Defendant's Motions For Summary Judgement

FILED
17 DEC 18 AM 9:00
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
1 KING COUNTY
SUPERIOR COURT CLERK
2 E-FILED
CASE NUMBER: 16-2-29091-4 KNT
3 CCD BLACK DIAMOND PARTNERS LLC, )
a Delaware Limited Liability Company, ) No.: 16-2-29091-4 KNT
4 )
Plaintiff, ) INDIVIDUAL DEFENDANTS’ MOTION
5 ) FOR PARTIAL SUMMARY JUDGMENT
)
6 v. )
)
7 CITY OF BLACK DIAMOND and BLACK )
DIAMOND CITY COUNCIL, a Public )
8 Agency, and ERIKA MORGAN, PAT )
PEPPER AND BRIAN WEBER, Black )
9 )
Diamond City Council Members,
)
10 )
Defendants. )
11
12 TABLE OF CONTENTS
13 TABLE OF AUTHORITIES……………………………………………………………….……iv
14 I. RELIEF REQUESTED………………………………………………………………..….1
15 II. STATEMENT OF RELEVANT FACTS………………………………………….……..1
16 III. STATEMENT OF ISSUES……………………………………………….…………..….4
17 IV. EVIDENCE RELIED UPON………………………………………………………….…4
18 V. LEGAL AUTHORITY AND ARGUMENT……………………………………….……5
19 A. A Councilmember-elect does not become a member of the governing
20 body subject to the OPMA until taking the oath of office ………………………..…5
21 B. Passive Receipt of E-Mail Does Not Constitute Participating
22 in a “Meeting” ……………………………………………………………………….6
23 C. Councilmembers may communicate to schedule or cancel a meeting;
24 councilmembers who have done so cannot have intentionally violated
25 the OPMA……………………………………………………………………………7
26
LIGHTHOUSE LAW GROUP PLLC

INDIVIDUAL DEFENDANTS’ MOTION FOR 1100 Dexter Avenue N. #100
PARTIAL SUMMARY JUDGMENT - i Seattle, WA 98109
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1 1. RCW 42.30.080 and Black Diamond City Council Rules
2 of Procedure both expressly allow a quorum of the City Council
3 to schedule a special meeting…………………………….……………….….7
4 2. As a logical and practical matter, the same persons who may
5 communicate in order to schedule or adjourn a meeting may also
6 communicate in order to cancel a meeting………………………….…….….9
7 D. Interactions of two out of five councilmembers do not trigger a knowing
8 OPMA violation, even if both councilmembers serve on the
9 same committee…………………………………………………………...…..…….11
10 1. Resolution 16-1069 revising the Council Rules was structured such
11 that committees merely reviewed items and forwarded them back to
12 the whole Council, and no committee actually had the power to kill
13 resolutions and ordinances…………………………………………………..….13
14 2. No public committee meeting involved more than two councilmembers
15 unless the meeting was properly noticed……………………………………….14
16 3. The mayor refused to recognize the validity of any version of the
17 2016 Rules, thus the committees were never given the support needed to
18 “act on behalf of” the legislative body…………………………………………14
19 4. Morgan, Pepper, and Weber have conducted themselves under the
20 good-faith belief that two out of five councilmembers communicating
21 did not constitute an OPMA violation………………………………………….15
22 a. Despite several issues with attorney ethics and professionalism,
23 to the extent that attorney advice was rendered, the consistent
24 messaging has been that if three councilmembers would interact,
25 notice would be required………………………………………….………..15
26

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1 b. No reasonable fact finder reviewing the councilmembers’
2 emails would believe that these councilmembers thought that
3 two committee members collaborating constituted an OPMA
4 violation………………………………………………………………..……18
5 E. The current version of the OPMA civil penalties statute caps penalties
6 at $500 per individual unless a court has previously found the individual
7 actor liable for violating the OPMA………………………………………………..19
8 F. The Individual Defendants are entitled to declaratory and injunctive relief
9 requiring the City of Black Diamond to pay the Individual Defendants’
10 attorney fees and other costs of defense………..…………………………………..22
11 VI. CONCLUSION………………………………….……………………………….…….25
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1 TABLE OF AUTHORITIES
2 Cases
3 Am. Best Food, Inc. v. Alea London, Ltd., 138 Wn. App. 674, 158 P.3d 119 (2007)……..……24
4 Adkisson v. City of Seattle, 42 Wn.2d 676, 258 P.2d 461 (1953)………………………………24
5 Cerrillo v. Esparza , 158 Wn. 2d 194, 142 P.3d 155 (2006)……………………………………19
6 Citizens Alliance for Property Rights Legal Fund v. San Juan County,
7 184 Wn.2d 428, 359 P.3d 753. …………………………………………………. 6, 11, 12
8 Citizens Alliance for Prop. Rights Legal Fund v. San Juan Cty., 181 Wn. App. 538,
9 326 P.3d 730 (2014), aff'd, 184 Wn.2d 428, 359 P.3d 753 (2015)………………..…... 11
10 Michak v. Transnation Title Ins. Co. 148 Wn.2d 788, 794–95,
11 64 P.3d 22, 25 (2003). ………………………………………………………………….19
12 People’s Organization for Wash. Energy Resources v. Wash. Utilities and
13 Transp. Com’n, 104 Wn.2d 798, 711 P.2d 319 (1985). …………………………… 21, 22
14 Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001)……………………..………………..11
15 State ex rel. Longview Fire Fighters Union, Local 828, I.A.F.F. v. City of Longview,
16 65 Wn.2d 568, 399 P.2d 1 (1965). ………………………………………………….….22
17 West v. Wash. Ass'n of County Officials, 162 Wn. App. 120,
18 252 P.3d 406 (2011). …………………………………………………….…………..…19
19 Wood v. Battle Ground School Dist., 107 Wn. App. 550,
20 27 P.3d 1208 (2001). ……………………………………………………………………5
21
22 Statutes, Senate Bills, and Local Rules
23 RCW 29A.60.280 ……………………………………………………..…………………………5
24 RCW 42.30.020 ………………………………………………………………..……………….11
25 RCW 42.30.030 ……………………………………………………………………..………….17
26 RCW 42.30.080 …………………………………………………………..…………..…..passim

PARTIAL SUMMARY JUDGMENT - iv Seattle, WA 98109
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1 RCW 42.30.120 …… …………………………………………………………………..…passim
2 Senate Bill 6095, June 6, 2012
3 Attached to Declaration of Phair as Exhibit C …………………………………………20
4 Engrossed Senate Bill 3319 (1985)
5 Attached to Declaration of Phair as Exhibit D …………………………………………20
6 Section 3, Chapter 66, Laws of 1973
7 Attached to Declaration of Phair as Exhibit E …………………………………………20
8 Section 12, chapter 250, Laws of 1971 ex. sess.
9 Attached to Declaration of Phair as Exhibit F …………………………………………20
10
11 Black Diamond Municipal Code 2.66.020
12 Attached to Declaration of Phair as Exhibit G …………………………………..…23, 24
13 Black Diamond Council Rules of Procedure Section 2.7
14 Embedded within Deposition Exhibit 58
15 (Deposition Exhibit 58 is attached to Declaration of Phair as Exhibit U)…………7, 9, 10
16 Black Diamond Council Rules of Procedure Section 2.9
17 Embedded within Deposition Exhibit 58
18 (Deposition Exhibit 58 is attached to Declaration of Phair as Exhibit U)……………7, 10
19
20 Court Rules
21 CR 56(c) …………………………………………………………………..………………….….5
22
23 Other
24 Pl. Complaint at 30:23–31:3……………………………………………………………………..4
25 Deposition of Benson vol. 1
26 Excerpts attached to Declaration of Phair as Exhibit H…………..……………..…14, 16

