The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE EKLUND, an individual,
Plaintiff-counter-claim-defendant-
Appellant,
v.
CITY OF SEATTLE MUNICIPAL COURT,
a municipal corporation,
Defendant-counter-claimant-
plaintiff-Appellee, No. 09-35652
FRED BONNER; JANE DOE BONNER; D.C. No.
GAYLE TAJIMA; JOHN DOE TAJIMA, 2:06-cv-01815-TSZ
and their marital community;
YOLANDE WILLIAMS; JOHN DOE
WILLIAMS, and their marital
community; MARK PARCHER; JANE
DOE PARCHER, and their marital
community,
Defendants-Appellees.
BRUCE EKLUND, an individual,
Plaintiff-counter-claim-defendant-
Appellee,
v. No. 09-35676
FRED BONNER,
Defendant-Appellant,
D.C. No.
2:06-cv-01815-TSZ
CITY OF SEATTLE MUNICIPAL COURT, OPINION
a municipal corporation,
Defendant-counter-claimant-
plaintiff-Appellant.
18745
18746 EKLUND v. SEATTLE MUNICIPAL COURT
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted
August 6, 2010—Seattle, Washington
Filed November 24, 2010
Before: William C. Canby, Jr., John T. Noonan and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Canby
18748 EKLUND v. SEATTLE MUNICIPAL COURT
COUNSEL
Charles C. Stockmeyer, Seattle, Washington, for plaintiff-
counter-claim-defendant-appellant-appellee Bruce Eklund.
Amy B. Lowen, Seattle, Washington, for defendants-counter-
claimant-plaintiffs-appellees-appellants Seattle Municipal
Court, et al.
OPINION
NOONAN, Circuit Judge:
Bruce E. Eklund (Eklund) brought this suit under 42 U.S.C.
§ 1983 against the City of Seattle Municipal Court (the
Municipal Court), the chief judge of the court, Fred Bonner
(Bonner), and others. Eklund alleged wrongful termination of
EKLUND v. SEATTLE MUNICIPAL COURT 18749
his employment by the Municipal Court and denial of due
process of law in his termination. A jury returned a verdict for
the defendants on the wrongful termination claim and for
Eklund on the due process claim. Bonner and Eklund each
appeal.
Holding that Bonner was entitled to qualified immunity, we
reverse the judgment of the district court and remand for entry
of judgment in favor of Bonner.
Other issues of Washington law involving the other defen-
dants are addressed in a memorandum disposition filed con-
temporaneously with this opinion.
FACTS
Eklund attended Central Washington University. At age 19,
he began working for the state legislature. In 2001, at the age
of 23, he was hired as an administrative staff assistant in the
Municipal Court at an annual salary of about $13,000. He was
eventually promoted to the position of Strategic Advisor at a
salary of $49,000. At all times of his service for the Municipal
Court he was an at-will employee.
What led to his discharge and this lawsuit is set out in cor-
respondence between him and Judge Bonner.
On July 7, 2004, Judge Bonner wrote Eklund:
I have reviewed the investigative report pertaining to
how you handled monetary obligations you owed the
court. Through exhaustive fact finding, it was deter-
mined that you benefitted financially from improper
adjustments to your court record and participated in
a plan to continue your monetary obligations and
avoid penalties.
On multiple occasions, your co-worker, who is also
a friend, revised your court record and interfered
18750 EKLUND v. SEATTLE MUNICIPAL COURT
with the defaulting and collections referral of your
tickets. Your MCIS obligation due dates were
extended twelve times on six citations, four of your
citations were recalled from collections (one month,
six months, nine months and 28 months after collec-
tion referral), and nine default penalties totaling
$210.00 were removed. In all, your friend took
action on ten citations belonging to you.
During your fact finding you acknowledged asking
your friend for assistance with your outstanding
court matters. You explained that you had multiple
discussions with your friend regarding your cita-
tions, and that on at least one occasion — your first
meeting — you met your friend off site over coffee
to make arrangements. You said you were too
embarrassed to present yourself as a customer at the
court’s compliance service counter.
Your tickets were managed/tracked carefully so that
they could be updated before the expiration of obli-
gation due dates. You said you could not explain
how they were monitored. You did not consult a
supervisor for assistance or advice on how to appro-
priately resolve your outstanding monetary obliga-
tions nor did you request magistrate hearings to
adjudicate your tickets. Instead, you made personal
arrangements with your friend for the resolution of
your court matters.
You denied any wrongdoing, and said you believed
your friend was handling your tickets in the same
manner that he would work any citizen’s court mat-
ters. You told management that you asked your
friend to set you up on a time payment plan and
thought he had done so. Yet, you acknowledge that
you made no down payment, were not given a pay-
ment schedule and made no installment payments.
EKLUND v. SEATTLE MUNICIPAL COURT 18751
You said you did not know that your friend was
removing your default penalties, but you did notice
that the total balance was smaller than you expected.
