Edmonds City Council voids separation agreements Cooper made with his former assistant

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The Edmonds City Council voted unanimously Tuesday night to approve a resolution voiding two “purported separation agreements” that Edmonds Mayor Mike Cooper entered into with his former executive assistant, Kim Cole, who resigned Sept. 22.

The resolution read by Council President Strom Peterson noted that the mayor had no authority to enter into such agreements. A mayor can contract “for goods and services valued at less than $100,000,” but the agreements with Cole did not fall into either of those categories, the resolution said.

The resolution was discussed in executive session with Cooper and the City Attorney prior to the council meeting, with councilmembers voting to approve it immediately after leaving the session. No dollar amount for the separation agreements was disclosed. Prior to the resolution’s passage, Councilmember Michael Plunkett called acting City Finance Director Jim Tarte to the podium and asked him if he understood “if council passes this resolution you will not cut any checks to Ms. Cole?” After Tarte answered yes to that question, Plunkett also asked Tarte if he had issued any checks to former Human Resources Director Debi Humann “in any amount for a settlement?” Tarte replied that there was no settlement check cut to Humann, whom Cooper fired Sept. 22 after stating he no longer had confidence in her work.

Here’s the full text of the resolution as transcribed from Peterson’s reading Tuesday night:

A resolution of the City Council of the City of Edmonds, Washington declaring void two purported agreements that were signed by Mayor Mike Cooper and Executive Assistant Kimberly Cole

Whereas the document entitled CR2A agreement between the City of Edmonds and Kimberly Cole was signed by Mayor Mike Cooper and Kimberly Cole on Sept. 22, 2011.

And whereas the second document entitled separation agreement general release between Kimberly Cole and the City of Edmonds was signed by Mayor Mike Cooper and Kimberly Cole on approximately Sept. 23, 2011.

And whereas pursuant to RCW 35A.11.010, the City Council is vested with the authority to contract on behalf of the City of Edmonds

And whereas the City Council has delegated some contracting authority to the Mayor, specifically the authority to contract for goods and services valued at less than $100,000.

And whereas the two purported separation agreements are not contracts for goods or for services

And whereas the City Council has not delegated any other authority for the Mayor to enter into employment separation agreements on behalf of the City

And whereas the CR2A agreement between the City of Edmonds and Kimberly Cole signed on September 22, 2011 and the separation agreement and general release between Kimberly Cole and the City of Edmonds Sept. 23, 2011 were signed by the mayor in the absence of such authority

Now therefore the City Council of the City of Edmonds, Washington hereby resolves as follows:

Section 1: Ultra Vires Acts. The mayor’s actions in purportedly executing two separate agreements with Kimberly Cole are ultra vires actions in that he had no authority to enter into such agreements notwithstanding initial advice to the contrary.

Section 2: Agreements Declared Void. The Sept. 22, 2011 CR2A agreement between the City of Edmonds and Kimberly Cole and the Sept. 23, 2011 separation agreement between Kimberly Cole and the City of Edmonds ab initio are void, have no legal effect and the City of Edmonds shall not be bound by them.

Section 3. No Payment. Because the two purported agreements are void, the city shall not make any payments pursuant to the two purported agreements.

Cole’s attorney said in a statement released last Friday that Cole, who is also a Lynnwood City Councilmember, faced a “hostile work environment created by certain employees in the City of Edmonds.” Attorney James W. Spencer noted that “satisfactory resolution was not to be had, and Ms. Cole made the very personal decision to resign her position as Executive Assistant to the Mayor of Edmonds on September 22, 2011.”

In other Council action Tuesday night, the Council:

– Approved a city policy. presented by City Public Works Director Phil Williams, that addresses how city staff handle change orders on construction projects. Williams took the lead in developing the policy following cost overruns associated with the recently completed Haines Wharf project. The policy states that anytime there is a change order of over $50,000 on a project, the City Council will be notified by email.

In addition, council approval is required for

– Any project change order over $100,000

– Any change order which puts the total dollar amount on a project over the designated management reserve. “If we get to point where a change order is going to exceed the management reserve, we are obligated to tell you,” Williams said

– If council approval is required for any of above reasons but circumstances require a speedier approval, the mayor is authorized to approve the required work — provided that the change order and the written statement of the circumstances requiring council approval is placed on the next city council agenda for review. As an example of such a special circumstance, Williams described being “out in middle of project, with a hole in ground, an intersection is shut down and something needs to be done right now.”

– Recognized the month of October as National Arts and Humanities Month, with many volunteers from local arts organizations looking on.

