The Black Diamond City Council is undoubtedly on Santa’s naughty list.
The five-hour Dec. 15 council meeting was chaotic with multiple highlights verbal spats over legal representation, a physical confrontation between the mayor and a council member for control of the meeting and a city budget still waiting to be adopted .
But it all comes down to this: According to city officials, with the new year fast approaching, the council is now inching its way toward a city shutdown if an operating budget is not passed.
A special meeting was called for 5 p.m. on Tuesday, Dec. 27, to continue budget discussions, and Mayor Carol Benson made it clear that meetings will continue every night after until a decision is reached.
A SUBSTITUTE BUDGET
The budget dispute centers around several amendments introduced by Councilman Brian Weber.
Weber announced he had amendments he would like to make to the budget during the Dec. 1 meeting, but did not go into much detail about them.
During the Dec. 8 workshop on the budget, Weber again declined to give more information about his amendments.
When his amendments made the rounds on Dec. 15, it was the first time the council, the city attorney, the city’s financial director and the public had seen them.
Weber held up his amendments and related budget ordinance as part of a “truly historic and forward-thinking budget.”
But many residents at the meeting criticized these amendments as deceptive because they were introduced two weeks after the final public hearing on the budget, which was held Dec. 1.
Benson was less eloquent, calling Weber’s amendments “a piece of sh*t.”
Finance Director May Miller said, “I’ve never seen an ordinance like this, and I’ve been doing this for 40 years. I can’t imagine how I will have time to figure this out by the end of the year.” Miller noted the budget looks like it makes several staff cuts and department budget cuts.
In a Dec. 16 email, Weber explained the only position that he meant to cut in his budget amendments is the MDRT (master development review team) and Economic Development Director, a position currently held by Andy Williamson.
“This position will be split between a new city administrator and a new director of planning, development and environmental review. The ‘planner’ position in the Community Development department will be upgraded to a new appointed director of planning, development and environmental review,” Weber wrote. “The incumbent in the MDRT and Economic Development Director would presumably stay on through the first six months of the year, and could consider applying for either of these new positions.”
William’s job is a union position, and Teamsters 117 Secretary-Treasurer John Scearcy wrote in a Dec. 16 email that it seems the council is, “trying to undermine the important services our members provide to the residents of Black Diamond by eliminating this position. We will do everything in our power to ensure that our members’ rights under the law and under their collective bargaining agreement are protected.”
Weber’s budget has a few more FTE (full-time equivalents) cuts – one FTE from Community Development, 0.44 FTE from the water operating fund, 1.06 FTE from the sewer operating fund and 0.43 FTE from the stormwater operating fund. Weber wrote that he is reviewing his proposed budget “and will be asking staff for their input and possible corrections. I did not intend to eliminate any positions beyond the MDRT and Economic Development director.”
Weber’s amendments also call for removing all MDRT consultants – Henderson & Young, RH2 Engineering, Paramatrix, Perteet, SubTerra, Survey Paramatrix and CH2M Hill UTRC – from the MDRT and cutting the MDRT budget from $438,000 to $388,000.
Colin Lund, the director of development for CCD Black Diamond Partners LLC (who recently filed a lawsuit against the city for Open Public Meeting Act violations) said that the city and the developer have already entered into a legally-binding agreement that sets which MDRT consultants are to be used and the MDRT working budget.
The budget amendments also came with hefty amendments to the budget ordinance.
Weber said these ordinance amendments can be split into four general categories: “stick to the budget reforms,” “responsible contracting reforms,” “accountable spending reforms,” and “controlled managed growth reforms.”
Weber said his “stick to the budget reforms” are about making sure that money can’t move between line items and the department without public notices and council approval.
The “responsible contracting reforms,” are all about making sure no contracts are signed without council approval, Weber said. This has been a touchy point for the council, since the mayor has repeatedly used her spending powers to approve multiple $15,000 contracts without council approval for many companies and law firms, including the city’s current attorney, David Linehan of Kenyon Disend.
The “accountable spending reforms,” make it so that department budgets are tied to specific objectives, Weber said. For example, $106,000 in the Finance Department budget can’t be spent until Benson has provided documentation noted in Black Diamond Municipal Code 3.23.030 relating to the contracting, hiring, purchasing and disbursing policies of the council.
Another example is $50,000 will be withheld from the city clerk, police, finance department and many other departments until the council approves a policy regarding staff support for the council’s legislative work.
Both of these points have been contentious throughout the last year, and no resolution has been reached, since Benson claims all three sections of BDMC 3.23.030 have been met, and that staff doesn’t work with the council at the council’s standing committees because the standing committees meet illegally.
This reform also created a rainy day fund that can only be used with a request from the mayor and approval from the council.
Finally, the “controlled managed growth reforms” creates a new city administrator and development and environmental officer positions to help the city control its growth. Weber said these positions can be funded with available funds in the budget.
Benson said in a Dec. 16 interview that many of these reforms focus on taking away her spending authority.
“It can’t be adopted the way it is,” she said, adding it was “very likely” she will veto the amended budget and ordinance, but will be talking to the city attorney between now and Dec. 27, when the council will meet again to go over the budget.
