Recall Petition Filed Against Two Black Diamond City Councilmembers

April 10, 2017

Recall Petition Filed Against Two Black Diamond City Councilmembers

On Friday, April 7, Black Diamond citizens filed petitions with the King County Elections office to initiate the recall of Black Diamond councilmembers Patricia Pepper and Erika Morgan.

The recall is being initiated because Councilmembers Pepper and Morgan have been violating their oath of office by not upholding Washington state laws regarding city governance and their actions constitute malfeasance and misfeasance of office, because they have:

• Impaired the functioning of the City by failing to carry out their lawful duties.
• Cost the taxpayers many thousands of dollars and are subjecting the City and citizens to significant financial risk and litigation.
• Conducted meetings with a majority of members of the Council without complying with the Open Public Meetings Act.
• Usurped the authority of the Mayor in directing staff and firing and hiring consultants without lawful authority.
• Joined with a majority of the Council in failing to timely adopt an annual budget for 2017.
• Failed to complete their duties by joining with a majority of the Council in agreeing not to adopt the Comprehensive Plan amendments, the six-year Transportation Improvement Plan, and the Capital Improvement Plan which are required by law.
• Failed to perform the duties of office by joining with a majority of the Council in refusing to seat nominees on the Planning Commission and Civil Service Commission.
• Failed to hire a building inspector, which could result in a delay in opening a local school.

The Director of King County Elections and the King County Prosecutor will send the petition to Superior Court to determine if the petition is adequate to move forward with the recall. After the Superior Court approves the petition, citizens registered to vote within Black Diamond will be asked to sign the petitions so the recall measures can be placed on the ballot for an election. Press Release Citizens to Recall Pepper PO Box 511, Black Diamond, WA 98010 Citizens to Recall Morgan PO Box 521, Black Diamond, WA 98010

Recalls are uncommon in Washington State. The last successful one was the recall of Cy Sun of Pacific in 2013. According to news reports, former Mayor Sun said he spent over $200,000 in his unsuccessful attempt to oppose his recall.

Along with the specific acts of misconduct and malfeasance, councilmembers Pepper and Morgan conspired with a third councilmember to only passing a three month budget for 2017. The annual budget was finally passed in March, narrowly avoiding a city shutdown!

“Citizens in Black Diamond were afraid of losing basic services like sewer, water, police and fire protection because of the actions of these councilmembers,” said Johna Thomson, spokesperson for the recall group. “We need to restore responsible governance so people feel safe again.”

Aside from the failure of councilmembers Pepper and Morgan to lawfully carry out their duties, their lack of proper decorum and respectful adult behavior in council chambers has been embarrassing to city residents. “Their lack of respect for other elected officials, city staff and citizens is completely unprofessional, disheartening and needs to come to an end. Elected officials need to carry out their duties with civility and respect,” Thomson said.

Recall proponents hope to have the recall measures on the ballot sometime this year.

Copies of the recall petitions accompany this press release. For copies of the supporting exhibits, send an email to: BDRecall@gmail.com.

RE: Filing of Statement of the Charges in favor of the recall of Black Diamond City Councilmember Erika Morgan

Dear Ms. Wise and Mr. Satterberg:

This letter shall constitute the statement of the charges in support of the recall of Black Diamond City Councilmember Erika Morgan pursuant to RCW 29A.56.110 and Washington Constitution, Article I, §§ 33-34. Ms. Morgan has committed acts of malfeasance and/or misfeasance, and violated her oath of office. This Statement of the Charges is verified under oath, states the acts complained of in concise language, gives a detailed description including the date, location and nature of each at complained of, and is signed by the person(s) bringing the charge.

I. Introduction to Statement of Charges in Favor of the Recall of Erika Morgan

The Petitioner for Recall is Ms. Robbin Taylor, who is a citizen of the City of Black Diamond, Washington. The City of Black Diamond lies entirely within King County. Ms. Erika Morgan was elected to a position on the Black Diamond City Council in November 2013, for a four-year term effective January 1, 2014. The oath Ms. Morgan took reads as follows:

I, Erika Morgan, having been duly elected to the office of City of Black Diamond Council Position Two, do solemnly swear or affirm that I will faithfully and impartially discharge the duties of this office as prescribed by law and to the best of my ability and that I will support and maintain the Constitution of the State of Washington and of the United States of America.

The City of Black Diamond is an optional code municipal corporation having a Mayor-Council form of government, organized under RCW 35A.12. Its Council consists of five members. The powers and duties of both the mayor and councilmembers are as defined in RCW 35A.12.100 and RCW 32A.11.020.

II. Executive Summary of the Charges

As set forth in detail below, during Ms. Morgan’s third and fourth year in office, she has (1) knowingly violated the Open Public Meetings Act (“OPMA”), both in meeting and conferring with other council members outside of open public meetings, and in failing to provide proper notices, agenda, and minutes when meetings were convened, (2) usurped the authority of the mayor on multiple occasions, (3) conspired with other City councilmembers to defeat a quorum and/or refuse to vote on necessary measures, (4) refused to enact the Comprehensive Plan amendments, Six-Year Transportation Improvement Plan, and the Capital Improvement Plan as mandated by state law, and (5) refused to enact a budget for 2017. Ms. Morgan’s actions and inactions have ground the Council to a halt, cost the City thousands of dollars and jeopardized the continued provision of necessary City services.

III. Factual and Legal Sufficiency for Recall of Erika Morgan

A. The Constitutional Right to Recall

The legal basis for recall is established in the Washington State Constitution Article 1, Sections 33 and 34. Section 33 contains the substantive right to recall, providing that “[e]very elective public officer of the state of Washington … is subject to recall and discharge by the legal voters of the state.” Section 34 directs the Legislature to enact laws necessary to carry out section 33. Pursuant to that authority, the Legislature adopted chapter 29.82 RCW, now codified as chapter 29A.56 RCW, “to provide the substantive criteria and procedural framework for the recall process.” Matter of Pearsall-Stipek, 136 Wn.2d 255, 262-63, 961 P.2d 343 (1998).