You also explained that you did not know your tick-
ets were in collections nor did you know that your
friend recalled your tickets from collections.
You told management that you are not familiar with
how citations “work” in MCIS, and therefore you
did not know what to expect in terms of your cita-
tions defaulting and being sent to collections. You
suggested that your lack of familiarity with the sys-
tem explains why you were unaware of the actions
being taken on your behalf.
Although you acknowledged receipt of the SMC
Employee Handbook, which contains policies pro-
hibiting your conduct, and signed a statement that
you understood you were expected to adhere to the
policies, you said you were unaware at the time that
your actions violated any court or City policies.
You said you now recognize that you acted irrespon-
sibly in your duty to resolve your tickets in a timely
manner. You offered to repay the court the penalties
that were removed and stated your desire to resolve
this matter in the best possible way. You explained
that in retrospect you could understand why manage-
ment is concerned about the appearance of this situa-
tion.
I have found your explanation for your conduct to be
inadequate, and frankly, the lack of knowledge
inferred in your responses to the fact-finding ques-
tions is suspect.
I have concluded from the information contained in
this investigation that you (1) collaborated with your
18752 EKLUND v. SEATTLE MUNICIPAL COURT
friend and co-worker on an improper arrangement
that benefited you financially and attempted to cover
up this fact and (2) had knowledge that some, if not
all, of the actions taken were improper.
Your actions constitute serious misconduct. You vio-
lated the SMC Code of Conduct, City of Seattle
Code of Ethics, SMC Failure to Appear or Failure to
Pay Policy, SMC Violations of Seattle Municipal
Court Policy, SMC Information Access Policy, and
SMC Workplace Expectations for Employees. Fur-
thermore, you collaborated with a person whose
actions may be considered a violation of RCW
40.16.010, which criminalizes the alteration or
removal of a public document.
This misconduct is of such severity that, absent miti-
gating circumstances, substantial discipline in the
form of discharge could be warranted. The violations
are serious enough that the court could decide to
refer this case to the Seattle Police Department for
criminal investigation and potential prosecution.
As such, I am considering termination of your
employment from the court. Effectively immedi-
ately, you are being placed on paid Administrative
Leave pending resolution of this matter. You may
not be in the workplace during your Administrative
Leave. If you need to communicate with the court
for any purpose, you are to contact the court’s Senior
Human Resources Representative, Janice Flaagan, at
206-684-5662.
I am granting you the opportunity to respond to me
regarding the proposed disciplinary action, in writing
or in person. You may have a representative of your
choosing with you at our meeting, should you decide
to respond in person.
EKLUND v. SEATTLE MUNICIPAL COURT 18753
Please indicate to me no later than 4:00 p.m. on Fri-
day, July 9, 2004 if you desire to respond in writing
or in person, by contacting Ms. Flaagan at 206-684-
5662.
If you wish to meet with me in person, a meeting
will be scheduled for you the week of July 12, 2004.
cc: Yolande E. Williams, Court Administrator
Gayle Tajima, Director of Finance & Adminis-
trative Services
Mark Parcher, Director of Court Operations
Janice Flaagan, Human Resources
Eklund chose to meet with Bonner in person.
On July 12, 2004, Eklund faxed Bonner a letter from
Eklund’s counsel, Paul G. Eklund:
Dear Judge Bonner
Perhaps a brief introduction is appropriate. You
have arranged an administrative employment hearing
for Bruce Eklund at 10am on Wednesday, July 14,
2004 (Loudermill type hearing). This hearing is pur-
suant to a July 7, 2004 disciplinary letter signed by
you and addressed to Bruce. As a court employee,
Mr. Eklund has a right to the presence of a ‘special
representative’ at this hearing.
Bruce requested that attorney Phil Talmadge
appear with him as his special representative. How-
ever, Mr. Talmadge has a deposition already sched-
uled for that date and time. I have practiced with Phil
in an ‘of counsel’ relationship since his departure
from the Supreme Court. I am available to attend on
July 14. It appears that you are in two conflicting
roles: in one sense bringing allegations for Bruce to
18754 EKLUND v. SEATTLE MUNICIPAL COURT
defend and then simultaneously acting as an impar-
tial hearing officer. This presents a clear due process
issue.
On behalf of Bruce, I request a brief continuance
of the July 14 hearing, and also the appointment of
an impartial hearing officer. Phil is scheduled to
have surgery later in July. However, I can appear
with Bruce during the week of July 19. Presently I
am in Eastern Washington, and if our requests are
denied then I will need to arrange to drive to Seattle
tomorrow. My telephone number (with voice mail)
is 509-996-3498. You may also leave a message at
my law office (206 575-1482). Phil and I share the
same fax number (206 575-1397).
