Oakpointe's Motion For Partial Summary Judgement

FILED
17 DEC 15 PM 4:28
1 The Honorable Janet Helson

KING COUNTY
Noted for Hearing with Oral Argument: January 12,SUPERIOR
2018 1:30 p.m.
COURT CLERK
2 E-FILED
CASE NUMBER: 16-2-29091-4 KNT
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR KING COUNTY
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CCD BLACK DIAMOND PARTNERS LLC, a No. 16-2-29091-4 KNT
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Delaware Limited Liability Company,
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Plaintiff, PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
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vs.
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CITY OF BLACK DIAMOND and BLACK
DIAMOND CITY COUNCIL, a Public Agency,
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and ERIKA MORGAN, PAT PEPPER AND
BRIAN WEBER, Black Diamond City Council
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Members,
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Defendants.
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I. RELIEF REQUESTED
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Plaintiff respectfully requests that the Court grant partial summary judgment to
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the Plaintiff on the claims addressed below.
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II. STATEMENT OF FACTS
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The facts in this matter are set forth in the Chart of Proof attached as Exhibit 1 to
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the accompanying Declaration of Michele Earl-Hubbard, incorporated herein, and
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described herein. The three Individual Defendants, Black Diamond City Council
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Members Pat Pepper, Erika Morgan, and Brian Weber, have intentionally and knowingly
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engaged in numerous illegal meetings since they assumed the position of Majority on the
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PLAINTIFF’S MOTION FOR PARTIAL

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1 Council on January 7, 2016. They violated the Open Public Meetings Act from their first
2 moments in office, and continued to violate the Act even after being sued here. See Earl-
3 Hubbard Decl., Exs. 1-78.
4 III. EVIDENCE RELIED UPON
5 Plaintiff relies on the Declaration of Michele Earl-Hubbard (“MEH”) filed
6 herewith and the attachments thereto.
7 IV. ARGUMENT AND AUTHORITY
8 Summary judgment shall be rendered “if the pleadings, depositions, answers to
9 interrogatories, and admissions on file, together with the affidavits, if any, show that there
10 is no genuine issue as to any material fact and that the moving party is entitled to a judgment
11 as a matter of law.” CR 56(c). Plaintiff is entitled to summary judgment on the claims
12 addressed herein because there are no genuine issues as to any material fact and the record
13 shows that the Plaintiff is entitled to judgment as a matter of law on these claims.
14 RCW 42.30.010, the Legislative declaration of the purpose of the OPMA, states
15 as follows:
16 The legislature finds and declares that all public commissions, boards,
councils, committees, subcommittees, departments, divisions, offices, and
17 all other public agencies of this state and subdivisions thereof exist to aid
in the conduct of the people's business. It is the intent of this chapter that
18 their actions be taken openly and that their deliberations be conducted
openly.
19 The people of this state do not yield their sovereignty to the agencies
which serve them. The people, in delegating authority, do not give their
20 public servants the right to decide what is good for the people to know and
what is not good for them to know. The people insist on remaining
21 informed so that they may retain control over the instruments they have
created.
22
(emphasis added). The Defendants concede (a) that the Black Diamond City Council is a
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“public agency” as defined by RCW 42.30.020(1), (b) that the five Council Members of
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1 the Council were at all times relevant the “governing body” of the Council as defined by
2 RCW 42.30.020(2), and (c) that Individual Defendants Pat Pepper, Erika Morgan and
3 Brian Weber (“IDs”) were Council Members during the periods identified in the
4 Complaint. Defendants cannot dispute, and do not dispute, that three Council Members of
5 a five-member entity such as the Council constitutes a quorum of the Council and a
6 majority of the governing body. Defendants further do not, and cannot dispute, that two
7 members of a three member Standing Committee is a quorum of such Committee and a
8 majority of such Committee, and that the IDs constituted two of the three members of
9 each Standing Committee they created and that they met repeatedly to discuss Committee
10 business. (On 7/6/16 IDs Weber, Morgan and Pepper adopted a resolution reducing the
11 Budget Committee to two members, just IDs Weber and Morgan, so whenever Weber
12 and Morgan communicated on Budget Committee issues the entire Budget Committee
13 was communicating. Dep. Ex. 90, at MEH, Ex. 75).
14 A “meeting” under the OPMA occurs whenever “action” is taken. RCW
15 42.30.020(4). “Action” is defined as “the transaction of the official business of a public
16 agency by a governing body including but not limited to receipt of public testimony,
17 deliberations, discussions, considerations, reviews, evaluations, and final actions.”
18 (emphasis added). "Final action" means a collective positive or negative decision, or an
19 actual vote by a majority of the members of a governing body when sitting as a body or
20 entity, upon a motion, proposal, resolution, order, or ordinance.” RCW 42.30.020(3)
21 (emphasis added).
22 Washington State’s OPMA requires that “[a]ll meetings of the governing body of
23 a public agency shall be open and public and all persons shall be permitted to attend any
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1 meeting of the governing body of a public agency . . .” RCW 42.30.020. There are two
2 types of meetings under the OPMA – regular and special. “Regular” meetings are defined
3 in the OPMA as “recurring meetings held in accordance with a periodic schedule
4 declared by statute or rule.” RCW 42.30.075. Therefore, in the absence of an adopted
5 meeting schedule and given the binary nature of the options, any other meeting is deemed
6 a special meeting under the OPMA.
7 Special meetings under the OPMA are subject to the requirements of RCW
8 42.30.080. This statute requires that written notice of special meeting be: (i) delivered to
9 each local newspaper of general circulation; (ii) posted on the agency’s website; and (iii)
10 prominently displayed at the main entrance of the agency’s principal location and the
11 meeting site if it is not held at the agency’s principal location. RCW 42.30.080(2)(a)-(c).
12 Delivery and posting of such notice is required at least 24-hours before the time of such
13 meeting. RCW 42.30.080(2). Finally, the written notice required for special meetings
14 must specify the time and location and the agenda for such meeting. RCW 42.30.080(3).
15 In addition to requiring 24-hours advance notice of time, place, and agenda of
16 special meetings, the OPMA also mandates that the “minutes of all regular and special
17 meetings except executive sessions of such boards, commissions, agencies or authorities
18 shall be promptly recorded and such records that shall be open to public inspection.”
19 RCW 42.30.035.
20 A. Serial, Rolling, Daisy Chain and Secret Meetings of the IDs
21 The Individual Defendants seek to minimize the broad nature of the OPMA and
22 the breadth of the definition of “action”. Any time that three of the five Council Members
23 weighed in on something, whether or not in the same room or phone call or even on the
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1 same day – even if they did so in a serial or rolling fashion or using a third party, it was
2 “action” and thus a “meeting,” and an OPMA violation if done without proper notice.
3 Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 563 n.4, 27 P.3d 1208 (2001)
4 (“For example, the Washington Attorney General’s Open Records & Meetings
5 Deskbook, 1.3A notes that “telephone trees,” where members repeatedly phone each
6 other to form a collective decision, are inappropriate under the OPMA.”) (emphasis
7 added).
8 Given the general definition of “meeting,” combined with the directive to

