5/22/2017 CORRECTION: In the article, “Judge approves Black Diamond recall” published May 12, 2017, it was incorrectly stated Councilwoman Pepper could file an appeal of the judge’s decision by Dec. 24. The deadline for Pepper to file her appeal was May 24.
5/17/2017 Original story:
In a rare turn of events, the King County Superior Court has approved a recall petition against Black Diamond Councilwoman Pat Pepper.
The decision came May 10 after a lengthy hearing with Judge Beth Andrus.
The recall petition was submitted April 10 by Neighbor to Neighbor Black Diamond, headed by residents Robbin Taylor, Johna Thomson and Craig Goodwin, a former council member.
The group filed five charges against Pepper, alleging that she violated the Open Public Meetings Act by meeting with a quorum of council members outside a public setting and failing to notice committee meetings; hindered the city’s ability to get legal advice by hiring and firing city attorneys; violated her oath of office by cancelling council meetings, refusing to attend council meetings, not approving meeting minutes and failing to pass necessary legislation, including approving committee positions; failed to pass a 2017 city budget by deadline; and improperly voted to amend contracts with consultants working with the city’s Master Development Review Team (MDRT).
Arguing in favor of the recall petition were Taylor and her attorney Tyler Firkins, who represented Cy Sun, former mayor of Pacific, when recall charges were brought against him in 2013.
Pepper represented herself while arguing against the recall petition, denying all allegations.
Andrus made it clear that her approval of the recall petition did not mean she was finding Pepper guilty of these charges.
“A review in court must not consider the truthfullness of the charges, but instead must accept the allegations as true, and then determine whether those charges, if true, support the conclusion that the officer abused her position,” Andrus said. “I do not decide whether the allegations are true or not true, and therefore by finding the allegation legally and factually sufficient, I would not be finding that Ms. Pepper violated that law — merely that there is sufficient evidence to support the allegation to let that go to the electorate to decide.”
Of the five allegations brought against Pepper, Andrus approved four: the OPMA violations, the oath of office violations, failing to pass a city budget by deadline and improperly voting to amend MDRT contracts.
Andrus said there was not sufficient legal standing to approve the allegation that Pepper hindered the ability of the city to receive legal advice by firing and hiring city attorneys.
“There’s no city charter, there’s no city code provision about who really has this clear-cut, legal authority,” she said. “There is, in this court’s opinion, a bonafide legal dispute regarding who has the legal authority to retain and discharge the services of a city attorney for the city of Black Diamond under certain circumstances.”
And while Andrus approved the allegations that Pepper violated her oath of office by failing to attend regular council meetings, cancelling regular council meetings and failing to provide minutes of council meetings, she did not approve the allegation that Pepper failed to pass necessary legislation.
The allegation included failing to complete the city’s Comprehensive Plan, placing grant funding at risk, and failing to pass a Transportation Improvement Plan and Capital Improvement Plan.
“I simply do not have sufficient legal briefing or facts from which to conclude whether this allegation is sufficient,” Andrus said.
‘NO FACTUAL BASIS FOR CHARGES’
She maintained through the hearing that there is no evidence that she violated the OPMA.
“No email discussions or other written documents have been submitted to support the false claims of violations,” she said. “The charge of entering into private agreements to prepare and approve legislation is vague and does not describe an illegal act. I consulted with lots of experts and members of the public to help me develop legislation, but I never privately discussed legislation with a quorum of council members.”
Pepper added that council committee meetings, a key topic in the Oakpointe OPMA lawsuit against Pepper and other council members, were not properly noticed to the public because Mayor Carol Benson refused to allow the meetings to be notified on the city’s website.
Pepper held that the City Council has the authority to hire and fire a city attorney, since in Black Diamond, the attorney is hired by contract and not an appointed city position.
She also said cancelling meetings and postponing minutes are within discretionary legislative authority, and the minutes that Benson submitted to the council contained “numerous errors” that needed correcting.
Additionally, “The claim that I failed to enact necessary legislation related to vacancies is vague and describes a proper discretional decision,” she said. “The council has the authority to disprove mayoral appointments and to keep a position vacant until a candidate suitable to the council is submitted.”
As for not passing a budget, Pepper said the council did pass a budget by a 3-2 vote before the end of the year, but that budget was vetoed by Benson.
The council then went on to pass a three-month budget on Dec. 27, 2016, and then a year-long budget in March 2017.
Finally, Pepper maintained that the council has the contracting authority to amend MDRT contracts, citing a legal brief provided by attorney Jane Koler that is related to the city’s current dispute over arbitration with Oakpointe.
“The petitioner (Taylor) seems to have picked out a vote she disagrees with and tried to make it illegal,” Pepper said.
After the hearing, Pepper said she ran for City Council on the platform on reform, and Black Diamond residents voted her into office “to make decisions and policy in the face of huge challenges facing us as a community now and in the future. These decisions and policy are based on research and best practice.”
Pepper did not comment on whether she would appeal the court’s decision and send the recall petition straight to the state Supreme Court.
According to Andrus, Pepper has until Dec. 24 to file her appeal.
The court is required by state law to hold a hearing on the recall petition within 30 days of Andrus’ decision.
Spokeswoman Thomson said in a press release that Andrus’ decision is a “huge victory” for the people of Black Diamond.
“The chaos that has been happening in council chambers for the past year-and-a-half has had a ripple effect of instability for city staff, residents and businesses,” she said.
But getting the Superior Court’s approval was only the first hurdle for Neighbor to Neighbor.
The group now has to collect signatures before a recall measure can be placed on the ballot.
According to Kafia Hosh, a King County Elections communications specialist, petitioners have to collect a number of signatures equal to 25 percent of the votes Pepper received in the November 2015 election.
Pepper was elected with 1,408 votes in her favor, meaning Neighbor to Neighbor has to collect 352 signatures.
Taylor said after the hearing that she plans to print up signs and start collecting signatures as soon as its made clear Pepper will or will not appeal.
“We are pushing for the primary ballot, which is August,” Taylor said.
Neighbor to Neighbor has 180 days to collect the necessary signatures before the vote is put to the people.
In related news, a recall petition against council member Erika Morgan was pulled by Neighbor to Neighbor earlier this month.
Because Morgan is up for election this year, the group needed to be finished collecting signatures six months before the November general election, putting that deadline at May 7.
According to Ballotpedia.org, out of 30 recall charges brought to officials in Washington state history, only four had allegations approved by courts, and only two resulted in the official being voted out of office.