Elected officials in Washington may be recalled for malfeasance, misfeasance, and violation of the oath of office. Const. art. I, §§ 33-34. Recall statutes are construed in favor of the voter, not the elected official. In re Recall of Washam, 171 Wn.2d 503, 510, 257 P.3d 513 (2011).

B. Factual Sufficiency

The Superior Court does not examine the truthfulness of the stated grounds for recall; it determines only whether, if true, the charges would constitute malfeasance, misfeasance or violation of the oath of office. “Courts act as a gateway to ensure that only charges that are factually and legally sufficient are placed before the voters, but we do not evaluate the truthfulness of those charges. RCW 29A.56.140.” In re Recall of Washam, 171 Wn. 2d 503, 510, 257 P.3d 513 (2011); In re Recall of Cy Sun, 177 Wn.2d 251, 255, 299 P.3d 651 (2013).

Charges are factually sufficient if “taken as a whole they … state sufficient facts to identify to the electors and to the official being recalled acts or failures to act which without justification would constitute a prima facie showing” of misfeasance, malfeasance, or violation of oath of office. Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). “Voters may draw reasonable inferences from the facts; the fact that conclusions have been drawn by the petitioner is not fatal to the sufficiency of the allegations.” In re Recall of West, 155 Wn.2d 659, 665, 121 P.3d 1190, 1194 (2005).

“A charge is factually sufficient if the facts ‘establish a prima facie case of misfeasance, malfeasance or violation of the oath of office’ and are ‘stated in concise language and provide a detailed description’ in order to ‘enable the electorate and a challenged official to make informed decisions.’” In re Recall of Telford, 166 Wn.2d 148, 154, 206 P.3d 1248 (2009) (quoting In re Recall of Wasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003)). In this context, “prima facie” means that, accepting the allegations as true, the charge on its face supports the conclusion that the official committed misfeasance, malfeasance, or a violation of the oath of office. In re Recall of Wade, 115 Wn.2d 544, 548, 799 P.2d 1179, 1181 (1990).

RCW 29A.56.110 also requires that “the person … making the charge …have knowledge of the alleged facts upon which the stated grounds for recall are based.” Knowledge need not necessarily be firsthand. In re Recall of Cy Sun, 177 Wn.2d 251, 256, 299 P.3d 651 (2013). When the charge is violation of law, the Supreme Court has stated that the petitioner must have knowledge of facts indicating that the official intended to commit an unlawful act. Pearsall-Stipek, 136 Wn.2d at 263.

The Court may use supplemental materials to determine whether there is a factual basis for the charge. In re Recall of West, 155 Wn.2d 659, 665-66, 121 P.3d 1190, 1193-1194 (2005). It may go outside the petition to determine whether there is a factual basis for the charge. In re Recall of Anderson, 131 Wn.2d 92, 95, 929 P.2d 410, 412 (1997).

C. Legal Sufficiency

To be legally sufficient, the charges “must specifically allege substantial conduct” amounting to misfeasance, malfeasance, or violation of the oath of office. Washam, 171 Wn.2d at 514-15. The legal sufficiency requirement protects officials from being “recalled for appropriately exercising the discretion granted him or her by law.” Chandler, 103 Wn.2d at 274. “Officials may not be recalled for their discretionary acts absent manifest abuse of discretion.” Washam, 171 Wn.2d at 515.

1. (1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty; a. Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and
  1. D. Grounds for Recall
2. RCW 29A.56.110 defines what constitutes misfeasance, malfeasance, and violation of the oath of office:
  For purposes of this chapter:
(2) “Violation of the oath of office” means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.

IV. Statutes Relevant to Recall Petition

A. Open Public Meeting Act (OPMA)

The Petition for Recall of Erika Morgan alleges violation of the Open Public Meetings Act. That law requires that meetings of a public agency be open to the public:

All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.

RCW 42.30.030. The OPMA is remedial and liberally construed in favor of openness. RCW 42.30.910. Exceptions to the openness requirement must be narrowly construed. Miller v. City of Tacoma, 138 Wn.2d 318, 324, 979 P.2d 429 (1999) (quoting Mead Sch. Dist. No. 354 v. Mead Ed. Ass’n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975)).

As used in the OPMA, “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.” RCW 42.30.020(2). “A ‘meeting’ of a governing body occurs when a majority of its members gathers with the collective intent of transacting the governing body’s business.” Citizens All. for Prop. Rights Legal Fund v. San Juan Cty., 184 Wn.2d 428, 444, 359 P.3d 753 (2015).

A public agency’s governing bodies are required to convene their meetings at regularly scheduled dates, times, and places, and may not occur in secret. RCW 42.30.060. All meetings must have an agenda, which the agency must publish at least 24 hours in advance. RCW 42.30.077.

A governing body may hold special meetings, but only upon 24-hour notice to the public, via the media and the agency’s website. RCW 42.30.080. No business may be conducted except that for which notice of the special meeting was given. Id.

B. Requirement of Regular Meetings

RCW 35A.12.100 requires that the “city council and mayor shall meet regularly” The Black Diamond Municipal Code sets the time and place of regular council meetings and study meetings. BDMC 2.04.010.

