Black Diamond rules illegal, says interim attorney; Police chief asked to remove council member from meeting

The June 2 Black Diamond City Council meeting started rough and derailed entirely when one council member was asked to leave and another two followed.

Top row: Council members Brian Weber

The June 2 Black Diamond City Council meeting started rough and derailed entirely when one council member was asked to leave and another two followed.

The council began the night by censuring council members Erika Morgan, Pat Pepper and Brian Weber for failing to attend the regularly scheduled May 19 council meeting, willful interference with government operations, violating their oath of office and violating the Open Public Meetings Act.

This was quickly followed by an extended attorney’s report, where interim City Attorney Yvonne Ward laid out in detail that the rules passed by the council during the Jan. 21 meeting, known as Resolution-1069, and the subsequent standing committee structure that resolution put in place were both illegal under Black Diamond Municipal Code and state law.

“Resolution-1069 is illegal on three basis; violation of the Open Public Meetings Act… it was formed for illegal and illicit purposes, and also because it is what we call ‘Ultra Vires’ (it is without authority),” Ward said at the meeting, recommending the mayor not enforce the resolution.

Mayor Carol Benson said she is not going to enforce the resolution and instead will revert to the previous incarnation of the council’s rules and procedures, which were last amended Feb. 15, 2015. Reverting to these old rules includes dissolving the three-council member committee structure set up by the resolution.

Benson said in a June 3 interview that instead of appointing council members to committees, she is going to wait for council members to ask to be on a specific committee.

The council then adjourned to executive session. Benson asked all council members to leave behind their phones, purses, briefcases or any prepared materials.

“In one executive session, they got on their phones to talk to people,” Benson said in an interview to explain why she asked phones and bags to stay in the council chambers.

A heated public comment began after the executive session with residents and non-residents on both sides of the fence discussing the beginning of the meeting and how they viewed Resolution-1069.

The council then began a public hearing on the city’s six-year transportation plan and decided to keep the public hearing open until the next regularly scheduled meeting on June 16.

Throughout the meeting, Pepper repeatedly asked Benson for the floor and was either ignored or denied until Benson threatened to have Pepper removed if she kept disrupting the meeting.

Council members Janie Edelman and Tamie Deady then attempted to approve a claim check for $10,000, a payment that has already been made to DKS Associates for their work on the city’s Comprehensive Plan. This claim check was moved to a standing committee by Weber March 17 and the council minority has repeatedly tried to act on it ever since.

Weber, Morgan and Pepper voted against approving the claim check.

Before discussion could begin on a resolution approving an agreement with DKS Associates to finish their work on the Comprehensive Plan, Pepper once again requested the floor.

Benson then asked Police Chief Jamey Kiblinger to remove Pepper from the council chambers.

Kiblinger suggested a recess first, and Benson agreed.

As council members started to stand up from the dais, Pepper was seen placing documents into her bag. Black Diamond resident Robbin Taylor verbally requested copies of those documents and others being used by council members.

“Oh no, you don’t get to do that,” Pepper replied. “I will get the documents when [city clerk] Brenda notifies me, according to the process.”

Council members Pepper, Weber and Morgan then left the council chambers and did not return when the recess ended, leaving council without a quorum and with a long list of agenda items still needing to be acted upon.

The agenda was similar to the ones noticed at the May 19 regular meeting and the May 25 special meeting, which included resolutions authorizing agreements with the city of Maple Valley for building inspection services and BHC consultants for additional building services (which the city currently has limited ability to perform); a resolution allowing DKS Associates to finish its work on the city’s belated Comprehensive Plan; a resolution approving Paramatrix, Inc. to design the Covington Creek culvert replacement; a resolution awarding Lakeridge Paving Co. the Jones Lake overlay project; three grant agreements; and resolutions approving appointments to the city’s planning and civil services commissions.

Concerning Taylor’s verbal public disclosure request, Ward stated in an interview that public disclosure request disputes often err on the side of the requestor unless there is a specific exemption.

“More likely than not, that request was reasonable,” Ward said, given the city in the past has collected, scanned and returned all requested documents within 24 hours and documents are independently searched for redactions by the city clerk before they are released to the public.

