June 2023

Knowing the Waters

By Frank Chmelik

In the 2023 legislative session, the law relating to filling vacancies in municipal government elected bodies (including port commissions) was amended.  RCW 53.12.140 is the port district statute that specifies when a vacancy in the port commission occurs and how to fill that vacancy.  This column discusses port commissioner vacancies, resignations and appointments under the new process.

Vacancies.  Pursuant to RCW 53.12.140, a vacancy occurs in a port commission by “nonattendance at meetings of the port commission for a period of sixty days unless excused by the port commission.”  The vacancy is automatic unless an absence within the sixty-day period is excused.  It is within the discretion of the commission to grant an excused absence.  Before taking an extended trip or other prolonged absences, a port commissioner would be well advised to seek an excused absence.  For an unplanned absence (for example, a hospitalization) the port commission should consider granting an excused absence.

Also, RCW 53.12.140 specifies that a vacancy occurs pursuant to RCW 42.12.010 (which applies to many different municipal governments including port districts).  That statute specifies that a vacancy occurs when:

·         a port commissioner dies;

·         a port commissioner resigns;

·         a port commissioner no longer is a registered voter (residing) in their commission district;

·         a port commissioner is convicted of any felony or any offense involving a violation of the port commissioner’s official oath;

·         a person elected port commissioner refuses after the election to take the official oath; or

·         a court decision voids the commissioner’s election or appointment.

Resignations.  I note that resignations are typically in writing.  The statute does not specifically require a written resignation, so I suppose a resignation could be made orally at a port commission meeting and entered into the minutes of the meeting.  However, the “best practice” is to deliver a resignation letter to the port commission with an effective date of the resignation, in writing.

Occasionally, a port commissioner sets an effective date of resignation into the future.  This raises two issues.  First, can a port commissioner revoke a resignation before the effective date?  RCW 42.12.010 notes that a “vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation.”  There is no further legal guidance on this point, but I think that a port commissioner could revoke the resignation up until the time it occurs.  Second, on occasion, a port commissioner sets a future effective date for their resignation, hoping to participate in the selection of the successor.  While, theoretically, the resigning commission could participate in a portion of the selection process (see below) the actual commission action cannot occur until there is a vacancy.  Of course, in my view the “best practice” is to wait for the vacancy to occur before even beginning the selection process, else the public would rightly perceive an unfair process which would reflect poorly on the other port commissioners and the port itself.

New Appointment Process.  The 2023 change to chapter 42.12 RCW[1] provided a new process for appointing nonpartisan positions, including port commissioners.  The port commission still has only ninety days to complete this process for each vacant position before the county legislative body takes over the authority to make an appointment.  Here are the steps:

• Step One: After the vacancy occurs, the port commission must nominate at least “one candidate” at a meeting of the port commission.  More than one candidate may be nominated.

• Step Two: The port must post notice of the vacancy and the name of the candidate(s) in three public places in the port district including the port’s website for a minimum of fifteen days.  During the fifteen-day period, registered voters in the port district can submit nominations of other candidates.

• Step Three: After the fifteen-day period, the port commission can fill the vacant position from the candidates nominated by either the port commission or the registered voters.

The Potential Time Crunch.  It seems that when a vacancy occurs (especially and unexpected vacancy), the new process requires port commissions to move deliberately to fill the vacancy since the ninety-day clock is running from the date of the vacancy.  Let’s assume a couple of weeks before the next commission meeting after a vacancy occurs.  Then, one would suppose before completing Step One (appointing a candidate) the port commission (in an open public meeting) would direct that a notice be published seeking applications.  This notice period will take some time.  Then one would presume that after the applications are received (unless all applicants are “nominated” by the port commission) the port commission would undertake some review of qualifications and conduct some interviews.  Again, this will take some time.  Then, Step Two will take at least fifteen days.  If candidates are proposed by registered voters, one would presume another round of application review and interviews would follow.  Then the port commission would move to Step Three and fill the vacancy.  At each stage, the port commission is allowed to go into an executive session to discuss the qualifications of the applicants (RCW 42.30.110(1)(h); and interview the candidates in an open public meeting.[2] 

In my view, the “best practice” is to set out a complete timeline at the first port commission meeting after a vacancy occurs, so that the public can see the process from start to finish and the port commission can schedule special meetings as needed to ensure completion of the process within the ninety day period. 

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

[1] Substitute Senate Bill 5437, Chapter 369, Laws of 2023.

[2] The public interviews could take the form of an open house where the commissioners, staff and the public circulate around and speak to the candidates or a more formal interview process in front of the commissioners.