liberally construe the OPMA, we conclude that the legislature intended a
9 broad definition of the word “meeting.”
10 Elected officials no longer conduct the public's business solely at in-person

meetings. See, e.g., Stockton Newspapers, Inc. v. Members of the
11 Redevelopment Agency, 214 Cal.Rptr. 561, 565, 171 Cal.App.3d 95
(1985) (“[I]f face-to-face contact of the members of a legislative body were
12 necessary for a ‘meeting,’ the objective of the open meeting requirement of
the Brown Act could all too easily be evaded.”). Further, a definition of
13 “meeting” that would require the physical presence of members in the same
location would contravene the OPMA's clear purpose.3
14
Consequently, courts have generally adopted a broad definition of “ meeting”
15 to effectuate open meetings laws that state legislatures enacted for the public
benefit.4 See, e.g., Stockton Newspapers, 214 Cal.Rptr. at 565–66 (series of
16 telephone calls between individual members and attorney to develop
collective commitment or promise on public business violated Brown
17 Act); Blackford v. Sch. Bd. of Orange County, 375 So.2d 578, 580
(Fla.Dist.Ct.App.1979) (successive meetings between school superintendent
18 and individual school board members violated Sunshine Law); Del Papa v.
Bd. of Regents of the Univ. & Cmty. Coll. Sys., 114 Nev. 388, 956 P.2d 770,
19 778 (1998) (use of serial electronic communication by quorum of public body
to deliberate toward or to make a decision violates state open meeting law).
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21 Wood, 107 Wn. App. at 562-63 (footnotes omitted) (holding non-passive receipt of email
22 constitutes meeting) (emphasis added); see also id. at 563 n.4 (citing AG Deskbook re
23 “telephone tree”); see also Eugster v. City of Spokane, 110 Wn. App. 212, 224, 39 P.3d
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1 380 (2002) (remanding for further fact finding due to allegations of serial
2 communications which would constitute a meeting). Further, the Municipal Resource
3 Service Center (“MRSC”), the authoritative resource for municipal agencies, in its
4 electronic communications recommendations clearly states: “The participants in the
5 email exchange don’t have to be participating in that exchange at the same time, as a
6 “serial” or “rolling” meeting can occur in violation of the OPMA.” Available at
7 http://mrsc.org/getmedia/bfa1aec4-0e0f-4663-8918-
8 be4afc885271/opma_electronic%20communications_practice%20tips.aspx (last visited
9 12/14/17), MEH, Ex. 74 The recommendations note that “meetings” occur from staff
10 sending material to which members respond or staff sharing members’ input with other
11 members. Id.
12 Citizens Alliance for Property Rights Legal Fund v. San Juan County
13 (“CAPR”), 184 Wn.2d 428, 359 P.3d 753 (2015), a case that has been cited by
14 Defendants –where only three of six members of a Council emailed each other– does not
15 alter this clear acceptance by Washington Courts of the “serial” or “daisy chain” meeting
16 as recognized in Wood and in Eugster. The background of CAPR is factually distinct
17 from the Black Diamond Council Standing Committees. CAPR involved a challenger
18 under the OPMA to the meetings of an informal group that met occasionally to discuss
19 how to implement the county’s critical area ordinance (CAO). This “CAO Team” had an
20 uncertain origin, no defined membership or formal purpose, and few records regarding its
21 existence. Those in attendance at the CAO meetings sometimes included three county
22 councilmembers. However, nothing indicated that the CAO Team was specifically
23 established by the county council. To the contrary here, the IDs specifically created the
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1 three Council Standing Committees via Resolutions Nos. 16-1069 and 16-1071, including
2 defining their 3-member membership, their formal purpose, and their delegated power.
3 See, Dep. Exs. 58 and 59, MEH, Exs. 17-18.
4 The record in this case is now replete with examples of the three IDs
5 communicating with one another, by email, by phone, in person, and through a third party
6 go-between, to establish dozens of un-noticed – and thus illegal – meetings of the IDs to
7 secretly engage in “action” away from the public’s view. See, e.g., MEH, Ex. 1 (Chart
8 of Proof).
9 For example, an email from Pepper to Weber in advance of the 2/24/16 Growth
10 Management Committee Meeting, shows that they had agreed in advance to interview
11 candidates for the Planning Commission even though that action was not stated on the
12 agenda or notice. MEH, Ex. 61 (2/24/16 Pepper email to Weber). Pepper forwarded
13 Weber the email she had sent to the Planning Commission candidates with the questions
14 to be asked during the interview. Id. Morgan, who is not on the Growth Management
15 Committee, somehow knew to show up as she testified she wanted to hear the candidates’
16 interviews even though such interviews were not on the agenda for the Committee
17 meeting. MEH, Ex. 51(Dep. Ex. 183) and Ex. 5 ( (Morgan Dep. Vol. 2 at 413:15-
18 414:16). This is ample evidence the three IDs communicated in advance of this meeting
19 and thus engaged in “action” constituting an illegal meeting.
20 Second, as documented in the Carol Morris Memo dated 1/12/16, Morgan, Pepper
21 and Weber all signed a letter on 1/8/16 asking for one Council meeting to be canceled
22 and for a Special Meeting of the Council to be set. MEH, Ex. 57 (1/12/16 Morris
23 Memo). Morris concluded:
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1 This letter was signed by thee Councilmembers, who had to discuss the
contents of the letter, and then either meet or exchange e-mails with
2 attachments to sign the letter. … [T]he three Councilmembers’ letter,
which demonstrates that they discussed and reached a consensus on the
3 cancelation of one meeting and schedule of another is a violation of [sic]
OPMA.
4
Id. at p. 3 ¶¶ 1-2. When Council Member Weber challenged her statement, City
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Attorney Morris responded with a second Memo, this one dated 1/13/16. In it she states:
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The reason I believe that the action taken here could easily be found to be a
7 violation of the OPMA is because there was a discussion about the
substance of the special meeting by the three Councilmembers. Consider
8 the fact that the letter of January 8, 2016, states that “the subject of the
special meeting will be for the consideration and approval of amendments
9 to the Rules of Procedure of the City Council of the City of Black
Diamond.” The amendments to these Rules have not been presented in any
10 Council Committee or regular Council meeting.
11 MEH, Ex. 58 (1-13-16 Morris Memo at p. 1 last ¶ and p. 2 first ¶) (emphasis in
12 original). The IDs 1/8/16 letter,1 as Attorney Morris correctly concluded, showed the IDs
13 had communicated outside of an open meeting to discuss the substance of the proposed
14 special meeting, and their letter further shows the meeting was for “approval” of
15 something they had not yet even introduced or shared with the other two Council
16 Members, further indicating illegal action and thus an illegal meeting.2
17 Third, approximately three hours prior to the start of the 6/16/16 Council Meeting,
18 Council Member Morgan sent Council Member Pepper an email with a proposed list of
19 agenda amendments for the Council meeting and noting “Pat if you approve I’ll send it
20 out to all concerned.” Dep. Ex. 159, BDCITY000387, at MEH, Ex. 48. Councilmember
21 Pepper then appears to have taken ID Morgan’s email list of amendments and created a
22
23 1
MEH, Ex. 11 (the 1/8/16 letter).
2
See also MEH, Ex. 4 (Morgan Dep. Vol. 1 at 110:17-119:12); Ex. 3 (Weber Dep. Vol. 1 at 123:1-
24 134:4); and Ex. 6 (Pepper Dep. Vol. 1 at 200:19-209:7).

