By Frank Chmelik and Tim Schermetzler of CSD Attorneys at Law P.S.

December is a month of making lists - holiday present lists, new year’s resolution lists, and the like.  In keeping with the theme of making lists, this month’s column is an annual legal checklist of items that your ports should review annually.  If it has been more than a year since your port addressed some of these items, perhaps you should take a moment while your kids or grandkids are writing their lists to Santa to make your own list for 2025.

 

• Regular Meeting Schedule and Online Posting.  Most ports adopt a regular meeting schedule by resolution at the first meeting of the year compliant with RCW 42.30.070.  With few exceptions, most ports must also post the agendas for each regular meeting of the commission at least 24 hours in advance of the start of the meeting.  Make sure your port has processes in place to post these agendas.  Remember, your commission can always amend regular meeting agendas after posting if an emergent matter must be discussed at a regular meeting.

 

• Policy and Training on Gifts to Port Employees.  Amid the holiday season, vendors, consultants, and others may look to provide holiday gifts to port employees. The auditor allows acceptance of nominal gifts, and many ports adopt a policy consistent with the $50 threshold applicable to state employees in RCW 42.52.150.  Unlike for state employees, there is not a specific statutory amount for nominal gifts applicable to port employees, so the port should adopt a policy consistent with the limitations of the municipal ethics act requirement in RCW 42.23.070.

 

• Employment Practices.  The beginning of the year often comes with new rule changes, making it a good time to check in on the port’s compliance with employment regulations.  For example, beginning January 1, 2025, the new salary thresholds from the Washington State Department of Labor & Industries for salaried exempt employees in Washington will be $69,305.60 per year for employers with 1-50 employees.  This means that employees making less than that threshold could be reclassified as salaried non-exempt or hourly employees and not be exempt from overtime pay and other Minimum Wage Act rules.   If your port is an employer, the beginning of the year is also a good time to conduct an internal review of your employment practices. This review could include updating employee manuals or personnel handbooks.  A best practice is to review these handbooks at least once every three years.

 

• Appointment of Agent for Tort Claims.  A “tort” is a civil wrong other than a breach of contract, such as personal injury claims or tortious interference with a business expectancy.  A port must have a person appointed as its agent to receive tort claims for damages.  RCW 4.96.020 requires the identity of the agent and the address where they may be reached during the normal business hours of the port, be recorded with the auditor of the county in which the port is located.  Check to make sure this information is up to date at your port.

 

• Appointment of Auditing Officer.  RCW 42.24.080 requires each port to appoint an “auditing officer” to authenticate and certify that the vouchers submitted for payment are a just debt of the port.

 

• Filing Interlocal Agreements.  Are all of the port’s interlocal agreements either filed with the county auditor or listed by subject on the port’s website?  RCW 39.34.040 requires one or the other in order for the interlocal agreement to be valid and enforceable. 

 

• Resolution by which Competitive Bidding Requirements for Public Works Contracts may be Waived.  RCW 53.12.270 requires a port commission to adopt a resolution addressing non-bid public works for things such as emergencies and sole source procurement.

 

• Personal Service Contracts Policy.  A “personal service contract” is a services contract for something other than architects, engineers, landscape architects, land surveyors or attorneys and includes such things as IT consultants, marketing consultants or human resource consultants.  RCW 53.19.090 requires ports to “follow the policies adopted by the commission, which shall be based on guidelines developed pursuant to RCW 53.19.080.”

 

• Public Records Training and Procedures.  All commissioners and the port’s public records officer must complete a public records training within 90 days of taking office and a refresher course every four years.  RCW 42.56.580 requires the appointment of a public records officer.  RCW 42.56.040 and RCW 42.56.100 mandates ports to adopt rules of procedure and other information related to public records.    

 

• Protecting Personal Data and Information.  Increasingly, governments have become the target of hackers that lock up a government’s information and demand a ransom (usually payable in a crypto currency) to release the information.  If there is a data breach which releases “personal information,” RCW 19.255.010 requires disclosure of the breach 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.     

 

• Organization of the Commission.  RCW 53.12.245 requires the commission to elect a president and secretary and adopt, by resolution, rules to govern the transaction of business.  The rules for transacting business vary from port-to-port and range from a simple process of acting upon a motion, second, discussion and vote, while others adopt more formal processes such as Robert’s Rules of Order.  Is it time to update this resolution at your port?

 

• Delegation of Authority and Duties.  Many ports already have in place a delegation of powers resolution per RCW 53.12.270, but a best practice is to review that delegation annually with the commission and adjust, if needed.  The goal is to strike the right balance between operations and governance, reserving for the commission the strategic and important financial issues.  If it has been more than a year since your port’s commission reviewed its delegation of authority, that may be a good item to add to a regular meeting agenda in early 2025.

 

• Annual Evaluation of the Executive Director or Port Manager.  The executive director or port manager reports to the commission, but if your port is not intentional about conducting regular evaluations, the ongoing and immediate business of the port may dominate commission meetings.  A best practice for the commission is to conduct an annual formal written evaluation of the port’s executive director or manager.  Executive directors and managers want this feedback and can be engaged in this process by reviewing past accomplishments and setting goals for the next year.

 

• Commission Self-Evaluation.  At the end of the year does your commission discuss how it performed during the previous year?  A best practice is scheduling an annual commission self-evaluation discussion considering things such as: what goals were accomplished, where did the port fall short, and where can processes be improved.  While one-off evaluations can still be helpful, there is significant benefit in seeing progress over a matter of years for the commissions that commit to these discussions on at least an annual basis.

 

• Goal Setting.  Dovetailing from the last bullet point, does your port engage in strategic planning or goal setting at the beginning of a new year?  You should!  A best practice is to develop a list and schedule of 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 begin the work necessary to provide information to the commission and the commissioners can begin brainstorming these issues. 

 

After you’ve made your list and checked it twice, take time to enjoy your families and loved ones.  We wish you all a very happy holiday season.

 

As always, please contact your port counsel with questions regarding this topic.  And, if you have a question for Knowing the Waters, please e-mail us at fchmelik@csdlaw.com or tschermetzler@csdlaw.com.