By Sandy Robson
June 24, 2018
In a full courtroom in Whatcom County District Court on Tuesday morning, June 19, 2018, attendees heard Judge Pro Tempore Dave Cottingham agree to Sarbanand Farms’ request that the $73,000 penalty it was assessed by the Washington State Department of Labor & Industries (L&I), be reduced by half, to $36,500. The proceedings that day serve to raise significant doubt as to the ability of state and local agencies to take actions that would adequately identify and prevent abuse of farm workers employed by farms under the H-2A visa program.
The $73,000 penalty was the result of L&I’s multiple investigations its department launched in August of 2017, subsequent to the death of Honesto Silva Ibarra, a young, H-2A worker from Ojocali, Mexico, who worked at Sarbanand Farms in Sumas, Washington for the summer blueberry season.
Mr. Silva Ibarra, a diabetic, had become ill while working at Sarbanand Farms. Then, while working during a particularly hot day on August 2, 2017, he became so ill that he was taken by ambulance to a local hospital. He eventually died in a Seattle hospital on August 6, 2017, after having been transported to that facility within about 24 hours of the time he had initially arrived at the local hospital in Bellingham, Washington. L&I reported in its February 1, 2018 press release about its department’s multiple, separate investigations, that according to an autopsy conducted by the King County Medical Examiner’s Office, Mr. Silva Ibarra’s death was from natural causes, and not related to occupational issues.
Meanwhile, in its investigation into employment standards at Sarbanand Farms, L&I found that the farm failed to provide 7 rest breaks and was late in serving meals on 6 occasions for hundreds of its workers. Employment standards include issues such as wages and rest periods and meals. State law authorizes L&I to assess a civil infraction for each violation of the rule, and the department may include a penalty for each worker affected by each violation.
Temporary judge’s decision based on insufficient information
Presiding over the June 19 mitigation proceeding, the judge pro tem explained to the attorneys and courtroom audience present, that the basis of his decision was due to Sarbanand Farms’ own records having been kept well enough that L&I was able to determine that there had been a violation.
The term “judge pro tempore” signifies a judge who is sitting temporarily for another judge, or an attorney who has been appointed to serve as a judge as a substitute for a regular judge. In the case of Judge pro tem Dave Cottingham, from reading his online bio, it appears he is not, nor has he ever been a sitting judge. He is a local attorney with a practice in Bellingham, Washington.
Unfortunately, during the proceeding, the attorney representing L&I, James Mills, Assistant Attorney General at the Washington State Attorney General’s Office (Tacoma Division), did not provide the judge what would appear to be an important and relevant piece of information on the subject of Sarbanand Farms’ record-keeping.
That piece of information was contained in records of L&I’s findings from its multiple investigations of Sarbanand Farms initiated in the summer of 2017, wherein it was noted that the farm did not have OSHA (Occupational Safety & Health Administration) 300 log records for the years 2016 and 2017.
Washington state statutes require that businesses such as Sarbanand Farms maintain an OSHA 300 log with records of workplace injuries and illnesses. I had obtained, via public records requests submitted to L&I, records of the multiple investigations of Sarbanand Farms which the department initiated in the summer of 2017. It is unknown whether Mr. Mills had reviewed the hundreds of pages of records from those multiple investigations of Sarbanand Farms, conducted by L&I.
It seems painfully ironic and unjust that a temporary judge reasoned that because he felt Sarbanand Farms kept records well enough such that “the department could determine that there had been a violation,” he then decided to cut the $73,000 penalty in half. Yet, that very same farm had been cited last summer in late August for not keeping OSHA 300 log records of any workplace injuries and illnesses as is required by Washington state statutes for the years 2016 and 2017.
Government agencies’ failures to adequately protect Sarbanand workers
Let’s review some of the other failures by multiple government agencies in terms of how the Sarbanand Farms matter has been handled.
Assistant Attorney General James Mills, who was representing L&I on the Sarbanand Farms matter, did not appear in Whatcom County District Court for the scheduled April 25, 2018 contested hearing which was originally requested by Sarbanand Farms, nor did he appear in District Court for the scheduled hearing a month later on May 23. A contested hearing is where the defendant wants to contest or challenge the infraction, and they are saying that they did not commit the infraction/s. In this case, the defendant, Sarbanand Farms, had initially decided to contest the civil infraction L&I had assessed the farm.
