Just three agenda items in new/unfinished business for Black Diamond Councilmembers to deal with for their Thursday, May 18, City Council meeting and a little over three hours later, the meeting was adjourned with only one item passing (but ultimately being denied), one item put into “Committee,” and the other postponed.
While the beginning of the meeting moved along with seemingly good rapport, the first item regarding Black Diamond City Code with the addition of some exemptions to the concurrency ordinance was moved off to “Committee.” Then approximately an hour into the meeting Councilmember Erika Morgan introduce the second agenda item, a resolution regarding legal services.
Currently under review by the “Government Operations Committee” after being put in the committee the previous meeting, Morgan decided to remove the item from committee so the Council could take action and approve the item at the May 18th meeting. Starting off her remarks regarding the Legal Services agenda item, not only did she seek approval to look for another lawyer through the Request For Qualifications (RFQ) processes, but she also wanted approval for “interim” legal services for the City.
Following yet another lesson on Council rules presented by Morgan, she argued for yet another search for a “City Attorney” even though only a few weeks ago no one applied for the position when an RFQ was sent out at that time – except for the current City Attorney, David Linehan. However, with two attorneys already in mind and one present at the meeting, Morgan spoke to the qualifications of Jane Koler, Gig Harbor Land Use & Property Law PLL with 31-years experience, and Daniel O. Glenn of Glenn & Associates, PS, out of Olympia with 45-years experience in municipal law. She stated that the two attorneys were willing to come together as a partnership to serve Black Diamond.
Councilmember Tamie Deady was not happy that Koler was already doing business with the Majority Council (Morgan, Brian Weber, and Pat Pepper) through her work on the arbitration issue with Oakpointe. Deady felt that it was a conflict of interest seeing as Koler was representing the Majority in the arbitration and then would be trying to represent the City as its attorney. Deady was also unhappy that there was no interview process being considered for the position of City Attorney. The only interview seemed to be through an individual Council phone calls, which Deady missed.
Giving a little background on the arbitration/attorney connection, Councilmember Janie Edelman spoke to Weber and Pepper not showing up for the original mediation with Oakpointe to work through issues because they did not have an attorney. In turn, Mayor Carol Benson approved up to $5,600 in taxpayer funds so the Majority could hire a lawyer for the now Binding Arbitration before them. However, according to Edelman, Koler did not show up at the Binding Arbitration, but instead sent an objection stating that what was going on with the Arbitration was illegal even though Koler did not participate in any of the Binding Arbitration.
After pointing out that Koler had not submitted an application during the open RFQ application when it was posted a few weeks ago, Edelman went into some of Koler’s past history. She noted that the disciplinary board to the bar association gave Koler a 6-month suspension for misrepresenting a business consultant to the pollution board. According to Edelman, Koler’s staff had given her information/documents and that Koler had signed the documents without looking at them before passing them on.
“That tells me you’re not doing your homework,” said Edelman. “And it’s sloppy. This City deserves better. We deserve better than that… This is not how you do business.”
Following a few more comments, Edelman stated she would not support the agenda item for legal services and that she hoped the Mayor would deny the contract. Immediately following Edelman’s comments Pepper made a motion to allow Koler to speak, which was backed by Morgan and then the Council as a whole.
When Koler came forward to speak, she stated that she was not applying to be the City Attorney, and that she did not see anywhere in City Code where a City attorney was provided for or the appointment of a City Attorney. “Mr. Glenn and I were simply applying to provide legal services.”
She stated that she was suspended due to a complaint made by Dept. of Ecology about a proceeding that took place in 2007 before the pollution control hearings board. After stating that she was sloppy in her handling the issue, she let everyone know that at that time she was in the middle of a long trial and she simply signed off on the two declarations without looking at them. She then backed up, stating she was not a sloppy attorney and that she regretted being sloppy during that period.
“So I think that between us [Koler and Glenn], we could do an excellent job for the City,” said Koler. “We’re not suggesting the displacement of anyone, we’re simply making application to provide legal services.”
When challenged whether all three attorneys would be attending various meetings together, Koler stated that what she and Glenn had discussed was either she or Glenn would attend a meeting, but not both at the same time. Questioned further as to whom she approached with this idea, she stated that she had conversations with Morgan, Weber and Pepper. She further stated that the Council needed some impartial legal services. She also admitted to not understanding why an arbitration was being conducted.
After being asked by Mayor Benson what she meant by “impartial,” Koler stated that she was surprised that the City and Oakpointe were citing the same cases in their briefs and advocating for the same executive powers, which Koler claimed “flatly contradicted your City Code.” Benson stated, “I think you missed something when you wrote your brief. You didn’t write a brief, you attacked myself and the City and what we were doing. And I think that you missed something here.”
Benson went on to point out that the reason the three Majority Councilmembers were being sued and in mediation was that they changed the Oakpointe contracts, which was not acceptable. When asked by Benson whether the Council had the ability to change contracts, Koler quickly backed off stating she was not going to talk about the dispute.
City Attorney Linehan interjected a follow-up comment, “The City administration’s position in the arbitration as you noted wasn’t identical to Oakpointe’s, but it was fairly similar, But the reason why the arbitrator insisted that the Council be able to participate in the arbitration and to have legal Council was to present the other side of the argument, which unfortunately in my view, and I think in the arbitrator’s view, you didn’t do. So if you were wondering why there was an arbitration, which seemed one sided – you were supposed to be the other side. That was why Judge Scott insisted that the Mayor fund and allow the Council to have independent representation during the arbitration.”
