Summary Judgment For Jan 12 Hearing - Full

1 The Honorable Janet Helson
Noted for Hearing with Oral Argument: January 12, 2018, at 1:30 pm
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
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IN AND FOR KING COUNTY
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CCD BLACK DIAMOND PARTNERS LLC, a No. 16-2-29091-4 KNT
Delaware Limited Liability Company,
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ORDER ON PARTIES’ CROSS-
Plaintiff, MOTIONS FOR SUMMARY
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vs. JUDGMENT
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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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THIS MATTER came before the Court on Plaintiff’s and the Individual Defendants’
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Motions for Partial Summary Judgment, and on the City of Black Diamond’s Motion for
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Summary Judgment on its Counter-Claim against the Individual Defendants. The Court
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considered the argument of counsel, and the records and files in this case, including the
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following1:
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Plaintiff’s Motion
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1. Plaintiff’s Motion for Partial Summary Judgment, filed 12/15/17;
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1
Although the listing of documents is separated by motion, the parties frequently cross-referenced materials
23 submitted for other motions in responding/replying to a particular motion, so all materials are deemed to have been
submitted, and are considered, in relation to all of the motions.
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Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER ON MOTIONS FOR SUMMARY Kent, WA 98032
Phone (206) 477-1367
JUDGMENT- 1
helson.court@kingcounty.gov
1 2. Declaration of Michele Earl-Hubbard in support of Plaintiff’s Motion for Partial
Summary Judgment and exhibits thereto, filed 12/15/17;
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3. City’s Response to Plaintiff’s Motion for Partial Summary Judgment, filed 1/2/18;
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4. Individual Defendants’ Response to Plaintiff’s Motion for Partial Summary
4 Judgment, filed 1/2/18;
5 5. Declaration of Desiree Phair in Response to Plaintiff’s Motion for Partial Summary

Judgment and exhibits thereto, filed 1/2/18;
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6. Declaration of Brian Weber in Response to Plaintiff’s Motion for Partial Summary
8 7. Declaration of Pat Pepper in Response to Plaintiff’s Motion for Partial Summary

Judgment, filed 1/2/18;
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8. Declaration of Erika Morgan in Response to Plaintiff’s Motion for Partial Summary
11 9. Plaintiff’s Reply in support of its Motion for Partial Summary Judgment, filed 1/8/18:
12 10. Declaration of Michele Earl-Hubbard in support of Plaintiff’s Reply on its Motion for
Summary Judgment and exhibits thereto, filed 1/8/18;
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City’s Motion
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11. City of Black Diamond’s Motion for Summary Judgment and Determination of
15 Contribution and Motion for Determination of Indemnification and Defense, filed
12/15/17;
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12. Declaration of Shannon M. Ragonesi and exhibits thereto, filed 12/15/17;
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13. Declaration of Brenda Martinez and Exhibit 1 thereto, filed 12/15/17;
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14. Plaintiff’s Response to City’s Motion for Summary Judgment, filed 1/2/18;
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15. Defendant Councilmembers’ Opposition to City’s Motion for Summary Judgment,
20 filed 1/2/18;
21 16. Declaration of Desiree Phair in support of Councilmembers’ Opposition to City’s

Motion for Summary Judgment and attached exhibits, filed 1/2/18;
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17. Declaration of Brian Weber in support of Councilmembers’ Opposition to City’s
23 Motion for Summary Judgment and attached exhibits, filed 1/2/18;
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1 18. Declaration of Erika Morgan in support of Councilmembers’ Opposition to City’s
Motion for Summary Judgment and attached exhibits, filed 1/2/18;
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19. Declaration of Pat Pepper in support of Councilmembers’ Opposition to City’s Motion
3 for Summary Judgment and attached exhibits, filed 1/2/18;
4 20. City of Black Diamond’s Reply in support of its Motion for Summary Judgment, filed
1/8/18;
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Individual Defendants’ Motion
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21. Individual Defendants’ Motion for Partial Summary Judgment, filed 12/15/17;
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22. Declaration of Desiree Phair, including attachments, filed 12/15/17;
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23. Declaration of Pat Pepper including two attachments, filed 12/15/17;
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24. Declaration of Erika Morgan including two attachments, filed 12/15/17;
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25. Declaration of Brian Weber, Re: Attorneys, filed 12/15/17;
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26. Declaration of Brian Weber, Re: Meetings, field 12/15/17;
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27. Plaintiff’s Response to Individual Defendants’ Motion for Partial Summary Judgment,
13 filed 1/2/18;
14 28. Michele Earl-Hubbard Declaration and exhibits thereto in support of Responses to City
and Individual Defendants’ Motions for Summary Judgment, filed 1/2/18;
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29. Declaration of Robin Taylor, filed 1/2/18;
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30. Declaration of Jenna Kaluza and exhibits thereto, filed 1/2/18;
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31. City’s Response to Individual Defendants’ Motion for Partial Summary Judgment,
18 filed 1/2/18:
19 32. Declaration of Derek Chen and exhibit thereto in support of City’s Response to
Individual Defendants’ Motion for Partial Summary Judgment, filed 1/2/18;
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33. Individual Defendants’ Reply to City’s Response to Individual Defendants’ Motion
21 for Partial Summary Judgment, filed 1/8/18;
22 34. Individual Defendants’ Reply to Plaintiff’s Response to Individual Defendants’