C. Authority of the Mayor

RCW 35A.12.100 describes the authority of the Mayor in the City of Black Diamond with its Mayor-Council form of government. It is the duty of the Mayor to appoint, remove, and supervise employees. RCW 35A.12.100. It is also the duty of the Mayor to “see that all contracts and agreements made with the city or for its use and benefit are faithfully kept and performed.” Id. The Mayor presides over all city council meetings, although she may only vote in case of a tie. Id.; RCW 32A.12.110. The duties and powers imposed upon the Mayor may not be amended by or delegated to the City council. Roehl v. Public Utility Dist. No. 1 of Chelan Cnty., 43 Wn.2d 214, 241, 261 P.2d 92 (1953); Bothell v. Woody, 90 Wash. 501, 504, 156 P. 534 (1916).

D. Requirements of Comprehensive Plan, Transportation Improvement Plan, Capital Improvement Plan, Budget, Planning Commission and Civil Service Commission.

Code Cities such as Black Diamond are required to prepare and adopt budgets for a full fiscal year. RCW 35A.33.075. The Growth Management Act requires the City to adopt a Comprehensive Plan, which includes a Capital Improvement Plan. RCW 36.70A.070(3). The City is also required to enact a Six-Year Transportation Improvement Plan. RCW 35.77.010.

Having established a Planning Commission under RCW 35.63, the City is required to fill seats on that Commission. RCW 35.63.020. Commission members are appointed by the Mayor and confirmed by the Council. Id. Leaving seats unfilled causes planning to default to the City Council.

Having a police department, the City is required to have a Civil Service Commission. RCW 41.12.010; BDMC 2.64.020. The Civil Service Commission is governed by State law if the City does not elect to enact its own rules. RCW 41.12.020.

V. Acts and Omissions constituting the Statement of the Charges

The acts for which this Statement of the Charges is brought are divided into the following general factual categories. Together, the charges amount to an indictment against Ms. Morgan that she has conducted herself, while in office, in a manner that constitutes misfeasance, malfeasance and/or violation of her oath of office.

A. Erika Morgan has intentionally violated the OPMA by privately agreeing with other councilmembers upon a course of action for the City Council and by conducting Committee meetings that are not properly noticed or open to the public
B. Erika Morgan has intentionally acted to usurp the authority of the Mayor of Black Diamond
C. Erika Morgan disregarded her duties as a Council member, thereby impeding the regular functioning of the City.

Erika Morgan has engaged in the following actions, each of which constitutes misfeasance, malfeasance and/or violation of her oath of office, and each of which supports a finding of factual and legal sufficiency for her recall from office.

The Petitioner for Recall is Ms. Robbin Taylor, who is a citizen of the City of Black Diamond, Washington. Ms. Taylor makes a concerted effort to attend all meetings of the Black Diamond City Council, and is thus intimately familiar with the happenings of the City Council and its members. Additionally, many of the acts charged are well-documented, as evidenced by the attached exhibits.

A. Malfeasance or Misfeasance in Office, or Violation of the Oath of Office, Through Intentional Violation of the Open Public Meetings Act in Agreement With Others Constituting a Majority of the Council, and with its Standing Committees comprised of a majority of the council (13 Counts)

The Open Public Meetings Act (OPMA), RCW 42.30 requires the “governing body” of a City to convene its meetings on a published, regularly scheduled time, at a regular place, and to publish an agenda of the meeting. Ms. Morgan convened meetings with a majority of the members of the City Council without complying with the public notice and agenda requirements of the OPMA. Many of these meetings were conducted privately over email. During these “meetings,” the majority of the City Council resolved to and did make decisions purportedly on behalf of the City, all without public notice or input.

A standing committee comprised of a majority of the members of a City Council, acting apart from regular meeting of the council, also constitutes a “governing body” under the OPMA. Ms. Morgan conducted meetings of “standing committees” of the Council without complying with the notice and agenda requirements of the OPMA.

Ms. Morgan employed in-person meetings, email communications, telephone calls, and communications through third parties to effect off-the-record meetings of the majority of “governing bodies” and to make decisions of the City Council without compliance with the OPMA, on at least the following occasions:

• January 8, 2016. Ms. Morgan signed a letter to the City Clerk with Council members Patricia Pepper and Brian Weber directing that the regularly-set joint meeting of the Council and the City Planning Commission scheduled for January 12 be cancelled, as well as scheduling a special council meeting for January 19.1 She and another council member then attended the January 12th meeting of the Planning Commission so that no other council member could attend without violating the OPMA because of lack of proper notice of a joint commission-council meeting.

1 Ex. 2.

• January 21, 2016. Prior to Council meeting, Ms. Morgan agreed with Council members Pepper and Weber to a new council procedures resolution that was then enacted at the meeting.2 The new procedure required that every standing committee of the Council be comprised of three council members.3 Thereafter, every meeting of a standing committee was required to comply with the OPMA. However, contrary to the advice of no less than five (5) attorneys, Morgan continued to participate in such meetings that were conducted without compliance with the OPMA.4

2 Ex. 14.

3 Ex. 6.

4 Exs. 4, 7, 10, 13-14, 17, 24.

5 Ex. 24.

6 Ex. 24.

7 Exs. 8, 9.

8 Exs. 14, 20.

9 Ex. 8.

10 Ex. 11.

• February 26, 2016. Ms. Morgan made a private agreement with Council members Pepper and Weber to cancel a regular council meeting set for March 3 and to schedule a special meeting on March 2.5

• Together with Council members Pepper and Weber, Ms. Morgan cancelled regularly scheduled council work sessions on January 14, February 11, March 10, April 14, and May 12.6

• April 8 to April 21, 2016. Ms. Morgan made a private agreement with Council members Pepper and Weber to approve a substitute agenda for the next regular council meeting. Ms. Morgan also conspired with Council members Pepper and Weber to approve voting in a bloc and to leave city council meetings to defeat quorums, obstructing the work of the City.7

• During the period between January 1 and April 7, 2016, Ms. Morgan privately agreed with a majority of the council to produce Resolution 16-1089 firing the City Attorney after disagreeing with the attorney’s advice.8

