Soe once elas! 10 ul 2 13, 4 15 16 7 18 19 20 21 2 23 24 25 26 27 FILED The Honorable Janet Helson. WITDEC 1S PH 421 Noted for: January 12, 2018 at 1:30 pm cae flNS COUNTY SUPERIOR COURT CLERK SEATTLE, W IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING CCD BLACK DIAMOND PARTNERS LLC, a Delaware Limited Liability No. 16-2-29091-4 KNT Company, DEFENDANT CITY OF BLACK DIAMOND'S MOTION FOR SUMMARY JUDGMENT Plaintiff, CITY OF BLACK DIAMOND and BLACK DIAMOND CITY COUNCIL, a Public Agency, and ERIKA MORGAN, PAT PEPPER AND BRIAN WEBER, Black Diamond City Council Members, Noted: January 12, 2018 Time: 1:30 p.m. Defendants. I. INTRODUCTION Plaintiff has alleged multiple violations of the Open Public Meetings Act (“OPMA”) against individual Councilmembers Pat Pepper, Erika Morgan and Brian Weber (collectively, the “Individual Defendants.” If Plaintiff proves her claims and obtains an order finding that the Individual Defendants violated the OPMA, the City seeks a judgement declaring that these Defendants are not entitled to a City-funded defense of the underlying action under Black Diamond Municipal Code (“BDMC”) 2.66.030. The evidence proves the Individual Defendants intentionally, followed a course of conduct despite repeated warnings their conduct may violate the OPMA. If determined to violate the law, this DEFENDANT CITY OF BLACK DIAMOND'S Kua Tne, BUCKLIN & MCCORMACK INC, PS. MOTION FOR SUMMARY JUDGMENT ep RON Stee =I ‘ake gaa 16-2-29091-4 KNT. oe saxsoon0s330334,10 uw 12 13, 14 15 16 7 18 19 20 24 2 23 24 25 26 27 disqualifies them from a City-funded defense. Therefore, the Court should issue a declaratory judgment on this issue as a matter of law. I. STATEMENT OF FACTS Erika Morgan (“Morgan”) was elected to the Black Diamond City Council (“BDC”) in November of 2013. Exh. 1 to Ragonesi Decl., at p. 15. Pat Pepper (“Pepper”) ‘was swom into office on January 7, 2016. Exh. 2 to Ragonesi Decl., at p. 71. Brian Weber Weber") was sworn in to office on January on December 7, 2015. Exh. 3 to Ragonesi Decl, at p. 15. As newly elected Councilmembers, all three Individual Defendants were provided training regarding their duties, including the legal requirements under the OPMA. A. The Individual Defendants Had Each Been Given Comprehensive Training on the OPMA Prior to Becoming Councilmembers, as well as Continuing Education on the OPMA. Morgan testified she attended a January 28, 2016 course in Covington put on by the Department of Commerce for the State of Washington that covered the OPMA. Exh. 1 to Ragonesi Decl., at pp. 79-82; Exh. 4 to Ragonesi Decl., at Dep Exh. 39. Morgan also testified she had finished her state-mandated OPMA training and received a confirmatory certificate, Exh. 1 to Ragonesi Decl., at p. 82, and that she had previous OPMA training that ‘was “more thorough, more specific, and more in-depth” than the Covington training. Id., at p.8l. Councilmember Morgan testified at great length about her understanding of the ‘OPMA and the sunshine laws, and acknowledged their purpose was to get rid of “backroom deals.” Exh. I to Ragonesi Decl., at pp. 83-85. “My understanding is that the public needs to have, in a democracy, a way to ~ to directly, collectively, interact with their goverment officials.” Jd, at p. 84. She went on to testify“... if the public hasn’t had an opportunity to vigorously think and network about the subject and get back to their councilmembers and say what they think before and outside of the meeting, I think that’s an abridgment of the 1 For clarity, citations to depositions will use the page number on the deposition transcript. DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC, PS, / MOTION FOR SUMMARY JUDGMENT SESS yn, =2 ake es 16-2-29091-4 KNT sameoen33033410 u 12 B 14 15 16 7 18 19 20 a 2 23 24 2s 26 27 democratic process. Id., at p. 85. In addition, Morgan demonstrated her knowledge of the need to give proper advanced notice of a meeting as well as cancelation of meetings in email correspondence with her fellow