New ruling in Black Diamond OPMA case

Judge Janet Helson ruled Black Diamond is to pay for the council’s defense, bur she also ruled that council members Pepper, Morgan and Weber must post a $150,000 surety bond to ensure they have the ability to pay for their own legal fees if it’s determined they are responsible for those fees when the final determination of this case is made.

By Ray Miller-Still • March 23, 2017 10:40 am
In a new ruling in the Oakpointe v Black Diamond OPMA case, the city has been ordered to pay for its council members’ defense, but council members must also put up a bond. Submitted image
In a new ruling in the Oakpointe v Black Diamond OPMA case, the city has been ordered to pay for its council members’ defense, but council members must also put up a bond. Submitted image

The city of Black Diamond has been ordered by the King County Superior Court to pay for its council members’ defense in Oakpointe’s Open Public Meetings Act lawsuit.

The ruling by Judge Janet Helson came Thursday, March 9, nearly a month later than expected.

Legal representation has been a hot topic in Black Diamond for close to a year, ever since former city attorney Carol Morris’ contract was terminated in a 3-2 vote on April 7, 2016.

In regards to the OPMA lawsuit, Mayor Carol Benson (the city) and council members Pat Pepper, Erika Morgan and Brian Weber (the council) have been locked in battle over two issues: whether the city’s and council’s defense would be one and the same versus if the city can hire its own legal defense; and if the city is required to pay for the council’s defense.

Helson ruled Feb. 3 that Benson is allowed to hire the Shannon Ragonesi with the Keating, Bucklin & McCormack firm to represent the city in the OPMA case, but the question as to who was going to pay for the council’s defense was still unanswered.

Jeff Taraday, the council members’ legal representation, filed a preliminary injunction on Feb. 2, arguing the city has a responsibility to pay for their defense in this case; that they would suffer actual and substantial injury if the city did not pay for their defense; and that, without city aid, the council members would be unable afford their defense and the merits of the OPMA case will go unexamined.

Ragonesi countered that city code excludes payment of defense when there is “willful, intentional or malicious acts or course of conduct of any official,” and the council members were warned multiple times by several attorneys that their alleged actions, outlined in the OPMA lawsuit, could result in a lawsuit; and Pepper, Morgan and Weber did not establish they would suffer actual and substantial harm if the city doesn’t pay for their defense.

However, the city also suggested that if Helson ruled the city pay for Pepper, Morgan and Weber’s defense, then the court should also require the council members to front a $150,000 surety bond in order to ensure that they can repay the city for legal costs if they’re found to have violated the OPMA.

This suggestion was not favored by Pepper, Morgan and Weber, and asking them to post a surety bond just to afford a defense is “an incredible burden on their right to justice,” Taraday said during the oral argument over the preliminary injunction on Feb. 10.

CITY PAYS, BUT COUNCIL MUST POST BOND

Preliminary Injunction Ruling for Black Diamond by Ray Still on Scribd

While Helson ruled Black Diamond is to pay for the council’s defense, Helson also ruled that Pepper, Morgan and Weber must post a $150,000 surety bond to ensure they have the ability to pay for their own legal fees if it’s determined they are responsible for those fees when the final determination of this case is made.

Additionally, Helson ruled that the hourly rate for Taraday is to be equal to city attorney David Linehan’s rate with the city at $280 an hour.

Finally, Helson ruled that if Pepper, Morgan and Weber’s legal fees exceed $150,000, the city may motion for additional surety bonds to be posted.

The judge said this ruling does not set a precedent for the rest of the case, and which party will be responsible for paying attorney fees and penalties has yet to be determined.

In a March 19 email interview, Morgan wrote it’s unfortunate that she and the other council members must post a bond.

“Unfortunately, the ruling that a bond be posted means that any elected official anywhere may now be intimidated by a political opponent who can file a lawsuit. In this case the allegations are completely without merit, and yet still we have to spend time and money dealing with it,” she wrote. “That is why the city is supposed to indemnify elected officials. Otherwise, cities would only have council members who vote to protect themselves and not based on what best represents the interests of residents.”

Morgan also pointed out that it’s difficult for council members to afford posting the bond on a yearly council salary of $1,800.

FINANCIAL BREAKDOWN – WHO’S SPENT WHAT

On Black Diamond’s end of things, the city has spent a total of $45,522 on the OPMA case, said Financial Director May Miller.

Approximately $4,277 was paid to city attorney David Linehan in December 2016 when the suit was filed, because Linehan wrote the city’s initial response.

This means the city has spent $41,244 on the OPMA case so far in 2017, with an approved lawsuit defense budget of only $10,000, putting the city more than $31,000 over budget, Miller said.

The remaining $41,244 has been split between Linehan ($13,455) and Ragonesi ($27,789).

Requests for how much money Pepper, Morgan and Weber have spent so far on the OPMA case (and how much the city will compensate them) have not been answered, and Miller said the city has not received an invoice for those bills.

Taraday wrote in a March 20 interview that the court’s ruling appears to be “rather burdensome” and that he and the council members are working on securing the bond, which includes paying a non-refundable percentage of the bond in order to obtain it, and then possibly putting up collateral to cover the rest of the bond.