– Heard a positive report from Edmonds Center for the Arts Executive Director Joe McIalwain, who cited the ECA’s $3 million annual impact on the local economy, its increase in season ticket sales from $110,000 last year to $180,000 this year; its successful Arts Crush fundraiser that reported a $75,000 increase in revenue; and recent $1 million gift to the ECA and the Cascade Symphony Orchestra from Edmonds business owner Rick Steves that will translate to $50,000 to $60,000 net revenue for the next 10 years. However, due to the continued declining sales tax revenues, the ECA will need additional funds from the city in 2011 to help cover a portion of the center’s bond debt, McIalwain said. It’s estimated the ECA will be asking for $145,000, which is in addition to the $83,185 the City paid toward this debt in June.

– Held a public hearing on the Capital Facilities Plan Element Update for 2012-17, which includes a variety of infrastructure projects that may be undertaken in the next several years. Whether to proceed with a roundabout at Five Corners was discussed, along with other projects that some councilmembers thought might be unwise to pursue during lean economic times. The next step is for councilmembers to work with staff on refining the proposed list of projects.

 

22 COMMENTS

  1. In this case, I believe the Council was short sited. Even if, arguendo, litigation is frivolous, it is always better to settle than litigate. I tell my clients who are thinking of litigation that they are easily looking at 50k in attorneys fees alone on a simple case where the other side doesn’t fight too hard. When one adds up the cost of expert witnesses and depositions, that cost can easily go to 100K in the first 6 months.

    In addition, I am curious about the following: I assume that our City Attorneys drafted the settlement agreements in light of the law. The Council says the agreements are void per law. So, did our City attorneys screw up here ALREADY? They’ve been employed by us for what? 6months? Shouldn’t we be able to absolutely rely on our City Attorney for simple things like this? And, if Ms. Cole and Humann go to Court asking that the Contracts be enforced based on reliance (a legal defense in contract law), for example, wouldn’t there be a conflict between our attorney and the CIty because we would have to point the finger at them? What a mess!

    Just thinking out loud……

  2. Mayor Cooper, this has gone on long enough. Please step aside and let our city begin to fix itself. You served us admirably in the past but that was the past. The city and you don’t need an official election to know the time has come for you to move on. Whatever you have done will come out eventually. Your attempts to resolve these problems quietly are only making them fester and grow. Do yourself, your family and our city the honor of resigning. Nobody wants to embarrass you, we just want to move on.
    And as for Mr. Wilson, he’s not fooling anyone either. I believe we’ve all seem thru his charade also. His day will come.

  3. Mayor Cooper’s improper actions are very disappointing to say the least. Whenever our Council votes unamimously on anything you can count on it to be correct virtually all the time.

    Now I feel there are really no good straight forward candidates for Mayor. I will now not vote for either candidate. We might as well have Haakenson back.

    All three unfortunately are power grubbing and devious characters ignoring the rules and practices of good goverment with their own unseen agendas and motives. Power certainly has a fast way of corrupting in our city goverment. Challenge me on this statement concerning Earling and I will provide you a very current example of why he is a very shifty and evasive individual that we simply do not need running our city further into the ground.

    More than ever right now, our city needs a Council/Manager form of operation on the ballot. With that move, disruptive situations, whether caused by employees or not; would be swiftly and more fairly resolved without as much probable and unnecessary litigation. The cost of unnecessary litigation the past 10 years has been huge.

    Finally, Ms Sinha is right on when she infers we do not need more litigation, but just how do we best achiieve that? I say, by leting the voters decide on what type of government, Mayor/Council or Council/Manager, would better prevent this nonsense before It could happen. How about that City Council, why not put it on the ballot and let the people decide?

  4. Let me lay this out for you. City Attorney advises Cooper. Cooper, on advice of attorney puts settlement agreement into place. Council decides it is void as a matter of law. if in fact, settlement agreements are void as a matter of law, then City Attorney has committed malpractice. This is the City Attorney screwing up; not Cooper.

    I still think there is more to this story than any of us know about and the truth will come out in litigation. Unfortunately, it will be expensive to the public.

    And, in no way, should my discussion above be construed to believe that I do not continue to support Mayor Cooper, wholly. I think Mayor Cooper is an honorable man. He and I have had our disagreements — no doubt. However, I know that Mayor Cooper considers all opinions and does what he believes will move the City forward. That is what is important to me.

    Earling is the opposite to Cooper. How do I know that? I had a disagreement with him early on in his campaign. I never felt listened to and he clearly dubbed me as a “troublemaker” instead of a citizen with concerns. Haakenson was similar. They are both of the the ‘you are with me or against me crowd”. This is not a leadership quality. It is divisive and does not serve anyone.

