City listens to Gerend on legal representation in his case against the city

By Miki Mullor
Editor

  • Former Mayor Don Gerend, suing the city, advises who city’s attorneys should be – and the city is set to award a contract.
  • Mass exodus of lawyers sets up new firm Gerend recommends.

Former Mayor Don Gerend, who challenged Sammamish’s stricter traffic concurrency testing ordinance adopted last year, recommended that the city council keep its attorneys after a group of them defected from Kenyon Disend and set up their own law firm.

And, tonight at the council appears ready to follow the advice of the plaintiff asking the Growth Management Hearings Board (GMHB) to overturn a piece of legislation that is critical to measuring traffic in future development applications.

The city’s law firm since incorporation in 1999, Kenyon Disend, lost five of its 10 attorneys in November, when those five attorneys abruptly resigned to start their own law firm. Two of those attorneys represented the city in the Gerend case. 

Gerend vs. City of Sammamish 

Don Gerend

Gerend sued the City in July to overturn new concurrency rules enacted by City Council. Gerend contended the new rules will prevent the Town Center from moving forward. 

In the last election, Gerend formed a Political Action Committee (PAC) with former Mayor Kathy Huckaby and poured $116,000 into the election, backing Town Center-friendly candidates Karen McKnight, Rituja Indapure and Karen Howe.  The PAC was funded by STCA and R. J. Merrill Co, the developers of the Town Center. 

Gerend filed his action in the GMHB, which is the first step to legally overturn a government action that is related to the Growth Management Act (GMA). Technically, the action is a “petition” rather than a lawsuit. But the effect is the same and the losing party’s recourse is to file a lawsuit in court.

Strategic legal error

In what some council members viewed as a strategic error, Kenyon Disend submitted records to the GMHB after the date of record for adopting the concurrency ordinance. Gerend’s attorney responded that if this were the case, they should be allowed to submit post-approval data as well,

Instead of withdrawing the materials, Kenyon Disend agreed with Gerend’s attorney, therefore making the case broader and potentially more complex for the City to defend.

Exodus at City Attorney’s law firm  

The city was represented by Kim Pratt and David Linehan from Kenyon Disend. Mike Kenyon, the owner of the firm, serves as the City Attorney. Pratt was the city’s Deputy City Attorney, per her current bio. 

Kim Pratt

In November, Pratt and Linehan abruptly resigned from Kenyon Disend to form their own law firm, Madrona Law Group, with three other attorneys from that firm. Washington Department of Corporations records show that Madrona Law Group was incorporated on Oct. 31 by Anne Marrie Soto. Soto was previously listed as a partner at Kenyon Disend.  In the “About” section of their new website, www.madronalaw.com, all five attorneys of the newly formed firm avoid referring to their previous employer by name, but rather listed their experience at Kenyon Disend as “working for a small boutique firm.” 

According to city staff, the abrupt resignation of Pratt and Linehan had put the City at risk with respect to the Gerend case:

“The city could have its current law firm [Kenyon Disend] provide the necessary services [for the Gerend case], but there is concern that there is not enough time for them to adequately prepare and meet the GMHB’s [Growth Management Hearing Board] schedule,” writes staff to City Council.  

However, it is not unusual for a continuance (an extension of time to the schedule) to be granted in the event of change of counsel. In fact, the GMHB has already granted a 90 days continuance in the Gerend case, per Gerend’s request.

The City Council has been considering hiring an in-house city attorney. Sources told the Sammamish Council that City Council was also looking at changing representation specifically for the Gerend case.  

Yet in the three months since the split at Kenyon Disend, the issue of its ability to handle the Gerend case was not raised. In fact, Mike Kenyon and Alexandra Kenyon were both assigned to the Gerend case and even filed briefs on the City’s behalf. 

City listens to Gerend 

During the City Council’s retreat on Jan. 24, Gerend told City Council to not change its attorneys, as part of a list of policy matters he gave his opinion about. Gerend reiterated his advice in an email he sent to City Council on Jan. 27. 

“I caution the Council from selecting a firm based on cost. Continuity with the city is important, both in attorney and in City Manager, for the benefits of institutional  memory;” said Gerend. 

Receiving legal advice from a plaintiff in litigation is highly unusual. It’s even more unusual for a defendant to apparently be ready to accept and approve that legal advice.

At Tuesday’s City Council meeting, the Council is asked to approve a contract with Pratt and Linehan to represent it in the Gerend case. 

“Ms. Pratt is now with Madrona Law Group. To maintain continuity, especially in regards to historical knowledge and to meet the GMHB’s schedule, it is recommended that this contract be approved,” says the city staff in its recommendation to approve an $80,000 contract.  Staff did not provide any other alternatives to the council. 

Contract already approved?

However, Acting City Manager Chip Corder already signed a contract with Madrona Law Group on Dec 19. The contract was obtained through a public records request. Indeed, on Jan 17, Madrona Law Group has filed a Notice of Appearance with the GMHB, assigning itself as the attorneys of records for the City on the Gerend case.

Now, a second contract to hire Pratt and Linehan’s law firm to represent the City in the Gerend case has been placed on the consent calendar for the upcoming Council meeting. 

In an unrelated post on her Facebook page, Deputy Mayor Christie Malchow explains that a consent calendar “is generally topics the council has already touched or will not require discussion by counsel. Notably, it assumes that all seven members of the council consent to pass this, and the council will pass all of these items in a singular vote.”

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3 thoughts on “City listens to Gerend on legal representation in his case against the city

  1. Isn’t Kenyon Disend the firm that “won” the no-bid contract let by Sammamish? I seem to recall Huckabay making an end-justifies-the-means rationalization about this unethical practice several years ago. I suspect there’s more than meets even the jaded eye here.

  2. Pingback: Fourth of July, other events cancelled; City hires a new attorney to advise on growth | Sammamish Comment

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