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1 revised agenda for the 6/16/16 Council Meeting. Dep. Ex. 159, BDCITY000388, at
2 MEH, Ex. 48. Based on a public records request made by a Black Diamond citizen
3 following such Council meeting, the papers used by Council Member Weber from the
4 dais during such meeting were turned over the City and subsequently the Plaintiff.
5 Unexplainably, Council Member Weber possessed the same revised 6/16/16 agenda held
6 by Council Member Pepper. Dep. Ex. 160, BDCITY000401, at MEH, Ex. 49. The
7 Minutes posted by the City Clerk on the City of Black Diamond website for this 6/16/16
8 Council Meeting do not include any reference to a motion made by IDs Pepper, Morgan
9 or Weber to revise the agenda. Council Member Morgan did not produce such revised
10 agenda as shown by the same aforementioned public records request. The only
11 explanation for Council Member Weber’s possession of such revised 6/16/16 Council
12 agenda is an illegal meeting between the IDs.
13 The Court should grant summary judgment to Plaintiff against all Defendants as
14 to items 4, 15, and 36 on the Chart attached as MEH, Ex. 1 finding each of these
15 events to be an OPMA violation.
16 B. The Black Diamond Council Standing Committees Created by Resolution

Nos. 16-1069 and 16-1071 are Subject to the OPMA.
17
The Council created three Standing Committees in January 2016 through their
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passage of Resolution Nos. 16-1069 and 16-1071. See Resolution No. 16-1069 at Section
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18.1.4, Dep. Ex. 58 at MEH, Ex. 17. The Resolutions declared that each of the Standing
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Committees would have three Council Members as members, a quorum of the Council as
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a whole, and the Resolution specifically delegated significant powers to the Committees
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to exercise on behalf of the Council. See, e.g., Resolution No. 16-1069 at Section 18.1.1
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(“[A]ll ordinance and resolutions shall be referred by the Mayor Pro Tempore to the
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1 Council Standing Committee that has jurisdiction over the subject matter of the
2 legislation. No ordinance or resolution shall be placed on the Council Agenda for final
3 action unless it has received a “do-pass” or “no recommendation” recommendation by a
4 Council Standing Committee…”). Therefore, the three Standing Committees created by
5 Resolution Nos. 16-1069 and 16-1071 are subject to the OPMA for two independent
6 reasons: (1) their membership constituted a quorum of the Black Diamond City Council
7 and therefore have to be noticed as a special meeting of the Council as a whole; and (2)
8 they are committees with specifically delegated power to exercise on behalf of the
9 Council and therefore have to be noticed as a special meeting of the Standing Committee
10 itself.
11 1. The Standing Committees are a Quorum of the Council

