A Washington appeals court ruling has once again put the city of Black Diamond — and more specifically, Mayor Carol Benson and City Attorney David Linehan — back into the spotlight.
The ruling, made by Judge Beth Andrus of the Division I Court of Appeals on Dec. 27, 2021, overturns a December 2020 trial court decision that was originally a victory for Benson and the city.
The overall fight between an older city council and the current mayor was about which branch of the city government has contracting authority for professional services — in this case, who could hire (and fire) city attornies.
In short, the new ruling found Benson “lacked the legal authority” to hire Linehan as city attorney in 2016 as well as deny the then-city council their own legal representation; this is a vindication for former council members Pat Pepper, Erika Morgan, and Brian Weber, who during their time in office believed the council — not the mayor — had the power to contract with profession services for the city, including a city attorney.
And even more damningly, plaintiffs in the case allege the ruling further implies Benson may have been unjustly enriched by hiring Linehan, which could be grounds for a lawsuit suing the mayor to personally reimburse the city the cost of Linehan’s legal services over the last couple years.
The court also ordered the city to pay for the plaintiffs’ attorney fees and legal costs.
A (CONDENSED) HISTORY OF THE RULING
Judge Andrus’ recent ruling is just the latest in a long line of various legal battles the city of Black Diamond has been mired in for over five years, and involves a large cast of characters.
The legal saga began April 2016, when the majority of the city council — newly-elected Council members Pepper and Weber and long-time Council member Morgan — found themselves dissatisfied with Black Diamond’s then-City Attorney Carol Morris, alleging Morris was only representing Mayor Benson and not the will of the city council. The council ultimately fired Morris, despite the fact Benson claimed they could not do so.
(Morris agreed with the mayor, but did not seek legal action against the council.)
Over the next two years, these three council members, as the council majority, attempted numerous times to hire legal council for the city. At first, they voted to hired Talmadge, Fitzpatrick and Tribe to represent the council in a limited scope, namely to review a set of new council rules and procedures and to examine Morris’ termination.
Later, they attempted to hire Vancil Law Services to represent the city as its official attorney.
Both times, Benson made it clear no city money would be used to pay either firm. In a recent interview, Phil Talmadge said his firm was not paid the roughly $18,000 billed to the city, adding that he plans to “dust off” an old lawsuit in the near future; it doesn’t appear Vancil ever performed any work for the city council.
While denying the council legal representation, Benson hired various lawyers without council approval. She first hired Yvonne Ward as an interim city attorney, who stayed in that position for just a few months until Benson hired Linehan, again as an interim attorney until the council approved a full contract.
But Pepper, Weber, and Morgan refused to approve any such agreement with Linehan and his firm, Kenyon Disend. They voted numerous times to discharge Linehan from his position, and at one point passed a motion stating that Linehan “is not recognized as the city attorney.”
Linehan stayed on, however, because Benson signed multiple short-term contracts with the attorney; the Black Diamond Municipal Code allows the mayor to approve contracts without council input so long as contracts are for $15,000 or less and that the money was already available as a budget line item. It’s unclear how many $15,000 contracts were approved by Benson, but it appears Linehan was retained on those contracts for roughly a year and a half, until a new city council (after Weber and Morgan declined to run for office in 2017) signed an official contract in January 2018.
Fed up with being unable to fire Linehan, Pepper, Weber, and Morgan once again voted to hire their own legal council — Jane Koler and Dan Glenn — to represent the city in conjunction with Linehan, rather than replace him. Like before, Benson informed the attorneys they would not be paid by the city for any services rendered, again stating the council had no contracting authority.
Unlike Vancil Law Services, Koler and Glenn were not dissuaded by Benson’s refusal to pay them and started attending council meetings, finally setting the stage for a legal battle around which branch of the city government has the ability to contract with (and dismiss) professional services like legal council.
In July 2017, the council majority voted to start the litigation process to enforce its contracts with Koler and Glenn, and a month later, hired attorney Anne Bremner to represent the council in a potential court case.
The council majority filed a lawsuit against the city of Black Diamond and Benson in October 2017. The lawsuit asked, in part, for a judge to find that the council, under the Revised Code of Washington, has contracting authority; issue a mandatory injunction or “writ of mandamus” forcing Benson to recognize contracts approved by the council; and rule that Benson was “unjustly enriched” by the legal services being provided by Linehan.
The lawsuit didn’t go far — the November 2017 election saw Weber and Morgan replaced by two new council members, and in January 2018, the new city council voted to both repudiate the Koler, Glenn, and Bremner contracts and instruct Bremner to withdraw the lawsuit.
According to court documents, the lawsuit was dismissed with prejudice, meaning it can’t be refiled by Bremner.
The city council may have thought they saw the end of Koler, Glenn, and Bremner — but the trio returned in the form of a April 2019 lawsuit suing Black Diamond to force the city to pay them for services rendered.
The King County Superior Court ruled on the lawsuit October 2020, with Judge Andrea Darvas awarding summary judgement — meaning she came to a decision without the case going to trial — to Black Diamond, effectively siding with Benson’s position that the council had no contracting authority to retain or dismiss city attornies.
Koler, Glenn, and Bremner appealed, resulting in Judge Andrus reversing the summary judgement in their favor.
It’s interesting to note that while Andrus was a King County Superior Court judge, she approved a recall effort filed against Council member Pepper in 2017; the recall effort alleged Pepper (with Weber and Morgan) violated the Open Public Meetings Act while they were on the Black Diamond council. The three council members were found to have violated the OPMA in 2018, and Pepper was successfully recalled a month later.
