Editor’s note: To listen to the full official audio of the Jan. 12, 2018 hearing, click here to download the audio files.
King County Superior Court Judge Janet Helson is troubled.
She used the phrase multiple times to describe how she felt about many actions taken in Black Diamond over the past two years during the three and-a-half-hour long summary judgement hearing last Friday, Jan. 12, over the Open Public Meetings Act lawsuit brought against the city.
Lawyers for the three parties involved — developer Oakpointe (the plaintiff), the city, and individual defendants Pat Pepper, Brian Weber and Erika Morgan — each filed either partial or full summary judgement motions mid-December asking Helson to make some factual rulings about the case before the full trial is held, which is currently scheduled for Feb. 26.
Before giving a partial ruling from the bench, with the expectation a full ruling to be written up before Jan. 26, Helson made it clear she believed neither the three individual defendants or Mayor Carol Benson acted responsibly over the last two years.
She said Pepper, Weber and Morgan — who until the Nov. 2017 election formed a majority on the City Council, and now only Pepper remains — were operating in a “fraught environment,” where some of the legal advice they received “appears to be both incorrect and partisan.”
Helson specifically called out former city attorney Yvonne Ward, who was hired by the city after the council fired former city attorney Carol Morris in 2016, saying in particular some of Ward’s factual assumptions did not match the record of what occurred in the city.
Ward was charged with examining the council’s 2016 rules of procedure, passed by the council majority Jan. 2016. She determined June 2016 the rules were crafted outside the public sphere, thus violating the Open Public Meetings Act (OPMA) and were not legally enacted, an allegation Pepper, Weber and Morgan repeatedly denied.
It was these same rules of procedure that brought Oakpointe’s OPMA lawsuit down on the city in Dec. 2016, among other actions made by the council majority, including how they set up standing council committees.
In the past, Black Diamond committees consisted of two council members, but the council’s 2016 rules changed that to three council members, a quorum of the council (since the council consists of five members).
Many attorneys — both hired by Benson and Pepper, Weber and Morgan — recommended any committee meetings consisting of three council members needed to be publicly noticed by the city because of that quorum.
The situation was confused by the fact each committee consisted of two members of the majority and either Councilwoman Tamie Deady or Janie Edelman, who made it clear at the beginning of 2016 they’d never attended these committee meetings, so only two council members were ever present.
Initially, Benson publicly noticed those committee meetings, but stopped after Ward determined the 2016 rules to have been enacted illegally.
However, Pepper and Weber continued to hold these meetings wherever they could, since Benson did not allow them to use council chambers or allow staff to attend these meetings, saying she wouldn’t risk them being involved in illegal activity.
Helson said everyone was aware of the risks of OPMA violations concerning these committee meetings, but said there would have been “far less risk” of violations if Benson had continued publicly noticing those meetings.
The city’s attorney at the hearing, Derek Chen, argued those council members — who hired their own independent legal counsel giving them advice after Ward made her determination — could have filed for an injunction to keep the city publicly noticing committee meetings until a legal determination was made.
The judge replied Benson could have done the same, and later said she was, “not impressed with the mayor’s self-help in this situation.”
Helson was similarly unimpressed with the individual defendants’ actions over the last two years, although she made it clear she believes they each care very much about their city.
She said there is “a fair amount of evidence they were doing things that were troubling,” in terms of planning, after Oakpointe’s lawyer mentioned Pepper, Weber and Morgan appeared to have “lengthy” phone conversations with each other at around the same time, according to phone records.
Toward the end of the hearing, Helson addressed Pepper, Weber and Morgan’s supporters, asking how they’d feel if the shoe was on the other foot.
How would these supporters feel if two council members and one councilmember-elect (before they were sworn in) met “at length” with businesses interests to discuss how to change council rules and regulations and make sure the minority members of the council had little or no power or influence, Helson asked. What if those same councilmembers, after they were all appropriately seated, continued to meet with the business interests two at a time to avoid the OPMA but still be able to meet behind closed doors, and even receive scripts to follow during council business?
“I think they would be outraged,” Helson concluded, adding she didn’t want this to be seen as a condemnation of Pepper, Weber, and Morgan, because Benson also had a hand to play in creating a larger risk for the city and its residents, and that there were no white paths in this situation.
Helson added before her ruling that she hopes the city of Black Diamond is becoming more functional than it has been over the last two years.
The hearing ended after the court’s clerk’s office closed for the day, but the official recording of the hearing can be downloaded here.
WINNERS AND LOSERS IN SUMMARY JUDGMENT
Helson ruled on many items in this hearing, but she reserved judgement on several others, and a full written order will be made before Jan. 26, she said.
It was a mixed bag of success for all parties involved, but arguably the most important decision Helson made for the day was how much Pepper, Weber and Morgan would be fined for any potential OPMA violations.
Helson ruled the individual defendants would be fined $500 each for every OPMA violation, if there are any to be found. Pepper, Weber and Morgan’s lawyer, Jeff Taraday of Lighthouse Law Group, argued his clients should only be fined $500 each if any OPMA violations were found, no matter how many there may be.
Any OPMA violation fines could potentially be added to the $144,000 they’ve had to spend to retain Taraday’s services; Helson reserved her ruling on whether Pepper, Weber, and Morgan will be responsible for paying their own defense, or whether Black Diamond will foot the bill.
Helson did say that even though she found it troubling Pepper met with Morgan and Weber about their legislative agenda before she was sworn in, she ruled any conversations that happened before Pepper was sworn in on Jan. 7, 2016 did not violate the OPMA.
Similarly, she ruled conversations between Pepper, Weber and Morgan along the lines of what was on a council agenda does not violate the OPMA, nor did conversations pertaining to canceling or rescheduling meetings.
And while Helson ruled the former council majority’s standing committees did not violate the OPMA simply by existing, she did say two council members (as opposed to a quorum of three) could potentially violate the OPMA by acting “on behalf” of the council as a whole, though she refrained from saying Pepper, Weber, and Morgan had done so.
Finally, if there are any OPMA violations found, Oakpointe’s attorney and legal fees will be covered by Black Diamond, not Pepper, Weber and Morgan.