BD Councilmembers Pepper, Morgan, Weber walk out of Council meeting

BD Councilmembers Pepper, Morgan, Weber walk out of Council meeting

By Kathleen Kear

Those attending Black Diamond Council meetings since January 2016 have been treated to any number of surprising twists and turns, tempers flaring, objections, points of order, out of orders, you name it, and the Thursday, June 2, meeting did not disappoint.

No sooner was roll call completed than Councilmember Pat Pepper had her hand in the air and Mayor Carol Benson was calling on Councilmember Janie Edelman, who began reading a statement regarding Censure of Councilmember Erika Morgan. Pepper called out “Point of Order” a few times and was ruled “Out of Order” by Benson. Meanwhile, Edelman continued to read her statement calling for censure of Erika Morgan. When the vote was taken, Mayor Benson broke the tie by voting for censure.

Point of order continued with Pepper and Councilmember Brian Weber as Edelman read each of their names in statements calling for their censures. Each time the points of order were called for, Benson ruled them out of order. When the votes for censure were taken for both, Benson broke the ties in favor of censure. Pepper continued with her points of order, until Benson stated that she would be removed if she continued to interrupt. Edelman then proceeded to read the Censure document in full regarding Morgan, Weber, and Pepper.

During the Attorney’s Report, Interim City Attorney Yvonne Ward stated that she had no relationship with the mayor or councilmembers when she came to the City as the interim attorney. Then taking up her first piece of business in her report, she talked about the Committee’s that had been set up by the three Councilmembers – Morgan, Pepper and Weber – under Resolution 16-1069.

“Regardless of whether 1069 is valid on its face,” said Ward, “the committee structure under 1069 is illegal.”

She went on to point out that it is illegal as the addition of a third member to the two-member committee converted the committee to a majority. That majority is then converted into a council meeting, which becomes a full meeting of the Council. At that point, all laws that pertain to a council meeting, including local laws and local rules, are triggered at the Committee meeting.

Turning her comments to Black Diamond Municipal Code (BDMC) 2.04010, Ward stated that according to the code, Council meetings are established to take place each month on the first and third Thursdays and a work session on the second Thursday. No other additional regular meetings are authorized. She also stated that the only way to change the information was through an ordinance not resolution.

She also pointed out that 1069 violates the BDMC involving staff time. She stated that the hours of operation are set by an ordinance. Staff is only required to attend to their duties in accordance to those ordinances. The contract does not allow the Council to add more time to off business hours other than the ones called for in the ordinance.

A third problem with 1069’s Committees is the unfunded mandate. According to Ward, Black Diamond Finance Department did research as to how much the committee meetings – now converted into Council meetings which are held in the evening after regular business hours – cost the City. It was estimated that the cost to the City would be in excess of $288,000 a year to convert the Committee meetings into the three person committee meetings, which was not funded in the budget.

“State law and nor does the Black Diamond Municipal code allow the Council to impose programs that are not funded,” stated Ward. “And neither State law nor the ordinance allows the Council to sink the City into debt or to impose another $250,000 of costs onto the citizens without authority.”

Other problems brought forward by Ward including delegating to itself (the three people committee) quasi-judicial matters, which are strictly regulated by the State.

“In addition, my research indicates that Resolution 1069, especially in terms of committees, was enacted for the improper purpose of interfering with the City’s ability to comply with its legal obligations,” said Ward, “and that’s set up by diverting all City business to Council meetings, the administrative end. These committees have not been approving basic bills such as 911 services, gas for the police cars, repairs for the police cars, police record services, the Enumclaw jail, police phones, copiers and police stations. They have not approved the bill for the prosecutor.

“In addition, what’s going on are all these projects, which are set forth and researched by the department chairs are now wallowing in committee. That is not a policy decision. That’s an interference with government operations. It’s also an interference with contract, which our Washington State Supreme Court has ruled unconstitutional.”