• During the period of April 1 to April 21, 2016, Ms. Morgan privately agreed with a majority of the council to prepare a resolution hiring the law firm of Talmadge Fitzpatrick Tribe.9

• March 17-June 16, 2016. Ms. Morgan privately discussed and revised, along with Council members Pepper and Weber, a resolution for business inspection services for committee action.10

• May 18, 2016. Together with Council members Pepper and Weber, Ms. Morgan agreed to cancel the May 19 regular city council meeting. When the City Attorney advised that the council members should not cancel the meeting, they boycotted it.11

11 Ex. 16.

12 Ex. 15.

13 Ex. 20; http://www.ci.blackdiamond.wa.us/Depts/Clerk/Audio/Council/2016/Council_20161006-Combined.mp3.

14 The undersigned was personally in attendance at this meeting. While no meeting minutes were ever approved, audio of the meeting is available to download at http://www.ci.blackdiamond.wa.us/Depts/Clerk/Agendas/2016_agendas.html

15 Ex. 20.

16 Exs. 22-23.

17 Ex. 5.

18 Exs.5, 19.

• June 2, 2016. Ms. Morgan, together with Council members Pepper and Weber, during a recess in a Council meeting agreed to boycott the remainder of the meeting, and walked out.12

• August 25-October 6. Ms. Morgan privately agreed with Council members Pepper and Weber to adopt Resolutions 16-1122, 16-1123, 16-1124, 16-1125, and 16-1126, revising contracts for vendors serving the City’s Master Development Review Team. Per their prior agreement to act together on all issues, Council members Pepper, Morgan, and Weber enacted the resolutions on October 6, 2016.13

• November 29, 2016. Ms. Morgan admitted on the record of a city council meeting that she convened a meeting of a standing committee entirely by email with another council member, a meeting that a member of the public had sought to attend.14

Ms. Morgan’s repeated violations of the OPMA have resulted in a lawsuit being filed against the City.15 In the three months since the suit was filed, the City has already spent $45,522 on its own behalf, and has been ordered by the Court to conditionally pay for Ms. Morgan’s defense.16 Willful OPMA violations are not covered by the City’s risk pool policy, thus leaving the entire cost of the suit to the taxpayers.17 Ms. Morgan was advised on at least two occasions by the City’s insurance carrier that her actions may be deemed to be illegal and would not be covered by City insurance.18 Ms. Morgan’s actions will have cost the City, and its taxpayers, hundreds of thousands of dollars and may ultimately result in the City having to declare bankruptcy.

B. Malfeasance or Misfeasance in Office, or Violation of the Oath of Office by Usurping the Authority of the Mayor, Thereby Disrupting the Order of the City (Five Counts)

Ms. Morgan usurped or attempted to usurp the statutory authority of the Mayor on the following occasions:

• On January 8, 2016, Ms. Morgan, acting with the concurrence of council members Pepper and Weber, directed City Clerk Brenda Martinez to cancel the regularly scheduled meeting of the Black Diamond City Council.19

19 Ex. 2.

20 Exs. 14, 20.

21 Ex. 8.

22 Ex. 26; http://www.ci.blackdiamond.wa.us/Depts/Clerk/Audio/Council/2016/Council_20161215_Combined.mp3.

23 Ex. 27.

24 Exs. 4, 13-14.

25 Ex. 12.

26 Ex. 10.

• During the period between January 1 and April 7, 2016, Ms. Morgan agreed in private meetings with a majority of the Council to produce Resolution 16-1089 firing the City Attorney.20

• During the period of April 1 to April 21, Ms. Morgan agreed in private meetings with a majority of the council to hire the law firm of Talmadge Fitzpatrick Tribe.21

• On December 15, 2016, when the Mayor of the City of Black Diamond called for a brief recess during a council meeting, Ms. Morgan seized the Mayor’s gavel, attempted to reconvene the meeting, and refused to relinquish the gavel. The police were required to intervene to restore order to the meeting.22

• At some time prior to February 2, 2017, Ms. Morgan, along with Council members Pepper and Weber, met outside of a Council meeting and agreed to modify the contracts of the vendors to the City’s Master Development Review Team.23

Additionally, the Council rules adopted by Resolution 16-1069 usurp the authority of the Mayor to prepare meeting agendas, preside over Council meetings, and direct actions of staff. Ms. Morgan was advised of this by two attorneys.24

Ms. Morgan’s attempts to direct the actions of City staff and to fire and hire City attorneys have impeded the functioning of the City and hindered the City’s ability to receive legal advice. The Teamsters union has already filed multiple grievances against the Council for interfering with the duties of staff.25 Moreover, Ms. Morgan hired Talmadge Fitzpatrick Tribe to provide legal advice directly to her, which advice may have been contrary to the City’s interests.26 Her approval the self-serving contract constitutes a conflict of interest, in violation of RCW chapter 42.23, and wrongfully exposes the City to her attorney’s bill. In addition, Ms. Morgan’s act of attempting to wrest control of a Council meeting could subject her to criminal charges.27 BDMC 9.06.020.

27 Ex. 26.

28 Exs. 12, 24. The undersigned also attended all of these meetings and personally witnessed the failure of a quorum.

29 Ex. 14.

30 Ex. 13.

31 Ex. 24.

C. Malfeasance or Misfeasance in Office, or Violation of the Oath of Office through Dereliction of Duties of a Member of the City Council (24 Counts) •
Ms. Morgan and others constituting a majority of the City Council privately agreed not to attend regularly scheduled meetings of the City Council without excuse, or to leave regularly scheduled meetings before they were adjourned, in order to cause the meetings to fail for lack of a quorum. This occurred on the following meeting dates:28
January 12, 2016
• March 3, 2016
• May 5, 2016
• May 19, 2016
• May 25, 2016
• June 2, 2016
• November 17, 2016.