RULING RESULTS AND IMPLICATIONS
Beyond Andrus reversing the trial court’s decision to award Black Diamond attorney and legal fees, the meat of her opinion may spell trouble for Benson and Linehan down the road.
In short, Andrus found Benson “did not have the authority” to unilaterally appoint Linehan as the city attorney. The judge noted that while the RCW give municipal executives the power to hire and fire people in “appointive positions,” the Black Diamond city council “ha[d] not passed an ordinance making the city attorney an appointive officer,” unlike the city administrator and the police chief positions.
(The council officially made the city attorney position an appointive position in 2019, according to city code.)
In contrast, the RCW “expressly grants… a city’s ‘legislative body’ the power to ‘contract and be contracted with’” professional services, Andrus continues, meaning Pepper, Weber, and Morgan had the authority to contract with Talmadge, Fitzpatrick and Tribe, Vancil Law Services, and Koler, Glenn, and Bremner.
Furthermore, Andrus made clear that “the mayor lacked the legal authority to reject the council’s resolutions discharging Kenyon Disend (Linehan) and approving the contracts with Koler and Glenn,” as Benson’s limited contracting authority (the $15,000 limit) “is derivative of and subordinate to the council’s primary authority…”.
That said, even though multiple $15,000 contracts were approved after Linehan’s dismissal, the Black Diamond council in 2018 voted to ratify all of Benson’s contracts with Linehan from the previous two years, said Hillary Evans of Kenyon Disend. This likely puts the idea of any sort of reimbursement or restitution from the firm to the city to bed.
“UNJUST ENRICHMENT”
In an interview after the opinion was filed, Koler said Andrus’ most damning implication in her opinion is that Benson may have been unjustly enriched by continuing to contract with Linehan after he was fired by the council majority.
This claim harkens back to the city council’s 2017 lawsuit against Black Diamond, where the council (being represented by Bremner) asked the court to force Benson to recognize the council’s contracts as legal; it was in this suit that the council alleged Benson was “unjustly enriched.”
“Since Linehan and his firm provide legal services solely to Mayor Benson and frequently attempt to legitimize illegal decisions by Mayor Benson, Mayor Benson has and continues to benefit from using the city’s funds to contract Linehan and his firm in pursuit of her subjective and unauthorized goals,” the lawsuit reads. “In obtaining this benefit, the mayor was unjustly enriched or converted city funds for her own personal use.”
The council alleged the city had spent excess of $200,000 in retaining Linehan at that time through the serial $15,000 contracts, and asked the court to force Benson to reimburse the city.
The lawsuit, as mentioned, was dismissed with prejudice on the instructions of the 2018 city council, but that didn’t stop Andrus from commenting on it.
“The lawsuit Bremner was hired to initiate was not dismissed on its merits but was withdrawn,” the judge wrote. “Had the matter proceeded to a decision on the merits, the city council would have prevailed.”
“It’s a fascinating position for the court of appeals to take,” Koler said. “To say that we would have prevailed on the claim that Mayor Benson was unjustly enriched, using city money to pay for an unauthorized attorney, and that she needs to make restitutions to the city — that’s a pretty darn big claim.”
Unsurprisingly, Linehan and the city disagree with the judge’s characterization of the 2017 lawsuit and Koler’s interpretation of the judge’s opinion.
“It is highly unusual for a court of appeals to attempt to predict the outcome of a four-year-old case that did not proceed past the initial pleadings, with no discovery, no motions, and no trial,” he said in an email interview. “But in any event, we interpret the statements in the appellate opinion regarding the prior lawsuit as being limited solely to the probable outcome on the issue of whether the Koler/Bremner/Glenn contracts were valid… Any suggestion that the court of appeals ‘agrees’ with Ms. Koler that Mayor Benson was personally ‘enriched’ by prior legal services is taking extreme and unwarranted liberties with the decision.”
The Courier-Herald reached out to Andrus, asking her to clarify if she specifically meant Benson would have been found to have been unjustly enriched had the suit gone to court; the judge did not respond.
FURTHER ACTIONS
With the weight of this ruling on their side, Koler said in a recent interview that she, Glenn, and Bremner will now ask the court to order Black Diamond to pay them for services rendered during their time (if the city doesn’t voluntarily do so).
According to the 2019 complaint, Glenn billed the city nearly $14,000; Koler, over $31,000 (though she walked back how much the city actually owed her in a later interview, estimating her bill was closer to around $15,000); and Bremner, close to $46,000.
“Oh, we definitely plan to get paid,” Koler said. “Absolutely.”
Bremner also said, in a phone interview, that the plan is to ask the court to order Black Diamond to pay her and her colleagues.
It might not be as easy as that, however.
“As for whether the city will have to pay their attorney fees, it is premature to say. The court of appeals decision remanded the case to the trial court for further proceedings; the opinion did not decide that Koler/Bremner/Glenn must prevail on their underlying claims for payment of their unpaid invoices,” Linehan said, adding that the city contends Koler and Glenn breached their contracts with Black Diamond, “which negates the city’s duty to pay. The trial court will have to adjudicate this issue before determining who prevails on Koler/Bremner/Glenn’s claims and whether any party is entitled to recover attorney fees in this case.”
Linehan added that the decision to appeal to the state Supreme Court rests with Benson, but she “will not make such an important decision without close consultation with the city council.”