Councilmembers, the Mayor and the City Attorney in 2015. Martinez Dec, Ex. 1. “Ido know that there is a mandate of 14 days notice that there “is a meeting”, which to me would also mean the same notice period of a cancellation except for emergencies.” “Lam not trying to be difficult, I am just attempting to comply with the law and to deliver the open and transperant [sic] government that our citizens have demanded of this new government.” “At the class I took at the State Auditors Office they said they advised their boards etc. to know fellow board members autos and if they saw a fellows car in the “mall car park” to not stop, keep driving and come back and conduct their business some other time...I will be awaiting Att. Morris’s response to these concerns, I could be being overly cautions [sic] but my long history with Black Diamond has informed me of much paternalism and open public meeting violation as being the standard by which the City of Black Diamond has long operated; under its “old boy’s club” methods and I would rather be careful to avoid even the vague appearance of subscribing to past proclivities and philosophy.” Similarly, Pepper testified she had training on the OPMA as a member of the Black Diamond Planning Commission - before she was even elected to the BDCC. Exh, 2 to Ragonesi Decl., at pp. 64-66. Pepper then received the same or similar training, which included a 32-page booklet on the OPMA and an online training. Id, at pp. 66-67. She also received OPMA training as part of her new councilmember training with Brian Weber on January 7, 2016. Id., at p. 78. Pepper again went through this training as part of the Renton Arts Commission, /d,, at p. 68, and attended the Covington training on January 28, 2016. I at p. 69; Exh, 4 to Ragonesi Decl. Weber testified he attended the same comprehensive training in Covington. Exh. 3 t0 Ragonesi Decl., at p. 106. He also attended the Association of Washington Cities “Elected DEFENDANT CITY OF BLACK DIAMOND'S KeaTING, BUCKLN MCCORMACK INC, FS. MOTION FOR SUMMARY JUDGMENT gene tee “3 = 16-2-29091-4 KNT eae 2eem01330334wis wn 10 u 12 13 4 15 16 7 18 19 20 2 22 23 24 2s 26 27 Officials Essentials” on December 5, 2015, which is “designed to meet or exceed the State of Washington’s 2014 Open Government Trainings Act requirements (RCW 42.30 and 42.56). Exh. 4 to Ragonesi Decl., at Dep. Exh. 122. In addition, Weber attended the newly elected official’s orientation which also included more training on the OPMA. Exh. 3 to Ragonesi Decl., at p. 108-9. Weber also testified he understood the OPMA, including that “any of [his] personal emails, texts ...[were] susceptible to the OPMA.” Exh. 3 fo Ragonesi Decl., at p. 115. He also stated he understood the BDCC could have a meeting under the OPMA as a result of email exchanges and phone calls. Jd. In fact, Weber remembered attomey Carol Morris instructing him on the OPMA rules, and that he understood what she was telling him, Id, at pp. 116-17. He stated he believed the purpose of the OPMA was “for transparency between elected officials and -- and the citizenry.” Id., at p. 117, For the Court’s ease of review, the City has compiled a table of relevant deposition exhibits evidencing the Individual Councilmembers’ knowledge of the OPMA and their intentional course of conduct. These exhibits can be found at Exhibit 4 to the declaration of Shannon Ragonesi. KNOWLEDGE OF OPMA REQUIREMENTS — INTENTIONAL COURSE OF ‘CONDUCT? ‘CTE DATE PARTICIPANTS CONTENT ~ Ex. 123 Weber OPMA training materials provided by Councilmember ‘Weber Ex.2 Tanuary 4, | Derdowski, Morgan, Derdowski will report to 2016 ‘Weber, Pepper, Bryant —_| them on Open Meetings Law and open records policies. Ex.9 ‘December 30, | Morgan, Derdowski, Morgan states, “I reall 2 The parties agreed to use continuous exhibit numbering for the depositions in this case rather than restarting. ‘numbering for each deposition. DEFENDANT CITY OF BLACK DIAMOND'S. KEATING, BUCKLIN & MCCORMACK, INC, PS, MOTION FOR SUMMARY JUDGMENT ve -4 Ticit