Black Diamond Council majority continues to ignore staff, legal advice by passing amended contacts

Editor's note: This story has been updated from the 10/12 edition of the Courier-Herald. A correction and clarification will be printed in the 10/19 edition.

Top: Council members Brian Weber

Top: Council members Brian Weber

Editor’s note: This story has been updated from the 10/12 edition of the Courier-Herald. A correction and clarification will be printed in the 10/19 edition.

Forget tuning in to the 2016 presidential election – if you crave political entertainment, you can find it locally at the Black Diamond City Council.

Just like the recent debates between nominees Hillary Clinton and Donald Trump, these meeting sport a wide range of entertaining sound bites, especially during the Oct. 6 meeting.

“Are you really going to be rude to Chief (Greg) Smith and not let him do his agenda?” Mayor Carol Benson asked Councilwoman Pat Pepper at the beginning of the meeting. The Mountain View Fire and Rescue chief was scheduled to give a presentation at the start of the meeting, but Benson’s and Pepper’s argument over the correct council agenda kept the chief waiting 15 minutes, until he announced the projector wasn’t working and he would have to reschedule.

“Kenyon Disend advice has been incomplete, self-serving, biased, flat out wrong, obtuse to the real facts, and I do not have confidence in their advice. I can’t go into executive session with this attorney because I need to have fact checkers on everything that they say…” said Councilwoman Erika Morgan about the city’s legal representative, the Kenyon Disend law firm. The council majority has refused to attend executive sessions during the last three meetings based on these allegations.

“For God’s sake, can we get some work done tonight?” said Councilwoman Janie Edelman, who has been vocal about the council’s lack of order and ability to do business for the last 10 months. The council majority, comprised of Pepper, Morgan and Councilman Brian Weber, ended up approving five amended contract extensions, a traffic mitigation resolution with the Enumclaw School District and an amended ordinance for adopting the Department of Ecology’s 2014 Stormwater Manual on 3-2 votes, but all items were either vetoed or denied by Benson, who, along with her staff, said there were many legal issues at hand.

Several of the night’s more memorable moments revolved around the Department of Ecology’s 2014 Stormwater Manual, a five volume guide to help cities control their quantity and quality of stormwater. The city is required to adopt the manual by the end of the year.

There were two ordinances relating to the Stormwater Manual’s adoption – the original ordinance presented by Benson, and an amended ordinance presented by Pepper. Benson’s ordinance was approved by staff and Kenyon Disend, but Pepper’s did not receive approval for various issues.

Councilwoman Tamie Deady had her own issues with the amended ordinance.

“A person in Bellevue has the amended agenda and amended proposal for the stormwater and she knew what was going to be done before a single one of your citizens that you supposedly represent, and then you talk about being transparent,” Deady yelled at Pepper.

The woman Deady alluded to, Kristen Bryant, is a Bellevue resident who grew up in Black Diamond and sent to council a comment voicing support for the amended ordinance, despite the fact that the amended ordinance was never available on the city’s website before the meeting and was introduced to Black Diamond residents that night.

“You are attacking a fellow council member,” Pepper said in response, to which Deady confirmed, “I sure am, damn it.”

Later on in the meeting, Pepper asked Benson to reconsider her veto of the amended 2014 Stormwater Manual ordinance after it passed. Benson simply replied, “Hell, no.”

ISSUES WITH THE 2014 STORMWATER MANUAL

The amendments in Pepper’s ordinance did little to change the content or meaning of the original ordinance, but it was the changes in language that made Public Works Director Seth Boettcher uncomfortable with the city adopting it.

RCW 35a.12.130 clearly mandates the exact wording required to enact an ordinance,” Boettcher said, reading from notes provided by city attorney David Linehan.

The RCW states that all enacting clauses should read as, “The city council of the city of… do ordain as follows,” but the amended ordinance states, “The city council of the city of Black Diamond does ordain as follows.”

“While council members may prefer the singular form of the verb ‘to do,’ the Washington Legislature clearly mandated to use the plural form,” Boettcher said. “To ensure that the council’s legislative enactments are valid, I would strongly urge the council to use the enacted language required by statute.”

