Life at the City of Black Diamond government level continues to be in a very fluid state of affairs involving a master planned development in the works, lawsuits, potential lawsuits, recall efforts, Councilmembers not getting along as each side vies for control of the City and much more.
Some of the newest news regarding Brian Derdowski and Kristin Bryant came in the form of a motion for emergency stay regarding giving up documents and appearing at upcoming depositions. In yet another State of Washington Court of Appeals 4-page ruling handed down on Tuesday, August 22, the following ruling was issued:
“In a paragraph, Bryant and Derdowski make an alternative request that this Court treat their notice of discretionary review and emergency motion to stay as a petition for a writ of mandamus. But they provide no explanation or analysis to demonstrate a basis for this Court to issue such a writ when they have a remedy to seek interlocutory review and an emergency stay.
“Considering the trial court’s decision and the argument and the documents provided by Bryant and Derdowski, I conclude that they fail to demonstrate that an immediate stay is warranted. The emergency motion for stay is denied.”
Moving on to the business of the Thursday, August 17, City Council meeting where some habits are hard to break, Councilmember Pat Pepper once again took control of the beginning of the meeting by reading from her script while lecturing Councilmembers and the audience regarding the agenda and rules of procedure.
As Pepper spoke about the agenda, she invited “City Legal Counsel” Attorney Jane Koler to come forward to explain Agendas and Council Rules. Immediately, Mayor Carol Benson stated that Koler could not have the floor, which invited another immediate response from Councilmember Erika Morgan to Appeal the Decision of the Chair. While Benson attempted to call Councilmembers back to the business at hand of voting on the proposed revised agenda, Pepper and Councilmember Erika Morgan spoke over Benson with Points of Order and appealing the decision of the chair.
Standing at the podium waiting for her turn to speak, Koler jumped in the mix telling Benson that she was going to answer Pepper’s question. Having already asked Koler to kindly sit down, Benson was now ordering Koler, who refused to give up the podium and then demanded that Benson had no right to make her sit down. Benson told Koler that it was not public comment and that if Koler could get up to speak at that time, the rest of the audience could get up.
Ignoring Benson, Pepper continued speaking over her and then forcefully took over the meeting asking for a vote on the appealing of the decision of the chair for “interruption, arguing, usurping the floor held by the Councilmember.” Marching on, Pepper went through each member of the Council with Morgan, Pepper and Councilmember Brian Weber siding together against the Mayor.
Arguing continued to the point that Benson invited everyone to get up and speak. Several audience members came forward and surrounded Koler. Each time Koler attempted to speak, others in the audience spoke out as well telling her to sit down. However, despite being asked to sit down a number of times by Benson, Koler refused to give up the podium, but instead stated she did not feel comfortable with everyone surrounding her. When Benson asked her to sit down, she refused.
During the commotion that ensued, Councilmember Janie Edelman called for a recess, with Morgan amending the motion to adjourn the meeting. Quick shuffling by Pepper and Koler, who did not wish for adjournment due to other business they wanted to take care of later in the meeting, brought about a five-minute recess 11 minutes into the meeting.
Cooler heads prevailed following the recess with Koler being allowed to speak for only 3 minutes. A vote was finally taken to accept the revised agenda with Pepper, Weber and Morgan voting in favor.
During public comments, a number of people came forward sharing their thoughts and feelings regarding their perception as to what was happening with the City. With the end of the comments business rolled through fairly quickly until the subject regarding a resolution on “Professional Services Contract with Anne Bremner, PC.”
When Pepper was called upon to speak to the Bremner contract resolution, she called on Koler once again to explain the contract and Bremner’s qualifications. According to Koler, Pepper and Morgan had made the requests to find a qualified attorney “to seek a legal remedy against the Mayor that would require her to follow the law,” said Koler. “They [Pepper and Morgan] felt that I could better evaluate the qualifications of such an attorney.”
She stated that she made a list of qualified attorneys “well versed in municipal law” and who had good trial experience. After interviewing the people on her list, she made the decision that Anne Bremner would be “very superior for the job as she has extensive municipal law experience…she is a very impressive litigator…she has defended municipal officials…I think she would be an excellent person to hire for that lawsuit.”
Once Koler announced that Bremner would charge $275 an hour, Benson asked Pepper where the money was coming from to cover the Bremner’s contract as well as Glenn and Koler’s contracts. Avoiding the question, Pepper stated that she had a question for Koler. Morgan jumped in talking over Benson (who pointed to the City having no budget) saying, “Cross examining. Mayor you’re out of order. It’s not proper for you to be cross examining the Councilmember.”