ioa 16-2:29091-4 KNT samnon0¥33033410 u 12 13 14 15 16 7 18 19 20 2 2 2B 4 25 26 27 CITE DATE PARTICIPANTS 2015 Bryant, Weber, Pepper Ex.11, Undated 13:22-14:7 ‘Morgan, Weber CONTENT believe, and il [sic] is a main moral principle for me that you don’t take the fights into the public realm until you have attempted to resolve the differences privately and that has failed.” “.. Janie was there. She tried to pin me to the cross about how I was gonna vote... almost had to remind her that Lalso couldn't discuss it with het, because if I did, then I couldn’t discuss it with you, because then I would violate the Open Public Meetings Act.” Ex. 36 January 5, 2016 Martinez, Weber, Pepper ‘Ex. 78 January 7, 2016 Pepper Email providing New Councilmember Orientation ‘Meeting Documents Oath of office administered | to Pepper. Ex. 40 January 8, 2016 Martinez, Weber, Pepper, Morgan “Memo cancelling special joint meeting of the City Council on January 12, 2016, and setting a special meeting on January 19, 2016. Ex.39 January 12, | 2016 Martinez, Weber, Morgan, Pepper, Edelman, Deady, Benson Flyer for class that included Open Government laws such as the OPMA. Ex. 55 January 19, 2016 Morris, Weber, Pepper, Morgan, Edelman, Deady, Benson ‘Memo from City Attomey detailing legality problems with the proposed resolution amending the council rules. Ex. 56 [January 20, 2016 ‘Roger Neal, Morris (later provided to all Eimail from risk pool detailing concems with the 25 16-2-29091-4 KNT saen0ot03 30334 DEFENDANT CITY OF BLACK DIAMOND'S MOTION FOR SUMMARY JUDGMENT KEATING, BUCKLIN & MCCORMACK, INC, PS,ee 2 owe 10 ul 12 2B 4 15 16 7 18 19 20 21 22 23 24 25 26 27 CITE DATE PARTICIPANTS CONTENT Councilmembers) proposed resolution amending the council rules. Ex. 85 Morgan Council Censure of Morgan for improper conduct during Council meeting. Ex. 86 Weber ‘Council Censure of Weber for improper conduct for willful interference with government operations and finding a violation of the OPMA. Pepper ‘Council Censure of Pepper for willful interference with government operations and finding a violation of the OPMA. Ex. 113 March 2016 (ates various) Morgan, Morris, Teter from Morgan disagreeing with legal memorandum from City Attorney Mortis regarding procedure for determining the Council agenda. Ex. 124 May 17,2016 ‘AAG Nancy Krier, Weber, Pepper, Morgan, Edelman, Deady, Benson OPMA informational materials provided to Councilmembers by the Assistant Attomey General Ex. 57 June 2, 2016 ‘Ward, Weber, Pepper, Morgan, Edelman, Deady, Benson Findings and Conclusions by the Interim City Attorney that Resolution R-1069 amending the council rules is void ab initio for violating the OPMA. Ex. 61 June 2, 2016 Ward, Weber, Pepper, Morgan, Edelman, Deady, Benson, Martinez Legal memo from Interim City Attomey providing legal opinion that the changes to the standing Council -6 16-2-29091-4 KNT -am0n330334 DEFENDANT CITY OF BLACK DIAMOND'S MOTION FOR SUMMARY JUDGMENT KEATING, BUGALN & MCCORMACK, ING, PS,ee 2a aw eon 10 un 12 13 4 15 16 7 18 19 20 21 2 23 24 25 26 27 CIE DATE PARTICIPANTS CONTENT ‘committees are illegal. Ex. 62 Tuly 6, 2016 David Linehan, Weber, Pepper, Morgan, Edelman, Deady, Benson Legal memo from City Attorney providing opinion that Council cannot retain legal services for general city attorney services — only in rare situations of a separation of powers dispute when authorized by a court of law. Also, that the proposed standing committee structure is inviting litigation with liability under the OPMA being difficult to predict or contain. Ex. 89 July 7, 2016 Benson, Deady, Edelman, Morgan, Pepper, Weber Resolution No. 16-1108 adopting new version of Council Rules of Procedure denied by Mayor as illegal/Null & Void Ex. 90 July 7, 2016 Benson, Deady, Edelman, ‘Morgan, Pepper, Weber Resolution No. 16-1109 revising the Council standing, committee members denied by Mayor as illegal Ex. 63 ‘September 14, 2016 Roger Neal, Benson, Deady, Edelman, Morgan, Pepper, Weber Letter stating the City’s risk