Kudos were given to Councilmembers during their Thursday, May 4, City Council meeting for their quick passage of five items on the Agenda as they were brought up. But while contentiousness between Majority Councilmembers Erika Morgan, Brian Weber, Pat Pepper and Minority members Tamie Deady and Janie Edelman was kept at a somewhat lower level than in past meetings, there were still moments that left the audience scratching/shaking their heads, leading some to outbursts now and again in frustration with the continued disrespect for civility and how to properly conduct City business.
As per usual, the first 15 minutes of the meeting began with arguments back and forth as Majority Councilmembers continued to dismiss items seemingly not to their liking and then bringing items to the “Council Agenda” that had not been properly vetted. For the most part, “Ordinances” and “Resolutions” from the Majority seemingly show up at the Council meeting without supporting factual documentation that includes being seen in their entirety by the Mayor, staff, City Attorney and/or the Council as a whole.
An example of this came once again in the form of a “Resolution” submitted to the Council meeting regarding “….clarifying that participation in Binding Arbitration related to the MDRT is not authorized and further participation is prohibited.” Pepper read the entire resolution after calling for the suspending of “Council Rules,” which would have put the “Resolution” into a “Committee” for discussion prior to considering a vote. Pepper stated that consideration of the document, which came with no supporting information, was urgent due to another deadline for arbitration coming the next day. She went on to state that the arbitration was a waste of the City’s money/time because none of it was valid.
As Pepper read through the document, one aspect that was left out was that all Councilmembers had agreed they would accept mediation in order to avoid another possible Oakpointe lawsuit that was warned would come unless the Council agreed to mediation. Pepper forged ahead and made her motion “to suspend Council rules and immediately adopt the resolution clarifying that participation in binding arbitration is not authorized and further participation is prohibited and I have a second with Erika Morgan.”
Immediately following Pepper’s motion Mayor Carol Benson stated that the document had just been delivered prior to the beginning of the meeting and that she had not seen the document prior to its distribution at the meeting. City Attorney David Linehan stated that he had a copy, however, his copy only had four sections and not the eight sections Pepper read off. “Where’s the rest of this resolution Councilmember?” asked Linehan. After giving Linehan an updated copy of the “resolution,” Pepper asked for comments.
Following a brief comment by Edelman, Morgan read from a prepared statement with several points aimed at the law firm of Kenyon Disend. She stated that the firm held the view that it is not Council’s authority to do contracting, which she pointed out was allowable in State law, but gave no reference. By holding this view point, she stated that this view “…stripped away the Council of its granted powers.”
She then wanted to know why some of the Councilmembers “began backing the developer [Oakpointe] instead of standing up for the law,” and that Black Diamond’s Municipal Code does not support their position. According to Morgan, it was illegal by the State and in violation of the local code to restrict Council authority “of its broad and sweeping powers to control anything that any City government has ever been granted in this state.” This, she stated, is what the law says even though she did not reference the specific law in her comment.
Again, she went after the law firm by stating that where the fault lies was “their principles view of the law” and that is why the law firm is not acceptable as the attorney for the City. She stated that they refuse to acknowledge Black Diamond’s code “even when our code just references the State law.” She went on to accuse Linehan and the Mayor of wanting to grab power for the developer that belongs to the people of Black Diamond. She reminded the audience that the arbitration was binding – not appealable or reversible ever.
“The self determination that our citizens enjoy under Washington law would be squandered into a tyranny with no controls and no independent inspectors, and no peer review to protect us from mistakes and intentional bad acts. I cannot even contemplate this, what the Mayor and Mr. Linehan bargained away is any self-respect the people have to uphold the law, and to see and prove that the law is being upheld. It’s a power grab that suits the developer, but it is very illegal and I could not go along with it.” When the vote was taken, Morgan, Weber and Pepper voted in favor of the “resolution” regarding “…participation in Binding Arbitration related to the MDRT is not authorized and further participation is prohibited.”
