In the most recent turn of events in the Open Public Meeting Act lawsuit against the city of Black Diamond, city council and council members, King County Superior Court Judge Janey Helson is considering whether or not to grant council members Pat Pepper, Erika Morgan and Brian Weber’s preliminary injunction and order the city to pay for their defense, at least until the final ruling in the case.

Helson ruled Feb. 3 the city could continue to contract with its own attorney in this lawsuit without interference from the City Council, settling a months-long battle at council meetings.

But payment for the council member’s defense was still a hot issue. The three council members have said the city should pay for their defense, and Mayor Carol Benson has so far refused.

Lawyers for the city, the council members and CCD Black Diamond Partners LLC — who filed the OPMA lawsuit against the city — argued their cases for and against the preliminary injunction in front of Judge Helson and a packed courtroom Feb. 10.

Jeff Taraday, from Lighthouse Law Group representing Pepper, Morgan and Weber, argued the city should pay for their defense at the outset for several reasons: that Black Diamond Municipal Code 2.66.020 and RCW 4.96.041 obligates the city to defend its elected officials, even if there is a conflict of interest between the city and the council; the city has illegally violated the council member’s right to a defense by denying council-passed resolutions for the city to pay for their defense; and the city’s failure to pay for the defense will result in actual and substantial harm to the council members, partly because Lighthouse Law Group would be unable to continue defending the council members in the lawsuit.

The only way the city could deny payment for the council member’s defense, Taraday continued, is if Benson can prove the council members were acting outside their official duties as elected officials.

“There is no question they were acting within the scope of their duties because of the nature of the allegations. The underlying case is an Open Public Meeting Act case, and the only way you can have an alleged violation of the Open Public Meetings Act is if there is a quorum of the City Council that had gotten together to transact the official business of the city,” Taraday said. “If that’s not acting within the scope of official duties, I don’t know what is.”

Taraday also argued that it’s backwards for the city to deny the council member’s payment for their defense for violating the OPMA when the council members haven’t been found in violation of the OPMA by the courts.

Shannon Ragonesi, representing the city and from the Keating, Bucklin and McCormack firm, argued the city should not pay for Pepper, Morgan and Weber’s defense.

One reason is because Black Diamond code 2.66.030 excludes the city paying for the defense of the council members because they willfully and intentionally ignored the advice of the city’s insurance and several attorneys who said there were legal questions surrounding the January 2016 new council rules and procedures (Resolution 16-1069), which was one reason Black Diamond Partners filed this lawsuit.

The code “clearly demonstrates the intent of not to provide protection when one is acting in a manner that is against what the city’s best interests could be,” Ragonesi said.

Ragonesi also said RCW 4.96.041 doesn’t apply to this case, and that the council members did not property establish that they would suffer actual and substantial harm if the city doesn’t pay for their defense.

“At most, they have shown that they are unwilling to fund their defense from their own pockets, not that they are truly unable,” reads Ragonesi’s response to the council member’s motion for the preliminary injunction.

Some compromises were explored as Taraday and Ragonesi argued their cases, including a possible limit on payment or the number of hours of work (“Whatever Keating Bucklin is charging, that’s what Lighthouse is going to charge,” Taraday suggested) or that the council members should post a security payment before the city pays for their defense (“No preliminary injunction shall be issued except upon the giving of security by the applicant,” Ragonesi read from the Superior Court Civil Rules).

The hour-long court session ended with Judge Helson saying her ruling will be made sometime this week.

COUNCIL MEMBERS RESPOND, DENY OPMA VIOLATIONS

Taraday officially submitted Pepper, Morgan and Weber’s response to CCD Black Diamond Partners LLC’s lawsuit Jan. 23.

In general, the council members deny that any Open Public Meeting Act laws were violated since the Nov. 2015 election when Pepper and Weber were elected to the Black Diamond City Council, including during quorum-less council meetings, council standing committees, skipped executive sessions and, maybe most importantly, the alleged OPMA violations surrounding discussions and drafting of the new council rules of procedure, Resolution 16-1069.

Black Diamond Partners alleged that Pepper, Morgan and Weber met in person, over the phone, through email or through third parties to discuss and draft the resolution.

A Dec. 30, 2015 email sent from Morgan to Brian Derdowski and Kristan Bryant, two private citizens, and blind carbon copied to Pepper and Weber, was used as evidence.

“Defendants Morgan and Pepper admit that they used their non-agency email accounts to communicate regarding Resolution 16-1069,” the council member’s response read. “Defendants further aver [state] that Councilmember Weber did not participate in discussions, drafting, or finalizing of Resolution 16-1069. To the extent that Councilmember Weber was blind copied on the email… his passive receipt of such an email does not constitute participation in a meeting under the Open Public Meeting Act.”

