Black Diamond in limbo over city attorney services

The above video is a copy of the security footage of the hallway in the Black Diamond Police Department, where the city council routinely meets for council meetings. The time stamp for the video is exactly four hours off, although the date, March 17, is correct. Continue reading for more information.

“This is like a Saturday Night Live skit.”

Councilwoman Janie Edelman made her feelings clear at the beginning of the three and a half hour long council meeting on April 21 – the Black Diamond City Council is looking less like a body of elected officials and more like a late night comedy show.

During the meeting, residents heckled council members as discussion devolved into argument, and at several times during the night the room broke out into laughter over serious statements made by various council members.

And while some people found the scene funny, much of the content wasn’t.

One of the central issues the city now faces is the loss of its city attorney, Carol Morris.

While Morris maintains she was fired illegally by the City Council during the April 7 meeting, she is no longer performing any work for the city as an attorney, she said in a phone interview April 22.

In response to this contested termination, the council hired the firm Talmadge, Fitzpatrick and Tribe to temporarily represent the city council for a small number of issues. The council has started its search for long-term legal representation.

The council also censured Councilwoman Erika Morgan after Edelman alleged Morgan repeatedly gave false information during City Council meetings and false information in a public disclosure request.

Finally, the council debated over the loss of $25,000 from a $50,000 Department of Ecology stormwater capacity grant. The grant has been discussed in several standing committees and has yet to be accepted by the council. Some council members and city staff asked at the April 21 meeting if losing some of the grant money was tied to the city not accepting the grant sooner, although their questions remained unanswered.

City attorney in limbo

On April 7, the City Council passed Resolution 16-1089 to fire Morris.

The mayor refused to sign the resolution, saying the council did not have the legal authority to fire Morris, citing Revised Code of Washington 35A.12.090.

The code states, “The mayor shall have the power of appointment and removal of all appointive officers and employees subject to any applicable law, rule, or regulation relating to civil service.”

While the council continued to discuss the legality of this resolution, Benson and Morris decided to sign another contract that would allow Morris to continue to work as the city attorney, they both said in phone interviews April 22.

Black Diamond Municipal Code section 2.90.101 states the mayor can approve a contract for $15,000 or less if there is money to cover the cost of services and the services are specifically included as a line item in the city’s budget.

Any contract that would cost $15,000 or more would require the council to vote to authorize the mayor to sign the contract.

This contract was signed by Benson and Morris April 18.

However, Morris said she terminated this contract April 21 after receiving a letter from Talmadge, Fitzpatrick and Tribe, the firm that was recently hired by the Black Diamond City Council.

The letter that was sent to Morris, which was dated April 13 but received by Morris at a later date, stated Morris had a conflict of interest with the her termination by the council, and that this conflict of interest went against the Rules of Professional Conduct for lawyers.

Morris said she did no work before she terminated the new contract with the city.

Benson said she is starting the process for hiring an interim city attorney.

Hiring a council attorney

The resolution to hire Talmadge, Fitzpatrick and Tribe was placed on the April 21 meeting agenda by Pepper and Morgan. Council members Edelman, Tamie Deady and Brian Weber all said they had not seen the resolution, with the attached contract, until that night.

The council suspended its rules regarding sending all resolutions to a standing committee before a council vote to approve Resolution 16-1091 and hire Talmadge, Fitzpatrick and Tribe. Council members Pepper, Morgan and Weber approved the resolution, and Edelman and Deady opposed it.

“This is urgent and a legal concern that is preventing the council and the city from moving forward,” Pepper said at the April 21 meeting.

According to the council-approved contract, Talmadge, Fitzpatrick and Tribe is being hired to represent the council in issues relating to the new council rules and procedures, which were approved by the council Jan. 21, 2016, and the termination of Morris.

Benson said in the April 22 interview that she plans to sign the resolution to hire Talmadge, Fitzpatrick and Tribe, but she does not plan to use city funds to pay the firm.

This leaves the question of who will be paying for the firm’s services up in the air.

