Four years after a two-year tumultuous period (2016-18) in the history of the City of Black Diamond that pitted Mayor Carol Benson and three Councilmembers – Pat Pepper, Erika Morgan, and Brian Weber – at wits end with each other, a lawsuit regarding lawyer fees not paid to three attorneys – Jane Koler, Dan Glenn, and Anne Bremner continues to work its way through the Washington court system.
The question regarding attorneys and who was to be paid by the City began in March 2014 when the City of Black Diamond contracted with Carol Morris and her law firm for municipal legal services by passing Resolutions No. 14-933 and 14-934. At that time, Mayor Dave Gordon contracted Morris for legal services for the City.
Two years later in April 2016, Councilmembers Pepper, Morgan, and Weber became dissatisfied with the legal advice of the Morris team and passed a resolution terminating Morris’s contract. Then mayor, Carol Benson, stated that the Council had no authority to terminate the contract for legal services and denied the resolution. However, shortly thereafter, Morris chose to resign leaving the question as to who would represent the City on legal matters. This set up a whole kerfuffle between the Mayor and the three Councilmembers as to who had the legal right to appoint the “City Attorney.”
Following various twists and turns beginning in June 2016 throughout the hotly debated process that included the hiring of David Linehan of Kenyon Disend, PLLC, law firm and the three Councilmembers passing motions not recognizing the Mayor’s choice, by January 1, 2017 the Mayor went forward with a series of legal service agreements over the next few months that were not to exceed $15,000 each agreement.
However, on May 17, 2017, Councilmembers Pepper, Morgan, and Weber, brought forward and passed Resolution No. 17-1171 authorizing Jane Koler of Land Use & Property Law, PLLC and Dan Glenn of Glenn & Associates, P.S. to provide interim legal services for the City. At that time, Mayor Benson informed Koler and Glenn that they would not be paid for any legal services they provided and refused to endorse the resolution as the Councilmembers had no authority to contract for legal services.
The following month, on June 17, the Councilmembers came back with a resolution discharging Kenyon Disend as well as executed contracts with Koler and Glenn to provide legal services to the City. A month later, on July 6th, Councilmembers came back “authorizing” litigation to enforce legal services contracts the members had signed. However, Mayor Benson once again rejected their resolution that led the Council to “hire” attorney Anne Bremner to provide legal services to the Council as well as to perform services “related to actions beyond the scope of Mayor Benson’s lawful authority and associated actions or failure to act.” The resolution was rejected.
This led to the filing of a lawsuit in October 2017 by Bremmer to King County Superior Court against Mayor Benson seeking to “compel her to honor the council’s contracts with Koler and Glenn.” With a new council coming in, in January 2018, the contracts with Koler, Glenn, and Bremner that Pepper, Morris and Weber had “authorized” were rejected and Bremner instructed to withdraw the case against Benson, which was voluntarily dismissed with prejudice.
Having not been paid by the City for any of their work, Koler, Glenn and Bremner filed a lawsuit in April 2019 “seeking injunctive and declaratory relief as well as monetary damages for the City’s breach of tier contracts.” The City was granted their motion through the Trial Court for “summary judgement, concluding that Mayor Benson had the power to appoint a city attorney, and the city council had no authority to contract for additional legal services.” Not only did the court dismiss the attorneys’ lawsuit against the City, it also awarded attorney fees to the City. Unhappy with the verdict of the trial court, Koler, Glenn, and Bremner appealed.
For their part, the Appeals Court disagreed with the Trial Court findings and ruled in favor of Koler, Glenn and Bremner. However, according to the City’s attorney, Linehan, the Appeal’s Court sent the case back to the Trial Court for further proceedings as it was decided that the Koler, Glenn, and Bremner’s underlying claims for payment of their unpaid invoices needed to be looked into more. “As the court of Appeals recognized,” wrote Linehan, “the City still has other defenses to the attorney’s claim for payment.”
Linehan went on to write, “The defense on remand will be that Koler, Bremner, [and] Glenn failed to obtain and maintain City of Black Diamond business licenses for the duration of their service, which is an explicit requirement of the municipal code. Their contracts expressly required them to comply with all local laws, and both Koler and Glenn expressly promised in their contracts that they would obtain and maintain valid business licenses throughout the term of their contracts. The City maintains that the attorneys’ failure to obtain a business license is a material breach of their contracts, which negates the City’s duty to pay.”Currently the City is evaluating its options whether to seek review at the State Supreme Court level. A special meeting has been called for Monday, January 10, 2022 to discuss what the next steps will be in the City’s case.