With the vote taken, Linehan asked for clarification as to whether it was the Majority Council’s intention that their lawyer Jane Koler not submit her briefing to the arbitrator. According to Linehan, a couple of days prior to the May 4th Council meeting, Koler had inquired of the arbitrator for extra time to file the brief. For its part, the City had already agreed to pay $5,600 or 20 hours for Koler’s work on behalf of the Majority members. Pepper answered that she did not have an answer to that. Linehan let Pepper know that the arbitrator needed to be alerted if the attorney would not be filing the brief.
At the end of a couple more questions/discussion, Pepper agreed that Koler was still the Majority’s attorney and that Koler was aware of the “resolution” that they had just passed regarding further participation being prohibited in the MDRT Binding Arbitration. Linehan finished by telling Pepper that the attorney owed an email to the arbitrator. A few days later, Koler submitted the brief to the arbitrator on behalf of the Majority Councilmembers, while the City prepared its brief for submission by May 12th.
Earlier in the meeting, Majority Councilmembers attempted to pass an amended version of the 2016-21 Capital Improvement Plan (CIP). Several elements were added to the original plan by the Councilmembers that did not have supporting figures, dates and/or other valuable information in order for the Council as a whole to consider. That, on top of the need for a Public Hearing would have put the document even farther overdue than it currently has been. After considering all, the item was still voted on by Majority in favor of their amended version, however, it was ultimately dismissed with planning for the 2018-23 CIP coming up next month. The Majority was encouraged to bring their desired projects to the new round of CIP conversation where they could be more fully vetted.
During the first Public Comment period at the beginning of the meeting, Pam McCain, Planning Commission Chair, came forward to let Council know that the Commission had cancelled a second meeting of the group. According to McCain, this was due to the Council not being able to come to any conclusions that could move the City forward, therefore, the City, she stated, is moving backward. She pointed out that anyone coming to the City to buy property would not have to assume any new rules that might be imposed through the Comprehensive Plan because the plan, which is almost 2 years overdue, has not been able to be passed by Council. She went on to state that although the Council seems to “use that as a wedge, not to do anything, what you’re really allowing is everything to be done.” She encouraged the Council to get to the point of finishing the plan for the benefit of all the citizens and to be an effective City.
Yet another speaker, Tina McGann, spoke about the meeting having a very hostile environment. Wanting there to be a more respective tone, she stated that there was more to be done in the City besides YarrowBay [Oakpointe] such as the Minutes of past meetings. She asked the Council to “please try and conduct City business. Get it done, work as a team, be respectful and if not, then please resign.” Johna Thomson echoed the resignation suggestion by suggesting that Morgan Weber and Pepper resign.
Turning attention to the recall efforts against Morgan and Pepper revealed that the effort against Morgan was withdrawn only due to time issues. According to Elections, signature gathering for recalls must stop 6 months prior to the election date. Since Morgan’s seat is up in November, filing with Elections had to take place by Friday, May 5th. Pepper, on the other hand, is not up for reelection until 2019, therefore, her petition was not withdrawn.
During a hearing on Wednesday, May 10, before King County Superior Court Chief Civil Judge Beth Andrus, Pepper, representing herself, was on hand to testify as to why she should not be recalled. Based on the factual and legal sufficiency for the allegations set out in a ballot synopsis, Judge Andrus made the decision that the recall could go forward for the following reasons:
- Pepper, as part of a council majority, violated the Washington State Open Public Meetings Act, chapter 42.30 RCW, by convening and conducting closed meetings without public notice and by entering into private agreements to prepare and approve legislation.
*Pepper, as part of a council majority, refused to: (a) attend/canceled council meetings; (b) failed to approve minutes.
*Pepper, as part of a council majority, failed to enact a 2017 budget in violation of state law and instead enacted a temporary budget containing illegal provisions, impairing the city’s ability to provide essential services.
*Pepper, as part of a council majority, improperly voted to change Master Development Review Team contracts resulting in threatened legal action against the city.
Councilmember Pepper has 15 days to file an appeal with the State Supreme Court after which petitioners will be able to go out and collect signatures for the recall to be placed on a ballot in the next few months.