While Benson does not have the power to force council members to come to meetings if the council doesn’t pass a budget between Dec. 27 and Dec. 31, she said she will continue to hold meetings until the end of the year.
If a budget isn’t passed by Jan. 1, Benson said she will instruct the city attorney to file a writ of mandamus to get a judge to order council members to attend daily council meetings until a budget is passed.
Since CCD Black Diamond Partners LLC filed a lawsuit against the city on Dec. 2, the city and council members have started preparing their defense.
The lawsuit specifically calls out Pat Pepper, Erika Morgan and Weber for allegedly violating the Open Public Meeting Act at least 135 times.
The city’s insurance carrier, the Association of Washington Cities, made it clear in a Dec. 15 letter that it will not pay or compensate the city, the council as a whole or the individual council members for their defense costs because the city’s coverage does not include OPMA violations.
Benson said the city is retaining its current attorney, David Linehan of Kenyon Disend, who said he will only be representing the city in the lawsuit, and not the individual council members, due to a conflicts of interest.
“There’s clearly adversity between the city and the individual council members,” he said in a brief statement after the Dec. 15 meeting. “Lawyers can’t represent parties with adverse interests in the same matter… the lawsuit directly alleges personal actions against [the council members], as opposed to the city as a whole.”
The conflict of interest comes from Oakpointe asking the court for Pepper, Morgan and Weber to be personally liable for a $67,500 fine each for their OPMA violations, plus attorney costs.
Benson has been clear since January that she believes Pepper, Morgan and Weber have been violating the OPMA.
Additionally, lumping Pepper, Morgan and Weber’s defense with the city would financially benefit those three, because they would no longer be liable for paying their own attorney costs, argued councilwomen Janie Edelman and Tamie Deady,
However, Pepper and Morgan say there is not a conflict of interest between the city and the council members, and introduced a resolution to hire Jeff Taraday of the Seattle-based Lighthouse Law Group to defend the three council members and the city together, with the city covering the bill. Lighthouse Law Group provides city attorney services for the city of Maple Valley and several other municipalities.
“The interests of the council members and the city are completely aligned,” Morgan wrote in a Dec. 16 email. “The city’s defense will be to prove there was no OPMA violation, and the three individual’s defense would be to prove there was no violation.”
Taraday said that he does not believe there is a conflict of interest.
After the Lighthouse Law Group resolution was brought to the table on Dec. 15, Councilwoman Janie Edelman surprised the room by making a motion to accept the resolution.
She then immediately switched gears to oppose her own motion, alleging that each council member named in the lawsuit willfully and intentionally violated the Open Public Meeting Act and that the Lighthouse Law Group resolution is filled with conflicts of interest.
Edelman argued that the city should not pay for the defense of the three council members, and asked Benson to recommend whether the city should pay to defend or indemnify (compensate) each council member.
Benson said she did not recommend paying for Pepper’s, Morgan’s and Weber’s defense.
Working with Councilwoman Tamie Deady, Edelman moved to disqualify each council member from voting on the Lighthouse Law Group resolution, based on her allegations of conflict of interests.
Edelman and Deady met before the meeting to come up with this plan, Edelman said.
Pepper, Morgan and Weber contended that there was no conflict of interest in their vote for legal defense, and voted anyway.
Depending on who is asked, this means the resolution either failed because Pepper, Morgan and Weber were disqualified from voting, or it passed with the majority approving the resolution 3-2, with the mayor denying the resolution.
Taraday said on Dec. 16 that he had not received a signed contract back from the city.
In an email, Morgan wrote that Edelman’s and Deady’s actions during the meeting were unethical and violated the city’s municipal code.
“For Benson to read out the false allegations, and for Edelman to accuse us of malicious intent was just a PR (public relations) stunt and bullying tactic,” Morgan wrote. “Our council meetings should not be used this way.
FIGHT FOR THE GAVEL
It was during the Lighthouse Law Group resolution discussion when Benson and Morgan had a physical scuffle for the gavel.
During the more heated part of the argument, Benson called a recess.
However, the council majority holds that a recess must be approved by the council, and Benson’s recess was called illegally.
So with the mayor out of her seat, Morgan took control of the meeting and called it back into session to vote on the Lighthouse Law Group resolution.
Pepper, Morgan and Weber approved the Lighthouse Law Group resolution unanimously, which was about when Benson started going for the gavel.
Much of the public was either filing out of the room, already out in the hall or engaged in heated debate when the vote occurred.
Black Diamond police intervened, with one officer breaking up Benson and Morgan and two others taking control of heated verbal disputes nearby.
Police Chief Jamey Kiblinger eventually called for everyone to leave the room in an attempt to calm people down.
When the meeting came back to order, Morgan said the resolution was passed, and even though it wasn’t recorded by the city clerk, Morgan recorded it on a hand-held recorder.
This is not the first time Morgan attempted to reconvene a meeting after Benson called a recess.
A similar incident occurred during the Nov. 28 meeting, and although Pepper, Morgan and Weber had discussion about making a motion, nothing was brought to a vote and control of the meeting was soon returned to Benson.