PARTIAL SUMMARY JUDGMENT - v Seattle, WA 98109
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1 Deposition of Benson vol. 2
2 Excerpts attached to Declaration of Phair as Exhibit I…………………………………14
3 Deposition of Mary Jane Edelman
4 Excerpts attached to Declaration of Phair as Exhibit J………………………………....14
5 Deposition of Morgan vol. 1
6 Excerpts attached to Declaration of Phair as Exhibit K…………………………….…3, 6
7 Deposition of Morris
8 Excerpts attached to Declaration of Phair as Exhibit L……………………………….…3
9 Deposition of Pepper vol. 1
10 Excerpts attached to Declaration of Phair as Exhibit M………………………….……2, 3
11 Deposition of Ward
12 Excerpts attached to Declaration of Phair as Exhibit N…………………….……..……16
13 Deposition of Weber vol. 1
14 Excerpts attached to Declaration of Phair as Exhibit O…………………………….……2
15
16 Deposition Exhibit 34
17 Attached to Declaration of Phair as Exhibit P………………………………….………18
19 Attached to Declaration of Phair as Exhibit Q……………………………………….…15
21 Attached to Declaration of Phair as Exhibit R ………………………..…..…………3, 17
23 Attached to Declaration of Phair as Exhibit S ………………………..............…………3
25 Attached to Declaration of Phair as Exhibit T …………………………………………16
26

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2 Attached to Declaration of Phair as Exhibit U …………………………………...9, 10, 13
4 Attached to Declaration of Phair as Exhibit V …………………………………………18
6 Attached to Declaration of Phair as Exhibit W ………………………………...………16
8 Attached to Declaration of Phair as Exhibit X …………………………………………16
10 Attached to Declaration of Phair as Exhibit Y ………………………………..……18, 19
12 Attached to Declaration of Phair as Exhibit Z ……………………………………..……2
14 Attached to Declaration of Phair as Exhibit Aa ……………………..……..……4, 13, 17
16 Attached to Declaration of Phair as Exhibit Bb ……………………..…………………18
18 Attached to Declaration of Phair as Exhibit Cc ……………………..…………………..7
19
20 Summary of emails from December 2015 to January 2016
21 Attached to Declaration of Phair as Exhibit A …………………………..……………3, 7
22 Emails from December 2015 to January 2016
23 Attached to Declaration of Phair as Exhibits A1 to A70……………………………….…
24 Transcript of excerpt of audio file from February 4, 2016, City Council meeting
25 Attached to Declaration of Phair as Exhibit B…………………………………………18
26

PARTIAL SUMMARY JUDGMENT - vii Seattle, WA 98109
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1 Decl. of Morgan……………………………………………………………………………passim
2 May 2016 letter from Assistant Attorney General Nancy Krier with attached MRSC
3 “tips” Attached to Declaration of Morgan as Exhibit 1 …………….………………...…7
4 January 7, 2016, Handout listing goals and objectives provided during Council meeting
5 Attached to Declaration of Morgan as Exhibit 2 ………………………………………..2
7 Decl. of Pepper …………………………………………………………..…………...……passim
8 2016 MRSC public posting regarding cancelling meetings for weather
9 Attached to Declaration of Pepper as Exhibit 001 ……………………………..………10
10 Screenshot of 2014 publicly posted MRSC answer regarding who may cancel a meeting
11 Attached to Declaration of Pepper as Exhibit 002 ………………………………………9
12 Jan. 25, 2016, E-mail thread between Martinez and Pepper, RE Public Records Request
13 Attached to Declaration of Pepper as Exhibit 003 ……………………………………….
14
15 Decl. of Weber Re: Meetings………………………………………………….…………. passim
16 MRSC public posting: Can a Majority of the Members of a Governing Body
17 Call a Special Meeting Without Violating the OPMA?
18 Attached to Declaration of Weber as Exhibit AA ………………………………….……8
19 Decl. of Weber Re: Attorneys…………………………………………..…………….……passim
20
21 15 Wash. Prac., Civil Procedure § 44:14 (2d ed.)
22 Attached to Declaration of Phair as Exhibit Dd ……………………………….………23
23
24 Testimony of Assistant Attorney General Nancy Krier, January 14, 2016, Washington
25 Senate's Government Operations and Security Committee……………………………. 20
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PARTIAL SUMMARY JUDGMENT - viii Seattle, WA 98109
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1
2 I. RELIEF REQUESTED
3 Erika Morgan, Pat Pepper, and Brian Weber (“Individual Defendants”) respectfully
4 request the Court rule that
5 A. Pat Pepper’s participation in a meeting prior to her swearing in the evening of January 7,
6 2016, could not have made a quorum for Open Public Meetings Act (OPMA) purposes.
7 B. Passive receipt and reading of an email does not constitute a “meeting” under the OPMA,
8 and thus a third councilmember’s nonresponsive presence on an email thread does not
9 make a quorum for OPMA purposes.
10 C. Because state law and Black Diamond rules allow a quorum of the governing body to
11 confer to schedule or cancel a meeting, the Individual Defendants did not violate the
12 OPMA by doing so, at least not knowingly.
13 D. Interactions between two out of five councilmembers do not violate the OPMA, even if
14 the two serve on the same committee.
15 E. RCW 42.30.120 dictates a civil penalty of $500 the first time a council member
16 knowingly attends a meeting in violation of the OPMA but does not impose penalties
17 beyond that first $500 unless a court has previously found against the council member.
18 F. Because there is not evidence of bad faith, the Individual Defendants are entitled to
19 defense costs and attorney fees.
20
21 II. STATEMENT OF RELEVANT FACTS
22 Erika Morgan is a retired medical technologist who has volunteered her time as a citizen
23 activist and environmentalist for over 20 years in and around Black Diamond; she served as a
24 Black Diamond City Councilmember from January 2014 to December 2017. Decl. of Morgan,
25 Sections 2–3. Pat Pepper is a current councilmember who, prior to retirement, spent 44 years
26 making daily lesson plans or work plans as a school teacher, school administration employee,

PARTIAL SUMMARY JUDGMENT - 1 Seattle, WA 98109
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1 and self-proclaimed “bureaucratic thinker.” Decl. of Pepper, Section 2–4. Brian Weber served as
2 a councilmember from December 2015 to December 2017; he is a former Boeing engineer who
3 was laid off in the summer of 2017 and is still seeking work. Deposition of Weber at 20–21.
4 Weber and Pepper both ran for office in November of 2015. Decl. of Pepper, Section 3.
5 Brian Derdowski and Kristin Bryant were volunteers who helped Weber and Pepper campaign
6 and who had known Weber, Pepper, and Morgan for many years. Deposition of Weber at 14;
7 Deposition of Pepper at 17. In early December 2015, Weber was sworn in and assumed office.
8 Deposition of Weber at 15. Pepper was sworn in during the Council meeting of January 7, 2016.
9 Decl. of Pepper, Section 3.
10 From December of 2015 to January 7, 2016, Weber and Pepper continued
11 communicating with Derdowski and Bryant, Deposition of Weber at 94–105, but Morgan,
12 Pepper, and Weber did not meet as a trio simultaneously with Derdowski or Bryant. Decl. of
13 Weber Re: Meetings; Decl. of Pepper, Sections 5–12. Some interactions of Weber and Pepper
14 with Derdowski or Bryant related to practicing basics of parliamentary procedure. Deposition of
15 Weber at 100; Decl. of Pepper, Section 11.
16 During this time period, there was also at least one email message during which Morgan
17 made suggestions on a group email thread. Deposition of Weber 96–99, 104; Deposition Exhibit
18 121. Mr. Weber was merely bcc’ed on the message and did not participate in the exchange. Id.
19 There were other email threads where Councilmember Pepper was copied but did not participate.
20 Decl. of Pepper, Section 7.
21 January 7, 2016, the night of Pepper’s first meeting and swearing into office, sitting
22 Councilmember Morgan sought to amend some of Mayor Benson’s agenda items so that Morgan
23 could introduce a set of goals and principles for updated Council Rules and newly structured
24 standing committees. Decl. of Morgan, Exhibit 2. No Rule amendments or draft Rule
25 amendments had been prepared at this time. Decl. of Morgan, Section 14. City Attorney Morris
26

