By Frank Chmelik of Chmelik Sitkin & Davis, P.S. – November 2020

The Covid-19 pandemic has brought some real changes to the way that business is conducted.  Ports, like many other businesses and governments, have adapted and innovated.  What will be interesting to see is what adaptions and innovations survive the end of the pandemic.  Here are a couple of thoughts, observations, related adaptations and innovations.

Remote Working.  Most ports adopted very flexible rules allowing employees to work remotely.  Of course, this was only available to employees that were not required for hands on jobs such as maintenance employees, marina wharfingers or airport technicians.  Indeed, the term “remote” for some employees included work from a location physically distant from the port offices and perhaps from another city or state.  It will be interesting to watch the degree to which these work remote policies are modified or eliminated after the pandemic ends.  I note, for example, that several large technology businesses in our state have announced that they will move to a remote based workforce with a smaller number of offices and conference rooms available for occasional employee meetings and customer meetings.  What will your port’s remote work policy be after the pandemic?  Will your port allow employees to work remotely and, if so, what will be the terms and conditions of working remotely?  Of course, the best practice will be to start thinking about a policy that can be applied fairly to all port employees.  Ports want to avoid the ad hoc employee decisions which will invite claims of disparate treatment and even discrimination.  For this reason, I think the best practice is to think thorough a remote work policy now.

Virtual Commission Meetings.  Once the magnitude of the pandemic became apparent Governor Inslee, on February 29, 2020, issued the first in a series of Proclamations to address the pandemic.  Proclamation 20-28, issued on March 24, 2020, prohibited holding open public meetings unless

  • The meeting is not conducted in person, and;
  • Arrangements are made for the public to attend, at a minimum, via telephone.

Agencies are allowed to add other electronic or internet means of remote access.  Ports around the state quickly adopted remote meeting protocols with most using some form of internet-based meeting application.  Proclamation 20-28 was most recently extending through December 7, 2020.  I anticipate that it will be extended again.  As it stands now, governments in Phase III counties can hold in-person meetings, but the requirements are difficult to meet.

Many governments, including ports, have found that internet-based meetings have resulted in greater public participation and ease of participation for staff.  There is talk about extending this meeting format passed the pandemic end.  However, there is no clear statutory authority for holding meetings remotely.[1]  I would anticipate that after the pandemic local governments will be required to return to in-person meetings.  However, it may be possible to develop a hybrid model where there is a physical meeting room outfitted with technology that would allow remote participation by the public, port staff and/or a commissioner.  Here again, now would be a good time for a port to decide if a hybrid meeting model should be adopted and the technology that will be used.

Electronic Signatures.  Electronic signature authority has been around for a number of years but was not used routinely until the pandemic.  Now, it is rapidly moving into the mainstream.  Coincidentally in 2020, the Legislature adopted the Uniform Electronic Transactions Act (the “UETA”) found at chapter 1.82 RCW.  The UETA replaced several older Washington statutes.  RCW 1.80.170 appears to require all Washington governments, including ports, “to determine whether, and the extent to which, the government will send and accept electronic records and electronic signatures.”  If a port decides to accept electronic signatures the statute requires that a policy be adopted addressing how the process will work.  I think the use of electronic signatures will become routine.  Here again, this is an issue that deserves some attention.

Heraclitus, the Greek philosopher said, “Change is the only constant in life.”  I admit I had to look this up, but the idea is applicable here.  The Covid-19 pandemic has accelerated change.  It is now up to ports to see how the change will apply to each of them.

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 Attorney General in AGO 2017 No. 4 noted that an elected official could attend a meeting remotely so long as the remote elected official could hear everyone, and everyone could hear the remote elected official.