It looks like Black Diamond’s Comprehensive Plan will be further delayed as the city’s traffic adviser, DKS Associates, appears to be running out of patience with the City Council.
Andy Williamson, the city’s Economic Development Director, announced during the Sept. 15 council meeting that the engineering consulting company was no longer going to honor the work contract that has been waylaid in council since April.
The company is redrafting a new contract, which could take three to four weeks, should not come as a surprise to the council.
For the last several meetings, city staff has warned the council – specifically council members Brian Weber, Erika Morgan and Pat Pepper – that DKS may eventually tire of waiting for council to approve its contract, and could redraft the contract or even decide not to work with the city at all.
Black Diamond requires DKS’s cooperation to finish its Comprehensive Plan, which is now more than a year and a half late, if the city wants to stay within its budget.
Originally, the city was contracted BergerAbam to complete the traffic portion of the Comprehensive Plan in 2014. BergerAbam, in turn, subcontracted with DKS Associates.
In October 2015, the city terminated its contract with BergerAbam, but decided to keep working with DKS, who at that point had finished 90 percent of its portion of the Comprehensive Plan.
Under the original contract, the remaining 10 percent of work that needed to be done would have cost the city around $35,000. This could change in the new contract.
But the real issue is what may happen if DKS decides not to work with the city.
According to former Community Development Director Barbara Kincaid and current Economic Development Director Andy Williamson, engineering consultants like DKS Associates do not build on work started by other consultants.
That means if DKS no longer wants to work with the city, the traffic portion of the Comprehensive Plan would be sent back to the drawing board, and the bill could grow closer to $65,000.
According to Williamson, this is more money than is allotted in the 2016 Comprehensive Plan budget.
But that’s not all – Williamson wrote in an email interview that since the Comprehensive Plan is mandated by the county, not having one means the city is currently out of compliance with the county and the Growth Management Act. Because of this, the city is not eligible to receive grants from the Puget Sound Regional Council.
Representatives from DKS Associates did not return a call for comments.
SKIPPING EXECUTIVE SESSIONS
The Sept. 15 council meeting marked the third meeting in a row when council members Weber, Morgan and Pepper declined to join Mayor Carol Benson and councilwomen Tamie Deady and Janie Edelman in executive session.
This particular executive session revolved around five heavily-edited contract extensions with RH2, Perteet Inc., HWA Geosciences and Paramatrix Inc., which had two contract extensions.
The five contracts were amended by Pepper and Weber after midnight on Sept. 15, less than 24 hours before the council meeting, days after the suggested agenda-setting deadline outlined in Section 3.1 of the Black Diamond Municipal Code.
According to Benson, council members only have the power to approve or decline contracts, not to amend them, but this was overshadowed by the fact that none of the amended contracts had been thoroughly reviewed by staff or City Attorney David Linehan before being brought to council with a “do-pass” recommendation from council standing committees, the legality of which is still hotly debated in council.
Williamson said he was “shocked” to have received these amended contracts the morning of the council meeting, and Linehan suggested the council enter executive session to discuss the issues he and staff saw.
Pepper and Weber have maintained that the reason they do not attend these executive sessions is because Linehan was hired by Benson, not by the council, who voted in a 3-2 vote to hire Vancil Law Offices on July 12.
After the vote, Benson called Vancil to inform them they would not be working with the city, and it appears the law firm has yet to do any work for the council.
In an interview during executive session, Weber and Pepper clarified that they have not been utilizing any legal counsel recently.
“I don’t know how we can work properly until we get our attorney. It’s very frustrating to me,” Weber said. “It’s obvious that the council is not able to do the council’s business and hasn’t for months.”
WARNED BY INSURANCE
The council majority’s attitude toward the current legal counsel has not gone unnoticed by the city’s insurer, the Association of Washington Cities (AWC).
“These are three areas of concerns RMSA (risk management service agency) feels increase risk to the City of Black Diamond, and yet are easy to manage,” a letter written by Roger Neal stated, program manager at the AWC risk management service agency. “These areas are: 1. Contracts with professional service providers; 2. The continuation of three council-member committees; 3. Failure to meet in executive session when advised to do so by the city’s legal counsel.”
When talking about “contracts with professional service providers,” Neal is referring to the council majority contracting with a parliamentarian, but the contract did not use AWC’s pre-approved insurance and indemnification and language, nor was the contract forwarded to risk management services for review.