We will forward a brief written Memorandum and
a few exhibits outlining Bruce’s response to the July
7, 2004 letter from Judge Bonner. I will arrange to
have this letter sent via facsimile on July 12 and the
materials delivered to Judge Bonner’s office by July
13. Thank you for your consideration. Please call me
no later than 10am on Tuesday, July 13, to let me
know if I should be present for the hearing as sched-
uled (July 14 at 10 am). The best way to contact me
today or tomorrow is via telephone at (509) 996-
3498.
Sincerely,
Paul G. Eklund
Enclosure: Memorandum of Employee Bruce
Eklund (via messenger or fax)
cc: Mr. Phil Talmadge, Esq.
Mr. Bruce E. Eklund
Faxed together with this letter from Eklund’s counsel was
the following letter to Bonner from Eklund himself:
EKLUND v. SEATTLE MUNICIPAL COURT 18755
Dear Judge Bonner:
Thank you for arranging today’s hearing. I have
prepared this outline to summarize the primary
issues related to accusations brought by Mark Par-
cher through a July 7, 2004 letter signed by you. It
is my understanding that you wish to conduct a hear-
ing to evaluate the allegations and investigation of
Mr. Parcher (as outlined in your letter to me), as well
as to consider any mitigating circumstances.
Response to Allegations
It is my understanding that in March 2004, SMC
conducted an investigation regarding failure to pay
citation (FTP) by certain employees of the City of
Seattle. Though I had paid all outstanding parking
citations, Mr. Parcher forwarded a report to you indi-
cating that I had violated unspecified provisions of
the SMC Handbook. On April 22, 2004 I was ini-
tially confronted with data indicating that I had
arranged special treatment for payment of my tick-
ets. At that time I was presented with Exhibit A.
Later, I was presented with information which is
(inaccurately) summarized in Exhibit B (undated
‘Investigation Summary of Steven Mack and Bruce
Eklund’).
Before responding to several specifics in Exhibit
A, I will provide your honor with the same history
that I provided to Mr. Parcher and others assisting in
the investigation. I received six parking citations.
The vehicle address was at my mother’s house (for
she co-signed the loan). In March 2003, my mother
contacted me and gave me several citation notices
that came to her house. I informally mentioned this
to Steven Mack. However, I made all arrangements
18756 EKLUND v. SEATTLE MUNICIPAL COURT
for payment of my citations by coming to the court
window (#10) and requesting to make payments.
For six citations, I owed $200 (five at $35 and one
at $25). I paid a total of $348 (see attached proof of
payments). The July 7 letter from Hon. Fred Bonner
states that I should pay an additional $210, for a total
of $458 (on base fines of $200). I am willing to do
this if the court so requests. For reasons I will
explain orally (and summarize herein), I do not
believe that losing my job is appropriate. When I
became aware of the citations, I went to the court
window and made arrangements to pay them. I never
asked for special privileges and made payments,
paying off all tickets and penalties (of which I was
aware).
Specific Response to Investigation
Several of the conclusions of the investigation are
faulty, or based on inaccurate data. Following are a
few examples. The left column is inaccurate data
presented to me, and the right column is an accurate
version.
Information Presented Verified Documentary
at Investigation Evidence
1. Citation 25219011 Receipt number
was paid on 14414164 proves that I
6/27/03 paid Citation 2521901
on 5/16/03
See Exhibit C See Exhibit D
Relevance: The receipt which I saved clearly
shows that the chronology (and conclusions) in the
investigation are not accurate. I had no discussions
EKLUND v. SEATTLE MUNICIPAL COURT 18757
with Mack about whether or not he waived defaults.
However, the investigation alleges he ‘pulled’ the
ticket from collections on 5/19/03, and omits any
record of payment on 5/16/03 (as proved by the
receipt). The receipt I saved for 25219011 shows
that investigation is flawed as to this citation.
2. Citation 23224263 My wife had an
was improperly emergency Cesarian
extended on Section delivery of our
1/31/04;(and a $25 second child on 1/29/04.
penalty ‘erased’ in (I was at the hospital on
the court records) 1/31/04, a Saturday).
Relevance: I had no knowledge of this alleged
transaction. I was on parental leave at the time (and
at the hospital) and it seems very unlikely that any-
one tinkered with the court computer on Saturday,
January 31, 2004. Even during pressing financial and
family circumstances I paid my tickets and known
penalties as fast as I could. Citation 23224263, as
presented during the investigation, is no evidence of
wrong-doing on my part.
3. Steven Mack testimony (portrayed as collusive
in Exhibit B)
(Also: July 7 letter alleges 10 citations)
Several times Mr. Mack clearly states
that I did not request special treatment
and that I went through proper channels
at the court payment window. I never
asked that Steve bend the rules for me,
and if he did, I was unaware.