At the City Council meeting on June 2, 2016, Ms. Morgan was publicly censured for violating her duty to the public by failing to attend the May 19 meeting.29 In response, Ms. Morgan and two other council members left at the beginning of a recess in a coordinated manner, causing a quorum to fail – the same conduct she had been censured for.30

Ms. Morgan and others constituting a majority of the City Council, without excuse, agreed not to attend regularly scheduled work sessions of the City Council on at least the following dates:31

• January 14, 2016
• February 11, 2016
• March 10, 2016
• April 14, 2016
• May 12, 2016.

Ms. Morgan and others constituting a majority of the City Council, without excuse, refused to attend executive sessions of the City Council meetings on at least the following dates:

• August 18, 2016

• September 1, 2016

• September 15, 2016.

Ms. Morgan, with others constituting a majority of the City Council, failed to approve minutes for 45 of the 63 meetings of the Council or the standing committees upon which she served.32 This is a violation of State law, and deprives the public of an official record of all City meetings.

32 Ex. 24.

33 Ex. 28.

34 Ex. 11.

35 Ex. 25.

Ms. Morgan, with others constituting a majority of the City Council, failed to complete the Comprehensive Plan of the City, required by the State Growth Management Act. This act disqualified the City for a grant from the Puget Sound Regional Council. The failure to enact a comprehensive plan has also placed the City at risk for work stoppage, and is likely to cost the City money it does not have.33

Ms. Morgan, and others constituting a majority of the City Council, failed to enact the six-year Transportation Improvement Plan, and the Capital Improvement Plan required by State law.

Ms. Morgan, and others constituting a majority of the Standing Committee on which she serves, and constituting a majority of the Council, despite having developed their own ordinance for contracting for building inspection services, failed to provide for such services.34 Among the consequences of Ms. Morgan’s inaction, the City of Black Diamond had to refund the cost of building inspection services to the Enumclaw School District and may cause a delay of occupancy of a public school in the City, to the detriment of its citizens.35

Ms. Morgan has refused to call a vote on multiple items, causing necessary and important legislation to fail or linger in committees. Ms. Morgan failed to vote in the following instances:

• Ms. Morgan, with the agreement of others constituting a majority of the Standing Committees on which she serves, which committee is comprised of a majority of the Council, failed to vote on filling vacancies on the Planning Commission, an entity that the City has established under State law. As a result, the Planning Commission has not been able to function at its normal capacity.

• Ms. Morgan, with the agreement of others constituting a majority of the Standing Committees on which she serves, which committee is comprised of a majority of the Council, failed to vote on filling vacancies on the Civil

Service Commission of the City. As a result, the Civil Service Commission has been without a tie-breaking ability for over a year.

Ms. Morgan and others constituting a majority of the City Council failed to enact a yearly budget for the year 2017, in violation of State law. Instead, they enacted a temporary budget that expires on April 1, 2017. The City’s working under a temporary budget impairs its ability to attract and retain employees to serve the City and is posing the imminent termination of services supplied by the City, including delivery of domestic water and police services, fire and sewer services for which it contracts, and all other City services, imperiling the peace, health, and safety of its citizens. Further, the temporary budget contains multiple illegal provisions, which exposes the City to the risk of a lawsuit or State sanction.36

36 Ex. 21.

37 Ex. 27.

38 Id.

39 http://www.ci.blackdiamond.wa.us/Depts/Clerk/Audio/Council/2017/Council_20170302-1900_Combined_01d2938734ebc3a0.mp3

Ms. Morgan, along with Council members Pepper and Weber, conspired to replace members of the Master Development Review Team (MDRT).37 Members of the MDRT are set by contract with CCD Black Diamond Partners (Oakpointe).38 Oakpointe threatened the City with suit for breach of contract if the Council’s plan to reconstitute the MDRT went forward. The Council agreed to mediate with Oakpointe over this issue.39 However, Morgan refused to attend the agreed-upon mediation, which has forced the matter into the more expensive arbitration process.

VI. Conclusion

Based upon Ms. Morgan’s malfeasance, misfeasance, and violation of the oath of office within the meaning of the legal standards shown above, the County should prepare a ballot summary and forward a copy of this letter and all exhibits hereto, with the subjoined declaration of Robbin Taylor, to the Superior Court for further proceedings.

I declare under penalty of perjury under the laws of the State of Washington, that the foregoing is true and correct to the best of my knowledge, and that I have sufficient knowledge of the alleged facts upon which the stated grounds for recall are based.

Dated this __ day of April, 2017.

________________________

Robbin Taylor

32110 Botts Dr. Black Diamond, WA 98010

RE: Filing of Statement of the Charges in favor of the recall of Black Diamond City Councilmember Patricia Pepper

Dear Ms. Wise and Mr. Satterberg:

This letter shall constitute the statement of the charges in support of the recall of Black Diamond City Councilmember Patricia Pepper pursuant to RCW 29A.56.110 and Washington Constitution, Article I, §§ 33-34. Ms. Pepper has committed acts of malfeasance and/or misfeasance, and violated her oath of office. This Statement of the Charges is verified under oath, states the acts complained of in concise language, gives a detailed description including the date, location and nature of each act complained of, and is signed by the person(s) bringing the charge.

I. Introduction to Statement of Charges in Favor of the Recall of Patricia Pepper

The Petitioner for Recall is Ms. Robbin Taylor, who is a citizen of the City of Black Diamond, Washington. The City of Black Diamond lies entirely within King County. Ms. Patricia Pepper was elected to a position on the Black Diamond City Council in November 2015, for a four-year term effective January 1, 2016. Ms. Pepper was sworn in on January 7, 2016. The oath she took reads as follows:

I, Pat Pepper, having been duly elected to the office of City of Black Diamond Council Position Five, do solemnly swear or affirm that I will faithfully and impartially discharge the duties of this office as prescribed by law and to the best of my ability and that I will support and maintain the Constitution of the State of Washington and of the United States of America.

