Anyone looking at the Black Diamond City’s posted Council Agenda for their Thursday, August 3rd Council meeting would have found only two agenda items listed – Claim Checks and Minutes – and figured the meeting would last 5 to maybe 15 minutes and be done. However, even with the Revised Agenda brought in by Council Majority members Erika Morgan, Brian Weber, and Pat Pepper with their two additions to the agenda items, the meeting lasted nearly an hour and a half.
Opening moments of the August 3rd meeting, began with Councilmember Janie Edelman reading an email directed to the Council as well as Mayor Carol Benson from City Attorney David Linehan regarding a possible violation of the Open Public Meetings Act (OPMA) when it comes to “Council Agenda Preparation and Distribution Provisions.” In the note, Linehan questioned whether Attorney Dan Glenn, who was one of two attorneys hired by Pepper and Morgan to give legal advice to the Council rather than Linehan, had considered the new Council Rule 2.2 about agenda and who approves them.
Council Rule 2.2, adopted by Majority Councilmembers in February 2017, reads; “The agenda shall not be noticed until approved by the Mayor Pro-Tempore [Morgan] and Council President [Pepper].” According to Linehan, the rule basically delegates the City Council’s authority over approval of the Council Agenda to them. “These two Councilmembers thus constitute a ‘committee’ of the governing body within the meaning of the OPMA, RCW 42.30.020(2),” wrote Linehan.
Continuing in his email Linehan writes, “‘Governing body’ means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.”
Pointing out that Morgan and Pepper constitute a committee, who act on behalf of the full Council when deciding to “approve the Council agenda for posting and public notice,” Linehan called attention to the fact that Morgan and Pepper are making the decision for the Council as a whole what agenda is approved. He went on to question, “Wouldn’t this action by Councilmembers Morgan and Pepper need to be done in an open public meeting, not in a private email, phone call, or in-person discussion?”
Explaining how Council agendas are usually handled, Linehan wrote, “As I have stated on many prior occasions, the Council controls its agenda, and the accepted mechanism for controlling its agenda is by voting during its public meetings to add or remove items from the agenda. The potential for OPMA violations during the agenda-preparation process is one reason why many cities rely on the Mayor and Clerk to prepare and post the initial agenda based on items that have been provided in advance by individual Councilmembers and department heads. The entire Council may then amend the initial agenda by majority vote during its Council Meeting. This is the usual process and one that I have encouraged the Council to follow.”
After reading Linehan’s email and Mayor Carol Benson giving a short announcement Pepper wanted to be recognized. Upon being recognized, she began reading from her scripted comments about changes to the agenda. Edelman questioned whether Pepper had listened to her reading Linehan’s email and whether she had read the copy sent to her earlier in the day.
“Oh, I have,” stated Pepper, who then called on Attorney Glenn to take the podium and address the email. Quickly, Benson told her that was not appropriate, to which Pepper argued that she had the floor and continued calling for Glenn to address the Council.
Benson made her way through Pepper’s arguing and a challenge from Morgan on the decision of the chair in order to take a vote to approve the Amended Agenda. Once past the agenda that was approved by Pepper, Morgan and Weber, Benson stated that the next order of business was for Public Comment. Pepper quickly launched into the subject of Morgan’s appealing the decision of the chair regarding Glenn taking the podium to talk about the public comment situation and Linehan’s memo. Benson stated that Glenn could speak during public comment, which was the next order of business before them. However, Pepper insisted over and over, while appealing the decision of the chair, that Glenn take the podium. The arguing did not stop until the first public comment speaker, Leslie Cooley, began speaking out.
“And I thought you just approved your Amended Agenda, which set the next item of business was public comments,” said Cooley. “If you wanted to have your agenda to have a comment from Attorney Glenn, then you may have added that to your agenda which you just approved. So, at this point according to your agenda, which should have been posted and distributed 9 days prior, which is, as I understand it, was not, it’s time for me to talk.” The Amended Agenda was submitted to the City on Tuesday, August 1, two days prior to the Council meeting.