Boettcher was also concerned with a section of the amended ordinance that states the city adopt the 2014 Stormwater manual and any “subsequently amended” portions of the manual in the future.

Boettcher said language that requires the city to continually update their code would mean non-stop updates and revisions as code is battered back and forth between the Department of Ecology, city governments and the public.

“From time to time, this [the Stormwater Manual] will go through updates. It will go through a process,” Boettcher said. “When the Department of Ecology finishes their process and then recommends it to us through our permit to adopt it, that’s the time to adopt the new updates.”

Boettcher recommended the language be changed to adopt the new manual once it comes out while Benson recommended the original ordinance be passed instead of the amended ordinance.

In the end, the amended ordinance was approved 3-2 with Pepper, Morgan and Weber supporting it. The ordinance was vetoed by Benson.

No council member moved to amend the ordinance with Boettcher’s recommendations.

AMENDED CONTRACTS

Five contract extensions were on both agendas for the night, and similar to Pepper’s amended 2014 Stormwater Manual ordinance, the amended contracts she and Weber submitted to the council did not receive staff or legal approval.

The original contracts, which expired in September, extended the city’s various business with HWA Geosciences, RH2, Perteet Inc and Paramatrix Inc. with the city’s Master Development Review Team (MDRT), headed by Andy Williamson, while they continued to work on the OakPointe/YarrowBay Master Planned Development projects in the Ten Trails (formerly known as the Villages) and Lawson Hills developments.

The amended contracts brought before the council on Oct. 6 extend the contracts for a maximum of 45 days from the September expiration while the city advertises a Request for Qualifications so that a variety of consultant can be reviewed and selected.

This is different from amended contracts that were brought before the council on Sept. 15, which originally asked for a Request for Proposal, not a Request for Qualifications, which was criticized by city staff and legal counsel.

A Request for Qualifications is typically used to pre-screen vendors to determine the best qualified. After a small group of vendors are collected, they are then eligible to submit a response to a Request for Proposals.

But according to Williamson, the process is different when it comes to engineers and other professional services.

“The first thing that is absolutely wrong with what you are doing is we do not ask for an RFP. It’s an RFQ. Through that selection process, we cannot ask them about money,” Williamson said during the Sept. 15 meeting. “I pick the best person. I don’t care if the other group is cheaper for the developer. And in that process, I can’t have a discussion with the engineers about money. So what you’ve written here, I can’t do what you’ve asked me to do.”

Kenyon Disend attorney David Linehan agreed with Williamson in the same meeting.

“When you’re hiring for professional services, engineers, they don’t go out to bid as Mr. Williamson pointed out,” Linehan said. “You chose the most qualified candidate for the job. There is no bidding involved.”

The Oct. 6 amended contracts replaced Request for Proposals language with Request for Qualifications, but Benson was convinced that changing the language won’t have any effect.

“No consultant is going to sign these contracts, I can tell you that right now… No consultant is going to come, if we’re going to put a request for qualifications, because they know we already have preferred consultants that have been working on these for five years,” Benson said during the Oct. 6 meeting.

OakPointe also sees other issues with the amended contracts.

The developer’s attorney, Nancy Bainbridge Rogers, sent Linehan a letter on Sept. 27 to share with the council.

“Under the Development Agreements, it is the Designated Official, a person appointed by the Mayor, who has the authority and duty to administer, interpret, process and approve plans for the build out of the MPDs [Master Plan Developments],” the letter reads, referring to Williamson as the “designated official”. “At Section 3(a), the Funding Agreement is clear that the MDRT does not include a role or seat for the City Council, and that the MDRT composition may be modified only ‘by mutual agreement of the parties.'”

Rogers continues to list other issues OakPointe see with the amended contracts, including other alleged violations of the funding and development agreements between the developer and the city.

“For all these reasons, we ask that you advise the Council to cease consideration of the proposed amended resolutions,” the letter reads.

Despite this staff advice and legal counsel, each contract was approved by Pepper, Morgan and Weber. Each contract was then subsequently denied by Benson.


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