During the April 21 meeting and in interviews afterward, Pepper said she expects the city to pay for the council’s attorney.

Benson disagreed and said the council is not authorized to make the city pay the bills.

The legal contract approved by the council stated third parties can pay for Talmadge, Fitzpatrick and Tribe.

The contract approved by the council outlines the firm’s hourly fee ($400 per hour for Phil Talmadge and Thomas Fitzpatrick and $350 for Sidney Tribe). Morris’ legal services contract was for $200 per hour.

Before the council hired the firm, Talmadge, Fitzpatrick and Tribe was hired by Pepper and Morgan before the April 21 meeting in order to send Morris the letters.

Censured

After the council was through with business, Edelman made a motion to censure Morgan.

According to Robert’s Rules of Order, censuring is a warning given to a public officer that their behavior is unacceptable by a presiding body and if the behavior continues, the officer could be suspended or expelled from office. Elected council members can only be removed through the recall process, not the council.

Edelman alleges Morgan, during the executive session on March 17, left the executive session to speak with Kristen Bryant, a member of the public.

Edelman alleges Morgan and Bryant spoke for around two minutes before Morgan returned to the executive session.

Another member of the public physically stopped Morgan from re-entering the Council Chambers and asked what Morgan and Bryant talked about.

Morgan replied, “I have the right to talk with my lawyer,” and proceeded into the council chambers. This was witnessed by members of the public and city employees as well as a reporter for the Courier-Herald.

A public disclosure request was made by Robbin Taylor, a Black Diamond resident, about the conversation.

Morgan’s email reply was, “I went to the toilet, we may have said hello but that is all.”

Morgan was again asked about the conversation at the April 7 meeting, where she said, “I still stand by my statements before. I can’t help it if you don’t believe me.”

Benson then said at the April 7 meeting that security footage of the area where Morgan and Bryant allegedly talked revealed that Morgan and Bryant did have a conversation, and Morgan did not use the restroom.

A public disclosure request was made by the Courier-Herald for the security footage, which was also shown at the April 21 meeting. The tape shows Morgan and Bryant speaking with each other for approximately two minutes.

There is no audio for the security footage.

“The City Council… does censure council member Erika Morgan for giving false information in response to a request for disclosure of public records, refusing to admit during the April 7 council meeting that the information in her response was false, and refusing to disclose the information discussed with Ms. Bryant,” Edelman read from her motion.

In an April 22 phone interview, Morgan continued to deny providing false information in her reply to the public disclosure request and denied giving Bryant confidential information.

“I looked at that tape – I couldn’t see that there was a conversation. I can’t remember exactly what was said. I left the meeting in disgust at the OPMA (Open Public Meeting Act) violations that were occurring in that executive session. That’s why I walked out,” Morgan said. “And probably I was just – you see in the tape I’m walking up and down, walking up and down – and what I was saying was probably something like, ‘I can’t believe it, I can’t believe it’… She may have heard me say ‘I can’t believe it’… and she may have responded in some sort of way, but it was a tense enough moment and long enough ago that that is sort of the limit of what I can remember.”

Morgan also clarified her public disclosure request reply as well, saying that she was confusing the break from the executive session with another break when she went to the restroom with Bryant.

Morgan was censured with a 3-2 vote. According to Robert’s Rules, the official being censured cannot vote on the censure motion, so Benson sided with Edelman and Deady (against Weber and Pepper) to break the tie.

In her motion, Edelman also said Morgan may have violated state law by talking with Bryant during an executive session.

Edelman cited RCW 42.23.070(4), which states, “no municipal officer may disclose confidential information gained by reason of the officer’s position, nor may the officer otherwise use such information for his or her personal gain or behalf.”

It is unknown whether confidential information was discussed between Morgan and Bryant, and the security footage does not show Morgan sharing any of the documents she had brought with her out of the executive session with Bryant.

Lost $25,000?

Public Works director Seth Boettcher informed the council a $50,000 Department of Ecology grant that has been discussed in standing committees since February has now been reduced to $25,000.