At the April 25 contested hearing, a continuance was granted, and the hearing was then scheduled for May 23. At the May 23 contested hearing, an agreed upon order was presented to the court, and a continuance was granted. Sarbanand Farms would no longer be contesting the civil infraction, and the farm requested a mitigation hearing which was then scheduled for June 19. A mitigation hearing is where the defendant agrees that they’ve committed the infraction/s, but want a hearing to explain the circumstances.
In terms of the overall handling of the Sarbanand Farms civil infraction matter by the Attorney General’s Office representing L&I, it should be noted that the attorney who actually was in the courtroom for both the April 25 and May 23 hearings/proceedings, to enter an agreed order with the court, was Whatcom County Criminal Deputy Prosecutor, Gordon Jenkins. In response to my June 5 email inquiry, Mr. Jenkins said this in his June 7 email reply:
“I was present at contested infraction calendars on the mornings of April 23 and May 25 to handle contested traffic infractions. The Sarbanand Farms LLC matter happened to be scheduled for a hearing at the same time as my contested traffic matters. Mr. Mills [Assistant Attorney General James Mills] had contacted me before both hearings because he had ascertained that I was the prosecutor who was going to be at the hearing handling traffic infractions. Each time, I was told that he and the defense wanted to enter an agreed order with the court. Since I was going to be at the hearing anyway, I agreed, as a courtesy, to hand the judge any agreed order they prepared beforehand. I did hand the judge orders that the involved parties had already agreed to, but as I said above, neither I nor my office is a party to the case.”
L&I’s brief noticeably lacking
L&I’s brief in opposition to further penalty reduction that was filed with the Whatcom County District Court on June 11, 2018, prior to the June 19 mitigation hearing, explained the penalty its department assessed Sarbanand Farms, and it also requested that the court decline a further reduction in penalties which was being sought by the defendant, Sarbanand Farms. The department’s brief appeared to present what could be described as the bare minimum in terms of its argument against reducing the penalty assessed to Sarbanand Farms.
Pages 1 and 2 of L&I’s June 11, 2018 legal brief in opposition to further penalty reduction
The defendant, Sarbanand Farms, filed its request for mitigation of penalty without hearing brief with the Whatcom County District Court on June 12, 2018.
According to my June 19 email communications with L&I’s Public Affairs Manager Tim Church, the legal representative for L&I, James Mills, had drafted the brief for L&I, and the department reviewed the brief and provided input.
From my perspective, which includes having detailed knowledge from reviewing hundreds of pages of L&I investigation records, the brief provided negligible information to the court to indicate the real extent of Sarbanand Farms’ employment standards violations in the summer of 2017.
It is hard to believe that L&I and the assistant attorney general representing its department, could think that the argument presented in their legal brief was strong, let alone sufficient, when it did not even mention the fact that hundreds of farm workers were impacted by missed rest breaks and late meal periods. Additionally, L&I’s brief did not mention that according to its investigation, there was actually a total of 13 violations committed by Sarbanand Farms in terms of missed rest breaks and late meal periods in the 15-day period reviewed by L&I.
Records show that while there were 13 violations committed by Sarbanand Farms during the 15-day period reviewed by the department, L&I chose to only use one single date on which the largest number of workers were affected by the violations (July 27, 2017), to base the penalty on one violation which occurred on that one day. On that one day, July 27, there were two violations, and L&I acknowledged in its brief that it had cited only one combined penalty for a violation of the rule, even though it could have issued two separate infractions for each violation.
That means L&I, when determining the amount of the assessed penalty, chose to ignore the rest of those violations committed by Sarbanand Farms during the 15-day period reviewed which had affected hundreds of workers on multiple days. Instead, the department based its assessed penalty on only 292 workers, which is only half of the total number of workers actually affected on that single date of July 27.
L&I’s investigation stopped short when looking for potential violations
On a related note, the fact that L&I, in its investigation of employment standards, chose to only request records from Sarbanand Farms for the 15-day period between July 14 and July 28 has always begged some questions: Why did the department only request 15 days of records? Why had L&I not requested records, at the very least, through August 2, the date on which Mr. Silva Ibarra became so ill that he had to be taken to the hospital?
Especially puzzling to me, was why L&I, after having reviewed the records for the 15-day period and discovering there were 13 violations of employment standards in just that 15-day period, didn’t go back to Sarbanand Farms and ask to see additional weeks of their records to review beyond the initial 15-days of records requested by the department.