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1 “thwarted” Morgan’s motions and instructed Mayor Benson to remove the topics from the
2 agenda. Deposition of Morris at 86.
3 On January 8, 2016, Weber and Pepper interacted briefly in order to sign a letter
4 canceling an upcoming special council meeting and scheduling a special meeting. Deposition of
5 Pepper at 208. Derdowski transported the letter to Morgan for her signature. Deposition of
6 Morgan at 117–19. Morgan refused to take Derdowski’s word that a council majority could
7 schedule or cancel a meeting and insisted that he show her written authority that signing the
8 letter was lawful, which he did. Id. at 118.
9 There were other instances during which Morgan, Pepper, and Weber communicated to
10 schedule or cancel a meeting. See Decl. of Pepper, Section 13; Decl. of Weber Re: Meetings,
11 Section 12. For these communications, the councilmembers continue to believe that the
12 communications were lawful. Id.
13 Between January 8 and January 12, 2016, Erika Morgan, Brian Derdowski and to a
14 limited extent Kristen Bryant exchanged a number of emails working through proposed revisions
15 to the Council Rules. Decl. of Morgan, Section 14–16; see Exhibit A attached to Decl. of Phair.
16 Pat Pepper was included on some but not all of these messages; Brian Weber was included on
17 zero of the emails concerning drafting amended Rules. Id.
18 Morris then prepared a memo detailing her opinion regarding the proposed Rule
19 amendments. Deposition Exhibit 55. Without councilmember input, Morris forwarded this memo
20 to the City’s risk pool for comment. Deposition Exhibit 56. The risk pool’s Roger Neal testified
21 that Morris’s email and memo represented his first ever communication with or concerning the
22 City of Black Diamond. Deposition of Neal at 42.
23 At the January 21, 2016, regularly scheduled Council meeting, Resolution 16-1069 and
24 three companion resolutions passed on a 3-2 vote, amending the Council Rules, adding a Council
25 President, and transforming the previously-existing five committees with two members each
26 into the new three committees with three members each. Decl. of Morgan, Section 18.

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1 Councilmembers Morgan and Pepper hired Katherine George, an attorney specializing in
2 the OPMA, to issue an opinion regarding whether the new standing committees were compliant
3 with the OPMA. Deposition Exhibit 128. Pepper made that memo available during a public
4 meeting. Decl. of Weber re: Attorneys.
5 In December 2016, Plaintiff filed this lawsuit. Within the Complaint’s prayer for relief,
6 the Plaintiff asks the Court to order Individual Defendants “to each pay a penalty in the amount
7 of five hundred dollars for each of the more than 135 violations of the OPMA identified above or
8 as later determined in this litigation as required by RCW 42.30.120(1)–(3) totaling more than
9 $67,500 for each Defendant Council Member[.]” Pl. Complaint at 30:23–31:3.
10 Morgan, Pepper, and Weber maintain that they have never intentionally violated the
11 OPMA. Decl. of Pepper; Decl. of Morgan; Decl. of Weber re: Meetings; Decl. of Weber re:
12 Attorneys.
13
14 III. STATEMENT OF ISSUES
15 A. Whether a member-elect can count toward a quorum
16 B. Whether a member passively receiving email participates in a meeting
17 C. Whether councilmembers conferring to schedule or cancel meetings is lawful
18 D. Whether interactions between two out of five councilmembers violates the OPMA
19 merely because the two serve on the same committee
20 E. Whether the civil penalty for any knowing violation shall be capped at $500 per
21 defendant absent prior court judgment
22 F. Whether the Individual Defendants are entitled to defense costs
23
24 IV. EVIDENCE RELIED UPON
25 Please see Table of Authorities.
26

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1 V. LEGAL AUTHORITY AND ARGUMENT
2 Individual Defendants seek to resolve the issues described in section A through F on
3 summary judgment. “A trial court should grant summary judgment if the record shows ‘no
4 genuine issue of material fact’ and the ‘moving party is entitled to judgment as a matter of
5 law.’” Michak v. Transnation Title Ins. Co. 148 Wn.2d 788, 794–95, 64 P.3d 22, 25 (2003)
6 (quoting CR 56(c)).
8 A. A Councilmember-elect does not become a member of the governing body
9 subject to the OPMA until taking the oath of office
10 RCW 29A.60.280 covers “elective offices of counties, cities, towns, and special purpose
11 districts” and states that “the oath of office must be taken as the last step of qualification” for
12 office. Because members-elect do not assume office until they have completed qualification, the
13 court in Wood v. Battle Ground School Dist., 107 Wn. App. 550, 561, 27 P.3d 1208, 1215
14 (2001), held that members-elect are not subject to the OPMA prior to swearing in: “Although the
15 OPMA defines ‘action’ broadly, nothing suggests that members-elect have the power to transact
16 a governing body's official business before they are sworn in. Thus, they are not ‘members’ of a
17 governing body with authority to take ‘action.’” Wood also sent a clear signal to the Washington
18 Legislature that it could amend the OPMA language if it wished to see different outcomes:
19 “[W]e concur with the California court that it is “for the Legislature, not the judiciary, to
20 determine a basic legislative question such as whether [members-elect are] covered.” Id. (citation
21 omitted).
22 If Pat Pepper was not a member of the council prior to swearing in, then she was not
23 subject to the OPMA. As a result, her participation in a communication prior to January 7, 2016,
24 cannot be the quorum-making trigger for an OPMA violation. Accordingly, any allegation that
25 Pepper, Morgan, and Weber violated the OPMA prior to Pepper taking the oath of office during
26 the January 7, 2016 council meeting fails as a matter of law.

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1
2 B. Passive Receipt of E-Mail Does Not Constitute Participating in a “Meeting”
3 Although a communication may copy multiple members of a body, that does not
4 mean that a quorum of the body intended to participate in the communication. Without an intent
5 to meet or communicate, there is no meeting and thus no violation of the OPMA, even if a
6 quorum received and read the communication.
7 “[T]he passive receipt of e-mails and other one-way forms of communication does not,
8 by itself, amount to participation in a meeting because such passive receipt of information does
9 not demonstrate the necessary intent to meet.” Citizen’s Alliance for Property Rights Legal Fund
10 v. San Juan County, 184 Wn.2d 428, 444, 359 P.3d 753, 761 (2015). “If communications do not
11 reflect the requisite collective intent to meet, no ‘meeting’ has occurred and the OPMA does not
12 apply.” Id. (emphasis added).
13 In Citizen’s Alliance, Councilmember Miller was copied on two emails but did not
14 respond. “Because passive receipt of e-mail does not constitute participation in a meeting, Miller
15 could not have been part of the ostensible ‘meeting’ for OPMA purposes.” Id. at 447–48, 359
16 P.3d at 763. Note that the Court did not punish some members while excusing the recipient.
17 Rather, the Court decided that without the intentional participation of a quorum of the body, no
18 meeting happened.
19 Many of Plaintiff’s allegations mirror the email exchanges that were not deemed
20 violations in Citizen’s Alliance. For example, Morgan testified concerning what became
21 Resolution 16-1069. Deposition of Morgan at 72–78. Weber did not participate in the drafting of
22 Resolution 16-1069 or its companion resolutions. Decl. of Morgan, Sections 14–16; Decl. of
23 Weber re: Meetings, Section 13.
24 In addition to the messages listed above, the councilmembers at various times received
25 emails intended to be informational: notifying them of an upcoming meeting, notifying them of a
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1 third party’s opinion about an issue, or notifying them of a section of the existing Rules worth
2 researching. See Deposition Exhibit 393, Spreadsheet Prepared by Councilmember Edelman;
3 Decl. of Phair, Exhibit A. Other than these passive receipt situations and the other permissible
4 situations discussed elsewhere in this motion, there is no record of Weber, Pepper, and Morgan
5 engaging in three-member communications, either directly or in serial.
6 Inclusion on a message is not the same thing as engaging in a meeting. Mere passive
7 receipt of someone else’s email conversation cannot constitute a violation of the OPMA,
8 particularly when less than a quorum of a body’s members had any intent to interact.
10 C. Councilmembers may communicate to schedule or cancel a meeting;
11 councilmembers who have done so cannot have intentionally violated the
12 OPMA
13 RCW 42.30.080 allows a quorum of a governing body to schedule a meeting. The
14 MRSC, an entity known for employing multiple attorneys to conduct research and provide policy
15 opinions, has taken the position that the legislature would not allow an action and then punish
16 councilmembers for performing that same action—and the MRSC has extended this reasoning to
17 cover cancellation of meetings. Both the new and revised versions of Black Diamond Rules of
18 Procedure 2.7 and 2.9 take a similar stance. Councilmembers who believed these sources could
19 not have intentionally violated the OPMA.
20
21 1. RCW 42.30.080 and Black Diamond City Council Rules of Procedure both
22 expressly allow a quorum of the City Council to schedule a special meeting
23 The OPMA specifies that a “special meeting may be called at any time by the presiding
24 officer of the governing body of a public agency or by a majority of the members of the
25 governing body . . .” RCW 42.30.080(1) (emphasis added). In the MRSC Practice Tips that
26 Assistant Attorney General Krier attached to her May 2016 letter to the Black Diamond mayor