pool has concems about the contracts with professional service providers, the continuation of three council- member committees, and failure to meet in executive session when advised to do so by the city attorney. Ex. 329 ‘April 26, 2017 Benson, Deady, Morgan, Edelman, Weber, Pepper, Martinez, Hanis, Williamson, Del Santo ‘Mayor warming the Individual Defendants there is a high risk of liability in their actions regarding a DEFENDANT CITY OF BLACK DIAMOND'S MOTION FOR SUMMARY JUDGMENT “7 16-2-29091-4 KNT snocro3 30334 KEATING, BUCKLIN & MCCORMACK, INC, PS.eon enol! 10 uw 2 13 14 15 16 7 18 19 20 21 22 23 24 2s 26 27 CTE DATE PARTICIPANTS CONTENT ‘Transportation Improvement Project and asking them to reconsider their decision, B. The Three City Attorneys During This Time Period All Offered to Help the Individual Defendants. During the time Defendant Morgan was a Councilmember, she sought legal advice and opinions from the City Attomey. During the year(s) of 2015-2016, she sought advice and assistance from City Attomey Carol Morris. Martinez Decl, Ex. 1. She knew Attorney Morris was available to the City Council to provide legal assistance, and she voted to approve her contract, regardless of whether she availed herself of her legal services. Exh. 1 to Ragonesi Decl, at p. 172:4-10. Carol Morris testified that the only time the councilmembers reached out to her was to demand her resignation. Exh, 5 to Ragonesi Decl, at p. 52:5-11 Councilmembers Pepper and Weber were also aware that the City Attomey was available to provide legal advice and services to the City Council. Exh. 3 to Ragonesi Decl., at pp. 116:19-117:5; Exh. 5 to Ragonesi Decl., at p. 81:6-14, It was not until Attorney Morris provided legal advice that the Individual Defendants did not like that they stopped utilizing the services of the City Attorney. Exh, 5 to Ragonesi Decl., at pp. 153:14-154:6. This was not the result of any refusal by the City Attorney, or by the Mayor, to allow the Councilmembers access to the City Attomey. Similarly, when Interim City Attorney Yvonne Ward first began working for the City, Councilmembers Pepper and Morgan met with her for at least two hours to discuss City business and seek her assistance. Exh. 2 to Ragonesi Decl., at p. 412:4-13; Ward Dep. 31:18-24, However, after Attorney Ward did not agree with their position on parliamentary procedure, they felt “betrayed” and decided not to utilize her legal services to the City DEFENDANT CITY OF BLACK DIAMOND'S KEATING, BUCKLIN de MCCORMACK, INC, PS. ‘MOTION FOR SUMMARY JUDGMENT momar -8 16-2-29091-4 KNT ann can033033410 a 12 1B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 Council. Councilmember Weber was also aware that Attomey Ward was available for and had provided legal advice to the council. Exh. 3 fo Ragonesi Decl., at 145:5-25. Attomey ‘Ward never refused legal services to the City Council. Attomey David Linehan stated that every communication he made to the councilmembers included a note that he was available in his capacity as their attorney if ever they had questions or concerns. Exh. 7 to Ragonesi Decl., at 169:18-171:12. C. The Individual Defendants Were Repeatedly Told Their Actions Could Violate the OPMA by Multiple Attorneys, But Acted Contrary to Leg: Advice Anyway. ‘The Individual Defendants were advised by the City Attorneys as follows © On January 12, 2016, City Attomey Carol Morris wrote a 4-page memorandum to the Mayor, the Individual Defendants, and the Council as a whole, pointing out that, the Individual Defendants had violated the OPMA by taking action to cancel a ‘meeting outside a publicly noticed meeting. Exh. 8 to Ragonesi Decl. ‘* On January 13, 2016, City Attomey Carol Morris wrote a 3-page memorandum to the Mayor, the Individual Defendants, and the Council as a whole, explaining they ‘were misunderstanding the OPMA based on their reading of a publication from MRSC, and reiterating why she believes their earlier action violated the OPMA. Exh, 9 to Ragonesi Decl. * On January 19, 2016, City