Seeking answers to these questions, I sent a June 19 email inquiry to L&I’s Tim Church, who responded to my questions in a June 22 email. I asked him why L&I chose to only request records from Sarbanand Farms to review for the 16-day period July 14, 2017 to July 28, 2017, to which, he replied:
“The purpose of the payroll records review was to cross reference information that L&I obtained during interviews of Sarbanand farm workers. It was part of our investigation into possible employment standards violations. We looked at the busiest time period at the farm to get a sense of if violations were happening, and if so, how often. The two-week evaluation gave us plenty of information to determine that there were violations.”
I also asked Mr. Church why, once L&I reviewed the records for the 15-day period (July 14, 2017 to July 28, 2017) and found that there were 13 violations of employment standards in just a 15-day period, the department did not go back to Sarbanand Farms and ask to see additional weeks of their records to review beyond the initial 15-days of records originally requested. He replied:
“The records review was part of our effort to determine the facts. The review of two-weeks of records provided information that helped us determine that violations had occurred, so there was no need to look at a longer period of records.”
L&I, according to its website, claims it’s dedicated to the safety, health and security of Washington’s workers and claims that it enforces laws that protect workers’ wages and working conditions. Yet, Mr. Church’s responses to my questions indicate that L&I felt it was sufficient to merely determine that violations did occur, rather than seeking to determine full extent of employment standards violations that H-2A workers were subjected to at Sarbanand Farms between the time when the H-2A workers began working at the farm, through the time their work at the farm was completed that summer.
Critical information left out of L&I’s brief
Earlier this year, on February 1, L&I sent a letter to Robert Hawk, CEO of Sarbanand Farms, informing the farm of its multiple violations of employment standards and of the penalty that was being assessed to the farm. In its letter, the department had rationalized that in recognition for Sarbanand Farms having willingly cooperated with the investigation and immediately correcting issues to avoid future violations of a similar nature, L&I elected to reduce the $145,750.00 penalty to $73,000. L&I had based that reduced penalty of $73,000 on “$250 per worker [pursuant RCW 7.80.120] at a reduced number of 292 violations.” The letter explained that the 292 number represents one half of the 583 number of workers who were affected on July 27, as L&I had decided to halve the total number of workers affected.
The brief filed by L&I’s legal representative, James Mills, did not mention any of the important details about how the department had arrived at its penalty dollar amount it assessed Sarbanand Farms. Actually, the brief didn’t mention any details at all about that.
Just in terms of the single date of July 27, 2017, a total of 583 farm employees were affected. That 583 number of employees affected was not mentioned at all in the brief drafted and filed by attorney James Mills, and reviewed by L&I. In terms of the totality of the numbers of employees affected, records show the number of employees affected on each date where there were missed rest breaks and/or late meal periods. The dates and corresponding number of employees affected are listed below:
July 14 – 482 employees
July 15 – 198 employees
July 18 – 288 employees
July 19 – 486 employees
July 24 – 512 employees
July 25 – 514 employees
July 26 – 120 employees
July 27 – 583 employees
July 28 – 480 employees
L&I could have assessed a penalty of nearly $3 million to farm, but instead chose to assess a $73,000 penalty
In the records obtained from L&I, there was an internal document titled, “Agricultural Civil Infraction Recommendations,” listing various, potential options which its department could decide to take in terms of how they choose to compute the penalty.
According to that L&I document, one of the options that L&I could have selected was to have assessed a penalty of $1,879,719.00 to Sarbanand Farms. Another listed potential option was that L&I could have selected to have assessed a penalty of $2,951,802.00 to the farm.
The fact that L&I could have assessed a penalty of up to $2,951,802.00 was not mentioned in the brief filed by Mr. Mills on behalf of L&I. Had that information been included in the brief, the judge considering Sarbanand Farms’ mitigation request would have then had a full understanding of just how small that $73,000 penalty amount actually was in comparison to what penalty dollar amount L&I could have chosen to assess.
The lack of proper care and attention by government agencies to this matter wherein hundreds of farm workers were subjected to weeks of sub-standard working conditions and treatment, and where one of those workers died after becoming ill while working at the farm, echoes the lack of proper care and attention by Sarbanand Farms to the H-2A workers it employed during the 2017 summer blueberry season. Our country, state, and county failed these workers in so many ways.