Black Diamond council fails to reach quorum; three council members decline to attend regular meeting

Although the room was filled with Black Diamond residents gearing up for another politically-charged council meeting, a majority of Black Diamond council members were absent.

Council members attempted to cancel the May 19 meeting via email

Corrections: In the article “Black Diamond Council fails to reach quorum,” printed May 25, it was reported Councilwoman Pat Pepper stated Mayor Carol Benson cancelled  five regularly scheduled meetings between 2013 and 2015.

According to Benson, the meeting that was cancelled Dec. 3, 2015 was cancelled due to three council members having scheduled their vacations at the same time. The meeting was rescheduled to Dec. 7, 2015.

The Feb. 12 meeting that was cancelled was a work study and was not a regularly scheduled meeting, Benson said.

The Jan. 1 meeting was cancelled because of the holiday and rescheduled to Jan 8.

Dave Gordon presided as mayor for cancellations in 2014, and Rebecca Olness presided as mayor for cancellations in 2013.

It was also reported that the agenda created by Councilwoman Erika Morgan and Pepper for the May 19 meeting was submitted on time to the clerk, nine days before the scheduled meeting. According to city clerk Brenda Martinez, the agenda information submitted by Morgan and Pepper came two days after the deadline.

This article has been updated to reflect these corrections.

Although the room was filled with Black Diamond residents gearing up for another politically-charged council meeting, a majority of Black Diamond council members were absent.

Without council members Pat Pepper, Brian Weber and Erika Morgan at the May 19 meeting, the council did not reach quorum and was not able to begin an official meeting.

Mayor Carol Benson and council members Janie Edelman and Tamie Deady attended the meeting. They discussed agenda items with city staff and the interim city attorney Yvonne Ward, although they could take no action.

According to Councilwoman Pepper, the three council members did not attend the meeting because the “wrong agenda was put on the website for public notice, as has happened for many recent Council Meetings,” she wrote in an email to the Courier-Herald May 19.

The council agenda has been the center of tense arguments over the past several meetings, because two agendas are repeatedly given to the city clerk for posting – one submitted by the mayor, and the other submitted by Pepper and Morgan.

According to section 2.2 of the Black Diamond Council Rules, the agenda is to be approved by the mayor pro tempore, Erika Morgan, and council president, Pat Pepper. The mayor’s agenda consistently lacks this approval, but she continues to instruct city clerk Brenda Martinez to notice these agendas because Benson does not recognize the new council rules, passed Jan. 21 2016, as legal.

Section 3.1 of the Black Diamond Council Rules states the agenda is to be submitted in full no later than 10 a.m. nine days prior to the meeting, which would be the Tuesday of the week prior to the meeting.

According to the city clerk, the Morgan’s agenda was submitted two days after the nine day deadline.

Without a majority of the council, a large list of items on the agenda submitted by Benson were unable to be acted on.

Instead, a good chunk of the meeting was spent going over memos published by Ward about various questions brought to her by the council, namely those not present, and the mayor.

These memos covered many of the controversial topics that have been plaguing the city for several months – whether the new council rules and procedures (Resolution 1069) are legal and valid, whose authorization is required to hire a city attorney and whose has the authority to pay the city’s bills.

The memos also covered some new topics, including if the council can remove the mayor as presiding officer of the council meetings, who has the authority to terminate interlocal agreements and if the council has the authority to cancel a regularly scheduled meeting.

Agenda items that could not be acted on included a resolution authorizing DKS Associates to help the city finish its comprehensive plan, authorizing an interlocal agreement with the city of Maple Valley for building inspection services, authorizing an agreement with BHC Consultants for building services, authorizing two grant agreements, a resolution awarding the Jones Lake overlay project to Lakeridge Paving Compan and a resolution authorizing Parametrix, Inc. to design the Covington Creek culvert replacement.

According to council members and city staff, the city is now a year behind in submitting its county-required Comprehensive Plan. According to Barbara Kincaid, the city’s community development director, the company that has been helping the city with its comprehensive plan – DKS Associates – may not be interested in continuing to work with the city, although their portion of the Comprehensive Plan is around 90 percent complete.

If DKS Associates decides to not continue their work with the city, Kincaid said, the city will have to contract with a new company and start back at square one, resulting in a financial loss for the city.