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1 and councilmembers, Decl. of Morgan, Exhibit 2, the third item, entitled “Key Consideration
2 Related to Conferring to Call a Special Meeting,” reads as follows:
3 Under RCW 42.30.080, a special meeting (in contrast to a regular meeting), may be
4 called at any time by the presiding officer of the governing body or by a majority of the
5 members of the governing body. In order to give effect to this authority granted under
6 RCW 42.30.080, we believe it’s permissible for a majority of the members of the
7 governing body to confer outside of a public meeting for the sole purpose of discussing
8 whether to call a special meeting. This includes conferring for that purpose via electronic
9 communications (e.g., email).
10 In a document posted on the Internet and accessed for guidance by Councilmember
11 Weber, Decl. of Weber Re: Meetings, Exhibit AA, the MRSC elaborates upon why members of
12 a council may communicate outside of a public meeting when they choose to call a special
13 meeting:
14 If [special meetings] could be called only when a scheduled meeting is being held,
15 governing bodies would be severely hampered in their ability to take needed action in a
16 timely manner. Consequently, the decision by members of a governing body to call a
17 special meeting will often have to occur outside of an OPMA-compliant meeting, such as
18 by telephone or email. That action, when taken outside of a regular or special meeting,
19 should not be considered to violate the OPMA. The state legislature would not have
20 intended to create a Catch-22 situation here, authorizing an action that results in a
21 violation of the law.
22 Bob Meinig, Can a Majority of the Members of a Governing Body Call a Special Meeting
23 Without Violating the OPMA in Doing So?, MRSC, June 5, 2012, http://mrsc.org/Home?Stay-
24 Informed/MRSC-Insight/June-2012/Can-a-Majority-of-the-Members-of-a-Governing-Body.aspx
25
26

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1 The Black Diamond City Council Rules of Procedure—as they existed both before and
2 after any resolution passed by the 2016 Council—also specifically allowed for three
3 Councilmembers to call a special meeting:
4 2.7 Special Meetings. In accordance with chapter 42.30 RCW, a special meeting of the
5 City Council may be called by the Mayor or at the request of any three (3)
6 Councilmembers by written notice delivered to each Councilmember.
7 (emphasis added). See Deposition Exhibit 58.
9 2. As a logical and practical matter, the same persons who may communicate in
10 order to schedule or adjourn a meeting may also communicate in order to cancel
11 a meeting
12 MRSC has taken the position that a city council has the right to cancel its meetings, even
13 if that involves communicating outside of a public meeting. The MRSC explained as follows:
14 Although state law doesn’t specifically address the issue, we’ve consistently
concluded that, as a practical matter, a majority of the governing body may cancel an
15 upcoming public meeting in advance, and may even do so outside of a public meeting,
just as a governing body may decide outside of a public meeting to hold a special
16 meeting.
17 Decl. of Pepper, Exhibit 0002, Robert Sepler, Windstorms, Blizzards & More: What Can Be
18 Done When Weather-Related Issues Cancel a Public Meeting?, Municipal Research and Services
19 Center, Dec. 5, 2016, http://mrsc.org/Home/Stay-Informed/MRSC-Insight/December-
20 2016/When-Weather-Cancels-a-Public-Meeting.aspx
21 Although the opinion of a research center is not binding precedent, it is sufficiently
22 public and authoritative that laypersons such as city councilmembers will look to it for guidance.
23 One earlier example of the MRSC publicly concluding that the council may cancel its meetings
24 was relied upon by Councilmember Pepper:
25 The city council—not the mayor—has authority to cancel a council meeting in advance.
26 It is not the mayor’s meeting—it is the council’s meeting and the mayor is just the

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1 presiding officer. Although state law does not specifically address the authority to cancel
2 meetings, this is the position of the MRSC legal staff based on the separation of powers
3 between the mayor and the council as set out in the statutes. Though, the council could
4 formally or informally delegate to the mayor the authority to cancel a council meeting in
5 advance. If this has become a source of friction, it is advisable to set out a formal process
6 in the council rules of procedure.”
7 Decl. of Pepper, Exhibit 0001, Does the Mayor or the City Council Have the Authority to Cancel
8 a Council Meeting in Advance? Municipal Research and Services Center, Jan. 2014,
9 http://mrsc.org/Home/Research-Tools/Ask-MRSC-Archives/Governance.aspx#Does-the-mayor-
10 or-does-the-city-council-have-the-a).
11 The MRSC advises that the council rules of procedure address the cancellation issue, and
12 the Black Diamond City Council Rules of Procedure do so. According to Exhibit 58, the pre-
13 2016 version of the Rules read as follows:
14 2.9 Cancellation of Meetings. The Mayor, or in the absence of the Mayor the Mayor
15 Pro Tem, or any three members of Council may cancel a meeting and upon
16 proper notice given by the City Clerk.
17 (emphasis added). Also according to Exhibit 58, the revised version of the Rules now read:
18 2.9 Cancellation of Meetings. Any three members of Council may cancel a meeting
19 upon proper notice given to the City Clerk.
20 Although the updated Rules received a revision, the idea that any three councilmembers may
21 cancel a City meeting was not a new idea inserted by the 2016 majority members.
22 The MRSC’s reasoning is a sound interpretation of the state law concerning scheduling
23 and canceling meetings, and Black Diamond City Council Rules of Procedure 2.7 and 2.9 further
24 authorize the practice. But even if a court were to disagree with the MRSC and the Council Rules
25 of Procedure, councilmembers should not be punished for relying on these sources. Given these
26

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1 sources, any councilmembers who communicated for the sole purpose of scheduling or canceling
2 a meeting did not intentionally violate the OPMA.
4 D. Interactions between two out of five councilmembers do not violate the

