unincorporated Lynnwood. However, by her confirmation vote on May 23^rd, the report states that she updated her voter registration information to her unincorporated Lynnwood address.

Also, Rael in her interview with the city council mentioned that she has lived at her current unincorporated Lynnwood address prior to applying to the DEIC for approximately five years.  The report does not state if Rael voted as a resident of Marysville during the period she lived at her current Lynnwood residence.

In Haggard’s report, it is alleged that the DEI commission “in evaluating candidates the commissioners look at whether potential members understand oppression, the need to ‘elevate and amplify voices,’ and the ‘systemic nature of inequity.’ They ask, ‘Can this person be an advocate for community members?’ [Redacted] said Miller did not fit these criteria.”

Another added criterion the commission allegedly uses to screen applicants is DEI experience.

“Unlike other candidates who work in the DEI field and/or serve as spokespeople for communities of color, Miller never demonstrated a real understanding of DEI issues or a true interest in the work,” a redacted witness alleges.

It appears that the report does not address, from the witness testimony, that the DEI Commission may be screening candidates outside of the commission’s authority, something similar to the DEI commission appointment debacle in Mukilteo back in March of 2022.

It was disclosed in Haggard’s report that in reviewing Miller’s application only, that the DEI Commission “saw an older, white, straight man.” The DEI Commission never interviewed Miller who identifies as White and Native American, to confirm his Native American heritage. A redacted witness states that “with the history of Lynnwood as majority white in terms of number and in terms of power, Rael’s voice was ‘more important’ than Miller’s.”

Miller, an 18-year Lynnwood resident, is the President of Lynnwood Food Bank and a member of the Lynnwood Public Facilities Commission. According to his application, he works directly with “about 2,700 immigrant and families” assisting them with “nutrition, resources for rent assistance, dental care and medical care” and “would like to assist them further.”

He speaks a little Spanish, Russian, Ukrainian and Vietnamese. In an interview with the Lynnwood Times, he shared that he feels the city isn’t doing much for its diverse population.

“The Food Bank is dealing with a very diverse population,” Miller said. “I want to keep talent into Lynnwood. There are a lot of people who are new to the nation and immigrants and refugees who we need to bring into our economic culture.”

He hoped to add energy to the commission.

“Wally and Naz brought a lot of energy to the commission. I haven’t seen things on the commission improve since they left,” Miller said.

A few months ago, Miller joined the DEIC of his local Rotary Club and told the Lynnwood Times that the Food Bank is now forming its very own DEI commission to address the needs of Lynnwood’s diverse community.

Between January 1, 2021, to June 21, 2022, according to a Public Records Request by the Lynnwood Times, a total of 16 persons (six men and 10 women) applied to the DEI commission. Of all seven DEI commissioners, currently there are no men on the DEI commission. For transparency, below are all applicants to the commission within those 18 months (also a link is provided to download if the PDF window doesn’t appear):

However, Haggard found that the allegation by Douglas Raiford, the City’s Race and Social Justice Coordinator, of discrimination on a basis of race was “not substantiated.”

Then-Mayor Nicola Smith sent a memo to the City Council of Lynnwood, Friday April 2, 2021, informing that she is moving forward with hiring of a Race and Social Justice Coordinator (RSJC), despite a majority of council members’ reservations.

During the budget process approved in November 2020, Mayor Smith proposed a racial justice coordinator position to replace the Inter-Governmental Liaison in an effort to focus on implementing equitable principles and practices into the work of City Government. The Lynnwood Diversity, Equity & Inclusion Commission (DEIC) asked the Mayor to bring the topic of a Race and Social Justice Coordinator to the City Council.  The Council was never informed of the DEIC request.

A motion was brought forth to the council by Julieta Altamirano-Crosby, to delay the hiring for the RSJC until more research was conducted to define what the roles of the position would be, which was passed by the council. The Mayor then hired a consultant to conduct a survey to learn what types of needs Lynnwood’s diverse community require.

The position was revisited by Mayor Smith again in February 2021, insisting it be fulfilled immediately. George Hurst, City Council President, brought an additional motion to delay the hiring for the position until the data from the survey could be assessed. This motion also passed by four council members, Jim Smith, Julietta Altamarino-Crosby, Ian Cotton, and Hurst, which provoked discussion whether the council has the right to tell the Mayor who she can and cannot hire.

Haggard states that, “as an elected official, Smith is entitled to express his views on politics and City business, even if others may find those views objectionable.”

She adds that, “Councilmember Smith has demonstrated underinformed views on race and social justice issues, along with a lack of willingness to educate himself or develop true empathy for these causes,” but “without a showing that Smith has treated a particular employee with disrespect, an expression of views is not enough, in my opinion, to sustain a claim of hostile work environment.”