Relevance: I have been threatened with termina-
tion of my job. I paid $348 to the court for $200 in
18758 EKLUND v. SEATTLE MUNICIPAL COURT
citations. I was unaware of improprieties (if any) by
Steven Mack. The investigation alleges 10 citations
(see July 7 letter by Judge Bonner). When I was
interviewed in April, I was questioned about 6 cita-
tions. There were only six parking citations, and I
have paid $348 for the original amount of $200. I
believed I paid all fines and penalties.
4. Other (I am prepared orally to discuss additional
inaccuracies at the July 12 hearing).
Procedural Issues (Investigation)
I was interviewed two times (April 22 and June 8).
When confronted with the above inaccuracies, I
requested to provide information, including copies of
documents that would clarify the discrepancies. Mr.
Parcher told me he did not need to see my evidence.
Mr. Parcher asked pointed, leading questions such
as: “did you arrange an off-site meeting to fix your
tickets with Steve (Mack)”. I would respond: “No,
Steve and I have coffee sometimes, but I went to his
window to make the arrangements”. Mr. Parcher
would then twist my comment and conclude: “So
you did try to make special arrangements”. The
interview followed this tone. It was clear that the
purpose of Mr. Parcher’s investigation was not to
seek information, but to build a case against me.
I am aware of the findings of the department’s
investigation of several employees for suspected
FTP of citations. In several cases, there are clear
instances of failure to pay citations, yet no threat of
discipline. In my case, I paid all my fines, including
$148 in penalties. Because of financial pressure in
my family, I requested an extension. I paid all my
fines. It seems very inconsistent that I would be sin-
gled out and threatened with termination when other
EKLUND v. SEATTLE MUNICIPAL COURT 18759
employees have neglected their obligations, but face
no discipline.
Retaliation Issues
In October 2003, I was asked by my supervisor,
Gayle Tajima, to research certain issues relating to
court revenues and funding, particularly dealing with
magistrate fine reductions of parking tickets and traf-
fic infractions. This has been an ongoing part of my
work assignment since asked to work with the
Department of Finance on revenue and infraction
related issues stemming from questions DOF had
regarding revenue shortfalls from parking tickets in
2003, despite an increase in citations filed. I com-
pleted the research over several weeks or months,
and provided my printed findings and spread sheets
to Ms. Tajima and Mr. Parcher. For several months,
culminating in March 2004, there was much discus-
sion over the reports I had produced. Mr. Parcher,
Ms. Tajima, and I met to review the research I had
produced. Parcher tore up my work in front of me
and demanded that I not make a public record of my
findings, that I not send my findings or related infor-
mation via e-mail as to not create a public record,
and that I not discuss the information contained in
my reports with anyone outside of the Executive
Leadership Team, the Court Administrator, or the
Presiding Judge. They both instructed me to tell no
one about my findings, to destroy hard copies of my
reports, and stated that they did not want the City
Council or Executive’s offices or staff to find out
about magistrate fine reduction practices. Mr. Par-
cher specifically stated that “We (the court) have
already enough trouble with the magistrates, we
don’t need it getting out that you (the public) can
request a hearing and have your ticket reduced below
$5.”
18760 EKLUND v. SEATTLE MUNICIPAL COURT
I also have been working with Gayle Tajima and
Barb Gangwer of the City of Seattle Financial
Department on calculating court revenues and
improving the budget projection process. Ms. Gang-
wer specifically has asked for the data I researched
regarding the amount of fines that Magistrates have
discounted from tickets and citations. Ms. Tajima
has replied to Ms. Gangwer that ‘the court does not
and cannot produce this information’ and that the
court does not have the ‘resource or ability to report
on that information’. Ms. Tajima knew this was not
true, for I had already researched the issue and pro-
vided her and Mr. Parcher with the information that
Ms. Gangwer requested. In discussing our work with
Ms. Gangwer, Gayle specifically instructed me on
multiple occasions to not discuss the magistrate fine
reduction with Ms. Gangwer.
I was concerned that this approach may violate the
law, as well as the ethical standards of the court. I
questioned the consequences of their approach to
withhold information from the Department of
Finance, stating that it would be better to release the
information to them and deal with the budget impli-
cations now than to wait and have them find out later
and have to explain why the court did not divulge the
information when it was requested. Their unilateral
response has been that the court does not have an
obligation to share that type of information with the
Department of Finance. Despite their directive to get
rid of my hard copies and minimize any potential
public record regarding these reports, I have kept the
hard copies and also have saved each draft of my
work electronically.
I am aware of RCW 42.41.030 which says that as
an employee of a local government, I have the right
to report to the appropriate person, information con-
EKLUND v. SEATTLE MUNICIPAL COURT 18761
cerning an alleged improper governmental action.
Two members of the court’s Executive Leadership
Team instructed me to alter the public record and
withhold information from the City’s legislative
department by virtue of the Department of Finance.
Since I produced four reports on the magistrate fine
reductions in late 2003 and early 2004, and identi-
fied errors in court generated revenue reports, Mr.