Reading from her script after Koler brought the conversation back to Pepper, Pepper asked whether the Mayor had “…the authority to prevent the professional services contract from being approved?” Koler said no, and then stated the Mayor did not have veto power over contracts citing as her reference Municipal Research.
Councilmember Janie Edelman questioned Koler and her go to source for questions regarding municipal law when Koler should already know the law. Koler came back stating she thought it would be helpful in the current situation. Edelman stated that another attorney who was the “premier municipal attorney in the State of Washington” disputed some of the things coming out of Municipal Research. Then speaking to the Bremner contract, Edelman stated that it was a “witch hunt.”
Reading from Exhibit A of the Bremner contract – Consultant’s Scope of Work, Edelman read the responsibilities, “…for performing services related to actions beyond the scope of Mayor Benson’s lawful authority and associated actions or failure to act.” Continuing, Edelman stated that she knew first-hand knowledge about Save Black Diamond and that the representatives along with Brian Derdowski and Kristen Bryant have been on a witch hunt for 7 years.
“This is the third mayor that they are trying to devalue,” stated Edelman. “They tried it with Becky Olness, they got Dave Gordon – he lasted 11 months. The Mayor has been acting as I have been and Tami Deady on the advice of our City Attorney. These Majority Councilmembers don’t like the answers. So, therefore, their solution is, ‘Let’s hire an attorney, let’s sue the Mayor.’ We’ve been hearing about lawsuits the last 20 months. Twenty months we have been threatened because we’re not doing our job. So, let me tell you right now – bring it on – because you guys do not have a leg to stand on.”
Disagreeing with Edelman “vehemently,” Koler went on to state, “Since Ms. Bremner will be bringing a lawsuit, if hired by the City, I think it will…” Koler was interrupted by Benson, stating that the City was not hiring Bremner.
In an attempt to redirect Koler and Edelman arguing, Pepper continued questioning Koler whether the City had to do an RFQ for professional service with Bremner, to which Koler answered no. According to Koler, there was “not a single provision in the municipal code that requires a RFQ before hiring an attorney.” Benson let Koler know that the internal procedures of the City required an RFQ.
It is interesting to note that in the beginning of the 2017, Majority Councilmembers insisted that a new RFQ be put out to recruit a new law firm for the City. In the end, Kenyon Disend, the City’s current law firm, was the only firm to apply. And now, Majority Councilmembers are claiming that there does not have to be an RFQ process, but rather Pepper could simply sign the Bremner contract.
Following a couple more scripted question/answers between Pepper and Koler, Pepper immediately asked that rules be suspended so that the brand-new resolution regarding the professional services contract with Bremner could immediately be voted on rather than go through the “normal” procedure of “First Reading” and then sending off to committee.
Earlier in the meeting Majority Councilmembers refused to suspend the rules in order to vote on a resolution “Regarding King County Youth & Amateur Grant Agreement for Gym Lighting.” This item would bring funds to the City to install LED lighting in the City’s gym, which would help reduce the City’s electrical bills while also providing better lighting. Another added benefit was that the City would not have to contribute any funds to the project. In the end, the LED lighting resolution was put into the Gov Ops committee with Morgan as Chair and Pepper.
As part of her scripted statement for moving the Bremner contract forward, Pepper stated, “…we simply must have an attorney address properly the Mayor’s failure to follow state law. We must have an attorney to uphold state law regarding the Council’s authority.”
“So, where is the money coming,” asked Benson. “There is no money in the budget. We’re already $68,000.00 over budget. Did you look at the second quarter report? Where is the money coming from? Where is the money coming from? Are you going to raid our reserve funds that you wanted to preserve? That you talked about preserving? Are you going to raid those? Do you have an answer?”
There was dead air for several seconds before Pepper stiffly replied, “We are the City Council. We are going to hire a representative to make sure that we can get back on track.”
Earlier in the meeting, Black Diamond resident Leslie Cooley, having observed the Bremner contract in the Council packet days before the Council meeting, had a number of questions about the contract: “What process was used to select Attorney Bremner? When and where was notice given for a new Request for Qualifications? How many applicants submitted RFQs? What committee reviewed the applications? When did review of the applications occur? What review has been done with Finance Director May Miller of the impacts of this contract on the budget? Why did Attorney Bremner not submit an RFQ this spring which the City posted in March?” These, and several more questions were posed by Cooley, who did not receive any answers.