Pepper disagreed in a separate interview.

“A public official does not lose their right to privacy on the dais,” she said. “You cannot make a request for documents before the meeting has occurred.”

Pepper also said Taylor’s demands did not come through the proper channels, like sending an email to the city clerk and allowing the city clerk to review documents before they’re released to the public.

The June 2 meeting marked the end of Ward’s interim attorney contract. Benson used her authority to temporarily hire David Linehan from the Issaquah firm Kenyon Disend, until the council approves a year-long open ended contract at the June 16 council meeting.

Kenyon Disend previously worked with Black Diamond as its city attorney from 2010 to 2014 until former mayor Dave Gordon fired city administrator Mark Hoppen and hired Christy Todd.

The firm terminated its contract with the city because of a pending legal claim involving Todd from her time working as city attorney for Maple Valley. Kenyon Disend alleged that Todd gave Maple Valley bad advice when a malpractice suit was filed by the city against the firm. After the malpractice case was dismissed by the state’s Superior Court, Kenyon Disend filed a claim for damages against Maple Valley.

Resolution-1069 illegal, large fiscal impact

Ward published two memos relating to the illegality of Resolution-1069 and presented them at the meeting.

The memo titled “Resolution 16-1069 Finding and Conclusions,” stated the resolution was invalid from the time it was introduced and passed by the council due to violations of the Open Public Meetings Act and because it violates state and local law.

According to the memo, council members Pepper, Weber and Morgan, “apparently began ‘practicing’ for something for the first council Meeting on January 7, 2016.”

The Dec. 30 email sent from Morgan to Pepper and Weber, as well as to private citizens Brian Derdowski and Kristen Bryant, stated, “I think it might be smarter to just name me Mayor Pro Tem and go along with the Council Committee appointments… then come up with a clean copy of the ‘new council rules’ after a citizen meeting and some support public input.”

Another email sent from Morgan to Pepper, Derdowski and Bryant, but not Weber, on Jan. 12 stated, “Also, are we all still confirmed with resolve to knock Janie out of any chairmanship of any committee?”

The memo stated approximately 33 emails were exchanged between Morgan, Weber and/or Pepper between Jan. 8 to Jan. 12 regarding Resolution-1069 and a special council meeting where the resolution could be adopted.

A public disclosure request made by Robbin Taylor during the May 5 meeting revealed more communications between the council members.

Ward wrote in the memo that a document titled “A Plan” was found in Pepper’s possession that lays out what Pepper, Morgan and Weber had decided to do for the April 21 meeting.

“Executive Session – Do not agree to anything. You are on solid ground, just hold off,” part of the plan read. “Adjourn the exec session if you are cross-examined. Say: ‘we are done with this exec session, do you agree Pat, Erika, Brian?'”

These pieces of evidence violate the Open Public Meetings Act and sunshine laws, and “because R-1069 was concocted, drafted, discussed and decided upon by Pepper, Weber, and Morgan, a majority, outside of the public deliberative process, it is null and void,” Ward wrote.

The memo also outlined that the resolution was illegal because it attempted to limit mayoral power, impede the mayor as the presiding officer of council meetings and grant itself the right to control the preliminary agenda, which goes against state law.

Ward also found the resolution’s standing committee structure to be illegal in a memo titled “Committees under Resolution 16-1069.”

One reason why the committee structure, which put three council members (a quorum) into a committee, is because of the fiscal impact it could have on the city.

According to Black Diamond Finance Director May Miller, the committee structure in Resolution-1069 would cost the city a little more than $288,000 per year to correctly enact. Most of the cost comes from additional work hours for the clerk and city department directors.

Ward said the committee structure is an unfunded mandate not outlined in the city’s budget, and state law and the Black Diamond Municipal Code do not allow the council to impose programs that are not funded.

Additionally, the committees violate city ordinances dictating staff time, Ward wrote.

Black Diamond Municipal Code sections 2.04.010 and 2.06.010 state the city’s hours of operation are Monday through Friday, 8:30 a.m. to 5 p.m. and regularly scheduled council and work sessions.

According to Ward, the resolution’s committee structure required staff to attend committee meetings outside of the hours set in the city’s code, according to section 15.3 of the resolution.

