Black Diamond back in court

Three attorneys are suing the city and its mayor for unpaid services.

By Ray Miller-Still • June 9, 2019 1:30 am
In a ruling from the bench, King County Superior Court Judge Janet Helson said Pat Pepper, Brian Weber, and Erika Morgan — defendants in the Open Public Meetings Act lawsuit against the city of Black Diamond — will have to pay $500 for every OPMA violation, if the judge rules there are any. Photo by Ray Still
In a ruling from the bench, King County Superior Court Judge Janet Helson said Pat Pepper, Brian Weber, and Erika Morgan — defendants in the Open Public Meetings Act lawsuit against the city of Black Diamond — will have to pay $500 for every OPMA violation, if the judge rules there are any. Photo by Ray Still

The Black Diamond City Council’s past is back to haunt them in a new lawsuit against the city and mayor.

Jane Koler, Anne Bremner and Daniel Glenn filed the lawsuit with the King County Superior Court April 4.

The history behind this case is long, with a large cast of characters, but the lawsuit itself seems straightforward — Koler, Bremner and Glenn claim they were legally hired by the previous Black Diamond City Council, but were never paid.

According to the complaint, Koler billed the city more than $31,000 for her work; Bremner, close to $46,000; and Glenn, nearly $14,000.

“At this point in time we seek solely to be paid. It is most unusual for the mayor to refuse to make payments due under a contract approved by city council,” which has contracting authority under state law, Koler wrote in an email interview. “And it is surprising that the city attorney would defend that decision. Black Diamond is a very unusual city.”

Additionally, Koler, Bremner and Glenn want the court to rule that state law allows the city council the ability to approve contracts.

In its response, filed May 17, the city argues the previous council went beyond their legal authority to approve their contracts, at least in part because former Councilwoman Pat Pepper’s name is on the contracts, not Mayor Carol Benson’s.

“The key issue… is whether state law allows city councilmembers to select their own, separate attorneys and execute contracts with those persons at city expense,” Benson wrote in an email interview.

According to its response to the lawsuit, the city believes if Koler, Bremner and Glenn want payment, they should file a suit against Pepper and Morgan, “who were Plaintiffs’ true clients,” documents allege.

The trial date is tentatively set for March 30, 2020, according to a court schedule.

HISTORY

The events leading up to this lawsuit stem back at least three years, when developer Oakpointe and the city of Black Diamond were dueling against then-Councilmembers Erika Morgan, Brian Weber, and Pepper — who formed a majority on the council — over whether they violated the state’s Open Public Meetings Act.

In January 2019, a judge found Morgan, Pepper, and Weber violated the OPMA on several occasions in a summary judgement ruling. Shortly afterward, Morgan and Weber declined to vie for their council seats, while Pepper was ousted from her seat during a later recall vote, leading to the current council makeup.

While they were on the council, Morgan, Pepper and Weber constantly locked horns with Councilwomen Tamie Deady and Janie Edelman, as well as Mayor Benson, about who should provide legal services for the city.

In April 2016, then-city attorney Carol Morris was fired by the council majority at least in part because they believed Morris was more focused on carrying out the will of the mayor, rather than representing the council as a whole.

Benson refused to sign the resolution by pointing to RCW 35A.12.090, which 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.”

But whether the city attorney was an appointed officer or contracted worker is unclear under city code, and Morgan, Pepper and Weber pointed to RCW 35A.11.010, which states legislative bodies have the power to approve contracted services.

Black Diamond’s mayor does have limited contracting ability, thanks to Black Diamond Municipal Code 2.90.010, but it’s limited to a $15,000 cap.

Benson used this limited contracting authority to hire Yvonne Ward in late April 2016 as the city’s interim attorney. When her contract was up that June, the Kenyon Disend firm was hired to fill the interim position until the council approved a long-term contract.

The council majority refused the contract, but Benson continued signing multiple $15,000 contracts with Kenyon Disend to retain its services over the next few years, a move the council majority said blatantly violated city and state code.

The council voted to hire Vancil Law Offices in July 2016 in a 3-2 vote; Benson again declined to sign the resolution, stating the council majority was overreaching its powers. Vancil decided to not contest the mayor’s decision.

Nearly a year later, the council voted 3-2 to hire Koler and Glenn in May 2017 as interim attorneys while the city continued to seek a long-term contract. Koler was previously hired by the council majority to represent them in a binding arbitration case with Oakpointe over a potential contract breach. Arbitration was ultimately denied by the retired judge overseeing the case.

Koler and Glenn, as interim attorneys, said they weren’t there to replace Kenyon Disend, but to supply additional legal opinions and work. Benson made it clear the city would not pay them and did not sign the resolution or the contract — instead, Pepper signed the contract.

In turn, the council voted 3-2 to discharge Kenyon Disend in June 2017, prompting Benson to yet again claim the council had no authority to do so. This happened a total of three times, though each time, Kenyon Disend continued to appear at council meetings and be paid via $15,000 contracts.

In August 2017, the council voted 3-2 to hire Bremner, not as a city attorney, but to investigate Benson’s actions — including denying council-approved resolutions and continuing to use serial contracts — over the previous two years, and potentially file a lawsuit. Pepper again signed the contract when Benson refused.

That lawsuit was filed October 2017, alleging Benson misappropriated hundreds of thousands of dollars by retaining Kenyon Disend’s services though her serial contracting, and Kenyon Disend was legitimizing those illegal actions.

However, the suit was dismissed without trial by the City Council in January 2018 by a 4-1 vote, with Morgan and Weber having just been replaced by new council members. Pepper was the sole nay vote.

In the same meeting, the council approved a long-term contract with Kenyon Disend and resolutions declining to pay Koler, Glenn, and Bremner.

It is unclear whether the court will end up addressing the issue of serial contracts, and whether Benson violated city code by approving multiple $15,000 contracts with Kenyon Disend.

According to the complaint, the city spent more than $200,000 in short-term contracts with Kenyon Disend.