If the suit against the state Employment Security Department by a woman best described as a professional whistleblower is successful, it will be fair to say, objectively rather than as a political comment, that Gov. Jay Inslee is a slow learner. Only this time the failure to learn may cost the taxpayers millions of dollars.
Four years ago the recalcitrance of one of his department heads in dealing with a public disclosure request from the Seattle Times brought a court rebuke and a fine. Now a delayed public disclosure response related to the state’s unemployment disaster could bring the court down harder.
The failure of the governor to learn relates to the months-long effort by Lynn Brewer to get access to emails between Inslee and his now embattled Employment Security Department (ESD) Commissioner Suzie LeVine. Brewer gained prominence after leaving a budding career as an executive at energy giant Enron before its 2001 bankruptcy to become a high-visibility whistleblower.
Brewer has been seeking to determine the extent of responsibility by LeVine, and what Inslee knew, of the employment security disaster that rocked the state after COVID-19 struck. First thieves pirated $650-million in unemployment insurance from the state as people started losing their jobs by the thousands, then thousands didn’t get their unemployment checks, or got them dramatically late, as ESD tried to figure out how to avoid further fraud.
Now that State Auditor Pat McCarthy’s criticism of LeVine for imposing “significant constraints” on audit staff, including seeking to limit interviews and delaying access to documents, have become public, the media has come to be all over this. And that media scrutiny is bound to move upward toward Inslee.
In June Brewer was told that her public disclosure request for the emails between Inslee and LeVine and between the ESD director and her staff, because of the mountain of documents involved, couldn’t be honored until December 31, almost seven months later. Some might chuckle at the point that would be after the November election, perhaps ensuring that Inslee’s quest for a third term couldn’t be hindered by anything in the emails.
In her lawsuit filed a couple of weeks ago in Thurston County Superior Court, Brewer asks for a court order that ESD “has violated the Public Records Act” and asks for “an award of statutory penalties, fees and costs against the Department.”
I asked Brewer why she filed the suit given the promised delivery date ESD and she said first, that the delay was illegal and, second, there was only the ESD statement that she couldn’t get the emails before December 31, not that she would get them then.
The lesson unlearned relates to the fact that Inslee has been here before, four years ago with a different department, Labor and Industries, in a public disclosure request by the Seattle Times, in which it took The Times months to get the documents it sought.
In that 2016 decision, the state high court upheld a $546,509 superior court judgment against L&I, finding that it repeatedly delayed the release of records related to lead exposure at Wade’s Eastside Gun Shop.
The department, meaning the state, was ordered to pay the money to The Times, plus attorney fees because monetary penalties are possible under state law for the failure of agencies to respond to public disclosure requests in a timely manner.
The Times was moved to muse editorially after that 2016 victory: “The remaining questions are whether Gov. Jay Inslee will hold anyone accountable for this costly violation of state law and how the state will prevent this from happening again.”
For a longtime reporter, there’s a disappointment that this story has eluded the media for months, except for a drip here and a drop there, until McCarthy’s statements brought the media attention on LeVine and her agency, but not yet on the governor, into full force.
So now perhaps some reporter will ask Inslee: “Governor, when did you know about the auditor’s concerns and when you learned, why didn’t you say to your ESD commissioner, ‘get your act together, Suzie or you are gone?’”
It’s important to keep in mind that we are talking here about a prominent Democratic fundraiser since LeVine raised millions for every Democratic presidential candidate starting with Obama and extending through the candidates who ran in 2020.
And in fairness to the media, both print and broadcast, the coverage requirements of 2020 from the virus to the marches and riots to the economy to the tragic stories of the jobless left little space or time available for an investigative look at why the jobless disaster was unfolding.
I may benefit from having known Brewer for more than a decade, first as she gained prominence in the wake of the collapse of Enron. Her book Confessions of an Enron Executive: A Whistleblower’s Story chronicled her experiences and observations during her two-and-a-half years as a mid-level executive. Her duties included providing key personal briefings on new investments for Enron's now-infamous duo, CEO Ken Lay and President Jeff Skilling.
So she reached out to me after her husband’s and her request for unemployment got caught up in the ESD tangled web and I did a column in the spring and waited for other media to get on the story.
And it’s important to note that, as is sometimes, unfortunately, the case these days, Brewer is not some rightwing agitator trying to get Inslee, whom she says she voted for twice, "but not this time because he's responsible for what happened to the unemployed."
In fact, she’s spent her years since leaving Enron after she became aware of the malfeasance of its leadership, speaking to groups and organizations around the world. Brewer was called upon not only to recount the lessons of her Enron experience but more importantly to her, is to share her vision of a way that provides the equivalent of a "Good Housekeeping Seal of Approval" on the integrity of public companies.
And it’s with a combination of amusement and anger that Brewer notes the irony of last week’s anniversary of the 2001 fall of Enron when it went out of business as its financial illegalities were disclosed.
“This is a bigger disaster than Enron,” she told me. “Enron was a $600-million fraud on its shareholders. This is a $650-million fraud on taxpayers.”
“If the court decides there will be a per-page, per day, fine and ESD indicates there are tens of thousands of pages that had to be processed, you do the math,” said Brewer. “The state could be liable for millions of dollars because no one was in charge of this.”