Knowing the Waters April 2020 by WPPA Counsel Frank Chmelik
This month’s column is a bit different in that it will look at the COVID-19 public policies and how these public policies may inform decisions by port commissioners and port senior staff. The thesis here is clearly understood and articulated public policy yields good decisions by elected officials. To be clear, I am not really trying to suggest answers, recognizing that port commissions and senior staff will have wide legal authority to support the answers they give. Rather, the intent here is generate thought and discussion on the pending questions ports are undoubtedly wrestling with as our state begins to reopen.
Is current Washington public policy “slowing the spread to flatten the curve” or “stopping the spread”? As we all know, Washington State took decisive actions designed to slow the rate of transmission of the highly contagious coronavirus, including mandatory “stay at home” directions and limiting on-site workers to only work designated “essential”. At the onset, the public policy behind these actions was clear - given the relatively high transmissibility of the coronavirus, it was necessary to slow the spread so as not to overwhelm emergency rooms, hospitals, ICUs and ventilator availability. After all, the medical system in New York City was almost overwhelmed. But as the curve has flattened, the public policy, by some accounts, may be changing to “stop the spread.” The difference between these two policy statements could be significant to ports and their tenants.[1] A clear understanding of the public policy may be helpful to port commissions and senior staff when they make decisions concerning employees, tenants and port facilities.
What is meant by the term “essential workers” and how does that inform port policy decisions concerning port employees? While “port workers” were included in the list of essential workers,[2] the term “essential” was a bit unclear. Some commented that it was designed to protect workers by only asking essential workers to risk coronavirus exposure. Others thought it was not a worker safety issue but instead designed to limit the overall number of people in on-site work situations to “slow the spread.” Of course, the list of “essential workers” was rather broad and included not only port workers but, among other things, construction workers working on public housing projects and public work projects which were months away from completion, workers in retail marijuana sales and real estate agents showing homes. As the State government begins to loosen restrictions (now, for example, to allow completion of construction projects that had been started before March 23rd ), clarity of the public policy underlying the classification of workers as “essential” will allow port commissions and senior staff to make reasoned decisions. If the definition of “essential” is to protect workers by limiting work to necessary essential services, ports may elect to limit the number of port employees working to only those essential to society’s needs (for example commercial service airport employees) and perhaps limit the workforce to workers without coronavirus risk factors. If the definition is instead focused on the number of workers that can be at work without materially increasing the coronavirus transmission, then ports may elect to have more of the port workforce working on things like maintaining port facilities, working at public recreational boat launch facilities and working at recreational marinas. The thought here is that a clear understanding of the public policy will inform ports’ decisions. Of course, no matter what the public policy, Port districts’ focus on worker safety will now include actions to minimize the spread of the coronavirus. The Washington Department of Labor and Industries has published guidance at www.lni.wa.gov/safety-health/safety-topics/topics/coronavirus. This guidance and other guidance that will surely follow from the Department of Labor and Industries should (with consultation with effected unions) be followed.
Should port districts require “social distancing” by the public using its facilities or as a condition of new leases? An interesting public policy question concerns port actions to regulate public conduct and tenant conduct by imposing “social distancing” and other requirements on the public utilizing port facilities, altering the use of port facilities to ensure that social distancing is maintained or inserting clauses in new leases? I note that it is generally recognized that port districts are not governments responsible for public health. However, ports can regulate the use of port facilities and negotiate terms in leases with great legal latitude. For example, a rural port district with a boat launch popular with urban fisherman may close its facilities because the facilities may attract too many out of area users thereby spreading the virus to local residents risking overwhelming a rural health care system.[3] But absent extraordinary circumstances, should a port district impose more stringent restrictions than the State government to regulate residents or tenants? Should, for example, a port mandate that all public users of its facilities wear masks and gloves, or close every other trailer boat launch parking space, or limit the use of a launch ramp or patrol its parks to make sure social distancing is maintained or require a tenant to meet coronavirus health requirements? Or should a port district keep its facilities open and rely on Washingtonians following health and safety directions promulgated by State government and/or local health authorities? I do not suggest the answer but merely ask the questions. Port districts throughout the state have approached this issue differently. Stated another way, how far should ports venture into regulating the conduct of Washingtonians – either as a governmental entity or a property owner? Moreover, once begun when and by what measure will the port actions change or terminate? What, if any, precedent is being set? And how will a port enforce any restrictions, if at all?
Port lawyers have no particular expertise in these public policy issues but can help ports assess risk and develop risk mitigation plans and internal controls. Port lawyers will likely advise port commissions and senior staff that port districts have wide legal latitude to decide how and when port facilities will be used and the terms and conditions of leases. Lawyers will also, undoubtedly, advise that the findings, conclusions and rational for any decision be documented. Beyond that, these are public policy decisions for port commissions and senior staff. Again, I do not suggest and answer but merely ask the questions.
As always, contact your port attorney for guidance and contact me if you have a topic for this column at fchmelik@chmelik.com
[1] I think a good example of a clear public policy was the recent statement by New York Governor Cuomo that New York would open its economy using a metric of hospital utilization at no more than 70% (among other things) to gauge the advisability of loosening or tightening restrictions.
[2] Proclamation 20-25 referenced a list of “Essential Critical Infrastructure Workers”, which included “port workers”. There are various interpretations of this term.
[3] For example, news reports indicated that Arches National Park in Utah was initially closed to protect the residents of nearby Moab, Utah from infection by an influx of tourists.