“When you talk disparagingly about race and social justice causes, a Black woman in the room is going to feel like she’s ‘less than,’” a redacted witness or complainant said in the report.

The report further states that Councilman Smith is accused of attempting “to change the municipal code to ‘eliminate applicants of color’ from commissions. The only instances mentioned of revisions to the Lynnwood Municipal Code (LMC) were on pages 7, 8 and 16. It is clearly stated that the “City Council voted to amend LMC 2.24.030” that passed 6-1 on December 13, 2021.

The amendment to the LMC pertained to “Advisory body members” and that its “members shall be registered voters. Voter registration requirements for up to one member of each board or commission may be waived by the mayor and confirmed by council if the individual is ineligible to be a registered voter.”

Prior to the amendment, the voter registration requirement could be waived for up to two members of an Advisory body. Redacted witnesses accused this action by six members of the Lynnwood City Council that included Councilman Smith was “an unnecessary discriminatory barrier.”

The report further mentions that on July 20, 2022, the Council discussed proposed other amendments to the LMC.

“Sessions proposed language that would require applicants to be correctly registered to vote at their current residence. Decker proposed language that would give Lynnwood residents priority over nonresidents, regardless of their relative qualifications. Smith indicated support for this, but others disagreed.”

City of Lynnwood Discrimination and Harassment Polices and Recourse

According to the City’s Workplace Harassment policy, “The City will not tolerate harassment or other discriminatory conduct by its employees, supervisors, elected and appointed officials, volunteers, vendors, suppliers, contractors, or members of the public on the basis of race, age, sex, creed, religion, national origin, marital status, the presence of any physical, mental or sensory disability or sexual orientation. The City will promptly investigate workplace harassment complaints.”

Examples of Harassment outlined in the City’s policy includes:

• Negative or offensive comments, Jokes, slurs or suggestions about another employee’s race, age, sex, creed, religion, national origin, creed, religion, marital status, disability, or sexual orientation
• Using degrading words to describe an Individual’s race, age, sex, creed, religion, national origin, marital status, disability or sexual orientation.
• Obscene or lewd sexual comments, jokes, suggestions or innuendoes.
• Unwanted touching, patting, or lewd physical conduct.
• Unwelcome sexual advances, like requests for dates or propositions for sexual favors.
• Offering or conditioning an employment benefit, like a raise, promotion or special job assignment, In exchange for sexual favors.
• Making or threatening reprisals, or changing performance expectations after an employee has turned down a sexual advance.
• Deliberate or repeated behavior of a sexual nature which Is unsolicited and unwelcome
• Excessive, one-sided, romantic attention in the form of requests for dates, love letters, telephone calls, emails or gifts.
• Displaying offensive pictures, offensive cartoons or offensive calendars on City property.

Because Councilman Smith is an elected official and not a city employee, Mayor Christine Frizzell and members of her administration lack the legal authority to act on any inappropriate behavior.

In July of 2017, then-Mayor Nicola Smith signed citywide “Safe, Welcoming, and Equitable,” resolution that was passed by the city council reaffirming the “City Council, Mayor, and Police Chief” of its commitment to “a safe, welcoming, and equitable community for everyone that lives, works, plays, does business, goes to school in, or visits our city.”

A resolution is a non-binding “formal expression of opinion” according to the Municipal Research and Services Center, a nonprofit organization that provides legal and policy guidance to governments across Washington state.

Lynnwood’s Board of Ethics was recently established to “hear complaints and determine if violations of this ethics code, or state ethics law applicable to cities, have occurred by the mayor, a councilmember, a member of a board or commission…”

Complaints from the Board of Ethics does not include Harassment nor discriminatory conduct. Below are the violations listed that may be submitted to the Board for an investigation:

• 2.94.030 Personal gain or profit – Use of persons, money or property
• 2.94.040 Conflict of interest
• 2.94.050 Acceptance of gifts
• 2.94.060 Campaign activities
• 2.94.070 Confidential information

“I have now read the report and there are some serious and disturbing findings in this investigation,” Council President George Hurst told the Lynnwood Times in a statement on the reports findings. “We know that claims against Councilmember Smith is substantiated but we know that some actions by the council as a whole have also been criticized by the DEI commission as a pattern of exclusion and discrimination.

“It is not only Councilmember Smith being looked at by the investigation.

“So as a whole, the council needs to take a deep look at the issue of DEI in our city, and to that end I will be proposing a joint meeting between the city council and the DEI commission and other commission to build common ground.  We need to really talk.”