Black Diamond council, mayor call cease-fire, but large issues still loom

The meeting was long and debate was heated, but the June 16 Black Diamond City Council resembled a working city government for the first time since the beginning of the year. Council members and the mayor appeared to have set aside many of the arguments they've had over the past six months in order to pass nearly all of the unfinished business items that has been on the last several meeting agendas to the applause of residents.

Phil Talmadge memo for Black Diamond



The meeting was long and debate was heated, but the June 16 Black Diamond City Council resembled a working city government for the first time since the beginning of the year.

Council members and the mayor appeared to have set aside many of the arguments they’ve had over the past six months in order to pass nearly all of the unfinished business items that has been on the last several meeting agendas to the applause of residents.

The council also discussed new business items. Some items were approved, but action on many were postponed until July meetings for the city’s Interim City Attorney David Linehan to review and give input.

Among the resolutions the council acted on included approving an interlocal agreement with the city of Maple Valley for building inspection services and a resolution with BHC Consultants for other building services. These items have been discussed in council since March when Mayor Carol Benson terminated an interlocal agreement for building services between Black Diamond, Maple Valley and the city of Covington. Between March and last week’s meeting, the city has limped forward under Benson’s limited authority to approve a $15,000 contract with BHS for basic building inspection services.

The city also awarded the Jones Lake Overlake Project to Lakeridge Paving Company from Covington. The city’s Capitol Project/Program Manager Scott Hanis presented the resolution in lieu of the city’s Public Work’s Director Seth Boettcher. Hannis explained if the council did not pass the resolution during the meeting, the project would not be finished this summer and the city would see a financial loss.

A resolution allowing Paramatrix to design the Covington Creek Culvert Replacement project was also passed by the council, as well as two resolutions announcing the completing of the downtown water main project and the 5th Avenue road repair project.

Finally, the council also passed resolutions accepting a grant agreement with Puget Sound Energy so the company can replace the city’s streetlights with new LED lights and a water quality grant agreement with King County for the city’s North Commercial Stormwater Treatment Facility project. These grants had been discussed by the council for several months.

As to why the council meeting did not go the way so many other meetings have gone in the recent past, Benson said she thinks Pepper, Weber and Morgan must be feeling pressure from the public.

“It was different because they missed the last three meetings and they got pressure,” she said in an interview, adding that she’s heard that residents are angry with how the council has been unable to pass any legislation.

Pepper said the meeting went smoothly because the mayor did a better job presiding over the meeting.

“The mayor is the presiding officer…; it’s her job to control the meeting. That was not happening before,” Pepper said in a June 10 interview noting how Benson did not give her the floor during the June 2 council meeting.

Trouble ahead

But the meeting wasn’t all sunshine and rainbows, and the rumbling thunderstorm outside the council chambers was a perfect backdrop for the lingering issues the council still has to address.

Among the items not approved by the council was an agreement with DKS Associates to complete work on the city’s Comprehensive Plan. During the March 17 meeting, the council pulled a $10,000 claims check to DKS from the consent agenda, but the company was still paid under the authority of the mayor and Financial Director May Miller. However, because council has yet to approve that claims check, the city now has sent an invoice to DKS Associates for a refund of the money, Community Development Director Barbara Kincaid said at the meeting.

Because the city is asking for a refund, and because the council seems unable to come to agreement to approve DKS to continue its work on the city’s transportation portion of it’s Comprehensive Plan, Kincaid said she is worried about whether or not the company will still want to work with the city to complete its portion of the plan, which she has said in previous meetings is more than 90 percent complete.

“I wonder what the path forward is here,” Kincaid said to the council. “I don’t know what it is we can do with this situation.”

Kincaid said at previous meetings that if DKS does not want to continue their work with the city and finish the transportation portion of the plan, the city will have to start back at square one because companies do not build off each other’s research, no matter how far along it was. This would result in a financial loss for the city, Kincaid said.

The city also could not come to an agreement on who the next city attorney will be. Under her limited authority, Benson approved a $15,000 contract to hire Linehan from the firm Kenyon Disend after the June 2 meeting. But council members Brian Weber, Pepper and Erika Morgan did not approve of the two-year contract with the firm at the June 16 meeting.

Instead, Pepper brought forward a different contract with Vancil Law Offices for the council to approve, which sparked the most fiery debate of the night.

Pepper and Weber argued Vancil was a better option for the city. The law firm doesn’t have a history with the city, Weber said, so it would be like starting with a clean slate. They also argued Vancil will be more affordable for the city, comparing the firm’s rate to Kenyon Disend’s.

But council members Janie Edelman and Tamie Deady argued Vancil had no municipal experience and the city would end up paying more money due to the research the firm would have to perform. They said in the long run, Linehan would be more affordable because of his municipal experience and his access to the firm’s resources.

The city would also pay for Vancil’s transportation costs under the firm’s contract, Edelman argued, and since the firm was based on Bainbridge Island, it could cost the city more than $500 just to have an attorney come from the island office to the city.

After an extended discussion over which law firm was the best fit for the city, Edelman, Deady and Morgan voted against approving the Vancil contract.

This leaves Linehan as the city’s interim attorney until the council approves his contract or agrees to hire a different law firm.

