Linehan Memo by Ray Still on Scribd

The last couple of Black Diamond City Council meetings resembled a game of Chutes and Ladders – as soon as it seemed progress was being made during the June 22 meeting, the council slid back to square one on July 7.

The meeting was colored by many of the same issues that have characterized the council since January; a debate over the night’s agenda, heated disagreements over council rules and an inability to take action on city business.

After 3 1/2 hours, the council voted to postpone final action on many agenda items, including a claims voucher to be paid to former interim city attorney Yvonne Ward, the six-year transportation improvement plan and an agreement with DKS Associates to finish the city’s transportation portion of its Comprehensive Plan.

The council also passed several resolutions, which include hiring Vancil Law Offices as an interim city attorney, revising the council’s rules and procedures outlined in Resolution 10-69 (passed in January of this year), re-establishing the standing council committees also outlined in Resolution 10-69, reconsidering the censures voted on by the council for missed meetings and adopting new a new labor and policy review process.

A grant from the state Department of Ecology for $25,000 was not approved by the council. The grant has been a hot discussion topic since February.

Finally, a resolution for mediation between the council and the mayor was withdrawn.

David Linehan, who was hired by Mayor Carol Benson to work as an interim city attorney until the council approved a long-term contract, was allowed by the council to release a memo he wrote concerning many of the topics discussed.

Stalled business: Bills, comp plan and Ecology grant

Postponing Ward’s voucher is not the first time the Black Diamond City Council has stalled on paying bills this year.

The voucher was pulled from the consent agenda by Councilwoman Pat Pepper after some debate.

Council members Brian Weber and Erika Morgan agreed with Pepper that the voucher should be postponed.

“I definitely question some of the advice, and whether we got our money’s worth from the attorney,” Weber said. “I would also like to see a copy of the bill.”

Morgan added that she would also like to examine the bill more closely.

“I would like to look at it very closely to understand that she is billing for actual work for the city, and that there isn’t political work in there, like we had before when our attorney that we had before was writing letters for the newspaper,” Morgan said. “I could see it in her bills.”

Benson said all council members had a chance to see the bill when Financial Director May Miller sent an email to the council 10 days prior, stating the vouchers were ready for review. According to Benson, only council members Janie Edelman and Tamie Deady replied.

Benson also said Morgan’s comment about former city attorney Carol Morris writing letters to the newspaper was “a bald-faced lie.”

Edelman said not paying the bill because council majority didn’t agree with Ward’s legal advice was “unconscionable.” Benson agreed, saying that it was also dangerous for the city to not pay this bill.

“She’s an attorney that sues people,” said Benson. “She’s a litigator. That’s what she does.”

“And she has a reputation for being a barracuda,” Edelman added.

Ward had little to say about her bill being postponed by the city.

“When black men are being shot by police, and police are being killed by snipers in Dallas, what a few council members do is irrelevant to me at this point,” Ward said in a later interview. “There are bigger issues facing our society and I’ve got bigger things on my mind.”

The July 7 shooting of 10 police officers during a protest in Dallas, Texas, occurred while the council was in session.

The postponing of bills also relates to the city’s issues surrounding its Comprehensive Plan.

In March, Weber pulled a $10,000 voucher to be paid to DKS Associates for their work on the city’s Comprehensive Plan.

The mayor used her executive authority to pay the bill, but because it never received council approval, the city had to request a refund from the company.

Community Development Director Barbara Kincaid has told the council at two meetings that asking for this refund puts the city in an awkward spot, since the city still requires DKS Associates to finish the transportation portion of the Comprehensive Plan.

“Their attorney will probably be contacting our attorney, because the question is, why are we not paying them for services that they performed that the city accepted?” Kincaid said at the meeting.

Kincaid presented an email she sent to the entire council June 20 asking for direction on the Comprehensive Plan after the agreement with DKS was voted down at the June 16 meeting.

The email explains the city is not compliant with the Growth Management Act because it is late in adopting its Comprehensive Plan and not finishing the plan soon may mean the city will lose grant opportunities.