Motion for Partial Summary Judgment, filed 1/8/18;
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JUDGMENT- 3
1 35. Declaration of Desiree Phair and exhibits thereto, filed 1/8/18; and
2 36. Declaration of Pat Pepper and exhibits thereto, filed 1/8/18.
3 Based on the foregoing, and following oral argument of counsel and otherwise being fully
4 advised on the matter, the Court hereby FINDS, CONCLUDES and ORDERS as follows:
5 A. Motion to Strike
6 The individual defendants moved to strike certain exhibits from the City’s and
7 Plaintiff’s submissions on the basis that they are hearsay, contain legal conclusions, and/or are
8 unfairly prejudicial under ER 403. The oral findings made by the Court during the January
9 12th hearing are incorporated herein by reference. The following rulings were made orally and
10 are hereby memorialized in writing:
11 1. Deposition Exhibits. 55, 56, 57, 61-632 will not be considered for the truth of the matter
12 asserted (including the accuracy or truth of any legal conclusions) but as evidence of
13 notice and information provided to the individual defendants.
14 2. Deposition Exhibit 85 is stricken; because it does not in any way relate to OPMA
15 violations, any limited relevance is outweighed by potential prejudice.
16 3. Deposition Exhibits 86 and 87 will not be considered for the truth of the matter asserted
17 but as evidence of notice and information provided to the individual defendants.3
18 4. In Exhibit 5 to Declaration of Shannon Ragonesi (excerpts of Carol Morris deposition),
19 p. 156, lines 17-20 is stricken as it appears to be an impermissible opinion and/or based
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2
The parties agreed to a continuous numbering system for deposition exhibits; for purposes of clarity, these rulings
21 refer to those numbers. The exhibits were filed in the summary judgment motions as part of Exhibits 4-6, 8-10 and
12 to the Declaration of Shannon Ragonesi and as part of Exhibits 15 and 57 to the Declaration of Michele Earl-
22 Hubbard.
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This reflects a modification of the court’s oral ruling, in which the court had indicated that Exhibits 86 and 87
would be stricken except for the portions that specifically address the OPMA. Because it would be difficult to
23 excise only those portions and have the documents be understandable, the court instead rules that they will be
admitted but will not be considered for the truth of the matter asserted.
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JUDGMENT- 4
1 on speculation rather than personal knowledge, and p. 209, lines 23-25 will not be
2 considered for the truth of the matter asserted, but to provide context to the remainder.
3 5. Exhibit 6 to the Declaration of Shannon Ragonesi shall be stricken except p. 30, line 23
4 - p. 32, line 2, which portion appears to be based on Ms. Ward’s personal observation
5 and knowledge.
6 6. Exhibits 8, 9 and 10 to Declaration of Shannon Ragonesi (Morris and Ward
7 memoranda) are not stricken; however, they will not be considered for the truth of the
8 matter asserted (including the accuracy or truth of any legal conclusions) but as
9 evidence of notice and information provided to the individual defendants.
10 7. Exhibit 12 to the Declaration of Shannon Ragonesi shall not be stricken, except the
11 initial comment from Phil Talmadge at the top of the first page shall be stricken
12 because it is hearsay, is not relevant, is impermissible opinion and/or speculation, and is
13 more prejudicial than probative. In addition, the e-mail that appears to be from Tom
14 Fitzpatrick that starts on the bottom of p. 2 will not be considered for the truth of the
15 matter asserted, but as evidence of notice/ information provided to the individual
16 defendants who received the e-mail.
17 B. Plaintiff’s Motion for Summary Judgment
18 Plaintiff’s motion for summary judgment is GRANTED in part and DENIED in part as
19 follows:
20 1. Plaintiff asks the court to find that “as long as the Black Diamond Standing
21 Council Committees have three members consisting of a quorum of the Council as a
22 whole, Committee Meetings are subject to the Open Public Meetings Act.” Summary
23 judgment is DENIED on that issue. Pursuant to RCW 42.30.020, a Council member’s
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JUDGMENT- 5
1 attendance at a standing committee meeting would violate the Open Public Meetings Act
2 only if the meeting is not properly noticed AND one of the following is true:
3  Three members are present such that a quorum of the governing body is present; OR
4  Two members are present and the committee “acts on behalf of the governing body,
5 conducts hearings, or takes testimony or public comment.”
6 Whether plaintiffs are entitled to summary judgment as to particular meetings is addressed in
7 the table set out at paragraph 9 below.
8 2. For Standing Committee meetings where there were only two Individual
9 Defendants present, there are genuine issues of material fact as to whether the Individual
10 Defendants attended the meetings described in Plaintiff’s Motion for Partial Summary
11 Judgment and addressed in the table with knowledge that the meetings were in violation of the
12 OPMA.
13 3. There are genuine issues of material fact as to whether the Individual Defendants
14 are entitled to a City-paid defense in this matter.
15 4. Because the Court has granted summary judgment and determined that there were
16 one or more violations of the OPMA, the Plaintiff is the prevailing party against a public
17 agency in this action and is entitled to an award of its reasonable fees and costs incurred herein,
18 the amount of which shall be determined after subsequent briefing. Plaintiff shall submit a Fee
19 and Cost Declaration within 10 days of this Order documenting all fees and costs incurred
20 through the date of such Declaration. The Defendants shall submit any objections, and basis
21 thereto, to the amounts of such fees and costs within 7 days after receipt of the fee and cost
22 declaration. Plaintiff may submit a Reply to such objections within 3 days of their receipt and
23 may include a supplemental declaration with any fees or costs incurred in connection with such
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JUDGMENT- 6
1 Reply. The Court will rule on the amount of fees and costs to be awarded without oral
2 argument.
3 5. Pursuant to RCW 42.30.120, the fees to be awarded the plaintiff are owed by the
4 public agency, i.e., the City of Black Diamond.
5 6. Although the failure to have minutes for standing committees may have violated
6 other provisions of law, it did not constitute an OPMA violation until the provision requiring
7 minutes previously set out at RCW 42.32.030 was recodified as RCW 42.30.035, effective
8 October 2017.
9 7. Pursuant to RCW 42.30.080, a meeting or serial communications between a
10 quorum of a governing body for purposes of scheduling or cancelling a meeting, where the
11 communication is limited to the scheduling/cancelling and to the topic to be listed in the
12 agenda is not a violation of the OPMA.
13 8. Meetings or serial communications between the three individual defendants prior
14 to Pat Pepper’s swearing in on January 7, 2016 do not, in and of themselves, violate the
15 OPMA; however, meetings or serial communications after that date that reference such prior
16 communications, and incorporate them by reference, could constitute an OPMA violation.
17 9. As to the plaintiff’s motion for summary judgment on specific OPMA violations,
18 the Court’s rulings are set out in the table below:
19 Date/ Description of Alleged OPMA Council Court’s