And then there is the matter concerning the council’s rules and procedures.

The Talmadge memo

Attorney Phil Talmadge, hired by the council during the April 21 meeting to examine a limited scope of issues, presented a memo of his findings on Resolution 1069, which was passed by the council Jan. 21 and set new rules for the council.

Former city attorney Carol Morris was the first to write a memo on the resolution, saying the rules were illegal. Her her contract was terminated by the council, and then former interim attorney Yvonne Ward gave a similar opinion.

Ward presented an 11-page memo at the June 2 meeting, stating Resolution 1069 was illegal because it was crafted outside the public sphere. Because the creation of the rules violated the Open Public Meetings Act, Ward said, they were null and void the moment the council enacted them.

At the June 16 meeting, the council waived the right to attorney-client privilege so Talmadge can share his opinion on Resolution 1069.

In short, Talmadge said his memo focuses on the general concept of the separation of powers in a non-charter code city like Black Diamond. According to Talmadge, cities like Black Diamond have the power to adopt their own rules of procedure, as well as control their own agenda, which has been a controversial issue at several Black Diamond council meetings.

“Each branch of government controls its internal affairs separate and is distinct from the other branches of government,” the memo reads.

In the memo, Talmadge suggested how the council could clarify some of the resolution’s rules to make them more clear and remove any ambiguity concerning their legality. In some cases, Talmadge recommended some rules be done away with entirely, due to their conflict with the separation of powers or state law.

One of the suggestions Talmadge made regarded how the resolution addresses the standing committees, which has been a controversial subject.

When the rules were first passed by the council, Council members Edelman, Deady and the mayor have said the committee structure was illegal because there could not be a majority of council members on a standing committee.

Former interim city attorney Ward released a memo June 2 on why Resolution 1069’s standing committee structure was illegal. While Ward’s memo and Talmadge’s memo were not written together (Talmadge’s memo was written May 5 and Ward’s on June 2), many points brought up in Ward’s memo were already addressed in Talmadge’s.

One reason Ward found the committees were illegal was because having a quorum of council members on committees changes the committee meetings into council meetings, which means final action can be taken at these committee meetings and legislation could skip the full council meetings entirely.

Talmadge suggested the rules should clarify that members of the committee meetings do not take final action during committee meetings and only makes recommendations on legislature to the full council.

Ward also wrote the standing council committee meetings violate Black Diamond Municipal Code, which states that the only regularly scheduled council meetings are on the second and fourth Thursday of the month, and work studies are on the first and third Thursday of the month.

The Talmadge memo does not address this conflict, but the Black Diamond Municipal Code is typically changed through adopting new ordinances, which could change how many regular council meetings the city can hold.

According to Ward, the standing committee meetings also violates the Black Diamond Municipal Code as to controlling staff time. The code states the city’s hours of operation, which includes when staff can be asked to work, are 8:30 a.m. to 5 p.m. Monday through Friday and during regularly scheduled council meetings.

Talamdge suggested this part of Resolution 1069 be removed, because the council does not have authority over staff time.

There are other issues concerning the standing committee structures addressed in both memos, but the main point of Ward’s memo – that Resolution 1069 was seemingly created and discussed by a majority of council members outside of public meeting, and is thus illegal – is not addressed in the Talmadge memo.

This is because, aside from the fact the Talmadge memo was written first, Talmadge was not hired by the Black Diamond council to look at how the rules were drafted and created, Talmadge said in a June 17 interview. The firm was hired for a very limited scope of work and examining how Resolution 1069 came to be was not included in that scope, Talmadge said.

But, he added in the interview, just because the rules were not drafted in a public meeting does not mean there was an Open Public Meeting Act violation.

“As an individual, you don’t have to write rules in an open public meeting,” he said, adding that an individual or a non-quorum of elected officials can sit down and draft rules together without violating the open Public Meetings Act. “But if it’s final action in all but namesake, that’s another issue.”

Paying Talmadge

In previous council meetings, the council and the mayor have discussed who would end up paying Talmadge’s bill.

Benson said Linehan made a limited statement regarding the city’s obligation to pay the council’s legal bill when a council decides to hire its own attorney when a dispute arises between the council and the mayor.

According to Benson, one of the cases Linehan referred to in the statement was a situation where a council of seven all agreed to hire an attorney during a dispute with the executive of the city.

Benson said that this was not the case in Black Diamond – Pepper, Morgan and Weber approved the Talmadge contract while Edelman and Deady opposed it. Because of the difference in the situation, Benson said in a June 17 interview, she does not plan on paying Talmadge’s bill and expects council members, namely Pepper and Morgan (because they hired Talmadge for their own purposes before the council hired him), to pay the bill out of their own pockets.

In past council meetings and interviews, Pepper has held steady in her belief that it’s the city’s obligation to pay Talmadge.

Talmadge agreed with Pepper, saying in an interview that he fully expects the city to pay him for his services.

“That’s the bottom line,” he said. “And if the city does not (pay), I have no trouble filing a lawsuit.”

Talmadge added that if he brings the city to court over this issue, the courts could find Benson in bad faith because she had received a memo from Linehan about this issue.

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