By Frank Chmelik of CSD Attorneys at Law P.S. – WPPA Counsel

Last month we addressed documents your port district should have on file.  This month we address two quite common commission questions.

Who should report directly to the commission?  There are three positions that work directly for and report to the commission.

• Of course, the executive director or port manager is the port commission’s principal employee. This appointment is contemplated in RCW 53.12.270 which provides that the commission “may delegate such powers and duties of the commission, as it may deem proper for the efficient and proper management of port district operations.”  When I conduct seminars on the appropriate roles of the commission and the executive director/manager I always emphasize that the executive director manages the port staff and activities, and the commission only manages the executive director.  This means that the commission should require periodic reporting and provide periodic performance reviews but not “help” the executive director manage.
• RCW 53.36.010 requires that the port commission appoint an auditor. Typically, the auditor is the port CFO or an accounting manager.  Pursuant to RCW 42.24.080, the auditor must certify that the services have been provided, the materials delivered, or a contract requires payment for which the commission is approving payment.
• Finally, the port commission should appoint the legal counsel that represents the port. Of course, the legal counsel typically works with port staff on a day-to-day basis.  However, at the end of the day it is important that legal counsel understand their client is the port as directed by the commission.

In my view,  it is important for these three individuals to understand that they have an obligation to raise audit or legal concerns first with each other and, if necessary, with the commission directly.  Moreover, the three of them should understand that they have an obligation to make sure the commission has a clear and accurate picture of the facts underlying any commission action.  Experience has shown that when these three individuals work together issues are spotted early, the commission gets a complete analysis of any proposed action, and audit issues are avoided.

When does the commission need a resolution?  Port commissions act by voting in an open public meeting.  The results of that vote are reflected in the minutes of the port commission.  Once approved, these minutes are the official record of the port.  A resolution has no more formal legal standing than a motion.   The term “resolution” is usually used to indicate a written statement, prepared in advance and available to the commission to review before the meeting where it is considered for adoption. In simple terms, a resolution is a more formal method of acting, consisting of a pre-written statement of the motion, usually preceded by the words “resolved that.”  Here are times when I think a resolution should be used.

• There are state laws that require the commission to act by a “resolution” (for example the resolution delegating powers to an executive director in RCW 53.12.270).
• Where the issue is complex, a resolution may provide context and explanation for the action.
• If a port needs to transmit its action outside the port, a resolution is much more convenient and clearer than transmitting the relevant excerpts from the meeting minutes and the supporting documentation.
• In some matters (for example, issuing bonds), precise language is needed, and that language is better crafted in a resolution.
• Where the resolution will be referenced over time (for example the resolution adopting a leasing policy) it is much easier to locate a copy of a written resolution as opposed to referencing the action in the minutes.
• Finally, one experienced executive director told me that he views resolutions as a “more powerful statement” by the port commission. He notes that it shows a commission considered the issue important enough to create a written statement for the outside world.

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@csdlaw.com.