Taraday also points out that while Morgan and Weber were already sworn in by Dec. 30, 2015, Pepper was not a council member when the email was sent.

Black Diamond Partners alleged another OPMA violation in a Jan. 12, 2016 email between Morgan to Bryant, Derdowski and Pepper. The email stated, “are we all still confirmed to knock (council member) Janie out of any chairmanship of any committee?”

The council member’s response stated that the “we” had no reference to Weber, as Weber was not a recipient of the email.

Another allegation of OPMA violations included a document titled, “A Plan.”

Black Diamond Partners alleges the document was acquired in a pubic records request, and that the plan “documented that Defendant Council Members Weber, Pepper and Morgan agreed to agree with one another on every item.”

In their response, Pepper, Morgan and Weber alleged the document was prepared by Pepper and other individuals not on the council, and that Morgan and Weber were not involved in the preparation of the “A Plan” document, not did they see the document until it was seized from Pepper.

IT’S THE MAYOR’S FAULT

In regards to any OPMA violations that stemmed from the council’s standing committee meetings, Pepper, Morgan and Weber allege that they had no control over noticing the committee meetings.

“Defendants deny that they had any duty to provide notice to the public of special meetings under the Open Public Meeting Act (OPMA) and aver that it was not within their power to provide such notice,” the response reads. “… the mayor of the city of Black Diamond (not a party to this action) directed the city clerk (also not a party of this action) not to publish special meeting notices and agendas for the Committee meetings cited in Plaintiff’s complaint.”

Several emails over the last year were sent between Pepper, Morgan and Weber and Mayor Carol Benson and City Clerk Brenda Martinez, in which Benson would refuse to publicly notice the meetings.

For example, Pepper sent an email to Martinez and Benson on July 18, 2016, asking the city to provide notice for the July 20, 2016 Budget, Finance and Administration committee meeting.

After a small email chain, Benson wrote, “We will not be noticing these meetings,” to Pepper on July 19.

The council members allege many of these email conversations occurred when they attempted to get the city to publicly notice a standing committee meeting.

And as to Black Diamond Partner’s allegation that no standing council meeting agendas were provided or minutes taken, “defendants further aver that, notwithstanding any support from city staff, they made an effort to take minutes and/or recordings of the committee meetings,” the response stated. “Defendants are still determining the meetings for which they have minutes and/or recordings.”

Additionally, the council members allege that it was impossible to comply with the OPMA because of Benson’s actions, because council members don’t have access to post meeting notices and agendas on the city’s website.

“They should not be punished for the mayor and clerk’s refusal to perform a non-discretionary duty,” the response read.

Finally, because the mayor did not comply with the council member’s requests, “it would violate the Defendant’s rights to due process if the Defendants were held liable under the OPMA after the mayor and clerk refused to follow the process that is provided by state law for scheduling special meetings of the city council or of any committees of the city council.”

DOCTRINE OF LACHES

According to Taraday, some of Black Diamond Partner’s claims should be barred by the court because they were not filed in a timely manner – known as the doctrine of laches.

“Plaintiff knew of the facts alleged in its complaint at the time they occurred or shortly thereafter,” read the response. “If Plaintiff merely sought corrective action, it would have brought this suit shortly after the first violations were alleged to occur.”

Taraday also argues that penalizing the council members under the OPMA would violate their right to free speech.

“Defendant’s cannot be forced to choose between exercising their constitutional rights and complying with the OPMA,” read the response.

CITY’S RESPONSE

Black Diamond’s response to the OPMA lawsuit, filed Jan. 12, denies many of Black Diamond Partner’s allegations in its complaint, writing often that the city “lacks information sufficient to form a firm belief as to the truth of each of the allegations.”

However, the city does confirm Black Diamond Partner’s allegation that Pepper, Morgan and Weber did present and approve of their version of the council rules, Resolution 16-1069, “without previous open and public debate among all members of the Council,” and that the three council members received letters from the city’s insurance risk management team and memos from multiple attorneys describing potential issues and risks with the new rules.

The response also confirms some of the exhibit information presented in Black Diamond Partner’s complaint, including emails sent between the council members and Kristen Bryant and Brian Derdowski — members of the public — in December 2015 and January 2016, as well as allegations relating to the lack of public notice, agenda or meeting minutes of standing committees.

CROSS CLAIMS

The council members and the city have filed cross claims with the courts.

The city is asking Helson to order the council members to be responsible for their own defense fees, while the council members are asking the court to require the city to pay for their defense.

The preliminary injunction will settle the initial dispute surrounding the council member’s legal fees, but the judge’s final ruling, which includes awarding damages and legal fees, is still to be decided after the trail period, which has yet to start.