Black Diamond council, mayor battle rages on; Long list of city business still on the table

In a whirlwind of emails, Black Diamond council members requested, cancelled and declined to attend a special council meeting on May 25, leaving a council agenda filled with city business unable to be acted upon for the second time in two weeks.

Top row: Council members Brian Weber

In a whirlwind of emails, Black Diamond council members requested, cancelled and declined to attend a special council meeting on May 25, leaving a council agenda filled with city business unable to be acted upon for the second time in two weeks.

On May 20, Councilwoman Erika Morgan sent an email to council members Pat Pepper, Janie Edelman, Brian Weber and Tamie Deady, as well as Mayor Carol Benson and city clerk Brenda Martinez, requesting council members agree to hold a special council meeting May 25 at 7 p.m.

Pepper and Weber quickly replied to the email string to confirm they wished to hold the special meeting.

Attached in this email string was an agenda created by Morgan, but interim city attorney Yvonne Ward said in a May 26 interview that this agenda was not valid for several reasons.

Ward said special meetings are meant to address city business that is unique and imminent, and the items on Morgan’s agenda were neither.

“Nothing they submitted at all was of an imminent nature that required a special meeting,” Ward said, explaining that special meetings cannot be used to circumvent other laws and the Open Public Meetings Act.

Additionally, the items on Morgan’s agenda were submitted to the city clerk five days before the special meeting was to be held. Since these items were not of an imminent nature, they would be subject to the council’s rules pertaining to the creation of an agenda, which state an agenda must be submitted nine days prior to a meeting, Ward said.

Two items on the agenda, a resolution for council pre-approval and a resolution for an interlocal agreement with Covington and Maple Valley for building services, were originally submitted to the city clerk for the May 19 meeting.

According to Ward, this meant these two items on the agenda were the only items submitted in a timely manner for the May 25 special meeting based on the council’s rules.

On May 24, Benson also called a special meeting for May 25 at 7 p.m. and submitted to the city clerk her own agenda 24 hours before the special meeting was to be held.

According to council rules, agendas must be approved by the council mayor pro tempore (Morgan) and the council president (Pepper). However, the mayor has stated she does not recognize these current council rules as legal and continues to have the clerk notice her own agendas for meetings.

The mayor’s opinion of the rules were supported last week in a memo published by Ward, who recommends the mayor to not enforce the new rules.

The mayor’s agenda for the night was nearly identical to the agenda she submitted for the May 19 meeting.

The agenda included a resolution authorizing DKS Associates to help the city finish its belated comprehensive plan, authorizing an interlocal agreement with the city of Maple Valley for building inspection services, authorizing an agreement with BHC Consultants for building services, authorizing two grant agreements, a resolution awarding the Jones Lake overlay project to Lakeridge Paving Company and a resolution authorizing Parametrix, Inc. to design the Covington Creek culvert replacement.

These items were submitted for the regularly scheduled May 19 meeting, which meant they were all submitted on time for the May 25 special meeting as well.

Benson’s agenda also included the two resolutions that were submitted on time from Morgan’s agenda, as well as a notice of censure for Weber, Pepper and Morgan for not attending the May 19 meeting and a discussion over possible court action due to Resolution 16-1069, which established the council’s new rules in late January.

Ward said the censure notices and the discussion of the possible court action, while noticed well after the deadline set by council rules, were both unique and imminent, which fit the criteria for being included on a special meeting agenda.

On May 25, Pepper sent an email to the rest of the council, the mayor and the city clerk that she wished to cancel the May 25 special meeting.

“On May 20, the council called for a Wednesday May 25 special meeting to address city and council business with a list of specific agenda items,” Pepper wrote. “Public notice of this agenda was never issued… this meeting notice had the Mayor’s agenda with completely different items and did not properly include the council-approved items.”

Pepper wrote a few minutes later she would not be able to attend the meeting, followed closely by a request from Weber to cancel the meeting.

Soon after, Morgan sent an email saying she could not attend the meeting due to a medical emergency, followed shortly by another email from Weber saying he could not attend either.

All the emails were sent inside of 13 minutes.

When the meeting was brought to order and roll was called, Benson did not excuse Pepper or Weber from the meeting and said Morgan may be excused pending further review.

Censure and imbalance of power?

In an email sent May 26, Weber stated the mayor abused her power and obstructed the council from performing its duty.

“The Mayor disregarded state law and did not issue public notice for the Council’s requested meeting topics,” Weber wrote. “Instead, the Mayor substituted her own agenda which included three politically motivated censure motions for council members Pepper, Morgan and myself. These censure motions are political garbage, pure and simple.”