Also commenting earlier in the meeting was resident Robbin Taylor. In her comments, Taylor addresses OPMA (Open Public Meetings Act) violations in sections 2.2, 3.4 and 4.1 of the original contract where Koler used the term “Council Majority.” “However, the newly amended contract removed ‘Majority’ from all three sections of the contract,’ stated Taylor, “yet sections 2.2 and 4.1 still stated that work was authorized prior to a public vote and payment for this work is promised in 4.1” During the meeting, Koler further revised the new contract making changes to 2.2 and 4.1. She called them scrivener’s errors and apologized that she did a “sloppy job of reviewing it [Bremner contract] and proof reading it.”
Meanwhile, following Pepper’s comments about the Council hiring a representative so the City could get back on track, Edelman stated, “This is such a total misrepresentation. Ann Bremner is being hired to try and dig up some dirt on the Mayor. That’s what it says in the contract. It has nothing to do with getting the City Council, which I would consider the entire City Council, not just the Majority, to get back on track. The only way to do that is for the Majority to act appropriately from the get go of the meetings. You guys set the tone. We don’t…you guys are the ones sticking your necks out. If you sign that contract Pat Pepper, you’re signing it for yourself.”
“No, I’m not, and that’s a threat,” retorted Pepper.
“You’ve signed five contacts now with attorneys and not one of them has been paid,” stated Benson. “Not one of them has been paid by the City of Black Diamond.”
Following more dead air, Morgan read a statement calling out the City Attorney as Benson’s private attorney despite being told that was not true. She went on to state other violations as well as accused the Mayor of “colluding” with Oakpointe regarding the OPMA lawsuit against the three Councilmembers Morgan, Pepper and Weber even though, according to Morgan, the Councilmembers never “committed a violation of the OPMA.”
Weber stated, “I support this for the simple fact that between the Council and the Mayor there’s an issue with getting any kind of real business getting done in the City and it needs to be solved one way or the other.” When the vote was taken, all three Councilmembers Morgan Weber and Pepper supported the resolution regarding the Bremner contract going forward.
Towards the end of the meeting, Nancy Rogers of CairnCross &Hempelmann law firm representing Oakpointe took the podium and let Councilmembers know that the City and Oakpointe are currently working through project applications. She stated that staff is definitely holding Oakpointe’s feet to the fire with the Master Planned Development contracts regarding the terms and permits of the contract.
Stating that she was offended by the use of the word “collusion” earlier in the meeting, Rogers reassured that, that was not what was going on as there was a binding contract being worked under the terms of that contract. She continued to speak to a breach that had occurred in the contract between the City and Oakpointe.
Rogers pointed out that Black Diamond administration and Oakpointe have been working in good faith to seek grants and other funding mechanisms for pedestrian improvements along Roberts Dr. However, when grants were found and brought before Council, the Council reversed course and acted in bad faith eliminating the Rock Creek improvements that were identified. She reminded Council that there was a 6-year statute of limitation to bring litigation against the majority Councilmembers. In a letter presented to Councilmembers, it further states that Oakpointe has the right “to bring litigation against the majority Councilmembers in their personal capacities and without the benefit of legislative immunity.” At this time Oakpointe was merely asking that there be a cure for the breach so that “adequate funding is secured for the Rock Creek Improvements.”
During the first Public Comment time, resident Erin Stout spoke about the firing and hiring of attorneys by Majority Councilmembers. “I am just disappointed as a citizen that you would spend your time working on things that just spread hate and discontent in this community and spend a lack of time doing the business of the City and making happen what needs to happen for the City to move forward.” She went on to encourage the Councilmembers to review their responsibilities and do good work for the citizens of Black Diamond.
Another resident, Jackie Buss, was upset as well with everyone talking negative about the Mayor. “I’ve been coming to these meetings and I’ve seen where three Councilmembers are not approving things to be paid here in town. So, I don’t see how one side can say that the Mayor’s not doing her job when the other three are not doing their job. It’s just plain as day if you come to these meetings. So, if you are just listening to two people from Bellevue and you’re not taking your own time to actually come here to understand and see what’s happening to this City, it’s just falling apart. I mean come on people. It’s just absolutely crazy! …I’m tired of the bulliness.”