“The Council cannot require Staff to attend to City business outside the above hours unless authorized by separate contract negotiated through its representatives,” the memo reads. “Current contracts do not give the Council such authority.”

The council attempting to interfere with the administration of the city (which falls under the mayor’s authority) in this manner is a violation of the separation of powers doctrine, Ward wrote.

Ward outlined several other issues with the committee structure, including that Resolution-1069 improperly delegates quasi-judicial powers to the committees, the committees interfere with the city’s ability to comply with its legal obligations and it interferes with the city’s ability to obtain funding, complete necessary infrastructure and public works projects.

In response to these memos, Pepper said there is a great deal of misinformation that was given out at the meeting.

“Much of what was said was slanted in favor of the mayor,” Pepper said, adding that the council has received a legal memo with different conclusions from the firm Talmadge, Fitzpatrick and Tribe.

In a separate interview June 5, Weber denied working with Pepper, Morgan or Derdowski on Resolution-1069 and denied violating the Open Public Meetings Act, saying that bringing up these issues again is like beating a dead horse.

And while the mayor has accepted Ward’s memos and has cancelled all future standing committee meetings under the Resolution-1069 structure, “I see no reason why we shouldn’t continue to try to notice our committee meetings,” Weber said.

Weber also said it was unprofessional of Ward to have passed out her memo on the resolution during the meeting, instead of sending out copies to council members beforehand.

Ward said she was unable to give council members and the mayor advance copies of the memo because it was finished less than an hour before the meeting.

“Nobody saw it and nobody knew about my conclusions until that moment when the mayor asked me to present my findings, whatever they may be,” Ward said.

The Talmadge memo, leaving the meeting

Councilwoman Pepper requested the floor multiple times throughout the meeting, but was either ignored, denied or called out of order by Benson.

“I was trying to reorder the agenda… to bring certain items forth earlier in the meeting,” Pepper said in a June 3 interview. “One of her duties as presiding officer is recognizing council members when they ask for the floor.”

One of the items Pepper wanted to discuss was the legal memo regarding Resolution-1069, written by the firm Talmadge, Fitzpatrick and Tribe.

The council voted to hire the firm April 21 to represent the council on two issues – Resolution-1069 and the contract termination of former city attorney Carol Morris.

Pepper said she wanted the council to vote to make the Talmadge, Fitzpatrick and Tribe’s memo on the resolution public.

The council has had a copy of the Talmadge memo since May 5 but has yet to make it public.

Morgan, who signed the council’s contract with the firm as per the city clerk’s instructions, said she does not have the power to waive the council’s right to attorney-client privilege without a full vote of the council.

Ward said she received a copy of the memo in late May, and while she cannot talk about the memo in specifics because of attorney-client privilege, she did say the memo was not relevant to the issues before the council.

Ward said the bulk of the memo is about the authority of the council to fire Morris, an issue that Ward has not addressed.

The rest of the memo is about the general concept of the council’s authority to enact it’s own rules and procedures, which Ward said is not disputed.

“The Talmadge memo is fairly irrelevant to Black Diamond,” Ward said. “It’s not specific to the facts… or to our ordinances.”

After several unsuccessful attempts at getting the floor, Benson asked for Pepper to be escorted out.

Despite Kiblinger suggesting a recess, Pepper said she felt that she was still asked to leave the meeting.

“We had been seriously attacked all meeting,” she said in an interview. “I was kicked out and I left.”

Weber and Morgan echoed Pepper’s thoughts in separate interviews.

“It was absolutely absurd to throw out a council member from a council meeting when all they’re trying to do is get recognition from the chair,” Weber said, adding that he left the meeting with Pepper as a show of solidarity.

“The reason we left the meeting is because the mayor is obstructing the legislative branch,” Morgan said. “The mayor is being irresponsible by not allowing us to bring the Peoples Business to the meeting, make motions, or do adequate review of the issues in our Standing Committees. The results have been that the council is forced to vote no on principle even on issues that we might otherwise support if they were reviewed properly. How can the Mayor expect any cooperation when she manhandles and strangles the very Council she has to get her votes from (sic),” she wrote in a later email.

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