The new Black Diamond City Council wasted no time on settling in and testing the political waters.
On their first meeting of the year, new Councilwomen Melissa Oglesbee and Erin Stout — sworn in prior to a special meeting before the Jan. 4 meeting began — and returning Councilwomen Tamie Deady and Janie Edelman marched through a long list of agenda items, many of which reversed council policies and goals set over the last two years.
The lone dissenting voice in many of these votes was Councilwoman Pat Pepper, who helped create those now-reversed policies as part of the previous council’s majority with former Council members Brian Weber and Erika Morgan.
Arguably one of the biggest changes made that night was to do away with the council’s 2016 and 2017 rules of procedure, which were at the center of much of the council infighting and legal battles — specifically the Open Public Meetings Act lawsuit filed against the city by developer Oakpointe — that followed when the rules were first changed Jan. 21, 2016 by Pepper, Weber and Morgan.
The council voted 4-1 to revert back to the council’s 2015 rules and procedure. Among the many changes this brings was the revival of standing committees consisting of two council members (the 2016 and 2017 rules had committees with three council members), the elimination of the Council President role, which was occupied by Pepper, how meeting agendas are created and approved, and how meetings can be cancelled.
But the rules may not remain the same for long.
“These rules are now three years old,” Edelman said after introducing her motion to revert back to the 2015 council rules. “We’re going to have a work study next Thursday… and we’re going to go through revision to make it even better.”
Edelman mentioned approving the agenda at the beginning of every meeting, a practice mentioned in Robert’s Rules of Order but something she thought the Black Diamond City Council never did.
However, the council’s 2016 and 2017 rules said the council should approve the agenda at the start of meetings, and often, the meetings for the last two years often started with an argument between the council majority and minority, with Mayor Carol Benson siding with the minority, about the agenda and an eventual vote on which agenda to follow.
Stout agreed with Edelman, adding, “I look forward to a scrutiny of these rules as they are, and go through line by line at work studies… [and] to also put in some safeguards to protect ourselves from having a disaster occur when it comes to having rules that just make everything come to a headlock.”
Pepper, who dissented in the vote, argued the 2016 and 2017’s “three-touch process” — where agenda items were introduced at one meeting, sent to a standing committee, and then referred back to council — was the best practice for the council to follow, since it gave the public three opportunities to learn about and comment on council business.
Pepper added she was encouraged to hear the council wants to make revisions to the 2015 rules.
Repudiating legal contracts, denying payment and indemnification
After bringing back the 2015 council rules, the council worked through legal contracts approved over the last two years, voting to cancel these contracts and refuse payment.
The first was the contract with Anne Bremner of Anne Bremner, PC, who was hired by the council majority Aug. 17, 2017, to investigate Benson’s action as mayor over the last two years.
Bremner filed a lawsuit for the council majority against Benson last October, alleging the mayor overreached her powers by skirting the Black Diamond Municipal Code by approving multiple contracts of $15,000 (council rules state contracts over $15,000 must have council approval) to both city attorney David Linehan of the Kenyon Disend firm and various consultants to the city’s Master Development Review Team (MDRT), which reviews Oakpointe’s development plans for the city.
Since that filing, Oakpointe responded with a countersuit against Pepper, Weber and Morgan.
Bremner’s lawsuit also alleges Benson has illegally withheld payment to Jane Koler of Land Use and Property Law and Dan Glenn of Glenn and Associates, who were hired by the council majority to be legal counsel, though not to replace Linehan.
Bremner asked the court to rule Benson must cease paying multiple $15,000 contracts and also pay Koler and Glenn as legally hired counsel.
The council voted 4-1 to dismiss Bremner’s lawsuit, terminate her contract with the city, and not pay her for her work because, “she has not fulfilled the terms of her purported contract with the City Council. Moreover, Ms. Bremner appears to have been acting at the instruction and for the benefit of Pat Pepper, Erika Morgan, and perhaps one or more other private citizens — not the City Council as a whole. Ms. Bremner should look solely to those individuals for payment, not the city,” Resolution 18-1219 reads.
In a later interview, Bremner said the council can decide whether or not to pursue the their lawsuit, but the contract she signed with the previous council was a valid contract, and the city should pay her for the work she’s completed.
“We’re not in breach, and that would be incorrect or false to say,” Bremner said. “If they want to say we’re done, we don’t want to pursue this, that’s their prerogative…. But for what the prior council authorized, in a contract, for us to perform legal services, they still have to honor that contract, no matter who’s on the council, and pay us.”