Additionally, if the city won’t work with DKS or if DKS decides not to work with the city, the transportation portion of the Comp Plan will need to go back to the drawing board with a new company. This could cost the city around $60,000, money the city doesn’t have in its Comp Plan budget, Kincaid wrote.

“In light of what has occurred, I am wondering if there is a lack of political support to do the comp plan,” the email reads. “Please let me know how I should proceed.”

Weber, Morgan and Pepper did not respond to Kincaid’s email asking for direction according to Deady.

While Ward’s voucher and the Comprehensive Plan involve spending money, the state Department of Ecology grant for $25,000 is about receiving it.

Weber moved to postpone accepting the grant until an ordinance revising the city code to adopt the 2012 Stormwater Management Manual for western Washington is passed.

According to Public Works Director Seth Boettcher, the grant money needs to be approved first so he can go through the city’s code and incorporate the 2012 Stormwater Management Manual.

“You have to give me the money and the ability to do my job,” he said. “You’re trying to tie all of my future actions to this purse string. I just don’t get it.”

The council attempted to postpone accepting the grant, but Pepper accidentally voted to not postpone action.

After saying she mistakenly voted, the council recessed so the City Clerk Brenda Martinez could research how a council member can change their vote.

According to Martinez, a council member can only change their vote after the results are announced if the council unanimously approves it. The council did not attempt this, as it seemed the result was a foregone conclusion.

Instead, Deady moved to accept the bill, but the motion was denied by Weber, Morgan and Pepper.

Moving forward: City attorney, rules, committees and labor review

Although a majority of the council passed resolutions regarding hiring Vancil, revising the rules and recreating standing committees, Benson stated clearly that she will not sign any of these resolutions.

A motion to hire Vancil was introduced at the June 22 meeting, but was voted down by Edelman, Deady and Morgan. Morgan said she didn’t approve of the contract because Vancil’s office is on Bainbridge Island, and she thought they could find an attorney closer to home.

The previous Vancil contract, as pointed out by Edelman during the June 22 meeting, required the city to pay Vancil for travel – up to $500 if an attorney came from the island to Black Diamond, she said.

The contract before the council at the July 7 meeting did not include travel payment.

Edelman continued to argue that because Vancil has no municipal law experience, the firm will end up costing the city more in research costs than if the city hired Linehan, who works for Kenyon Disend.

Weber argued that Kenyon Disend is not a good fit for the city because the city has previously employed the firm, and that a new firm that was fresh and new to Black Diamond would serve the city better.

Weber, Pepper and Morgan approved the Vancil contract. Benson maintained she will deny the resolution because the council does not have the authority to hire an attorney, a point that has been argued since the council terminated the contract of former city attorney Morris in April.

Weber, Pepper and Morgan also approved revisions to Resolution 10-69, which set new council rules and procedures when it was passed by the same majority in January.

Benson called to dissolve those rules after former interim city attorney Ward wrote in a June 2 memo that the rules were created through violations of the Open Public Meetings Act and were also illegal under state and local law.

Some of the revisions in the resolution were suggestions made by Phil Talmadge, an attorney hired by the council to examine its authority to hire and fire attorneys and the council’s authority to set its own rules.

Many of Talmadge’s suggestions were echoed by Morris and Ward, who wrote separate and independent memos about the legality of Resolution 10-69.

Edelman pointed out that while some of the revisions the three attorneys suggested are included in the resolution, not all of the suggestions were addressed.

Morgan said the council accepting these revisions doesn’t supersede the work study the council plans to hold about council rules on July 14.

After these revisions were passed, Benson said the council will still abide by the council rules passed in 2015, not the ones set in Resolution 10-69.

Membership of the standing committee structure under Resolution 10-69 was also revised by Morgan, Weber and Pepper.

The resolution cut the finance committee to two members, Weber and Morgan; kept the growth management and land use committee to three members, Weber, Pepper and Edelman; and kept the government operations committee at three members, Morgan, Pepper and Deady.

