1 Honorable Janet Helson

7
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
8 IN AND FOR THE COUNTY OF KING
9 CCD BLACK DIAMOND PARTNERS
LLC, a Delaware Limited Liability No. 16-2-29091-4 KNT
10 Company,,
11 Plaintiff, DEFENDANT CITY OF BLACK
DIAMONDS REPLY BRIEF IN
12 v. SUPPORT OF MOTION FOR THE
COURT TO ESTABLISH LEGAL
13 CITY OF BLACK DIAMOND and REPRESENTATION
BLACK DIAMOND CITY COUNCIL, a
14 Public Agency, and ERIKA MORGAN, NOTE ON MOTION CALENDAR:
PAT PEPPER AND BRIAN WEBER,
15 Black Diamond City Council Members, , February 1, 2017

16 Defendants.
17
I. ARGUMENT AND ANALYSIS
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The purpose of this motion is to determine who counsel for the City of Black
19
Diamond (the City) is in this litigation, not who has the power to choose a City Attorney
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or counsel for the City in matters outside of this case. Given the specific facts of this case,
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the City respectfully requests the Court hold: (1) the Individual Defendants in this case must
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be conflicted out of any decision regarding representation of the City in this case, (2) the
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Mayor has the authority to contract for legal counsel to defend the City here, and (3)
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Shannon Ragonesi may proceed as counsel for the City in this case.
25

26 A. The Individual Defendants Must Be Conflicted Out of Any Decision

Regarding the Citys Legal Representation in This Case.
27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 1
16-2-29091-4 KNT
1283-00001/271508
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The Individual Defendants are essentially requesting to choose the attorney for their
2
opposition. The City established in its initial motion that the two sets of Defendants in
3
this case each assert, through cross-claims and affirmative defenses, that if there is any fault
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in this case, it is due to the actions of the other. Allowing the Individual Defendants, who
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constitute a majority of the Black Diamond City Council, to hire (and presumably fire if
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they deem necessary) the attorney for the City gives them the power to control the Citys
7
trial strategies. Cross-claim plaintiffs do not get to choose counsel to represent the party
8
they are suing. It is hard to imagine a larger conflict of interest existing between two
9
Defendants.
10
The Individual Defendants rely entirely on In re Recall Petition of Olsen, 154 Wash.
11
2d 606, 116 P.3d 378 (2005), to support their claim that they should be permitted to
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participate in a vote to determine counsel for the City. Opp. Brief at p. 10-12. Olsen is
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distinguishable for multiple reasons. First, the vote in Olsen was to determine whether the
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City would defend and indemnify the individual members of the port commission, not to
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determine who would provide representation to a separate defendant in the case. Olsen, 154
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Wash. 2d at 612. The Olsen Court held the members could vote because RCW 42.23.030,
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which expressly prohibits municipal officers from voting on contracts in which they would
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be beneficially interested, applied only to contracts and [t]he decision to indemnify does
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not involve a contract. Id. The Individual Defendants here argued in their opposition brief
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that contracts are the only way for the City to get legal representation, as the City code does
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not have a specific provision on appointments of attorneys. Opp. Brief, at p.4:16-17 (As a
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result, the City of Black Diamond has no option but to provide for legal services by
23
contract.) Further, the issue of indemnification is not even before the Court here as the
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Individual Defendants have not taken a vote or passed a resolution on this issue. Rather,
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they have identified this as an issue to be litigated in this lawsuit in their Answer and Cross-
26
claims. Therefore, Olsen is not applicable here.
27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 2
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Second, the Individual Defendants interests in voting to both fire Ms. Ragonesi
2
and hire counsel of their choosing 1 are far greater than the officers interests in Olsen. If a
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court finds liability against the Defendants, the sole issue will be which of them is
4
responsible for the harm. It is extremely foreseeable that the Defendants could be directly
5
adverse to each other, as their cross-claims and affirmative defenses illustrate plainly.
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Simply put, one party cannot have the authority to choose, hire, and/or fire counsel for an
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adverse party. Similarly, it is hard to imagine how an attorney who serves at the will and
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under the direction of the Individual Defendants can promote the best interests of the City in
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this case. No matter how the Individual Defendants try to define their authority, they cannot
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overcome the fundamental fact that it would be a direct conflict of interest for them to have
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any hand in directing the Citys decisions on how to prosecute its cross-claims against them
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or defend against the main claims by plaintiff. For these reasons, the Individual Defendants
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cannot vote (by Council resolution or otherwise) on any matter involving the Citys defense
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in this litigation, including choosing who will represent the City.
15
B. The Black Diamond Municipal Code (BDMC) Specifically Grants the
16 Mayor the Authority to Contract for Legal Services.
17 The Individual Defendants admit the Mayor has unilateral contracting authority
18 under BDMC 2.90.010(B) for service contracts under $15,000 that are specifically included

