12/13/2016 Editor’s note: It was originally reported that Dec. 30 emails between council members Pat Pepper, Erika Morgan and Brian Weber were sent before Weber and Pepper took their oaths of office. According to City Clerk Brenda Martinez, Weber took his oath of office Dec. 1, 2015. Pepper was sworn into her position on Jan. 7, 2016. The article has been updated to reflect these corrections.
You can’t say they weren’t warned.
At the end of a tense but overall cordial Dec. 1 meeting, Oakpointe Communities CEO Brian Ross stood at the podium to announce that Black Diamond Partners LLC – of which Oakpointe is a member – has filed a lawsuit against the Black Diamond City Council.
The lawsuit names the full council as a defendant, but also names council members Pat Pepper, Erika Morgan and Brian Weber individually.
The mood in the council chambers was overwhelmingly celebratory, but Ross was somber presenting the suit to the council.
“After several months of study, deliberation and consideration, we’ve decided it is our community’s best interest that we take this difficult, but necessary, next step,” Ross read from a prepared statement. “The illegal behavior of council members Morgan, Pepper and Weber represents a dereliction of duty to the citizens of Black Diamond that elected them to their respective offices.”
The suit, filed the night of the meeting, alleged that Pepper, Morgan and Weber have committed 135 Open Public Meeting Act violations since December 2015.
Oakpointe asks the court to order the three council members to pay a fine of $500 per violation – or $67,500 apiece – as per RCW 42.30.110.
The suit also asks the court that Pepper, Morgan and Weber be personally liable for the fine, because the council members ignored warnings by four separate attorneys and the city’s insurance provider that their actions may violate state law and the OPMA, a press release read.
Beyond the OPMA violations, Ross also alleged that Pepper, Morgan and Weber brought regular council business to a grinding halt by:
• Approving only 17 of 54 council meeting minutes in 2016;
• Failing to approve the city’s Comprehensive Plan, which resulted in the city no longer being able to receive grants from the Puget Sound Regional Council;
• Failing to approve the Transportation Improvement Plan and the Capital Improvement Plan;
• Failing to renew the city’s insurance policy;
• Failing to approve a $25,000 storm water management grant agreement with the Department of Ecology;
• Failing to approve a contract for building inspection services, delaying the reconstruction of Black Diamond Elementary;
• Failing to fill the open seats on the Planning Commission and Civil Services Commission; and
• Failing to approve vouchers and claim checks.
Council women Tamie Deady and Janie Edelman both declined to comment on the suit, only saying that it was an unexpected turn of events.
Pepper wrote in an email that, “serving a lawsuit on the council during a council meeting was unprofessional and a political stunt. The council and council members have the authority to defend against this, and will vigorously. The complaint is full of inaccuracies and lacks merit.”
Weber, Morgan and Mayor Carol Benson did not respond by press deadline.
Also weighing in on the suit is John Scearcy, the secretary-treasurer of Teamsters 117, which represents 11 city staff members. Scearcy wrote to the Courier-Herald in June about the city’s current state of chaos.
“This complaint brought against the city could have been avoided,” Scearcy wrote in a Dec. 4 email. “The city’s staff is competent and professional and works hard to serve the public. The city, these employees and the taxpayers are not getting the support they need when three council members – Pat Pepper, Erika Morgan and Brian Weber – fall short of their responsibilities by repeatedly canceling public meetings and instead, it appears, meeting in secret. Unfortunately, we are not surprised to hear of the allegations made about these three skirting the state’s open meeting laws and putting the city and its taxpayers at risk of costly litigation.”
CREATION OF THE RULES
Pepper, Morgan and Weber have been accused of OPMA violations practically since they took office, but this is the first time – barring a suit filed by Bob Edelman that was quickly withdrawn – these allegations are going to court.
The first allegation of an OPMA violation took place before the beginning of the year.
The suit alleges that between December 2015 and Jan. 21, Pepper and Weber met with Morgan in person, over the phone, through email and third parties to discuss and draft a new set of council rules, which became known as Resolution 16-1069.
As evidence, Oakpointe pointed to a Dec. 30, 2015 email sent from Morgan to Pepper and Weber with the subject title, “Draft council thoughts?”
“I think it might be smarter just to 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,” the email reads.
The Dec. 30 email was sent after Weber was sworn into office on Dec. 1, 2015, but after Pepper was sworn into her position on Jan. 7, 2016.