The resolution also indemnifies (repays) Benson for any legal expenses associated with Bremner’s lawsuit that is not covered by the city’s insurance.
The council also voted 4-1 to repudiate and deny payment to Koler and Glenn.
Koler was originally hired by the council majority to represent them in non-judicial arbitration last April. The arbitration was an attempt by Oakpointe to force Pepper, Weber and Morgan to comply with the developer’s wishes to continue using specific MDRT consultants, which the majority wished to change.
The arbitrator, retired Judge Steve Scott, said Oakpointe did not follow the proper steps in bringing the City Council to arbitration and refused to make a binding decision.
The council then hired Koler, along with Glenn, as legal counsel for the city last May.
The council-approved Resolution 18-1220 rescinds Koler and Glenn’s contract with the city and denies them payment for any work they did for the city, but payment to Koler for her work in the arbitration case was approved.
In similar resolutions, the council also voted 4-1 to rescind older resolutions to indemnify Pepper, Weber and Morgan for any legal costs associated with Oakpointe’s countersuit against Bremner’s lawsuit, as well as rescind indemnification for Pepper relating to costs associated with the recall effort against her.
The council voted to indemnify Pepper for recall costs and Pepper, Weber and Morgan for lawsuit costs in 3-2 votes, with Edelman and Deady dissenting, on Nov. 16 and Dec. 7, 2017 respectively. Benson subsequently denied those resolutions.
At the time, the council minority argued the majority couldn’t vote for their own indemnification, since as they would financially benefit, there was a conflict of interest.
The majority disagreed, arguing the indemnifications were proper, as the city ought to protect its elected officials from legal and political attacks.
Pepper said rescinding indemnification was “unconscionable,” and that it was wrong to not pay Bremner, Koler and Glenn for work they did for the city, since their contracts were legally approved by the council.
MDRT contracts approved
In one motion approving the night’s consent agenda, the Black Diamond City Council approved seven MDRT consultant contracts that have been held up in council for the last two years.
The MDRT, headed by city staff member Andy Williamson, is charged with reviewing all the permits and development plans submitted by Oakpointe before construction on new housing could begin.
For this work, the MDRT team has been working with Paramatrix, Perteet, RH2, AHBL, BHC Consultants, and HWA on environmental, traffic, surveying, and on-call services.
Over the last two years, Pepper, Weber and Morgan were interested in partnering with other consultants, thinking fresh eyes on Oakpointe’s permits and development plans would benefit the city, and said the city had the power to change consultants if they wished.
The minority council and — maybe more importantly, Oakpointe — disagreed, pointing to a clause in the developer’s funding agreement with the city which states a change in consultants can only occur when both parties agree to one.
This is what led Oakpointe to bring the city to arbitration and is the base argument in its third-party response complaint against Bremner’s lawsuit against Benson.
While the council disputed their contracting powers, the MDRT consultants continued to work with the city due to Benson signing multiple $15,000 contracts with them, although city staff made it clear this was not the preferred way to do business.
The consent agenda was approved 4-1, with Pepper dissenting.
“Fresh eyes can be incredibly important for holding the developer to the highest standards of environmental protection and dealing with traffic increases on our roads,” she said, recommending the city advertise for other consultants.
• The council approved four appointments to the city’s Planning Commission — Pam McCain, Dave Ambur, Jason Seth and John Olson. The council also approved Judy Watson to the Civil Service Commission.
• Close to $1.2 million in vouchers and bills — mostly related to the payment of Linehan and MDRT consultants — that were either tabled, withheld, pulled or denied over the last two years were ratified and approved by the council in a 4-1 vote.
City Financial Director May Miller spoke to the high price of these vouchers, saying they’re not as expensive as they look.
“Many of them were for TIB (Transportation Improvement Benefit) grants… Those have already been reimbursed by the granting agency,” Miller said, adding that all the MDRT contract costs have been similarly reimbursed by Oakpointe, as per the funding agreement they signed with the city.
This resolution passed 3-1, with Pepper dissenting and Oglesbee abstaining, saying she wanted an extra two weeks to go over the vouchers.
• The council also approved a resolution accepting the completed Roberts Drive road improvement project, authorized a fuel tax agreement for chip seal projects, and approved an agreement with Enumclaw for expanded jail services.
• Linehan was hired as the city attorney in a 4-1 vote.