Neal also advised that the council’s three-member standing committees, which have been continuing to meet outside the council chambers during the weekday, may violate the Open Public Meetings Act, which poses significant risk to both the city and individual council members.
“Although the Council has the authority to establish council procedures, these procedures must be consistent with state law,” Neal’s letter continued. “Council members should remember that if a court finds that a Council member has violated the Open Public Meetings Act, that Council member(s) may be personally liable for civil penalties including the cost of the prevailing party’s legal fees.”
Neal then addressed the issues AWC sees with the council majority not attending executive sessions.
“Refusing to conduct an executive session when it is legally allowed delays the ability for legal counsel to properly represent the city,” he wrote. “Without being briefed in executive session, it is difficult for the council to make an educated decision that impacts the City of Black Diamond. Delaying or refusing to meet in executive session could also cause a negative impact on your budget.”
The letter concluded with Neal explaining that the RMSA has offered to provide training for the council and the mayor on their roles in government, training on the Open Public Meetings Act and also offered to hire a consultant to help the council and mayor to develop effective communication.
STORMWATER GRANT STILL AN ISSUE
Another issue the council majority and minority has wrestled with for most of this year is a $25,000 Department of Ecology stormwater management grant.
When the grant was originally introduced to council on Feb. 4, it was for $50,000, but the grant shrunk in April because of DOE budget shortfalls.
Now, said Public Works Director Seth Boettcher, the council is at the last hour to accept the grant before it disappears.
“They’re not going to hold that money forever,” he said, alluding to an Oct. 15 soft deadline for accepting the grant. “I recommend you accept the grant.”
Pepper and Weber disagreed.
“The stormwater grant, despite misleading statements from staff, does not have a hard deadline. According to information from Pat Brommer from the Water Quality Program at Department of Ecology, the Department has asked the remaining cities who have not yet accepted their stormwater capacity grant to try to complete the acceptance agreement by October 15,” Weber wrote in an email interview. “The money does not go away; the Department will work with cities if acceptance goes beyond October 15.”
According to Boettcher, the grant money is mostly going toward funding a review of city code and adopting the DOE’s 2012 Stormwater Management Manual. The grant money was expected to be available and was included in the 2016 budget.
However, the council majority has said multiple times they want Boettcher to adopt the manual first before the grant is approved. Boettcher has consistently resisted this plan, as without the grant, he does not have the money available in the budget to adopt the manual.
The manual adoption ordinance is on the agenda as a public hearing on Oct. 6, the only meeting Black Diamond has before the soft deadline for the grant. Without a special meeting, the soonest the council can approve the manual adoption ordinance would be Oct. 20, after the soft deadline.
A motion to accept the grant failed in a 3-2 vote, with council members Pepper, Weber and Morgan voting to not accept the grant.
• The Sept. 15 meeting started as many other Black Diamond meetings have this year – with a fight between Pepper and Benson over which agenda the council should use, the one provided by the mayor or the one submitted by Pepper on Sept. 13.
The agendas were mostly similar, but Pepper’s included the five amended contracts under new business, stating that the various committees each contract was sent to gave them a “do-pass” recommendation.
Benson called for two recesses in the first 30 minutes of the meeting before public comments were able to begin. Afterwards, the council followed the agenda submitted by the mayor.
A third recess was called before the executive session later in the meeting.
• The council held a public hearing on its Capitol Improvement Plan. Financial Director May Miller gave a summary of the new projects that were recently added to the plan, which include expanded downtown parking and a new sign for a gym. The council voted to keep the public hearing open until Sept. 27 so more comments can be submitted about the plan.
• A resolution on the city’s traffic mitigation plan with the Enumclaw School District was resubmitted to the council agenda by Pepper and Weber.
The resolution was passed during the Aug. 18 council meeting, but only because Pepper and Weber did not voice their votes.
Weber said during the Sept. 15 meeting that the vote was questionable, and Morgan said it was “strictly a violation” of council procedure, since a roll-call vote was called for during the meeting but not executed.
Before the council voted on the resolution on Aug. 18, Michael Kenyon from the Kenyon Disend law firm (the city’s legal counsel) made it clear the council was about to vote for the resolution, seconds before Benson called for the vote.
No action was taken on the new traffic mitigation resolution during the Sept. 15 meeting.