Following a few more comments, the meeting went on to the next item of business, an amended version of the 2017-2022 Capital Improvement Plan (CIP). Pepper looked for the Council to approve the amended version of the resolution stating that there was plenty of time left of 2017 where the amended version could still be used to guide work for the rest of the year. She argued that it should be put in place rather than waiting, which is not necessary, for a new version for 2018.
The amended version set before the Council came from the April 20, 2016 Council meeting where Pepper stated that the 2017 CIP was under discussion. During that time, she was proposing amendments and felt that the Mayor had “improperly called for a vote ignoring Points of Order that I had the floor.” Once again, Pepper asked for Glenn to come forward to address the “validity of adopting a 2017 CIP given that the City is operating under the CIP from 2015.
Immediately, Benson stated that it was not necessary for Glenn to speak, except during public comment. She reiterated that Glenn was not hired by the Mayor and that he did not have a signed contract. She stated once again that two Councilmembers did not have the authority to sign a contract, and then told Glenn he will not be paid.
Edelman commented that the adoption of the 2017 CIP was a total waste of time and that work on the 2018-23 CIP would begin soon. “Why don’t you guys take the effort that you put into this kind of stuff that’s baloney and put it into doing the real work that the City needs for the City Council to do.”
Wondering what was changed in the amended resolution, Linehan stated that the resolution needed a proper public hearing and that it needed to be in ordinance form as it was basically amending the Comp Plan and a resolution cannot amend a Comp Plan. Follow another couple of statements, Pepper, Morgan and Weber voted in favor of the resolution, which was deemed incomplete by Benson after the meeting.
Next item on the agenda was an update on the Transportation Consultant Contract for the Comprehensive Plan. Pepper made a motion that “the proposed contract for Traffic Consultant to work on the Comprehensive Plan be directly with the City and not through a subcontractor and be amended to include the items in Exhibit A and such an amended contract proposal be sent as soon as possible by the City to DKS asking them to respond to the City with an estimate of time and cost to do the work.” Reading from her script, Pepper stated that the intent was that this would be a contract with DKS. Going on with a summary of the changes in Exhibit A, she stated that Attorney Jane Koler made the proposed the changes and that DKS was to report to Koler and the Growth Management committee [Chair Pepper, Weber] on a monthly basis. She also stated that she had attached a memo to “all” on July 26th.
Edelman pointed out that at the top of the memo it stated Attorney/Client Privileged Communication. She went on to point out that Pepper was breaking the privilege. “This was sent to us and is given only to us at this time,” said Pepper. “And I believe if we wish to remove the Attorney/Client privilege we can vote to do that.”
Edelman pointed out again that Pepper already broke the privilege by discussing it. After a long pause in conversation, Pepper said that she wanted to use the update to develop a contract with DKS for the next meeting so it could be looked at and possibly moving it forward.
Mayor Benson let the Council know that she had already talked with DKS and that a contract was already in the works to bring to the Council in the near future. She let Pepper know that DKS’s guidelines would be their guidelines, and that the guidelines would not come from Pepper. Morgan then introduced an amendment to the original motion to remove the attorney/client privilege so the scope of work (that Koler put together in her memo) could be sent to DKS and the public at large, which was quickly seconded by Weber. The amendment carried, with Edelman remaining silent, however Edelman voted no on the original motion made by Pepper.
One more bombshell that hit the meeting, giving the audience pause, came from a report given by Finance Director May Miller. While giving an update on the second quarter financial report that for the most part had good news about the City’s finances, Miller let the Council know that as of June 30th legal charges for lawsuits, mediation and arbitration expenditures were at $78,182, which is $68,182 over budget. According to Miller, legal expenditures for 2016 came in at only $4,500. Taking into consideration prior trending for legal service for lawsuits, the 2017 Budget in this area was set at $10,000.
Despite the large legal bills that are not finished yet for 2017, Miller spoke positively about the City’s finances. “Overall, we have a very strong positive financial picture right now,” stated Miller.