Alleged Meeting/Action Violation Members Ruling
20 Viol # Present
Prior to Morgan, Pepper Secret serial Pepper SJ Denied. No
21 and and Weber meeting; no Morgan violation for serial
including communicate public notice Weber communication related
22 1/8/2016 outside of a noticed provided; to cancelling or
meeting to agree to decisions scheduling meetings;
23 No. 1 approve new reached by no violation for serial
Council Rules and quorum of the communications prior
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2 Viol # Present
to seek canceling of Council outside to Pepper’s swearing
3 the January 12, of public in. There are genuine
2016 joint council meeting. issues of material fact
4 meeting, and as to whether there
requesting a special was serial commun-
5 meeting on January ication on 1/8/16 that
19, 2016 for violates OPMA.
6 “approval” of Although the phone
amendments to records tend to support
7 Rules of Procedure; a violation, the issue is
documented in an disputed.
8 1/8/16 letter signed
by Weber, Pepper
9 and Morgan
Prior to Morgan, Pepper Secret serial Pepper SJ denied. Evidence
10 and and Weber meeting; no Morgan cited by plaintiffs in
including communicate public notice Weber “Proof Chart,” Ex. 1 to
11 1/21/16 outside of a noticed provided; Dec. of Michele Earl-
meeting to adopt decisions Hubbard consists of
12 Resolutions 16- reached by passed resolutions.
No. 2 1069, 16-1070, 16- quorum of the Although the phone
13 1071 and 16-1072 Council outside records tend to support
enacting the new of public a violation, the issue is
14 City Council Rules meeting. disputed.
and Standing
15 Council
Committees
16 Prior to Pepper and Morgan Published Pepper SJ granted.
and meet in advance of Notice and Morgan The meeting is
17 including Government Agenda failed covered by the
2/11/16 Operations to identify the OPMA because
18 Committee Meeting business to be public testimony
to plan agenda and conducted and was taken. The
19 No. 3 invite Brian deliberately undisputed evidence
Derdowski to omitted known is that IDs Pepper
20 present lengthy event; Morgan and Morgan were
presentation on the and Pepper aware of, and
21 new Council Rules. engaged in invited, the
Pepper and Morgan action as presentation by Mr.
22 attend Government quorum of the Derdowski, which
Operations Committee was not
23 Committee (which is encompassed by the
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2 Viol # Present
Meeting. The subject to the agenda item “public
3 published Notice OPMA) on comment,” in that he
and Agenda fails to Committee characterized
4 include scheduled business himself as making a
presentation by “staff presentation.”
5 Brian Derdowski
on new Council
6 Rules.
Prior to Pepper and Weber Published Morgan SJ denied as to
7 2/24/16 communication Notice and Pepper communications prior
outside of a Agenda failed Weber to the meeting as there
8 No. 4 noticed-meeting to appropriately are genuine issues of
and decide to notice a Special material fact as to
9 interview Meeting of the whether there was
candidates for the entire Council serial communication
10 Planning or state that that included all three
Commission at the Morgan would IDs prior to the
11 2/24/16 Growth attend, and meeting. Although the
Management failed to phone records tend to
12 Committee identify the support a violation, the
Meeting, draft business to be issue is disputed.
13 interview questions, conducted and
invite candidates, deliberately
14 and notify Morgan omitted known
that interviews will event; Pepper
15 be occurring. They and Weber
prepare a Notice engaged in
16 and Agenda that is action as
sent to the City quorum of the
17 Clerk that Committee
deliberately omits (which is
18 stating that subject to the
interviews will be OPMA) on
19 conducted Committee
business and
20 communicated
with Morgan
21 about the secret
interviews
22 constituting
communication
23 among the
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2 Viol # Present
quorum of the
3 Council
2/24/16 Pepper, Weber and Published Morgan SJ granted. The
4 Morgan attend the Notice and Pepper meeting is covered
Growth Agenda failed Weber by the OPMA
5 Management to appropriately because three
No. 5 Committee Meeting notice a Special Council members
6 where Pepper and Meeting of the were present and
Weber interview entire Council because public
7 candidates for or state that testimony was taken.
Planning Morgan would The undisputed
8 Commission attend, and evidence is that all
although the event failed to three IDs were
9 is not listed on the identify the aware of the fact that
