The Open Public Meetings Act lawsuit against the city of Black Diamond, Councilwoman Pat Pepper and former council members Brian Weber and Erika Morgan is expected to be settled, following news of a judge finding the three individual defendants violated state law.
On Thursday, Jan. 25, King County Superior Judge Janet Helson finished her full ruling on the summary judgement motions submitted by developer Oakpointe, plaintiff, the city and the individual defendants.
Oakpointe’s summary judgement motion asked Helson to rule whether 33 specific meetings violated the OPMA. These 33 instances of alleged OPMA violations were only a fraction of the 135 violations the developer claimed in their original complaint, filed with the court Dec. 2016.
The first alleged violation occurred during the Feb. 11, 2016 Government Operations Committee meeting.
Oakpointe alleged Pepper and Morgan met prior to and including Feb. 11, “in advance of Government Operations Committee meeting to plan agenda and invite Brian Derdowski to present lengthy presentation” on the 2016 council rules and procedure, passed by Pepper, Weber and Morgan January 2016.
It was the controversy over these rules that eventually snowballed into Oakpointe filing the OPMA lawsuit.
The alleged OPMA violation was that the published notice and agenda for that meeting, “failed to identify the business to be conducted and deliberately omitted known event; Morgan and Pepper engaged in action as a quorum of the Committee (which is subject to the OPMA) on Committee business.”
Helson ruled this meeting violated the OPMA “because public testimony was taken,” and there was “undisputed evidence” that “Pepper and Morgan were aware of, and invited, the presentation by Mr. Derdowski, which was not encompassed by the agenda item ‘public comment,’ in that he characterized himself as making a ‘staff presentation.’”
For a Feb. 24, 2016 Growth Management Committee meeting, Oakpointe alleged Pepper and Weber interviewed candidates for the city’s Planning Commission, “although the event is not listed on the agenda or notice,” and the meeting was not property noticed as a “special meeting of the entire council,” since Morgan attended the meeting as well.
Helson ruled this meeting also violated the OPMA, “because three council members were present and because public testimony was taken,” adding there was undisputed evidence that Pepper, Weber and Morgan “were aware of the fact that the Planning Commission candidates would be interviewed but that was not included in the meeting notice.”
The agenda and notice said there would be “confirmation discussion” on the planning commission positions, and there was no mention of interviews.
The other four meetings Helson ruled violated the OPMA was on Jan. 25, 28, 30, and March 30, 2017 because public comment took place at these meetings.
In total, Helson found Pepper violated the OPMA six times, Weber three times, and Morgan four times.
However, the judge found Pepper, Weber, and Morgan knowingly violated the OPMA only once — during the Feb. 24, 2016 meeting.
“It is undisputed” the defendants “had received training on the OPMA and understood that meetings of three City Council members that were not properly noticed, or private serial communications of three City Council members regarding a topic related to the city, violated the OPMA,” Helson wrote.
Because of this, the judge ruled Pepper, Weber and Morgan will pay a $500 each for the one instance of knowingly violating the OPMA, adding, “there are genuine issues of material fact whether” the defendants held other meetings in violation of the OPMA and whether they knew they were violating state law.
While Helson ruled six of the 33 meetings violated the OPMA, four additional meetings on Jan. 8, Jan. 21, Feb. 24 and June 16, 2016, have “genuine issues of material fact as to whether there was serial communication” before these meetings that would violate the OPMA.
“Although the phone records tend to support a violation, the issue is disputed,” Helson continued.
For many of the remaining meetings, Helson wrote, “although public comment was on the agenda, no evidence has been cited that public comment occurred at this meeting or that the committee acted on behalf of the governing body, conducted a hearing or took testimony,” seemingly putting these meetings in the clear of OPMA violations.
On Friday, Jan. 26, parties to this lawsuit met to discuss settlement terms with retired Judge Palmer Robinson of Judicial Dispute Resolution.
This agreement came out a month before the scheduled trial date of Feb. 26.
According to a preliminary settlement agreement document signed by all parties, terms will be presented to the City Council on Feb. 1.
The agreement stipulates Pepper, Weber and Morgan will pay $500 each for the one instance they were fined for violating the OPMA. The three defendants can fulfill this obligation by contributing their fines to the Black Diamond Community Center.
Additionally, the city will pay $58,000 to Pepper, Weber and Morgan for their legal fees. According to the defendants, they’ve spent more than $144,000 on legal fees by the Jan. 12 hearing.
There is no mention in the settlement agreement of Black Diamond paying Oakpointe’s legal fees.
Finally, the OPMA lawsuit will be dismissed with prejudice, and all claims against Pepper, Weber and Morgan will be released, as will any of the defendants’ claims made against city officials and employees.
Former Councilwoman Morgan said she was disappointed by parts of Helson’s summary judgement ruling.
“The judge basically said that we did not provide enough detail in our special meeting notice. But the meeting was still an open public meeting,” Morgan said in a Jan. 29 email, adding she was tempted to appeal Helson’s findings. “But an appeal would have taken a long time and would have increased the costs for all parties. And, unfortunately, because the city was not advancing costs for my defense, I was not able to afford that option. The sad truth is that justice costs money that I didn’t have.
“Comparing the settlement terms to what the developer had asked for in its amended complaint, it becomes apparent how exaggerated the developer’s claims were,” she continued.
Oakpointe had no comment about the settlement agreement.