Knowing the Waters- July 2021 column by WPPA Counsel Frank Chmelik

This month we will take a look at the resolutions that govern the transaction of business by port commissions.  Like many issues raised in this column, hopefully, this discussion will prompt a review of old policies and perhaps adoption of new policies. 

Adopting a Resolution Governing Transaction of Business.  RCW 53.12.245 requires that the port commission “by resolution adopt rules governing the transaction of its business”.[1]  These resolutions address such things as the duties of the president, vice president and secretary; how agendas are prepared and how actions are taken.  For example, many port commissions have an agenda item read (usually in the form of a motion), followed by discussion and then a vote.  Other ports require a motion and a second to proceed with consideration of the action or motion.

Many ports have a provision for a “consent agenda” where non-controversial items are passed as a group.  A consent agenda saves time and allows the port commission to get onto the more pressing or controversial issues.  I think the best practice is to adopt a procedure that allows for full and fair consideration as opposed to an overly formalistic procedure.  In any event, it is a good idea to periodically review the existing resolution and make sure it still meets the needs of the port commission.  In my mind there are several caveats.

Caveats on Resolution Governing Transaction of Business.   Over the years I have seen items in these resolutions which prove problematic.  Others may disagree but here are my caveats.  The first caveat relates to adopting Robert’s Rules of Order[2] or a similar rule book.  Once adopted it must be followed.  Experience shows that when a controversy arises everyone breaks out the rule book and starts making “points of order” and “motions to amend” and “motions to table”.  I have seen meetings quickly degrade into rule book exercises where the lawyer is asked to interpret the rules.  I think that it is far better to get to the substantive point, so I advise to keep the rules simple.  

The second caveat relates to adopting commissioner ethical standards, procedures for accepting complaints against commissioners, procedures to investigate commissioners and procedures to sanction commissioners.  Resolutions in these areas range from statements of agreed decorum in meetings to quite detailed procedures to receive complaints against commissioners and provide for such things as independent investigations and reports.  Ultimately, the law sets forth the qualifications for commissioners and the restrictions on their activities (for example chapter 42.23 RCW – the  Code of Ethics for Municipal Officers – Contract Interests).  Beyond that, voters decide on the appropriate choice where other conduct is usually factored in.  In my view, a shared agreement on decorum in a commission meeting may be worthy of consideration, but resolutions that seek to impose standards beyond what the law requires or establish procedures to investigate complaints or sanction commissioners are not a good idea because they can be used as a political weapon.  I think the best advice is to proceed carefully and always have these types of resolutions reviewed by the port’s attorney and generally leave these issues to the voters.

Defining “Other Official Duties”.  Depending on the size of your port[3], RCW 53.12.260(1) provides that commissioners are either entitled to ninety-six or one-hundred and twenty per diem payments per year. Some of these are used “in actual attendance at official meetings of the port district commission.” The statute specifies that the balance of these per diem payments can be made for work “in performance of other official services or duties on behalf of the district.”  It is up to the port commission to give meaning to this phrase. 

For example, most port commissions would agree that attending a meeting with the county as a designee of the port would be a per diem event.  How about, visiting a port tenant or stopping by the port offices to talk with the executive director?  In my view, the resolution ought to address this issue to provide some guidelines for port commissioners.

Establishing Commission Officers and Describing Their Duties.  Interestingly, RCW 53.12.245 requires the port commission to elect only a president and a secretary.  There is no requirement for or prohibition against electing the third commissioner (or the other three commissioners in a five-member commission) as a vice president. There are no particular duties specified in Chapter 53.12 RCW for each office.  Generally, the president is held to be the “presiding officer” and runs the meetings of the port commission.[4] 

Beyond that, various other duties have been typically assigned by a port commission to the president such as speaking for the port commission between meetings or coordinating the agenda with the executive director.  Likewise, the vice-president typically runs the port commission meeting in the absence of the president.  However, there is no statute on this point, so the best practice is to describe the duties in the resolution.

Why Look Now?  Experience shows that it is best to set the procedures and rules for commission operation before a dispute.  I recommend the intention should be to streamline commission operations so that commissioners can focus on the important substantive issues and let the voters police commissioner conduct. 

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 statute also requires adoption of an official seal (the port attorney can acquire a seal), that all actions be by motion or resolution and that all official action be recorded in a book or books kept for such purposes (a minute book).

[2] General Henry Martyn Robert (1837-1923) was the author of Robert’s Rules of Order first published in 1876.  He graduated from West Point in 1857 and was assigned as a second lieutenant to build defensive positions on San Juan Island in 1859.

[3] Ports with gross operating revenue of less than $25 million are allocated 96 per diem events and those ports with over $25 million in gross operating revenue are allotted 120 per diem events.

[4] I do note that the Open Public Meetings Act at RCW 42.30.080 provides that a special meeting may be called by “may be called at any time by the presiding officer of the governing body of a public agency or by a majority of the members of the governing body”.