Additionally, without an interlocal agreement with Maple Valley or a contract with BHC Consultants, the city has extremely limited abilities to perform building permit and infrastructure inspections, staff said at the meeting. Kincaid said the city is only able to offer inspection services on Thursdays because of a small $15,000 contract the mayor was able to sign with BHC Consultants without the council’s approval.

Criminal charges for missing meeting?

Whether or not Weber, Pepper and Morgan could cancel the regularly scheduled May 19 meeting was a hotly discussed topic.

In an email to interim city attorney Ward, Pepper, Morgan and Weber expressed they wished to cancel the meeting because the agenda that was noticed was not the agenda submitted by Pepper and Morgan.

Ward wrote back to Pepper that she would research if the council could cancel the meeting.

Ward outlined in her memo titled “RE: 5/19/16 Council Meeting: Cancellation is Not Permitted,” that the three council members could not legally cancel the meeting and that there could be legal consequences if they were absent.

Pepper cited in the May 19 email to the Courier-Herald that any three members of the council have the authority to cancel a meeting, citing section 2.9 of the council’s rules.

“Any three members of Council may cancel a meeting upon proper notice given to the City Clerk,” the code states.

Pepper also cited a quote from the Municipal Research Services Center, which answered the question as to whether the council or the mayor has the ability to cancel a meeting.

“The city council – not the mayor – has authority to cancel a council meeting in advance. It is not the mayor’s meeting – it is the council’s meeting and the mayor is just the presiding officer,” the quote reads, continuing to state that while meeting cancellation is not specifically addressed by state law, the separation of powers between the mayor and the council give the council authority to delegate who gets to cancel meetings.

Pepper also pointed out Benson cancelled five meetings between 2013 and 2015.

According to Benson, the meeting that was cancelled Dec. 3, 2015 was cancelled due to three council members having scheduled their vacations at the same time. The meeting was rescheduled to Dec. 7, 2015.

The Feb. 12 meeting that was cancelled was a work study and was not a regularly scheduled meeting, Benson said.

The Jan. 1 meeting was cancelled because of the holiday and rescheduled to Jan 8.

Dave Gordon presided as mayor for cancellations in 2014, and Rebecca Olness presided as mayor for cancellations in 2013.

Ward stated in her memo that neither the council nor the mayor has the ability to cancel regularly scheduled council meetings.

According to the Black Diamond Municipal Code 2.04.010, “the regular meeting of the city council shall be held at the Black Diamond Municipal Building… on the first and third Thursdays of each month at the hour of seven p.m.”

The word “shall”, as defined by Black Diamond Municipal Code 1.04.010 (A) (7), means mandatory, and according to Ward, this means the meetings are mandatory, as well as attending them, unless a valid excuse is given.

Additionally, the council rules are in place with a resolution, Ward explained, which means the ordinances in the Black Diamond Municipal Code take priority over any resolutions that are passed by the council.

With Benson and council members Deady and Edelman at the May 19 meeting, they did not violate Black Diamond Municipal Code, Ward said in an interview May 20.

But because Pepper, Weber and Morgan received a copy of Ward’s memo before the May 19 meeting, which warned them of the consequences of being absent, Ward said they could be guilty of official misconduct, a gross misdemeanor, under RCW 9A.80.010.

Authority to pay bills?

Along with the several agenda items that couldn’t be acted upon was the consent agenda, which included $788,969 in claims checks.

More than $786,000 of the night’s claims checks were due to be paid the day after the meeting, May 20, or the city risks late fees, said city Financial Director May Miller.

“There are important, critical items in this batch,” Miller told the council at the May 19 meeting, calling out the payments the city owes Fire District 44 in this group of claims checks (more than $247,000) and a refund of money to the Enumclaw School District (just over $56,000).

This is the second time this year the council has not approved claims checks on time.

The first time was during the March 22 meeting, when Weber pulled the claims checks off the council consent agenda and into a standing committee.

Miller said the city was still able to pay the bills on the March 22 consent agenda even though the claims checks were not approved by the council.

In an earlier interview, Miller cited Black Diamond Municipal Code 3.23.030 (and Ordinance 08-850), which gives the mayor, finance director, city administrator or city clerk the authority to pay bills before council approval if three conditions are met – that claims checks are available at council meetings, that the finance director, city administrator, city clerk and mayor must have taken out a fidelity bond for $50,000 and the council must have adopted contracting, hiring, purchasing and disbursing policies.