Requiring Notice as a Special Meeting the Council as a Whole.
12
Since the Standing Committees each had three of the five Council Members
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assigned to the Committee, every Standing Committee was a quorum of the Council.
14
This meant that every Standing Committee Meeting was not only a Special Meeting of
15
the Standing Committee, as discussed further below, but it was also a Special Meeting of
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the City Council as well.
17
Attorney Phil Talmadage, hired by the IDs to provide legal analysis and advice
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regarding the new Council Rules and Standing Committee structure, clearly warned the
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IDs of this fact. In his Memorandum he stated as follows:
20
We are aware that having three members of Council serve on a committee
21 has some special legal requirements. Because three persons is a majority of
Council, special attention must be paid to requirements of the Open Public
22 Meetings Act. RCW 42.30. The Act’s requirements are triggered at any
point that the governing body of a public agency has a meeting as defined
23 by the Act. RCW 42.30.090. As a committee of Council, it is a “governing
body” when it “acts on behalf of the governing body, conducts hearings, or
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1 takes testimony or public comment.” RCW 42.30.020(2). If the committee
takes any “action,” it is subject to the Act. The definition of “action” is quite
2 broad under the Washington law. See AGO 2010 No. 9. Accordingly,
commensurate with the aforementioned AGO, public notice and following
3 the requirements of the Open Public Meeting Act should be given both for
the committee meeting and also as a meeting of the Council. Rule 18.1.13a
4 should be clarified to provide notice for both the committee and the Council
to insure compliance with the Open Public Meeting Act.
5
MEH, Ex. 19 (Dep. Ex. 60) at 9. As confirmed by Attorneys Talmadge and Fitzpatrick,
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the Council Standing Committees Meetings are required to be noticed as Special
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Meetings of the Black Diamond City Council as a whole under the OPMA.
8
2. The Standing Committees Are Separately Subject to the
9 OPMA as Committees with Power.
10 The State Supreme Court in Citizens Alliance for Property Rights of San Juan
11 County v. San Juan County (“CAPR”), 184 Wn.2d 428, 359 P.3d 753 (2015), adopted
12 the following definitions:
13 (1) a “meeting” of a governing body occurs when a majority of its members

gathers with the collective intent of transacting the governing body's
14 business, (2) a “committee thereof” with respect to a given governing body
is an entity that the governing body created or specifically authorized, and
15 (3) a committee “acts on behalf of” a governing body when the committee
exercises actual or de facto decision-making authority on behalf of the
16 governing body.
17 CAPR, 184 Wn.2d at 444. Thus, to establish that a committee is subject to the OPMA, a
18 plaintiff must establish that (A) a majority of council members participated in the
19 committee meeting with the collective intent of transacting the Council's business, or (B)
20 the committee was created by the Council and (C) that it exercised decision-making
21 authority on behalf of the Council. Id. at 444. This test is easily met as to the Black
22 Diamond Council Standing Committees at issue here.
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1 First, the three Standing Committees created under Resolution Nos. 16-1069 and
2 16-1071 are clearly “committees”—“‘a body of persons delegated to consider,
3 investigate, or take action upon and to report concerning some matter of business.’” 1986
4 Op. Att'y Gen. No. 16, at 6 (quoting WEBSTER'S THIRD NEW INTERNATIONAL
5 DICTIONARY 458 (1971)).
6 Second, pursuant to Resolution No. 16-1071, three Council Members were
7 appointed to each of three Standing Committees (consisting of a quorum of the Council
8 as a whole) and the Standing Committees were supposed to transact the Council’s
9 business.
10 Third, all of the Standing Committees were “created by the Council” by virtue of
11 Resolution Nos. 16-1069 and 16-1071 and the Standing Committees each “exercised
12 decision-making authority on behalf of the Council.” CAPR, 184 Wn.2d at 444. As
13 Resolution No. 16-1069 clearly states at Section 18.1.1, matters were required to be
14 referred to the Standing Committees and nothing could come out of the Standing
15 Committees and return to the Council unless it received a “do pass” or a “no
16 recommendation recommendation” from the Committee so, as Council Member Morgan
17 acknowledged, so long as the Resolution’s requirements were met, nothing could leave
18 the Committees without a recommendation of the Committee to do so. MEH, Ex. 5
19 (Morgan Dep, Vol. 2 at 383:16-384:1).
20 In fact, as Mr. Brian Derdowski one of the principal authors3 of Resolution No.
21 16-1069 acknowledged during his presentation at the Government Operations Standing
22
23
3
24 MEH, Ex. 4 (Morgan Dep. Vol. 1 at 72:13-75:15).