Agenda or Notice. business to be the planning
10 has not been conducted and commission
properly noticed as deliberately candidates would be
11 a Special Meeting omitted known interviewed but that
of the entire event; Pepper was not included in
12 Council as Morgan and Weber the meeting notice.
attends, and they engaged in
13 conduct business action as
intentionally not quorum of the
14 stated on the Notice Committee
or Agenda. (which is
15 subject to the
OPMA) on
16 Committee
business and
17 communicated
with Morgan
18 about the secret
interviews
19 constituting
communication
20 among the
quorum of the
21 Council
Up to and Pepper and Weber Published Pepper SJ denied. The
22 including communicated Notice and Weber materials cited in the
5/11/16 outside of a Agenda failed “Proof Chart,” Ex. 1
23 properly-noticed to identify the to Dec. of Michele
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2 Viol # Present
meeting as a business to be Earl-Hubbard does
3 #6 quorum of the conducted and not include the
Growth deliberately agenda for the
4 Management omitted known 5/11/16 meeting, nor
Committee (which event; Pepper does the briefing
5 is subject to the and Weber identify with
OPMA) to decide engaged in specificity where the
6 to interview action as agenda can be found
Planning quorum of the and what evidence
7 Commission Committee exists that an
candidate Jason (which is interview of Jason
8 Seth but subject to the Seth took place at
intentionally OPMA) on that meeting or that
9 omitted the event Committee it was known in
from the Notice and business. advance that it
10 Agenda forwarded would take place.
to the City Clerk to
11 post and circulate.
Pepper and Weber
12 attend the 5/11/16
Growth
13 Management
Committee Meeting
14 with knowledge
that the Seth
15 interview was
omitted from the
16 Agenda and Notice
and engage in
17 action by
interviewing Mr.
18 Seth and issuing a
recommendation on
19 behalf of the
Committee.
20 Up to and Pepper, Morgan Secret serial Pepper SJ denied.
including and Weber meeting with no Morgan Although the
21 6/16/16 communicate public notice; Weber annotated scripts and
outside of a decision the phone records
22 #7 properly-noticed reached by strongly suggest a
meeting to revise quorum of serial meeting, there
23 the agenda for the Council outside are disputed issues
6/16/16 Council that remain for trial.
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2 Viol # Present
Meeting and pre- of public
3 agree on certain meeting.
agenda items.
4 7/20/16 Morgan and Weber No Notice Morgan SJ denied.
attend the No Agenda Weber Although public
5 Budget/Finance comment was on the
Committee Meeting agenda, no evidence
6 #8 with knowledge has been cited that
that no Notice has public comment
7 been posted on the occurred at this
website, sent to the meeting or that the
8 list of those committee acted on
requesting Special behalf of the
9 Meeting Notice, or governing body,
physically posted in conducted a hearing
10 the locations or took testimony.
required for Notices
11 of Special Meetings
in Black Diamond.
12 7/20/16 Pepper and Weber No Notice Pepper SJ denied.
attend the Growth No Agenda Weber Although public
13 Management comment was on the
#9 Committee Meeting agenda, no evidence
14 with knowledge has been cited that
in Black Diamond.
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2 Viol # Present
in Black Diamond.
7 8/1/16 Morgan and Pepper No Notice Morgan SJ denied.
attend the No Agenda Pepper Although public
8 Government comment was on the
#11 Operations agenda, no evidence
9 Committee Meeting has been cited that
with knowledge public comment
10 that no Notice has occurred at this
been posted on the meeting or that the
11 website, sent to the committee acted on
list of those behalf of the
12 requesting Special governing body,
Meeting Notice, or conducted a hearing
13 physically posted in or took testimony.
the locations
14 required for Notices
of Special Meetings
15 in Black Diamond.
8/27/16 Morgan and Pepper No Notice Morgan SJ denied.
16 attend the No Agenda Pepper Although public
Government comment was on the
17 Operations agenda, no evidence
#12 Committee Meeting has been cited that
18 with knowledge public comment
that no Notice has occurred at this
19 been posted on the meeting or that the
website, sent to the committee acted on
20 list of those behalf of the
requesting Special governing body,
21 Meeting Notice, or conducted a hearing
physically posted in or took testimony.
22 the locations
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2 Viol # Present
of Special Meetings
3 in Black Diamond.