Parcher and Ms. Tajima have treated me with
increasing hostility. I have not received performance
evaluations and raises consistent with my employ-
ment agreement with the court.
Even before my knowledge of this investigation,
other members of management have warned me that
Mr. Parcher is out to get my job. I believe that this
so-called ‘investigation’ is motivated by his desire to
remove me from my job in retaliation for my report-
ing of a potentially illegal and unethical cover-up. It
is my understanding that Mr. Parcher reports to your
honor (the presiding judge). In making this report to
you, I have likely taken the next step upstream in
reporting information concerning an alleged
improper governmental action. Based on Mr. Par-
cher’s reaction and threats and warnings from co-
employees, I have feared that reporting information
regarding court revenue and discounts by Magis-
trates to Ms. Gangwer or others in the City Financial
Department would result in my immediate dismissal.
With a wife and two small children (ages 6 months
and 5 years). I feel I have been intimidated into
silence.
Mitigating Issues
Attached, please find copies of my only two per-
formance reviews. Both are excellent. Until the con-
flict with my supervisor, and later Mr. Parcher, over
18762 EKLUND v. SEATTLE MUNICIPAL COURT
concealing information and destroying public docu-
ments, I have had an excellent record as an exem-
plary employee. My research and work reflects
diligence and high standards, as also reflected in my
evaluations. I have been warned by co-employees
that ‘Parcher is out to get you’. The investigation
regarding my citations was biased and contains inac-
curacies. At every possible point, the investigator
sought to put me in an unfavorable light, drawing
conclusions that are not supported by the record and
documents. When I offered to present copies of
receipts, etc. Mr. Parcher refused the opportunity. I
am a young father with three others to support. I
have valued my job. I come to work with a positive
attitude and work hard. My record reflects this. To
take away my family’s sole source of support would
crush us. I paid my tickets and the penalties of which
I was aware. Contrary to the picture Mr. Parcher
tries to paint, I did not seek special treatment. I do
not believe I received special treatment different
than a member of the public in similar circumstances
would receive.
I can learn from this situation. In hindsight, per-
haps it would have been wiser to simply mention to
my supervisor that I had made arrangements at the
court window to pay some parking citations over
time. My job is valuable to me. My attitude and per-
formance have reflected this. Even the dispute with
management over whether their directives to conceal
information and destroy evidence was motivated by
a desire to act in an ethical way. I respectfully
request that the court allow me to keep the career
and position I have worked so long to develop.
Respectfully Submitted,
Bruce Eklund
EKLUND v. SEATTLE MUNICIPAL COURT 18763
On July 29, 2004, Bonner sent this memorandum to
Bruce Eklund:
TO: Bruce Eklund, Strategic Advisor I
FROM: Fred Bonner, Presiding Judge
DATE: July 29, 2004
SUBJECT: Disciplinary Action
The Court recently completed an investigation con-
cerning serious misconduct with regard to how your
monetary obligations owed to the court were han-
dled. You were advised of these findings in a July 7,
2004 memorandum. On July 19, 2004, you were pro-
vided an opportunity to respond to the disciplinary
action proposed in that memorandum.
The investigation fact-findings determined that you
involved yourself in a plan to continue your mone-
tary obligations and avoid penalties and that you
benefitted financially from improper adjustments to
your court record. On multiple occasions, your co-
worker, and friend, revised your court record and
interfered with the routine defaulting and collections
referral of your citations. Specifically, your MCIS
obligation due dates were extended twelve times on
six citations, four of your citations were recalled
from collections and eight default penalties totaling
$190.00 were removed. In all, your colleague took
improper action on ten citations belonging to you.
Your behavior constitutes serious misconduct. You
violated the SMC Code of Conduct, City of Seattle
Code of Ethics, SMC Failure to Appear of Failure to
Pay Policy, SMC Violations of Seattle Municipal
18764 EKLUND v. SEATTLE MUNICIPAL COURT
Court Policy, SMC Information Access Policy, and
SMC Workplace Expectations for Employees.
In response to these allegations, you submitted a
memorandum to the court dated July 12, 2004 and
you provided verbal and written statements at your
July 19, 2004 pre-disciplinary hearing. In your state-
ments you dispute the allegations and contend you
are innocent of wrongdoing. Your position is that
you appropriately sought payment assistance from
Court Compliance, that you requested and believed
you were on a time payment plan and that you were
unaware that your citations were recalled from col-
lections and that your default penalties were
removed. You challenged the finding that your
default penalties had been removed and shared your
belief that you paid some, and possibly all, your
default penalties. Yet, in one of the fact-finding
interviews, you acknowledged that the amount you
ultimately paid for your citations was less than you
had anticipated. You also contend in your statements
that the investigation regarding these matters was
flawed and that information contained in the findings
is inaccurate.