Attorney Carol Morris wrote an 11-page memorandum to the Individual Defendants, and the Council as a whole, pointing out potential legal risks as a result of the proposed changes to the council rules (Resolution 16-1069) the Individual Defendants were attempting to push through the Council, including -d her concems paragraph by paragraph and warned the Individual Defendants they could jeopardize the City's insurance coverage if they did not listen. Exk, 4 to Ragonesi Decl, (Dep Ex. 55). * Carol Mortis also forwarded her concems to Roger Neal, a representative for the DEFENDANT CITY OF BLACK DIAMOND'S Ear, Doon. & MeCoRMACK TNE, PS. [MOTION FOR SUMMARY JUDGMENT cote, 9 eee 16.2.29081-4 KNT ae ssenev330334Rowe 10 ul 12 B 4 15 16 17 18 19 20 a 23 25 26 27 City’s risk pool. Roger Neal expressed similar concerns about potential OPMA violations, and explicitly wamed the Individual Councilmembers that “a lawsuit related to the application of these Council rules, such as a violation of the Open Public Meetings Act” may not be covered by the risk pool. Exh. 4 to Ragonesi Decl, (Dep Ex. 56). ‘* On May 19, 2016, Emergency Interim City Attomey Yvonne Ward wrote a memorandum to the Mayor and City Council opining that the attempt to establish new Council rules through Resolution 1069 is illegal on three grounds, including the OPMA. Exh, 10 to Ragonesi Decl. © On June 2, 2016, Interim City Attomey Yvonne Ward also wrote an 1I-page “Findings and Conclusions” memorandum, among various shorter memoranda on similar topics, regarding the council rules. Attorney Ward found the evidence, in her opinion, showed that the council rules created by Resolution 16-1069 were invalid ab initio (from their inception) and that they violated state and local law. Attomey ‘Ward identified several problematic areas with the rules, including the structure of their newly formed committees, and advised the Individual Defendants cease using these new rules. Exh. 4 to Ragonesi Decl, (Dep Ex. 57). ‘* Also on June 2, 2016, Attomey Ward released a second memorandum specifically identifying the illegality of the committees created and passed by the Individual Defendants under Resolution 16-1069, The memorandum specifically addresses the issues with have committees that consist of three councilmembers. Exh, 4 to Ragonesi Decl, (Dep Ex. 61). ‘* Only 6, 2016 City Attorney David Linehan similarly expressed his concems about the potential illegality of having three councilmembers in a committee. Mr. Linehan explained that this arguably constituted a meeting under the OPMA, and addressed the notice requirements of regular meetings as well as the risks due to confusion and DEFENDANT CITY OF BLACK DIAMOND'S earn, HucKLN & McConMac, INC, PS, MOTION FOR SUMMARY JUDGMENT et ay ~10 sores eaten 16-2-29091-4 KNT Pease ‘esea033033410 u 2 13 4 15 16 7 18 19 20 21 22 23 24 2s 26 27 misunderstandings. Mr. Linehan also warned of the financial risks the City was facing as a result of the Individual Defendant's actions. Exh. 4 to Ragonesi Decl, (Dep Ex. 62). ‘The Individual Defendants not only ignored advice of the City’s counsel, they ignored City staff, who told them definitively they were not going to notice committee meetings. Exh. 11 to Ragonesi Decl. On May 26, 2016, Brenda Martinez sent the Individual Defendants an email stating, “I was asked to send out this email notifying you that pending additional legal research by the Interim City Attomey, the City will no longer be noticing the Committee meetings.” Id. The Individual Defendants defiantly continued to hold committee meetings despite knowing they were not being properly noticed as even the Individual Defendants’ agreed they had to have been. Exh, I to Ragonesi Decl., at p. 230:14- 17; Exh, 2 to Ragonesi Decl., at p. 106; Exh. 3 to Ragonesi Decl. at p. 208 ‘The Individual Defendants had further access to legal advice as they hired their own. additional attorneys to advise them. They retained Phil Talmadge and Tom Fitzpatrick who provided them with extensive