Weber stated in the March 17 meeting that he does not believe the city has the authority to pay bills before council approval, alleging that the council has not identified that it has adopted contracting, hiring, purchasing and disbursing policies, nor has the mayor provided any evidence that the fidelity bonds have been taken out.

Benson denied these allegations and has stated city Ordinance 14-1035 gives the council contracting, hiring, purchasing and disbursing policies, and stated a $1 million insurance policy for theft and crime covers the fidelity bonds.

Miller said the city will again use its authority to pay the bills on the May 19 consent agenda even though the council did not approve the claims checks.

But the discussion may continue, as Weber submitted a resolution about voucher payments to Morgan’s and Pepper’s agenda for the night.

The resolution stated the mayor is no longer authorized to pre-pay claims checks until the council has determined all three conditions of the Black Diamond Municipal Code have been met.

In response to the resolution, Ward wrote a memo titled “RE: 5/19/16 Council Agenda Item 15: Voucher Payments” and presented it to the council May 19.

The memo stated only ordinances can change ordinances, and Weber’s resolution, even if passed by the council, cannot change the ordinances in the Black Diamond Municipal Code.

Additionally, the memo stated the resolution is unconstitutional under the state and federal constitutions because the resolution will impede the payment of contracts.

Other memos: hiring new attorney, building services, council conduct and new council rules

Ward published four other memos for the meeting.

In the memo titled, “RE: Authority to Hire City Attorney,” Ward writes that the city is mandated by state law to employ a city attorney and Benson is charged with ensuring the city follows state law.

Therefore, Ward recommended Benson hire one of the three attorneys that responded to the city’s request for proposals sent out May 6, with or without city council approval.

Benson said in a May 19 interview that she will hire one of the attorneys on May 20, but this was not confirmed by press deadline.

In the memo titled, “RE: 5/19/16 Council Meeting Item 6: Building Inspection Services,” Ward wrote that the facts surrounding the city’s termination of the interlocal agreement with Covington to provide building inspection services suggest a casual basis for the termination of the contract, and the mayor had authority terminate the contract.

In a memo titled, “RE Conduct at Council Meetings,” Ward wrote that there is “no statute, case or ordinance which authorizes the removal of the Presiding Officer by the legislative body.”

This memo is a summary and the topic further explored later, Ward wrote, but in general, the mayor has the authority to maintain order at a council meeting and remove any members of the public or council members for being disruptive, an issue that arose during the May 5 meeting between Benson and Morgan.

Morgan was making a motion to revise the agenda of the night during the May 5 meeting.

The agenda was submitted by the mayor and was the one noticed by the city, not the agenda submitted by Morgan and Pepper.

Before Morgan was through making her motion, the mayor said Morgan was out of order.

Morgan then appealed the mayor’s decision to not allow the council to revise the agenda.

Under Robert’s Rules of Order, a decision from the presiding officer can be appealed. If the appeal is seconded by another council member, the council can discuss the mayor’s decision and vote on whether it should be upheld of overturned.

Morgan’s motion was seconded by Pepper and Weber, but before the mayor’s decision was discussed, Benson called a recess. When the council returned to their chambers, there was no further discussion on the agenda and the meeting proceeded to use the agenda submitted by the mayor.

Although there is no statute that authorizes the removal of the mayor as presiding officer by the council, Ward wrote in her memo, the mayor is subject to the same laws as any other person regarding criminal offenses and can be removed from the meeting for threats, assault or impairments to public safety.

In her final memo for the night, titled “RE: Resolution 1069,” Ward wrote it appears the new council rules and procedures are illegal on three grounds: “Violation of the Open Public Meetings Act; Criminal Misconduct; and Ultra Vires (exceeding or conflicting with law).”

“…there is evidence that Resolution 1069 was the product of meetings in violation of the Open Public Meeting Act… This renders (Resolution) 1069 void ab initio, that is, void from the outset,” the memo reads.

Ward recommended the mayor should not engage in illegal conduct by enforcing these council rules until the issues surrounding the rules are resolved in order to make sure the city does not sanction illegal activity.

This memo was also a brief summary of the issue, and Ward said a more detailed memo will be published later.

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