Lindquist employee who posted anonymous comments is reassigned

A Pierce County deputy prosecutor who posted anonymous, disparaging comments on a 2011 News Tribune story about a sheriff’s deputy has been relieved of his duties as legal adviser to Sheriff Paul Pastor.

Mike Sommerfeld had been assigned to the sheriff’s office since 2012. Pastor announced his departure Friday in an email sent to sheriff’s staffers. Sommerfeld continues to work at the prosecutor’s office; his new duties are unclear.

Another deputy prosecutor, Grace Kingman, will advise the sheriff on an interim basis. In the long term, Pastor intends to seek an outside legal adviser for day-to-day business. The prosecutor’s office will continue to represent the sheriff’s office in court.

“I have always wanted an independent legal adviser,” Pastor said Tuesday. “Due to current issues, now is the time to make this happen.”

County Prosecutor Mark Lindquist did not respond directly to a request for comment, but an emailed statement from his office indicated support for Pastor’s request.

The decision to relieve Sommerfeld came three days after The News Tribune published a news story describing Sommerfeld’s anonymous comments regarding sheriff’s Deputy Glenda Nissen, the plaintiff in a long-running lawsuit involving text messages on Lindquist’s personal phone.

Until last week, Pastor did not know of Sommerfeld’s actions.

Sheriff’s spokesman Ed Troyer said Pastor met Friday with Lindquist and requested Sommerfeld’s removal. Lindquist agreed, Troyer said.

In 2011, Nissen settled a damage claim with the county for $39,500. The settlement, brokered by Lindquist, included a stipulation that Nissen would not face retaliation from the county for pursuing her claim. The news story, published Aug. 2, 2011, explicitly mentioned the non-retaliation clause.

Sommerfeld’s comment on the settlement story, published under an anonymous handle, called Nissen’s lawsuit “frivolous” and “ridiculous” and accused Nissen’s attorney of trying to extort county taxpayers.

Following publication of the story, Nissen and her attorney sued for access to Lindquist’s text messages, believing they would prove that the prosecutor’s office continued to retaliate. The lawsuit rose to the Washington State Supreme Court and back, generating legal bills that now stand at $325,000.

Lindquist argued that the messages were private, but the Supreme Court directed him to review the texts and determine whether any met the definition of a public record. One of the text messages from Lindquist, publicly disclosed in a separate forum, was sent to his chief criminal deputy, Mary Robnett.

The message directed a subordinate to “Tell allies to comment on TNT story.” The story referred to was the Aug. 2, 2011, account of the Nissen settlement, which generated the anonymous comment from Sommerfeld.

Lindquist contends that the message to Robnett was “political strategy,” and thus not a public record. Robnett disgrees. She filed an affidavit in the text message case, saying she believes the message is a public record. Last week, Thurston County Superior Court Judge Gary Tabor agreed to conduct an in-camera review of the messages to make the determination. Tabor’s decision is pending.

The ruling on the text messages takes place against a larger legal backdrop. Last November, Nissen filed a $6.5 million damage claim, contending that the county broke its original promise not to retaliate against her and that the ill treatment continued for the next four years. Nissen cited findings from a 2015 whistleblower investigation that described efforts by prosecutors to blackball Nissen after she was assigned to investigate cases involving sexual assaults against children.

The News Tribune sought comment from Lindquist on Tuesday, and asked several questions. Among them: whether Sommerfeld will face any internal consequences for his actions, and whether Lindquist encouraged Sommerfeld to post online comments on the 2011 news story.

Lindquist’s spokeswoman, Heather Songer, replied with a general statement via email.

“Mike Sommerfeld is an outstanding deputy prosecutor,” the statement read. “All of our staff have a First Amendment right to express their own personal or political opinions. The Sheriff’s Department has long-wanted an in-house lawyer on staff for day-to-day matters. We support that and will continue to represent the Sheriff’s Department on any and all legal issues.”

While the statement invoked the free-speech rights of Lindquist’s employees, a 2015 federal court ruling from Louisiana states that prosecutors are bound by different ethical rules than ordinary citizens, even when they’re off duty.

The case involved police officers accused of crimes in the aftermath of Hurricane Katrina. Anonymous online comments posted on news sites by U.S. attorneys involved in the case led to a mistrial and an internal investigation. The anonymous nature of the comments worsened the ethical breach, judges found.

“There is no dividing line between the prosecutors’ professional and private lives with respect to these duties,” the federal ruling states. “All of these experienced, high-level prosecutors were well aware that they were forbidden, legally and ethically, from making in public the statements they communicated online. They all knew that employment sanctions should be imposed for their activities if undertaken publicly.”

This story was originally published January 26, 2016 at 10:19 AM with the headline "Lindquist employee who posted anonymous comments is reassigned."