legal counsel regarding their proposed rule changes and composition of standing committees. Exh. 4 to Ragonesi Decl, (Dep Ex. 60). Tellingly, even {their own attomeys concluded that the Individual Defendants just wanted another attomey to “whitewash” their actions and give them approval for what they had done — and they were not truly seeking legal advice to help. determine the legality actions. Exh, 12 to Ragonesi Decl. Once again, for the Court's ease of review, the City has compiled a table of deposition exhibits evidencing the fact that the Individual Defendants had access to legal advice from the City Attomeys, and from private legal counsel they hired throughout 2016 and 2017. These exhibits can be found at Exhibit 4 to the declaration of Shannon Ragonesi DEFENDANT CITY OF BLACK DIAMOND'S KEATING, BUCKLIN & MCCORMACK INC, PS. sanscom0330334ee a awe 10 rt R 13 4 15 16 7 18 19 20 21 2 23 4 25 26 2 ACCESS TO LEGAL ADVICE CITE, DATE PARTICIPANTS CONTENT Ex. 112, p.2 Morgan ‘Notes by Morgan acknowledging she consulted with Attomey Steve Delulio, and hired Attomey Phil Talmadge to seek legal advice and opinions regarding legality of the individual Defendants’ actions. Ex. 128 February 4, 2016 Pepper, Morgan Legal opinion regarding OPMA obtained by Pepper and Morgan from a private attomey they hired. Ex. 60 May 5, 2016 Ward, Weber, Pepper, Morgan, Edelman, Deady ‘Memo from Phil Talmadge & Tom Fitzpatrick, attorneys hired by Morgan and Pepper, providing legal opinions regarding the council rules and OPMA. (Ex. 404 May 9, 2016 Pepper, Ward Email from Pepper seeking Interim City Attomey’s legal advice. Ex. 179 May 19, 2016 Pepper Legal advice sought by Pepper from her private attorney Phil Talmadge. Ex. 182 May 2016 Morgan Draft declaration from Morgan DEFENDANT CITY OF BLACK DIAMOND'S. MOTION FOR SUMMARY JUDGMENT 212 16-2-29091-4 KNT ‘000330334 KEATING, BUCKLIN de MCCORMACK, INC, PS.ee a ows 10. uw 12 B 14 15 16 17 18 19 20 a 2 23 24 25 26 27 CITE DATE RTICIPANTS ‘CONTENT confirming she hired her own legal counsel, Katherine George, to defend her in the lawsuit filed by Bob Edelman challenging Resolution 16-1071 amending the Council rules. Ex. 316 ‘August 26, 2016 Pepper, Morgan, Benson, Martinez Email from Pepper claiming at least six attorneys have told her the Couneil rules and committee meetings are legal. She also states some of the attorneys have made recommendations and the Individual Defendants have taken that advice into | account, Ex. 234 ‘April 13, 2017 Pepper, Weber Recorded message | from Pepper confirming she spoke with Attomey Jane Kohler and obtained legal strategies from her. Ex. 347 | Sune 1, 2017 ‘Morgan, Weber Individual Defendants deciding to not pay City Attomey David Linehan for services rendered because they do not “recognize” him as the City Attome; DEFENDANT CITY OF BLACK DIAMOND'S. MOTION FOR SUMMARY JUDGMENT +13 16-2-29091-4 KNT sarsoon00330334CTE ATE, PARTICIPANTS | CONTENT Ex. 355 ‘August 3, 2017 Morgan Notes of Morgan confirming the Individual Defendants retained Glenn and Associates to provide City Attomey services to tiem. Ex. 235 ‘August 21, 2017 Morgan, Weber ‘Recorded message from Morgan confirming she spoke with Attomey George regarding the composition of committee meetings. II. LEGAL AUTHORITY Courts have the “ ‘power to declare rights, status and other legal relations! ” by declaratory judgment. League of Educ. Voters v. State, 176 Wash.2d 808, 816, 295 P.3d 743 (2013) (quoting RCW 7.24.010). For a trial court to render a declaratory judgment under the UDJA, there must be a justiciable controversy, unless the case presents an issue of major public importance. Wash. State Republican Party v. Wash, State Pub. Disclosure Comm'n, 141 Wash.2d 245, 284, 4 P.3d 808 (2000) A justiciable controversy is: (1) ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.” Republican Party, 141 Wash.2d at 284, 4 P.3d 808 (quoting Wash, State Coal. for the Homeless v. Dep't of Soc. & Health Servs., 133 Wash.2d 894, 917, 949 P.2d 1291 (1997)), DEFENDANT CITY OF BLACK DIAMOND'S. KEATING, BUcKLIN & McComnack, INC, PS, MOTION FOR SUMMARY JUDGMENT eT a -14 sonesereme ae 16-2:29091-4 KNT Wickes sess0n0133033410 ul 12 13, 14 15 16 7 18 19 20 21 22 23 24 2s 26 27 Each of these four elements must be met, otherwise the court “steps into the prohibited area of advisory opinions.” Diversified Indus. Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973). In this case, the evidence demonstrates a justiciable controversy. (1) There is a hotly contested dispute over whether the City should be required to pay for the defense of the Individual Councilmembers Morgan, Pepper and Weber in defense of this lawsuit. ‘The Black Diamond City Council has already failed to pass a resolution to provide a defense to the individual Defendants due to a lack of majority vote supporting the action. (2) The City of Black Diamond and the Individual Defendants have filed cross-claims against each other and the Court has already determined they have genuine opposing interests. See, Order Granting Motion To Establish Counsel; and Order on Motion for Preliminary Injunction. (3) The issue of payment of legal defense is not theoretical; but rather, is an issue of substantial cost that has been incurred by the Individual Defendants, And finally, (4) a judicial determination of this issue has been sought via the City’s cross claim for a declaratory judgment on this issue, A. The Councilmember Defendants Are Not Entitled To A City-Funded Defense, Chapter 2.66 of the Black Diamond Municipal Code (“BDMC”) governs whether a City official or employee is entitled to a city-funded defense in non-tortious actions. BDMC 2.66.020(A) states: As a condition of service or employment, the city shall provide to an official or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official or employee may have concluded service or employment with the city, such legal representations as may be reasonably necessary to defend a claim or lawsuit filed against such official or employee resulting from any conduct, act or omission of such official or employee performed or omitted on behalf of the city in their capacity as a city official or employee, which act or omission is within the scope of their service or employment with the city. (Emphasis added.) BDMC 2.66.030(A) clarifies who is not entitled to a City-funded DEFENDANT CITY OF BLACK DIAMOND'S Kare Boextn & MeCoRmAcK INE, PS. MOTION FOR SUMMARY JUDGMENT ae “15 aSeesu 16-2-29091-4 KNT eee tanecn013 3033410 iy 12 13 14 15 16 7 18, 19 20 21 2 2B 4 25 26 27 defense: In no event shall protection be offered under this chapter by the city to: 1. Any dishonest, fraudulent, criminal, willful, intentional or malicious act or course of conduct of any official or employee; 2. Any act or course of conduct by an official or employee which is not performed on behalf of the city; 3. Any act or course of conduct which is outside the scope of the official or employee's service or employment with the city; As laid out in the statement of facts, there is an overwhelming amount of evidence the Individual Defendants knew exactly what the risks were at the time they decided to: ‘© Pass the new council rules (Resolution 16-1069) * Attend committee meetings consisting of three members of the City Council (even though one member — always Deady or Edelman ~ refused to show up) © Continued to schedule and attend committee meetings after being told explicitly they were not being noticed. Simply put, the Individual Defendants operate under the assumption of “if I don’t agree with it, it's wrong.” Despite strenuous efforts by the Mayor and the various City Attomeys to stop the Individual Defendants from taking repeated actions that put the City at risk, the Individual Defendants willfully and intentionally committed potential violations of the OPMA. If the Court finds the Individual Councilmembers violated the OPMA, the City should not be forced to pay their defense costs. Per the BDMC, they are not entitled to it, and on a more fundamental