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1 Committee Meeting on 2/11/16 where he was asked by Council Member Morgan to come
2 explain the new Council Rules:
3 The next item has to do with – this is set 18.11. This is a description of how
ordinances and resolutions are handled. And that is that now all resolutions
4 and ordinances are introduced by the council member. They are put on the
agenda for first reading. They’re assigned to a committee. And those
5 committees have real authority. They matter. So, this language is
added to the rules. No ordinance or resolution shall be placed on the
6 council agenda for final action, unless it has received a do-pass or a no-
recommendation recommendation by a council standing committee ….
7
Here’s how that works. Resolutions and ordinances are introduced by
8 council member. They’re put on the agenda for first reading. The public
gets notice of it. It goes to committee. The committee has a public hearing
9 or public discussion on it, it’s advertised as a public noticed. It’s done in
the evening. It’s formal. The committee then has the authority to say, “I
10 move to tell the council they ought to vote for this, or I move to tell the
council that we had no recommendation.” And then the council members
11 or the members of the committee vote whether to approve that
recommendation. Now, the committee also have the authority to keep it
12 in committee. So, if the committee, if there’s a three-member
committee, and if they’re not two votes to move it onto the council, stays
13 in committee. And so, that’s a very important power of the committee.
14 MEH, Ex. 59 (2/11/16 Govt Op Comm transcript) at pp. 13-14 (emphasis added). This
15 “authority” is the very source of concern expressed by the City’s Risk Pool in its 1/20/16,
16 Correspondence in which it states “RMSA is concerned about the structure of all the
17 Standing Committees, as they appear to be functioning on behalf of the Council.” Dep
18 Ex. 56, page 3 of 5 at MEH, Ex. 15 (emphasis added).
19 Thus the Standing Committees, regardless of their size, were subject to the
20 OPMA and were governing body entities themselves, meaning when two of a three
21 member committee engaged in action, a meeting of the Committee occurred, and when
22 two of a two-member committee engaged in action a meeting of the Committee occurred.
23
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1 3. “Action” was Taken at the Standing Committee Meetings.
2 The agendas of the Standing Committee Meetings document that “action”
3 occurred at the meetings as defined by RCW 42.30.020(4). For example,
4 • Deposition Exhibit 136,4 the agenda for the Budget Committee Meeting
5 dated 7/20/16, notes that the committee would be receiving public
6 testimony (i.e., public comment) and discussing Council business (i.e.,
7 vouchers and contracts).
8 • Deposition Exhibit 155,5 the agenda for Government Operations
9 Committee Meeting dated 10/25/16, includes, amongst other items, public
10 comment as well as discussion of AB16-062, resolution authorizing a
11 collective bargaining agreement with the Black Diamond Police Officers
12 Association.
13 • Deposition Exhibit 156,6 the agenda for the Government Operations
14 Committee Meeting dated 12/10/16, includes public comment and specific
15 language that “action may be taken in the form of a recommendation to
16 place this on the next full council meeting agenda” regarding AB16-060, -
17 063, -064, -065, and -074.
18 • And, Deposition Exhibit 157,7 the agenda for the Government Operations
19 Committee Meeting dated 1/25/17, specifically notes that “action may be
20 taken in the form of a recommendation to the full Council” for AB17-
21 002A, -008, -009, and -010.
22
4
MEH, Ex. 29.
23 5
MEH, Ex. 45.
6
MEH, Ex. 46.
7
24 MEH, Ex. 47.

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1 The agendas themselves show that the IDs engaged in “the transaction of the official
2 business of a public agency by a governing body including but not limited to receipt of
3 public testimony, deliberations, discussions, considerations, reviews, evaluations, and
4 final actions” at each of the Standing Committee meetings. RCW 42.30.020(4) (emphasis
5 added).
6 C. Black Diamond Standing Council Committee Meetings were Held in

Violation of the OPMA.
7
Special meetings under the OPMA require written notice of special meeting be:
8
(i) delivered to each local newspaper of general circulation; (ii) posted on the agency’s
9
website; and (iii) prominently displayed at the main entrance of the agency’s principal
10
location and the meeting site if it is not held at the agency’s principal location. RCW
11
42.30.080(2)(a)-(c). Delivery and posting of such notice is required at least 24-hours
12
before the time of such meeting. RCW 42.30.080(2). Finally, the written notice required
13
for special meetings must specify the time and location and the agenda for such meeting.
14
RCW 42.30.080(3).
15
In addition to requiring 24-hours advance notice of time, place, and agenda of
16
special meetings, the OPMA also mandates that the “minutes of all regular and special
17
meetings except executive sessions of such boards, commissions, agencies or authorities
18
shall be promptly recorded and such records that shall be open to public inspection.”
19
RCW 42.30.035.
20
All of the Black Diamond Council Standing Committee Meetings were Special
21
Meetings, not Regular Meetings. The meetings were not held on any particular schedule,
22
announced in advance, to make them regular meetings, such as the first Monday of every
23
month, for example. Each of the IDs acknowledged they failed to adopt any rule,
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1 regulation or resolution setting a regular schedule for such Standing Committee Meeting. 8
2 Thus, as Special Meetings, the Standing Committee Meetings required a Notice, and
3 Agenda, posted on the City’s website and provided to all Council Members and all
4 members of the public who had requested notice at least 24 hours prior to the meeting.
5 Pursuant to RCW 42.30.080(3) the notice “shall specify the time and place of the special
6 meeting and the business to be transacted. Final disposition shall not be taken on any
7 other matter at such meetings by the governing body.”
8 It is undisputed that notices were not posted and circulated for any Standing
9 Committee Meeting after May 25, 2016.9 At least 26 Standing Committee Meetings were
10 nonetheless held by the IDs after May 2016 to the present. See, e.g., MEH, Ex. 1 (items
11 39-48, 50-53, 56-67).
12 At least two Standing Committee Meetings for which notices were posted had
13 agendas that deliberately failed to identify business that would occur, and which the IDs
14 knew would occur. The 2/24/16 Growth Management Council Committee Meeting,
15 which was attended by all three IDs and thus was attended by a quorum of the Council,
16 failed to state on the notice of agenda that the Committee had invited and would be
17 interviewing candidates for the Planning Commission. MEH, Ex. 1 (item 16). The three
18 IDs took action in that Committee meeting by receiving public testimony as well as
19 conducting “reviews” and “evaluations” of the Planning Commission candidates (see
20 RCW 42.30.020(4)) and the Standing Committee itself took final action issuing a “do
21
22 8
MEH, Ex. 4 (Morgan Dep. vol. 1 at 225:16-260:24); Ex. 6 (Pepper Dep. vol. 1 at 99:1-136:7) Ex 3
(Weber Dep. vol. 1 at 203:16-225:1).
23 9
MEH, Ex. 1 (item 33), Ex. 13 (Dep. Ex. 51), Ex. 4 (Morgan Dep. vol. 1 at 225:16-260:24), Ex. 6
(Pepper Dep. vol. 1 at 99:1-136:7), Ex. 3 (Weber Dep. vol. 1 at 203:16-225:1), Ex. 8 (Martinez Dep.
24 Vol. 1 at 130:25-133:17).