On the May 25 special meeting agenda, it was listed all three council members were to be censured for failing to attend the regularly scheduled May 19 meeting.

Because Robert’s Rules of Order state an elected official cannot vote on their own censure, a likely tie would result from council members Edelman and Deady approving the censure while a combination of another two council members would disapprove. The mayor would then break the tie, most likely ending in a 3-2 approval for censure.

This is the second time the topic of censure has risen at a council meeting this year.

Morgan was censured during the April 21 for allegedly providing false information in a public disclosure request.

The information requested was about a conversation she had with a member of the public after she left the March 17 executive session.

Morgan denied having a conversation in a public disclosure request, saying she went to the restroom, but a security tape later showed she had a two-minute conversation in the hallway outside council chambers.

Morgan continued to deny providing false information in the PDR, saying she confused the time she left the executive session with another time she left for the restroom.

Morgan said she saw the security tape and couldn’t see her having a conversation in the hallway.

Weber’s May 26 email alleges the interim city attorney’s legal advice is being controlled by Benson and does not reflect the interests or concerns of the council.

“I believe that her legal advice is totally inconsistent with our other advisors including former Supreme Court Justice Phil Talmadge,” Weber wrote. The council voted to hire the legal firm Talmadge, Fitzpatrick and Tribe to represent the council in a limited scope of issues, which include the dispute over the current council rules and the contract termination of the city’s former attorney Carol Morris.

Ward denied these allegations in a May 26 interview.

“My legal duty and obligation is to the city of Black Diamond, not to the mayor or council,” she said. “I give objective legal advice to the mayor, the council and the staff as part of that duty.”

Weber also wrote in his email that the mayor has used her quarterly newsletter to send out hostile political messages.

Weber expanded on this point in a May 26 interview, saying that while Benson has complete control over what is printed in the newsletter, it shouldn’t be used to send out political messages without the opportunity for response.

“It’s very political in nature, and it’s not something we should be spending our tax money sending this out in a community newsletter,” he said. “I had neighbors and people around town that I talk to, and they were astounded… that she would put this in a city newsletter that most of the time is supposed to be community activities.”

Open Public Meeting Act violation?

The time stamps on the emails Pepper, Weber and Morgan sent to arrange, cancel and decline to attend the May 25 special meeting did not escape the mayor’s attention.

The emails sent to arrange the meeting were all sent within 16 minutes.

Morgan’s request, which was sent to all council members, the mayor and the city clerk, was sent at 3:01 p.m.; Pepper’s at 3:16 p.m.; and Weber’s at 3:17 p.m.

The emails requesting the cancellation and detailing council member’s inability to attend were also sent in a short time frame.

The first cancellation email from Pepper was sent to all council members, the mayor and city clerk at 4:41 p.m.

She then sent an email to the city clerk and carbon copied the mayor in another email at 4:45 p.m. saying she was unable to attend the meeting.

The next email to be sent was Weber’s at 4:48 p.m. and appears to be a reply to Pepper’s first email.

Morgan sent the next email at 4:49 p.m., saying she cannot attend due to a medical emergency. It appears this email was also a reply to Pepper’s first email.

The last email in the string came from Weber at 4:52 p.m., when he wrote he also was also unable to attend the meeting.

“It looks they’re all together, or using one computer or on the phone with each other,” Benson said in a May 26 interview. “It looks like a violations of open public meetings, if they can so closely together cancel that meeting.”

Weber denied violating the Open Public Meetings Act, saying he was already using his email and wanted to make sure his emails were seen by the city clerk before the end of the business day, which explains his quick response.

Both Weber and Pepper said in May 27 interviews that they were together when they sent their emails, but they were not in contact with Morgan at that time.

Councilwoman Morgan could not be reached for comment.

Dereliction of duty?

Although no action was taken during this meeting because of the lack of a quorum, Benson noted a strong disparity between how much legislation was passed between January and May last year, and between the same time period this year.

According to Benson, the council passed 30 resolutions and eight ordinances between January and May 2015.

This year, between January and May 2016, the council has passed only 10 resolutions, Benson said.

“They’re not doing their job,” Benson said in the May 26 interview. “They’re not even supporting their oath of office. They’re supposed to pass these things, not put them in committees where they don’t come out again.”

Weber said it is unfair to compare the two councils because of the change in elected officials, but the reason legislation is so slow going through committee meetings is because city staff are unable to attend committee meetings.

The change to the council rules and procedures are meant to slow down the legislative process to give the public ample opportunity for review and participation, Weber continued, but without access to staff at committee meetings, the legislative process has become even slower.

Staff have been directed by Benson to not attend these meetings because she believes the committees, like the council rules, are illegal and does not want to implicate staff.

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