Unlike past meetings in 2016, Black Diamond Councilmembers held their peace and did not try over talking each other in the beginning moments of the Thursday, January 5, City Council meeting. However, that peace began breaking down about 17 minutes into the meeting while working on the first two items of the Consent Agenda that took nearly an hour to get through.
At that time, Councilmember Erika Morgan brought forward the Talmadge attorney bill. Arguing that the Talmadge bill had not been settled from 2016, Morgan insisted that the “Council” had hired Talmadge and needed to pay his bill. It was brought out once again that Councilmember Pat Pepper, on her own, hired Attorney Phil Talmadge to do some work for the “Council.” Morgan stated that she had copies of the bills even though they never appeared on the City’s voucher list. According to Morgan, who held copies of the bills, the three bills amounted to $18,036 without any penalties.
Councilmember Janie Edelman followed up by stating that the contract that was signed by Talmadge/Fitzpatrick was signed by Councilmember Pepper before it came to Council. Edelman also pointed out that the contract, which she had not seen until the night of the meeting it showed up in 2016, had been placed with other City documents on a table where Agenda Bills are placed prior to the meetings for the public to take.
Continuing with her comments, Edelman also pointed out that Talmadge was hired by the “Majority” Councilmembers in the firing of Black Diamond City Attorney Carol Morris at the beginning of 2016. She conjectured that Pepper received a bunch of Talmadge bills that she did not pay as she (Pepper) figured the City would pay.
It was noted that the City received an email without any invoice from Talmadge/Fitzpatrick, and the Mayor decided not to pay the bill, after which Talmadge/Fitzpatrick filed a lawsuit in mid-September. However, Edelman and Councilmember Tami Deady came up with 25 pages of emails and other associated pieces of evidence from the beginning of 2016 in order to file a grievance with King County Bar Association for conflicts of interest with Talmadge/Fitzpatrick. Shortly after the filing, Talmadge/Fitzpatrick had the suit dismissed.
Meanwhile, “The grievance is still in review,” said Edelman. “It’s now at the disciplinary board with an attorney in Spokane.” She continued to point out that Talmadge was Pepper’s problem as the City did not contract with him – to that point – there is no Mayor’s signature on the contract.
Unrelenting, Morgan came back with a short statement, before asking for a motion to pay the Talmadge bill, to which, Pepper seconded. Mayor Carol Benson stated that the bill was to benefit Pepper and not the City, so it was Pepper’s responsibility to pay it. She stated that there were copies of the bill sent to the City, but that the City did not receive a bill. After some squaring off between Councilmembers Morgan stated, “This is another one of these things, another one of these many things – evidently, we can’t agree, but we also can’t be the judge, so I guess this has to go to be adjudicated by a judge.”
According to City Attorney David Linehan, a lawsuit was filed and it was voluntarily dismissed after the City filed its answer. “There is no bill,” said Benson, to the Council.
“That’s not what he [Talmadge] says,” said Morgan, who insisted that she wanted the paper work available to her regarding the lawsuit and dismissal.
Pepper insisted that the Talmadge bill be paid by the City and was looking for a vote, however Edelman suggested before the vote was taken that Pepper and Morgan had a conflict of interest, therefore they could not vote on the billing matter. Even though Pepper and Morgan voted in favor of the Talamadge bills being paid by the City, the vote failed due to their inability to vote on the matter because of conflict of interest.
Moving on to comments regarding other vouchers, Councilmember Brian Weber stated: “I admit with the schedule that I have, I have to rely on Councilmember Morgan. She’s got more flexibility in her time usually to go in and look at the vouchers and the paperwork more so than I do, and that’s why we meet.” When asked by Deady if he was off during the Christmas holidays, Weber replied (despite Pepper quietly telling him not to answer), “I was off last week, but that’s not guaranteed that ever single moment of my day is doing City business.” Deady replied that if Weber made it a priority to go into the City to review the vouchers on at least one of the days for at least an hour, it would help.
Yet another hour-long debate came with discussion regarding the 2012 Stormwater Manual. While introducing the item, Benson told Councilmembers that local resident, Cindy Wheeler, had contacted the Department of Ecology about some wording in the Manual. The question at hand was whether the language in the manual should include automatic adoptions to it. In an email sent back to Wheeler, Department of Ecology staff stated that “The Phase II permit requires that local codes be updated and effective no later than December 31, 2016, which means that the City of Black Diamond needs to have adopted the 2012 Stormwater Management Manual for Western Washington as amended in 2014 so that new and redevelopment projects that come in for permits beginning Dec 31 will be required to follow it. The Phase II permit DOES NOT require that the City include language in code that automatically adopts any/all subsequent amendments to the Manual.
“Based on my experience administering the municipal stormwater permits over the last 9 years, I have found instances where this automatic adoption of amendments was in code and created problems for the implementing jurisdiction. In fact, the Department of Ecology itself no longer uses such automatic “subsequent amendment” language in NPDES permits because of a legal conclusion reached by the Pollution Control Hearings Board in 2007. Municipal stormwater permits are updated every 5 years and it is likely that each future permit will specify a date by which a new version of the stormwater manual must be adopted and used.”