5 OPMA, even if both councilmembers serve on the same committee
6 A party moving for summary judgment can meet its burden by pointing out to the trial
7 court that the nonmoving party lacks sufficient evidence to support its case. Seybold v. Neu, 105
8 Wn. App. 666, 677, 19 P.3d 1068, 1074 (2001). When a defendant moves for summary
9 judgment, “the requirement of setting forth specific facts does not apply. The reason for this
10 result is that “a complete failure of proof concerning an essential element of the nonmoving
11 party's case necessarily renders all other facts immaterial.” Id. at 677.
12 A large number of Plaintiff’s allegations (see paragraphs 51 through 136 of the
13 Complaint) relate to committee meetings. City council committees are only subject to the OPMA
14 in the rare instances when the committee “acts of behalf of the governing body, conducts
15 hearings, or takes testimony or public comment.” RCW 42.30.020(2). “The OPMA does not
16 define the phrase ‘acts on behalf of.’” Citizens Alliance for Prop. Rights Legal Fund v. San Juan
17 Cty., 181 Wn. App. 538, 547, 326 P.3d 730, 735 (2014), aff'd, 184 Wn.2d 428, 359 P.3d 753
18 (2015). In Citizens Alliance, the Court of Appeals analyzed the phrase “acts on behalf of” for the
19 first time in 2014. That court adopted the reasoning of a 1986 Attorney General’s Opinion and
20 ultimately held that “a committee ‘acts on behalf of’ a governing body when it exercises actual
21 or de facto decision making authority.” Id. at 552 (emphasis added). Only when such authority
22 is exercised does a committee meeting become subject to the OPMA.
23 The court contrasted committees that exercise decision making authority to “the situation
24 where the committee simpl[y] provides advice or information to the governing body.” Id. at 549.
25 Advisory committees are not subject to the OPMA. Id. In other words, “the Legislature did not
26 intend OPMA to apply to committees that ‘do nothing more than deliberate the making of policy
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1 or rules.’” Id. Even when faced with evidence that “[d]uring the course of committee meetings,
2 ideas and policies are brought forward, discussed, narrowed and discarded and approaches are
3 formulated for making presentations of subcommittee work to the entire Council,” id. at 551, the
4 Court of Appeals still rejected the notion that such committees are subject to the OPMA.
5 “[T]hese statements do not provide evidence that the [committee] exercised actual or de facto
6 decision making authority. Rather, they describe an advisory or information role.” Id. at 552.
7 The Washington Supreme Court affirmed and, like the Court of Appeals, also adopted the
8 rationale from the 1986 AGO opinion. In doing so, it elaborated further on some of the
9 arguments that it was rejecting, arguments made again by Plaintiff in this case:
10
The concurrence/dissent seems to conclude that a committee might be subject to
11 the OPMA if the committee exerts power or influence, concluding that the CAO
12 Team might have exercised power or influence because “it played a key role in
formulating the best available science synthesis adopted by the Council.”
13 Concurrence/Dissent at 769. This theory is internally inconsistent, as the CAO
Team could not have been acting on behalf of the Council by making a
14 recommendation to the Council itself….
15
Citizens Alliance for Prop. Rights Legal Fund v. San Juan Cty., 184 Wn.2d 428, 451, 359 P.3d
16
753, 765 (2015) (emphasis added). The court went on to emphasize the importance of having a
17
clear rule for when committees are subject to the OPMA. “This lack of clarity places government
18
units in the untenable position of not knowing until long after the fact whether any committee is
19
subject to the OPMA. State and local governments need a clear definition, not a nuanced
20
definition. We adhere to the clear and workable definition that a committee acts on behalf of a
21
governing body only when the committee exercises actual or de facto decision-making authority
22
for a governing body.” Id. at 452.
23
With this definition in mind, exercising decision-making authority becomes an essential
24
element of the allegations related to committees. Plaintiff cannot prove this essential element.
25
Plaintiff cannot prove that the 2016 standing committees exercised actual or de facto decision
26
making authority on behalf of the City Council (to the extent that they were allowed to meet at
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1 all). Resolution 16-1069 delegates to the standing committees the types of advisory activities that
2 were expressly rejected by Citizens Alliance as evidence of exercising decision making authority.
3 The committee allegations should be dismissed on summary judgment for failure to prove that
4 these committees exercised decision-making authority.
6 1. Resolution 16-1069 revising the Council Rules was structured such that
7 committees merely reviewed items and forwarded them back to the whole Council,
8 and no committee actually had the power to kill resolutions and ordinances
9 Standing committees created by Resolution 16-1069 were designed to review proposed
10 legislation. See Deposition Exhibit 58, Section 18.1.3(c). The committees could recommend
11 amendments to the whole Council, could recommend that the Council pass the item, or could
12 send the item back to the Council with no recommendation. Id. The Council was not bound to
13 follow any committee recommendation. Even an item receiving a “do pass” recommendation
14 could ultimately be voted against by three or more members of the whole Council. See
15 Deposition Exhibit 128. And such recommendations were expressly not included by Citizens
16 Alliance as an example of decision-making authority.
17 Furthermore, the 2016 Rules adopted in Resolution 16-1069 specified that “any
18 ordinance or resolution may be relieved from committee and placed on the Council Agenda for
19 action by any three Councilmembers.” Deposition Exhibit 58, Section 18.1.1. If an item’s
20 proponent did not have three councilmembers interested in considering the matter in an open
21 meeting, then that proponent would be hard-pressed to take any action to approve the item
22 regardless of the existence of standing committees.
23 If the council minority was ineffective because the majority often voted as a block—that
24 dynamic does not suggest an OPMA violation. That is just politics. Likeminded legislators
25 voting similarly is not a conspiracy or a circumstance unique to the City of Black Diamond.
26

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1 2. No public committee meeting involved more than two councilmembers unless the
2 meeting was properly noticed
3 Although three councilmembers were initially assigned to each committee,
4 Councilmember Edelman testified that she never attended any meeting of a committee formed by
5 the 2016 Rules. Deposition of Mary Jane Edelman at 9. Councilmember Edelman did not take
6 any other steps to participate in Resolution 16-1071 standing committee business. Decl. of
7 Weber Re: Attorneys, Section 43; Decl. of Pepper, Section 17. Councilmember Deady publicly
8 stated on multiple occasions that she had never participated and would never participate in any of
9 the committees formed by the 2016 Rules, and indeed did not do so. Id.
10 Councilmembers Weber, Pepper, and Morgan as a trio never simultaneously attended a
11 committee meeting, with the exception of Morgan’s presence at a February 24, 2016, Growth
12 Management meeting, a meeting that was properly noticed as a special meeting by City Clerk
13 Martinez. Decl. of Weber re: Meetings; Decl. of Pepper; Decl. of Morgan, Section 5. At the
14 February 24 meeting, the Council committee members did not pass a resolution or make any
15 final decisions that would constitute “final disposition” on any topic. Decl. of Pepper, Section
16 15; Decl. of Morgan, Section 5; see RCW 42.30.080(3).
17
18 3. The mayor refused to recognize the validity of any version of the 2016 Rules, thus
19 the committees were never given the support needed to “act on behalf of” the
20 legislative body
21 While one could argue that the committees were created by Rule via the combination
22 of Resolutions 16-1069 and 16-1071, the City’s executive branch refused to recognize the
23 validity of the new committees; even when Mayor Benson at first allowed the clerk to properly
24 notice the committee meetings, she claimed she was merely doing the councilmembers a “favor.”
25 Deposition of Benson vol. 1 at 78:1–2. Staff members were instructed not to attend. Deposition
26 of Benson vol. 2 at 365. Eventually, the mayor instructed the clerk to stop noticing any

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1 committee meetings. Deposition Exhibit 51. The councilmembers were denied access to Council
2 chambers, recording devices, or assistance in preparing any minutes. Decl. of Weber re:
3 Attorneys, Sections 50–51; Decl. of Pepper, Section 16.
4 Critics of Resolutions 16-1069 and 16-1071 cannot have their cake and eat it too. While
5 the Individual Defendants maintained that the resolutions were valid, the mayor considered them
6 invalid and actively obstructed efforts to engage in meaningful study and public engagement via
7 the new standing committees. That obstruction eliminated whatever decision-making authority
8 one could ascribe to the committees. And in the event that Plaintiff and the mayor succeeded in
9 demonstrating that the standing committees were somehow invalid, then how could these critics
10 claim that the committees were exercising decision-making authority on behalf of the City
11 Council?
12 Such a scenario—where two out of five councilmembers worked hard to study a subject
13 without any support from city hall and with repeated assurances that no third councilmember
14 would ever engage—does not involve acting on behalf of the City Council. To label such
15 interactions a violation of the OPMA would be a miscarriage of justice.
16
17 4. Morgan, Pepper, and Weber have conducted themselves under the good-faith
18 belief that two out of five councilmembers communicating did not constitute an
19 OPMA violation
20
21 a. Despite several issues with attorney ethics and professionalism, to the extent that
22 attorney advice was rendered, the consistent messaging has been that if three
23 councilmembers would interact, notice would be required
24 Although the councilmembers had good reason to not trust several of the attorneys
25 advising them, see, e.g., Decl. of Weber re: Attorneys, to the extent that legal commentary
26 reached the councilmembers, the attorneys consistently shone the spotlight on the issue of three