P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 pass” recommendation for appointment of the interviewed planning commission
2 candidates.
3 The Government Operations Committee Meeting failed to state on its agenda and
4 notice for the 2/11/16, Committee Meeting that Brian Derdowski would present a lengthy
5 presentation about the proposed new Council Rules and the role of the new Standing
6 Committees. MEH, Ex. 1 (item 13); Ex. 8 (Martinez Dep. Vol. 1 130:11-24); Exs. 59
7 (Transcript of 2/11/16 Govt Ops Comm. Mtg); Ex. 62 and Ex. 67.
8 The Defendants failed to prepare minutes for at least 44 Standing Committee
9 Meetings. See, e.g., MEH, Ex. 1 (items 12-14, 16-28, 30-31, 39-48, 50-53, 56-67).
10 The record thus establishes OPMA violations connected with Standing
11 Committees of at least 26 Standing Committee Meetings that were held in violation of the
12 OPMA due to improper notice two Standing Committee Meetings that involved a
13 deliberately incomplete agenda and where action was taken for events not listed on the
14 agenda and 44 Standing Committee Meetings for which no Minutes were ever prepared
15 and published.
16 D. Pepper, Morgan and Weber Acted with Knowledge that the Meetings
were in Violation of the OPMA.
17
All public officials by law must receive training in the OPMA within 90 days of
18
taking office. RCW 42.30.205. Weber and Pepper were trained by then-City Attorney
19
Carol Morris on January 7, 2016. MEH, Ex. 1 (item 3), Ex. 2 (Morris Dep. at 101:21-
20
103:16, 202:19-204:19). Morgan was also trained alongside then-Council Member, now
21
Mayor, Benson in 2014 when they served on the Council together. MEH, Ex. 1 (item 1).
22
Morris trained Morgan in 2015. MEH, Ex. 2 (Morris Dep. 101:21-103:16, 202:19-
23
204:19). Morgan attended other trainings and professed a lifelong understanding and
24

P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 exposure to the OPMA through family members who had served as government officials.
2 MEH, Ex. 4 (Morgan Dep. Vol. 1, at 79:3-84:18). The Individual Defendants each
3 admit to knowing that the Committee Meetings were Special Meetings that required
4 notice, agendas, and minutes. MEH, Ex. 4 (Morgan Dep. Vol. 1 at 225:16-229:11) Ex.
5 6(Pepper Dep. Vol. 1 at 99:1-136:7); Ex. 3 (Weber Dep Vol. 1 at 203:16-225:1). The
6 IDs all also admit to knowing that notices were not posted for Committee Meetings after
7 May 26, 2016, and to attending the Committee Meetings anyway. Id. The IDs
8 acknowledge that minutes were often not produced, and admit that agendas were often
9 not created, and the agendas that were – when compared to the minutes or the recordings
10 of the Meeting – establish that key events that occurred at the Committee Meetings –
11 such as interviews of planning commission candidates and presentations by Brian
12 Derdowski – were not listed on the agenda. Id.; see also MEH, Ex. 1.
13 Attorney Morris stated during her deposition
14 THE WITNESS: I understand that those three council members, Pepper,

Morgan, and Weber, would not want the insurance provider to know about
15 it because they wanted to, again, pursue their own private means, and they
didn't want anyone to stop them. They didn't care whether or not the City
16 was exposed to liability in a lawsuit. They didn't care. They didn't care.
17 Q (By Ms. Phair) How do you know that?
18 A Because they got the advice from me and from the insurance provider
and they proceeded anyway.
19
MEH, Ex. 2 (Morris Dep. 188:7-17).
20
The IDs seek to blame the Mayor and City staff for not posting notices of
21
Committee Meetings that City attorneys and the Mayor understood were illegal, but the
22
IDs cannot dispute that they nonetheless attended meetings they knew required notice,
23
agenda and minutes with knowledge that those meetings were lacking in one or all of
24

P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 those requirements. Thus the record clearly establishes that the IDs attended meetings
2 with knowledge that the meetings violated the OPMA.
3 E. Penalties are Assessed for Each Violation.
4 Since the OPMA’s passage in 1972, it provided that
5 Each member of the governing body who attends a meeting of such

governing body where action is taken in violation of any provision of this
6 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
7 civil penalty in the amount of one hundred dollars.
8 RCW 42.30.120 (1972-2015). The penalty was always viewed as, and enforced as a “per
9 meeting” violation. MEH, at ¶¶ 73-76 & Ex. 73 (Jefferson County Judgment).
10 In 2016, due to concerns that the mere $100 per-meeting violation penalty was
11 insufficient deterrence, the State Legislature amended the Act through SB 6171 to
12 increase the per-meeting penalty to $500, and added a $1000 per-meeting penalty for
13 anyone who had previously been found in a final court judgment to have attended a
14 meeting in violation of the OPMA with knowledge that the meeting was in violation of
15 the OPMA. RCW 42.30.120 (2016-present). MEH, Exs. 68-72. SB 6171 was legislation
16 requested by the Attorney General. The AG spokesperson, the Open Government
17 Ombudsman, and the sponsors all made clear the goal of the legislation was to increase
18 the overall penalties, and the overall deterrent effect of the law and its deterrent effect on
19 the individual officials who might violate the OPMA. See MEH, Exs. 68-72 (complete
20 legislative history of SB 6171 available at
21 http://app.leg.wa.gov/billsummary?BillNumber=6171&Year=2016 (last visited
22 December 13, 2017) and the video recordings of the hearings on the bill available at
23
24