The rules were brought up at the Jan. 7, 2016 meeting, but were not adopted because the three council members did not know how to introduce the document, according to Oakpointe.
On Jan. 8, Weber sent an email to Pepper, titled “Special Meeting Letter,” which asked City Clerk Brenda Martinez to cancel the special council joint meeting on Jan. 12 and notice a special meeting on Jan. 19 for the council to review and adopt the new rules.
The letter was finalized and sent to the city with signatures from Pepper, Morgan and Weber later that day, which points to a final collective decision made by the three council members, the suit reads.
Oakpointe alleged more emails discussing the rules were sent between Pepper, Morgan and Weber between Jan. 8 and Jan. 12.
The rules were adopted Jan. 21.
The new rules created three standing committees to discuss council business. Each committee is made up of three council members.
Four attorneys – Carol Morris, Phil Talmadge, David Linehan and Yvonne Ward – and the city’s insurance provider had issues relating to these committees and how their structure and actions violate the OPMA.
A common train of thought in each memo and letter was that if each committee consisted of a majority of the council, the meetings may be considered regular council meetings under the OPMA, and would need to abide by those laws.
Morris wrote in a Jan. 19 memo that if the committees consisted of a quorum of council members, “city staff would have to provide public notice of each of these meetings in the same way as a special council meeting is noticed.”
Morris also wrote that because there is a quorum, action taken at the committee meetings could be construed as final action, and as such, these agenda items need to be on the meeting agenda, and the city attorney should be present.
Talmadge echoed Morris’ thoughts in a separate memo published May 5.
“Public notice and following other requirements of the Open Public Meeting Act should be given both for the committee meeting and also as a meeting of the council,” he wrote.
In her June 2 memo, Ward pointed to a 2010 Attorney General’s opinion stating that “if committees consist of a quorum of a city council and discuss city business, it is a city council meeting and must comply with all laws governing such meetings,” which includes proper noticing and agenda setting, her memo reads.
Linehan’s July 6 memo was more of the same.
“If a committee meets regularly on a pre-set schedule… and that committee contains a quorum of council members, that committee meeting arguably constitutes a regular meeting of the council under the OPMA,” he wrote. “In short, in my view, this committee structure is inviting litigation, with liability being very difficult to predict or contain.”
The city’s insurance agency, the Association of Washington Cities, weighed in with a letter sent to the council Sept. 14.
“We continue to be concerned that council subcommittees with a majority of the council members appointed to each subcommittee may in fact be considered a regularly-scheduled council meeting under the Open public Meetings Act,” wrote Program Manager Roger Neal. “Although the council has the authority to establish council procedures, these procedures must be consistent with state law.”
According to Oakpointe, Pepper, Morgan and Weber continued to hold and participate in their committee meetings that did not comply with the OPMA.
The suit lists 12 specific instances where the various committees allegedly violated the OPMA by not notifying the public in advance of a meeting, not preparing an agenda for the meeting, and not preparing minutes for the meeting.
The suit also alleges that many more committee meetings than what was listed failed to notify the public and agendas and minutes were not prepared.
It should be noted that Edelman and Deady, who each hold a spot in these committees, have made it clear that they have not attended any of the committee meetings, meaning only two council members have ever met at a standing committee meeting at a time.
The suit also alleges other OPMA violations by Pepper, Morgan and Weber through the cancellation of meetings, substituting agendas, rejecting claims checks, refusing to attend executive sessions and more.
These allegations include:
• Discussing the cancellation of the Jan. 12 special joint meeting of the council;
• Discussing an agenda substitution for the March 17 council meeting;
• Collaborating on Resolution 16-1089, which terminated former city attorney Carol Morris’ contract in April;
• Collaborating on a resolution to hire the Talmadge Fitzpatrick Tribe law firm in April;
• Having in their possession a document titled “A Plan,” which detailed actions each council member would take during council discussion and executive session;
• Coordinating to reject a $10,000 claims check for DKS Associates for work on the city’s Comprehensive Plan;
• Coordinating to not attend the May 19 council meeting, and the May 25 council meeting;
• Coordinating the early termination of the June 2 meeting;
• Collaborating on revising five Master Development Review Team contracts outside the public arena;
• Coordinating to not attend the Aug. 18, Sept. 1 and Sept. 15 executive sessions and
• Using personal and work emails to talk directly or through third parties between Jan. 1 and the present.