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1 councilmembers participating in committees. By reviewing the record, it is easy to see why three
2 laypersons would have the impression that the OPMA is only triggered when three
3 councilmembers collaborate.
4 In a memo marked as Deposition Exhibit 62 at 4, Attorney Linehan said the following
5 regarding committee meetings: “Open Public Meeting Act (“OPMA”) requirements would
6 require giving public notice of either a regular or special meeting, including preparation of an
7 agenda, and an opportunity for public attendance at every Committee meeting where a
8 quorum is present.” (emphasis added). Linehan’s memo goes on to discuss practicalities
9 regarding City hours of operation and practicalities regarding how litigious plaintiffs might view
10 quorum committees even if the quorum committees are properly noticed under the OPMA, id.,
11 but risk management or concerns about misunderstandings do not equate to advice that a course
12 of action is illegal.
13 During her deposition, although Yvonne Ward expressed many personal opinions about
14 the councilmembers, her OPMA statements were based upon drawing circumstantial conclusions
15 from a) hearsay and b) the series of December 2015 to January 2016 emails that are before the
16 court for independent examination. See, e.g., Deposition of Ward at 36. Her actual writings
17 regarding the OPMA, Deposition Exhibit 57 and Deposition Exhibit 61, do not address two
18 councilmembers meeting or much in the way of the actual committee meetings at all.
19 Furthermore, Ward testified that once she learned that Councilmembers Edelman and Deady
20 were not attending committee meetings, Ward considered that “those committee meetings
21 weren’t happening.” Deposition of Ward at 102: 13–15. Given that Ward had a fiduciary duty to
22 the City and outright advised the mayor to stop providing public notice of the committee
23 meetings, Deposition of Benson vol. 1 at 77–78, it seems impossible that Ward would also have
24 at the same time advised that the meetings continuing to occur required notice to avoid an
25 OPMA violation.
26

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1 Carol Morris’s January 19, 2016, memo opines at length regarding the proposed Council
2 Rule amendments, but actually says very little about the OPMA and committee notice:
3 [T]here will be three Councilmembers on each Council Committee. In other words, the
4 proposal is that a majority of the Council will attend Committee meetings. This means
5 that the City staff would have to provide public notice of each of these meetings in the
6 same way as a special Council meeting is notice (or regular meeting).
7 Deposition Exhibit 55 at 4 (emphasis added). Morris writes further that if a majority of the
8 Council sits on a committee and provides a “do pass” recommendation, “If it is then forwarded
9 to the City Council at a regular meeting, what would be the requested action?” Id.
10 Morris asked a question, and the Council sought a reliable answer. Councilmembers
11 Morgan and Pepper used their personal funds to hire OPMA expert Katherine George to provide
12 a legal opinion about the quorum committees. Deposition Exhibit 128. Attorney George
13 explained that it is legal to have quorum committees as long as they are properly noticed as
14 regular or special meetings of the council. The memo emphasizes “[W]hen at least three
15 members of a five-member council gather to consider official business, it doesn’t matter whether
16 it’s called a committee meeting or a council meeting—the presence of a council majority
17 makes it a ‘meeting’ for purposes of requiring openness under RCW 42.30.030.” Id. at 2
18 (emphasis added). The George memo also relays that it is perfectly normal for committees, even
19 quorum committees, to make recommendations to a full council:
20 But if all the committee does is recommend passage by the full council, then regardless of
21 whether the full council has formally granted any decision-making authority to the
22 committee, the council still retains the final decision making authority. . . Standing
23 committees can develop an expertise in a particular policy area and hold more in-depth
24 public meetings than the full council can. Also, a “do pass” recommendation is a clear
25 signal to the public as to which way the political wind is blowing, and can help mobilize
26 concerned citizens to point out information or considerations that have been overlooked.

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1 Id. at 3 (emphasis in the original).
2 Brian Derdowski publicly appeared and explained that the committee procedures
3 outlined in Resolution 16-1069 tracked very closely with the committee procedures followed by
4 the King County Council. Audio of February 4, 2016, Black Diamond City Council Meeting
5 (beginning at minute 12:55). Derdowski also publicly explained that those King County
6 procedures for quorum committees had cleared extensive legal review. Id.
7 When the mayor still did not seem satisfied, the Council retained the Talmadge-
8 Fitzpatrick firm to provide a legal opinion. The firm’s publicly released memo notes that
9 “Because three persons is a majority of Council, special attention must be paid to the
10 requirements of the Open Public Meetings Act.” Deposition Exhibit 60 at 8. The memo also
11 states, “While there is a proper concern as to whether the action of a three-person committee
12 could constitute ‘final action’ by the Council, this concern can be overblown.” Id.
13 After the debates and the memos and the months of power struggle, one message made it
14 through loud and clear: The OPMA is triggered when three out of five councilpersons
15 communicate. That is what the attorneys repeatedly said, and that is what the majority
16 councilmembers understood. Decl. of Weber re: Attorneys; Decl. of Pepper, Section 18; Decl. of
17 Morgan, Section 19.
18
19 b. No reasonable fact-finder reviewing the councilmembers’ emails would believe that
20 these councilmembers thought that two committee members collaborating constituted
21 an OPMA violation
22 Less nuanced than the attorney memo analysis but equally important, the
23 councilmembers’ belief regarding two-person cooperation becomes clear when viewing the
24 volume of email in which two majority councilmembers wrote to a third party and signed the
25 email using their committee titles. See, e.g., Deposition Exhibit 34; Deposition Exhibit 104;
26 Deposition Exhibit 186. Councilmembers who believed that two committee members working on

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1 an issue constituted an OPMA violation would not, for example, email a third party from the
2 City of Covington and both sign the email using their “Committee Chair” and “Committee Vice-
3 Chair” formal titles. Deposition Exhibit 104.There was no “backroom deal” going on when two
4 committee members studied an issue or wrote a letter, just two councilmembers working hard.
6 E. The current version of the OPMA civil penalties statute caps penalties at $500
7 per individual unless a court has previously found the individual actor liable for
8 violating the OPMA
9 As with other statutes, interpreting the OPMA begins by giving effect to the plain
10 meaning of the statute. West v. Wash. Ass'n of County Officials, 162 Wn. App. 120, 130, 252
11 P.3d 406 (2011). If a statute’s language is unambiguous, courts do not engage in further statutory
12 construction. Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155 (2006). A statute is
13 considered ambiguous if it is “susceptible to two or more reasonable interpretations,” but not
14 “merely because different interpretations are conceivable.” Id.
15 Prior case law provides little to no guidance in the interpretation of RCW 42.30.120
16 dealing with civil penalties. During her January 14, 2016, Washington Senate's Government
17 Operations and Security Committee testimony (available
18 at https://www.tvw.org/watch/?eventID=2016010072), Assistant Attorney General Krier testified
19 that she was not aware of appellate analysis of the issue or any cases in which a court imposed a
20 civil penalty in the ultimate resolution of a case (minute 22 in the TVW video). This means that
21 the Court must take the raw statutory language as it finds it—and currently the RCW 42.30.120
22 language states that the civil penalty is $500 for the first violation and $1,000 for subsequent
23 violations, but the per-violation penalty for subsequent violations only applies when a court has
24 found against the individual actor in a prior final judgment.
25 RCW 42.30.120 has evolved over the years. Retracing this evolution highlights which
26 language the Legislature has chosen to update and clarifies the current meaning of the statute.

