Shock and awe hit Black Diamond City Council during their Thursday, December 1, City Council meeting as Councilmembers Erika Morgan, Brian Weber and Pat Pepper were served a stack of lawsuit documents during the meeting’s second comment period at the end of the meeting.
CEO of Oakpointe Communities, Brian Ross came forward and began reading from his letter to the Black Diamond Community while a stack of documents were being served to the Council. He went on to state that a lawsuit against Councilmembers Morgan, Pepper and Weber was being filed that included over 135 violations of the Open Public Meeting Act (OPMA). “The illegal behavior of Council Members Morgan, Pepper and Weber represents a dereliction of duty to the citizens of Black Diamond that elected them to their respective offices,” Ross stated,
The consideration for a lawsuit did not come easy, but came only after several months of study, deliberation and consideration. Point after point was documented in the 32-page document (along with 14 supporting exhibits) showing how the three majority Councilmember were conducting business.
Some of the points included:
- Only 17 of the 54 Council meetings that have been held have had their minutes approved.
- Refusal to approve certain claim checks thereby significantly delaying payment to purveyors of the City Services.
- Failure to approve contracts necessary to finish the City’s Comprehensive Plan update rendering the City ineligible to receive grants from the Puget Sound Regional Council because of its noncompliance with Washington State’s Growth Management Act.
- Failure to execute a grant agreement with the Department of Ecology for a $50,000 storm water management grant benefitting the City.
- Failure to approve a contract for building inspection services thereby delaying the reconstruction of the City’s only elementary school.
- Failure to vote on the City’s six-year Transportation Improvement Plan and Capital Improvements Plan.
- Failure to approve renewal of the city’s insurance policy.
Yet another item brought out by the lawsuit documents centered on Interim Attorney Yvonne Ward, who was hired by the City in April 2016. During her short time with the City (until Attorney David Linehan was hired), Ward looked into the legal/illegal issue surrounding the City’s Resolution 16-1069 (Council rule changes). In her Findings and Conclusions document (Exhibit C of the CC Black Diamond Partners LLC lawsuit document), Ward wrote that, after obtaining private emails from the accounts of Pepper, Weber and Morgan, more than likely, indications were that Resolution 16-1069 was “created in violation of the Sunshine laws, with intent of interfering with the government operations of Black Diamond.
“A comparison of the documents from their private email accounts with their City email accounts indicate, on a more likely than not basis, that Council members Pepper, Weber, and Morgan were attempting to hide their actions as council members in the crafting an implementation of R-1069 and other resolutions.
“The evidence indicates a pattern of collusion in decision making by Council members Pepper, Weber, and Morgan outside of the eyes of the public, and a concerted attempt to hide such activities.”
Ward went on to write later in her document that from January 8 to January 12 “… approximately 33 emails were exchanged on private email accounts between Morgan, Weber, and/or Pepper regarding the rule changes and a special meeting to get them adopted…The email evidence is significant that Morgan, Pepper, and Weber were making collective decisions about the rules and other City policy in secret.” This was also brought out in the lawsuit – as well as much, much more.
Following Ross’s comments, community member Bob Edelman stated, “Two years ago I don’t think I would be saying this, Thank You. I want to give thanks to Brian Ross and I want to thank his legal support. You know I would have had trouble with that. As most of you know, I headed up an organization called ‘Toward Responsible Development’ and our purpose was to legally see what we could do to work against – what we thought were the excesses of the developer. We worked hard, I think the developer changed in some respects the development. We ultimately lost in court. There were contracts made with the City of Black Diamond, we have the MPD, and we have the Development Agreements. Now what I think what we have to do is legally make sure that the developer and the City are following those contracts. Illegal actions to try to form your concept of what the development should be can’t stand. And I really do applaud what you’ve done here. I would also urge you [speaking to Ross], I’m probably using the wrong words here, but look into the torturous interference by some of the outsiders with those contracts.”
Prior to Ross’s comments, Mayor Carol Benson mentioned that there was some concern from the City’s insurance carrier that the Interlocal agreement had not been adopted from Association of Washington Cities Risk Management Service Agency (AWC RSMA). In a letter sent out at the beginning of December, RMSA noted “To date, we have not received your city’s resolution adopting the new Interlocal Agreement. We hope this is inadvertent, and it is not your intent to leave the AWC RMSA. We value the City’s membership, and wish to continue offering risk management, loss prevention and training services.”
The City was given a friendly reminder that if there was no adoption of the new Interlocal Agreement by January 1, 2017, which according to Linehan was not negotiable, the City’s insurance would be terminated. Weber responded that he was not in favor of bringing the Agreement back to the meeting at hand, but rather wanted to wait for a week and a half to look at it again. Currently it is in the “Gov Ops Committee.”
Councilmember Janie Edelman responded, “If we don’t pass this resolution we have no insurance for the City. To me that is a dereliction of your duty as elected officials.” However, Weber was steadfast in favor of letting the Gov Ops look at the RMSA document stating that he did not believe it was a dire situation as the Council could still bring the item back. At that point, discussion stopped.
Although the December 1st Council meeting was relatively quiet in comparison to any number of the meetings over the past year, two nights prior (November 29th), the Special Council meeting was very contentious with little work by the Council getting done except for the passage of two ordinances dealing with Property Taxes and another censure of Pepper.
Councilmember Edelman read out the censure with information regarding Pepper stating she would not be attending the regularly scheduled Council meeting on November 17th. Pepper’s reason documented in the censure was, “‘Well, the Budget Committee [Weber and Morgan] isn’t going to be there. Why would I go to a meeting where the Budget Committee isn’t there?’”
Although it was pointed out by Mayor Benson prior to the November 17th Council meeting that the reason was not valid, Pepper did not show up for the meeting ensuring that a quorum was not present in order to conduct City business. Because her absence constituted interference with government operations, Benson found the absence of Pepper “willful and unexcused.”
Edelman finished reading the document, “THE City of Black Diamond hereby and publicly censures Councilmember Pat Pepper for violation of her duty to the Citizens of Black Diamond to obey all laws; for willful interference with government operations; and for violation of the oath of office. You are hereby warned to cease and desist disobeying local, and state law and to adhere to your oath of office.”
When the vote was taken on the censure, Pepper attempted to vote “no” regarding her own censure and was told she could not since it was about her. Benson cast the tie breaker thereby upholding yet another censure of Pepper.