II. Executive Summary of the Charges

As set forth in detail below, during Ms. Pepper’s first year in office, she has (1) knowingly violated the Open Public Meetings Act (“OPMA”), both in meeting and conferring with other council members outside of open public meetings, and in failing to provide proper notices, agenda, and minutes when meetings were convened, (2) usurped the authority of the mayor on multiple occasions, (3) conspired with other City councilmembers to defeat a quorum and/or refuse to vote on necessary measures, (4) refused to enact Comprehensive Plan amendments, Six-Year Transportation Improvement Plan and Capital Improvement Plan as mandated by state law, and (5) refused to enact a budget for 2017. Ms. Pepper’s actions and inactions have ground the Council and the City to a halt, cost the City thousands of dollars and jeopardized the continued provision of necessary City services.

III. Factual and Legal Sufficiency for Recall of Patricia Pepper

A. The Constitutional Right to Recall

B. Factual Sufficiency

C. Legal Sufficiency

D. Grounds for Recall

RCW 29A.56.110 defines what constitutes misfeasance, malfeasance, and violation of the oath of office:

For purposes of this chapter:

(1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty; a. Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and

b. Additionally, “malfeasance” in office means the commission of an unlawful act;

(2) “Violation of the oath of office” means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.

IV. Statutes Relevant to Recall Petition

A. Open Public Meeting Act (OPMA)

The Petition for Recall of Patricia Pepper alleges violation of the Open Public Meetings Act. That law requires that meetings of a public agency be open to the public:

B. Requirement of Regular Meetings

C. Authority of the Mayor

D. Requirements of Comprehensive Plan, Transportation Improvement Plan, Capital Improvement Plan, Budget, Planning Commission and Civil Service Commission.

V. Acts and Omissions constituting the Statement of the Charges

The acts for which this Statement of the Charges is brought are divided into the following general factual categories. Together, the charges amount to an indictment against Ms. Pepper that she has conducted herself, while in office, in a manner that constitutes misfeasance, malfeasance and/or violation of her oath of office.

A. Patricia Pepper has intentionally violated the OPMA by privately agreeing with other councilmembers upon a course of action for the City Council.

Statement of charges in favor of Recall of Patricia Pepper Pursuant to RCW 29A.56.110

B. Patricia Pepper has intentionally violated the OPMA by conducting Committee meetings that are not properly noticed or open to the public.
C. Patricia Pepper has intentionally acted to usurp the authority of the Mayor of Black Diamond.
D. Patricia Pepper disregarded her duties as a Council member, thereby impeding the regular functioning of the City.

Patricia Pepper has engaged in the following actions, each of which constitutes misfeasance, malfeasance and/or violation of her oath of office, and each of which supports a finding of factual and legal sufficiency for her recall from office.

A. Malfeasance or Misfeasance in Office, or Violation of the Oath of Office, Through Intentional Violation of the Open Public Meetings Act in Agreement With Others Constituting a Majority of the Council, and with its Standing Committees comprised of a majority of the council (11 Counts)

The Open Public Meetings Act (OPMA), RCW 42.30 requires the “governing body” of a City to convene its meetings on a published, regularly scheduled time, at a regular place, and to publish an agenda of the meeting. Ms. Patricia Pepper convened meetings with a majority of the members of the City Council without complying with the public notice and agenda requirements of the OPMA. Many of these meetings were conducted privately over email. During these “meetings,” the majority of the City Council resolved to and did make decisions purportedly on behalf of the City, all without public notice or input.

Almost immediately after starting her term as a Council member, Ms. Pepper employed in-person meetings, email communications, telephone calls, and communications through third parties to effect off-the-record meetings of a majority of “governing bodies” and to make decisions of the City Council without compliance with the OPMA, on at least the following occasions:

• January 7, 2016. Ms. Pepper emailed with Council members Erika Morgan and Brian Weber about changing Council rules, and attempted to introduce a 40 page document without notice to the public.1

1 Ex. 14. Statement of charges in favor of Recall of Patricia Pepper Pursuant to RCW 29A.56.110

• January 8, 2016. Ms. Pepper signed a letter with Council members Morgan and Weber, addressed to the City Clerk, directing cancellation of a regular meeting and scheduling a special meeting.2

2 Exs. 1-2.

3 Exs. 13-14.

4 Exs. 3, 13-14.

5 Ex. 8.

6 Ex. 8.

This exhibit, entitled “A Plan” was obtained by the undersigned through a Public Records Request, made at the conclusion of a City Council meeting on May 5, 2016. Ms. Pepper unsuccessfully attempted to hide this document to keep it from being disclosed. Attorney Ward details this incident in her memorandum produced as Exhibit 13 hereto.

7 Ex. 19.

8 Ex. 8.

9 Ex. 11.

• January 8-12, 2016. Ms. Pepper exchanged over 30 emails among a majority of the City Council (members Morgan and Weber) about proposed new rules of Council procedure.3

• January 8-12, 2016. Ms. Pepper entered an agreement among a majority of the Council to prevent Council Member Edelman from becoming the chair of any standing committee.4

• During the period between March 1-17, 2016, Ms. Pepper privately agreed with a majority of the Council to adopt a substitute council meeting agenda.5

• During April, 2016, as part of a majority of the Council, Ms. Pepper discussed special meetings, committee meetings, agenda, minutes, and proposed legislation, and prepared a script for making collective decisions and plans as council members. The script also included plans for a majority to walk out of executive sessions of the council.6

• During the period between January 1 and April 7, 2016, Ms. Pepper privately agreed with a majority of the council to produce Resolution 16-1089 firing the City Attorney after disagreeing with her advice.7