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1 The 1971 version of RCW 42.30.120 was one paragraph long. It stated:
2 Each member of the governing body who attends a meeting of such governing body
3 where action is taken in violation of any provision of this act applicable to him, with
4 knowledge of the fact that the meeting is in violation thereof, shall be subject to personal
5 liability in the form of a civil penalty in the amount of one hundred dollars. The civil
6 penalty shall be assessed by a judge of the superior court and an action to enforce this
7 penalty may be brought by any person. A violation of this act does not constitute a crime
8 and assessment of the civil penalty by a judge shall not give rise to any disability or legal
9 disadvantage based on conviction of a criminal offense. Reasonable expenses, including
10 attorney's fees, shall be awarded the person bringing the action if the suit results in
11 assessment of the civil penalty. The members held to be in violation shall be personally
12 liable only for their pro rata share of the expenses.
13 Section 12, Chapter 250, Laws of 1971 ex. sess. and RCW 42.30.120 (emphasis added).
14 Just two years later, the Legislature struck the language allowing for attorney’s fees if the
15 suit results in a civil penalty against individuals. Section 3, Chapter 66, Laws of 1973.
16 A 1985 amendment maintained the language imposing a civil penalty for knowing
17 attendance as section one and added language regarding attorney’s fees as section two:
18 (2) Any person who prevails against a public agency in any action in the courts for a
19 violation of this chapter shall be awarded all costs, including reasonable attorney fees,
20 incurred in connection with such legal action. Pursuant to RCW 4.84.185, any public
21 agency who prevails in any action in the courts for a violation of this chapter may be
22 awarded reasonable expenses and attorney fees upon final judgment and written findings
23 by the trial judge that the action was frivolous and advanced without reasonable cause.
24 Engrossed Senate Bill 3319 (1985) (emphasis added).
25 The RCW 42.30.120 language remained untouched until Senate Bill 6095,
26

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1 June 6, 2012, amended a large number of statutes, including RCW 42.30.120, to use gender
2 neutral terms.
3 The Legislature passed a major restructuring of RCW 42.30.120 effective June 9, 2016.
4 This is the version of the statute in effect 1) when the mayor refused to allow noticing of summer
5 2016 and later committee meetings, 2) when Plaintiff initiated this lawsuit, and 3) today. The
6 updated statute preserves much of the earlier language, but it now has four sections rather than
7 two. The new first and second sections contain amended language and deal with determining
8 civil penalty amounts. The new third and fourth sections maintain the language concerning lack
9 of criminal liability and the awarding of attorneys’ fees for prevailing against a public agency.
10 The portion of RCW 42.30.120 dealing with civil penalty amounts now reads as follows:
11 (1) Each member of the governing body who attends a meeting of such governing
12 body where action is taken in violation of any provision of this chapter applicable
13 to him or her, with knowledge of the fact that the meeting is in violation thereof,
14 shall be subject to personal liability in the form of a civil penalty in the amount of
15 five hundred dollars for the first violation.
16 (2) Each member of the governing body who attends a meeting of the governing body
17 where action is taken in violation of any provision of this chapter applicable to
18 him or her, with knowledge of the fact that the meeting is in violation thereof,
19 and who was previously assessed a penalty under subsection (1) of this
20 section in a final court judgment, shall be subject to personal liability in the
21 form of a civil penalty in the amount of one thousand dollars for any subsequent
22 violation.
23 (emphasis added).
24 The newly constructed first section adds “for the first violation” to the end of the
25 sentence. This changes the meaning of the sentence. When interpreting a statute, the Court must
26 give words their “usual and ordinary meaning.” People’s Organization for Wash. Energy

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1 Resources v. Wash. Utilities and Transp. Com’n, 104 Wn.2d 798, 825, 711 P.2d 319, 334 (1985).
2 Further, “[c]ourts will not construe a statute so that words used therein are meaningless.” State ex
3 rel. Longview Fire Fighters Union, Local 828, I.A.F.F. v. City of Longview, 65 Wn.2d 568, 571,
4 399 P.2d 1, 3 (1965). The $500 penalty is not simply for “a meeting” or assessed “per meeting.”
5 It is explicitly only for the first violation. The use of “the” rather than “a,” the use of the singular
6 word “first,” and the use of the singular word “violation” all provide the plain language signal
7 that the Legislature was indeed talking about the first violation.
8 This language is distinct from the language in section two, which specifies “any”
9 subsequent violation. The more flexible “any” is a word more customarily used when
10 envisioning a set with more than one item. Section two increases the violation penalty to $1000
11 but requires that a court previously have found against the individual actor as part of a final
12 judgment.
13 In this case, no prior court has found an OPMA violation in a prior judgment. The
14 Individual Defendants contend that this case involves zero knowing violations of the OPMA;
15 however, even if the court were to find more than one knowing violation of the OPMA in this
16 case, the total civil penalty per Individual Defendant would be $500.
17
18 F. The Individual Defendants are entitled to declaratory and injunctive relief
19 requiring the City of Black Diamond to pay the Individual Defendants’ attorney
20 fees and other costs of defense
21 This Court has already granted the Individual Defendants’ motion for preliminary
22 injunction ordering the City, on March 8, 2017, and March 31, 2017, to pay the costs of the
23 defense of the Individual Defendants. Those orders were conditioned on the Individual
24 Defendants’ posting a bond in the amount of $150,000. Unfortunately, the Individual Defendants
25 were not able to obtain the required injunction bond. See declarations filed on February 2, 2017,
26 February 9, 2017, March 18, 2017, March 20, 2017, March 28, 2017 and April 11, 2017. As a

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1 result, the Individual Defendants have had to fund their own defense for the entirety of this
2 litigation, with the expectation that they would be reimbursed by the City upon the court’s final
3 determination of the injunction. As of the date of this motion, the Individual Defendants’
4 attorneys’ fees alone exceed $144,000.
5 The Court’s bond requirement was intended to protect the City in the event that the court
6 were to later find, upon a final determination, that the Individual Defendants were not entitled to
7 have their defense paid by the City. Of course, “[n]o bond or other security is required upon the
8 entry of a final decree granting an injunction. By entering such a decree, the court
9 has determined the rights of the parties on the merits.” Requirements for injunctive relief—Bond
10 or other security, 15 Wash. Prac., Civil Procedure § 44:14 (2d ed.). Once the Court has been able
11 to review the respective summary judgment motions and associated declarations, it should find
12 that there is no question of material fact that prevents a final determination as to the Individual
13 Defendants’ right to have their defense funded by the City. The Individual Defendants are
14 entitled to a mandatory injunction as a matter of law directing the City to reimburse the
15 Individual Defendants for its defense costs to date and to pay any remaining defense costs going
16 forward, including the defense of any appeal. The Individual Defendants incorporate their earlier
17 legal argument on entitlement to defense costs. See briefs dated February 2, 2017, February 9,
18 2017, March 20, 2017, and March 28, 2017.
19 Fundamentally, BDMC 2.66.020 serves as a covenant between the City of Black
20 Diamond and its elected officials:
21 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
22
notwithstanding the fact that such official or employee may have concluded
23 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
24 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
25 official or employee, which act or omission is within the scope of their service
or employment with the city.
26