Ward also pointed out that the way the committees have been working, documented by comments coming from committee meetings and public record request that were given to Ward by citizens, indicated that the intent of the meetings was to slow down and stop government operations. After naming several stalled City projects including free upgraded street lights from Puget Sound Energy, Ward named Morgan, Pepper, and Weber as have been working on the slow down/stoppage since December. Information proving her point was obtained from private email accounts that they would use for to communicate what they were planning vs City email accounts, which were used for mundane business. They wrote such notes as, “Are we all still confirmed with resolve to knock out Janie from any chairmanship of any committee?”

Mayor Benson was advised not to enforce the committee structure as proposed in Resolution 1069, but it was her choice. Benson stated that she already looked at the option and cancelled any further committee meetings as set up under 1069.

Speaking to her next order of business – the emergent issues of Resolution 1069, Ward stated she was given hundreds of emails from citizens obtained through the Public Records Act. One set of the documents was from private emails of Pepper, Morgan and Weber, the other set from the City server.

“What I found is a very concerted and determined effort of Councilmembers Morgan, Pepper and Weber to pre-decide City business, to pre-decide committees, to pre-decide to stall government business, they did this in violation of the Open Public Meetings Act,” said Ward. “This is fairly well documented in the emails from their private servers.”

After going into some detail regarding how the three Councilmembers were conducting their business through their emails as well as a number of other issues with 1069, Ward concluded that Resolution 16-1069 was illegal. When Ward asked Benson if she would enforce 1069, Benson answered that she would not, and that the Council should revert to the old rules, which have never been challenged. It was also pointed out that Councilmembers Tamie Deady and Edelman would have violated the law had they attended any of the Committee meetings, which they did not.

Following the Attorney’s report, Benson called for a 15 minute Executive Meeting and reminded all Councilmembers not to take anything with them including papers, documents, cell phones, purses, briefcases – nothing. The meeting was documented as beginning at 7:27 p.m. with the Council returning and the meeting called to order at 7:42 p.m.

Calling on the next order of business being the Consent Agenda, Edelman moved acceptance of the item with Deady giving it a second. When Benson asked for the vote, Councilmember Morgan stated, “We’re waiting for Councilmember Pepper?”

“No, she went out with Mr. Derdowski,” stated Benson. “So she’s discussing the Executive Meeting with Brian Derdowski. That which is illegal.”

Pepper quickly made her appearance and voted in favor of passing the Consent Agenda along with the rest of the Council. Then during public comment, Kristin Bryant brought up several areas of concern including the Council controlling their own meeting agenda. She stated the Mayor could report to the Council in emails or other methods, instead of forcing items on to the Council agenda.

Speaking to the subject of possible removal of Councilmembers due to disorderly conduct, Bryant referenced the May 5th meeting and said, “But the Councilmember was not disorderly. They were doing something they have every right to do. But the threat was clear; you can be removed from the meeting for making a motion the Mayor doesn’t like. That just impedes the business of the Council, not of the Mayor. The Mayor’s trying to take too much power.”

A couple of sentences later, Bryant was told that her time was up, however, she asked for another minute. When told no by the Mayor, as there was a long list of items on the agenda that needed to be taken care of, Bryant continued to argue for more time. Ward broke in stating that she had received a call from the Municipal Research and Services Center (MSRC) due to some of the Councilmembers trying to quote MSRC information. Concerns were that the Councilmembers would take a sentence from the MSRC website and then say that is what MSRC said was the law.

“They’ve [MSRC] tried to tell Councilmember Morgan, they’ve tried to tell Councilmember Pepper, these are general principals. You have to consult with your City Attorney and your local law,” said Ward. “And I just bring out, even under its own handbook, which all the Councilmembers have from the agency they like to call, it says, ‘The duty of the mayor is to prepare the agenda.’ And it’s right here…You have to be careful about taking things out of context and attributing it to another agency when that’s not actually what they said.”

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