P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 • Video of Senate Government Operations & Security Committee January 14,
10:00 am Meeting available at https://www.tvw.org/watch/?eventID=2016010072
2 at counter 12:40 (last visited December 13, 2017).
3
• Video of Senate Government Operations & Security Committee January 28,
4 10:00 am meeting available at https://www.tvw.org/watch/?eventID=2016010345
at counter 41:50 (last visited December 13, 2017).
5
• Video of House State Government Committee February 23, 10:00 am Meeting
available at https://www.tvw.org/watch/?eventID=2016021315 at counter 38:08
6
discussing SB 6171 (last visited December 13, 2017).
7 • Video of House State Government Committee, February 24, 2016, 8 am Meeting
available at ihttps://www.tvw.org/watch/?eventID=2016021335 at counter 1:06
8 (last visited December 13, 2017).
9 To the extent Defendants try and argue that by increasing the penalties from $100
10 to $500 and adding an additional penalty of $1000 for a violation occurring after a
11 previous judicial determination of a knowing violation, that the Legislature intended to
12 limit the amount of penalties that could be imposed against an official to $500 in a
13 lawsuit no matter how many meetings the official participated in knowing the meeting
14 violated the Act, that reading is not supported by the text of the law or its Legislative
15 History. The provision continues to speak of a “meeting” singular when describing the
16 penalty for such meeting, and nowhere in the Act, before the amendment or after, is this
17 changed. The penalty is for each “meeting” the governing body member participates in
18 with knowledge the meeting is in violation of the OPMA in some respect. A penalty is
19 assessed for each such meeting. If the individual is sued again after being found by a
20 Court to have attended a meeting with knowledge it did not comply with the OPMA, then
21 that official is penalized $1000 per meeting for these subsequent offenses. Nowhere in
22 the text of the Statute, or its Legislative History, or its forty-plus year history since its
23 passage, is there any hint the Legislature intended to impose less of a penalty on an
24 official who participates in a meeting knowing it was in violation of the OPMA or that

P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 the official would be limited to a single one-time $100, or now $500, penalty in a lawsuit
2 no matter how many meetings the official participated in knowing they were in violation
3 of the OPMA.
4 The Individual Defendants have admitted to participating in the action that
5 constitutes the meetings at issue. As discussed above, their knowledge of the illegality of
6 those meetings is fully established. MEH, Ex. 1 (Chart) at items 4, 12, 13-28, 30-31,
7 36, 39-48, 50-53, 56-67. For purposes of this partial summary judgment motion, the
8 Individual Defendants should be fined $500 per meeting for each meeting in which they
9 individually participated for the events described at items 4, 12, 13-28, 30-31, 36, 39-48,
10 50-53, 56-67.
11 F. Fees and Costs Should be Made the Responsibility of the Individual

Defendants
12
At all times relevant the IDs have been the majority of the Black Diamond City
13
Council. They knowingly took action, against the advice of several attorneys representing
14
the City, that created the legal liability and fee and cost award that would befall the City
15
upon entry of summary judgment in this case. They have each been notified, and warned,
16
numerous times by lawyers, their insurance Risk Pool, and members of the public that the
17
actions they were taking were illegal and would subject them and their City to liability. In
18
the words of former City Attorney Morris:
19
[T]hey wanted to, again, pursue their own private means, and they didn't
20 want anyone to stop them. They didn't care whether or not the City was
exposed to liability in a lawsuit. They didn't care. They didn't care.
21
Q (By Ms. Phair) How do you know that?
22
A Because they got the advice from me and from the insurance provider
23 and they proceeded anyway.
24

P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 MEH, Ex. 2 (Morris Dep. 188:7-17).
2 The IDs had multiple methods to behave lawfully and serve their constituents and
3 fulfill their duties. The rejected those options to behave knowingly and intentionally
4 illegal, hurting their City, and their citizens in the process.
5 RCW 42.30.120(4) states “Any person who prevails against a public agency in
6 any action in the courts for a violation of this chapter shall be awarded all costs, including
7 reasonable attorneys' fees, incurred in connection with such legal action.” What is clear
8 from this provision is that a Plaintiff can “prevail” in an OPMA case merely by showing
9 the OPMA was in some way violated, and need not show a governing body member
10 knew the meeting was illegal. While oftentimes an agency is the one to pay the fees and
11 costs from this award, this Court has it in its power to effect justice and to determine
12 whether such shifting of liability to the taxpayers who have been harmed is appropriate or
13 allowable, and the Court has the power to decide at the end of the day who should foot
14 the bills racked up by the IDs in trying to defend the indefensible in this litigation.
15 Plaintiff requests that the IDs be ordered to reimburse the taxpayers of Black
16 Diamond for any portion of the fee and cost award the taxpayers are obliged to pay as
17 well as any of the IDs’ own legal expenses that are or were paid by taxpayers. These IDs
18 created this situation for themselves, for Plaintiff, for the City and for the constituents and
19 taxpayers the IDs were supposed to represent and serve. They should not be rewarded for
20 their illegal and willful behavior, and the taxpayers of Black Diamond should not be
21 made to pay for it.
22
23
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P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 V. CONCLUSION
2 For the foregoing reasons, the Court should grant summary judgment to Plaintiff
3 on the claims addressed herein, declare Plaintiff the prevailing party, fine the Individual
4 Defendants $500 for each meeting they participated in with knowledge it violated the
5 OPMA, and award Plaintiff its fees and costs incurred herein, with any portion borne by
6 the taxpayers of Black Diamond to be repaid by the Individual Defendants in this case.
7 Respectfully submitted this 15th day of December, 2017.
8 ALLIED LAW GROUP LLC
9 By:
Michele Earl-Hubbard, WSBA #26454
10 P.O. Box 33744
Seattle, WA 98133
11 Attorneys for Plaintiff
michele@alliedlawgroup.com
12 (I certify that this memorandum contains 6522 words in accordance with the Civil Rules.)
13
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P.O. Box 33744
Seattle, WA 98133
(206) 443-0200
1 CERTIFICATE OF SERVICE
2 I, Michele Earl-Hubbard, hereby declare under penalty of perjury under the laws of
the State of Washington, that today I served the foregoing document on the below
3 individuals by email pursuant to agreement:
4 Jeff Taraday, WSBA # 28182 Shannon M. Ragonesi, WSBA # 31951