  5. I think the path to avoid litigation is simple. The Mayor should negotiate a new agreement with Ms. Cole and submit it to Council for approval. Council then has the opportunity to approve it or to request changes and force the Mayor and Ms. Cole to renegotiate.

    As I see last night’s decision, Council is just saying that’s the way it must be done. Like Priya, I’m baffled about why our new law firm didn’t advise the Mayor of all this when they reviewed the agreements that are now voided.

  6. I agree with Ray, it is time to move forward with the Council/City Manager form of government. It is interesting to note that Cities like Bothell, Mountlake Terrace, Shoreline (with Council Manager form) have whethered this recession much better than Cities like Lynnwood and Edmonds. Lets follow Lynnwood’s lead and get this on the ballot soon.

  7. If it is true that Mayor Cooper used wrong advice from the City attorney, then he should swiftly act to correct the situation immediately, by calling for another execurive session ASAP with the intent to move forward in the best way possible.

    I might then decide to vote for cooper after all.

  8. As a matter of law, any attorney, once they know a possible conflict is present must send a letter to their client outlining the possible conflict and informing the client that he can either (1) waive the conflict; or (2) seek new counsel. I think there is a clear conflict here that is not waivable and the City Attorney should be required to pay for an attorney to represent the City.

  9. Umm…Mr. Martin….what exactly does this story have to do with DJ Wilson? Could you please find the appropriate place to rant about DJ.

  10. I’d like to remind you supporters of Ms. Buckshnis and Ms. Petso that those two council members were the strongest supporters of the selection of The Lighthouse Group of attornies. It was evident to three other council members, and many of us council watchers, that the selected attornies were a very weak group. They had been in business for only a few months and their HR expert is a full-time employee of Nordstrom. The selection of attornies was an important issue in which very poor judgement was used.

    Buckshnis, Petso, and The Lighthouse Group all got to go at the end of this year. There are better people ready and willing to serve us!

  11. Does anyone know if the City Attorney was asked for advice on these agreements? It does not appear to say so in the article – only that they were involved in crafting the resolution.

  12. Ron B. Why dont you document what you say you know which led to your conclusions on Humann, Cole and D.J. behind the scenes. I think the public needs know just like open gov.

  13. John, I think under section 1 where it says not withstanding initial advice to the contrary is being interipitied as legal advise, at least at the meeting that was the mumer

  14. If elected and taking office in late Nov. I can only hope that Earling will post the job for an administrative assistant and go through a selection process to find the best candidate. Maybe Kim Cole will apply and compete for the job along with others who may apply. Who knows, maybe Cooper will post the job now and do some interviews and fill the job before the election.

  15. Not to overlook the other important decision is the City finally having a good change order process to avoid the troubles surrounding at least the Haines Wharf project. It never hurts to have clarity and a process to help all parties understand what is happening with expensive pubilc works projects. A big thanks to all involved.

  16. All this secrecy! I thought everything under our appointed mayor was promised to be transparent. I can’t see through all the walls erected around these issues – can you? At the forum on Monday night he said there would be no more back room deals. Starting now, I guess.

  17. The Rules of Professional Conduct (RPCs), particularly RPC 1.6(a), require the following of me as the City Attorney:

    “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent….”

    The official comments to RPC 1.6 state:

    The phrase “information relating to the representation” should be interpreted broadly. The “information” protected by this Rule includes, but is not necessarily limited to, confidences and secrets. “Confidence” refers to information protected by the attorney client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

    This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.

    The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

    A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

    I provide these excerpts from the RPCs in hopes that you can appreciate why I cannot comment on this matter. Thank you for your understanding.

  18. Mr. Taraday,
    While I’m impressed that the Edmonds City Attorney would take the time to comment on a public news forum, I’m quite confused. It took me a while to read through your lengthy comment. As far as I can tell, it boils down to “no comment.”

    If you felt you had to say something, and you wanted to say it a bit more politely, you could have said: “I’m sorry, but attorney-client privilege prevents me from commenting on this matter.”

    I don’t recall anyone asking for your comments, so I don’t understand why you even took the time to say you can’t comment. And you posted it in two different places

    I’m also concerned that it took you 8 paragraphs to say you had no comment after nobody asked you a question. I have to wonder if this is an indication of why Mayor Cooper took an illegal action after following your advice. How many paragraphs did you recite when Mayor Cooper asked you whether the separation contract was OK? Oops, sorry! I forgot you can’t comment. I withdraw the question.

  19. There is only one thing everybody is missing the people are paying the mayor and the people are paying the city attorney. The mayor isn’t paying the city attorney out of his pocket, sure there is attorney client rights but that rule applys when Im paying for a lawyer out of my pocket. The people are paying for the mayor and the city attorney so Im not certain that that rule applys.

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