OCTOBER 2022

Knowing the Waters

By Frank Chmelik of Chmelik Sitkin & Davis P.S. - WPPA Counsel

I have recently received several requests to talk again about issues that a port commission or executive director may consider at year end or early next year.  The idea here is to list items, which should be looked after at least annually – call it an annual legal checklist.  Some of, but not all, of these  items should be considered by a port district for the first meeting each year and some of these items are not “legal” but rather involve “governance.”  So here is a series of questions for your consideration.

1.     Is it time for an update to the port’s comprehensive scheme of harbor improvements  (“CSHI”)?  A “best practice” is to schedule an annual look at the CSHI to see if an update is needed.  RCW 53.20.010 requires that any improvements be included in a CSHI before the project is undertaken.  Lawyers are always concerned that someone challenging a project may cite RCW 53.20.010.  The Washington Supreme Court has noted that a CSHI can be a single document or a series of documents (such as capital budgets, airport layout plans or marina master plans) so long as the compendium of documents fairly and fully informs the public.  Another “best practice” is to routinely note that the annual capital budget, once adopted, is an amendment to the CSHI.  This is fairly straightforward since adoption of the capital budget and operating budgets requires notice once a week for two consecutive weeks followed by a public hearing (RCW 53.35.020).  Likewise, a change to the CSHI requires at least ten days’ notice followed by a public hearing (RCW 53.20.020).  Therefore, consider a single combined budget/CSHI, with one notice of the public hearing, to “adopt the port’s operating budget, capital budget and to amend the port’s comprehensive scheme of harbor improvements to include the projects listed in the capital budget.”  The public hearing then serves a dual role.  After the hearing, the budgets are adopted and the CSHI amended.  This is an “elegant solution” because it removes a potential challenge to a capital project based upon the failure to amend the CSHI and the single notice and following public hearing can serve both the budget requirement and the CSHI amendment requirement.

2.     Is the port district appointment of an agent to receive tort claims up to date?  RCW 4.96.020 requires local governments to “appoint an agent to receive any claim” for tort damages.[1]  The statute requires the “identity and the address where he or she may be reached during normal business hours” be recorded with the county auditor.  A person must be appointed.  Check and see if this filing is accurate.  People change jobs or retire. 

3.     Is the port posting its interlocal agreements (listed by subject) on its web page or filing them with the county auditor?  RCW 39.34.040 requires one or the other in order for the interlocal agreement to be valid and enforceable.  

4.     Is the port posting its agendas for regular scheduled meetings on its web page at least 24 hours in advance?  RCW 42.30.077 requires posting of agendas, except if your port does not have a web page or if the port has fewer than ten full-time equivalent employees.  Keep in mind that nothing prohibits later changes to the agenda or considering any other business or action at a regularly scheduled meeting.

5.     Does the port have a clear policy and provide training on gifts to port employees?  The holiday season is coming.  Vendors and consultants sometimes provide holiday gifts.  While the state auditor allows a public employee to keep a “nominal” gift of a value of less than $25, each port should have a written policy on this issue.  For example, does the fruit and cheese basket go into the employee break room for everyone to enjoy?  Likewise, the policy should put reasonable limits on gifts between employees, especially gifts to supervisors.

6.     Does the port have a clear policy on sexual harassment and conduct annual sexual harassment prevention training?  Ports need a policy, annual training and enforcement.  Consider annual training as part of an all-employee meeting.  Some insurance companies will assist in this training or give a discount if the human resource department or the port’s attorneys have accomplished the training.

7.     Is the Port’s industrial storm water general permit sampling and reporting up to snuff?  If your port has an ISGP, there are quarterly sampling and reporting requirements.  It is wise to make sure the samples are correctly taken, and the reports are appropriately filed.  The “best practice” is to require a status report on ISGP quarterly when the commission receives the quarterly financial report.  This avoids the all-too-common citizen lawsuits.  If your port does not have any ISGPs, then make sure you don’t need one.  

8.     Is the port’s delegation of “administerial powers and duties” to the “managing official” up to date?  RCW 53.12.270 provides for “delegation of powers resolution.”  A “best practice” is to have the commission and executive director review it each year and suggest needed changes.  The idea here is to strike the right balance that lets the executive director manage the port’s operations while reserving to the commission the more strategic or important financial issues.  The delegation can change over time to reflect changing priorities and the experience of the executive director.  One executive director I know routinely circulates the delegation of powers resolution to his senior staff and asks for suggested additions or deletions.  Then a decision is made about what changes to recommend to the port commission. 

9.      Is the commission providing a meaningful annual evaluation for the executive director?  Surprisingly, this is the one area that could be improved at most ports.  Executive director’s want feedback that is a bit more detailed than “you are doing a great job.”  A “best practice” is for the commission to conduct an annual formal written evaluation.

10.     Is the commission resolution governing the transaction of its business by the commission up to date?  RCW 53.12.245 requires such a resolution, but they vary widely across port districts.  Some port commissions adopt a simple resolution to “move, second, discuss and adopt” motions or resolutions.  Others adopt some form of Robert’s Rules of Order.[2]  And, still others adopt some form of “policy-governance” procedure available from a variety of sources.  In any event, is it time to look at this?

11.     Is the port’s IT protection software and procedures up to date?  Increasingly, governments have become the target of hackers that lock up a government’s information and demand a ransom (usually payable in bitcoin) to release the information.  If there is a data breach, which releases “personal information,” RCW 19.255.010 requires disclosure of to all concerned when the personal information “was, or is reasonably believed to have been, acquired by an unauthorized person.”  The statute defines the scope of the notification.  Insurance may be purchased to address hackers and employee training is available to prevent introduction of malicious software.

12.     Is the commission having a discussion with the executive director each year about what the commission hopes to accomplish in the upcoming year?  Experience shows that this annual discussion can really help focus the commission on the strategic issues confronting the port.  A “best practice” is to develop a list and schedule of the issues that the commission may want to address in the following year.  This will provide staff and the commissioners with a “heads up” of these issues.  Staff can then start the work necessary to provide information to the commission and the commissioners can start to think about these issues. 

13.     At the end of the year is the commission discussing how the commission performed during the previous twelve months?  Consider a commission discussion about “How we did as a commission last year?”  “Did we accomplish our goals?”  “Can we improve our process?”  Experience shows that commissions become more effective if they conduct an annual self-evaluation.

As always, please contact your port counsel with any legal questions regarding this topic.  And, if you have a particular topic for a Knowing the Waters, please email me at fchmelik@chmelik.com.

[1] Tort claims are all those claims related to personal injury, negligence, employment practices and the like.  They are distinguished from contract claims arising from agreements or leases.

[2] US Army Colonel Henry Martyn Robert (May 2, 1837 – May 11, 1923) was the author of Robert's Rules of Order, which is the most widely used manual of parliamentary procedure in the United States.  Robert graduated fourth in his class at West Point in 1857. He became a military engineer.  As a lieutenant, under command of Silas Casey during the 1859 Pig War, he built fortifications on San Juan Island – now within the Port of Friday Harbor.