November 2020 Knowing the Waters; a column by WPPA Counsel Frank Chmelik
The Covid-19 pandemic has changed the way business is conducted. Ports, like many other businesses and governments, have adapted and innovated. But which of those adaptions and innovations will survive the end of the pandemic?
Remote Working. Most ports adopted very flexible rules allowing employees to work remotely. This remote work was only available to employees that were not required for hands on jobs such as maintenance employees, marina wharfingers or airport technicians. Indeed, the term “remote” for some employees included work from a location physically distant from port offices and perhaps from another city or state.
But will ports modify or eliminate these remote work policies after the pandemic ends? Several large technology businesses in our state have announced that they will move to a remote based workforce with a smaller number of offices and conference rooms available for occasional employee meetings and customer meetings. Will your port allow employees to work remotely and, if so, what will be the terms and conditions of working remotely? I think the best practice is to think thorough a remote work policy now; a policy that can be applied fairly to all port employees. Ports want to avoid the ad hoc employee decisions which will invite claims of disparate treatment and even discrimination.
Virtual Commission Meetings. Governor Inslee, on February 29, 2020, issued the first in a series of Proclamations aimed at addressing the pandemic. Proclamation 20-28, issued on March 24, 2020, prohibited holding open public meetings unless
The meeting is not conducted in person, and;
Arrangements are made for the public to attend, at a minimum, via telephone.
Agencies can add other electronic or internet means of remote access. Washington ports quickly responded by adopting remote meeting protocols, most using some form of internet-based meeting application. Proclamation 20-28 has now been extended through December 7, 2020. I anticipate that it will be extended again. As it stands now, governments in Phase III counties can hold in-person meetings, but the requirements are difficult to meet.
Ports and other local goverments have found that internet-based meetings have increased public participation while decreasing staff burden. This meeting may be extended after the pandemic’s end. However, there is no clear statutory authority for holding meetings remotely.[1] I would anticipate that after the pandemic local governments will be required to return to in-person meetings. However, it may be possible to develop a hybrid model where there is a physical meeting room outfitted with technology that would allow remote participation by the public, port staff and/or a commissioner. Now would be a good time for a port to decide if a hybrid meeting model should be adopted, and what technological requirements there are for such a meeting.
Electronic Signatures. Electronic signature authority has been available for years but was not used routinely until the pandemic; now, it is rapidly moving into the mainstream. Coincidentally in 2020, the Legislature adopted the Uniform Electronic Transactions Act (the “UETA”) found at chapter 1.82 RCW. The UETA replaced several older Washington statutes. RCW 1.80.170 appears to require all Washington governments, including ports, “to determine whether, and the extent to which, the government will send and accept electronic records and electronic signatures.” If a port decides to accept electronic signatures the statute requires that a policy be adopted addressing how the process will work. The use of electronic signatures will become routine, and here again, this is an issue that deserves some attention.
Heraclitus, the Greek philosopher said, “Change is the only constant in life.” I admit I had to look this up, but the idea is applicable here. The Covid-19 pandemic has accelerated change. It is now up to ports to see how the change will apply to each of them.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters please email me at fchmelik@chmelik.com.
[1] The Attorney General in AGO 2017 No. 4 noted that an elected official could attend a meeting remotely so long as the remote elected official could hear everyone, and everyone could hear the remote elected official.