After carefully reviewing all the facts of this case,
including your July 12, 2004 written statement and
the testimony and written statement provided at your
pre-disciplinary hearing, I am choosing disciplinary
action commensurate with the severity of the mis-
conduct. Therefore, your employment with The
Municipal Court of Seattle is terminated immedi-
ately.
You will be paid for your accumulated vacation
hours. Information will be sent to you concerning
COBRA, a program through which you may pur-
chase medical benefits for yourself and eligible fam-
EKLUND v. SEATTLE MUNICIPAL COURT 18765
ily members. You should contact the Retirement
Office at 386-1292 concerning your retirement
funds.
cc: Yolande E. Williams, Court Administrator
Gayle Tajima, Director of Finance & Adminis-
trative Services
Janice Flaagan, Senior Personnel Specialist.
On July 29, 2004, Bonner also wrote Bruce Eklund
as follows:
TO: Bruce Eklund, Strategic Advisor I
FROM: Fred Bonner, Presiding Judge
DATE: July 29, 2004
SUBJECT: Response to Allegations
On July 12, 2004 you submitted a written statement
raising allegations that the Court retaliated against
you for work you performed on magistrate fines.
You claimed that after you shared preliminary data
with two Court directors, they instructed you to
destroy your work, alter a public record and treated
you with hostility. Your July 12th submittal claimed
that you reported a “potentially illegal and unethical
cover-up,” and that a subsequent disciplinary investi-
gation and proposed discipline was motivated by the
directors’ desire to remove you from your job as
retaliation for your presentation data.
Your letter of July 12, 2004 is the first reporting of
any misconduct or wrong doing the Court is aware
of. Since this report follows the Court’s notice to you
of pending discipline, the sequence of events is not
supportive of your claim of retaliation. The statute
18766 EKLUND v. SEATTLE MUNICIPAL COURT
you refer to in your July 12, 2004 letter is super-
ceded by the City’s own codified provisions for
whistleblowing activity at SMC 4.20.810. The
Municipal Code provides protection for reported acts
of misconduct and for cooperating or testifying in
proceedings related to the improper governmental
action alleged. Your report to the Court, after knowl-
edge of pending termination, does not entitle you to
whistleblower protection. The Code does not provide
the same protections for subjective fears of City
employees, related to unreported wrongdoing.
This project was assigned to you at my request and
the results of your work were reported to me. Your
results were shared with the magistrates, and I
requested that this work be continued over the next
few quarters to determine if practices changed over
time. I find it concerning that you would remove
work product of this nature and then present the
Court with a thinly veiled threat of discourse after
being notified of pending termination. Please return
all work materials which you have removed form the
Court no later than August 9, 2004. In conclusion, I
have not found any improper action on the part of
the two directors you identified in your July 12, 2004
letter. The investigation into your mishandling of
court obligations is a separate and unrelated investi-
gation that arose out of an audit of all Court employ-
ees. The result of that audit is that court employees
found to have misused their access to Court records
were notified of the findings, and appropriate action
was taken.
cc: Yolande E. Williams, Court Administrator
Gayle Tajima, Director of Finance & Adminis-
trative Services
Janice Flaagan, Senior Personnel Specialist.
EKLUND v. SEATTLE MUNICIPAL COURT 18767
Eklund was one of five employees of the Municipal Court
terminated for misconduct in the handling of parking tickets.
In an effort to avoid litigation, each was offered a settlement
under which each would agree to resign and file for unem-
ployment benefits. Eklund declined to settle.
On July 29, 2004, Eklund sent by certified mail a letter to
the Seattle Ethics and Elections Committee setting out his
charges of misconduct by Municipal Court employees.
On August 16, 2004, Eklund met with Wayne Barnett, the
executive director of this commission. Barnett, a distin-
guished lawyer, advised Eklund that he should direct his retal-
iation claim to the Office of the Mayor.
On August 26, 2004, Eklund filed a complaint with the
Office of the Mayor of Seattle charging that the Municipal
Court had retaliated against him as a result of his allegations
of improper activity. The Office of the Mayor investigated
and found that the Municipal Court’s investigation of miscon-
duct as to parking tickets had ended in June 2004, with the
conclusion that the five employees including Eklund should
be fired. The investigation concluded that Eklund had been
properly terminated and that he had not shown any retaliatory
action by the Municipal Court.
On January 6, 2005, Barnett informed Eklund that “After
an extensive and thorough vetting of the issues raised” by
Eklund’s letter Barnett found no issues appropriate for action
by the Ethics and Elections Commission. Barnett advised
Eklund that he could appeal Barnett’s decision to the full
commission.
Eklund made no appeal of either the decision by the
Mayor’s Office or by the Ethics Commission. It is not clear
from what is presented to us whether there were any possible
posttermination proceedings he could or should have invoked.
18768 EKLUND v. SEATTLE MUNICIPAL COURT
The only issues presented to us involve the actions of Judge
Bonner and the pretermination hearing.