8/29/16 Morgan and Weber No Notice Morgan SJ denied.
4 attend the No Agenda Webber Although public
Budget/Finance comment was on the
5 Committee Meeting agenda, no evidence
with knowledge has been cited that
6 #13 that no Notice has public comment
been posted on the occurred at this
7 website, sent to the meeting or that the
list of those committee acted on
8 requesting Special behalf of the
Meeting Notice, or governing body,
9 physically posted in conducted a hearing
the locations or took testimony.
of Special Meetings
8/29/16 Pepper and Weber No Notice Pepper SJ denied.
12 attend the Growth No Agenda Weber Although public
Management comment was on the
#14 with knowledge has been cited that
14 that no Notice has public comment
of Special Meetings
20 attend the Growth No Agenda Webber Although public
#15 with knowledge has been cited that
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2 Viol # Present
of Special Meetings
6 in Black Diamond.
7 attend the No Agenda Weber Although public
Budget/Finance comment was on the
8 #16 Committee Meeting agenda, no evidence
of Special Meetings
of Special Meetings
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2 Viol # Present
3 attend the No Agenda Weber Although public
#18 Budget/Finance comment was on the
of Special Meetings
of Special Meetings
19 attend the No Agenda Pepper Although public
Government comment was on the
20 #20 Operations agenda, no evidence
Committee Meeting has been cited that
21 with knowledge public comment
that no Notice has occurred at this
22 been posted on the meeting or that the
website, sent to the committee acted on
23 list of those behalf of the
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2 Viol # Present
requesting Special governing body,
3 Meeting Notice, or conducted a hearing
physically posted in or took testimony.
4 the locations
in Black Diamond.
in Black Diamond.
14 12/10/16 Morgan and Pepper No Notice Morgan SJ denied.
attend the No Agenda Pepper No evidence has
15 #22 Government been cited that
Operations public comment
16 Committee Meeting occurred at this
with knowledge meeting or that the
17 that no Notice has committee acted on
been posted on the behalf of the
18 website, sent to the governing body,
list of those conducted a hearing
19 requesting Special or took testimony.
Meeting Notice, or
20 physically posted in
the locations
of Special Meetings
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2 Viol # Present
3 attend the Growth No Agenda Weber No evidence has
Management been cited that
4 #23 Committee Meeting public comment
with knowledge occurred at this
5 that no Notice has meeting or that the
been posted on the committee acted on
6 website, sent to the behalf of the
list of those governing body,
7 requesting Special conducted a hearing
Meeting Notice, or or took testimony.
the locations
of Special Meetings
11 attend the No Agenda Weber No evidence has
Budget/Finance been cited that
12 #24 Committee Meeting public comment
15 requesting Special conducted a hearing
Meeting Notice, or or took testimony.
the locations
of Special Meetings
19 attend the Growth No Agenda Weber No evidence has
#25 Management been cited that
20 Committee Meeting public comment
23 requesting Special
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2 Viol # Present
Meeting Notice, or conducted a hearing
3 physically posted in or took testimony.
the locations
of Special Meetings
5 in Black Diamond.
6 attend the No Agenda Pepper No evidence has
Government been cited that
7 #26 Operations public comment
Committee Meeting occurred at this
8 with knowledge meeting or that the
that no Notice has committee acted on
9 been posted on the behalf of the
website, sent to the governing body,
10 list of those conducted a hearing
requesting Special or took testimony.
11 Meeting Notice, or
physically posted in
12 the locations
in Black Diamond.
14 1/25/17 Morgan and Pepper No Notice Morgan SJ granted.
attend the No Agenda Pepper Undisputed
15 Government testimony in the
#27 Operations Declaration of
16 Committee Meeting Robbin Taylor
with knowledge asserts that public
17 that no Notice has comment took place
been posted on the at this meeting.
18 website, sent to the
list of those
19 requesting Special
Meeting Notice, or
the locations
of Special Meetings
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2 Viol # Present
1/28/17 Morgan and Pepper No Notice Morgan SJ granted.
3 attend the No Agenda Pepper Undisputed
Government testimony in the
4 #28 Operations Declaration of
Committee Meeting Robbin Taylor
5 with knowledge asserts that public
that no Notice has comment took place
