December 2020 Knowing the Waters; A Column by WPPA Counsel Frank Chmelik

Last month we discussed some long-term changes that the Covid-19 pandemic has brought to the way that business is conducted at ports which will likely continue into the future. Since the November column, we have received several inquiries from ports about when their commission will be able to hold in-person public meetings. The short answer is we do not know.  Having said that, here is what we do know.

First, any in-person meetings will likely be limited to governments in counties that are in Phase III or Phase IV as defined in the Governor’s county-by-county phased reopening initiative.[1]  There is currently a statewide prohibition through January 19, 2021.

Second, it seems that the “best practice” early in 2021 is to develop a plan for reopening in-person public meetings.  As discussed below, the plan should consider:

·                The ability for the public to participate, at a minimum, remotely by phone.  This will likely be a requirement until the pandemic ends.

·                The use of video conferencing.  This will likely be optional in the law, but the public seems to have grown to expect this means of participation.

·                A large enough meeting room and/or overflow space that accommodates anyone who attends the meeting with appropriate social distancing.  If the current commission meeting space is too small, ports may consider an agreement with another government to use a larger meeting space until the pandemic ends.

·                A health and safety protocol will have to be developed for the port staff and the public which complies with worker safety requirements issued by the Department of Labor and Industries.  This may include physical modification to the meeting space.     

Like many issues, proper planning now will allow a port district to move quickly into an in-person  open meeting when such meetings are allowed.

Third,  the prohibition against in-person commission meetings will continue into January 2021 and likely beyond.  On March 24, 2020, the Governor issued Proclamation 20-28 temporarily prohibiting the in-person meeting requirements of the Open Public Meetings Act.  Pursuant to RCW 43.06.220(4), with the concurrence of the legislature (or the legislative leadership when the legislature is not in session) Proclamation 20.28 has been extended several times since then.  The most recent extension, Proclamation 20-28.14 was issued on December 8th.  It extends the in-person open public meeting prohibition until January 19th.  We would expect that it would be extended again and again well into the late Spring of 2021.

Fourth, there is a potential future exception to the prohibition on in-person open public meetings.  The Governor, in Proclamation 20.28, provided for an exception to the in-person public meeting prohibition.  The exception will allow (but not mandate) in-person open public meetings in areas of the state where “business meetings” are allowed in “miscellaneous venues”.  One has to look to Proclamation 20-25 entitled Stay Safe – Stay Healthy - Rollback of County-By-County Phased Reopening Responding to a COVID-19 Outbreak Surge to determine the current status of business meetings in miscellaneous venues.  This was the proclamation that establishes the four-phase county system and allows certain activities based upon each county’s phase designation.  The current version, Proclamation 20.25.10 was issued on December 21st and expires on January 9th.  It prohibits business meetings in miscellaneous venues in all counties without regard to the phase designation.  Here again, we would expect that the ban on business meetings in miscellaneous venues will be extended again and again well into the late Spring of 2021. 

Fifth, while the pandemic is still active it will be difficult to hold in-person open public meetings.  We expect that Phase III counties will be the first to see the prohibition on business meetings in miscellaneous venues lifted.  When that occurs, the following requirements will apply to in-person open public meetings:

·                The remote meeting component must be maintained so that people can elect to attend remotely through a minimum of  telephonic access and, at the option of the port commission, other electronic means so that all persons attending can hear each other at the same time;  and,

·                The in-person meeting component must comply with the guidelines for business meetings in miscellaneous venues incorporated into Proclamation 20-25.  This will likely mean a maximum of 25% of fire code capacity not to exceed 100 people and the ability to maintain six-foot social distancing; and,

·                Masks will be required; and,

·                Anyone wishing to attend in-person must have a space available in the main meeting room or an overflow location where that provides the ability for all persons attending the meeting to maintain social distance and hear each other at the same time; and

·                If the in-person component falls out of compliance at any time during the meeting the meeting must be recessed until compliance is restored.  If compliance cannot be restored, then the meeting must be continued or adjourned.  Since the number of public attending will not be known before the meeting, a port commission will have to carefully plan for the largest possible attendance since falling out of compliance means recessing or adjourning the meeting.             Sixth, in our view, local governments including port districts have been very successful in conducting remote public meetings using video conferencing technology.  The business of government is proceeding, and the public is able to watch and comment.  Given this success, it appears there is no sense of urgency to get back to in-person open public meetings.  My bet is late Spring 2021 or early Summer 2021.

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] Currently, Asotin, Columbia, Ferry, Garfield, Grays harbor, Island, Kittitas, Lewis, Lincoln. Mason, Pacific Pend Oreille, Skamania, Stevens, Thurston Wahkiakum, and Whitman Counties are in Phase III but under a “pause”.