Several Seattle newspapers carried stories that five employ-
ees of the Municipal Court had been fired for ticket-fixing.
The stories did not identify the employees and noted that the
court would not release their names.
Eklund experienced difficulties in finding employment
after his termination. His income was substantially reduced.
He believed that his termination was the cause of his difficul-
ties.
PROCEEDINGS
On February 15, 2007, Eklund filed his second amended
complaint against Bonner and the other defendants. Under
“Legal Claims” the complaint asserted:
Eklund may recover based on several legal claims
including breach of contract of employment; wrong-
ful discharge; discharge in violation of public policy
(policies in favor of public disclosure, agency
accountability, whistle blowing, revealing violations
of law, requiring compliance with state statutes, judi-
cial independence and otherwise); whistle blower
laws; violation of and conspiracy to violate the
Washington State Public Disclosure Act (PDA)
including but not limited to refusing to comply with
requests for information made by City officials and
in substance adopted by Eklund, and anticipatory
violations of the PDA; negligence; defamation,
including relating to statements made to the media
and statements made to the public in Eklund’s per-
sonnel file which defendants knew was subject to
disclosure and could be and would be released to the
public; invasion of privacy and false light; violation
of state and/or federal constitutional rights to free
EKLUND v. SEATTLE MUNICIPAL COURT 18769
speech, political participation and/or to public
employment and/or requiring proper termination
thereof including termination and publication of
statements in a personnel file available to the public
only with a proper and prior name clearing or
“Loudermill” hearing.
On June 10, 2008, Bonner moved for summary judgment
on the ground of qualified immunity. The district court denied
the motion on September 12, stating that there were disputed
issues of material fact.
Also in the pretrial proceedings the district court reduced
Eklund’s “Legal Claims” to two questions to be put to the
jury: Was Eklund wrongfully terminated by the defendants?
Were his rights to due process violated by the defendants?
The jury answered the first question, No, and the second
question, Yes. It awarded Eklund economic damages of
$210,000, non-economic damages of $100,000, and punitive
damages of $156,000 against Bonner.
On motion of the defendants, the district court eliminated
the economic damages. Bonner renewed an earlier motion for
qualified immunity. The district court denied the motion. The
court stated that “there was no evidence that Bonner had any
personal animosity toward Eklund” but that “there was suffi-
cient evidence for the jury to find that Bonner was biased
against Eklund as a result of Eklund’s accusations against the
SMC. . . . It is not the Court’s role to substitute its view of
the evidence for the jury’s view.”
Bonner appeals the judgment against him. Eklund appeals
the elimination of the economic damages.
ANALYSIS
The standard of review. The question of qualified immu-
nity, which in this case is dispositive, is a legal question,
18770 EKLUND v. SEATTLE MUNICIPAL COURT
reviewed by us de novo. Mueller v. Auker, 576 F.3d 979, 991
(9th Cir. 2009).
[1] Qualified Immunity. Bonner is entitled to qualified
immunity if his “ ‘conduct [did] not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’ ” See James v. Rowlands, 606 F.3d 646,
650 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Under Pearson v. Callahan, 129 S. Ct. 808,
818 (2009), courts have discretion to grant qualified immunity
if the right at issue was not clearly established at the time,
without deciding whether there was a constitutional violation.
“A right is clearly established if the ‘contours of the right
[are] sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right.’ ” James, 606
F.3d at 652 (quoting Saucier v. Katz, 533 U.S. 194, 202
(2001)). Thus, Bonner is entitled to qualified immunity unless
a reasonable person in his position would have believed that
he should have recused himself from presiding at the July 19,
2004 pretermination name-clearing hearing.1 We conclude
that a reasonable person in Bonner’s position would not have
believed that he was constitutionally required to recuse him-
self.
[2] In his fax of July 12, 2004 to Bonner, Eklund’s counsel
told Bonner that he had a disqualifying conflict of interest: he
had investigated the charges against Eklund, and found them
true, now he was adjudicating them. This assertion of Bon-
ner’s disqualification was a misstatement of established law.
The Supreme Court has made abundantly evident that an
investigator’s investigation and conclusion as to misconduct
does not disqualify the investigator as a judge of the miscon-
duct. Withrow v. Larkin, 421 U.S. 35, 47-50 (1975) (“The
1
Because Eklund was an at-will employee, he was entitled only to a
name-clearing hearing, not to a pretermination hearing concerning the dis-
charge itself. See Board of Regents of State Colleges v. Rothe, 408 U.S.
564, 573 & n.12 (1972).
EKLUND v. SEATTLE MUNICIPAL COURT 18771
contention that the combination of investigative and adjudica-
tive functions necessarily creates an unconstitutional risk of
bias in administrative adjudication has a much more difficult
burden of persuasion to carry.”) The bare suggestion that the
two roles conflicted carried no weight. Eklund’s counsel sug-
gested nothing else.