• During the period of April 1 to April 21, 2016, Ms. Pepper privately agreed with a majority of the council to prepare a resolution hiring the law firm of Talmadge Fitzpatrick Tribe.8

• March 17-June 16, 2016. Ms. Pepper privately discussed and revised, along with Council members Morgan and Weber, a resolution for business inspection services for committee action.9

• August 25-October 6. Ms. Pepper drafted and privately agreed with Council members Morgan and Weber to adopt Resolutions 16-1122, 16-1123, 16-1124, 16-1125, and 16-1126, revising contracts for vendors serving the City’s Master Development Review Team. Per their prior agreement to act together on all issues, Council members Pepper, Morgan, and Weber enacted the resolutions on October 6, 2016.10

10 Ex. 19; http://www.ci.blackdiamond.wa.us/Depts/Clerk/Audio/Council/2016/Council_20161006-Combined.mp3.

11 Ex. 19.

12 Id.

13 Exs. 21-22.

14 Ex. 5.

15 Exs. 5, 18.

16 Ex. 6.

• November 3—November 29, 2016. As part of the Standing Committee on Government Operations, Ms. Pepper discussed Committee actions on franchise agreements numbered AB 16-063 and AB 16-064 with other committee members without compliance with the OPMA. At the City Council, the matter was referred to the Government Operations committee for a meeting on November 7. The public was excluded from the November 7 meeting, but the Committee took action, sending a recommendation on the resolutions to the Council for its November 29 meeting.11

Ms. Pepper’s repeated violations of the OPMA have resulted in a lawsuit being filed against the City.12 In the three months since the suit was filed, the City has already spent $45,522 on its own behalf, and has been ordered by the Court to conditionally pay for Ms. Pepper’s defense.13 Willful OPMA violations are not covered by the City’s risk pool policy, thus leaving the entire cost of the suit to the taxpayers.14 Ms. Pepper was advised on at least two occasions by the City’s insurance carrier that her actions may be deemed to be illegal and would not be covered by City insurance.15 Ms. Pepper’s actions will have cost the City, and its taxpayers, hundreds of thousands of dollars and may ultimately result in the City having to declare bankruptcy.

B. Malfeasance or Misfeasance in Office, of Violation of the Oath of Office, by Conducting Meetings in Violation of the Open Public Meetings Act (18 Counts)

Together with Council members Morgan and Weber, Ms. Pepper enacted Council Resolution 16-1069 revising Council procedure to require that every meeting of a standing committee of the City Council include three members of the five-member council.16 Because three members of a committee also constitute a majority of the Council, every meeting of a standing committee also constitutes the meeting of a governing body, and requires the committee to conform to the notice, scheduling, and agenda requirements for the meeting of a “governing body” under the OPMA.

Ms. Pepper was advised by no less than five (5) attorneys that committee meetings as called for in Resolution 16-1069 must comply with the OPMA.17 Ms. Pepper, along with the other Council members, was also advised by the City’s insurance carrier that the continuance of committee meetings was contrary to appropriate risk management practices. 18

17 Exs. 4, 7, 10, 13, 14, 17.

18 Exs. 5, 18.

19 Exs. 19, 23. All listed committee meetings took place either at the Library or the local coffee shop.

20 Exs. 19, 23.

21 The public was specifically excluded from this meeting.

However, knowingly acting against legal advice, Ms. Pepper participated in meetings of standing committees that were not announced in advance, not opened to the public, for which no agenda was prepared, at which no recording of the meeting was made, and/or for which no minutes were compiled or approved. The City Noticed committee meetings until Interim City attorney Ward advised against doing so on June 2, 2016. Committee meetings continued after June 2, 2016 but were not published by the City.

Ms. Pepper served as chair and participated in meetings of the Standing Committee on Growth Management, Land Use, and Community Services, but for which no proper announcement of a public meeting was made, no agenda publicly available, and/or no recording or minutes compiled, on at least the following dates:19

• July 20, 2016
• August 29, 2016
• September 12, 2016
• October 3, 2016
• December 12, 2016
• January 17, 2017
• January 30, 2017
• March 13, 2017
• March 30, 2017

Ms. Pepper also served on the Government Operations Committee and participated in the meetings of that Standing Committee, for which no proper announcement of a public meeting was made, no agenda prepared, and no recording or minutes maintained, on at least the following dates:20

• August 1, 2016
• August 27, 2016
• September 10, 2016
• October 25, 2017
• November 7, 2016

• January 17, 2017
• January 25, 2017
• January 28, 2017

C. Malfeasance or Misfeasance in Office, or Violation of the Oath of Office by Usurping the Authority of the Mayor, Thereby Disrupting the Order of the City (Four Counts)

Ms. Pepper usurped or attempted to usurp the statutory authority of the Mayor on the following occasions:

• On January 8, 2016, Ms. Pepper, acting with the concurrence of council members Morgan and Weber, directed City Clerk Brenda Martinez to cancel the regularly scheduled meeting of the Black Diamond City Council.22

22 Ex. 2.

23 Ex. 19.

24 Ex. 8.

25 Ex. 25.

26 Exs. 4, 13-14.

27 Ex. 12.

28 Ex. 10.

• During the period between January 1 and April 7, 2016, Ms. Pepper agreed in private meetings with a majority of the Council to produce Resolution 16-1089 firing the City Attorney.23

• During the period of April 1 to April 21, Ms. Pepper agreed in private meetings with a majority of the council to hire the law firm of Talmadge Fitzpatrick Tribe.24

• Ms. Pepper has, on multiple occasions, attempted to preside over Council meetings while the Mayor is present.25

Ms. Pepper’s attempts to direct the actions of City staff and to fire and hire City attorneys have impeded the functioning of the City and hindered the City’s ability to receive legal advice. The Teamsters union has already filed multiple grievances against the Council for interfering with the duties of staff.27 Moreover, Ms. Pepper hired Talmadge Fitzpatrick Tribe to provide legal advice directly to her, which advice may have been contrary to the City’s interests.28 Her approval the self-serving contract constitutes a conflict of interest, in violation of RCW chapter 42.23, and wrongfully exposes the City to her attorney’s bill.