Desiree Phair, WSBA #52512 Derek Chen, WSBA #49723
5 Lighthouse Law Group PLLC Keating Bucklin & McCormack, Inc., P.S.
1100 Dexter Ave., #100 801 Second Ave., Suite 1210
6 Seattle, WA 98019 Seattle, WA 98104
jeff@lighthouselawgroup.com sragonesi@kbmlawyers.com;
7 desiree@lighthouselawgroup.com dchen@kbmlawyers.com;
Attorneys for Defendants Erika Morgan, eortiz@kbmlawyers.com
8 Pat Pepper and Brian Weber Attorney for Defendant City of Black
Diamond and Black Diamond City
9 Council
10
Dated December 15, 2017, at Seattle, Washington.
11
12
Michele Earl-Hubbard
13
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P.O. Box 33744
Seattle, WA 98133
(206) 443-0200

Oakpointe's Motion For Partial Summary Judgement

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FILED

1 The Honorable Janet Helson

PLAINTIFF’S MOTION FOR PARTIAL

3 Hubbard Decl., Exs. 1-78.

4 III. EVIDENCE RELIED UPON

5 Plaintiff relies on the Declaration of Michele Earl-Hubbard (“MEH”) filed

6 herewith and the attachments thereto.

7 IV. ARGUMENT AND AUTHORITY

8 Summary judgment shall be rendered “if the pleadings, depositions, answers to

11 as a matter of law.” CR 56(c). Plaintiff is entitled to summary judgment on the claims

PLAINTIFF’S MOTION FOR PARTIAL

7 members of a three member Standing Committee is a quorum of such Committee and a

13 was communicating. Dep. Ex. 90, at MEH, Ex. 75).

14 A “meeting” under the OPMA occurs whenever “action” is taken. RCW

15 42.30.020(4). “Action” is defined as “the transaction of the official business of a public

17 deliberations, discussions, considerations, reviews, evaluations, and final actions.”

18 (emphasis added). "Final action" means a collective positive or negative decision, or an

20 entity, upon a motion, proposal, resolution, order, or ordinance.” RCW 42.30.020(3)

PLAINTIFF’S MOTION FOR PARTIAL

3 in the OPMA as “recurring meetings held in accordance with a periodic schedule

4 declared by statute or rule.” RCW 42.30.075. Therefore, in the absence of an adopted

6 a special meeting under the OPMA.

15 In addition to requiring 24-hours advance notice of time, place, and agenda of

17 meetings except executive sessions of such boards, commissions, agencies or authorities

20 A. Serial, Rolling, Daisy Chain and Secret Meetings of the IDs

PLAINTIFF’S MOTION FOR PARTIAL

8 Given the general definition of “meeting,” combined with the directive to

10 Elected officials no longer conduct the public's business solely at in-person

PLAINTIFF’S MOTION FOR PARTIAL

2 communications which would constitute a meeting). Further, the Municipal Resource

4 electronic communications recommendations clearly states: “The participants in the

6 “serial” or “rolling” meeting can occur in violation of the OPMA.” Available at

8 be4afc885271/opma_electronic%20communications_practice%20tips.aspx (last visited

16 as recognized in Wood and in Eugster. The background of CAPR is factually distinct

PLAINTIFF’S MOTION FOR PARTIAL

3 See, Dep. Exs. 58 and 59, MEH, Exs. 17-18.

19 and thus engaged in “action” constituting an illegal meeting.

23 Memo). Morris concluded:

PLAINTIFF’S MOTION FOR PARTIAL

11 MEH, Ex. 58 (1-13-16 Morris Memo at p. 1 last ¶ and p. 2 first ¶) (emphasis in

16 Members, further indicating illegal action and thus an illegal meeting.2

PLAINTIFF’S MOTION FOR PARTIAL

12 agenda is an illegal meeting between the IDs.

15 events to be an OPMA violation.

16 B. The Black Diamond Council Standing Committees Created by Resolution

PLAINTIFF’S MOTION FOR PARTIAL

3 action unless it has received a “do-pass” or “no recommendation” recommendation by a

4 Council Standing Committee…”). Therefore, the three Standing Committees created by

11 1. The Standing Committees are a Quorum of the Council

PLAINTIFF’S MOTION FOR PARTIAL

12 the following definitions:

13 (1) a “meeting” of a governing body occurs when a majority of its members

22 Diamond Council Standing Committees at issue here.

PLAINTIFF’S MOTION FOR PARTIAL

2 16-1071 are clearly “committees”—“‘a body of persons delegated to consider,

5 DICTIONARY 458 (1971)).

6 Second, pursuant to Resolution No. 16-1071, three Council Members were

7 appointed to each of three Standing Committees (consisting of a quorum of the Council

12 decision-making authority on behalf of the Council.” CAPR, 184 Wn.2d at 444. As

16 recommendation recommendation” from the Committee so, as Council Member Morgan

18 the Committees without a recommendation of the Committee to do so. MEH, Ex. 5

19 (Morgan Dep, Vol. 2 at 383:16-384:1).

21 16-1069 acknowledged during his presentation at the Government Operations Standing