Having three council members on the committee is what first sparked arguments in January that the committee structure was illegal.

Benson dissolved the standing committees when Ward said that along with Resolution 10-16, the committee structure itself was illegal for a variety of reasons independent from the resolution that birthed them.

Benson reiterated at the council meeting that she will not recognize the standing committees and will not provide city funds, space or staff for the committees.

Deady and Edelman said they will not attend the committee meetings if there is to be a quorum of council members, since they maintain having a quorum at these meetings is illegal.

Reconsidering censures

The council also passed a resolution that reconsidered Morgan’s, Weber’s and Pepper’s censures for their absences at the May 19 and May 25 meetings, under the authority that only the council can determine whether a council member’s absence is excused.

“The Mayor has improperly asserted her authority to determine whether a Councilmember’s absence is excused,” the resolution reads.

Section 1 of the resolution stated that council members that meet the “excused absence” requirements under the council rules and procedure shall have their absences excused.

Section 2 stated that the absences on May 19 and May 25 for all three council members were then excused.

The resolution was passed by Weber, Morgan and Pepper and opposed by Benson, Edelman and Deady.

“You’re just attempting to whitewash the fact that you missed three meetings in a row,” Benson said.

“It’s also hard to do council business when you’re threatened constantly with being tossed out of a meeting,” Weber replied, referring to the several meetings when Benson would threaten to remove a council member from the council chambers.

Council members found to be unexcused for three meetings in a row can be vacated from their council position under state law.

Linehan’s memo

In the interest of full disclosure, the council waived their right to attorney-client privilege so Linehan’s memo could be a part of the public record.

During or after the council discussed agenda items, Linehan would read from his memo to give his opinion of the resolution being discussed.

In regards to the council hiring Vancil, Linehan said that on rare occasion, Washington courts have ruled councils have the ability to retain their own legal counsel for narrow services, like how the council hired Talmadge.

“But this narrow exception does not apply to retention of general legal counsel to represent the city as a whole,” Linehan continued. “In Black Diamond, only the mayor has the power to appoint the city attorney or to retain/contract city attorney services for the city. The council has no authority to appoint or contract with a city attorney not approved by the mayor.”

Linehan had little to say about the resolution revising the council rules laid out in Resolution 10-69, saying he only had concerns about the revision of 18.1.4(b), which relates to how the Growth Management standing committee could consider quasi-judicial matters.

Linehan said the revision is problematic because it is “vague in its intent” and may conflict with the Black Diamond Municipal Code.

Then there is the resolution concerning the standing committees: “Establishing committees and setting the rules for determining the composition of those committees are generally in the council’s purview, so long as the committee structure and composition do not violate other the state or local laws,” Linehan read. “That said, as I have previously advised, any committee structure that contemplates having a quorum of city council members in regular attendance… is problematic for a number of reasons.”

Since a quorum would meet regularly, this could be construed as a regular meeting of the council under the Open Public Meetings Act, Linehan said, which would require for the mayor to preside over the meetings.

It is also likely, Linehan continued, that this committee structure violates Black Diamond Municipal Code.

And finally, having a quorum at a committee meeting, “significantly increases the risk of mistakes and misunderstanding, even with the best of intentions,” when it comes to whether or not the committee took final action on items on its agenda.

“It would not be hard to see how a complainant could make the argument that the contemplated may effectively turn a five-member city council into a three-member city council, in violation of numerous laws,” Linehan said. “Conceivably, every one of these meetings could spawn lawsuits, the outcome of which may not be known until final resolve after a fact-intensive, and therefore costly, trial.”

One of Linehan’s last opinions was on the resolution for reconsidering the Weber’s, Pepper’s and Morgan’s absences.

Linehan said he had no issue with the resolution, but commented that the council rules for excusing an absence – that as long as a council member gives prior notice of an absence to the clerk or the mayor, the absence will be excused – seemed to set the bar rather low for absences. He reiterated that he knew no reason why the council couldn’t set that bar wherever the council wanted.