The Black Diamond City Council’s decision to expand to seven seats wasn’t the only controversial item they tackled earlier this month.
During the Aug. 1 meeting, the council unanimously approved an ordinance defining how a city attorney is selected, retained, and dismissed — a lesson learned, perhaps, from when a previous council majority and Mayor Carol Benson openly fought over whether the city’s legislative or executive branches had the sole power of hiring and firing attorneys. This led to a parade of at least six lawyers to be hired by the city between 2016 and 2018, and one point where three were working for the city at the same time.
The adopted ordinance clarifies the mayor has the power to hire the city’s attorney — with council confirmation — and fire the attorney at will. However, some Black Diamond residents who spoke at the meeting said this gives the executive head of the city too much power.
“I’m startled by the power that is given to the mayor in this proposed ordinance. If I read between the lines correctly, the mayor would have exclusive power over the attorney, and instruct the city attorney to conduct business according to her agenda without council approval,” said resident Mike Fettig. “I believe the citizens of Black Diamond elected a council to serve the public interest — the public is being cut off when their council members aren’t allowed to disagree with the mayor, and the mayor can determine what issues the city attorney can work on.”
Benson, council members, and city attorney David Linehan disagreed with Fettig and other residents’ reading of the ordinance by first pointing out that, until this ordinance was adopted, Black Diamond was the odd city out.
“Every other city surrounding Black Diamond has a similar… ordinance in their code,” Benson said, “but in order to make sure that we treated this fairly, because we did have our attorney draft it up, I had another attorney at another law firm review it and approve it before I brought it forward.”
And as for the mayor having “exclusive power over the attorney,” the ordinance states the city attorney “serves under the mayor’s primary direction,” but “in no event may the city attorney contract purport to limit the city attorney to advising only certain persons or city officials. Rather, the city attorney shall advise all duly appointed and elected officials and staff of the city, subject to budgetary limitations as set by the council and administered by the mayor.”
The ordinance was examined by the Summit Law group, Linehan wrote in an email, adding that the specifics of any discussions are subject to attorney-client privileges.
While much of the ordinance seems run-of-the-mill, there is some language not found in other nearby cities — specifically, that the ordinance allows the mayor to set the initial contract.
Additionally, that initial contract can be for “up to five years, and the contract shall not be extended beyond a total of five years without council confirmation,” the ordinance reads.
This particular line appears to have caused some confusion.
“Is it recognized that the council is basically abdicating its authority for up to 10 years in this exceptionally important area?” said Carolynn Hart. “This is a five year contract, with up to a five year extension on the mayor’s authority alone. That far exceeds any of your remaining council terms in office.”
But it was clear that was not how the mayor, council, and Linehan understood the ordinance.
“I’m not concerned that we’re giving the mayor a huge imbalance of power,” said Councilmember Erin Stout. “We’re just helping the city have a specific direction in what we really are already doing.”
Linehan clarified the initial contract and any potential extension do not stack on top of each other, though he misspoke during the Aug. 1 meeting and corrected himself in a later email interview.
“I believe the Council’s intent, and the natural reading of [the ordinance], is that the total length of the contract, including any extensions by the mayor, cannot exceed 5 years without council confirmation,” Linehan wrote. “So if it’s a two-year initial term, the mayor would need council confirmation before extending the contract more than three additional years (i.e., a “total” of five years).”
Additionally, Linehan said requiring council review of contracts is a best-practice for cities.
“Having a maximum contract term built in to city code ensures that the city attorney contract will get council scrutiny and reconsideration at least every five years,” he wrote. “Other cities could adopt similar limitations if they so desired. It’s fairly common – maybe not specifically in the legal services context, but certainly with contracts in general.”
PAST DISAGREEMENTS OVER ATTORNEYS
This new ordinance may make an appearance in a lawsuit brought against the city of Black Diamond for allegedly failing to pay for legal services rendered.
The roots of the lawsuit stretch back to April 2016, when a new council majority voted 3-2 to fire then-city attorney Carol Morris. Benson refused to sign the resolution, pointing to state code that stipulates, “The mayor shall have the power of appointment and removal of all appointive officers and employees subject to any applicable law, rule, or regulation relating to civil service.”
But back then, there was no language in the Black Diamond Municipal Code that defined the city attorney’s position, and the council pointed to state code that says the legislative body has contracting powers.
Although Morris didn’t fight the termination of her contract, the previous council majority voted several times to terminate the contract of Morris’ eventual replacement, Linehan — which was approved by Benson’s sole authority to accept small-work contracts of $15,000 or less without council review — to no avail.
Unable to fire Linehan, the majority council hired three attorneys — Jane Koler, Anne Bremner, and Daniel Glenn — in order to have better legal representation, they said. But after the majority left the council, those three attorneys say they were never paid.
In a lawsuit filed against the city in April 2019, the three lawyers argue their contracts with the city were legal and are owed payment for their work, roughly $90,000 total; the city argues the contracts did not bind the city to pay them, but the former council majority, in part since it was they who signed the contracts, not Benson.
“We are simply seeking payment for fees that were properly expended at the request and for the benefit off the council,” Bremner wrote in an email interview. “It seems that the change to anoint the mayor with this authority confirms our position that it was the council’s and not the Mayor’s prerogative to appoint at the time that we were asked to serve.”
Linehan disagreed and cited Washington Supreme Court case Ruano v. Spellman, which he said confirms that selecting a contractor and executing a contract is a explicitly a mayoral function, not the city council’s.
“The council can make a legislative determination whether to create an in-house employee position or to instead obtain required services from an outside contractor, but the council cannot tell the Mayor who to hire or contract with,” Linehan wrote. “The ordinance further seeks to avoid the unfortunate confusion of the past by expressly stating (consistent with RCW 35A.12.090 and Ruano v. Spellman) that the power of appointing the attorney and negotiating the contract terms lies with the Mayor, subject to the council’s up-or-down vote on the contract.”