No strangers to lawsuits over the past year, Black Diamond Councilmembers Erika Morgan, Brian Weber and Pat Pepper, also referred to as the Majority Councilmembers due to their tendency to vote together regarding City business, were once again served legal documents during their Thursday, November 16, City Council meeting in the form of a lawsuit generated by Oakpointe.
Documents were handed to each of the three Councilmembers after they had ended a lively discussion regarding claim checks, about half way through the meeting. Bringing to light the newest lawsuit documents was the last speaker of the last Public Comment period, Nancy Rogers of Cairncross & Hempelmann, representing Oakpointe. Rogers stated that the Majority Councilmembers had brought a lawsuit against Benson, and that Oakpointe was granted intervention in that lawsuit. With that grant they were provided the right to file a 3rd party complaint in order to become a party in the Benson litigation. The complaint was served during the meeting on the three Councilmembers who are behind that litigation. As part of the newest suit, the City Clerk was served with the newest documents the next day.
Together with the complaint, Cairncross & Hempelmann filed a motion for Stay, putting the matter off until 2018, and after the OPMA (Open Public Meeting Act) lawsuit that is currently being litigated. “We aren’t trying to be combative in any way shape or form,” stated Rogers, “but we do need to defend our property rights. That’s what this is about, that’s what happened tonight…Hopefully 2018 will be a nicer year.”
Prior to the newest lawsuit documents handed out and Rogers remarks, a little over an hour into the nearly 3-hour meeting following several other agenda items, the Council took up the controversial resolution – authorizing the funding defense of Councilmember Patricia Pepper in relation to judicial proceedings related to Determination of the Sufficiency of Recall charges. No sooner was the agenda item introduced than Pepper was suspending the rules to make a motion for the resolution to come up for a vote. She also wanted Attorney Jane Koler to come forward and address the item.
Mayor Carol Benson objected to Koler coming forward, pointing out that she was not added to the agenda that had been approved, so she was not authorized to get up and speak if she was not on the agenda. Defiantly, Pepper stated, “Jane Koler is the attorney. I may call on her.” Benson conceded quickly stating Koler had 3 minutes.
Koler came forward stating that there was an approved contract “…so I am entitled to address Council.” Launching into her information, Koler sided with Pepper being paid by the City for her legal defense in the recall as well as addressed Pepper’s right to vote on the resolution that would be advantageous to Pepper.
When told that her time was up, Koler defied the Mayor stating, “I’ll continue to speak. I have been hired by the City Council to provide legal services.” Following a bit of unrest within the chamber, Councilmember Janie Edelman stated, “Yes, yes, she had her three minutes. I want to say that the cited statutes in Mr. Glenn’s memo that we received are silent on the subject of the person being recalled also being the person to break a tie in the question of going forward with paying these legal fees. It’s a huge conflict of interest and against the Council rules. It’s extremely unethical as a minimum.”
After running through several other points regarding statistics from the recent election, Edelman went on to say to Pepper, “Do all of us a favor and resign tonight…if this resolution proceeds, it should be amended to state, that any expenses incurred by the City shall be repaid when Pepper is recalled.” Edelman then laid out several other facts and figures regarding dollars the City had incurred over the past three years due to Save Black Diamond people beginning with Mayor Dave Gordon.
When Edelman was done speaking, Pepper made a motion to let Koler speak as long as she felt was necessary with Morgan seconding the motion. Majority Councilmembers voted to let Koler continue to speak. A couple of minutes later Koler finished with her comments.
“So, I think that the law is clear,” Morgan stated. “Pepper has the right to a defense and the citizens have a responsibility to pay for it.” She went on to state that Pepper only stepped up to serve the citizens the best she could, before blaming the City Administration for not wanting to honor the elected majority properly over the past two years.
Councilmember Tami Deady came forward stating she had a lot of questions for Pepper and was wondering whether Pepper would answer them. Pepper responded, “Well, I’m not sure that that’s appropriate for you to question me during a Council meeting.” A follow-up question from Deady wondered how Deady would get her questions answered before she could vote to which Pepper stated Deady could call her on the phone. When asking how the citizens would know what the questions were, Benson interjected that the Council meeting was an open public meeting and that Deady had the right to ask questions and receive answers. When Deady asked Koler whether she had the right to ask questions, Koler responded by stating she could make comments, but she did not have the right to interrogate Pepper to which Deady had some choice words.
Going on to call out Weber and Morgan, who sit on the “Budget Committee,” that they needed to scrutinize the funds associated with the Pepper resolution as they did with all other City funds, Deady then went into asking questions of Pepper. Refusing to answer the questions put before her, Pepper told Deady that she could make a comment or Pepper simply sat silent. Deady let her know that she needed to know the answers to the questions before she could vote on the resolution.
“This is the public’s money,” said Deady. “They need to have all the questions raised, answered tonight before voting on this. I would hope that Weber and Morgan would put their friendship of Pepper aside and look at this as if a City staff member was presenting this request tonight – and you know as much as I know, … if a City member came up here and said, I want you to vote on this, and we need money, – you would say, “Heck no!”…I need to know exactly how much, I need to know where that money’s going, I need to see a bill from that, I need to see everything. I need to check all these boxes. And I’ve sat up here for two years and you guys have done that. So, I expect that done tonight as well.”
Deady went on to ask Pepper to resign while Edelman let everyone know that there was only a resolution with no contract and/or supporting documents attached. Following a few more minutes of discussion that included Pepper finally giving up her attorney’s name and refusing to recuse herself from the vote, Morgan, Weber and Pepper voted to pass the resolution calling for the City to pay for the defense of Pepper’s recall after Pepper read the entire resolution.
Many of the public comments made at both the beginning of the meeting and at the end called for Pepper to resign rather than spending more of the City’s funds for the Recall effort, which was in full swing despite setbacks. There were even some calls for all three Majority Councilmembers to resign.
Other points included that she had not filed any information with the State’s PDC (Public Disclosure Commission) regarding expenses or any income supporting her Anti-Recall campaign. There was a call for her not to receive any City funds until she disclosed her funds.
Another point was that Pepper should not vote on the defense recall funding resolution because she had a conflict of interest in that she would directly benefit from its passage. One citizen pointed out that Pepper signed a contract with her attorney making Pepper’s contract by, through and under her supervision and therefore she should not be allowed to vote to benefit paying of her legal bills from the taxpayers.