Koler came back that she felt that it was the Council’s authority to contract, to which Linehan stated that, that was her perspective. At that point, both attorneys let it go.
However, Edelman went on to question why there was a contract attracted to the resolution for legal services before the Council along with a letter from Glenn that did not have a contract. Koler stated that at that time Glenn was just about ready to leave for Honolulu, at which point, Edelman blew. She stated that if it was important to get a job, Glenn should have attached a contract. Koler quickly came back and stated that he would be willing to serve under the terms she was already drawing up and purposing. “I find that unacceptable and extremely sloppy,” stated Edelman.
After Koler sat down, Pepper spoke about the need for a lawyer for the City and now the Council had two law firms willing to work together to help resolve the issues with the City. Deady came back with there being no RFQ as well as wanted to know about where the process was. She pointed out that all had agreed previously that there would be a public process.
“We have had this discussion quite a bit about whose authority it is to hire the attorney,” said Benson. “So, until I hear differently, Pat Pepper, you have no authority to hire an attorney. There has been a lot of discussion about this. But if David Linehan didn’t think he should be here, he would have recused himself by now.
“The only way you got rid of Carol Morris was having Tallmadge threaten her with a report to the bar, and so she did not want that so she withdrew. So, there isn’t anybody that’s agreed with your rules or the fact that you and Erika Morgan have given yourselves so much power. The way your rules read, you can eliminate a process, but it doesn’t mean a City doesn’t still have the process of 9 days before a meeting.
“So, you can do whatever you want with your rules, but it doesn’t eliminate City processes or RCW’s. So, whatever you decided to do today, I’m going to consider it invalid, as I considered your resolution at the last meeting, and no attorney is going to come in here and work for the City if I tell them they’re not going to get paid. And that’s what I’m telling you right now.”
After a round of applause, Pepper stiffly responded that she appreciated the Mayor’s opinion however, she ignored the Mayor and pushed on through with Morgan making a motion to hire both attorneys.
Immediately following a roll call vote Mayor Benson addressed Koler stating, “I want you to know that you are not hired. They did not have contracting authority and I’m really sorry that they put you through this. I think it’s extremely unprofessional for you to show up at this meeting with never having met with me or talked to me about this proposal. And this is not the process. You should know that better than anybody. You’re an attorney. The process is not to come to a meeting and get railroaded into having these people that we’ve had an issue since 15 months, 16 months ago, 17 months ago, we’ve had an issue with Majority doing illegal things and that’s why there is a lawsuit, that’s why there’s arbitration and that’s why there’s a recall out on Pat Pepper. So, I would appreciate it if you would go home and do your homework and if you want to talk about this position you need to come to me and you need to answer an RFP.”
With the legal services agenda item behind them, the Council took up the third of three agenda items considered during the 3 hour plus meeting. The final consideration was what to do with the Comprehensive Plan Update contract with BHC Consultants. According to a letter written to Mayor Benson on April 20, 2017, The City of Black Diamond was required to update its comprehensive plan and deliver it to the Washington Stated Department of Commerce by 30 June 2015 and has been working in good faith to comply with this requirement.
As Majority members contemplated putting the agenda item into “Committee,” Andy Williamson stated to Pepper, “You have the contract in front of you. Do whatever you want. Take whatever time you need. The urgency is to get the Comp Plan passed. If the Comp Plan doesn’t pass, Ms. Pepper, all the Councilmembers, we’re just permitting and processing under the old Comp Plan, which obviously, you don’t like.
“So, until you pass the current Comp Plan, every permit, every short plat, every plat, every action is done under the old Comp Plan, which you adamantly, when you ran for Council, didn’t like that. So if there is an urgency, move forward and get the work done. But it does not stop us from issuing permits at all. We are just going with the current Comp Plan that it is.
“Who this mostly affects is the Public Works Department and their ability to get a Puget Sound Regional Council grants – transportation grants, stormwater grants, those other growth related grants, because those are all based upon the Comp Plan. So, do what you will…but just so we’re very clear, so there is no misunderstanding between staff and Council, we are continuing to issue under, and the guidance of the old Comp Plan.
A spot of good news came from Finance Director May Miller, who let everyone know that the final 2016 Amended Budget for the City was actually under budget. Unlike other documents being circulated throughout the City stating that the City was $4 million over budget, according to Miller, it is in fact that the City was under budget by $3 million total. She also let everyone know that she felt comfortable with the figures going to the State, who will be auditing the numbers.
Speaking to the cash situation, Miller went on to state that, “…in the last two years since Mayor Benson’s been here, we’ve added $422,000 just to the general fund cash position. Part of that is, it’s good practice to continue to increase your cash position. But your expenditures continue to go up a little bit every year. But this is quite a nice amount to add because we were really low in 2012. We’ve doubled the amount, which we didn’t even have what our policy said, which was 10 percent back then. Now we have and it gives us the cash flow we need until we get our property tax so that we can pay our police officers and our fire department. In the whole City, just cash position, we’ve increased about a half million dollars. So, you know I looked at that and I really believe it occurred because Mayor Benson and the staff have really vigilantly looked at the expenditures and really monitored them and kept them low. And I really want to applaud her for that.”