19 as a line item in the Citys budget. Opp. Brief, at p.5:23-6:5. This renders moot all of their

20 state law discussion regarding the city legislatures authority to contract. Likewise, any

21 debate regarding whether the temporary budget agreement adopted on December 28, which

22 arguably requires all contracts be approved by the Council, somehow affects this authority is

23 also moot. The Individual Defendants have cited no authority that would allow this
24
1
Despite passing a resolution where they attempted to hire Mr. Taradays firm to represent both the
25 City and the Individual Defendants, the Individual Defendants have apparently back-pedaled on this
issue for now, choosing to not even discuss how such joint representation could possibly be
26 permissible under the Rules of Professional Conduct after originally citing the RPCs in their
resolution to fire Ms. Ragonesi and hire Mr. Taraday.
27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 3
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 1
temporary budget agreement to repeal authority previously granted by the Council to the
2
Mayor and codified in the Municipal Code. In order to revoke BDMC 2.90.010(B), a
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majority of the City Council would have to pass an ordinance setting forth the existing Code
4
language in its entirety and expressly repealing it, which the Mayor could simply veto,
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thereby requiring four out of five City Council members to override the veto. RCW
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35A.12.130 (No ordinance or any section or subsection thereof shall be revised or amended
7
unless the new ordinance sets forth the revised ordinance or the amended section or
8
subsection at full length.); id. (requiring every ordinance be presented to the mayor, and if
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vetoed, requiring a supermajority of the Council to override). The City Council has not
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chosen to do this.
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The City of Black Diamond has specifically included in its 2017 budget a line-item
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provision for legal services in the amount of $110,000. Exh. A to Supplemental Declaration
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of Carol Benson. In order to keep the City from shutting down, the Mayor and City Council
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compromised on a temporary three-month budget agreement (through March 31, 2017)
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where the Mayor has the authority to expend up to 25% of the budgeted expenditures during
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the term of this ordinance, except as may be necessary for capital projects or other
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extraordinary expenses. Therefore, the requirements under BDMC 2.90.010(B) are met and
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the Mayor may execute a series of individual contracts up to $15,000 for legal services.
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The Individual Defendants have not asserted any provision of the city code that
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prevents the Mayor from executing serial contracts, particularly in the type of exigent
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circumstances presented here. To the contrary, the Mayor is obligated to do so to ensure the
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City has representation in this litigation. While this is not the preferred way to obtain legal
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counsel, the unique situation the parties are in has forced this necessary solution.
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C. The Unique Circumstances of This Litigation Have Created an Emergency
25 Which Requires the Mayor to Choose Counsel for the City.
26 The Individual Defendants acknowledge that under Wiley v. Seattle, 7 Wash. 576, 35
27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 4
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P. 415 (1894), certain circumstances can exist that create the need for the Mayor to contract
2
for legal representation on behalf of the City in order to uphold her responsibilities. Opp.
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Brief, at p. 9-10. Additionally, they acknowledge that the City requires the provision of
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legal services. Id. at p. 10:6-7. While the City maintains the Mayor has statutory and city
5
code-based authority to contract for legal representation, the Mayor also has authority to hire
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Ms. Ragonesi under Wileys emergency doctrine.
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Given the facts of this specific litigation, the Mayor is in the best position to choose
8
counsel for the City. The Individual Defendants constitute a majority (three out of five) of
9
the Black Diamond City Council, which is the only other body outside of the executive
10
branch that could arguably contract for legal representation on behalf of the City. For the
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reasons laid out in detail above and in the Citys original motion, the Individual Defendants
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must be conflicted out of any decision involving choice of counsel for the City. The
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remaining two members of the Council cannot constitute a quorum for the purposes of
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voting to approve anything. RCW 35A.12.120 (majority of counsel required for a quorum to
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transact city business). There must be a mechanism by which the City can retain counsel
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when these conflicts arise. The only office left, and the one obligated to uphold the City
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Code and protect the City, is the Mayor. Even absent specific authority (which exists), this
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unusual situation mandates the Mayor to act. Without her action, the City is impermissibly
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left without legal representation.
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The Individual Defendants assertion that the Mayor created this emergency is
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unsupported. The Individual Defendants willfully took actions against the advice of
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multiple attorneys for the City, thereby putting themselves at odds with the City. The
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Individual Defendants, acting as Council majority, have discharged or attempted to
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discharge three separate attorneys for the City in the last 12 months because they did not
25
agree with the legal advice they were given. In addition, they have asserted cross-claims
26
and affirmative defenses which clearly establish that their interests do not align with Citys
27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 5
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interests. Removing the Mayor from the equation would not remedy the clear conflicts that
2
exist between Defendants in this case.
3
D. The Court Should Choose Shannon Ragonesi to Represent the City In this
4 Case.
5 Pursuant to her authority, the Mayor has contracted with Keating, Bucklin and
6 McCormack, and specifically Shannon Ragonesi, to provide legal services to the City in this