D. Malfeasance or Misfeasance in Office, or Violation of the Oath of Office through Dereliction of Duties of a Member of the City Council (22 Counts)

Ms. Pepper and others constituting a majority of the City Council privately agreed not to attend regularly scheduled meetings of the City Council without excuse, or to leave regularly scheduled meetings before they were adjourned, in order to cause the meetings to fail for lack of a quorum. This occurred on the following meeting dates:29

29 Exs. 12, 23. The undersigned also attended all of these meetings and personally witnessed the failure of a quorum.

30 This meeting was cancelled and had to be rescheduled.

31 Ex. 16.

32 Ex. 15.

33 Ex. 23.

• January 12, 2016
• March 3, 201630
• May 19, 2016
• May 25, 2016
• June 2, 2016
• November 17, 2016.

At the City Council meeting on June 2, 2016, Ms. Pepper was publicly censured for violating her duty to the public by failing to attend the May 19 meeting.31 In response, Ms. Pepper and two other council members left at the beginning of a recess in a coordinated manner, causing a quorum to fail – the same conduct she had been censured for.32

Ms. Pepper and others constituting a majority of the City Council, without excuse, agreed not to attend regularly scheduled work sessions of the City Council on at least the following dates:33

• January 14, 2016
• February 11, 2016
• March 10, 2016
• April 14, 2016
• May 12, 2016.

Ms. Pepper and others constituting a majority of the City Council, without excuse, refused to attend executive sessions of the City Council meetings on at least the following dates:

• August 18, 2016
• September 1, 2016
• September 15, 2016

Ms. Pepper, with others constituting a majority of the City Council, failed to approve minutes for 45 of the 63 meetings of the Council or the standing committees upon which she served.34 This is a violation of State law, and deprives the public of an official record of all City meetings.

34 Id.

35 Ex. 26.

36 Ex. 11.

37 Ex. 24.

Ms. Pepper, with others constituting a majority of the City Council, failed to complete the Comprehensive Plan of the City, required by the State Growth Management Act. This act disqualified the City for a grant from the Puget Sound Regional Council, which it otherwise would likely have been eligible for. The failure to enact a comprehensive plan has also placed the City at risk for work stoppage, and is likely to cost the City money it does not have.35

Ms. Pepper, and others constituting a majority of the City Council, failed to enact the six-year Transportation Improvement Plan, and the six-year Capital Improvement Plan required by State law.

Ms. Pepper, and others constituting a majority of the Standing Committee that Ms. Pepper chairs, and constituting a majority of the Council, despite having developed their own resolution for contracting for building inspection services, failed to provide for such services.36 Among the consequences of Ms. Pepper’s inaction, the City of Black Diamond had to refund the cost of building inspection services to the Enumclaw School District and may cause a delay of occupancy of a public school in the City, to the detriment of its citizens.37

Ms. Pepper has refused to call a vote on multiple items, causing necessary and important legislation to fail or linger in committees. Ms. Pepper failed to vote in the following instances:

• Ms. Pepper, with the agreement of others constituting a majority of the Standing Committees that she chairs, which committee is comprised of a majority of the Council, continually voted down all applicants for vacancies on the Planning Commission, an entity that the City has established under State law. As a result, the Planning Commission has not been able to function at its normal capacity.

• Ms. Pepper, with the agreement of others constituting a majority of the Standing Committees that she chairs, which committee is comprised of a majority of the Council, failed to vote on filling the vacancy on the Civil Service Commission of the City. As a result, the Civil Service Commission has been without a tie-breaking ability for over a year.

Ms. Pepper and others constituting a majority of the City Council failed to enact a yearly budget for the year 2017, in violation of State law. Instead, they enacted a temporary budget that expires on April 1, 2017. The City’s working under a temporary budget impaired its ability to attract and retain employees to serve the City and posed the imminent termination of services supplied by the City, including delivery of domestic water and police services, fire and sewer services for which it contracts, and all other City services, imperiling the peace, health, and safety of its citizens. Further, the temporary budget contained multiple illegal provisions, which exposes the City to the risk of a lawsuit or State sanction.38

38 Ex. 20.

39 Ex. 25.

40 Id.

41 http://www.ci.blackdiamond.wa.us/Depts/Clerk/Audio/Council/2017/Council_20170302-1900_Combined_01d2938734ebc3a0.mp3

Ms. Pepper, along with Council members Morgan and Weber, conspired to replace members of the Master Development Review Team (MDRT).39 Members of the MDRT are set by contract with CCD Black Diamond Partners (Oakpointe).40 Oakpointe threatened the City with suit for breach of contract if the Council’s plan to reconstitute the MDRT went forward. The Council agreed to mediate with Oakpointe over this issue.41 However, Pepper refused to attend the agreed-upon mediation, which has forced the matter into the more expensive arbitration process.

VI. Conclusion

Based upon Ms. Pepper’s malfeasance, misfeasance, and violation of the oath of office within the meaning of the legal standards shown above, the County should prepare a ballot summary and forward a copy of this letter and all exhibits hereto, with the subjoined declaration of Robbin Taylor, to the Superior Court for further proceedings. Statement of charges in favor of Recall of Patricia Pepper Pursuant to RCW 29A.56.110 14 of 14

Dated this __ day of April, 2017.

________________________

Robbin Taylor

32110 Botts Dr. Black Diamond, WA 98010

Recall Petition Filed Against Two Black Diamond City Councilmembers

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