and equitable level, it would be punishing a City that has been trying to prevent this exact thing from the beginning. The Open Public Meetings Act (“OPMA), codified at RCW 42.30, requires that all meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body. RCW 42.30.120 provides a DEFENDANT CITY OF BLACK DIAMOND'S earn, BUCKLIN & MCCORMACK INC, PS, MOTION FOR SUMMARY JUDGMENT eee -16 He aaa 16.2-29091-4 KNT tl saencot0i33033410 ul 12 13, 14 15 16 7 18 19 20 a 22 23 24 25 27 cause of action and remedy when there has been a violation of the OPMA. The relevant portion of the statute provides: a." Violations—Personal liability—Civil penalty—Attomeys' fees and costs. (1) Bach member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter applicable to him or her, with knowledge of the fact that the ‘meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of five hundred dollars for the first violation. (2) Bach member of the governing body who attends a meeting of a governing body where action is taken in violation of any provision of this, chapter applicable to him or her, with knowledge of the fact that the ‘meeting is in violation thereof, and who was previously assessed a penalty under subsection (1) of this section in a final court judgment, shall be subject to personal liability in the form of a civil penalty in the amount of one thousand dollars for any subsequent violation, (3) The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person, A violation of this chapter does not constitute a crime and assessment of the civil penalty by a judge shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. (4) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorneys’ fees, incurred in connection with such legal action. Under this language, Plaintiff has to show the Individual Defendants had knowledge of the fact the meeting was in violation of the OPMA. If Plaintiff meets this burden, the Individual Defendants have committed a per se violation of the BDMC and are precluded from receiving a City-funded defense. IV. CONCLUSION The City respectfully requests that if Plaintiff prevails on summary judgment, the Court also finds that under the BDMC, the Individual Defendants acted willfully and/or DEFENDANT CITY OF BLACK DIAMOND'S. -KUATING BUCKLN & MCCORMACK ING, PS. ‘MOTION FOR SUMMARY JUDGMENT Se te a -17 16-2-29091-4 KNT sore con01330334ul 12 13 4 15 16 7 18 19 20 21 2 23 24 25 26 2 intentionally; and therefore are not entitled to a City-funded defense under BDMC 2.66.030(A). DATED: December 15, 2017 KEATING, BUCKLIN & MeCORMACK, INC., P.S. By: /s/ Shannon M, Ragonesi Shannon M. Ragonesi, WSBA #31951 Atomeys for Defendants 801 Second Avenue, Suite 1210 Seattle, WA 98104-1518 Telephone: (206) 623-8861 Fax: (206) 223-9423 Email: sragonesi@kbmlawyers.com I certify that this memorandum contains 4,481 words, in compliance with the Local Civil Rules. DEFENDANT CITY OF BLACK DIAMOND'S [KexTING, BUCKLN de MCCORMACK, ING, PS. ‘MOTION FOR SUMMARY JUDGMENT wy iene ea SHE Reae ara 16-2-29091-4 KNT aioe scoo330334uw 12 13 4 15 16 17 18, 19 20 2 23 24 25 26 27 DECLARATION OF SERVICE I declare under penalty of perjury under the laws of the State of Washington that on December 15, 2017, a true and correct copy of the foregoing document was served upon the parties listed below via electronic mail or Dropbox: Attorneys for Plaintiff Michele Earl-Hubbard, WSBA #26454 Allied Law Group, LLC P.O. Box 33744 Seattle, WA 98133 Email: michele@alliedlawgroup.com info@alliedlawgroup.com Attorneys for Black Diamond City Council Members Erika Morgan, Pat Pepper and Brian Weber Jeff Taraday Lighthouse Law Group PLLC 1100 Dexter Ave., #100 Seattle, WA 98109 Email: jeff@lighthouselawgroup.com Desiree@lighthouselawgroup.com DATED this 15" day of December, 2017, at Seattle, Washington. (s! Blena Ortiz Elena Ortiz, Legal Assistant to Ms. Ragonesi DEFENDANT CITY OF BLACK DIAMOND'S earn, Bucxtay & McCoRMACK, INC, FS. MOTION FOR SUMMARY JUDGMENT ecoeeetes -19 meagan 16-2-29091-4 KNT aes sees.0001330334