Eklund’s own fax on the same date did not convey any
request that Bonner disqualify himself. The fax did refer to
misconduct in the Municipal Court. The letter did not charge
Bonner with responsibility for this misconduct. Rather, the
thrust of the letter was to alert Bonner to Eklund’s charges so
that Bonner could take these charges into account. Neither
explicitly nor implicitly did Eklund request Bonner to disqual-
ify himself from the hearing.
[3] When Eklund’s counsel sought his disqualification on
patently insufficient grounds, Bonner had no duty to recuse
himself. Bonner was no more required to recuse by Eklund’s
charges bearing on members of the court staff which Eklund
presented as part of his response to the charges against him-
self. Nothing in Eklund’s fax asserted that he considered Bon-
ner responsible for the misconduct or that he therefore saw
Bonner as incapacitated by a conflict of interest.
[4] If counsel seeks recusal of a judge for conflict of inter-
est and presents patently insufficient reason and the litigant
himself expresses no dissatisfaction with the judge, a reason-
able judge still has an obligation of self-examination to be
certain that he harbors no partiality toward or against a party.
A judge must ask, Do I have a pecuniary interest in the mat-
ter? Do I have a personal interest? See Withrow, 421 U.S. at
47.
[5] Patently, Judge Bonner had no pecuniary interest.
Whatever effect Eklund’s disclosure might have had on the
Municipal Court budget, Eklund made no allegation and
offered no proof that Bonner himself stood to benefit finan-
18772 EKLUND v. SEATTLE MUNICIPAL COURT
cially from any particular outcome. Nor did he have a per-
sonal interest. He has not been shown to have held any
personal grudge against Eklund or to have had any particular
bias in favor of the accused employees.
[6] What is probable that Bonner did have was a regard for
the reputation of the institution of which he was the chief
judge and administrator. Any judge will have some feeling for
the reputation of his court and resent slander upon it. The
chief is likely to be a little more sensitive. After all, people
will speak of it as “his court.” Nonetheless, this kind of popu-
lar association does not create an identity between a court and
its chief judge. A tough-minded judge, indeed any rational
judge, will distinguish between himself and the institutional
system and its various parts and members. Absent extreme
bias, a chief administrator is not disqualified from giving a
hearing to an employee who has made charges against the
employees of the institution but not against the chief person-
ally. A chief judge in Bonner’s position could reasonably
have believed that Bonner was not disabled by bias. He was
therefore entitled in September 2006 to qualified immunity
and dismissal of Eklund’s case against him.
In error, the case went to trial. Counsel for Eklund examin-
ing Bonner as a witness focused on the July 29 letter Bonner
had signed. The letter stated concern over Eklund’s “veiled
threat of discourse after being notified of pending termina-
tion.” Bonner made plain that he had not written it but he took
responsibility for it. He agreed that “discourse” was probably
a typo for “disclosure.” He explained that what was meant
was disclosure of Eklund’s charges outside the Municipal
Court. Bonner observed that the letter had been drafted years
ago and he was “thinking about something else entirely,” but
that he did regard Eklund’s work as “internal only.” Bonner
further testified that he did not consider Eklund’s threat to dis-
close when he decided to fire him. Eklund’s counsel then
asked if Bonner knew that Eklund was accusing him of break-
ing the law if he fired Eklund on account of Eklund’s accusa-
EKLUND v. SEATTLE MUNICIPAL COURT 18773
tions. “That’s not my understanding,” Bonner replied.
Counsel now phrased Eklund’s July 29 letter as accusations
against “you [Bonner] and your staff” and asked Bonner if he
did not know that Eklund was accusing him of breaking the
law. Bonner answered that he had had no conversation with
Eklund. Counsel then asked if Bonner did not consider that
Eklund’s accusations created a conflict of interest for Bonner,
disqualifying him to hear Eklund’s case. Bonner replied, “No,
I did not.”
[7] This examination of Bonner established that Bonner
did not want Eklund’s accusations to be disclosed outside the
Municipal Court. Despite the phrasing of Eklund’s counsel,
Eklund’s accusations were not against Bonner personally. The
accusations implicated the institution and specific staff mem-
bers. As the investigations by the Mayor’s Office and the Eth-
ics Commission established, Eklund’s accusations did not
lead to any legal consequences for anyone in the Municipal
Court. What Bonner expressed concern about was not crimi-
nal prosecution of himself but bad publicity for his court. His
feelings were institutional, not personal. He was not disquali-
fied as a decisionmaker at Eklund’s hearing. His renewed
motions for qualified immunity should have been granted.
Eklund’s appeal on the issue of economic damages is nec-
essarily foreclosed by this opinion.
For the reasons stated, the judgment of the district court is
REVERSED and the case is REMANDED for entry of judg-
ment in favor of Bonner.
CANBY, Circuit Judge:
I agree with the analysis set forth in Judge Noonan’s opin-
ion, and I concur in the judgment.