6 been posted on the at this meeting.
website, sent to the
7 list of those
requesting Special
9 the locations
in Black Diamond.
attend the No Agenda Weber No evidence has
12 #29 Budget/Finance been cited that
Committee Meeting public comment
13 with knowledge occurred at this
that no Notice has meeting or that the
14 been posted on the committee acted on
website, sent to the behalf of the
15 list of those governing body,
requesting Special conducted a hearing
16 Meeting Notice, or or took testimony.
17 the locations
in Black Diamond.
19 1/30/17 Pepper and Weber No Notice Pepper SJ granted.
attend the Growth No Agenda Weber Undisputed
20 #30 Management testimony in the
Committee Meeting Declaration of
21 with knowledge Robbin Taylor
that no Notice has asserts that public
22 been posted on the comment took place
website, sent to the at this meeting.
23 list of those
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2 Viol # Present
requesting Special
4 the locations
in Black Diamond.
6 3/13/17 Pepper and Weber No Notice Pepper SJ denied.
attend the Growth No Agenda Weber No evidence has
7 #31 Management been cited that
Committee Meeting public comment
8 with knowledge occurred at this
that no Notice has meeting or that the
9 been posted on the committee acted on
website, sent to the behalf of the
10 list of those governing body,
requesting Special conducted a hearing
11 Meeting Notice, or or took testimony.
12 the locations
in Black Diamond.
14 3/30/17 Pepper and Weber No Notice Pepper SJ granted.
attend the Growth No Agenda Weber Undisputed
15 #32 Management testimony in the
Committee Meeting Declaration of Jenna
16 with knowledge Kaluza asserts that
17 been posted on the took place at this
website, sent to the meeting.
18 list of those
requesting Special
20 the locations
in Black Diamond.
22
23
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2 Viol # Present
3 attend the No Agenda Pepper No evidence has
#33 Government been cited that
4 Operations public comment
Committee Meeting occurred at this
5 with knowledge meeting or that the
that no Notice has committee acted on
6 been posted on the behalf of the
website, sent to the governing body,
7 list of those conducted a hearing
requesting Special or took testimony.
9 the locations
in Black Diamond.
11
12 10. The Court FINDS that Erika Morgan, who at all times relevant was a member of
13 the governing body of the Black Diamond City Council, Budget/Finance Standing Committee
14 and Government Operations Standing Committee, attended four (4) meetings in violation of a
15 provision of the OPMA applicable to her (Table Nos. 3, 5, 27 and 28). As to the meeting
16 addressed in Table No. 5, Erika Morgan acted with knowledge of the fact that the meeting was
17 in violation of the OPMA in that it is undisputed that she had received training on the OPMA
18 and understood that meetings of three City Council members that were not properly noticed, or
19 private serial communications of three City Council members regarding a topic related to the
20 City, violated the OPMA. The Court FINDS that Morgan should be fined $500 for the meeting
21 that she attended with knowledge of the fact the meeting was in violation of the OPMA. There
22 are genuine issues of material fact as to whether Ms. Morgan attended other meetings in
23
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1 violation of the OPMA and whether she had knowledge that she was in violation of the OPMA
2 other than for the meeting described in Table No. 5.
3 11. The Court FINDS that Pat Pepper, who at all times relevant was a member of the
4 governing body of the Black Diamond City Council, Growth Management Standing
5 Committee and Government Operations Standing Committee, attended six (6) meetings in
6 violation of a provision of the OPMA applicable to her (Table Nos. 3, 5, 27, 28, 30 and 32).
7 As to the meeting addressed in Table No. 5, Pat Pepper acted with knowledge of the fact that
8 the meeting was in violation of the OPMA in that it is undisputed that she had received training
9 on the OPMA and understood that meetings of three City Council members that were not
10 properly noticed, or private serial communications of three City Council members regarding a
11 topic related to the City, violated the OPMA. The Court FINDS that Pepper should be fined
12 $500 for the meeting that she attended with knowledge of the fact the meeting was in violation
13 of the OPMA. There are genuine issues of material fact as to whether Ms. Pepper attended
14 other meetings in violation of the OPMA and whether she had knowledge that she was in