The Mayor warned that there could be penalties up to $10,000 a day for not adopting the Manual before December 31st. Other information relayed to the Council through the City’s MDRT & Economic Development Director, Andy Williamson, included the history of the Stormwater Manual as it was brought before the Council during 2016. The Manual was brought before the Council October 6th and voted down. Then once again in its legal form approved by City Attorney Linehan, it was brought before the Council on December 15 and voted down again. An amended version was passed by Majority Council (Morgan, Weber, Pepper), but was ultimately vetoed by the Mayor. Although the December 31st date has passed, the legal document was brought before the Council for action during the January 5th meeting.
According to Williamson, the City was currently out of compliance with the Department of Ecology of its MPDS. He stated that there was a whole list of penalties that could be levied at the City including a Clean Water Act penalty of up to $37,500 per violation/day including attorney’s fees.
Additionally, Williamson stated, “Any new development that comes and puts an application in at Community Development at the door and we deem them complete, will vest under the 2005 [Stormwater] Manual…and will be built to those standards.” He went on to state, “But for the record, the Public Works Department of the City of Black Diamond has delivered to you a legally adopted Ordinance for your review three times and it has been voted down. So for the record the Black Diamond Public Works Department now puts responsibility of this and all the legal repercussions that come with it on the Black Diamond City Council.”
Deady reminded Councilmembers that fines and any other penalties that come against the City are actually taxpayers money being thrown away that could be put to better use. Edelman, endorsing the 2014 Manual, stated that the developers needed to be held accountable to the latest stormwater manuals.
However, Pepper stated that she wanted the Manual to go to the “Growth Management Committee” as “we do not have an attorney.” She went on to state that there were legal questions that have not been answered and that she felt that the City was not getting proper legal advice, therefore she would not vote for the Stormwater Manual ordinance. She also went on to say, “If the Mayor would stop obstructing the Council from obtaining legal services, we could move forward.”
Following a short discussion about attorneys, Linehan attempted to bring the conversation around once again regarding adopting the ordinance and how the Department of Ecology validated the reason for vetoing the amended ordinance. However, conversation turned back to the “need” for an attorney. Weber wanted to know why an RFP (Request for Proposal) had not gone out for an attorney. Mayor Benson responded that the City has an attorney, then, once again listed a number of reasons for keeping the current City attorney.
When confronted by Deady as to where the Majority was getting their legal advice, Pepper stated it was a problem as in her opinion the City did not have legal advice. At one point of the back and forth arguing, Mayor Benson stated, “We need this Stormwater Manual” – which was quickly followed up by Morgan stating, “We need a lawyer.”
When a member of the crowd quickly questioned whether the City was being held hostage with the Manual in order to get another lawyer, Morgan nodded and agreed while stating, “That’s what we have to do.” Another member of the crowd became so enraged at the discussion that she leveled criticism at the three majority Councilmembers before stomping out of the meeting.
“It doesn’t make any sense to me that you have to stick to your guns when you know it’s better for the City to have a stormwater manual than to have to refer back to the 2005 one,” stated Benson, “That is huge mistake moving forward and not being able to use the new Stormwater manual. That’s a huge mistake. And it can be very, very costly. And you’re right Ms. Bryant. Nobody has come to us yet with fees, but they’re threatening us and if we turn this down, who knows if tomorrow they don’t come here and say, ‘You didn’t vote for it. You violated the law. We’re going to get those fees.’ You don’t know that. And that will be on you three if you vote this down today.”
Edelman offered a compromise to go ahead and pass the Manual then comeback with amendments at a later time. “This is going to be for the betterment of our environment that you guys care so much about. So, you’re going to hold the environment hostage, you’re going to hold the City hostage. You’re going to let the developers and whoever else is building out here follow a stormwater manual that’s 12 years old? Where is the common sense?”
As Councilmembers contemplated their next move, Morgan stated, “I actually can see some merit in the amendment, in the discussion, in the suggestion. I hate to think that we’re giving up, and that we won’t ever see, if we don’t make this go to the State and for them to come down on us, and the City of Black Diamond because we are also have to have by the State statute, legal representation that we agree on, and it’s a conflict of interest for the attorney who’s here since we can’t agree on him for us to have that law firm here.”
“So, what are you saying,” said Pepper.
“So, I don’t know, I guess compromise is bargaining and I’m thinking there might be opportunity here for a bargain,” said Morgan. “If the qualifications for a new attorney can go out?”
“Now wait a minute,” said Edelman. “That’s a separate issue entirely.”
Upon that comment, Pepper called for a 5-minute recess that was not supported by Edelman or Deady. Following the recess, Pepper decided to keep her amendment that the Stormwater Manual should go into “Growth Management Committee,” and in a quick reversal, Morgan decided to keep her second to the motion rather than withdraw it. At that point, Deady let everyone know that Bryant and Morgan were standing near her and decided to stick with their original document – the amended Stormwater Manual.
“Have you no shame,” asked Edelman. “Before the recess, it sounded like maybe you were going to be a little bit rational and do the right thing. “This is just total insanity… You guys aren’t doing the job that you were elected to do.”
When the vote was taken a little over a half hour on the item, Morgan, Weber and Pepper voted to send the manual to their “Growth Management Committee.”
In the last approximately hour and a half left of the meeting, the only business items left to be addressed were sent to the Majority Councilmember’s committees. It was also interesting to note that in the 3 hour 39 minute and 32 second meeting only one Agenda Bill was taken care of and that was the re-election of the