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1 BDMC 2.66.020.A (emphasis added). This defense covenant is mandatory. An OPMA case, by
2 definition, involves allegations that fall within the scope of the defense covenant. The Court’s
3 March 2017 orders essentially agree that the allegations fall within the scope of the basic defense
4 covenant.
5 Hence, the only way for the City to avoid the defense obligation would be to prove that
6 one of the exemptions applies. Analogizing to insurance law, “[o]nce the duty to
7 defend is triggered by a claim that potentially falls within the policy's basic coverage provisions,
8 the insurer is relieved of that duty only if the claim is clearly excluded by an applicable
9 exclusionary clause within the policy.” Am. Best Food, Inc. v. Alea London, Ltd., 138 Wn. App.
10 674, 683, 158 P.3d 119, 124 (2007), aff'd in part and remanded, 168 Wn.2d 398, 229 P.3d 693
11 (2010), as corrected on denial of reconsideration (June 28, 2010). “The
12 insurer bears the burden of proving the applicability of such an exclusionary clause.” Id., at 683.
13 In previous briefing, the City has sought to avoid this defense obligation by citing to the
14 exemption for “dishonest, fraudulent, criminal, willful, intentional or malicious act[s].” BDMC
15 2.66.030.A.1. “A party moving for summary judgment can meet its burden by pointing out to the
16 trial court that the nonmoving party lacks sufficient evidence to support its case.” Seybold, at
17 677. The City has the burden to establish that one of the exclusions applies in response to this
18 motion, but it lacks sufficient evidence to do so. “To constitute wilful misconduct, there must be
19 actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the
20 peril to be apprehended, coupled with a conscious failure to avert injury.” Adkisson v. City of
21 Seattle, 42 Wn.2d 676, 684, 258 P.2d 461, 466 (1953). “[W]ilful misconduct is characterized by
22 intent to injure.” Id., at 684. There is no evidence that the Individual Defendants intended to
23 violate the OPMA and ample evidence to indicate that they made extensive efforts to comply
24 with it.
25
26

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1 VI. CONCLUSION
2 For each of the above-discussed issues, either statutes and prior case law indicate a
3 proper outcome as a matter of law, or the Plaintiff’s evidence is so sparse that no reasonable fact
4 finder would find in Plaintiff’s favor on the issue. Thus the Individual Defendants again
5 respectfully request that the Court rule that:
6 A. Pat Pepper’s presence at a meeting prior to her swearing in on the evening of January 7,
7 2016, could not trigger a violation of the Open Public Meetings Act (OPMA).
8 B. A councilmember’s nonresponsive presence on an email thread does not trigger an
9 OPMA violation.
10 C. State and local law allow a quorum of a governing body to communicate outside of a
11 public meeting for the purposes of scheduling or cancelling a meeting of the governing
12 body. In the alternative, councilmembers who believed state and local law allowed such
13 communications did not intentionally violate the OPMA.
14 D. Interactions of two out of five councilmembers do not trigger a knowing OPMA
15 violation, even if the two members serve on the same committee.
16 E. RCW 42.30.120 caps the civil penalty at $500 unless a court has previously found against
17 the individual.
18 F. The Individual Defendants are entitled to defense costs and attorney fees.
19
20 DATED this 15th day of December, 2017.
21
22 I certify that this memorandum contains 8400 words, in compliance with the Local Civil Rules.
23 LIGHTHOUSE LAW GROUP PLLC

24
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25 Desiree Phair, WSBA #52512
Attorney for Defendants, Black Diamond City
26 Council Members Morgan, Pepper and Weber
Tel. 206-273-7440 • Fax 206-273-7401
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Tel. 206-273-7440 • Fax 206-273-7401
1 DECLARATION OF SERVICE
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I certify that I served a true copy of the foregoing document on the following on December 15,
3 2017, by electronic mail:
4 Michele Earl-Hubbard
Allied Law Group LLC
5 P.O. Box 33744
Seattle, WA 98133
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Email: michele@alliedlawgroup.com
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8 Shannon Ragonesi and Derek Chen

Keating Bucklin & McCormack, Inc., P.S.
9 800 Fifth Avenue, Suite 4141
Seattle, WA 98104-3175
10 Email: sragonesi@kbmlawyers.com
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12 DATED this 15th day of December, 2017.
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14 LIGHTHOUSE LAW GROUP PLLC

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16 Desiree Phair, WSBA #52512
Attorney for Defendants, Black Diamond City
17 Council Members Morgan, Pepper, and Weber
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Tel. 206-273-7440 • Fax 206-273-7401

Defendant's Motions For Summary Judgement

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FILED

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2 of Procedure both expressly allow a quorum of the City Council

3 to schedule a special meeting…………………………….……………….….7

4 2. As a logical and practical matter, the same persons who may

5 communicate in order to schedule or adjourn a meeting may also

6 communicate in order to cancel a meeting………………………….…….….9

7 D. Interactions of two out of five councilmembers do not trigger a knowing

8 OPMA violation, even if both councilmembers serve on the

10 1. Resolution 16-1069 revising the Council Rules was structured such

11 that committees merely reviewed items and forwarded them back to

13 resolutions and ordinances…………………………………………………..….13

14 2. No public committee meeting involved more than two councilmembers

15 unless the meeting was properly noticed……………………………………….14

16 3. The mayor refused to recognize the validity of any version of the

18 “act on behalf of” the legislative body…………………………………………14

19 4. Morgan, Pepper, and Weber have conducted themselves under the

20 good-faith belief that two out of five councilmembers communicating

21 did not constitute an OPMA violation………………………………………….15

22 a. Despite several issues with attorney ethics and professionalism,

23 to the extent that attorney advice was rendered, the consistent

24 messaging has been that if three councilmembers would interact,

25 notice would be required………………………………………….………..15

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2 emails would believe that these councilmembers thought that

3 two committee members collaborating constituted an OPMA

7 actor liable for violating the OPMA………………………………………………..19

8 F. The Individual Defendants are entitled to declaratory and injunctive relief

9 requiring the City of Black Diamond to pay the Individual Defendants’

10 attorney fees and other costs of defense………..…………………………………..22

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4 Adkisson v. City of Seattle, 42 Wn.2d 676, 258 P.2d 461 (1953)………………………………24

5 Cerrillo v. Esparza , 158 Wn. 2d 194, 142 P.3d 155 (2006)……………………………………19

7 184 Wn.2d 428, 359 P.3d 753. …………………………………………………. 6, 11, 12

10 Michak v. Transnation Title Ins. Co. 148 Wn.2d 788, 794–95,

11 64 P.3d 22, 25 (2003). ………………………………………………………………….19

12 People’s Organization for Wash. Energy Resources v. Wash. Utilities and

14 Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001)……………………..………………..11

16 65 Wn.2d 568, 399 P.2d 1 (1965). ………………………………………………….….22

17 West v. Wash. Ass'n of County Officials, 162 Wn. App. 120,

18 252 P.3d 406 (2011). …………………………………………………….…………..…19

19 Wood v. Battle Ground School Dist., 107 Wn. App. 550,

20 27 P.3d 1208 (2001). ……………………………………………………………………5

22 Statutes, Senate Bills, and Local Rules

23 RCW 29A.60.280 ……………………………………………………..…………………………5

24 RCW 42.30.020 ………………………………………………………………..……………….11

25 RCW 42.30.030 ……………………………………………………………………..………….17

26 RCW 42.30.080 …………………………………………………………..…………..…..passim

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2 Senate Bill 6095, June 6, 2012

3 Attached to Declaration of Phair as Exhibit C …………………………………………20

4 Engrossed Senate Bill 3319 (1985)

5 Attached to Declaration of Phair as Exhibit D …………………………………………20

6 Section 3, Chapter 66, Laws of 1973

7 Attached to Declaration of Phair as Exhibit E …………………………………………20

8 Section 12, chapter 250, Laws of 1971 ex. sess.

9 Attached to Declaration of Phair as Exhibit F …………………………………………20

11 Black Diamond Municipal Code 2.66.020

12 Attached to Declaration of Phair as Exhibit G …………………………………..…23, 24

13 Black Diamond Council Rules of Procedure Section 2.7

14 Embedded within Deposition Exhibit 58

15 (Deposition Exhibit 58 is attached to Declaration of Phair as Exhibit U)…………7, 9, 10

16 Black Diamond Council Rules of Procedure Section 2.9