15 violation of the OPMA other than for Table No. 5.
16 12. The Court FINDS that Brian Weber was at all times relevant a member of the
17 governing body of the Black Diamond City Council, Budget/Finance Standing Committee, and
18 Growth Management Standing attended three (3) meetings in violation of a provision of the
19 OPMA applicable to him (Table Nos. 5, 30 and 32). As to the meeting addressed in Table No.
20 5, Brian Weber acted with knowledge of the fact that the meeting was in violation of the
21 OPMA in that it is undisputed that he had received training on the OPMA and understood that
22 meetings of three City Council members that were not properly noticed, or private serial
23 communications of three City Council members regarding a topic related to the City, violated
24
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JUDGMENT- 23
1 the OPMA. The Court FINDS that Weber should be fined $500 for the meeting that he
2 attended with knowledge of the fact the meeting was in violation of the OPMA. There are
3 genuine issues of material fact as to whether Mr. Weber attended other meetings in violation of
4 the OPMA and whether he had knowledge that he was in violation of the OPMA other than for
5 Table No. 5.
6 13. The Court Hereby DENIES the Motion for Summary Judgment of the City of
7 Black Diamond. There are genuine issues of material fact as to whether Defendants Morgan,
8 Pepper and Weber are or are not entitled to a City-funded Defense
9 14. The Court Hereby GRANTS in part and DENIES in part requests for findings A –
10 C of the Motion for Partial Summary Judgment of the Individual Defendants Pat Pepper, Erika
11 Morgan and Brian Weber, and DENIES requests for findings D – F as follows4:
12 A. Because Pat Pepper was not a councilmember prior to her swearing in on the evening of
13 January 7, 2016, her participation in meetings or communications prior to the evening of
14 January 7, 2016, cannot trigger a quorum of the Council. Wood v. Battle Ground School
15 Dist., 107 Wn. App. 550, 561, 27 P.3d 1208, 1215 (2001). As a corollary, meetings or
16 communications that took place prior to January 7, 2016 cannot be used as evidence of a
17 “serial meeting” in which Pepper is counted as a quorum-making participant of the serial
18 meeting unless a post-January 7th serial meeting that, on its own would amount to a serial
19 meeting, incorporates pre-January 7th meetings by reference.
20 B. Mere passive receipt and reading of an email does not constitute a “meeting” under the
21 OPMA, and thus a third councilmember’s nonresponsive presence on an email thread
22
23 4
The letters used in this paragraph correspond to the requests for relief set out in section I of Individual Defendants’
Motion, titled “Relief Requested.”
24
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JUDGMENT- 24
1 does not make a quorum for OPMA purposes or, by itself, constitute a violation of the
2 OPMA. However, the passive receipt and reading of the e-mail may be considered as
3 part of a constellation of actions and communications that together may determined to be
4 a serial meeting that violates the OPMA.
5 C. As discussed above related to the plaintiff’s motion, communications by three council
6 members solely for purposes of scheduling or cancelling a special meeting, where the
7 discussion is limited to scheduling/cancelling and the topics of discussion/business to be
8 included on the notice of the meeting, do not constitute a violation of the OPMA.
9 D. The presence of two out of five council members at a standing committee meeting may
10 violate the OPMA if the meeting was not properly noticed and during the meeting the
11 committee “acts on behalf of the governing body, conducts hearings, or takes testimony
12 or public comment.” RCW 42.30.020(2). The defendants’ motion is DENIED on this
13 issue.
14 E. RCW 42.30.120 provides for a penalty of $500 for each violation and for $1,000 for each
15 violation subsequent to a court finding of violation. The defendants’ motion is DENIED
16 on this issue.
17 F. There are genuine issues of material fact as to whether the individual defendants acted in
18 bad faith or otherwise acted such that they are not entitled to defense costs and attorney
19 fees. The defendants’ motion is DENIED on this issue.
20
21 DATED this 24th day of January, 2018.
22
Electronic signature attached
23 ___________________________
The Hon. Janet M. Helson
24
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JUDGMENT- 25
King County Superior Court
Judicial Electronic Signature Page
Case Number: 16-2-29091-4