7 litigation. The Individual Defendants insist on arguing the parties authority to contract for

8 general City Attorney services, which is not at issue in this very narrow motion. The

9 Individual Defendants cite no other reason why Ms. Ragonesi should not proceed as counsel

10 for the City. Therefore, the City respectfully requests the Court grant its motion.

11
DATED: February 1, 2017
12
KEATING, BUCKLIN & McCORMACK, INC., P.S.
13

14
By: /s/ Shannon M. Ragonesi
15 Shannon M. Ragonesi, WSBA #31951
Attorney for Defendants City of Black Diamond and
16 Black Diamond City Council
17 800 Fifth Avenue, Suite 4141
18 Seattle, WA 98104-3175
Telephone: (206) 623-8861
19 Fax: (206) 223-9423
Email: sragonesi@kbmlawyers.com
20
My signature above certifies this memorandum
21
contains 1961 words, in compliance with the Local
22 Civil Rules.

23

24

25

26

27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 6
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1283-00001/271508
 1 DECLARATION OF SERVICE

2 I declare under penalty of perjury under the laws of the State of Washington that on

3 February 1, 2017, a true and correct copy of the foregoing document was served upon the

4 parties listed below via electronic mail pursuant to agreement:

5 Attorneys for Plaintiff

6 Michele Earl-Hubbard
Allied Law Group, LLC
7 P.O. Box 33744
Seattle, WA 98133
8 Email: michele@alliedlawgroup.com
info@alliedlawgroup.com
9
Attorneys for Black Diamond City Council Members Erika Morgan, Pat
10 Pepper and Brian Weber
11 Jeff Taraday
Lighthouse Law Group PLLC
12 1100 Dexter Ave., #100
Seattle, WA 98109
13 Email: jeff@lighthouselawgroup.com
14
DATED this 1st day of February, 2017, at Seattle, Washington.
15

16
/s/ Elena Ortiz
17 Elena Ortiz, Legal Assistant to Ms. Ragonesi
18

19

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22

23

24

25

26

27 DEFENDANT CITY OF BLACK DIAMONDS KEATING, BUCKLIN & MCCORMACK, INC., P.S.
ATTORNEYS AT LAW
REPLY BRIEF IN SUPPORT OF MOTION FOR 800 FIFTH AVENUE, SUITE 4141
SEATTLE, WASHINGTON 98104-3175
THE COURT TO ESTABLISH LEGAL PHONE: (206) 623-8861
FAX: (206) 223-9423
REPRESENTATION - 7
16-2-29091-4 KNT
1283-00001/271508