Judge clarifies recent ruling in Black Diamond OPMA case; council members ‘likely unable’ to post $150,000 bond, says lawyer

The King County Superior Court recently clarified its most recent ruling in the Oakpointe v. Black Diamond OPMA case, following a motion for reconsideration filed late last month by council members Pat Pepper, Erika Morgan and Brian Weber.

Judge Janet Helson ruled on March 8 that the city of Black Diamond is required to pay for the council members’ defense in this case, but only after Pepper, Morgan and Weber secured a $150,000 surety bond, in the possible instance that they are required to pay the city back when the final determination in this case is made.

The council members filed a motion for reconsideration on March 20.

Jeff Taraday, their legal counsel, wrote in the motion that forcing his clients to post the $150,000 bond does not do substantial justice, and “if the Individual Defendants need to provide cash collateral to obtain a city-provided defense, then they are not really being provided a defense at all. They are being required to pay for it upfront.”

Taraday also wrote that Pepper, Morgan and Weber have been unable to secure the bond.

“It is likely that some of the Individual Defendants will not be able to qualify for a $150,000 bond or be able to afford the premium on a bond in this amount,” Taraday wrote. “This might still be the case if each of the three were required to post a $50,000 bond.”

Taraday suggested Helson revise her ruling in two ways that would lessen the financial burden on the council members.

The first was that the $150,000 bond requirement could also be satisfied by a deposit of funds in the court registry, or a combination of bonds and deposited funds.

Under this first revision, Taraday also suggested that the entire $150,000 bond requirement need not be posted as a lump sum, as long as the money that has been deposited or secured in a bond is equal to or more than the amount spent on Taraday and his legal counsel.

“Surety bonds are not the only way to protect the city’s interest.” Taraday wrote. “The city’s interest would be adequately protected by any combination of surety bonds and cash deposited in the court registry, as long as the total amount of the combined security equals or exceeds the amount paid to the Individual Defendants’ counsel.”

As for funds being deposited in the court registry, Taraday suggested some funds could come from “a third party” not named in the OPMA case.

The second revision Taraday recommended was that if the council members are required to post an additional surety bond, in the event that their court costs exceed $150,000, that the court re-examine those security conditions if Pepper, Morgan and Weber cannot financially meet them.

Ruling on Reconsideration Motion by Ray Still on Scribd

The only reconsideration Helson made was to allow the council members to deposit funds into the court registry, as well as continue to work toward posting the bond.

Additionally, Black Diamond still is not required to pay any of the council member’s defense until the entire $150,000 has been posted, either in bonds or deposited funds.

Finally, Helson ruled that because Pepper, Morgan and Weber “did not provide any information regarding their assets and incomes or otherwise provide any evidentiary support for their claim of inability to meet the original conditions for the preliminary injunction,” Black Diamond does not have to pay any fees related to the council member’s motion for reconsideration.

INABILITY TO POST BOND?

For Pepper, Morgan and Weber to post a bond, they are required to front a non-refundable percentage (called the premium) of the bond and possibly put up additional collateral, Taraday said in an interview.

It is still not known how much the premium would cost, nor what was asked for additional collateral or what organizations were approached.

Black Diamond and Oakpointe argued in reply briefs that this lack of information meant the court should deny the reconsideration motion.

“Notably absent are any declarations from the Individual Defendants themselves regarding their financial situations that would justify revising the Court’s prior decision,” wrote Shannon Regonesi, who represents the city and Mayor Carol Benson in this case. “In fact, simply investigation shows each Individual Defendant likely has enough assets to secure the required bond.”

According to Ragonesi, Morgan’s 2016 financial records show she claimed two sources of income equalling between $72,000 and $167,988 in 2016, as well as a fully paid-off property valued over $120,000 and a money market account valued between $24,000 and $47,999.

Pepper had income from the Social Security Administration and multiple pension sources that year, totaling between $52,000 and $119,97.

Weber’s Personal Financial Statement for when he ran for his council position in May 2015 showed he earned between $48,000 and $119,999 from his engineering job, and his spouse made between $24,000 and $47,999.

“This evidence is inconsistent with a claim that they cannot afford the surety bond,” Ragonesi wrote.

Taraday wrote in a March 30 email that he would release bond process details once the clarification ruling was made, but wrote again April 3, stating he and the council members are still evaluating their options.