Case Title: CCD BLACK DIAMOND PARTNERS VS BLACK DIAMOND
CITY OF ET AL
Document Title: ORDER ON MOTIONS FOR SJ
Signed by: Janet Helson

Date: 1/25/2018 9:00:00 AM
Judge/Commissioner: Janet Helson
This document is signed in accordance with the provisions in GR 30.

Certificate Hash: 9EA02A1ED5E4EF3D2A4D7D25146B24D530063ED6
Certificate effective date: 5/1/2015 8:14:53 AM
Certificate expiry date: 5/1/2020 8:14:53 AM
Certificate Issued by: C=US, E=kscsefiling@kingcounty.gov, OU=KCDJA,
O=KCDJA, CN="Janet Helson:
4OQ4Hanx4xG2BZv/HV1GsA=="
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Summary Judgment For Jan 12 Hearing - Full

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Summary Judgment For Jan 12 Hearing - Full

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1 The Honorable Janet Helson

5 5. Declaration of Desiree Phair in Response to Plaintiff’s Motion for Partial Summary

8 7. Declaration of Pat Pepper in Response to Plaintiff’s Motion for Partial Summary

21 16. Declaration of Desiree Phair in support of Councilmembers’ Opposition to City’s

22 34. Individual Defendants’ Reply to Plaintiff’s Response to Individual Defendants’

2 36. Declaration of Pat Pepper and exhibits thereto, filed 1/8/18.

10 are hereby memorialized in writing:

13 notice and information provided to the individual defendants.

15 violations, any limited relevance is outweighed by potential prejudice.

17 but as evidence of notice and information provided to the individual defendants.3

18 4. In Exhibit 5 to Declaration of Shannon Ragonesi (excerpts of Carol Morris deposition),

19 p. 156, lines 17-20 is stricken as it appears to be an impermissible opinion and/or based

6 6. Exhibits 8, 9 and 10 to Declaration of Shannon Ragonesi (Morris and Ward

9 evidence of notice and information provided to the individual defendants.

12 because it is hearsay, is not relevant, is impermissible opinion and/or speculation, and is

15 matter asserted, but as evidence of notice/ information provided to the individual

16 defendants who received the e-mail.

17 B. Plaintiff’s Motion for Summary Judgment

21 Council Committees have three members consisting of a quorum of the Council as a

23 judgment is DENIED on that issue. Pursuant to RCW 42.30.020, a Council member’s

5 conducts hearings, or takes testimony or public comment.”

6 Whether plaintiffs are entitled to summary judgment as to particular meetings is addressed in

7 the table set out at paragraph 9 below.

14 are entitled to a City-paid defense in this matter.

4 public agency, i.e., the City of Black Diamond.

9 7. Pursuant to RCW 42.30.080, a meeting or serial communications between a

11 communication is limited to the scheduling/cancelling and to the topic to be listed in the

12 agenda is not a violation of the OPMA.

13 8. Meetings or serial communications between the three individual defendants prior

16 communications, and incorporate them by reference, could constitute an OPMA violation.

17 9. As to the plaintiff’s motion for summary judgment on specific OPMA violations,

18 the Court’s rulings are set out in the table below:

19 Date/ Description of Alleged OPMA Council Court’s

2 other than for the meeting described in Table No. 5.

15 violation of the OPMA other than for Table No. 5.

8 Pepper and Weber are or are not entitled to a City-funded Defense

13 January 7, 2016, her participation in meetings or communications prior to the evening of

17 “serial meeting” in which Pepper is counted as a quorum-making participant of the serial

19 meeting, incorporates pre-January 7th meetings by reference.

21 OPMA, and thus a third councilmember’s nonresponsive presence on an email thread

3 part of a constellation of actions and communications that together may determined to be

4 a serial meeting that violates the OPMA.

5 C. As discussed above related to the plaintiff’s motion, communications by three council

7 discussion is limited to scheduling/cancelling and the topics of discussion/business to be

12 or public comment.” RCW 42.30.020(2). The defendants’ motion is DENIED on this

15 violation subsequent to a court finding of violation. The defendants’ motion is DENIED

19 fees. The defendants’ motion is DENIED on this issue.

21 DATED this 24th day of January, 2018.

Case Number: 16-2-29091-4

Signed by: Janet Helson

Judge/Commissioner: Janet Helson

This document is signed in accordance with the provisions in GR 30.

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